A major advance but potential for conflict still exists


ANALYSIS:The proposed amendment on children’s rights could conflict with the constitutional protection of the family, writes CAROL COULTER

THE NEW Article 42 proposed by the committee charged with drawing it up is a major improvement on the current situation in that it spells out the rights of children to have their welfare “regarded as a primary consideration” in a wide range of circumstances. It also proposes abolishing the constitutional distinction between marital and non-marital children, and it means that the rights of children as individuals, rather than as subordinate members of a family, receive explicit recognition.

However, it remains to be seen how it will be interpreted by the courts in the light of Article 41 on the Family, which is recognised as possessing “inalienable and impresciptible rights, antecedent and superior to all positive law”. This is a very strong statement of family rights, and it could trump statements of children’s rights, as mere “positive law”.

The committee decided that tampering with this Article would stir up a hornet’s nest, so it recommended retaining it, while making a positive statement of children’s rights in Article 42.

However, the committee acknowledges: “The continued existence of Article 41 poses the problem of potentially diluting the efficacy of their proposed wording in certain circumstances.” That remains the elephant in the room.

It is unlikely that there will be much opposition to the proposition that the children of married and unmarried parents have the same entitlement to protection and to a stable and secure environment. At the moment there is a higher threshold for intervention in a marital family to secure the welfare of the children than in a non-marital family, and the children of unmarried parents can be adopted with the agreement of the parents, while married parents cannot voluntarily place their children for adoption. These anomalies will be abolished if the amendment is passed.

What is likely to be more controversial is the extent to which this amendment will empower the State to intervene in families, and the threshold at which such intervention will be triggered.

The amendment acknowledges that the primary and natural carers and protectors of children are their parents, and guarantees to respect their right and responsibility to provide for them. It also provides that where the parents fail in their responsibility towards their child the State shall “by proportionate means, as shall be regulated by law” supply or supplement the parents’ place.

During the committee’s deliberations fears were expressed that setting too high a threshold could leave parents “with singular and unorthodox views” at the mercy of State intervention. The Iona Institute has raised the spectre of children being taken into care because the State considered they were at risk in their families through obesity.

The term “proportionate” should allay some of these fears, by linking the level of risk to the type of intervention considered appropriate. The proposed amendment also provides that the means “shall be regulated by law”.

Existing child welfare legislation spells out in detail the measures that can be taken to protect children at risk, but to date those working in child protection operated in an atmosphere where they felt their judgment could be challenged under the constitutional protection of the marital family.

That is not overridden by the proposed amendment, but by specifying the rights of children to have their welfare protected those charged with doing so on behalf of the State will feel the comfort of constitutional endorsement. This will change the atmosphere in which they work, but the courts will still have to balance the rights contained in the new Article 42 with those enshrined in Article 41.