The Oireachtas Committee on children’s rights has finalised the wording of an amendment that could be put before the people as early as next year, the chairwoman of the committee, Mary O’Rourke, said yesterday.
Ms O’Rourke said that all-party consensus had been achieved and the proposed wording would strengthen the rights of children in Ireland.
v The wording of the amendment to Article 41 of the Constitution will not be published until the end of January when the committee will hold its next meeting.
“We feel this text is more robust than the previous proposal and will give an aura of certainty regarding the rights of children,” said Ms O’Rourke, who added that €3 million had been set aside by the Government for the referendum.
A previous proposed wording was criticised by a number of legal academics, who suggested that it could have left it open to the Oireachtas to permit the adoption of a child who had been in care for only days or weeks, and even when the parents of the child were only temporarily unable to care for it.
It was also suggested that the previous wording might have permitted the Courts to infringe on the rights of parents, especially young, poor or disabled parents, to a much greater degree than is currently possible under the Constitution.
It is believed the new wording will make it possible for people to adopt the children of married couples, sources told The Irish Times.
It follows on from the ruling in the “Baby Ann” case in 2006, where the Supreme Court ruled that a two-year-old girl should be returned to the custody of her birth parents from her adoptive parents when they withdrew consent for her adoption.
It was alleged that the case showed that the rights of children are subordinate to the rights of the family under the Constitution. However, in his ruling, Justice Adrian 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”.
Justice Hardiman added: “The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights”.
The Oireachtas committee was set up in November 2007 to agree recommendations for a referendum on child protection and children’s rights. A previous proposal for an amendment to the Constitution on the rights of children was deemed insufficient.
But getting all-party consensus on the wording of an amendment has proved difficult, with Fine Gael pushing for it to restore the law on statutory rape.
The law, which made it impossible to put forward a defence of mistake as to the age of a child, was found to be unconstitutional in a landmark Supreme Court case in 2006. Fine Gael initially argued that a referendum was vital to restore the statutory rape law and maintained the age of consent should be kept at 17 years.
However, the committee has recommended that rather than seek constitutional change, legislation should be introduced to protect children from adult sex predators. This difficult debate caused a lengthy delay to the work of the committee, which is expected to be disbanded following its meeting in January.
Minister for Finance Brian Lenihan announced in this month’s Budget that €3 million had been set aside for the Department of Health and Children to hold a referendum. A final decision on the referendum will be taken by the Cabinet when it formally receives the text of the amendment from the Oireachtas committee next month.
