On Saturday 10 November, we will vote on a proposal to insert a new article into the Irish Constitution between Articles 42 and 43, which will be numbered 42A and entitled ‘Children’. At the moment there is no specific article for children, rather the State holds that the rights of children are effectively protected, by Articles 40.3, 41 and 42, which are articles addressing the Family and Education.
The Legislative Background to the Referendum
The Children’s Referendum is being held as part of a broader programme of reform introduced by the government in the area of children’s rights. In 2006, Ireland agreed to hold a referendum on this issue, due to concerns that had been expressed by various official bodies since the late 1970s. In the 1990s, Children’s Rights were put on the UN’s agenda due to lobbying by various Irish NGOs. The UN committee on the Rights of the Child, who evaluated Ireland’s adherence to the UN Convention on the Rights of the Child, expressed concern that the wording of the Irish Constitution does not allow the State to intervene in cases of abuse, other than in very exceptional cases. Furthermore, they expressed concern over the fact that Irish law does not meet international standards for the protection of children in specific situations, in particular, the justice system, the care system and adoption, and healthcare. This is partly due to the paternalistic phrasing of Article 42, which does not recognise the child as an independent rights-holder in and of itself. In response the government undertook to amend the constitution to make a more explicit commitment to children’s rights.
Although it is difficult to compare the status of children’s rights in Ireland as opposed to other EU countries, all countries in the EU have been criticised by the UN Committee on the Rights of the Child for their treatment of children in the justice and court system and Ireland has gone some way towards alleviating this by the holding of a Children’s Referendum. The proposed amendment builds on this by obliging the court to ascertain the views of the child in court where possible, along with the (presumed) corresponding obligation to appoint an advocate for the child, or a ‘guardian ad litem’ in court proceedings. This should be prescribed in legislation if the amendment is adopted. Until now, there has only been a Constitutional presumption that the child’s best interests lie with the married parents, something that is difficult to rebut in court. The introduction of the ‘guardian ad litem’ role may change this in practice. Aside from the issue of children in the justice system, which appears to be relevant for every EU country to some extent, the other issues listed by the UN seem to be very much specific to Ireland, for example in relation to adoption. Romania is the only other country with an issue in this regard; here, the UN concluded that the time it takes to adopt is too long and may not be in the best interests of the child. Access to appropriate healthcare is also only an issue in Ireland and a few other countries, such as Italy, Estonia and Latvia, and here, it tends to arise in the area of undocumented asylum-seekers, whereas in Ireland, it arises more generally for all children.
Potential Legal Issues
The constitution states that the rights of the married family are “imprescriptible”, meaning that they cannot be removed or changed by law. With the new amendment proposing to introduce the “natural and imprescriptible rights” of children, it remains to be seen what a court will decide if these two rights ever do clash, particularly if the amendment facilitated State intervention in a family situation, which would previously have been impossible due to the Constitutional protection to the married family. It is likely that the outcome of the case will depend on the facts more than they do now, as courts will be able to give more weight to the views of the child as well as their best interests on a case-by-case basis, whereas previously they could only consider the child’s rights through the lens of the family structure, for the children of married parents.
If the referendum is passed it will place an obligation on the Oireachtas to introduce legislation that ensures the best interest of the child is always of “paramount consideration” in cases involving guardianship, protection and adoption. In theory, this legislation could provide more guidance for the courts in case of a clash of rights.
Furthermore, if the amendment is introduced, it will allow the government to further improve policy in relation to children’s rights. To date they have outlined intentions to improve standards for child protection and allow a broader range of care homes to be inspected, to strengthen and improve child protection laws, to reform of detention facilities, to work with and aid parents and parent groups, and ‘early years’ policy development.
Political and Cultural Context of the Referendum
Those in favour of a ‘Yes’ vote include: Fine Gael, the Labour Party, Fianna Fáil, Sinn Féin, the United Left Alliance (ULA) and nearly all Independent members of Dáil and Seanad Éireann as well as over 100 children’s groups of the Children’s Rights Alliance,, Ombudsman for Children Emily Logan, Trade Unions, The Bar Council, the Law Society of Ireland, the Irish Countrywoman’s Association (ICA), the Disability Federation of Ireland, various parent’s groups and many more. They believe that in practical terms, the courts should be free to give priority to the welfare of the individual child over the family unit, if and where necessary. However, there are far-reaching practical implications to this, particularly in issues relating to guardianship and adoption, which are addressed in the next section.
Those in favour of a ‘No’ vote include Independent TD Mattie McGrath, former MEPs Kathy Sinnott and Dana Rosemary Scanlon, journalist John Waters, the Alliance of Parents Against the State, Parents for Children, and Two Rights Now, a group advocating the separation of Church and State. All these believe that the amendment would allow too much State intervention. They also believe that the amendment does not actually give more rights to children, but rather that it re-allocates existing parental rights to give the State more power. In actual fact, the referendum does little to change the State’s power to intervene in a situation of concern but it does increase their ability to intervene at an earlier stage to support the family, where safe for the child, and only to consider removing the child as a measure of last resort, under the “proportionality” test prescribed in the Amendment. Previously any ability to intervene would have been limited by the parents’ marital status. It also allows the children of married parents to be placed for adoption, where they have failed in their duties for a period of three years. Currently this can only happen by court order, if the High Court is satisfied that the child has been legally abandoned, something which is exceptionally difficult to prove. Furthermore, it is interesting to note that the referendum is taking place during a time of debate over imposing conditions on Child Benefit, something which has previously been under judicial scrutiny at European level.
The exact wording of the proposed article is as follows:
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 –
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.
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.
Polling takes place, this Saturday November 10th. Polling stations will be open from 9am until 10pm. All Irish citizens are entitled to vote but they are required to bring their polling card and photo identification. If you have not received your polling card, bring along your photo identification.
As with all Referenda and Elections, European Movement Ireland would strongly encourage all its’ members to vote this coming Saturday, and we hope that this ‘Just the Facts’ briefing was useful in helping to inform you of the relevant issues in the debate.
For More Information
Further information on this particular issue can be obtained from a number of different organisations and bodies including: www.childrensrights.ie ; www.childrensreferendum.ie; and The Referendum Commission at www.referendum2012.ie.
You can also contact The Referendum Commission through the following channels:
Address: 18 Lower Leeson Street, Dublin 2, Ireland.
Tel: 01 639 5695
Lo-Call: 1890 270 970
This Just the Facts is an email information service from European Movement Ireland available to its members. For more information on becoming a member of European Movement Ireland, contact our offices or visit the website at www.europeanmovement.ie