The wording of the Government’s proposed children’s rights referendum could have legal effects “well beyond those indicated by the Government” according to Professor William Binchy of Trinity College Dublin. Professor Binchy, an acknowledged authority on family and constitutional law, said the proposed wording “raises several important questions of interpretation”.
He said that the wording could leave 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.
He also said that the wording might permit 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.
In particular, he said this was the case in relation to Article 42(A), section 2.2 and 42(A), section 4 of the proposal. If legislation which simply achieved the purpose stated in the proposal was held to be valid, “a law which (for example) provided for the non-consensual adoption of children where the parents had failed in their duty for a short period – in theory a few weeks could suffice”, Professor Binchy maintained.
Furthermore, he noted that section 2.2 only requires a temporary failure of duty on the part of parents for their child to be adopted. He contrasted this with the provisions of the 1988 Adoption Act, which requires that any failure of duty on the part of the parents for the purposes of that child being adopted must “be likely to continue into the future”. He added that “non-consensual adoption based on failure of duty for reasons other than physical or moral” might be permitted.
Article 42 (A), section 2.4, he argued, contained equally radical implications. If courts had to secure the best interests of children in adoption, guardianship, custody or access cases, and did not need to have regard to the current constitutional rights of parents, “the conclusions which (they) would reach would be quite different from those which are arrived at under the present constitutional dispensation.”
This could lead to poor parents, very young parents or parents with disabilities finding it harder to to retain care of their children, Professor Binchy said.
The wording, he went on, was “capable of a very wide range of different interpretations”. No-one, Professor Binchy said, “can predict exactly how it would be applied in practice”. While he said that it would have some “welcome effects” in some circumstances, “how much further its impact would be is far from certain”. Rather than proceeding with the current wording, he suggested that the Government proceed with a vote on the more uncontroversial provisions of the current wording, sections 4 and 5, “and delay consideration of the other provisions pending clarification of their possible impact on the rights and welfare of children”.
