Children's amendment a modest but good proposal
OPINION:THE LACK of debate on the children’s referendum reflects the uncontroversial nature of the proposed amendment to the Constitution, but also how limited it is in scope.
The amendment is certainly not a threat to the rights of parents. We are not entering a “brave new world” of unbridled State power to intervene in the family, as the opposing voices to this amendment are unjustifiably claiming.
Nor, as John Waters stated in his column (October 5th), is this amendment seeking to radically alter the “ecology of family rights”. However, I agree with his analysis (October 12th) in one respect: the lack of debate on the amendment is worrying.
The amendment has four broad aims: First, article 42A.1 re-emphasises that the child, as an individual, has natural and imprescriptible rights which the State, by its laws, must in so far as it can vindicate and defend. This amendment is similar in wording to another provision of the Constitution (article 42.5) which is to be deleted if the proposal is accepted by the people.
These rights have been interpreted to include, among others, the right to be fed, cared for, educated and nurtured. This provision recognises that for practically all children in the Republic, it is their natural parents who will fully and adequately protect these rights for their children.
Second, article 42A.2.1 sensibly permits the State to intervene, in a proportionate manner and in a way that protects the natural and imprescriptible rights of the child, where the safety or welfare of a child is “likely to be prejudicially affected”.
The precise meaning of the phrase “likely to be prejudicially affected” has not yet been interpreted by the courts. Given the required harmonious interpretation of this provision with other provisions relating to “the family” in the Constitution, this will not seek to supplant decisions of the marital family unless there is some significant threat to the welfare or safety of the child.
Third, article 42A.2.2 and article 42A.3 will permit the Oireachtas to equalise adoption laws for those children from marital families with children whose parents are unmarried. Irish law, in particular the Adoption Act 2010 and the scheme of the 2012 Adoption Bill, provides extensive rights to the natural mother and marital parents.
Extinguishing parental rights may be done voluntarily, or in situations of abandonment. Adoption is a long and complex process and this amendment ensures that only where the best interests of the child are served by the adoption will it be permitted to go ahead.
Finally, under article 42A.4, in resolving proceedings relating to preventing the safety and welfare of the child being prejudicially affected, or in adoption, guardianship, custody and access disputes, the “best interests of the child” is to be the paramount consideration.
In such proceedings, in so far as is practicable and subject to a child’s age and maturity, courts must take into account the views of the child.
The phrase “best interests of the child” causes some concern to those advocating a No vote. On RTÉ’s Morning Ireland programme on September 20th, Kathy Sinnott argued that this principle was an invidious invasion of international law (article 3, UN Convention on the Rights of the Child) into domestic law.