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

Legal Analysis of the Children's Referendum: Article 42A.1

Dr Conor O’Mahony is a lecturer in law in the Faculty of Law, University College Cork.

The proposed Article 42A.1 provides

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.

Its stated intention, in the words of the Minister for Children, Frances Fitzgerald, is to “provide, for the first time, a strong affirmation of the rights and protections to be enjoyed by children as children.” This opening gambit in the proposed Article on Children, while brief, contains a number of elements that merit close examination.

The first point to note is that the “natural and imprescriptible rights” of children are currently referenced in the Constitution (in Article 42.5, which will be deleted and replaced). In G v An Bord Uchtála [1980] I.R. 32, the Supreme Court made an initial stab at expanding on the content of these rights, but this task was never continued in any subsequent case law.

A limitation of the current framework is that Article 42.5 only mentions children’s rights indirectly as something that the State must have due regard for when intervening to supply the place of parents who have failed in their duties towards their children. The existing framework is premised on the concept of State subsidiarity in family affairs, and places the State under no direct obligation to protect the rights of children as long as parents are adequately performing their functions. The obligation is a default one that arises only in exceptional cases.

The amendment, if passed, will shift the Continue reading “Legal Analysis of the Children's Referendum: Article 42A.1”

Legal Analysis of the Children's Referendum: Article 42A.1

The kids are all right? The case for constitutional reform.

We are delighted to welcome this guest post from Edel Quinn. Edel is a member of the Legal and Policy team at the Children’s Rights Alliance.  The Alliance is a coalition of over 100 organisations working to secure the rights of children in Ireland, by campaigning for the full implementation of the UN Convention on the Rights of the Child.  It aims to improve the lives of all children under 18, through securing the necessary changes in Ireland’s laws, policies and services.

The referendum on a constitutional amendment on children’s rights is just around the corner.  Holding the referendum on Saturday 10 November 2012 is a welcome development and will allow young people in particular the opportunity to travel home to vote and ensure that children do not miss out on a day of school.  With the wording of the proposed amendment and accompanying adoption legislation expected to be published later today, in this post we explore the key issues at the heart of the debate and the potential impact of change.  One of the founding objectives of the Children’s Rights Alliance when it was established 17 years ago was to seek an amendment to the Constitution of Ireland to strengthen the rights of children.  The Alliance has engaged in extensive advocacy on this issue in particular over the last six years since the publication of its second shadow report on Ireland to the UN Committee on the Rights of the Child in 2006.

Continue reading “The kids are all right? The case for constitutional reform.”

The kids are all right? The case for constitutional reform.

Still No Movement on the Children's Rights Constitutional Amendment

It is almost 3 months since the Oireachtas Committee on the Constitutional Amendment on Children released its final report. As previously highlighted on this blog, this report followed 2 years, 62 Committee meetings, 2 other Committee reports and numerous milestones highlighting the precarious position of children’s rights in Irish society, including the publication of the Ryan and the Murphy reports.

The process leading up to and the content of the report was the subject of extensive discussion by contributors to this blog (see here and here), while a blog carnival on the draft wording proposed by the Committee was held on this blog in the week following the report’s publication.

Concern has already been expressed about the government’s failure to commit to a concrete date for a referendum on the constitutional amendment on the child, despite previous statements on the part of the Government that a constitutional amendment on children’s rights would go ahead once the Committee’s work was completed.

Yesterday, the Children’s Rights Alliance reported that

it transpired in the Oireachtas, yesterday, during an exchange between the Taoiseach and opposition leaders, Enda Kenny TD, and Eamon Gilmore TD, that the Cabinet has not yet considered the Joint Committee on the Constitutional Amendment on Children Report, despite receiving it months ago. Consequently, the advice of the Attorney General has not yet been sought. Continue reading “Still No Movement on the Children's Rights Constitutional Amendment”

Still No Movement on the Children's Rights Constitutional Amendment