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, Continue reading “Legal Analysis of the Children's Referendum: Article 42A.4.1”

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