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.