Constitutional Amendment on Children
There are two pivotal constitutional provisions concerning children. The first – Article 41 –recognises the Family as the natural primary and fundamental unit group of society and pledges to guard with special care the institution of Marriage on which the Family is founded. This provision is untouched by these recommendations, and this is in line with the fact that families are crucially important to children. The proposals address themselves to the second relevant constitutional provision - Article 42. The proposals for the new Article 42 are lengthy and somewhat complex but they have a number of very important elements. First, under the new Article 42.1.2 the State recognises the rights of all children and undertakes as far as practicable to protect and vindicate their rights. This makes clear that the state has a duty to vindicate the rights of the child. Second, the provision proposes to incorporate as a constitutional principle the right of children to have their welfare regarded as a primary consideration, a provision which is strengthened by a requirement in Article 42.1.3 that the welfare and best interests of the child must be the first and paramount consideration ‘in the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child’. Third, and most important, the proposals express the state’s duty to recognise and vindicate the rights of ‘all children as individuals’. These rights include the right of the child to care and protection, the right of the child to education and the right of the child’s voice to be heard in any proceedings affecting the child having regard to the child’s age and maturity. The replication of the wording of the Convention on the Rights of the Child throughout is particularly important here and it will enable Ireland to learn from and contribute to the interpretation and understanding of these widely accepted international principles. The final provision of note is the replacement for the much criticised Article 42.5. The proposal here suggests a wording that will require the state to support families rather than pitting parents who have ‘failed in their duties towards their children’ against the state. Any intervention in the family must be proportionate, provided for by law, and ensure equal treatment of all children regardless of their parents’ marital status.
Although the fate of these proposals is far from clear, evidently, they offer much food for thought. What emerges overall however is they reflect a new paradigm for the treatment of children and a redrawing of the responsibilities of the state and parents in this regard. The recognition of the rights of children as individuals, to have their voices heard and to have decisions taken in their interests, are minimum requirements if Ireland is to meet its obligations under the Convention on the Rights of the Child. In the Irish context, however, they reflect that a bold step forward is required to ensure that the treatment of children in the Ireland of the future is an improvement on our woeful past.