Legal Analysis of the Children's Referendum: Article 42A.1

Dr Conor O’Mahony is a lecturer in law in the Faculty of Law, University College Cork.

The proposed Article 42A.1 provides

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.

Its stated intention, in the words of the Minister for Children, Frances Fitzgerald, is to “provide, for the first time, a strong affirmation of the rights and protections to be enjoyed by children as children.” This opening gambit in the proposed Article on Children, while brief, contains a number of elements that merit close examination.

The first point to note is that the “natural and imprescriptible rights” of children are currently referenced in the Constitution (in Article 42.5, which will be deleted and replaced). In G v An Bord Uchtála [1980] I.R. 32, the Supreme Court made an initial stab at expanding on the content of these rights, but this task was never continued in any subsequent case law.

A limitation of the current framework is that Article 42.5 only mentions children’s rights indirectly as something that the State must have due regard for when intervening to supply the place of parents who have failed in their duties towards their children. The existing framework is premised on the concept of State subsidiarity in family affairs, and places the State under no direct obligation to protect the rights of children as long as parents are adequately performing their functions. The obligation is a default one that arises only in exceptional cases.

The amendment, if passed, will shift the emphasis so that the State’s obligation to protect and vindicate children’s rights is a constant duty owed to children, and not a mere default duty. In part, this is intended to reinforce the fact that children have rights as individuals and not merely as a sub-set of the family unit. It is regrettable that reference to children having rights “as individuals” that featured in the Joint Oireachtas Committee on the Constitutional Amendment on Children’s proposal was dropped, but nonetheless, the intention seems clear. How this will play itself out in practice will largely be down to its influence on legislative and policy measures (and maybe also on some litigation), all of which remains to be seen.

The second significant aspect of Article 42A.1 is the reference to the rights of “all children”. The clear intention here is to equalise the rights of children of married and unmarried parents. Arguably, this is unnecessary; cases like In Re M (an Infant) [1946] 1 IR 334 suggest that while the constitutional rights of parents are affected by their marital status, the constitutional rights of their children are not. Nonetheless, the removal of any lingering doubt on this point is welcome.  An interesting question is whether legislative discrimination in favour of the marital family, which has been justified by reference to the protection given to the marital family by Article 41.3 in cases like O’B v S [1984] IR 316, might be subject to challenge under Article 42A.1 in conjunction with the equality guarantee in Article 40.1? The fact that Article 41.3 is not being amended seems to indicate that nothing will change on that front, in which case the impact of this aspect of the amendment will, in effect, be purely symbolic, and of no practical benefit to children of unmarried parents or of civil partners.

Finally, a point that has generated discussion is the use of the phrase “as far as practicable” in Article 42A.1. Concern has been expressed by some No campaigners and some interest groups that this weakens the existing level of protection given to children’s rights in the Constitution, since Article 42.5 does not contain this qualification. However, the same phrase appears in Article 40.3 in relation to both the personal rights of all citizens and the right to life of the unborn. It is standard constitutional vocabulary in Ireland, and its appearance here is simply a result of ensuring the equivalence of rights protection and the use of consistent language throughout the fundamental rights provisions. A recent piece by Philip Boucher Hayes on RTE Radio 1’s Drivetime confirmed that opinion among academics and retired judges was unanimous in dismissing that particular concern.

In summary, Article 42A.1 is intended to signal a clear intention to protect the individual rights of all children, regardless of marital status. Its symbolic value is clear, but one cannot help wondering what its practical impact will be. It must be viewed as a relatively minor part of a very complex bigger picture.

Legal Analysis of the Children's Referendum: Article 42A.1

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