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.

At the moment it is almost impossible for the children of married parents to be adopted, unless the parents have totally abandoned their parental rights and this abandonment is likely to continue until the child is 18. The Government has already published a draft Adoption Bill which it will introduce if the referendum is passed.

Fourth, the constitutional amendment will make “the best interests of the child” the paramount consideration when the courts are making decisions relating to the safety and welfare of the child, or in proceedings concerning adoption, guardianship, custody and access.

It also requires the court to obtain and take into account the views of the child, having regard to his or her age and maturity.

This does not mean that the child will have to appear in court, or that the child’s views will be decisive. At the moment there are many instances in which the views of the child are obtained in court proceedings, usually through the services of a child psychologist or other specialist. They are then considered by the judge and the weight given to them often depends of the age of the child.

The Referendum Commission has pointed out that other articles in the Constitution, relating to personal rights, the family and education, remain intact.

In summary, if the amendment passes there will be specific recognition of children’s rights, particularly where there is parental failure, but this, along with changes to our adoption law, must be elaborated on in law.

Main changes if proposal passes

* There will be explicit recognition of the “natural and imprescriptible” rights of the child, likely to be elaborated in court judgments.

* The State may intervene in exceptional circumstances where the safety and welfare of children is at risk, and the intervention must be proportionate to the risk. This will apply to all families whether the parents are married or not.

* The Constitution will permit changes to the adoption law so that the children of married parents can be adopted, either where the parents fail in their duty for a period of time or where they voluntarily place the children for adoption.

* The courts must take account of two considerations when making decisions about the safety and welfare of children, or about custody, access, adoption and guardianship: the best interests of the child and his or her views, depending on the child’s age and maturity.

* Legislation will have to be introduced to change the adoption laws; to require the courts to incorporate the “best interests” principle and provide for the views of the child to be obtained; and to spell out what “proportionate” intervention is where parents fail in their duty so as to put the children at risk.