A former district court judge has said that he disagrees with the Government's plan to bring in a children's rights referendum.
Retired judge Michael Patwell said that, while he had previously believed there was a need for the Constitutional amendment, he had changed his mind.
He has himself dealt with many family law cases including ones that resulted in the removal of children from their parents.
Speaking to Charlie Bird on RTE Radio's Marian Finucane show, he said that he believed that the current Constitution applied to adults and children alike. Amending the Constitution to create rights for children could work against parents.
Asked by Bird whether the amendment could work against the parents of a child, Mr Patwell said “It could do so”.
He said: “If you start giving extra rights to any section of society...it could very well work against the other citizenery”.
Mr Patwell said that the Child Care Act already enabled social services to put children at risk in care.
He said that he wouldn't campaign against the proposal, but he agreed with remarks made by Fianna Fáil last week that the Government needed to publish a proposed wording “very very early on”.
On Friday, the Minister for Children Frances Fitzgerald said that the wording of the amendment would be based on the wording proposed by an Oireachtas committee chaired by former Fianna Fáil TD, Mary O'Rourke.
The O’Rourke wording has been previously criticised for being too imprecise on what it means by a child’s ‘best interests’ and the circumstances in which the State will be permitted to override the judgement of parents in this regard.
Ms Fitzgerald was responding to criticisms from Fianna Fáil earlier this week. The opposition's spokesperson on Children, Robert Troy, said the Government's failure to produce a wording was unacceptable.
Meanwhile, the Ombudsman for Children has claimed that the referendum on children will not bring “radical change”.
Emily Logan was speaking about the referendum in an interview with broadcaster Miriam O’Callaghan on RTE Radio 1′s Miriam Meets.
She said in relation to a children’s referendum that: “I think what we are looking at is not a children’s rights referendum – we are not talking about a radical change here in Ireland.”
Logan said that Irish people are “attached to our Constitution” and “people see it as a barometer of our social and moral values”.
A number of legal and social commentators have warned that the wording proposed by the Oireachtas committee last year has a number of possible pitfalls. Constitutional expert and recently appointed High Court judge Gerard Hogan said that the phrase, “best interests of the child,” could be ambiguous.
Everyone, he said, is in favour of the best interests of the child, but, he asked, "Who is going to decide what is in the best of the child, and how is this going to be done?"
He told RTÉ in 2010, “We’re all in favour of the best interests of the child, and there is something of a mother and apple pie dimension to this. But in practical terms you have to ask yourself, when you’re talking about the best interests of the child, who is going to decide what is in the best of the child, and how is this going to be done? And if you’re talking about the State vindicating the rights of the child, you have to remember that this is likely to be officialdom, or some judge making this decision.”
Another Trinity lecturer, Dr Oran Doyle, expressed misgivings about the wording.
In a talk in Bratislava, Dr Doyle said that the proposed referendum poses the question as to who would decide what the best interests of the child were and suggested that Article 42.2.3 of the wording gives a de facto answer to this question, an answer that said might entail, "greatly expanded state power and greatly reduced parental autonomy.”