Legal Analysis of the Children's Referendum: Article 42A.4.1

Professor Ursula Kilkelly is Head of the Department and Dean of the Faculty of Law in University College Cork. Ursula is a national and international expert on child law, and is currently updating two of her texts on child law. You can read more on Ursula’s extensive publishing and policy contributions on children’s rights (and other issues) here.

Article 42A.4.1° states:

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.

In summary, this provision requires the Oireachtas to introduce legislation that itself requires that the best interests of the child are paramount in judicial proceedings concerning child protection, adoption, guardianship, custody or access. On a positive note, it is important that this part of the proposed amendment aims to ensure that when they consider mainly matters of family law the courts must consider the best interests of the child as paramount. To this extent, the proposed wording – which in the use of ‘best interests’ as opposed to ‘welfare’ – aims to bring Irish law closer to the requirements of the Convention on the Rights of the Child. Indeed, to some extent it could be said to go beyond the CRC, Article 3 of which requires that the best interests of the child are a ‘primary’ consideration (although Article 21 concerning adoption requires paramountcy). Of course, the reason why the word ‘primary’ was preferred to ‘parmountcy’ in Article 3 of the CRC is as a result of its broad ranging application. Article 3 refers not just to the determination of judicial proceedings in family law cases, but instead to ‘all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies’. This stands in stark contrast to the very narrow focus of Article 42A.4.1 which relates to judicial proceedings concerning family law matters only. In this way, the provision has apparently no application to administrative proceedings, nor does it cover proceedings outside the family law area – decision-making in healthcare, immigration and education for example, are not required to adhere to this standard. The majority of children are not affected by judicial proceedings in the family law area, but every day decisions are made by administrative authorities about their health, education, housing and immigration status which will be unaffected by this provision (at least) if this amendment is passed.

The second concern with Article 42A.4.1 is the fact that unlike the proposals advanced by the Joint Oireachtas Committee on the Constitutional Amendment on Children, Article 42A.4.1 does not propose to introduce the ‘best interests’ principle into the Constitution. Instead it requires that the Oireachtas enact legislation to implement the provision. Although it is welcome that the current proposals make the enactment of legislation mandatory, there is nothing to suggest that legislation enacted on foot of Article 42A.4.1 will be any different in status to legislation already in place. Note that legislation already requires that the best interests of the child are a paramount consideration in family law proceedings. For instance, section 3 of the Guardianship of Infants Act 1964 requires that in any proceedings regarding ‘the custody, guardianship or upbringing of an infant’, the welfare of that child will be the paramount consideration. In section 19 of the Adoption Act 2010, the courts (and indeed the Adoption Authority) are bound to consider the welfare of the child as ‘the first and paramount consideration’. Finally, in section 24 of the Child Care Act 1991, the courts are required in any proceedings concerning the care and protection of a child to regard the welfare of the child as the first and paramount consideration.  It is only in this latter case where an argument might be made as to the added value of Article 42A.4.1 in that section 24 of the 1991 Act refers to the parallel duty on the courts to have regard to the rights and duties of the parents, under the constitution or otherwise, in such proceedings. In some way, therefore, it could be argued that Article 42A.4.1 provides constitutional cover for the adoption of an approach that considers the child’s best interests as paramount (where a doubt might have arisen over whether such an approach was constitutionally permissible). However, given that there is no change to either Article 41 or to most of Article 42 of the Constitution, a more likely interpretation is that Article 42A.4.1 will in fact make no difference to the strength of parents’ rights under section 24 of the 1991 Act.

Overall, then, it is difficult to see what the impact of Article 42A.4.1 will be. Its narrow application to family law proceedings and its restriction to a requirement to legislate over its establishment of a constitutional principle with wide application suggest that it will, in the end, change little.  What value there is appears to lie in the introduction of CRC language to the area – will legislation be enacted, for example, to replace the outdated term ‘welfare’ with the more holistic notion of ‘best interests’? And if it does, what impact will that really have on the lives of children?

Legal Analysis of the Children's Referendum: Article 42A.4.1

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