Putting children first
As the Referendum Commission points out: ‘It will be a matter for the courts, on a case-by-case basis, to identify the rights protected by this provision.’
THE CHILDREN’S REFERENDUM
“Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being.”
Stirring words by the former Chief Justice of Ireland, the late Tom O’Higgins in a 1980 Supreme Court case in which the rights of a child born of unmarried parents were held to be personal rights protected by the Constitution.
In some respects, though, the case exposed the paucity of constitutional measures to specifically recognise, endorse and enforce the rights of children.
On Saturday, Nov 10, all eligible voters will be asked to agree or reject a proposal to change that by removing an article from the Constitution and replacing it with a new one.
The proposal is predicated on the belief that the Constitution is failing to protect children and must be amended to allow the Oireachtas rectify this.
If a majority of voters vote yes in this referendum, the existing Article 42.5 will be removed and a new Article 42A will become part of the Constitution. This will — among other things — allow for the adoption of children of married parents where those parents fail in their duty and adoption is in the best interests of the child. All other articles of the Constitution will remain in place.
If a majority vote no, there will be no change to the Constitution. The proposed new article has a number of constituent parts but can only be accepted or rejected in totality.
The proposed Article 42A.1 will, if adopted, introduce an explicit statement in the Constitution recognising and affirming that children have natural and imprescriptible rights and stating that the State has an obligation to ensure, as far as practicable, that those rights are protected and vindicated. “Imprescriptible” which means that they cannot be surrendered, given away, lost or forfeited over time.
The qualifying phrase “as far as practicable” has caused some concern among human rights campaigners, although it is common in other parts of the Constitution and has been interpreted restrictively by the superior courts.
The new Article 42A.1 includes a statement in respect of children’s rights which is explicit, is concerned solely with the rights of children and recognises and affirms them, although the rights referred to are not listed. As the Referendum Commission points out: “It will be a matter for the courts, on a case-by-case basis, to identify the rights protected by this provision.”
At present, the Constitution provides in Article 42.5 that the State, as guardian of the common good, may intervene and try to supply the place of the parents, if the parents fail in their duty towards the child. The State may intervene only in exceptional cases and the intervention must have due regard for the child’s rights.
This remains the position under the new article with one major change: it applies to all parents whether or not they are married to each other.
The existing article provides that intervention may occur if the parents fail in their duty towards the child for physical or moral reasons. The proposed new article provides that the intervention may occur if the parents fail in their duty towards their children to such an extent that the child’s safety or welfare is likely to be prejudicially affected.
The existing article requires the State to use appropriate means and does not require that those means be set out in law. The proposed new article provides that the State’s intervention must use proportionate means which must be set out in law. Again, the word ‘proportionate’ is one that some human rights activists take exception to, regarding it as an unnecessary and worrying restriction.
The proposed Article 42A.2.2° will mean that the State must put laws in place allowing for the adoption of any child, whether or not the parents are married to each other.
The following conditions must be met:
* That the parents have failed in their duty towards the child for a period of time, this period to be specified in law.
* That the best interests of the child require that adoption take place.
The proposed Article 42A.4.1° makes explicit reference to the best interests of the child as the paramount consideration when decisions in relation to the child are being made.
Article 42A.4.2° provides that laws must be passed which require that in adoption proceedings, as far as practicable, the views of a child capable of forming his or her own views be obtained and given due weight having regard to the age and maturity of the child.
CURRENT POSITION
The concept of child protection has not been influential in Irish constitutional law due to the lack of any extensive explicit regard to their rights as individuals in the Constitution and the novel degree of protection it affords to the marital family.
Bunreacht na hÉireann pledges that the State will recognise “the family as the natural primary and fundamental unit group of society”.
Article 41.3.1° provides that 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”.
At present, the Constitution does not contain an explicit guarantee by the State to protect and vindicate the rights of all children in all circumstances.
The Constitution makes its most explicit references to children in Article 42 which deals with education. Article 42 pledges that while parents are entitled to educate their children in a way they see fit, the State will demand of them that those children “receive a certain minimum education, moral, intellectual and social”.
Article 42.4 guarantees the child free primary education and makes a promise on the part of the State to aid “educational initiative” and to provide facilities where the public good requires it. These pledges are made “with due regard... to the rights of the parents.”
Elsewhere, in Article 45 the state pledges to protect children from abuse and from being forced, by virtue of economic necessity or otherwise, to enter into “avocations unsuited to their sex, age or strength”.
However, the article comes under the heading ‘Directive Principles of Social Policy’ and it is explicitly stated that its provisions are to be of general guidance only for the Oireachtas. It states that the application of those principles of social policy in the making of laws “shall be the care of the Oireachtas exclusively, and shall not be cognisable by any court under any of the provisions of this Constitution”.
The Supreme Court and the courts in general are undecided as to whether these provisions can be pleaded in court but the general belief is that they cannot.
Current adoption law only allows for the child of unmarried parents to be adopted and there is no law permitting married parents to voluntarily place a child for adoption. Orders for the adoption of children of married parents may be made only in very limited circumstances involving the effective abandonment of parental rights.
Of course, as citizens, children already enjoy the protection of the Constitution in some major respects. Under Article 40, which deals with personal rights, the State “guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” It adds: “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
Article 42.5
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.
WORDING OF THE NEW ARTICLE
Children: Article 42A
1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
2. 1° 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.
2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4. 1° Provision shall be made by law that in the resolution of all proceedings —
i. brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii. concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection
1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
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