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Dearbhail McDonald: A guide to the Children’s Referendum

There are five key parts to the wording of the new Article 42A which voters are being asked to pass in one single question. In our guide to the referendum, Dearbhail McDonald explains each of the key elements.

1. Children

New wording

‘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.’

The myth

Children already have rights in the Constitution, they don’t need standalone ones and by saying “as far as practicable”, we are undermining their existing rights.

The reality

Children do have constitutional rights but if the wording is passed, the Constitution will – for the first time – contain explicit fundamental rights provisions for them. The phrase “as far as practicable” is a standard constitutional rider to reflect that the State’s resources are not unlimited.

2.Threshold for State intervention

New wording

‘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.’

The myth

The ‘EastEnders effect’ – opponents say the wording will lower the threshold for State intervention into families and make it easier for the authorities to remove children from their homes.

The reality

The likely reality is that the threshold for State intervention will not change.

Why? Because the new section places, on a constitutional footing, the existing threshold for State intervention already expressed in the 1991 Childcare Act.

What’s new? The phrase “where the parents for physical or moral reasons fail in their duty towards their children” will be removed from the constitution.

This makes the negative effects of any neglect or abuse on the child the central issue – rather than focusing on parental failure and blaming parents.

The section will also allow for the removal of children in exceptional circumstances, regardless of whether their parents are married or not.

3. Adoption

New wording

‘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.

Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.’

The Myth

These sections are not needed; marital children could be adopted by way of ordinary legislation and the wording will lead to “forced adoptions” of the children of vulnerable parents – mostly single mothers on welfare – whose children have been placed into care.

The reality

Right now, children of married parents can only be adopted if they have been “totally” abandoned – in effect until they reach the age of 18.

Married parents cannot also voluntarily place their child into adoption – unless they are deemed to have failed in their duties.

The wording will not only allow for voluntary adoption of a marital child. It will also lower the threshold for abandonment of “any” child, whether marital or non marital.

This could make a huge difference to the more than 2,000 children in long-term foster care (five years or more).

Key safeguards that will have to be met before a child is placed for adoption include, that the child must be in care for three years, living with prospective adoptive parents for at least 18 months and only if it is in their best interests.

4. Best interests

New wording

‘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.

The myth

The genuine fear in some quarters is that judges will be able to override the best wishes or interests of parents by arbitrary and “creative interpretations” of a child’s best interests.

Opponents say this would reduce parents to the status of mere “caretakers” and subject to the whims of pseudo-science deployed in closed courtrooms. There are also fears a child’s interests might be dictated by one parent to the detriment of the other.

The reality

The best interests principle is not new as it already exists in the 1964 Guardianship of Infants Act and the 1991 Child Care Act. The referendum, if passed, will place the best interests principle on a constitutional footing. Not everyone is happy about how the constitutional rights and duties of parents will be treated when they conflict with the newly expressed rights of children in the courts.

5.Voice of the child

New wording

‘Provision shall be made by law for securing, as far as practicable, that in all proceedings (guardianship, custody, access and care proceedings brought by the State) 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.’

The myth

Those pesky kids, unhappy with being grounded or not getting to watch the TV when they want, will sue their parents (and others) and assert new rights against their parents or the authorities.

The reality

Children's opinions (as per their age and maturity) will be taken into account, subject to rival interests, such as that of their parents.

Most disputes involving children will, in any event, take place under the guardianship and custody regime. This section is notable for its big omission: it only applies to the above proceedings and does not cover other areas such as asylum cases or disputes involving schools.

The unanswered questions

What about unmarried dads?

Unmarried fathers get no mention in the Constitution – or this new wording.

But their situation may be improved by the obligation to protect the best interests of the child. New legislative changes may also improve their lot.

What is a child anyway?

The Constitution doesn’t say what constitutes a child, but several key laws and cases set it at 18 years of age.

Will the secrecy surrounding family and care cases be lifted?

The in camera (privacy) rule does not form part of this referendum. Any changes to the rule will be done separately by way of legislation.

What about the unborn?

Proceedings are unlikely to be brought on behalf of the unborn, which has separate protection in the Constitution.

What happens when rights of parents and children collide?

One of the great unknowns. The conflict will ultimately be played out in the courts, but the best interests of the child are still likely to be found within the family with regard to all rights – parents and their children.

What about unintended consequences?

Every change to the Constitution brings with it the risk of unintended consequences, and it could potentially have an impact on the evolution of children’s rights outside of the family context.