1

THE CHILDREN’S RIGHTS REFERENDUM: A SHORT HISTORY DAVID KENNY*

“The road to constitutional reform of any type can be protracted and cautious by nature. This is appropriate given the need to ensure that the Constitution, the cornerstone and basic law of the Irish State, reflects the needs, culture and ethos of the Irish people.”

- Francis Fitzgerald, Minister for Children, 28th June 2011.1

Protracted and cautious; never was the process of making the children’s

rights amendment more accurately described. The coming referendum has had a

long and somewhat torturous history. The people will finally vote on it on

November 10th, 2012, nearly 20 years after the notion was first seriously

considered, more than half a decade after a proposed wording was first put

forward.

My goal in this paper is to give a short history of how this proposed

amendment came to be, about the influences that made it what it is. My primary

focus will be on the several previous concrete proposals published, but not put to

the people, as it is from these we can see how the current wording developed as a

careful compromise between the previous proposals.

Minister for Children and Youth Affairs, Francis Fitzgerald, said of her

forthcoming proposal in a speech to the Dáil on 28th June 2011, “the wording will

be along the lines of that proposed by the All Party Oireachtas Committee”2 which

reported in 2010, and of which she was a member. When the current wording was

finally published, she said she had worked “with the Attorney General to make the

transition from an Oireachtas Committee proposal, to a robust Constitutional

wording.”3

The Minister would contend that this has been successfully achieved, and

that the current proposal does reflect the substance of the All Party Committee

proposal, but I think that this is less than clear. The current proposal, I would

submit, steers a course between the extremes of two previous proposals, and

draws equally from both. Structurally and in terms of scope, it is hard to think that

the proposal that will shortly be put to the people can be said to be very close to

                                                                                                               *Assistant Professor of Law, Trinity College Dublin. 1 Dáil Éireann Debate, Vol. 736 No. 4 at 743. 28th June 2011. Second Stage Debate on the Twenty-Ninth Amendment to the Constitution (No 3) Bill 2011. 2 Ibid at 745. 3 Deaglán De Bréadún, “Wording of children's rights referendum is published,” The Irish Times, 19th September 2012, available at <http://www.irishtimes.com/newspaper/breaking/2012/0919/breaking5.html>.

2

the 2010 All Party Oireachtas Committee Proposal. It is as close, perhaps, to the

first concrete proposal put forward in 2007. The core differences are worth

examining, and help to illuminate the choices that have been made by government

in bring forward this proposal.

EARLY CALLS FOR CHANGE

So regularly are the sources of inspiration for this referendum invoked that

it is scarcely necessary to repeat them. I canvass a few of them briefly for context.

The impetus for this change is most frequently attributed to Ms Justice

Catherine McGuiness, acting as chair of the Kilkenny Incest Inquiry in 1993. She

suggested that the strong emphasis on the rights of the family in the Constitution,

may, consciously or unconsciously, cause people to give more value to the rights of

parents, at the expense of the rights of the child. The report of the enquiry called

for constitutional change to provide for a “specific and overt declaration of the

rights of born children.”4 The members of the Inquiry did not feel competent to

enumerate specific changes, but suggested that inspiration might be taken from

the UN Convention on the Rights of the Child, which Ireland had ratified in 1992,

but has never been incorporated into domestic law. The UN Convention has been

cited as a source of inspiration by many proponents of the idea of a children’s

rights amendment over the years.

The Constitutional Review Group of 1996 also recommended change, and

was more detailed in its recommendations. The Group canvassed the constitutional

rights of children recognised by the Courts, and recommended that Article 41 of

the Constitution be amended to include express reference to the rights of the child

that had theretofore been recognised by the Courts, and that were exclusive to the

child, such as the right to be reared with due regard for his or her welfare.5 The

Review Group also recommended several additions to the constitution modelled on

the UN Convention: the right to be named and registered at birth; the right to

know the identity of one’s birth parents; the right to be cared for by both parents,

insofar as is practicable; and an express obligation to treat the best interests of the

child as the paramount consideration in any actions relating to children.6

In addition, the Review Group suggested expanding the scope for State

intervention to cases where the rights of child suggested by the Review Group were

                                                                                                               4 “Kilkenny Incest Investigation,” (Government Publications Office, 1993) at 96; available at <http://lenus.ie/hse/bitstream/10147/46278/4/zkilkennyincestinvestigation.pdf>. 5 “Report of the Constitutional Review Group,” (Government Publications Office, 1996) at 328; this right was recognized by the Supreme Court in G v An Bord Uchtála [1980] IR 32. 6 Ibid at 328-329.

3

jeopardised, and advocated a broader set of reasons for intervention modelled on

Article 8(2) of the ECHR.7 Finally, it recommended that natural law language such

as “inalienable” and “imprescriptible” be removed from Articles 41 and 42, as it

served, more than anything else, to confuse.8

In 2006, the All Party Committee on the Constitution delivered its tenth

progress report, on the subject of the family. Remarkably, the Committee

managed to say nothing of note on the topic of Children’s Rights whatsoever,

merely stating that the some people thought the current constitutional protection

was adequate, whereas others disagreed. They also noted that change could be

achieved by way of replacement of Article 41 in its entirety, or merely by way of

addition. Nothing else of note came from the report.

Ultimately, even when the government decided to take action on this issue,

it took a very long time to finalise a wording for the amendment. There have been

three proposals before the one we are currently considering. The first was the 28th

Amendment to the Constitution Bill 2007, spearheaded by Brian Lenihan in his role

as Minister for Children. This was later postponed to allow the Oireachtas Joint

Committee on the Constitutional Amendment on Children to consider the issue. It

published its final report in February 2010, and a proposed wording was put

forward in that report. Though it was never produced in a Bill to Amend the

Constitution, it was reintroduced, in altered form, in 2011, by the Fianna

Fáil/Green Party Government. However, this 2011 draft was never published, and

one can only surmise an outline of its contents from media reports. In their own

way, each of these proposals has probably influenced the current wording.

STRUCTURAL APPROACH

Important to note that none of these proposals have proposed to do what

the Constitutional Review Group had suggested, and the 2006 Committee had

alluded to: amend Article 41. This leaves the current proposal in a somewhat

uncomfortable position; it has to reconcile the powerful rights rhetoric in Article

41 with new rights rhetoric in the proposed Article 42A. This leads to at least one

genuinely incoherent result: an inalienable right that has been made alienable.9

The Review Group also noted that the natural law language surrounding rights in

Articles 41 and 42 was problematic, and recommended its removal. None of the

                                                                                                               7 Ibid at 331; 337. 8 Ibid at 330-331; 336. 9 Prof. Gerry Whyte notes the inherent contradiction between the inalienability of the rights of the married family under Article 41 with the ability to alienate those rights through voluntary adoption under Article 42A.

4

proposals have attempted to do this either. Far from it, they have all replicated

the language of natural and imprescriptible rights in respect of children’s rights.10

The reason for this divergence from the Review Group’s recommendations is

relatively clear; amending Article 41 would be seen as reducing the potency of the

rights of parents. The Joint Committee, in a press release accompanying its Third

Report, noted that it was concerned that

parents in particular would be assured that their rightful authority and pivotal role in relation to their children would not be in any way undermined by the proposed amendment. The continued existence of Article 41 will provide this assurance.11

In its report, the All Party Committee further said that their proposed wording,

alongside the continued existence of Article 41, would provide “a better balance of

rights as between the State, the family and children.”12 Minister Fitzgerald has

made similar comments in respect of the current proposal.13 It is thought that

avoiding any direct alteration to Article 41 – even if that alteration simply reflects

a change that will take place in any event – is politically expedient.

The Children’s Rights Amendment currently proposed owes a great deal to

its predecessors, and is, broadly, a mixture of elements from the 2007 and 2010

proposal. However, in terms of structure and approach, it is almost identical to the

proposal put forward by Brian Lenihan in February 2007. The Twenty-Eighth

Amendment to the Constitution Bill 2007 is mirrored by the current proposal in all

salient aspects of its structure and approach to the reform. The 2007 proposal did

not repeal, alter or amend the majority of the current Article 42. Like the current

proposal, the only portion of the current Article 42 that would be altered was

Article 42.5, the provision that currently governs state intervention to supply the

place of parents. The rest of the changes, as in our current proposal, would be

implemented by way of a new, supplementary Article, Article 42A, leaving Article

42 largely intact.

                                                                                                               10 Article 42A.1 reads: “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.” 11 “Joint Committee on the Constitutional Amendment on Children publishes wording for the proposed constitutional amendment concerning the acknowledgement and protection of the rights of children” Available at: <http://www.oireachtas.ie/parliament/mediazone/pressreleases/name-1547-en.html>. 12 “Final Report of the Joint Committee on the Constitutional Amendment on Children,” (Government Publications Office, 2010) at 111. 13 For example, in the Dáil in 2011, the Minister offered assurances that her forthcoming proposal would not attempt to reduce rights of families in any way, and would seek to protect children through supporting the family. Dáil Éireann Debate, Vol. 736 No. 4 at 744.

5

This can be contrasted to the All-Party Committee Proposal of 2010. This

proposal did not suggest any new Article be inserted into the Constitution. Instead,

it proposed to radically alter the content and structure of the current Article 42.

The reform of Article 42 would be root and branch: the name of the Article would

change from “Education” to “Children”; much of the Article was to be deleted and

re-enacted in slightly different form; some parts, such as the provision of free

primary education and the right of parents to home-school their children, would be

retained and renumbered.

This was an interesting approach. However, it is easy to see why the

drafters of the current proposal eschewed it in favour of the approach adopted in

the 2007 bill. By replacing Article 42 wholesale, the amendment had to re-enact

and reaffirm the education provisions present in that Article, meaning that the

proposal, supposed to focus on the rights of the child, seemed to focus heavily on

education rights. There may have been some merit to the proposal insofar as it put

education to the fore; it stated the right to education as one of the rights of the

child, in a manner that was certainly clearer than the current Article 42. 14

However, the need to re-enact or slightly revise most of the current Article 42

would be as likely to distract from the issue of Children’s rights, and focus debate

on the constitutional position on education, which the government may not have

wanted to the fore. It also may have reopened the now largely resolved debate

about the scope of the children’s constitutional entitlements to education.15

A SHIFT IN CONTENT: STRICT LIABILITY AND INFORMATION COLLECTION AND EXCHANGE

The biggest difference between the 2007 Bill and the 2012 proposal comes

in the exclusion of two elements included in Article 42A.5 of the 2007 wording.

This section read:

1° Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law.

                                                                                                               14 When enumerating certain express rights of the Child in the proposed Article 42.2, the right to education was specifically listed. In the current Article 42, the right to education is not specifically enumerated, though it can be readily inferred. 15 There were many high profile cases in the late 1990s and 2000s testing the limits of the constitutional entitlement to education; see for example Sinnott v Minister for Education [2001] 2 IR 545; O’Carolan v Minister for Education [2005] IEHC 296; FN v Minister for Education [1995] 1 IR 409; TD v Minister for Education [2001] 4 IR 259; Conor O’Mahony, “The Right to Education and ‘Constitutionally Appropriate’ Provision,” (2006) 28 DULJ 422. It is plausible to think that the re-enactment and alteration of the constitutional status of education could have altered the equilibrium that had been reached in this area.

6

2° No provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age. 3° The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability.

The first of these provisions dealt with the perceived need to remove any

constitutional impediment to the collection and exchange of information about

whether children were at risk of sexual exploitation or abuse.

The second and third provision attempted to overturn, in a somewhat

drastic manner, the decision in CC v Ireland,16 saying that the statute rape offence

included in the Criminal Law (Amendment) Act 1935 was unconstitutional in

providing no defence of honest and reasonable mistake as to the age of the victim.

This judgment essentially made any serious offence that did not include a mens rea

requirement unconstitutional. Article 42A.5.2°of the 2007 proposal purported to

overturn this decision, allowing for strict and absolute liability offences. Subsection

3 ensured that the specific permission of such offences in respect of children would

not be taken to exclude by implication other circumstances where the State could

lawfully create such offences.

Though there may be compelling arguments to suggest that the reasoning in

the CC was flawed, or that it failed to take seriously the state interest in

protecting children,17 the 2007 proposal used a sledgehammer to crack a nut. It did

not limit the allowance of strict liability offences to statutory rape, or other sexual

offences. This provision seemed to allow any offence committed against or

concerning a child to be strict liability – from charging parents with school truancy,

to murder of a child. The sheer breadth of the proposed provision was striking.

These provisions are now long forgotten, and nothing like them can be seen

in the referendum to be put to the people. In this, the All Party Committee has

been highly influential. The committee did consider these issues, but did so

separately from the considerations of Children’s Rights in the strict sense. The

committee broke up the 2007 proposal into three parts, and reported back in

stages. The first report, in 2008, concerned the proposal to for the collection and

exchange of information about abuse; the second report, in 2009, dealt with the

creation of absolute and strict liability offences; the third and final report dealt

                                                                                                               16 [2006] 4 IR 1. 17 See the arguments outlined in David Prendergast, “The Constitutionality of Strict Liability in Criminal Law,” (2011) 33 DULJ 285.

7

with protecting the rights of children, and contained the 2010 proposal. Only the

third of these reports recommended any constitutional change.

In the first interim report, published in 2008, the Committee recommended

that the Oireachtas legislate for the vetting of those working with children and the

sharing of information in this respect, whilst having regard to the constitutional

rights of those affect by the law.18 Though not discussed, the natural implication of

the report is that no constitutional change was needed for this, and the 2007 draft

purported to enable something that was already constitutionally permissible.

In the second interim report, published in 2009, the Committee

recommended not pursuing an amendment such as the one published in 2007, but

instead proposed an array of legislative changes to strengthen the protection of

children in respect of sexual offences. Some of these changes would, the

committee felt, test the limits of constitutionality; for example, limiting the scope

of the defence of mistake as to age.19 The Committee suggested that such changes

could be subject to swift challenge, ideally, were the President amenable, by way

of Article 26 reference. The Committee’s preference was to work within, and test

the limits of, the constitutional boundaries. This report, it seems, was enough to

defer thoughts of constitutional reform of strict liability.

Given the disastrously broad wording of the 2007 proposal, it is hard to

bemoan this development. It also narrows the focus of the issue being put the

people in November; children’s rights stricto sensu, rather these ancillary issues,

form the core of the debate.

A SHIFT IN RIGHTS AND RHETORIC

One of the most surprising changes between the 2010 proposal and the

current one is that fact that it backed away, almost entirely, from the more potent

rhetoric of the earlier draft, retreating to the safety of the more usual rights

language found in the 2007 proposal. This is surprising because a substantial

portion of the argumentation on the “Yes” side of the referendum stresses the

rhetorical potency of having children’s rights expressly and affirmatively

recognised in the Constitution. This is seen as a core benefit, almost as much as

any legal changes that might be come about by the enactment of the proposal.

Indeed, Catherine McGuiness’ initial call for change in the area, so often cited by

                                                                                                               18 “First Interim Report of the Joint Committee on the Constitutional Amendment on Children,” (Government Publications Office, 2008) at 4. 19 “Second Interim Report of the Joint Committee on the Constitutional Amendment on Children,” (Government Publications Office, 2009) at 46.

8

those supporting and proposing the amendment, centred around a concern that

those involved in the Kilkenny Incest case might have, consciously or

unconsciously, been influenced by a perceived constitutional bias towards the

family. Surely the best way to oust this perception, and this conscious or

unconscious influence, is by using strong rhetoric. Catherine McGuinness herself, in

an article in the Irish Times, defended the current proposal against argument of

redundancy by citing the importance of stating our values in the Constitution.20

Minister Francis Fitzgerald has been keen to frame this amendment as a reflection

of the values of the Irish people. She stated in the Second Stage Dáil Debate on the

2012 Amendment Bill that “[t]he question facing us is simple. Do we believe that

the way children were treated in this State represents what we believe to be the

values, morals, and ethics of the Irish people?”21

The 2007 proposal laid out, in its proposed Article 42A.1, the right of

children in a somewhat terse form that is similar to those of other rights provisions

of the Constitution. It read: “The State acknowledges and affirms the natural and

imprescriptible rights of all children.” The natural and imprescriptible rights of the

child are indirectly recognised in the current Article 42.5, insofar as due regard

must be had those rights when the State is attempting to supply the place of the

parents. The 2007 draft restated that affirmation of rights in a more direct way,

though perhaps not a more potent one, as it did not give any indication of what the

State’s obligations were in respect of defence or vindication of these rights; it

merely acknowledged them.

Comparing this to the current proposal, which also creates an Article 42A.1

for this purpose, a broadly similar approach is chosen. It reads: “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.” The

2012 proposal goes further than the 2007 formula of mere recognition, mirroring

the language of Article 40.3’s protection of personal rights, and pledging the State

to protect and vindicate those rights as far as practicable. It offers a stronger,

more clearly justiciable, protection of rights than its 2007 predecessor.

This would not be worthy of comment, then, save for the fact that the 2010

proposal had taken a somewhat different path, which had not been followed in this

most recent proposal. In its proposed reformulation of Article 42, Article 42.1

                                                                                                               20 Catherine McGuniness, “Vote on children's rights a statement of our values,” The Irish Times, 9th October, 2012. 21 Dáil Éireann Debate, Thirty First Amendment to the Constitution Bill, Second Stage, Vol. 773 No. 5.

9

would and 2 would have given express protections to children’s rights. Article 42.1

would have read, in part:

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.

Article 42.2 would then provided further protection for these rights, and

enumerated some of these rights specifically.

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.

The difference between this elaborate formulation and the one ultimately

to be put to the people is, I think, striking. First, the rhetorical flourish of

cherishing all the children of the State equally, co-opted from the 1916

Proclamation, has no equivalent in the 2012 proposal. Secondly, though the

guarantee of natural and imprescriptible rights is substantially similar to that

ultimately put forward in 2012, one particular right is notably absent: the right for

children to have their welfare regarded as a primary consideration. This right was

not limited to particular sorts of proceedings or decisions; it presumably

guaranteed that the State would regard the welfare of children as a key factor in

any pertinent decision, though obviously not as the sole or decisive factor or

consideration.

Thirdly, it provided several enumerated and express rights. The right to

education was included as one of these, as this proposal would have repealed the

right to education currently found in Article 42. The other two rights were

relatively new. The right to such protection and care as is necessary for safety and

welfare would have given express constitutional recognition to the controversial

right to secure care and treatment first recognised by the courts in FN (a minor) v

Minister for Education,22 though it had the potential to go further than that right.

                                                                                                               22 [1995] 1 IR 409.

10

The right to the child’s voice to be heard would also have been a constitutional

innovation.

I think it is clear, comparing the language, that the rights of children

appear to be more strongly and comprehensively defended by the 2010 draft than

in the current proposal. The rhetorical flourish of cherishing all the children of the

State equally, combined with several additional substantive protections, gives the

appearance of the 2010 proposal doing more. The precise effect of the provisions

aside, given the importance of constitutional rhetoric to those who support the

children’s rights amendment, the shift evident here is surprising. The reason for

these changes, I think, relates to a concern that juridical side effects could result

from the rhetorical guarantees as well as the recognition of certain rights.

Change in Substantive Rights

Substantively, the child has lost two (express) rights in the current wording

that were recognised in the 2010 proposal. The first is the right to have their

welfare regarded as a core consideration in seemingly all decision-making. The

second is the right to such protection and care as necessary for their safety or

welfare. Relatedly, the entitlement for the voice of the child to be heard is not

afforded the status of a right, as it was under the 2010 draft, so the “right” is lost,

though the entitlement continues along similar lines.

Clearly the scope of the substantive rights was of concern successive

government. The exclusion of the welfare principle from constitutional status

means that the welfare of the child does not have to be regarded in all decisions in

the current proposal. This has the effect, alongside the limiting of the best

interests principle, of excluding certain State decision making generally and

particular proceedings –for example, immigration proceedings– from constitutional

obligation to consider the welfare of children.23 The exclusion of sufficient care

and protection eliminates concerns that the amendment would create socio-

economic entitlements, which was apparently a concern held by the former

Attorney General in relation to the 2010 proposal.

In the January 2011 draft, approved by the cabinet of the Fianna Fáil/Green

Party government, but never officially published, it appears that many of these

elements of the 2010 proposal had either been excised or rendered non-justiciable.

According to Dr Carol Coulter, writing in the Irish Time, the Attorney General Paul

                                                                                                               23 At least, the proposed amendment does not directly have this effect. It might be argued that a right of this sort might be one of the rights included in the more general protection. In any event, the existence of this right is now in the hands of the courts.

11

Gallagher raised concerns about several provisions of the All Party Committee

proposal, which led to a variety of changes.24 The commitment to the welfare of

children, it was thought, could open the door to the judicial enforcement of socio-

economic rights. Language of this sort was moved to Article 45, which is not

cognisable by the courts, alongside the commitment to cherish all the Children of

the State equally.25 Fergus Finlay criticised this undercutting of children’s rights.26

A similar rationale is likely behind the decision to exclude much of this

language from the current draft. A lingering concern that the effects of this

language would either be too great or too difficult to foresee may have influenced

the government to exclude these rights.

A Change in Rhetoric: Nation’s Children to Remain Uncherished

The rhetorical flourish of cherishing all the children of the State equally,

which would seem to have less significant legal effect, was also excised. Even if

the current proposal is passed, children will have to suffer on without

constitutionally-mandated State cherishing.

This element of the 2010 proposal met with controversy soon after it was

first mooted. Mr Justice Hardiman, speaking extrajudicially, noted that this

language was not, in its original context of the 1916 Proclamation, referring to

young people.27 It instead was poetically referring to all the people of Ireland as its

children, without regard to their age. This would not colour the interpretation of

the constitutional language, which obviously did refer to young people, but the

fact that the phrase’s origins were apparently not adverted to by the drafters

served to highlight its ambiguous nature. The fact that it was to be moved to

Article 45 in the 2011 proposal illustrates that there was also concerns about

unpredictable side effects in the event that this was a justiciable provision.

                                                                                                               24 Carol Coulter, “Cabinet agrees text for child amendment,” The Irish Times, January 14th 2011. 25 According to Dr Coulter, this portion of Article 45 would have read: “The State acknowledges that children, by reason of their physical and mental immaturity, need special safeguards and care, including appropriate legal protection, and pledges itself to safeguard with special care the rights and interests of children. “The State shall cherish all the children of the State equally.” Ibid. 26 Mr Finlay said of the movement of certain rights to Article 45: “If it is non-judiciable then it isn’t a right.” Jamie Smyth, “Proposed Changes to Children’s Rights Criticised,” The Irish Times, 18th January 2011. 27 “1916 wording on children 'misunderstood', says judge,” The Irish Times, Monday, April 12, 2010. He cited in support of his point the fact that the proclamation says, in its closing paragraph, that “In this supreme hour the Irish nation must, by its valour and discipline, and by the readiness of its children to sacrifice themselves for the common good, prove itself worthy of the august destiny to which it is called.” One can reasonably infer that it was not young people exclusively or even primarily that are called to sacrifice themselves for the common good.

12

Minister Fitzgerald said, in a committee stage debate, that this language

was not chosen as the language of protecting the natural and imprescriptible rights

of children was preferred: “[t]he phrase "cherish" does not have as strong a legal

meaning as the wording I have chosen, on which I was advised…”28 This does not

fully answer the point, as the language of cherishing was designed to compliment,

rather than be an alternative to, the wording she chose; the 2010 proposal also

affirmed and protected natural and imprescriptible rights of children. It cherished

those children as well as, not instead of, protect their rights. Perhaps the more

salient concern is that lack of strong meaning is a symptom of general ambiguity,

and the effects of the provision might be difficult or impossible to foresee. It

would clearly have rhetorical clout, and expressly secure equality between

children, but it might have broader consequences that could not be predicted.

Perhaps it also fair to say that this rhetorical flourish did not fit in with the

language of rights in the Constitution. The current proposal, with the language of

natural and imprescriptible rights, and the qualification of in so far as is

practicable, is at home next to the language of Articles 40-44. The more colourful

language of cherishing all the children of State equally would not so readily blend

in with the language of nearby provisions.

However, I think it is perhaps a shame that we are so loath to take chances

on constitutional language that has rhetorical force. It is not as if the Constitution

is without rhetorical flourish; the Preamble is largely composed of such rhetoric,

and the provisions of Article 44.1, that the State should pay homage to public

worship and hold the name of God in reverence, is unlikely to have direct juridical

consequences. The former provision has had minimal impact; the latter provision

have had interpretative influence, helping to colour the substantive language of

the Constitution, offering a lens through which vague constitutional provisions

might be rendered somewhat less opaque.29 It does not seem to me that this is

something to fear. Courts do not obsessively give actionable meaning to

constitutional language that does not lend itself to this, and we should not forget

that constitutions are important for more than just that language which has

practical impact.

Martin Margulies, writing in a different context, noted that “[s]uccessful

constitutions, whether written or unwritten, function on two levels: as working

                                                                                                               28 Dáil Éireann Debate, Thirty-First Amendment of the Constitution (Children) Bill 2012, Committee Stage, Thursday 27th September, 2012. 29 On the Preamble, see Gerard Hogan and Gerry Whyte, “JM Kelly: The Irish Constitution,” (4th ed, Butterworths, 2003) at 53-57; on Article 44.1, see the judgment of Walsh J in Quinn’s Supermarket’s v Attorney General [1972] IR 1.

13

instruments of government, and, on a more mystical plane, as national symbols

that unify the society through their emotive power.”30 Constitutions are not just

legal frameworks, but statements of the values that matter to countries and their

people – as Vicki Jackson puts it, an “expression of national particularity.”31 In this

referendum, more than most, the statement of values, the statement of national

ideals, is at least as important to most proponents as the substantive constitutional

changes. If ever there was a time to use more emotive, more colourful

constitutional language, this was it. It seems a shame that we have limited

ourselves, in our process of constitutional change, to safe but somewhat sterile

formulations of rights and values.

BEST INTERESTS, WELFARE, AND THE VOICE OF THE CHILD

The “constitutionalisation” of the best interests of the child has been a

staple of all three proposals. The best interests principle is a central feature of the

UN Convention, with Article 3.1 providing a sweeping protection of it.32

The three proposals differ in their approach to this, and the differences are

interesting. In the 2007 draft, the proposed Article 42A.4 stated that:

Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to any child, the court shall endeavour to secure the best interests of the child.

This was quite a weak way to elevate the best interests principle to a

constitutional level. It applied only to adoption, custody, guardianship or access (a

separate requirement that the best interests of the child should regarded in

involuntary adoption was included in Article 42A.2.2°). It also had the unusual

formulation that “provision may be made by law,” which was used in several

provisions of the 2007 draft. This was an odd formulation, as it seemed to do very

little. Provision could always be made by law to set this goal for courts considering

such cases. The amendment proposal seemed merely to permit that which was

constitutional, and went no further. After its passage, provision might not have

been made by law to that effect, and the State would not have been in

constitutional error. Similarly, there would be little reason to think that, such

                                                                                                               30 Martin B. Margulies, “Standards of Review and State Action under the Irish Constitution” (2002) 37 Ir. Jur. (ns) 23 at 30 at 54. 31 Vicki Jackson, “Being Proportionate About Proportionality” 21 Const. Comment 803 (2004) at 858. 32 “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be of paramount consideration.”

14

provision being made by law, the constitutional permission for its existence would

change in any way the scope or potency of that statutory provision.

The 2010 proposal, on the other hand, went further. It enshrined the best

interests principle, in similar but perhaps stronger terms to the 2007 proposal, but

also supplemented this with an independent right to have child welfare regarded in

decision making. It’s proposed Article 41.1.3° read:

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.

Though the sorts of proceedings in which the principle would apply is similar to the

2007 proposal, it will be noted that the best interests principle is given direct

constitutional status in the 2010 draft. This removes the need for enabling

legislation, and very clearly gives the principle independent constitutional status,

and presumably independent constitutional meaning. This directly enshrined

principle would have been more likely to alter the consideration of best interests

than the 2007 proposal to enable legislation.33

In addition to this, there was a more general right to have the welfare of

children regarded. Article 42.1.2° the right of children to have “their welfare

regarded as a primary consideration” was expressly included amongst the natural

and imprescriptible rights of the child. The committee called this a “general

principle,”34 and this was likely included to satisfy those who submitted to the

Committee to bemoan insufficient strength of the best interests principle in the

2007 draft. Though the precise boundaries of this right were, perhaps, unclear, it

seemed apparent this was a process right whereby children could claim to have

been given less than their constitutional due in the event that their welfare was

not regarded in almost any state decision-making process where their interests

would be substantially affected. In essence, the scope of the 2010 proposal was

far broader than the 2007 draft by reason of this clause.

Looking at the current proposal, it is clear that the government has hedged

between these two previous positions. The current proposal would create a new

Article 42A.4.1°, which would provide:

                                                                                                               33 An argument of this sort has been put forward by Conor O’Mahony in the Examiner. Conor O’Mahony, “Having regard for our children,” The Examiner, 24th September 2012. Available at <http://www.irishexaminer.com/analysis/having-regard-for-our-children-208565.html>. 34 “Final Report of the Joint Committee on the Constitutional Amendment on Children,” (Government Publications Office, 2010) at 98.

15

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.

There are several noteworthy points of comparison. The first is that, like the 2007

proposal, the current draft provides for the enshrining of the best interests

principle in law, rather than the independent recognition of the constitutional

principle. This seems, on its face, like a weaker protection of the principle than

the 2010 draft. However, it is clearly stronger than the 2007 variant insofar as it

uses the imperative language of “shall” rather than the permissive language of

“may” in respect of the Oireachtas legislating for this principle.

The scope of the best interests principle seems roughly equivalent in the

current draft compared to the 2010 version. However, significantly, the

freestanding right to have the welfare of children regarded as a primary

consideration does not feature in the current draft. This language obviously offered

the possibility for demanding the consideration of children’s interests in a range of

contexts that will not be possible under the current version. The extent to which

this amendment compels the State to be cognisant of children’s interests is,

therefore, more limited than the previous version, though stronger than the first

draft of the proposal in 2007.

A related element of the amendment proposals is provision for the child’s

voice to be heard in procedures affecting the child. The 2007 proposal did not

contain any provision in this respect. The 2010 proposal introduced this concept in

Article 42.2(iii), which recognised “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.”

This has been retained in the current proposal, but has undergone some

change. Article 42A.4.2° reads:

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.

In this instance, as with best interests, the protection is weaker in form and less

extensive in scope in the current version. It is no longer a right; instead, the

16

Oireachtas is obliged to provide for this by law. Moreover, the right to be heard is

limited to the situations listed in Article 42A.4.1°; that is, adoption, guardianship,

custody, access, and proceedings where the State is intervening in the family in

the interests of the common good. This is obviously significantly more

circumscribed than the right under the previous draft, where any judicial or

administrative proceedings affecting the child were included.

THRESHOLD OF INTERVENTION

The current Article 42.5, to be deleted and replaced under the current

proposal, has always been the focal point of amendment proposals. It reads:

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.

Other papers will provide extensive treatment of this issue; suffice it to say, that

all previous proposals, as well as the current one, have attempted to alter, to

some degree, the content of Article 42.5 and the threshold for State intervention

in the interests of protecting the welfare of children.

In the 2007 Bill, it was proposed to delete Article 42.5, and replace it with

a new Article 42A.2:

1° In exceptional cases, where the parents of any child for physical or moral reasons fail in their duty towards such child, 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. 2° Provision may be made by law for the adoption of a 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.

The first sub-section did no more than replace, almost verbatim, the text of Article

42.5. Even in context of other recognition of children’s rights, it is difficult to

suggest that any actual change in the threshold for State intervention would have

followed the enactment of this new wording. The second sub-section, in terms

similar to the current draft, specifically and separately provides for adoption in the

case of failure for a prescribed period of time. This proposal, in reality, did little

to change what would be required for State intervention outside of the context of

17

adoption. Perhaps the second clause might have liberalised, in some small way, the

adoption of children in the event of parental failure, as it specifically authorised

the settling of a period of time by law, but the extent and severity of the failure

required would still have to be one of the very high magnitude demanded by

Article 42.5, re-enshrined in Article 42A.2.1°.

The 2010 Joint Committee proposal was more radical in its proposal. It

would have enacted a new Article 42.4 and 5, which would have read as follows:

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.

This proposed Article 42.4 differed significantly from the current Article

42.5. First, the language of duty was removed; failure of parental responsibility

was its replacement. Moreover, the failure of responsibility could be of any sort,

rather than the limitations of physical and moral reasons, which are present in the

current Article 42.5. In addition, the qualification that the power should only be

used in “exceptional cases” was removed, and this standard applies regardless of

the marital status of the parents. The effect of this would clearly have been to

lower – perhaps quite drastically – the threshold for intervention. The State could

now intervene in “non-exceptional” cases, where the failure was one of a less

strong notion of parental responsibility. However, how courts might have

interpreted the notion of responsibility is far from clear, and the precise level of

State intervention envisaged by this draft is difficult to make out.

Another change that this proposal would have effected was a move from

state intervention “by appropriate means” to intervention “by proportionate

means, as shall be regulated by law.” These means, in the current Article 42.5 may

only be used to “supply” the place of the parents. The 2010 proposal permitted the

state to both “supplement” and “supply” the place of the parents. The concept of

“supplementing” appeared to envisage a situation where the state, while

preserving the parent-child relationship may intervene in an indirect way to

facilitate parents in the discharge of their responsibilities. It is unclear to what

extent that was not part of “supplying” the place of parents. The proposed

18

replacement Article 42.5 also copied, mutatis mutandi,35 the 2007 proposal for

Article 42A.2.2° in providing for adoption in the instance of a parental failure for a

period of time prescribed by law.

Looking to the 2012 proposal, it is clear that the government has hedged

between the two extremes that the 2007 and 2010 represented, drawing on

elements of each.

The relevant section is Article 42A.2, which would replace the current

Article 42.5, which would be repealed. It reads:

1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such an 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, endeavor to supply the place of the parents, but always with regard to the natural and imprescriptible rights of the child. 2° Provision may be made by law for the adoption of a 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.

First, the extent of the erosion of the threshold has been significantly

scaled back from the 2010 proposal. The phrase “exceptional circumstances” has

been retained. The notion of failure of duty had also been retained, as opposed to

the perhaps less stringent language of failure of responsibility. The idea of

supplementing the role of parents has not been carried over; supplying the place of

the parents is retained from the current Article 42.5.

On the other hand, some influence of the 2010 proposal can be seen in the

proposed wording. The removal of failure for physical and moral reasons broadens,

at least in principle, the categories of failure that could be regarded for the

purposes of intervention. The notion of intervention by proportionate means

provided by law has survived. The standard of intervention being expressly neutral

as to marital status was also an innovation of the 2010 proposal. In these respects,

it is a greater departure from the language of Article 42.5 than the 2007 draft. It

steers a course between those two proposals, in an attempt to balance the

perceived need for changes in the State to intervene with the need not to give the

State too broad a power. It attempts to avoid, seemingly successfully, the two

extremes of its predecessors.

                                                                                                               35 In this instance, that which needed to be changed was the replacement failure of duty with failure of responsibility, which mirrored the replacement of that term in the other relevant Article.

19

Professor William Duncan, quoted in the Report of the Constitutional

Review Group, succinctly noted the problem faced by a proposal of this sort: “The

problem seems to be essentially that of achieving a legal balance which will offer

security and a measure of equality to individual family members in a manner which

does not devalue or endanger the family as an institution.”36 The current proposal

perhaps achieves that balance more successfully that those that came before.

CONCLUSION

I think the extent to which the Minister for Children and Youth Affairs has

resiled from the work of the 2010 committee is surprising. The Minister would, I

think, disagree with my conclusion, and I leave it to the reader to make up their

own mind. I also do not intend this necessarily to be a criticism: some of these

departures are probably for the better.

Minister Fitzgerald, speaking in the Dáil, criticised the 2011 proposal put

forward by Junior Minister Andrews, as it did not “adequately reflect the good

work done by the All Party Oireachtas Committee.”37 In light of this attitude, one

might have expected her proposal to bear closer resemblance to the 2010 proposal

than is ultimately the case. Deputy Ó Caoláin, who had also been a member of the

Committee, expressed some disappointment in the Dáil debates on the current Bill

about several key differences between the proposals, though he supported the

proposal overall. He tabled several of amendments at the committee stage in the

Dáil attempted to restore elements of the 2010 wording.38

However, one could not accuse the government of abandoning all-party

consensus to go their own way; this proposal has inherited a lot from its

predecessors. As we look back, amendment is as close a cousin of the 2007 draft

than the 2010 one. In the context of her membership of the 2010 committee, the

Minister undertook a detailed and extensive examination of the 2007 proposal.

Knowing its strengths and its weaknesses, and the Committee chose to go in a

different direction, but this is not the direction the Minister has chosen for the

final proposal. The ambition and scope of the 2010 proposal, that set it apart from

the 2007 draft, is lacking. On the other hand, the proposal ultimately put to the

people is perhaps more balanced, insofar as it tries to take the most polished parts

of both proposals and combine them.

                                                                                                               36 Report of the Constitutional Review Group,” (Government Publications Office, 1996) at 323. 37 Dáil Éireann Debate, Vol. 736 No. 4 at 745-746, 28th June 2011. 38 In particular, he wished to return the word “equally” to the amendment, and expand the scope of the best interests and voice of the child provision. The proposals tabled, and ultimately defeated, are available at: <http://www.oireachtas.ie/documents/bills28/bills/2012/7812/b7812d-dcn1.pdf>.

20

The Minister has said repeatedly that that both she and joint committee

placed a very high value on consensus.39 This is something that has clearly been

achieved given the broad support expressed for the current proposal. The price of

this consensus, however, has been the more ambitious portions of the All Party

Committee Proposal. We will only truly know the character of this referendum by

its effects, if it is passed by the people and is used by the courts; whether this was

a price worth paying, only time will tell.

                                                                                                               39 The Minister expressed this view in the Dáil; Vol. 736 No. 4 at at 747. She and the Taoiseach also stress the need for consensus at the announcement of the new wording. Deaglán De Bréadún, “Wording of children's rights referendum is published,” The Irish Times, 19th September 2012, available at <http://www.irishtimes.com/newspaper/breaking/2012/0919/breaking5.html>.

21

APPENDIX

2007 Proposal Article 42A – Children

1. The State acknowledges and affirms the natural and imprescriptible rights of all children. 2. 1° In exceptional cases, where the parents of any child for physical or moral reasons fail in their duty towards such child, 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. 2° Provision may be made by law for the adoption of a 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 may be made by law for the voluntary placement for adoption and the adoption of any child. 4. Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child. 5. 1° Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law.

2° No provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age. 3° The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability.

2010 Proposal

Article 42 – Children 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.

22

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. 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. 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.