Is Action on Children's Laws Misguided?

One thing that is rarely debated but rarely carefully discussed at length is the referendum on children's rights in the constitution. Those who have lobbied for such a law believe that in Ireland, the best interest of children is not always taken into account, the main example being the awful case in 2006 of a family who demanded their previous adopted child back, after the birth parents married subsequent to the birth.

Now the curious thing is that one of the main reasons why this decision was made was not because the child was considered to have no rights, but that the family as a unit was considered to be superior. In Ireland we have a statement in the constitution that promises to treat all children equally, yet instead of doing the correct thing, and diluting the laws regarding the family to take into account cases where the best interests of individuals (adults or children) are not served by giving prominence to the legal status of the family, and leaving the constitutional position of children intact so as to decide what the best interests of the child are, we are creating a legal uncertainty which may end up opening a Pandora's box of new scenarios and situations where the rights of the child take prominence over common sense and the greater good.

Of course the irony of this is that part of the legal position of the family was established by a case which challenged the appalling state intrusion into family life made by the effective incarceration of children in institutions for what was often quite minor social problems by today's standards. Cases taken by parents against the state to release children back into the family home largely depended on an interpretation of the constitution which placed the family as the most appropriate unit for children's welfare. This led to the release of most children from these homes (where a great many were subjected to violence and abuse even worse than they had been removed from). Of course a significant unintended consequence of this was that the vast majority of children's homes closed down, which led to an epidemic of homelessness amongst children with severe social problems in the late 1980s and early 1990s, and particularly amongst children taken into the care system as there were no longer placements available in the care system as homes gradually closed, and greater cautions required in staffing practices and training requirements caused the cost to soar.

Yet the focus of the debate regarding whether or not consensual sexual activity between underage teenagers should be checked by law fails to come up with appropriate and suitable formulae for different situations. While it may be considered legally acceptable for two 16 year olds to have sex, and by extension an 18 year old boy to have sex with a 16 year old girl, it doesn't take long to question how questionable it is if the law should then allow a 20
year old or 22 year old to have sex with the same 16 year old. Yet the real issue is not this, but whether or not it is a) appropriate to discourage inappropriate or potentially harmful sexual relationships through the use of the law or b) if actual punishments should befollowed up on in borderline circumstances.

Much of the problem is down to cultural norms. My grandmother, in the 1920s, married at the age of 16, to a man a good few years her elder. Most Irish women were married by 21, and many had 3 or more children by the age of 25, an age where now a good many women will not marry or have children until well into their 30s. In fact what is often seen as a "crisis" of unmarried motherhood has more to do with slower to change traditional patterns of women having children in their younger years, minus the legal sealing of relationships by the state. Much of this is down to elevated legal positions for single women in society, until very recently, the legal protection of single women against discrimination was rarely, if ever, taken seriously, and even feminists have tended to dwell on the admittedly more common discrimination against mothers (regardless of marital status) than tacit discrimination against childless and/or single women. As a result it is still considered au fait - indeed a mark of status - for an older man to have a younger woman by his side.

While this has led to blatantly obvious media cases of gold-digging, it still does query cultural norms. In the marvellous autobiography by Jane Juska, A Round Helled Woman, the author cannot understand the horror shown by other women at the fact that the most attractive, most evenly matched of all her litany of lovers is a man 30 years her junior, despite the fact that they clearly enjoy each other's company. Women such as Juska who
cavort with younger men are seen as disgusting and unnatural, while grotesque relationships between elderly millionaires and young socialites are viewed with disgust for their gold digging, rather than for the far less unacceptable misdemeanor of a wide age gap.

Yet even a relatively small age difference such as a few years can change the legal position of a relationship dramatically. A 65 year old man who has sex with a 21 year old is not considered to be in any way pathologically abnormal, yet a 19 year old having sex with a 15 year old is explicitly criminal. Furthermore, the intentions of the younger partner are rarely, if ever, analysed for their impact in the affair. In Nabokov's Lolita, the young Lolita is
portrayed as well aware of the power of her attractions for older men, and is seen as manipulative and cynically sharp while the older men in her life are seen as pathologically decadent. If anything, this novel attempts to prove that the real victim is not the person who is younger of years, but the one who is manipulated.
Yet this wouldn't cut much ice on a modern-day chat show such as Oprah. In fact last time I saw Oprah discuss the subject she referred to "sexual seduction" as the main practice of predatory (usually assumed) older men on younger girls. And those same predators are as happy to use models such as the Lolita model to justify their actions when challenged. The interesting thing is that the debate has become more muted in recent years as the moral
panic of the media and socially righteous has crescendoed. At the same time, predators and pure paedophiles alike have found the Internet as a means to organise themselves into networks able to feed their interests at different levels: for a large number, it being the enjoyment of legally borderline "barely legal" pornography designed to mimic underage girls without breaking the law, while more "hard-line" predators and paedophiles view more hardcore material or indeed use networks to access children who are sexually available, often in countries where the law is less able to keep up with predators.

At the same time, never before has society been so conscious of the dangers to children posed by inappropriate or forced sexual activity. Yet never before has there been such a demand for child-caring professionals: childminders, nannies, creche staff, etc. I remember once teaching a child who everyday was delivered to the fee-paying school where I taught him in a taxi. Looking back it was quite a level of trust to entrust a 10 year old child to the
care of a cab driver on a daily basis (I don't think it was the same guy, just a company the family used). Simultaneously, the increase in broadband provision has made Internet access widespread amongst young children, many of who are so much more computer
literate than their parents, the parents have no hope of censoring their usage. Indeed much public anxiety exists about predators using social networking sites such as myspace and bebo to access children for grooming.

At the same time, its also turned relationships with unrelated adults into a more fraught playing ground. Any adult who befriends a child can theoretically be accused of grooming the child with malicious intent. A climate of fear has grown around professionals who work with children, which has split services for children into 2 groups: a formal, carefully moderated sector of expensive and heavily vetted professionals, and a generally unvetted, unskilled and informal sector which has grown up to fill the gap left by the increased attention on whom should work with vulnerable young people. The issue is, however, who is really best qualified to speak for what lies in the best interests of children? One of the
sad realities of the past and future is that while appalling brutalities and abuses were carried out on vulnerable children in the name of the church and state, it doesn't appear that
modern children are in any way better adjusted - indeed dysfunctional families have never been more dysfunctional than they are today. So what has changed?

I suspect that what has changed is the enforcement of discipline - or more correctly, the total breakdown in disciplinary guidance for children in the wake of exposures of horrendous abuse of children by adults entrusted to care for them, most of it done in the name of
"discipline." The sadistic brutality once meted out by not only abusers, but ordinary carers, teachers, and often well-intentioned parents alike, has disappeared but nothing has taken its place that has any effectiveness. To give an example of what I mean, a friend who is a teacher sighs every time she hears of a child called "Saoirse" because so often it indicates a child who is growing up in a life nothing more than a free for all. I have taught many such children and been struck by such children's emotional inability to cope with any form of denial of their immediate desires. They simply are driven by a sea of want and immediate satisfaction. It is no wonder indeed that this is being met by a sea of heavy drinking, recreational drug use and casual sexual activity, often with unpleasant consequences.

These young people simply do not know what it is to have their desires denied to them. We are raising an entire generation of children from Willy Wonka's chocolate factory: spoilt, undisciplined, as one writer once put to a BBC programme, "40 year old yuppie dwarfs." I think a significant question which needs to be raised here is the unintended consequences of such changes to the law and the constitution. If the letter of the law does not lead to an intended effect then it is seriously flawed and needs to be altered. A holistic and systemic view needs to be taken of the situation as it stands at present, which takes into account not
only the current situation but the situation as it is likely to appear in courts in 10 or 20 years time (a view famously ignored during the now notorious Right-To-Life referendum of 1982). If it is not then we will only end up with more predators walking away from courts smugly and young people's lives being ruined.


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