What the wording means
Existing article 42.5In 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
New article 42A.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.
Here the phrase natural and imprescriptible rights reappears, withimprescriptible in this context meaning the rights cannot be removed.
The word appears elsewhere in the Constitution in relation to the family, which is described as “a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
The referendum will not alter this definition as there is no proposal to change article 41, which relates to the family.
The Referendum Commission says article 42A.1 contains in one clause an explicit statement or guarantee of childrens rights in all instances, rather than something the State should consider only in cases when it has to supply the place of parents. Identifying the actual rights referred to will be a matter for the Courts working on a case by case basis.
New article 42A.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.
New 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.
New article 42.A.3
Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
The phrase any child is used again here because it is currently extremely difficult for the children of married parents to be adopted. While unmarried parents can place their children for adoption voluntarily, married parents generally cannot do so even if they believe it would be best for the children. It is important to note that, as stated elsewhere in the Constitution, the State will continue to guard with special care the institution of marriage.
The word paramount is key here. If the referendum is passed, the Constitution will state that in proceedings relating to child protection and adoption, and in family law cases relating to access and custody, the best interests of the child involved should be more important than anything else under consideration. Again, the term any child is used to indicate the marital status of the childs parents is not relevant here.
New article 42A.4.2
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.
The proposed “period of time” referred to is three years. This figure is contained in proposed new adoption legislation, which was published by the Government recently. Parents must have failed for a continuous period of not less than 36 months and have no reasonable prospect of resuming care of the child. The child to be adopted must have spent at least 18 months in the care of those applying to adopt them. An existing, difficult-to-prove requirement to demonstrate that the child will be totally abandoned until he or she is 18 will no longer apply.
A small section of the Constitution will be deleted if the childrens rights referendum is passed. Article 42.5 can be found at the end of the section relating to education. This article, along with existing childcare legislation, gives the State limited power to remove children from their families in some cases. The threshold for intervention will be lowered if voters accept the proposed amendment. The phrases exceptional circumstances and natural and imprescriptible rights will not disappear from the Constitution if article 42.5 is deleted, however.
The intention is to recast the main provisions of article 42.5 in more modern language that takes account of social changes as part of a new standalone article entitled Children and numbered 42A, which will be inserted into the Constitution after the articles on the family and education.
The key phrase in this rewritten and extended version of article 42.5 relates to the marital status of parents. It is currently difficult for the State to remove from their families children who are at risk if their parents are married. It is easier for the State to step in when the parents are unmarried.
Readers may remember the circumstances of the horrific Roscommon incest case, where married parents sexually abused, assaulted and neglected their children for many years. Invocation of the rights of married parents prevented the youngsters being taken into care. Under the proposed new wording, the State would try to supply the place of parents in exceptional circumstances regardless of their marital status.
According to the wording of article 42.5, the State should intervene in cases where parents failed in their duty towards their children for physical or moral reasons. The new wording focuses attention more directly on the impact on the child being neglected or put at risk, saying intervention can occur where married or unmarried parents fail to such an extent that the safety or welfare of any of their children is likely to be prejudicially affected.
In another change, the reference to the State using appropriate means would be replaced by proportionate means as provided by law. The means referred to must therefore be set out in law for the first time.
New article 42A.2.2
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.
This section makes clear the views of capable children involved must be sought and considered in family law proceedings, matters of child protection and adoption. This does not mean that the childs opinion will be the determining factor in a decision affecting the childs future, but that the views of the child must be taken into consideration before any decision is taken.