Legal Analysis of the Children's Referendum: Article 42A.3

Dr Fergus Ryan is a lecturer in law in the Department of Law, Dublin Institute of Technology.

The proposed Article 42A(3) states:

Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.”  Here we are specifically concerned with adoption where the child’s guardians consent to the placement.

The proposed new measure envisages that any child (whether born inside or outside marriage) may be voluntarily placed for adoption.  This represents a firm move away from the original rationale underpinning Irish adoption law: that adoption was designed to give children born outside marriage the opportunity of a life within a marital family.  Article 42A(3) clearly envisages that children born inside marriage may also be transplanted, with parental consent, into another family.

The key difference between this approach and the current legislative position is that marital parents will be allowed voluntarily to place their child for adoption.   The General Scheme of the Adoption (Amendment) Bill 2012 envisages that a child born inside of marriage could, if this referendum is passed, be placed for adoption with the consent of both married parents.

As the law currently stands, voluntary placement for adoption is permissible only where the child is born outside of marriage or is an orphan.  In respect of a child born to parents who were married to each other at the time of the child’s birth, unless both parents are deceased, the child currently may only be adopted in the exceptionally limited circumstances envisaged by Sections 53 and 54 of the Adoption Act 2010.   This allows any child – marital or non-marital – to be adopted where the parents have failed in their duty towards the child for at least one continuous year, and where this failure is likely to continue without interruption until the child is 18.  The failure must, moreover, amount to an abandonment of all parental rights in respect of the child.  Such an adoption, moreover, may only proceed with High Court approval, and having due regard to the parents’ and child’s constitutional rights.

Notably, Section 54 does not require parental consent.  Indeed, parental consent is insufficient on its own to allow the adoption to proceed if the other conditions of Section 54 are not satisfied.

The legislative stance on the adoption of marital children appears to flow from the Constitution, Article 41 of which describes the marital family’s rights as being ‘inalienable’ and ‘imprescriptible’.  Article 42, moreover, characterises marital parents’ rights and duties in respect of a child’s education as being ‘inalienable’. In G. v An Bord Uchtála [1980] I.R. 32, Henchy J. observed “…married parents are not allowed by the Constitution to cast off with impunity their duty to educate their children (the duty being an inalienable one)….” Parke J. noted that an unmarried mother’s constitutional rights, by contrast with those of married parents, were “capable of being waived or modified.” (O’Higgins C.J. made a similar point). The implication was that the constitutional rights of marital parents could not ordinarily be ceded or extinguished, even with full, free and informed parental consent.

This, however, did not mean that a child born within marriage could never be adopted. Walsh J. in G. envisaged that where marital parents completely abandon their rights and duties “…the State may be justified in taking measures by statute or otherwise to protect the rights of the child; these measures may include the enactment of adoption legislation.” He added “…some inalienable rights are absolutely inalienable while others are relatively inalienable,” suggesting that married parents’ rights and duties, while very firmly entrenched, are by no means absolute.

In Re Article 26 and the Adoption (No. 2) Bill 1987 [1989] I.R. 656 the Supreme Court rejected the proposition that a marital child could never be adopted:  “The guarantees afforded to the institution of the family by the Constitution, with their consequent benefit to the children of a family, should not be construed so that upon the failure of that benefit it cannot be replaced where the circumstances demand it, by incorporation of the child into an alternative family.”  The Court placed particular emphasis on Article 42.5 of the Constitution, which requires the State to endeavour to supply the place of parents, with a view to vindicating the child’s constitutional rights, where the parents have failed, for physical or moral reasons, in their duty towards the child.

Article 42.5 envisages, of course, that such cases will be ‘exceptional’.  Indeed, Section 54 of the 2010 Act permits involuntary adoption only in extremely pressing circumstances.  Nonetheless, O’Donnell J. in Nottinghamshire Co. Co. v. B. [2011] IESC 48 has suggested that the Constitution might in fact permit the adoption of marital children in cases less exacting than those envisaged by Section 54 of the 2010 Act. In doing so, he rejected the proposition that current legislative restrictions are representative of the constitutional position on adoption.

While O’Donnell J. suggests a more flexible constitutional approach to the adoption of marital children, none of the judgments noted above go so far as to say that married parents may voluntarily place their children where no failure or abandonment on their part has been established.  It thus remains unclear to what extent and in what circumstances the Constitution currently permits the adoption of marital children.  In particular, it is doubtful whether marital parents may voluntarily place their children for adoption, barring failure or prior abandonment on their part, a situation Article 42A(3) seeks to address.

Vitally, the proposed Art.42A(3) holds out particular hope for many children born inside marriage who are in long-term foster care, offering them the prospect of a more regularised and secure position through adoption.   Significantly, the amendment departs markedly from the traditional view that the function of adoption is to provide a marital home for non-marital children, recognising that some children born within marriage – for various reasons not necessarily requiring that parents have ‘failed’ in their duties – may also be best served by adoption.

Legal Analysis of the Children's Referendum: Article 42A.3

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