Children’s rights must not mean women’s wrongs

We should not be complacent about the risk of “children’s rights” becoming another tool of state misogyny. By Wendy Lyon.

Last month the Irish Minister for Children, Frances Fitzgerald, announced that the long-promised referendum on the rights of children would finally be held this year.

The background to this lies in the following provisions of the Irish Constitution:

Article 41
1. 1° The State recognises 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.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
…
3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
…
Article 42
1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
…
5. 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 proposed referendum, as agreed by an all-party parliamentary committee, would leave Article 41 intact but remove those two subsections of Article 42. The replacement text is rather lengthy so I’ll just provide a link rather than post it all here.

The impetus for this change comes from a series of judicial and policy decisions, which have been seen as making it so difficult to interfere with the sacred institution of The Family (and more particularly the marital family) as to effectively tie the State’s hands when it comes to child protection and welfare. A few examples:

• The 2001 case Northwestern Health Board v HW, where the Supreme Court upheld the right of parents to refuse to allow their child undergo the PKU test, a totally safe procedure to detect a disorder that leads to brain damage if untreated.
• An unspeakably horrible case of familial abuse in County Roscommon, revealed a little over a year ago. You can Google it yourself, I don’t have the stomach for it. The mother had obtained an injunction preventing the children being removed from the family home; her affidavit cited the rights that she and her husband, as a married couple, had over their children. Social workers on the case confirmed that Article 42 had a sort of chilling effect on their efforts to protect the children, as it led them to believe they would need to prove a nearly impossible threshold of neglect.
• The 2006 “Baby Ann” case (N v Health Service Executive), in which a two-year-old girl was ordered returned to her birth parents. They had consented to her adoption, but changed their minds and subsequently married – at which point, according to Justice McGuinness, the rights of the family took over from the best interests of the child as the “central issue”. (Actually, on the peculiar facts of this case the birth parents would have had a decent argument even without the constitutional imperative, but there are obvious reasons to be concerned about the court’s emphasis on the primacy of the marital family.)

So you can see why there’s widespread support for amending the Constitution to specifically enshrine the rights of children. What little opposition there is is mainly coming from two of the most repellent groups in Irish society: the xenophobes, who fear the amendment being used to prevent deportation of Africans with minor children; and the uber-Catholics for whom any interference with the marital family is anathema. (It hasn’t gone unnoticed that the list of amendment opponents reads like a Who’s Who of the Irish anti-abortion movement – whose concern for the rights of children clearly ends at birth.) Ironically, although the latter group is far more organised and politically powerful than the former, it is the deportation issue that is actually holding the referendum up. I was present at a private meeting a couple years ago where a then-Cabinet Minister, a current Cabinet Minister and a backbench member of the other current government party all agreed that the wording would have to be changed to assuage those fears.

Irish feminism, on the other hand, seems to be pretty much entirely behind the amendment, and that’s fairly understandable. After all, the primacy of the marital (read: patriarchal nuclear) family hasn’t exactly done us many favours; and while the amendment won’t remove Article 41.1, it clearly will narrow its scope. But while I wouldn’t argue that we should vote “no”, I do think some important issues have been overlooked in the debate. Consider the following:

• In 2006, the High Court ordered that a Jehovah’s Witness be given a blood transfusion (subscription required) contrary to her express wishes, the first time this was done to a competent adult. Counsel argued and the Judge accepted that her child’s need for a parent overrode her right to refuse medical treatment.
• In the US, women have lost custody of their children for working outside the home, being lesbians and even reporting domestic abuse.
• According to a representative of the fabulous Association for Improvements in the Maternity Services Ireland who I was speaking to recently, some Irish women have been threatened with prosecution – yes, prosecution – if they insisted on giving birth at home rather than under the full control of the professional (and strongly male-dominated, and extremely paternalistic) medical industry.

What these cases all have in common is that they’re examples of the “best interests of the child” being used to further a patriarchal agenda, in which motherhood automatically strips women of their autonomy. Make no mistake about it, this isn’t just the standard assumption of self-sacrifice that having children always entails; it’s the quite deliberate channeling of women with children – whose primary identity is now “mother” – into tightly prescribed roles, with the legal system there to act as enforcer.

I’m being a bit deliberately melodramatic here and I’m not suggesting that passage of this amendment will actually turn us all into Stepford wives. But I don’t think we should be complacent about the risk of “children’s rights” becoming another tool of state misogyny. Let’s not forget that this is a state where woman’s primary role as housewife and mother is actually enshrined in the Constitution (Article 41.2, for readers abroad). Do you trust all of our judges to read the new amendment in a way that protects children’s rights without trampling on women’s? I don’t.

I’m also uneasy about the way this amendment could be read in juxtaposition with Article 40.3.3, on the right to life of the “unborn”. Judging by some of the cases coming out of the US recently, it seems that pregnant women in some states might be only a few years away from being forcibly institutionalised to prevent them doing anything that might possibly lead to the birth of a less-than-perfectly-healthy baby, such as having the odd glass of wine or eating too much junk food. It’s a strange sort of logic that allows women to be penalised for “neglecting” foetuses that they have every right (at least on paper) to abort, which I suspect is why those laws aren’t more widespread throughout the US than they are. Here, of course, the constitutional position on abortion is no impediment to such laws – and with a mandate to protect both the rights of (actual) children and the rights of the “unborn”, there is, I think, a worrying possibility that this American trend could catch on here.

Again, and just to be perfectly clear, I’m not saying that feminists should oppose the amendment. In all likelihood I will vote for it myself, on a simple cost-benefit analysis (as in, I think overall it will probably do more good than harm). And I don’t have any suggestions as to how it could be worded to avoid these nightmare outcomes, especially while the odious Articles 40.3.3 and 41.1-2 remain. But we shouldn’t be leaving it to racists and religious fanatics to highlight its possible unintended consequences. We should be putting the State on notice that although we want to see better protection for Irish children, we are not going to tolerate it becoming yet another tool to oppress Irish women.

Originally published on Feminist Ire. Reproduced with permission.

Image top (Minister for Children Frances Fitzgerald): Fine Gael.