Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment

Dr Eoin Daly is a lecturer in law in the Faculty of Law, University College Dublin

One of the concerns raised by the opponents of the proposed amendment is that it might make it easier for the State to override the decisions of parents thought to be foolish, ill-judged, or bad for children as determined by expert opinion. For example, obscure or peripheral ways of life, based on moral and religious commitments, might be thought to be damaging to child welfare. Eccentric pedagogies or lifestyle choices – perhaps Rousseau’s Emile ­– might be deemed objectively harmful by the best available scientific evidence. In this lens, the amendment, under the pretext of protecting child welfare, might inadvertently undermine value pluralism in society – the freedom of different communities and parents to exercise different beliefs and conceptions of good and to pursue this pedagogically, in their children’s education and upbringing. We might imagine the Amish and their early withdrawal from formal schooling, or religious parents insisting that their children not receive certain important secular instruction, or children prompted to participate in physically arduous religious rituals or pilgrimages. Beyond religion, one might think of Bertrand Russell’s obscure, scandalous, experimental pedagogy.  Surely this value pluralism in an important, if limited social goal, linked to human rights – it is legitimate to argue that diverse beliefs and ways of life should be given a broad berth by the State for the sake of pluralism, that is should not always impose what is objectively “best”   – even in the case of child welfare. Freedom of religion and belief, the exercise and manifestation of conscientious commitments or conceptions of the good life more generally, should not be stifled by dubious expertist or scientific opinion as to notions of children’s “best interests”, which might in any event be transient and contestable. A broader philosophical argument – which I do not intend to address – is that value pluralism, in protecting the exercise and integrity of different ways of life, might in fact have a necessary (and perhaps legitimate) cost to child welfare. In any event, it is surely important that those thought to be “quacks” or eccentrics by the social mainstream – perhaps those who might reject vaccines, for example – also have their human rights accounted for.

Although I believe this concern based on value pluralism in the context of the proposed amendment is ultimately misplaced, it is worth taking it at face value. It is true, I think, that the amendment does in fact alter the “threshold” for State intervention in issues concerning child safety and welfare.

Article 42 A.2.1 provides:

In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. (emphasis added)

On the face of things, this does make it easier for the State to intervene to override conscientious parental choices – whether religious or ethical – which might be deemed harmful to children. It replaces the current Article 42.5 which provides:

In exceptional cases, where the parents for physical or moral  reasons fail in their duty towards their children, the State as  guardian of the common good, by appropriate means shall  endeavour to supply the place of the parents, but always with  due regard for the natural and imprescriptible rights of the child.

Although the wording is ostensibly similar, an important change in the standard for intervention is introduced. Currently, parents must have failed “for physical or moral reasons” in their duty to their children in order for the State to “supply” their place. If the amendment is passed, the State is permitted to intervene where the failure of duty is such that “the safety or welfare of any of their children is likely to be prejudicially affected”. It is clear this establishes a different standard for intervention. Read out of context, this might be interpreting in an alarmist way – as implying that conscientious parental choices, based on moral or religious or philosophical commitments, might be overridden by the State where they are thought to prejudicially affect children’s “welfare” (it will not be necessary that child safety be threatened in order for the State to intervene, because the formulation safety “or” welfare is used.)

Based on the existing provisions, the Supreme Court has explicitly ruled out the very idea, introduced in the new provision, that a mere threat to child welfare is sufficient for the State to “supply” the place of parents, though the child care system or otherwise. This was made clear in the “PKU test case”, North-Western Health Board v. H.W where parents refused to consent to an apparently innocuous test on vague ethical grounds, and the Court determined that this decision could not constitutionally be overridden, even though it was objectively ill-judged. Whereas the test was “in medical terms … unquestionably in the best interests of the infant”, the different judges said that in order for an intervention to be allowed, there would have to be, for Justice Denham, “an immediate threat to the health or life of the child”; for Murphy J,  “a degree of parental neglect constituting an abandonment of the child and all rights in respect of him”; or for Murray J an “immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically, morally or socially, deriving from an exceptional dereliction of parental duty”.

Clearly, the new provision provides that a parental decision likely to detrimentally affect welfare could hypothetically be overridden even where these current thresholds are not met.

However, this does not mean that the post-amendment Constitution will allow broad-reaching intervention in parental choice, in respect of education and care, simply where parental decisions are thought to be objectively ill-judged (although some would undoubtedly like this to be the case). First, the new provision does include the proviso “exceptional cases”, which implies that decisions which might be objectively ill-judged, but are harmful in a minimal, hypothetical sense. It will not apply to those eccentric decisions which might fall within a range of reasonable disagreement (for example Spartan parents who have their children cycle 15 miles to school). Secondly, the decision has to be “likely” to prejudicially affect welfare, not to hypothetically affect it, so the PKU test case, I believe, would not be decided differently under the new A. 42A, simply because the refusal to allow the test apparently carries a very minimal risk of future detriment.

Third, and finally, the Constitution must be interpreted harmoniously, as speaking with a single moral voice so to speak, and so cannot be read in isolation from the other provisions. The existing Article 41, which remains unamended, will ensure that Article 42A cannot be used for any overzealous, tyrannical deployment of state power in the child care area, which some campaigners fear. It will still recognise the Family as the “natural primary and fundamental unit group of Society, and as a moral institution  possessing inalienable and imprescriptible rights, antecedent  and superior to all positive law,” and commits to protecting it in its “constitution and authority”. Moreover, the remaining portions of Article 42 will still provide very specific protections of parental choice in education specifically, for example, the right to not to be forced to send one’s children “to any particular type of school designated by the State”, which protects home schooling. One might also refer to the provisions of Article 44, which would protect parents’ conscientious and religious choices in respect of education and care, although within certain limits.

In summary, the requirement of reading the proposed amendment harmoniously with the other provisions of the Constitution should ease the fears of those who are concerned it might serve as a pretext for overzealous state regulation of parental choice. John Waters need not worry about the integrity of family “ecology” – this is a relatively conservative amendment.

Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment

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