Bruce Arnold

Critic of Public Affairs, writing about art, theatre, music and politics

For children's sake, vote No and reject this hollow care proposal

Were I a member of this or any previous government of this country I would be ashamed to use the description of 'the State as guardian of the common good' in respect of care of children. It is a sanctimonious and empty term in regard to the rest of the proposed Article, particularly where it is used specifically, "to provide the place of the parents in keeping children safe". But it is the hollowness of the concept of guardianship that makes me cringe.

Any narrative of the State's guardianship is full of woeful and terrible mistakes in respect of State care of children.

From the 1920s, when Peter Tyrrell's incarceration in Letterfrack began, up to the final closure of the industrial school system completed around 1970, the Irish State was knowingly guilty of appalling neglect through its failure to regulate.

Lack of food, clothing, education, coupled with physical and sexual abuse, were widespread throughout the system that then prevailed. Tens of thousands of children suffered.

Tyrrell was not criminal. He was just from an impoverished family. The family was a loving one. Letterfrack was anything but. Yet the State monitored an industrial school committal system without ever regulating its abuse by the Catholic Church which ran the institutions.

From 1970 to the 1990s the focus shifted to diocesan and family abuse. The State as "guardian of the common good" was derelict by not passing laws that penalised those who controlled or protected priests who abused. The State did the reverse, repealing the crime known as misprision of felony that made it an offence to conceal a felony and replacing it with a provision that did not extend to sexual offences.

From the 1990s the failure of the State became more complicated, with the church retreating behind the barricades of evasion of responsibility and the HSE demonstrating a lack of competence that endorses nothing so much as the overall embarrassment of our pretending that guardianship will get any better.

The referendum does not tell us how this miracle of change will be delivered, since it never has before, and making it happen now has not been defined. We never have long to wait, even in the modern era, before further examples of collective national embarrassment make us look round to see where the 'common good' has gone.

The referendum does not tell us. Nor will the legislation. The demand will manifest itself in lost, abused, abandoned children, in the future as it has done in the past.

Let me now turn to another series of absurdities that make a nonsense of the drafting of the new Article 42A. This is because those responsible for drafting the Article we vote on next Saturday totally ignored a comprehensive report of 700 pages dealing in detail with children's rights and putting forward ideas of far greater penetration and wisdom than the country is being asked to vote for. These suggested amendments are contained in the 1996 Report of the Constitution Review Group chaired by Ken Whitaker with a distinguished list of members, among them the chairperson of the Referendum Commission, Mrs Justice Mary Finlay Geoghegan.

They pondered the Constitution as it applied to children and came up with practical proposals. These would have sensibly fitted in with a new and better-drafted Article. These included the following rights: that children would be registered and named at birth and given the right to know and be cared for by their parents. In the case of a non-marital child, this obligation would be on both parents. In the event of such adoption there would be regulation on the time and manner in which children would be entitled to this information about their birth parents.

Wisely, the Whitaker Group recognised that the ponderous 'inalienable' and 'imprescriptible' rights have been superseded by 'human rights' now a well-documented, widely recognised and respected form of protection of the person.

It was not on a whim that the removal of these terms -- solidly and ludicrously present in Article 42Ai and 42A2.i -- was put forward as a significant change. The Group recognised that these words had given rise to a tilting of the balance in favour of the autonomy of the family to the possible detriment of individual members of families.

We need to stop this referendum because it seriously harms the prospects for a better, more coherent and more comprehensive protection of the child. There will be plenty of room left over for failure. After almost a century of failure what confidence could we have in the success now promised on foot of such a demonstrably flawed document as the one we vote on. For the sake of the future vote No.