The Children’s Referendum will be held on Saturday, 10 November, the Taoiseach, Enda Kenny, has announced. 
Mr Kenny said he would be briefing opposition leaders in advance of tomorrow’s publication the working of the proposed amendment, RTE News reports.
The Adoption Amendment Bill will also be published tomorrow as will details of the referendum commission, including who will chair it.
He said the Government was committed to ensuring that people had all the information they needed and the referendum commission would be well resourced.
In recent weeks, a number of former judges have questioned the need for a children’s rights referendum. Last week, former Supreme Court judge Hugh O’Flaherty said the aims of the referendum could be accomplished through legislation, and in August, former District Court judge Michael Patwell said that giving special rights to one group of citizens could pose problems.
The wording of the amendment will retain many of the elements of the wording proposed in February 2010 by the Joint Committee on the Constitutional Amendment on Children chaired by Mary O’Rourke, according to an Irish Times report.
That wording held that, in all proceedings relating to a minor “the best interests of the child” should be paramount. However, some legal experts have suggested that this phrase could lead to complications.
Membership of that committee included then senator Frances Fitzgerald, now Minister for Children and Youth Affairs, and three other members of Cabinet: Michael Noonan, Brendan Howlin and Alan Shatter.
In a reworking of the language of the 1916 Proclamation, the committee proposed that “the State shall cherish all the children of the State equally”. (The Proclamation says “children of the nation”).
However, this well-known formula has proven on closer examination to be legally very imprecise and will not form part of the proposed amendment.
Currently, it is very difficult for a child of married parents to be placed for adoption but the Government’s proposed amendment will authorise the principle of adoption, irrespective of the parents’ marital status.
The Government’s wording will set out, as one source put it, “what the State can or can’t do, when, and in what circumstances”.
A number of other legal and social commentators have already warned that the wording proposed by the Oireachtas committee last year has a number of possible pitfalls. Constitutional expert and recently appointed High Court judge Gerard Hogan said that the phrase, “best interests of the child,” could be ambiguous.
Everyone, he said, is in favour of the best interests of the child, but, he asked, “Who is going to decide what is in the best of the child, and how is this going to be done?”
He told RTÉ in 2010, “We’re all in favour of the best interests of the child, and there is something of a mother and apple pie dimension to this. But in practical terms you have to ask yourself, when you’re talking about the best interests of the child, who is going to decide what is in the best of the child, and how is this going to be done? And if you’re talking about the State vindicating the rights of the child, you have to remember that this is likely to be officialdom, or some judge making this decision.”
Another Trinity lecturer, Dr Oran Doyle, expressed misgivings about the wording.
In a talk in Bratislava, Dr Doyle said that the proposed referendum poses the question as to who would decide what the best interests of the child were and suggested that Article 42.2.3 of the wording gives a de facto answer to this question, an answer that he said might entail, “greatly expanded state power and greatly reduced parental autonomy.”