The Oireachtas committee proposing a children’s rights referendum will recommend an amendment that will lower the threshold for State intervention in the family.
It will publish its final report at the end of next week. The Committee has also suggested rewriting Article 42, which is headed Education.
Many of those involved in promoting a children’s rights amendment wanted to see Article 41, on the family, changed. The committee, however, has agreed not to propose any amendment to this article.
Campaigners for a referendum have claimed that the Constitution put parents interests ahead of children’s rights.
However, Supreme Court judge Adrian Hardiman has said that the Constitution protects children’s rights. In the Baby Ann case, he rejected the idea that the Constitution preferred parents to children. The Constitution, preferred parents to third parties, such as the State or the Church or social workers, when it came to vindicating the rights of children, since children were not in a position to vindicate their own rights.
The committee is understood to believe that a new Article 42, beginning with a new declaration on the rights of the child and going on to list rights, including the right to free primary education which is already referred to in that article, would be more likely to obtain broad support than a referendum on the Constitutional provision on the family.
Paragraph 5 of Article 42 states that “in exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State . . . shall endeavour to supply the place of the parents.”
This paragraph will be rewritten to permit the adoption of children of married parents in certain circumstances. It understood that it will ‘modify’ the threshold for State intervention to protect the rights and welfare of a child, thereby allowing intervention in non-exceptional cases.
The amendment originally acknowledged and affirmed “the natural and imprescriptible rights of all children” and provided that the children of married couples might be adopted, which is almost impossible under the present law.
It also would have obliged the courts to “endeavour to secure the best interests of the child” in all adoption, guardianship, custody and access cases.
However, it was pointed out that under the Guardianship of Infants Act, the rights of the child are “paramount” in such proceedings, and asking the courts to “endeavour” to secure them weakened these statutory provisions.