The new amendment proposes that children’s best interests shall be of the utmost importance when critical decisions are being made about the protection, welfare and care of the child.
This Referendum also proposes, for the first time, to give Constitutional recognition to the best interests and views of the child in court cases affecting their life.
Article 42.A.4.1° 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.
This section of the proposed amendment commits the Oireachtas to legislate to ensure that the best interests of the child will be “the paramount consideration”, in certain areas of decision-making affecting a child. This means those decisions will be determined based on what is best for the child in question. It applies only to child protection and care proceedings brought by the State and proceedings concerning adoption, guardianship or custody of, or access to, any child.
The proposed Amendment will put the best interests of children at the centre of decision-making. As State intervention will continue to be an exceptional measure, there is continued recognition that the best place for children is with their parents. Any intervention or support will always be proportionate to the risk facing the child. This means that a child is only removed from his or her parents where no other appropriate action can be taken which will protect the child’s safety and welfare in the home.
|Article 42A.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.|
Article 42A.4.2° commits the Oireachtas to legislate to provide that the views of the child are heard and taken into account in the proceedings listed in 4.1 (children in care, child protection, adoption, guardianship, custody and access cases). This will require that the views of the child are heard when key decisions are made about their lives. It does not mean that the child’s views will be the determining factor in the case but that child’s views will be considered by the judge and given due weight according to the child’s age and maturity.
At present, a child has no automatic right to be heard – their views are heard on an ‘ad hoc’ basis, and whether the child is given the opportunity to be heard or not largely depends on the type of case before the court and the judge hearing the case. This new wording will ensure that the voice of the child is heard in every situation that affects them in adoption, guardianship or custody proceedings.
Article 42A.4 gives express constitutional recognition to two unenumerated rights – best interests and views of the child – which have already been found to exist by the High Court.25 The use of the phrase “provision shall be made by law” in this provision is unique to the Constitution in that it legally obliges the Oireachtas to define fundamental rights and to make sure that relevant legislation is in place.
|Article 42A.3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.|
This article commits the Oireachtas to bring in a law that allows parents, either married or unmarried, to voluntarily place their child for adoption and to consent to the adoption of their child. At present, only children born to unmarried parents are eligible to be voluntarily placed for adoption by their parent/s.
Article 41 and 42 of the Constitution have been interpreted to mean that married parents cannot voluntarily place their child for adoption or consent to an adoption.An amendment to this in the form of Article 42A.3 means that children of married and unmarried parents who are unable to care for them and who voluntarily give them up for adoption, can now have a second chance of family life, by the chance of being adopted by foster parents.
A more in depth analysis of the proposed Article 42 is on the Children’s Right’s Alliance website.