AN IMPORTANT REFERENDUM

2 November 2012 No Comments by The Northern Standard

Given that all the major political parties are broadly in favour of its adoption, the proposed change to the Constitution concerning the rights of children on which the country will vote on Saturday, November 10 is generating, in at least some of the areas to which it is relevant, a remarkably high level of emotive and conflicting points of view.
Remarkable perhaps, but hardly surprising – The Children Referendum touches upon subjects that have been, to a good many of our population, a source of profound emotional stress and even trauma.
There is some force to the argument that the constitutional questions which it falls to the people periodically to determine are best resolved with the head rather than the heart.
However, while it is advisable to apply as much objectivity to the question of whether the proposed form of words will achieve the ambitious and very important objectives that have been set for it, voters should not be beguiled into accepting that the broad political consensus that favours a Yes vote indicates that the question is a straightforward one.
Complex issues are involved here – perhaps to a greater extent than any of the referenda we have been engaged in over recent times, a burden of responsibility rests upon the voter to inform themselves fully of the text of the proposed constitutional change.
Voters must also weigh how its adoption is likely to impact in the future on the rights of children to proper care, and on their rights of audience in judicial proceedings that govern adoption and the custody and access rights accorded to parents or guardians.
There is no denying that some action in this regard is needed – an explicit constitutional affirmation that children have legal rights as individuals is essential to the societal good and the aspiration of the proposed change in this respect will undoubtedly be acceptable to all.
What it falls to the people to determine is whether the formula of words being put forward gives meaningful effect to this aspiration – in other words, produces an outcome that will see those rights take on substantial meaning in the future through the way in which legislation functions in the interests of children.
The material being circulated by the Referendum Commission is of assistance in this regard to the extent that it breaks down the somewhat complex wording into its four constituent elements and deals with the changes that would flow from their future implementation. It also places the proposed new Article into the context of the existing Constitutional provisions that deal with personal rights, the protection of the family and the entitlement to education.
It is important to remember that voters must make a determination on the total proposal – we do not have the latitude to approve one element of the proposed change but vote no to another, but must approve or reject it in its entirety.
It is up to the individual to determine if they can make a full evaluation of the issue on the basis of the explanatory material circulated by the Referendum Commission alone.
The arguments in favour of and against the proposal are in the ether and most of us will want to give some attention to them before making a decision.
Not all of those advocating a Yes vote believe that the wording being put forward goes far enough, but all seem agreed that it is a step in the right direction, one that will protect the rights of the child while not impinging on the rights of the family or the individual.
The opponents have advanced a broad range of reservations, a recurrent one being that specific rights for children are not contained in the proposed new Article and seem instead to be left to emerge piecemeal over time through future legislation or judgments of precedent that emerge from courts dealing with family law proceedings, a situation they find unsatisfactory.
A difficulty that arises in making a fully informed decision on the issues at stake is that a principal arena in which the rights of children are determined – the family courts – is one that is not customarily exposed to public scrutiny.
Some of these who engage professionally with the family law courts have contributed informatively to the debate, and there have also been powerful, emotive contributions from individuals and their representative groups who have been parties in such cases and have personal experience of adoption or martial break-up or the intervention of the State in crisis family situations.
All such viewpoints must be given their due regard – and passing the amendment wording and the arguments it has generated through the prism of our own personal experience is no bad thing either, if we are to reach a determination that is true to ourselves.
Very few of us have the expertise of constitutional lawyers – but when we are asked to make a decision on changing our Constitution, we are not expected to have.
We come to referenda of this nature much as jury members come to discharge their function in a criminal trial – to listen to the evidence and filter it through our common sense and life experience to reach a decision.
If we do that diligently and honestly, we have voted the right way for ourselves, and that, regardless of the ultimate outcome, is a fundamental fulfilment of our democracy and an honouring of the Constitution that belongs to each of us.
This is a very important referendum – we urge our readers to inform themselves fully about it, and to go out and vote on November 10.

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