By CAROL COULTER, Legal Affairs Editor
New Article 42A.1: 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.”
This is a specific statement that all children have rights. Natural and imprescriptible rights are those that arise from childrens very existence; the rights are not conveyed by law and cannot be removed by law. These rights are not defined and it will fall to the courts to put flesh on the bare words, but they are likely to be guided by the rights in the UN Convention on the Rights of the Child. These 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.
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.”
This describes the nitty-gritty of the issue, and replaces the existing article 42.5. The new wording inserts the phrase “regardless of their marital status”. It removes the distinction that exists under the existing Constitution between the children of married and unmarried parents. A higher threshold exists for the removal of children of married parents at the moment, and it has been possible for married parents, as they did in the Roscommon abuse case, to invoke their parental rights to prevent their children being taken into care.
Articles 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.”
...and 42.A.3
“Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.”
These articles provide for the adoption of children who have been effectively abandoned by their parents and for the voluntary placement of children for adoption, regardless of the marital status of the parents.
Under the existing Constitution only the children of unmarried parents can be adopted, unless it can be proved that the married parents have abandoned their child and this abandonment will continue until the child is 18. This has had the effect of leaving many hundreds of children in long-term foster case with no contact with their birth families and no prospect of becoming an integral part of their foster families.
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.”
This provides that the “best interests of the child” shall be the paramount consideration in all court proceedings brought by the State or private legal proceedings relating to adoption, guardianship, custody or access. It means, for example, that where parental rights are invoked in adoption proceedings the court will be obliged to consider what is best for the child ahead of what the parents want. Equally, the childs interests and welfare will be to the fore in disputes between separating or divorcing couples. It should be superfluous to have such a clause relating to proceedings brought by the State but sadly this has not always been the case.
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.”
This provides that, depending on the age and maturity of the child, his or her views must be taken into account in all proceedings involving State care, adoption, custody and access.