Children’s Rights Proposal – Positive but Possibly Flawed

I wish to begin by paying tribute to the members of the committee who have invested many hours of work into finalising the published proposal. Many voices were heard during the committee consultation process and I believe it to be particularly important now that voices from all perspectives are heard before any final decision is made in relation to a definitive text.

There is no doubt that the main thrust of the proposed constitutional amendment dealing with the rights of the child is to give the State more interventionist power. Yet we know from previous case law dealing with educational needs of disabled children and homeless children that the State has sat on its hands (I am referring here specifically the Sinnott and TD & Ors cases respectively). This is not to mention the all too easily forgotten reality that recent revelations show that the State is in a poor position to take the moral high ground when it comes to child welfare.

However, it would narrow minded to rule out a priori the possibility that the constitutional threshold for State intervention is too high. If any case is suitable as a justification for this contention then it would be the Heel Prick Case (PKU case). Although even here one would wouldn’t have to try too hard to imagine how State intervention in medical decisions affecting children could quickly shift from ‘proportionate and reasonable’ to being an arbitrary usurpation of parental authority. Added to this, and as pointed out on page 24 of the Committee’s report, there are legitimate concerns over the current constitutional position on whether or not a child should remain in the custody of his or her married parent or parents or should be adopted by, or remain in the custody of, third parties.

At the outset I wish to state that the very well documented abuse cases are already covered by existing constitutional provisions. Already thousands of children are taken in to the care of the State each year. This is not merely my own quixotic view but is accepted by others, such as Gerard Hogan who, in the context of the constitutional protection of children, recently stated in an interview: “what I disagree with is the suggestion that the present provisions haven’t worked well, or that they don’t strike the right balance, or are in some way responsible for lots of modern ills because I think that is just, with respect, a grotesque misstatement and misunderstanding of the present Constitutional provision.”

Turning to the specific provisions of the proposed amendment, I am struck by the novel concept of “children of the State” (Article 42.1.1. of proposed amendment). What sort of implications will this concept have for our Courts? Is it possible that this provision may exclude non-citizens from certain categories of rights? Does this provision establish the concept of the “State’s children” and as such constitute a dramatic transfer of rights and responsibilities from parents to the State? I believe there is a very strong case to be made for eliminating 42.1 of the proposed amendment altogether. It is too vague, too rhetorical and its relationship with the more specific statements about the duties on the state and on parents is completely unclear. The sentiment in the line will actually be better achieved by the other paragraphs in the amended article, freed from any ambiguous open-ended statements such. It is fine for a political declaration or a speech (it is of course a rather hackneyed outtake from the Easter proclamation) but not in a newly drafted legal text, especially one as technical and elaborate as the new art 42 – it is completely out of place.

This is not the only example of potentially problemic ambiguity in the proposed amendment. Proposed amendment Article 42.1.3 reads: “In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.” First, on the basis of consistency a case can be made for inserting here also “in the consideration of divorce proceedings the welfare and best interests of the child shall be the first and paramount consideration.” Beyond this the term “best interests” itself may be highly problematic. Again, I cite Gerard Hogan, “I think this is the fundamental problem. 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.” On page 66 of the committee’s report we learn that Geoffrey Shannon disagreed with the proposal that the South African Constitution provides a suitable template for any proposed amendment to the Irish Constitution. Quoting the report, “This formula has been found to be problematic as it results in ‘inconsistency and unpredictability’ according to Dr. Shannon.”

There are other issues. In moving from the “inalienable right and duty” of parents to provide for their children to instead a more minimalist mention of “right and responsibility” (Article 42.3 of proposed amendment) of parents, and by omitting all mention of the “Family,” does the proposed amendment move too far in the direction of the positivisation of parental rights or indeed the usurpation of their rights by the State?

 Also, what is the meaning of the divorce between Article 41 wherein the Family is the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law and the amended Article 42 wherein the Family is considered irrelevant to the welfare of children? At the very least it fails Dworkin’s coherency and integrity test. Is there an implication that the State is to assume the role and function of the Family? Or that the State is neutral in respect of the ideal environment within which to raise children, even in the teeth of all the evidence highlighting that the child’s welfare is best served in a low conflict marriage between his/her natural parents? Hence there may be a need for an amendment to the effect of a presumption in favour of a child’s welfare being best supported within the family—although it is arguable that this would still be the constitutional position even if the proposed amendment were to be passed, due the strength of Article 41. Furthermore, paragraph two of the proposed amendment refers to children “as individuals.” It is obvious that children are individuals – or more accurately persons – and they are already so treated. To emphasise the issue of “as individuals” in this way separate from paragraph 4, may jeopardise the proper consideration of children’s welfare in the context of their family life. Where it is not appropriate to consider their welfare in terms of their family life, i.e. in the case of parental failure, this will be covered by paragraph 4 of the proposed amendment.

As an aside, paragraph 4 refers to parents ‘regardless of their marital status’, but paragraph 3 refers to parents simpliciter. Should this be taken to mean that paragraph 3 means married parents?

Related to the “best interests” test is the question concerning the threshold of parental failure. Is the intervention threshold of Article 42.4 too low where in the event that parents “fail”, without any mention of “exceptional cases”, the State shall “by proportionate means, as shall be regulated by law endeavour to supply or supplement the place of the parents, regardless of their marital status”? It is arguable that some phrase is necessary to raise the threshold here. It should not be possible for a court to simply substitute their better judgment for the decisions made by parents in relation to their responsibilities. It is similar to judicial review. The courts cannot simply replace the decision of administrative/executive bodies simply because they disagree with them. On the other hand, the inclusion of the reference to proportionate – replacing the term “appropriate” in the current Article 42 – and the suggestion that further legislation can govern the matter is reassuring.

However, there may be a sense in which the proposed amendment lessens a child’s rights as claimable against the State itself (as distinct from against the parents). The reference to “due regard for the natural and impriscriptible rights so the child” has been removed in the amended section dealing with State intervention, where in the  current Article 42.5 it acts as a break against State interference with the rights of the child. Is the standard to be applied to the State lowered by this proposed amendment?

It is clear from reading the report that a lot of the submissions made to the committee were fearful of the possibility that the best interests of the child could still be presumed to be in the context of the marital family. This is despite the fact that on page 93 of the report we read, “Virtually all of those in support of the amendment confirmed their belief that in most cases the best interests of the child are best served with the parents, but when the interests of the child and those of the parent conflict, that the child’s interest should take precedence.” This quote indicates that the child’s best interests and parental rights are by no means mutually exclusive. Hence there is no reason to attempt to divorce the most stable form of parent-child relationship, the marital family, from the best interests of the child.

Amidst all the talk of incorporating elements of the UNCRC I was concerned to find out that in this instance the 1996 Report of the Constitutional Review Group was somewhat ignored. For the 1996 report sought to explicitly incorporate an important principle of the UNCRC into the Irish Constitution when, in proposing to reconstitute Article 41 so as to include an express guarantee of the rights of the child, two of the proposed rights suggested were (suggestion b of the recommendation): “the right of every child, as far as practicable, to know his or her parents, subject to the proviso that such a right should be subject to regulation by law in the interests of the child”; and (suggestion c): “the right of every child, as far as practicable, to be cared for by his or her parents.” Parents according to the UNCRC means natural parents.

Finally, I wish to highlight a very disappointing misinterpretation contained among the submissions made to the committee. One page 61 of the report we read,
“Other submissions, such as those from the CARI Foundation, the Irish Council for Civil Liberties and Amnesty International also considered that the natural law terms were ambiguous and should be avoided.” Two of the aforementioned groups are self-proclaimed human rights advocates. The absurdity of human rights groups disavowing the very basis of human rights, the natural law, says an awful lot more about their ambiguous and inadequate understanding of human rights than about the status of natural law.

CONSTITUTION CHANGE: THE NEW AND THE OLD WORDING

PROPOSED NEW WORDING

CHILDREN ARTICLE 42 

1. 1° The State shall cherish all the children of the State equally.

2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.

3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.

2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including: i) the right of the child to such protection and care as is necessary for his or her safety and welfare; ii) the right of the child to an education; iii) the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.

3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status.

5. Provision may 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 responsibility towards the child and where the best interests of the child so require.

6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.

7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

7.2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

7.3° Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State.

8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

OLD WORDING

EDUCATION ARTICLE 42 

1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.