Friday, February 02, 2007

Irish Gov't To Enshrine Rights

The Government plans to insert five new provisions into the Constitution aimed at strengthening the rights of children and providing greater protection against child sexual abuse, according to reports.

A Government briefing document on the proposed wording published in The Irish Times says that the Government plans to allow the Oireachtas to introduce a zone of absolute protection below which it would be automatically criminal to have sex with a child. The age of sexual consent, and the age at which the zone of protection would come into effect will be left for the Oireachtas to decide.

This is intended to address the fallout from the Supreme Court decision last July which ruled that the law which had previously criminalised sexual activity with minors was unconstitutional because it made no provision for a defence of 'honest mistake'.

Currently the Government plans to incorporate all five changes in a single amendment which would substitute Article 42.5 of the Constitution, confirming earlier reports that the Government wanted to 'bundle' all its proposals under one question. It also plans to change the title of Article 42 of the Constitution from 'education' to 'education and child protection'.

On the issue of children's rights, the briefing notes provided to Opposition parties suggest the Government will avoid setting out a list of explicit rights for children. Instead, it will set out in more explicit terms the 'natural and imprescriptible' rights of the child. At present, the Government asserts that children implicitly enjoy these rights. They argue that the proposed change will merely make this state of affairs clearer.

The amendment will also propose changing the wording of Article 42.5, the constitutional provision relating to State intervention in families where children are considered to be at risk. The reworded article would allow for the State to used 'appropriate and proportionate means' to intervene in a family where parents of 'any child' have failed in their duty towards that child.

Currently, the Article reads: '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.' The new provision would alter this, adding the the words 'and proportionate' to the word appropriate. Furthermore, the new provision would apply to 'any child'.

A number of changes in the area of adoption are also proposed by the wording. An express constitutional provision permitting the adoption of children in long-term care under a court order is set to be included as part of the package.

Furthermore, current practice does not allow for the adoption of a child born into a marital family. The proposed change would make all children eligible for adoption.

The final wording is due to go to Cabinet next week, following consultations with Opposition parties. If the wording is approved by the Cabinet, it is thought that a referendum will be held in the first week of April.

At this stage it is unclear whether the Government will secure all-party consensus on the planned referendum, or if the changes will go far enough to satisfy children's rights groups.


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