OPINION:The proposed amendment to the Constitution largely distils and provides a textual basis for current judicial practice.
The proposal affirms the natural rights of children. The courts would be obliged to have regard to the best interests of the child when resolving parental disputes over custody or access. Similarly, if it were established that parents had failed in their duty, the best interests of the child would guide the court when deciding what should then be done.
Nothing new
In those two contexts the Oireachtas may pass laws to ensure that the child’s views are taken into account. In all of this there is nothing new. The proposal would also allow the Oireachtas pass legislation for the non-voluntary adoption of marital children where parents fail in their duty for a specified period of time. This would be a change in statutory law, but the Supreme Court suggested in 2011 that such a change might already be constitutionally permissible.
What then is clearly new? First, the Constitution would allow married parents voluntarily to place their children for adoption.
Second, the courts’ inherent constitutional jurisdiction to intervene in cases of parental failure would be abolished: in future, a statutory jurisdiction would be required. This might make it more difficult for, say, hospitals to apply to court to direct a blood transfusion for a child.
Third, where parents put their child up for adoption but change their mind after the child has been placed with prospective adoptive parents, but before the adoption is completed, the amendment would abolish any presumption in favour of either set of parents. Instead, the courts would just ask what was in the best interests of the child.
What is more difficult to work out, however, is whether the amendment would make it easier for the State to intervene where parents were thought to be failing their children.
The existing article 42.5 of the Constitution requires a failure in duty for physical or moral reasons. The new article 42A.2.1 would require a failure in duty “to such an extent that the safety or welfare of any of their children is likely to be prejudicially affected”.
There are essentially three types of failure in duty by parents. There is deliberate abuse of children and serial neglect of children, both of which already constitute failure of duty under the Constitution.
The third type of failure involves parents who, while generally competent and well meaning, make one-off bad decisions for their children.
In North Western Health Board v HW, the Supreme Court refused to order that a child undergo a PKU test. This minimally intrusive heel-prick test can identify a number of serious conditions, the treatment of which benefits considerably from being identified early. However, it would probably not be held likely that any particular child would have any of these conditions, given that the highest probability in Ireland of having one is 1/3,500.
The new wording might, however, make it easier for the State to intervene in other situations that are difficult to anticipate.
The case for a constitutional amendment has never been as strong as children’s rights campaigners have claimed.
However, if you were concerned about an amendment giving too much power to the State, it is difficult to see why you would be worried by this proposal.
Minimal amendment
Conversely, it is hard to understand how anyone could think that the current constitutional scheme is grossly deficient and yet support such a minimal amendment.
Commentators are worried at the lack of public interest in this referendum. The reason may simply be that the public have correctly discerned how little is at stake.
Oran Doyle is a fellow of Trinity College Dublin. A longer paper is available at tcd.academia.edu/OranDoyle