The Irish Constitution came into force on December 29, 1937. This has been an eventful year for women’s rights in Ireland. It is worth remembering that the new Constitution was ratified in the face of significant feminist opposition. Very detailed accounts can be found here and here.
Protecting children. Removing inequalities in adoption. Supporting families. Recognising children in their own right. These have been my four guiding principles leading up to the Children’s Referendum on 10 November.
The proposed change to the Constitution is the one of the most significant changes that has been made to the Fundamental Rights section of the constitution since its enactment in 1937. If Article 42A is approved by the people in forthcoming referendum, the Constitution will have a new and dedicated article that sets out rights of a one of the most vulnerable groups in society, who are in greatest need of support and protection and to whom we as a society and a State have allowed considerable harm to be done in the past.
The significance of this amendment cannot be overstated. It will right a legal wrong, the continued discrimination by our constitution between children of married and unmarried parents; it will update and clarify the law around the role of the state in the protection of children suffering abuse in their family; and it is an essential step to make right a cultural wrong, the failure to adequately respect and protect children in Ireland. It will be a signal to our judiciary, to our government, to our legislators and policy makers, a signal to every agent of the state working with children that we as a society want to ascribe a new value to children and childhood in Ireland.
The insertion of Article 42A, a new, dedicated constitutional article titled “Children” will separate and make explicit the rights of children in the Irish Constitution. The referendum wording is the result of very intensive work in recent months and the contributions of so many dedicated people over more than a decade. All have informed and shaped a proposal which I believe will make a real difference. At the core of this long debate has been one question – why shouldn’t children have express rights in the Constitution?
For the vast majority of children in Ireland, life is as it should be within a happy, loving and caring home where they are valued and nurtured. The referendum is about all children, but it is particularly for those “exceptional cases” – that is, for those children most vulnerable and at risk.
How does this proposed change to the Constitution help protect children? Above all, it places at the highest legal level our national determination to ensure the safety of children. The focus is on the child and the impact of a parental failure on the child’s safety and welfare. It sets out when and how proportionate intervention by the state should occur if necessary.
How does it improve inequalities in adoption? Currently, some children can never be adopted, no matter how much it is in their best interest. Firstly, the amendment would change the current situation to allow married parents to voluntarily place their child for adoption. Secondly, the test to allow a child to be adopted in long term foster care to be adopted will be changed so it will not be so difficult to meet. I have published draft legislation on adoption which makes very clear the safeguards that will apply in these situations.
How does the proposal support families? My priority has been to ensure balance between the unique role of the family and the rights of children themselves. It outlines in clear terms the proportionate action the State may take in Continue reading “Minister Frances Fitzgerald: The Children's Referendum on 10 November 2012”
Aoife Nolan is Professor of International Human Rights Law in University of Nottingham. Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin. Aoife and Liam are organising Human Rights in Ireland’s contribution to the debate on Article 42A, the Children’s Amendment.
On November 10th 2012, a referendum will take place where people will have an opportunity to amend the Irish constitution to provide specific recognition of the constitutional rights of children in the constitution. Over the coming weeks, Human Rights in Ireland will provide expert analysis on the background to the introduction of the children’s amendment, an accessible legal analysis of each of the provisions of proposed Article 42A, and expert analysis and commentary on the children’s amendment. By offering accessible and concise information on the children’s amendment, Human Rights in Ireland seeks to contribute to, and demystify, the debate surrounding the children’s amendment. The provisional schedule for these posts are as follows:
On Wednesday, 17th October posts on the background to the children’s amendment; an explanation of what precisely a referendum is and an analysis of the Oireachtas debates (to date) on the Thirty-First Amendment of the Constitution Bill 2012
On Tuesday 23rd October a number of experts on constitutional law, drawn from regular authors to this blog and guest posts, will explain in an accessible manner each of the provisions of the proposed amendment: Article 42A.
On Friday 26th October, Human Rights in Ireland will be hosting a number of posts that will analyse various aspects of the children’s constitutional amendment, offering expert insight and opinion on the role and value of the proposed Article 42A.
The wording of the Children’s Rights Referendum has been published. The proposal seeks to insert Section 42A into the Irish Constitution. The wording is as follows:
Proposed Article 42A
1. 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.
2. 1° 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.
2° 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.
3. Provision shall be made by law for the voluntary placement Continue reading “The Children's Rights Referendum: November 10th 2012”
I was recently invited to attend a conference in Mumbai, India, on the 60th anniversary of the Indian Constitution, which has the distinction of being the longest constitution in the world. There is an interesting Irish angle; as Cathal O’Normain wrote in the Indian Yearbook of International Affairs in 1963, “perhaps the Irish Constitution’s greatest claim to future fame will depend on the extraordinary influence which its Directive Principles had on the Constitution of India.” The reference is to the Indian Directive Principles of State Policy, which to quote Indian jurist Jai Narain Pandey, were “borrowed from the Constitution of Ireland”. The Irish Constitution lists the Directive Principles of Social Policy in its Article 45: “The state shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all institutions of national life.” This provision was reproduced in Article 38 of the 1950 Indian Constitution, with what O’Normain describes as “the commendable exception of the words ‘and charity’, perhaps in deference to Oscar Wilde’s dictum that ‘charity begetteth a number of sins’, or merely because of the ambiguity of the term.” Continue reading “The Irish Influence on the Indian Constitution: 60 Years On”