Courts to be guided by previous judgments
BACKGROUND:THERE WILL be four main changes to the Constitution and two changes to the laws of the State if the children’s rights Referendum is passed on November 10th.
The first constitutional change is an explicit recognition that children have rights, described as “imprescriptible”. This means that the rights cannot be lost, given up or taken away by anyone else. However, the new clause will not state what these rights are. It will be up to the courts to identify them as they arise in specific cases. In doing so the courts are likely to be guided by previous judgments and by the UN Convention on the Rights of the Child, which Ireland has signed.
Under this convention the rights of the child include the right to life and to grow and develop, the right to an identity and to a family, the right to be cared for by their parents and to care from the State if their parents fail to care for them, the right to express their views and to have their views taken into consideration, the right to health and education and the right to be protected from child labour and violence.
Second, the amendment will delete the existing article 42.5 under the education heading, which provides for the State to “supply the place of parents by appropriate means” and “in exceptional cases” where they fail “for physical or moral reasons” in their duty towards their children. There is no definition of “appropriate”.
It will be replaced by a new article, 42A 2.1. This also refers to exceptional cases, but differs from the existing clause in specifying that the State may “endeavour to supply the place of the parents” where the failure of parental duty is such as to prejudice the safety and welfare of the child, regardless of the marital status of their parents.
The existing formulation, combined with the constitutional protection for the married family, led to the situation where there was a higher threshold for intervention in the lives of the children of married parents than where the parents were unmarried.
The new article also specifies that the State’s intervention shall be “by proportionate means as provided by law”. This means that if the amendment is passed the Government must legislate to spell out what kind of care and support it provides to vulnerable children and their families and this must be balanced against the degree of parental failure.
The third constitutional change concerns adoption. It allows for the adoption of a child, regardless of the marital status of his or her parents, provided certain conditions are met. These are that the adoption is in the best interests of the child, and the parents have failed in their duty towards the child for a specified period of time. In addition, the Government must legislate to allow for parents to voluntarily put their child up for adoption regardless of their marital status.