The Government has provisionally signed off on the wording of a constitutional amendment enshrining children’s rights.

It is believed that a wording will be published shortly, once a minor technical issue is resolved in the coming days, the Irish Times reported on Thursday.
 
The latest text is understood to be broadly based on the work of the committee, which suggested amending article 42 of the Constitution in its entirety. This wording includes a reference to the courts having regard to “the best interests of the child”.

Critics have expressed concern that this wording may give excessive power to the State as against their parents.

The agreed wording also draws on the text proposed four years ago by then minister of state for children Brian Lenihan, which proposed the insertion of a new article 42 (a).

Fianna Fáil TD Mary O’Rourke, who chaired the cross-party committee which produced a report proposing a referendum and a suggested wording, has welcomed the move. A new wording was agreed shortly before Christmas following discussions between Minister for Children, Barry Andrews’ office and Attorney General Paul Gallagher.

She said that she understood that Minister Andrews would be consulting with other interested parties before a final decision on a wording was made.

Mr Andrews has previously suggested that the legislation needed to hold a referendum could be introduced in the Dáil if a general election did not take place until late March.

However, the proposed legislation was not on the legislative programme for publication and enactment in the current Oireachtas session, although Government Chief Whip John Curran did say that list was “not exhaustive”.

Two other referendums were proposed in the renewed Programme for Government, agreed between Fianna Fáil and the Greens in October 2009.

One committed the Coalition to proceeding, “subject to appropriate Oireachtas approval”, with proposals to hold a constitutional referendum to consider amending article 41.2 of the Constitution, broadening the reference to the role of women in the home to one which recognises the role of the parent in the home.

The proposal to amend the Constitution has drawn criticism from some critics who argue that the current wording protects children adequately.

In a Supreme Court ruling surrounding an adoption case in which the natural parents sought custody as against adoptive parents, on the basis that they were married, and as such were constitutionally protected, Justice Adrian Hardiman rejected the idea that the Constitution preferred parents to children, and required amending on that basis.

It was alleged that the case showed that the rights of children are subordinate to the rights of the family under the Constitution. Justice Hardiman utterly rejected this suggestion.

It would be, he said “quite untrue to say that the Constitution puts the rights of parents first and those of children second”.

The Constitution, he insisted, fully acknowledged “the ‘natural and imprescriptible rights’ and the human dignity, of children”, but recognised “the inescapable fact that a young child cannot exercise his or her own rights”.

Trinity College’s Dr Oran Doyle has also expressed concerns about the proposed wording.

Dr Doyle, in a speech delivered last June in Bratislava, said that the proposed referendum would require the Courts to apply a series of principles which were inconsistent.

Specifically, he said that the wording posed the question as to who would decide what the best interests of the child were. He went to suggest that Article 42.2.3 of the wording gave a de facto answer to this question, an answer which said might entail “greatly expanded state power and greatly reduced parental autonomy”.