On November 10th 2012, Irish citizens will vote on a referendum aimed at amending the Constitution in regard to the role of the State towards children. The implications of the wording of the amendment are subtle and difficult to perceive for a non-expert. Though the change in the proposed wording can be seen as minor, its effects are potentially considerable. It is nothing less than a philosophical shift on the understanding of the society: whereas the State or the Family is the primary protector of children.
There are many legal uncertainties about the possible applications and consequences of the amendment. The Yes side is adamant that it is needed to protect children, the No side argue that it is going too far in giving power to the State. This reflection attempts to bring some light on the definite change in philosophy that the people are being asked to make in relation to family, children, and the state. Important questions of child abuse, neglect, rights of unmarried fathers, status of children of unmarried parents, status of the family and of marriage, all critical to the Irish social fabric, are going to be decided in accordance with one or the other philosophical context, depending on the choice made by the people on November 10.
Articles 41 and 42.5 of the Irish Constitution are the basis upon which theIrishStaterelates to the family. It recognises that the family is the bedrock of society (article 41), pledges to respect it as an entity where children are born and raised by their parents in a spirit of love and responsibility towards society. It also makes provision for obligatory intervention to protect children when parents do not fulfil their duties of love, care, protection or education towards their children (42.5). The type of relationship between the family and the State under the Irish Constitution is therefore based on the philosophy that the family is the best place for a child to be, that the State has the obligation to support families in their endeavour to raise and educate their children, but in some exceptional circumstances, the State must supply the place of the parents when children are not cared for the way they should be.
This understanding of the relationships between the individual, the families and the State, is based on the recognition of the social nature of the human being. It aims at protecting the natural way people come on earth and organize themselves, the State having only a subsidiary role.
This natural philosophy illuminates all human history, at least since the Fourth Commandment: you shall love your father and mother, then through the classical philosophy of Aristotle and through the moral philosophy developed in Christianity. They establish that man by nature lives with one another, that the family is the bedrock of humanity in that it is where men, women and children primarily live together, enrich each other and contribute to the common good of the society and to the construction of the civilization. Christianity, which is a religion of love: “Now I give you a new commandment: love one another. Just as I have loved you, you must love one another” (John 13:34), has revealed that those natural relationships can also be grounded on fraternal love.
This natural philosophy explains the respective interactions of children, parents, the family, the community and the state. Each of these entities has a specific role to play in order to maintain freedom, prosperity and good neighbourliness in society. From the 4th Commandment to articles 41 and 42.5 of the Constitution, the same pyramidal relationship between individual men, women and children and the state is put into action: individuals are primarily organised in a family and constitute the basis of the pyramid. The state is at the top. Individuals owe respect and allegiance to the state, the state essentially rests on the family for its own authority, and has the responsibility to intervene when families fail their children.
This vision is perfectly consistent with all major provisions of international law relating to family: the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights both affirm that the “family is the natural and fundamental unit of society, and is entitled to the protection of society and the state.” The European Social Charter contains the same goal “[w]ith a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life . . . .” As well, the International Covenant on Economic, Social and Cultural Rights states that “[t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.” All those provisions are based on the primary recognition of the natural reality of the human societies: society is not an artificial reality composed of juxtaposed individuals and motivated by fear and jalousie, but it is primarily composed of families acting by love and goodwill that shall be trusted and supported by the community.
Pope John Paul II prophetically wrote in 1983 that “the future of humanity is by way of the family”. Before him, Pius XI in Quadragesimo Anno in 1931 had established that the family, in accordance with the principle of subsidiarity, is the ultimate defence against the tyranny of the totalitarian state. We know what dangers Pius XI was talking about then. Interestingly, the Holy See took an active part to the 2012 UN Conference on Sustainable Development in Rio de Janeiro, and argued that sustainable development, necessary to ensure the very future of humanity in the face of very serious societal, economic and environmental threats, could only be successful if based on the bedrock of society that is the family.
So this is what articles 41 and 42.5 currently stand for. We can call it the heuristic of trust and love: a belief that we, humanity, will self-preserve by way of protecting our families as the first place on earth where we live and love, with of course adequate provision to protect children whose parents are not providing this love and school of life.
What is proposed in the amendment is a subtle, yet definite philosophical shift short of being the legal maid-of-all work that it may or may not be. The threshold of intervention in article 42A2.1 reveals this new approach: "when the safety or welfare" of children "is likely to be prejudicially affected", the State can intervene, and take various kinds of measures, from family support to compulsory adoption (in article 42A2.2). The semantic variation from “when the parents fail” in current article 42.5 to “when the safety or welfare of children is likely to be prejudicially affected” is revealing of the paradigm shift. Indeed, a precautionary approach is proposed: an assessment will be required of the likelihood of occurrence of harm to children, instead of the evidence that the parents have failed.
The precautionary approach is rooted on a conception of humanity which is at the opposite end of the Christian view. It rests on a principle of mutual responsibility of individuals towards each other, which is exercised at one end of the spectrum by parents and at the other end by the State. The responsibility of State is not limited to a delegation from families, but exists per se, and can therefore meet and overtake the responsibility of parents towards their children, in order to ensure that children are raised according to the standards required by and for society. In this perspective, it is not difficult to accept that the State, speaking through courts of law, should get to decide what is in the “Best Interest of the Child”. The family is no longer presumed to be, by nature, the safest place for the children, but the State. The legal debate in Ireland is about the precise future effects of the proposed precautionary threshold of intervention, and whether it will or not allow the State to interfere unduly in the life of the family, not for real reasons of abuse or neglect, but because children may not be raised in accordance with State standards. The legal experts disagree on this point and it is actually where the rift is between the Yes and the No sides. Philosophically, however, the change is clear.
Environmentalists will know that the precautionary principle is very closely linked to sustainable development. Precautionary environmental protection is sought not by wanting to protect positive values, but by fearing harm. At its core is the rejection by society of the search of universal values of right and wrong, and their replacement with imperatives of fear. Our liberal society refuses value judgements and encourages subjective, relative choices. When those choices lead to catastrophe in the family, liberalism’s answer cannot be, by definition, to restrict those choices. The only possible answer is precautionary state intervention motivated by fear, rather than action with reference to universal values of trust and love. Liberal ideology considers that one of the State’s main purposes is to protect individual freedom, to help the individual to free himself from the various natural and social structures that constrain his autonomy and impede his self accomplishment. The family is seen by this ideology as the first and main obstacle to the self accomplishment of the individual; it is not trusted anymore.
Just as with the natural and Christian visions of articles 41 and 42.5 and the 4th Commandment, nothing less but the fabric, present and future, of Irish society is at stake here. However worded and open to legal interpretation, this amendment proposes a fundamental and explicit departure in how the Irish people want to organise the relationship between their families and their State. The real choice to protect our children is whether for Irish families to take ownership of the heuristic of trust and love, reject the amendment but demand real accountability in relation to child protection, or to accept the liberal heuristic of fear, and allow more State intervention.
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Grégor Puppinck, Director of the ECLJ
Bénédicte Sage-Fuller, Faculty of Law, University College in Cork, Ireland
Gabriel Doherty, School of History, University College in Cork, Ireland