Dr Eoin Daly is a lecturer in law in the Faculty of Law, University College Dublin
One of the concerns raised by the opponents of the proposed amendment is that it might make it easier for the State to override the decisions of parents thought to be foolish, ill-judged, or bad for children as determined by expert opinion. For example, obscure or peripheral ways of life, based on moral and religious commitments, might be thought to be damaging to child welfare. Eccentric pedagogies or lifestyle choices – perhaps Rousseau’s Emile – might be deemed objectively harmful by the best available scientific evidence. In this lens, the amendment, under the pretext of protecting child welfare, might inadvertently undermine value pluralism in society – the freedom of different communities and parents to exercise different beliefs and conceptions of good and to pursue this pedagogically, in their children’s education and upbringing. We might imagine the Amish and their early withdrawal from formal schooling, or religious parents insisting that their children not receive certain important secular instruction, or children prompted to participate in physically arduous religious rituals or pilgrimages. Beyond religion, one might think of Bertrand Russell’s obscure, scandalous, experimental pedagogy. Surely this value pluralism in an important, if limited social goal, linked to human rights – it is legitimate to argue that diverse beliefs and ways of life should be given a broad berth by the State for the sake of pluralism, that is should not always impose what is objectively “best” – even in the case of child welfare. Freedom of religion and belief, the exercise and manifestation of conscientious commitments or conceptions of the good life more generally, should not be stifled by dubious expertist or scientific opinion as to notions of children’s “best interests”, which might in any event be transient and contestable. A broader philosophical argument – which I do not intend to address – is that value pluralism, in protecting the exercise and integrity of different ways of life, might in fact have a necessary (and perhaps legitimate) cost to child welfare. In any event, it is surely important that those thought to be “quacks” or eccentrics by the social mainstream – perhaps those who might reject vaccines, for example – also have their human rights accounted for.
Although I believe this concern based on value pluralism in the context of the proposed amendment is ultimately misplaced, it is worth taking it at face value. It is true, I think, that the amendment does in fact alter the “threshold” for State intervention in issues concerning child safety and welfare.
Article 42 A.2.1 provides:
In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. (emphasis added)
On the face of things, this does make it easier Continue reading “Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment”