Children’s Rights Referendum???

by Sonya Oldham,
People’s Association Watchdog

We eagerly awaited the wording of the children’s rights amendment as we all want what is best for our children, and for all children. It is a child’s right to grow up safely and to reach their own potential. Unfortunately this does not always happen, so will this constitutional change provide the impetus and the framework to allow the betterment of children’s circumstances? I do not believe so. After reading the amendment, some questions and observations come to mind:

  • The wording in relation to the intervention level at which children may be adopted without consent from the parents is ambiguous and widely open to intrepretation.
  • The express rights of children are not included.
  • The new amendment does not include the previous provisions which gave children the express right to free primary education and to receive homeschooling along with the state having a responsibility to provide educational facilities.

With this in mind, before voting please ask yourself:
Are the provisions what you envisioned? Are they implicit in safeguarding children’s rights?
Are children’s rights sufficently covered by this amendment?
Are you comfortable with the previous provisions now being omitted?
Do you believe that the state intervention threshhold is clear as to circumstances and duration of time as to when a child will be adopted without the parents consent?

If you are not completely satisfied with the provisions, please consider voting No. This does not mean you are voting against children’s rights but that you want their express rights to be included and you want an unambiguous threshold for their adoption against their parents wishes and that their rights to free primary education, homeschooling and education facilities are maintained.

Indeed, instead of an emphasis on children’s rights, the object of the suggested constitutional change seems to be to provide for greater eligibility for adoption and would seem, at first reading, to be an adoption amendment, with the majority of the substance being concerned with the process of enabling adoption.

The present legal position under the Adoption Act 1988 allows the adoption of children without the consent of married parents when a court determines they have been abandoned. The test for abandonment is high and rightly so. If it cannot be established, then parental contact exists and the focus should be on promoting rather than extinguishing it. This balances both parents’ and their children’s rights to know and have a relationship with each other.

The Constitution currently states in Article 42.5, viz. “In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

This referendum dissapointingly focuses less on the rights of a child than on a lowered threshold for state intervention. This lowered threshold seems ambiguous and it’s wording indeterminable.

Dr Oran Doyle, a law lecturer in Trinity College said, “The real source of contention in current debate, and the likely focus of any referendum proposal, is the question of when the State may intervene and take children into care or start making decisions on behalf of children that override the wishes of the parents.
“To call this a children’s rights issue is somewhat misleading; the issue here concerns who exercises for children the rights that they cannot exercise themselves.”

New Wording:

  • 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.

What does this mean, prejudicially affected?
By definition Prejudicial can mean harmful, damaging, undermining, detrimental, hurtful, unfavourable, counterproductive, deleterious, injurious, inimical, disadvantageous.

This encompassing and indeterminate word has a wide variation in it’s interpretation from being harmed to being at a disadvantage. Would this definition, as it is being proposed for the constitution, include a child whose welfare is at a disadvantage?

Vague terms that leave intrepretation wide open are not in the best interests of our children, if we are to change our constitution to the advantage of our children, the meaning must be precise and not open to varying degrees of interpretation. This is especially important when it is allowing for the adoption of children whose parents are not consenting.

  • 2. 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.

This raises concerns; What period of time and What duty? As parents, we have many duties to our children, from providing emotional security to the basics of them having breakfast on the table and what does the ‘best interests’ of the child mean? Who decides?

As has been noted by several commentators, including Professors William Binchy and Gerard Whyte of Trinity College Dublin, any such failure under this wording, need only be temporary and could even be of extremely short duration.

  • 3.  Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.


  • 4.  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.
  • 4. 2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° 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.

Again, the bar seems to be set as ‘prejudically affected’ and in the ‘best interests’ of the child, but what do these mean? These ambiguous statements leave the amendment dangerously open to intrepretation.

Constitutional law expert and high court judge, Professor Gerard Hogan of Trinity College Dublin also appears to be skeptical about the need for an amendment and expresses reservations about the concept of a child’s ‘best interests’ because it leaves open the question in many cases of who get to decide what is in a given child’s interests, the parents or the State? For example, with regard to a child’s best interests he is quoted in the report as follows: “it is all very well to say that children’s interests must be safeguarded. But who is to decide this and what does it mean?”

According to Mr Hogan the phrase, “best interests of the child”, is ambiguous. He has also raised concerns that a children’s rights referendum might lower the threshold for State intervention in an excessive way.
A constitutional amendment where provision is being made for the adoption of a child against the parents wishes should be clear on what cirmcumstances, degree of failure and time period.

So What about Children’s rights

Both the Joint Committee on the Constitutional Amendment on Children (JCCAC) and Children’s Ombudsman recommended the amendment should include the express recognition of children’s rights whilst also expressly recognising that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents.

They also recommended that the proposed wording specifically requires the State, by proportionate intervention, to support the family so as to ensure that a child is only removed from his or her family where no other appropriate action can be taken which will ensure the protection of a child at risk and/or to protect the child’s welfare and best interests.

Ten years ago, the Constitution Review Group recommended that an express guarantee of certain rights of the child should be added into the Constitution as well as an express requirement that in all actions concerning children the best interests of the child must be the paramount consideration.

According to the children’s ombudsman, the failure of the All-Party Oireachtas Committee on the Constitution to recommend that express rights for children be included in the Constitution is a retrograde step in strengthening and protecting children’s rights. This means that children will not be recognised as individual rights holders.

Children’s Ombudsman: the current proposal to refer to the rights of children falls short of what is required. The proposal states: “The State acknowledges and affirms the natural and imprescriptible rights of all children” [Article 42(A)1 of Twenty-Eighth Amendment Bill]

The recommendations of the Children’s Ombudsman:
Specifically, I recommend the inclusion of a provision setting out express rights for children to include:

  • The right to participate in matters affecting the child.
  • The right to freedom from discrimination.
  • A right to participate and to be heard.
  • The express provision for the right to family or appropriate care, together with an express duty on State to support families. I recommend the inclusion in the Constitution of a State duty to support families and a duty to act in a proportionate manner.

To clarify, I fully support the proposal that provision be made for the adoption of children in long-term foster care, but we must not assume that this is in the best interests of all children in this situation.

What about the previous provisions?
With the new amendment, previous sections of the article will now be omitted, these include a child’s right to free primary school education, states responsibility to provide educational facilities and a right to homeschooling. By their removal, unless supplemented elsewhere, our constitutional rights in these respects will be obselete.

Article 42
1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
3. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.


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