Proposed Article 42A
Children
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.
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.
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.
3. Provision shall be made by law for the voluntary
placement for adoption and the adoption of any child.
4. 1°Provision shall be made by law that in the resolution
of all proceedings- ibrought 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.
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.
There follows a
provision-by-provision analysis of this amendment. The analysis is conducted on
the basis of an investigation into what the wordings of the various provisions
could and would likely be interpreted to mean. Ultimately, it will be for the Supreme
Court to make this determination.
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.
· At first glance, this seems to be merely a rhetorical
elaboration on the wording in (the current, to be deleted) Article 42.5 and
affirmed by SC in case law. However, it is significant that the positioning of
the Article has changed. In Article 42.5, the natural and imprescriptible
rights of children are mentioned only in the context of parental failure
because until such failure exists – necessitating the protection of the rights
of children outside of the family unit – the rights of children are guaranteed
through the protection of the “Family as the natural primary and fundamental
unit group of Society, and as a moral institution possessing inalienable and
imprescriptible rights, antecedent and superior to all positive law” (Article
41.1). Therefore, the amendment introduces a new dimension to law in that it
provides explicitly and for the first time that children’s rights are
justiciable even when the family unit is intact and fully functioning.
· How might this provision be interpreted? What are the
specific rights of children that could be read into this provision? The UNCRC
outlines the rights of children as follows: the right to freedom of expression,
the right to freedom of thought, conscience, and religion, the right to freedom
of association, the right to privacy, and the right to free access to
information. (See Appendix 1). These rights are to be vindicated not only
against the state, but also against third parties, including parents. If a
child wishes to express themselves by posting pornographic pictures of
themselves on the internet, or if a child wishes to become a scientologist, or
if a child wishes to have access to information on how to commit suicide would
these rights to freedom of expression, to freedom of association, and to free
access to information, respectively, be protected as natural and
imprescriptible rights, and against the countervailing judgment and wishes of
the child’s parents?
· It is important to note that there are no corollary rights
of parents recognised by the Constitution that could counterbalance these
rights of children. Instead the rights of children would be weighed against the
rights of the family (if they are weighed at all) and therefore the courts could
be routinely intervening between parents and children in order to determine
what parents must allow their children to do – even when the parents have not
failed according to the test laid down in Article 42A.2.1. (Again, the point is
that under the current Constitution, rights are given to the family, and only
in the exceptional cases when parents fail does the state intervene between
parents and children in order to protect the rights of children.)
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.
· Please note that
this Section 4 of the Article is being dealt with out of sequence because it
provides that “the best interests of the child shall be the paramount
consideration” in the proceedings that arise under Section 2. Therefore in
order to understand what Section 2 means, it is necessary first to understand
the implications of Section 4.
· This clause provides that the best interests of the child
(BIC) is the paramount consideration. A view has been expressed that this
clause merely affirms the current position that the BIC is a statutory
principle, which is outranked by the constitutional protection for the position
of the family under Article 41. This argument seems to be unfounded since the
constitutional provision here proposed requires that the BIC shall be the
paramount consideration. If legislation is not forthcoming this constitutional
imperative would be justiciable, and in any case, the legislature is compelled
to legislate (“Provision shall be made by law...”) rather than invited to
legislate (if for example the wording was ‘provision may be made by law...’)
· The BIC test comes from the UNCRC but Article 3 of the
UNCRC does not state that the BIC should be ‘the paramount consideration’. It
states, rather in Article 3.1 that “In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.”
· The BIC test, in principle, undermines the position of
parents, because, in principle, it removes the presumption that parents are
better placed to advance the welfare of the child than the stranger who is an
expert (professionally) employed in a field of childcare studies and, instead,
espouses a presumption that the welfare of children is something that can
legitimately be determined by a court on the basis of expert testimony. This
hugely increases the importance that would be attached to the evidence of
psychologists and social workers who are strangers to the child and have at
most a temporary professional interest in the child’s welfare.
· It also means that parents would have to re-cast their
arguments as arguments that could be supported by expert testimony, and, at
best, this would mean that they would have to argue, from a psychological point
of view, why their position is a position that the experts could acknowledge as
being in the best interest of the child.
· Then, faced with these two sets of opposing testimonies by
experts who are not the parents of the child, the judge, who is neither a
parent nor an expert in childcare would make the final call.
· Necessarily, this decision-making process objectifies the
child, since the decision-making process necessarily artificially removes him
or her from his or her family and their fundamental commitments, from the
traditions and customs and social networks into which he or she was born,
rendering all those considerations irrelevant in comparison to the BIC which
clinically establishes what is ‘best’ for an isolated minor.
· These decisions will be made in camera, so that it will
not be possible for the public to see how well justice is being administered.
Moreover, these decisions will not be recorded, so that the reasons why the
judge reached the conclusion that he did will never be known and may never be
scrutinised or criticised.
· It is impossible to make a determination about BIC without
making a value decision. Reasonable people disagree about whether to raise
children unilingually or multilingually, framing that discussion in terms of
the best interests of the child. Reasonable people disagree about when and how
to teach their children about human reproduction and frame that discussion in
terms of the best interests of the child. More than that, people have
fundamentally different and conflicting visions of how they want to raise their
children. Some parents wish to raise their children as Catholics, some parents
wish to raise their children as Muslims, some parents wish to raise their
children as Jews, and so on, and these fundamental commitments will have
implications on many discrete decisions that they make on behalf of their
children. It may be, particularly in the cases of Catholics and Muslims and
Jews and other minority groups, that these choices will be out of line with
contemporary social consensus, and even perceived by experts to be not in the
BIC of the child. The proposal here is that these fundamental commitments of
parents who wish to raise their children in their own culture and language and
tradition and religion could be overridden in principle by a single decision of
a judge who is not a parent or an expert and who is unaccountable to the public
for his decision.
· The UNCRC outlines some fundamental rights of the child –
to freedom of expression, to freedom of thought, conscience, and religion, to
freedom of association, to privacy, and to free access to information. (See
Appendix 1). According to the UNCRC, these rights should be guaranteed against
the state, but also against individuals, including parents. Could these be used
to flesh out what is meant by the BIC, given that the BIC is a foundational
principle in the UNCRC?
· Finally, and anomalously, this clause explicitly excludes
proceedings brought against the state from the list of proceedings that are to
have the BIC as the paramount consideration. In fact, the state is one of the
primary offenders in relation to the welfare of children. This clause seeks to
insulate them from litigation that could otherwise be taken in order to compel
them to implement Children First, or to seek remedies on behalf of children who
have died, or been raped and abused and/or neglected in state care. If this is
not merely a drafting oversight, it tends to indicate that the state is not
primarily interested in securing the BIC, but only in doing so when it will not
have to bear the responsibility for doing so. It seems to be quite a hypocritical
position.
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 is a re-wording of (the current, and to be deleted)
Article 42.5.
· This clause introduces, for the first time into Irish
constitutional law, the idea that marital families and non-marital families are
to be considered as if they are the same, by virtue of the short phrase:
‘regardless of their marital status’. This is a revolution, since until now,
the marital family has been given great deference by the constitution and in
the caselaw of the courts. It also flies in the face of all the sociological
evidence which shows that the welfare of children (across all indicators:
health, propensity to do well in education, propensity to be employed,
propensity to not suffer mental health problems or suicidal tendencies,
projected future income, etc, etc) is much more likely to be secured in a family
where the parents are the married mother and father of the child. It is, as
Aristotle would say, the ‘greatest form of inequality’ to treat these two very
different situations as if they are the same.
· The threshold test is that “parents ... [should] 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”. This requires
the judges – in their interpretation of the clause – to guess at the potential
effect that the parents’ failure will have on the safety or welfare of their
children. It looks at the extent of the potential effect on the child rather
than the extent of the failure of the parent. Compare for example a threshold
test which would be stated as: “parents should fail in their duty to such an
extent that they intentionally or recklessly endanger the life, health, safety,
or security of their child or children”.
· The State shall “by proportionate means, as provided by
law, endeavour to supply the place of the parents”. ‘Supply’ was chosen instead
of ‘supply or supplement’ (which phrasing appeared in previous wordings),
meaning that this provision does not countenance the State taking
responsibility for a supportive role in the protection of the natural family.
(Despite Article 41.1.2)
· The impact of Article 42A.4 on this clause is that when
the state wishes to institute proceedings against parents (but not the other
way around), the BIC will be the paramount consideration. There is no way to
tell how these provisions could be harmoniously interpreted. It seems very
strange indeed to establish a detailed test (in 42A.2.1) and then to overlay
the blanket statement that ‘the best interests of the child shall be the
paramount consideration’ (42A.4.1.i). If the BIC is the paramount consideration
why is it not written into the test? How does the BIC interact with ‘the
natural and imprescriptible rights of the child’ which is expressly mentioned
by 42A.2.1 and would otherwise appear to be the principle to be applied?
· It is not unlikely that the BIC will become the test of
failure, by reference to the ‘welfare’ element (“parents ... fail in their duty
towards their children to such extent that the ... welfare of any of their
children is likely to be prejudicially affected”). If the parents fail to
achieve what is determined by the BIC, or if their behaviour makes it likely
that the BIC will be ‘prejudicially affected’, then the State will supply the
place of the parents. Then all the problems connected with the determination of
the BIC become heightened by the fact that they can also be used to determine
what constitutes parental failure.
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.
· This clause provides, for the first time in Irish
constitutional law, for compulsory adoption or forced adoption i.e. where the
child may be permanently removed from their parents and placed with adoptive
parents.
· Here, the threshold is simply ‘failure ... in duty’ and
the BIC test. There is again no requirement that the parent or parents should
have intentionally or recklessly jeopardised the life, health, safety or
security of their children. There is not even a test such as that in Article
42A.2.1 whereby there must be a determination that the safety and welfare of
the child is “likely to be prejudicially affected”.
· This is despite the fact that in Article 42A.4.2 the
consequence is the permanent removal of the child from his or her parents and
natural family, and the breaking of all legal ties between the parents and
their child, whereas Article 42A.2.1 does not necessarily entail the permanent
removal of the child from the care of the family. Why is it that the threshold
of failure is set higher in Article 42A.2.1 when the consequences are less
significant and the threshold is placed lower in Article 42A.2.2 when the
consequences are much more significant?
· Moreover, the required period of failure is undetermined
by the Constitution and may be laid down in legislation. Hypothetically, the
Oireachtas could decide to make this time period extremely short.
· In this provision, although the BIC is the ‘paramount
consideration’ according to Article 42A.4.1.ii, the BIC is also included in the
text of the clause itself. This, together with the extremely low threshold for
failure, underlines the fact that the BIC will be the determining factor in
these cases. Therefore, parents are extremely vulnerable to having their
children forcibly adopted against their will and with permanent effect. Again,
it is parents whose fundamental commitments endorse minority values who will be
most likely to suffer unjustly on the basis of this provision.
· This provision also goes much further than the UNCRC in
undermining the rights of parents. Article 9.1 of the UNCRC states that:
“States Parties shall ensure that a child shall not be separated from his or
her parents against their will, except when competent authorities subject to
judicial review determine, in accordance with applicable law and procedures,
that such separation is necessary for the best interests of the child. Such
determination may be necessary in a particular case such as one involving abuse
or neglect of the child by the parents, or one where the parents are living
separately and a decision must be made as to the child’s place of residence.”
Furthermore, the UNCRC states that parents still have residual rights to “be
given an opportunity to participate in the proceedings and make their views
known” (Article 9.2) and children who are “separated from one or both parents
to maintain personal relations and direct contact with both parents on a
regular basis, except if it is contrary to the child’s best interests” (Article
9.3)
3. Provision shall be made by law for the voluntary
placement for adoption and the adoption of any child.
· Here the idea is that parents can voluntarily place their
child or children for adoption. At first glance, this seems to be
unproblematic, although it does directly conflict with Article 41.1.1 which
declares the rights of the family to be imprescriptible. On the basis of this
provision, parents can alienate their imprescriptible rights and children can
lose their imprescriptible rights.

· Moreover, and in line with the general trend of the
amendment as a whole, this provision confirms that, from a constitutional point
of view, that there is nothing legally inviolable about the natural connection
between a child and his or her natural parents.
· What happens, in terms of voluntary adoption, if one part
consents but another refuses consent to place a child for adoption? What
happens if the parents consent, but the child does not wish to be placed for
adoption? Presumably the child’s view can be heard (according to Article
42A.4.1.ii) but how will this interact with the parents’ preference to place
the child for adoption?
· Again, this provision goes further than the UNCRC in
respect of undermining the rights of parents. Article 21.1 of the UNCRC states
that: “States Parties that recognize and/or permit the system of adoption shall
ensure that the best interests of the child shall be the paramount
consideration and they shall: (a) Ensure that the adoption of a child is
authorized only by competent authorities who determine, in accordance with
applicable law and procedures and on the
basis of all pertinent and reliable information, that the adoption is
permissible in view of the child’s status concerning parents, relatives and
legal guardians and that, if required, the persons concerned have given their informed consent to the
adoption on the basis of such counselling as may be necessary...”
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 is a very popular idea, and it appears at some level
to be unproblematic but it is difficult to see how it truly respects the
dignity of the child, since it potentially requires the child to testify
against his or her parents and potentially against other adults who have been
involved in his or her care.
· One obvious feature that is missing here is the consent of
the child to giving “his or her views” in these proceedings; although the child
has natural and imprescriptible rights, here a statute could compel the child
to give views in respect of very personal and private family matters, and
potentially against the child’s own will.
· Traditionally, the law of evidence includes spousal
privilege (communications privilege and testimonial privilege) which protects
the contents of communications between spouses during their marriage from being
disclosed in court proceedings in order to respect the marital bond and
encourage marital harmony. Why is it that, if we consider that adults would
have difficulty disclosing information against another family member, that we
put children in the position where they may do so?
Appendix 1.
The fundamental rights guaranteed directly to children (to
be exercised against the state, but also against ‘third parties’ (i.e. the
parents).
Article 13
1. “The child shall have the right to freedom of expression;
this right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of the child’s choice.”
2 “The exercise of this right may be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary: (a) For respect of the rights or reputations of others; or (b) For
the protection of national security or of public order (ordre public), or of
public health or morals.”
Article 14
1 “States Parties shall respect the right of the child to
freedom of thought, conscience and religion.”
2 “States Parties shall respect the rights and duties of the
parents and, when applicable, legal guardians, to provide direction to the
child in the exercise of his or her right in a manner consistent with the
evolving capacities of the child.”
3 “Freedom to manifest one’s religion or beliefs may be
subject only to such limitations as are prescribed by law and are necessary to
protect public safety, order, health or morals, or the fundamental rights and
freedoms of others.”
Article 15
1 “States Parties recognize the rights of the child to
freedom of association and to freedom of peaceful assembly.
2 “No restrictions may be placed on the exercise of these
rights other than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national security or
public safety, public order (ordre public), the protection of public health or
morals or the protection of the rights and freedoms of others.”
Article 16
1 “No child shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, or correspondence, nor to
unlawful attacks on his or her honour and reputation.”
2 “The child has the right to the protection of the law against
such interference or attacks.
Article 17
States Parties recognize the important function performed by
the mass media and shall ensure that the child has access to information and
material from a diversity of national and international sources, especially
those aimed at the promotion of his or her social, spiritual and moral
wellbeing and physical and mental health.
