The Government has published the wording of its proposed children’s referendum. 
The wording of the proposed Thirty-First Amendment of the Constitution, was published yesterday, and it provides for, amongst other things, the adoption of the children of married couples, “ 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”.
The Government also published adoption legislation in conjunction with the referendum wording setting out the circumstances in which children of married as well as unmarried parents can be adopted.
The wording was given a welcome by all the main political parties and children’s rights groups, although David Quinn of the Iona Institute and Independent Senator Jillian van Turnhout, former chief executive of the Children’s Rights Alliance said they would take some time to consult with legal experts on the proposal.
Minister for Children Frances Fitzgerald said: “This amendment proposes to include a new stand-alone article in our Constitution, article 42A, titled ‘Children’, which will greatly inform the courts’ consideration of the legal framework for decision-making regarding children.”
Fianna Fáil spokesman on children Robert Troy said later that his party would be calling for a Yes vote, following the “long awaited” publication of the text, the Irish Times reports.
He said the amendment was “almost identical” to that proposed by Fianna Fáil’s Barry Andrews in his former role as minister of state for children. Government sources pointed out that the formula proposed by Mr Andrews would have inserted children’s rights into article 45 of the Constitution, which cannot be the subject of court adjudication.
Sinn Féin’s spokesman on children Caoimhghín Ó Caoláin said that his party was “positively disposed towards it, there’s no doubt in the world around that”.
In recent weeks a number of prominent voices have questioned the need for a referendum on children’s rights.
Former Supreme Court judge, Hugh O’Flaherty, writing in the Irish Independent, suggested that the aims of the referendum could be achieved through legislation, while retired District Court judge Michael Patwell warned that giving special rights to a particular group in society could prove harmful to other groups.
The text of the proposed referendum reads:
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 1° 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.
2° 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.
2° 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.
Meanwhile, the Government’s proposed adoption Bill will make it possible for children of married parents to consent to an adoption, after counselling and the same steps to ensure their consent is informed and freely given, according to the Irish Times.
Under existing adoption law, once a child is placed for adoption and the parent fails in, refuses or neglects the making of the adoption order, their consent can be dispensed with by the High Court, but only if the parents are unmarried.
Under the proposed Bill, the distinction between married and unmarried parents will disappear. Instead, the court will be obliged have regard to the relationship between both the natural parents and the child and the prospective adoptive parents and the child, and the child’s best interests must be the paramount consideration for the court.
The Bill also provides for the adoption of children who have been in long-term foster care by their foster families. This will only arise where there has been a continuous failure on the part of the parents towards the child for a period of at least three years, and the failure is such as to constitute an abandonment of their parental rights. The child must have been in the care of the foster parents for at least 18 months, and they can make an application to the Adoption Authority to adopt.
The views of the child, depending on age and maturity, must be taken into account. Again, the best interests of the child will be the paramount consideration.
If the authority considers adoption would be in the best interests of the child in these circumstances, it will apply to the High Court for an adoption order. The court must establish the child has been abandoned for the stipulated period and that this is likely to continue.
It must be satisfied the adoption is “a proportionate means” for the State to supply the place of the parents, and must take into account the constitutional rights of all concerned, including the natural parents. However, the best interests of the child must be the paramount consideration.