Legal Analysis of the Children's Referendum: Article 42A.4.2

Dr Aisling Parkes is a lecturer in law in the Faculty of Law, University College Cork.

Proposed Article 42A.4.2 provides:

Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1 (all proceedings brought by the State…for the purpose of preventing the safety and welfare of any child from being prejudicially affected; adoption; guardianship or custody of, or access to any child) 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.

Ireland has been under a legally binding obligation to incorporate the principle of respect for the views of the child into Irish law since 1992, when it formally ratified the UN Convention on the Rights of the Child 1989 (CRC). Indeed, in 2006, the UN Committee on the Rights of the Child specifically recommended that Ireland “strengthen its efforts to ensure, including through constitutional provisions, that children have the right to express their views in all matters affecting them and to have those views given due weight in all matters affecting them”.

While the proposed amendment will not give constitutional status to the voice of the child, it is nonetheless a constitutional commitment to enact legislation to ensure that children are heard in specific family law cases which affect them (adoption and childcare cases, as well as ones involving guardianship, custody and access). This represents a very cautious and limited attempt to incorporate Article 12 CRC into Irish domestic law. Indeed, Article 12 of the CRC is much broader in scope, not only recognising the right of the child to be heard directly and indirectly in all judicial and administrative proceedings (Article 12(2) CRC) but, more generally, it recognises the obligation on the State to assure to all children the right to express their opinions freely in all matters concerning them once they are capable of forming views. In contrast, Article 42.A.4.2 fails to make reference to any other area of a child’s life other than child and family law proceedings.

Thus, one can only speculate as to what any future legislation in this area would look like. Article 42.A.4.2 says that this right will apply to all children capable of forming views, not expressing them. In theory, each child must be assessed on a case-by case basis as to whether or not they are capable of forming views. Indeed, a child can be capable of forming views but may not be capable of expressing them due to a disability, for example. In such cases, it is the State’s responsibility to ensure that alternative methods of communication are available such as art or play (also an obligation under Article 13 CRC). In practice, who will determine whether or not a child is capable of forming views? This phraseology, which mirrors the wording of Article 12 CRC, has been interpreted by the UN Committee to mean that the State must not begin with the assumption that a child is incapable of expressing his or her views. Indeed,

States Parties must presume that a child has capacity to form his or her own views and recognise that she or he has the right to express them, it is not up to the child to prove his or her capacity.

The Committee also discourages States from introducing age limits either in law or in practice which would serve to restrict the views of younger children being heard. Thus, any subsequent legislation should not contain an age limit for the expression of views in family law proceedings if it is to be CRC-compliant. Once this is the case, the child has the right to have those views heard. The weight to be attached to those views will be determined by looking at both the age and capacity of the child in question.

Finally, it is one thing drafting legislation to provide for the voice of the child, however enforcing that legislation is a much more challenging prospect. Indeed, it bears remembering that Ireland already has a provision for the appointment of a Guardian Ad Litem in private family law proceedings (an indirect means to include the voice of the child) under Section 28 of the Guardianship of Infants Act 1964 (as inserted by section 11 of the Children Act 1997). Unfortunately 15 years on, this provision has not yet been commenced.

It remains to be seen to what extent international minimum standards under the CRC concerning the voice of the child will be translated into Irish Law if this amendment is passed. It is hoped that having a specific constitutional provision dedicated to children will eventually help raise their visibility as rights holders in Irish society, ensuring that they are protected and heard.

Legal Analysis of the Children's Referendum: Article 42A.4.2

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