Friday, December 7, 2012

The Best Interests of the Child

On the 10th November 2012, the 31st Amendment to Bunreacht na hEireann was approved. The new Article 42A in relation to Children’s Rights provides:


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 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.

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 for adoption and the adoption of any child.

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.

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

What does this mean?

Article 42A.1 The Government and State is obliged to ensure, as far as practicable, that the rights of ALL children are protected and vindicated. The main effect is to recognise and affirm rights of children and place them on the same plane as the general personal rights of citizens. Citizen children would have held the personal rights of citizens in any event. There is a difference between “all children” and “citizens”. However, in practice the courts have never limited the rights protected by Article 40.3 to citizens, so this distinction is of no practical effect. Essentially, Article 42A.1 is intended to signal a clear intention to protect the individual rights of all children, regardless of marital status.

Article 42A.2. - The State may intervene and try to supply the place of the parents, if the parents fail in their duty towards the child. The emphasis has been shifted so that the State’s obligation to protect and vindicate children’s rights is a constant duty owed to children, and not a mere default duty This intervention must have due regard for the child’s rights and will only be allowed in exceptional cases. The biggest change here is that the State can intervene where the parents have failed in their duty towards their children, whether in fact, those parents are married to each other, or not. Previously this failure was in relation to moral and social duties, whilst now the wording refers to failure in their duties to such extent that the safety or welfare of any of their children is likely to be prejudicially affected. Under this approach, parents would be taken to have failed in their duty if they did something (or failed to do something) which was likely to affect prejudicially the safety or welfare of their child consequently leading to State Intervention. It is clear this establishes a different standard for intervention. It could imply that conscientious parental choices, based on moral or religious or philosophical commitments, might be overridden by the State where they are thought to prejudicially affect children’s safety OR welfare. Any intervention by the State must involve the use of proportionate means, which must be set out in legislation.


Article 42A.2. - A major change relates to the issue of adoption. Previously there was no law permitting married parents to voluntarily place a child for adoption. The law now provides, at a constitutional level, for the adoption of any child, whether that child be a child of a married, or unmarried, couple. The proposed amendment provides for adoption where the parents have failed in their duty towards the child for a specified period of time, and where the best interests of the child so require. The draft legislation published with the provision allowed for a period of three years, however this could be decreased or increased in the future.

Article 42A.3 - This represents a firm move away from the original rationale underpinning Irish adoption law: that adoption was designed to give children born outside marriage the opportunity of a life within a marital family. Previously voluntary placement for adoption was permissible only where the child was born outside of marriage or orphaned. In respect of a child born to parents who were married to each other at the time of the child’s birth, unless both parents are deceased, the child could only be adopted in the exceptionally limited circumstances envisaged by Sections 53 and 54 of the Adoption Act 2010;  any child – marital or non-marital – could be adopted where the parents have failed in their duty towards the child for at least one continuous year, and where this failure is likely to continue without interruption until the child is 18. The failure must amount to an abandonment of all parental rights in respect of the child. Such an adoption, moreover, could only proceed with High Court approval, and having due regard to the parents’ and child’s constitutional rights. Art.42A(3) offers children born inside marriage who are in long-term foster care, offering them the prospect of a more regularised and secure position through adoption. Significantly, the amendment departs markedly from the traditional view that the function of adoption is to provide a marital home for non-marital children, recognising that some children born within marriage may also be best served by adoption

Article 42A.4 1° - applies to proceedings initiated by the State and proceedings not necessarily initiated by the State. This section introduces a best interests test into the constitutional text for the first time. In all court proceedings, where significant decisions are being made in relation to a child, the paramount consideration is the best interests of the child. There is nothing to suggest that legislation enacted on foot of Article 42A.4.1 will be any different in status to legislation already in place. Note that legislation already requires that the best interests of the child are a paramount consideration in family law proceedings. For instance, section 3 of the Guardianship of Infants Act 1964 requires that in any proceedings regarding ‘the custody, guardianship or upbringing of an infant’, the welfare of that child will be the paramount consideration. In section 19 of the Adoption Act 2010, the courts and the Adoption Authority are bound to consider the welfare of the child as ‘the first and paramount consideration’. In section 24 of the Child Care Act 1991, the courts are required in any proceedings concerning the care and protection of a child to regard the welfare of the child as the first and paramount consideration. It is only in this latter case where an argument might be made as to the added value of Article 42A.4.1 in that section 24 of the 1991 Act refers to the parallel duty on the courts to have regard to the rights and duties of the parents, under the constitution or otherwise, in such proceedings.

Article 42A.2 2° - The amendment provides that where practicable, the views of the child himself, or herself, should be obtained and due weight given to those, having regard to the age and maturity of the child. It is the case that the views of the child are often taken into account in Court proceedings however the reformed article will put this on a Constitutional footing. This best interests test can only come into operation when the threshold for state intervention has been passed.This represents a very cautious and limited attempt to incorporate Article 12 of the United Nations Convention on the Rights of the Child into Irish domestic law. Indeed, Article 12 of the Convention is much broader in scope, not only recognising the right of the child to be heard directly and indirectly in all judicial and administrative proceedings (Article 12(2)) but, more generally, it recognises the obligation on the State to assure to all children the right to express their opinions freely in all matters concerning them once they are capable of forming views. In contrast, Article 42.A.4.2 fails to make reference to any other area of a child’s life other than child and family law proceedings.


The Constitution must be interpreted harmoniously, and article 42A will be read in light of other constitutional provisions, namely the unaltered article 41. The Family will still be regarded as the “natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law,” with a State commitment to protecting it in its “constitution and authority”.

Brophy Solicitors


1 comment: