Having regard for our children

LAST Tuesday, I wrote that the acid test of the wording of the constitutional amendment on children would be the extent to which the Government fulfilled its promise to follow the 2010 proposal made by an Oireachtas committee chaired by Mary O’Rourke.

I identified two key phrases to watch out for that might suggest a failure to fulfil this promise. One was where the State is obliged only to “have regard” to the interests of children, rather than being clearly obliged to prioritise them.

The other was where the State was only obliged to make “provision by law” for certain rights and principles, instead of stating them as constitutional principles in their own right.

Upon the publication of the wording on Wednesday, I was relieved to see that the first pitfall had been avoided. In the wording of the amendment to be put to a vote on Nov 10, the best interests of children are not merely something to “have regard to”: They are stated to be the paramount consideration. The views of the child “shall be ascertained” and given due weight in light of the age and maturity of the child. These statements would come across as clear were it not for the fact that the Government stumbled into the second pitfall.

In the 2010 proposal, the right to be heard was stated to be a constitutional right of the child, and the prioritisation of the best interests of the child was stated to be a constitutional obligation of the State. In the final version, it is instead stated that “provision shall be made by law” for these issues, meaning that they will be set out in legislation enacted by the Oireachtas.

This is more significant than it might initially seem, and it raises questions over the effectiveness of the amendment. One of the reasons that this amendment is being put forward is that existing legislation, which already provides for the best interests principle and the right to be heard, has been found to be ineffective due to the overarching influence of the constitutional protection provided to the family in Article 41. In the hierarchy of laws, the Constitution takes precedence over legislation, and legislation falls to be interpreted in light of the Constitution.

So, while our existing legislation states that the welfare of the child is the first and paramount consideration in disputes, the courts have, in effect, found that the constitutional rights of the family take precedence in the event of a conflict between the two. The 2010 proposal sought to remedy this imbalance by giving constitutional status to the best interests principle and placing it on an equalfooting to Article 41. Unfortunately, in the final version, the best interests principle and the right to be heard are to be given legislative rather than constitutional status. This means they may run into precisely the same difficulty as our existing legislation, meaning that the amendment will have failed to achieve a key part of its purpose.

While this is the most significant departure from the 2010 proposal, it is not the only one. The best interests principle and the right to be heard have been narrowed in focus so as to only apply to a defined category of court proceedings concerning guardianship, custody, access, adoption, and child protection.

Previously, the best interests principle had applied to questions of “upbringing” (which might cover educational and medical issues) and the right to be heard had applied to “administrative proceedings”. The provision dealing with State intervention to protect children who are being abused or neglected has also been altered from the 2010 proposal. The 2010 version made reference to both “supplying” and “supplementing” the place of the parents, emphasising that early intervention to support families in difficulty can avoid the need to remove children from those families later on. The final version refers only to “supplying” the place of the parents.

Moreover, the phrase used by the existing provision in Article 42.5, which refers to “exceptional cases“, has returned. This was omitted in the 2010 version because it has been shown to have been interpreted exceedingly narrowly by the courts. The fact that it will feature in the final amendment raises questions over whether the excessively high threshold for State intervention will be altered in any way. Clearly, some time for reflection and debate is needed on such a complex proposal. In particular, the necessary legislation will need to be debated and passed by the Oireachtas, and it is not necessarily too late to make final changes.

If we are to be 100% confident that this amendment is to fulfil the Government’s election promise an enormous amount could be achieved by deleting the phrase “provision shall be made by law” from sub-section 4.

* Dr Conor O’Mahony lectures in constitutional law at UCC

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