New Child Protection Laws Proposed

By Paddy Clancy

THERE seems certain to be a constitutional referendum before the end of the year, strengthening and consolidating children’s rights and protecting them from sexual abuse.

It is unlikely, however, to be held before the general election because of opposition concern about rushing the poll. They argued in the Dail (Parliament) this week that more time was needed to discuss the “complex, complicated” issues involved.

Although Taoiseach (Prime Minister) Bertie Ahern said he was committed to putting the wording of the proposed constitutional amendments to the people before an election or at latest in the autumn, he is understood to have privately accepted that the opposition misgivings mean the later choice is more likely.

He said the amendment is a watershed move to protect children like never before. In effect, it will establish a new Children’s Article in the Constitution and will guarantee the rights of all children, irrespective of the marital status of their parents.

A specific provision in the area of sexual offenses will enable the law to be restored to a position that existed before the Supreme Court ruled last year that an honest mistake about a child’s age was a defense to statutory rape.

In removing that defense, the amendment ensures the issue of consent by an underage victim can not be raised in a trial, and the consequent cross-examination of children in such cases will not be permitted.

Ahern said it “was simply not acceptable” for those who took sexual advantage of young children to later claim they believed the child was older, or to subject children to harmful cross-examination about how they dressed or acted.

“This provision will allow us to take away the so-called ‘honest belief’ defense in such cases and to provide a clear and unbendable rule -– that those who sexually abuse children will be punished, no exceptions, no loopholes, no excuses,” he said.

Ahern insisted that strengthened children’s rights would not undermine the role of parents. He said the provisions would ensure the best interests of children were central, while also recognizing that, except in exceptional circumstances, the best place for a child to be reared was with its parents.

The seven-point amendment says the State will:

•Acknowledge the natural and imprescriptable rights of all children.

•Restate the existing protection of children and parents in the Constitution.

•Allow for adoption of children in care for a substantial period of time.

•Ensure all children will be eligible for voluntary adoption.

•Ensure the “best interests” of children will be secured in any court proceedings relating to adoption, guardianship, custody or access.

•Draw up laws to allow for collection and exchange of “soft information,” details available to welfare, police and other agencies about a person’s suitability to have unsupervised access to children (although the information might not prove criminality).

•Draw up laws to create offenses of absolute or strict liability regarding offenses, including non-sexual offences, against children.

The Irish Council for Civil Liberties has taken exception to the wording. Director Mark Kelly said the planned referendum was effectively a poll on child protection rather than on children’s rights.

He questioned Ahern’s insistence that one specific amendment will introduce an explicit protection of the rights of children. “It will do nothing of the sort,” Kelly said.

Both main Opposition parties, Fine Gael and Labor, insisted on reserving judgment on the wording until there is more debate.

Fine Gael spokesman on Justice Jim O’Keeffe said draft legislation should be published immediately so the electorate could fully debate the issues and ensure no unintended consequences would flow from constitutional reform.

“Every single word counts. Entire cases have turned in the Supreme Court on single words,” he added.

Labor Senator Derek McDowell said aspects of the proposed package seemed “cautious to the point of timidity.” He did not believe children’s rights had been adequately spelt out.