THE CHILD AND
THE IRISH
CONSTITUTION
CONTENTS
Introduction
4
I
Implied Constitutional Rights of the Child
6
The Preamble
6
Citizenship
7
Article 38 and the Right to a Fair Trial
7
Article 40 and Personal Rights
9
Conclusion
10
Express Constitutional Rights of the Child
11
Article 41 and the Family
11
Article 42 and Education
12
Constitutional Limitations on the Rights of the Child
14
Family and Parental Autonomy
14
II
III
The Interaction Between the Rights of the Child and the Rights
of the Family
14
The Subsidiary Role of the State
19
Exceptional Circumstances and State Intervention
20
Comparison with the Rights of Children of Marital and
Non-Marital Children
23
Conclusions
IV
Recommendations for Reform
26
Deletion of Article 42.5
27
Express Recognition of the Constitutional Rights of the Child
27
The Nature of an Express Constitutional Right of the Child
31
Paramountcy
34
Guarantee of the Rights of the Child
37
Wording and the Irish Text
39
2
V Conclusion
41
Appendix 1
Twenty-eighth Amendment of the Constitution Bill 2007
43
Appendix 2
Recommendations of the Constitution Review Group in Respect of
The Family and Children
45
Appendix 3
Section 28 of the South African Constitution
3
47
THE CHILD AND THE IRISH
CONSTITUTION
An article by article analysis of the Constitution demonstrates that the child is seldom
expressly referred to in the text. In fact children are only expressly referred to in
Articles 41 and 42, and even at that these references are consequential or subject to
other constitutional personas i.e. the State or parents. It would appear that the only
express constitutional right a child enjoys is that of a minimum standard of
education,1 although arguably it is for the State to invoke this provision. It is noted
that Article 42.5 refers to the “natural and imprescriptible” rights of the child, but this
provision only operates where parents have failed in their duty towards their children.
Notwithstanding this, children enjoy other constitutional protections as citizens of this
State. The Supreme Court in Re Article 26 and the Adoption Bill 1987 held that a
child is entitled, where appropriate, to invoke Articles 40 to 44:
“The rights of a child who is a member of a family are not confined to those
identified in Articles 41 and 42 but are also rights referred to in Articles 40, 43
and 44.”2
Moreover, Article 40 sets out a general guarantee to protect fundamental personal
rights. The courts have affirmed that many of the most important rights of the child –
including the right to have his or her welfare taken into account as a key priority in
proceedings – derive from this Article. It should be noted, however, that Article 40.3
only obliges the State to safeguard the unspecified ‘personal rights’ of the citizen.
The vagueness of this definition creates the possibility that the courts will read rights
into, or out of, this provision. It is thus perhaps too imprecise to be regarded as a
reliably consistent constitutional commitment to the rights of the child.
1
2
Article 42.3.2°.
Re Article 26 and the Adoption Bill 1987 [1989] I.R. 656, at 662.
4
This submission shall first analyse the indirect constitutional rights of the child.
These provisions do not expressly refer to the child, but, as a citizen of this State, the
child is entitled to rely on these articles.
It is then proposed to examine the
constitutional provisions that are directly referable to the child. As shall become
clear, both the express and indirect rights of a child fail to adequately account for the
special position of the child in our society. In fact most of these rights are not directly
applicable, but instead operate as a consequence to another event. Furthermore, an
examination of the constitutional limitations on the rights of the child shall illustrate
the subservient position of the child in the Constitution. On foot of this analysis one
could cogently argue that children do not enjoy the benefit of constitutional rights by
virtue of the fact that they are constantly undermined by the rights of other
constitutional personae, and even if such obstacles can be overcome it is difficult to
imagine the circumstances within which the rights of a child may be vindicated owing
to the fact that their function has been so narrowly construed so as to only operate in
exceptional circumstances.
In light of this, certain amendments shall be
recommended in the final part of this submission. It is hoped that these suggestions
will stimulate debate in this area and be considered in conjunction with the 2007 Bill
so as to ensure an informed, reasoned and comprehensive debate on this all important
topic.
5
I:
IMPLIED CONSTITUTIONAL RIGHTS OF THE
CHILD
This section shall examine some of the constitutional provisions that implicitly apply
to children. Such provisions tend to be constructed in broad terms, thereby raising the
question as to whether they provide adequate and definitive protection to the welfare
and interests of the child.
The Preamble
It should first be noted that the Preamble to the Constitution commits the State to the
pursuit of a number of goals, including, inter alia, the ‘promot[ion] of the common
good’, the protection of ‘the dignity and freedom of the individual’, and the
attainment of ‘true social order’. Relied on by the courts in a series of cases, these
objectives could potentially apply to cases concerning the rights and interests of
children. In the case of A. v. Governor of Arbour Hill,3 wherein the Applicant sought
to be released from imprisonment on the grounds that the offence of unlawful carnal
knowledge under s.1 of the Criminal Law Act, 1935 of which he had been convicted,
had subsequently been struck down, Murray C.J. in justifying his decision to refuse
the application for release relied, in part, on the Preamble’s desirous notion of ‘true
social order’.
Nonetheless the Preamble’s references to ‘the common good’, ‘dignity and freedom’,
‘Prudence, Justice and Charity’, and ‘true social order’ are so vague and indeterminate
that it is difficult to predict the manner in which they may be interpreted in particular
cases. Their generality means that in any individual case “they add little to the more
precise terms of the relevant Articles”4 in question. It is thus impossible to conclude
whether they might have a positive or negative impact on the constitutional position
of the child. As Hogan and Whyte have noted, from the point of view of the citizen
3
4
[2006] 4 I.R. 88.
A.G. v. Southern Industrial Trust (1960) 94 ILTR 161, at 175.
6
(or child) seeking to rely on the provisions of the Preamble they “can be as easily used
against them as in their favour”.5
Citizenship
Article 2 sets out the entitlement of every person born on the island of Ireland to Irish
citizenship. The language of the text thus dictates that every child born in the
Republic of Ireland, or in Northern Ireland, is entitled to claim Irish citizenship, and
all the privileges, duties and rights entailed therein. This is clearly an important right
for the child, as citizenship is a prerequisite to the enjoyment of certain rights, such as,
for example, the right to obtain an Irish passport.6
This has been qualified by Article 9.2.1° however, which provides that a child born in
the island of Ireland will not automatically be entitled to citizenship if he or she does
not have “at least one parent who is an Irish citizen or entitled to be an Irish citizen”.7
This restriction only applies to children born after 1 January 2005, at which date the
Irish Nationality and Citizenship Act 2004 came into force.
This Act bestows
citizenship on those children whose parents were resident in Ireland for three of the
four years before birth, thereby demonstrating a genuine link to the State.
Article 38 and the Right to a Fair Trial
Article 38.1 provides that “no person shall be tried on any criminal charge save in due
course of law”. This has been held by the courts to create a constitutional right to a
fair trial which equally applies to children. Therefore, in cases where a child is
accused of a crime he or she shall receive the same constitutional protections as any
other citizen.
That said however, in cases where a child is a victim of an offence, Article 38 might
be seen to create problems from a child protection perspective. As the constitutional
source of the various procedural protections to which an accused is entitled, this
5
Hogan & Whyte, Kelly: The Irish Constitution (4th ed., Butterworths, 2003), at 56.
The State (M) v. A.G. [1979] I.R. 73.
7
This provision was inserted by way of referendum on the 24 th day of June, 2004 in light of the
Supreme Court decision in the case of A.O. & D.L. v. Minister for Justice [2003] 1 I.R. 1.
6
7
Article can sometimes be perceived as a limitation on the ability of the State to
vindicate the interests of a victim of an alleged crime. This opinion was notably
voiced by media commentators in respect of the decisions in C.C. v. Ireland8 and A. v.
Governor of Arbour Hill Prison.9 In the case of C.C. the Supreme Court deemed the
strict liability offence of unlawful carnal knowledge of a girl under 15 years of age,
pursuant to section 1(1) of the Criminal Law (Amendment) Act 1935, to be
unconstitutional. On foot of that decision the case of A. concerned a habeas corpus
application on the basis that the Applicant was been imprisoned on foot of an
unconstitutional offence. These cases sparked a mass public debate which, amongst
other things, called for a constitutional amendment to expressly recognise the rights of
the child.
There are a number of difficulties with seeking to invoke such an amendment so as to
prevent the recurrence of similar cases. First it is salutary to note that in a trial
situation the case is between the accused and the State, not the victim. Therefore the
individual rights of the victim, or any amendment thereto, may not affect the course of
a trial.
Secondly, it is important to realise that the Supreme Court in C.C. did take into
account the rights of the child as “a legitimate end to be pursued by appropriate
means”. The interest of the State in child protection was thus already a factor in the
Court’s conclusion in this case. However, the court held that, despite this objective,
the infringement of the accused’s rights was not justified. As Hardiman J. noted, the
consequence of section 1(1) was that an individual who reasonably believed that a girl
was not under the age of 15 would have their constitutional rights reduced to nought
on the basis of a general social interest in deterring underage intercourse. A morally
blameless individual would thus have their constitutional rights sacrificed on behalf of
a social policy. The key problem with any attempt to restore a strict liability regime is
that it is so offensive to our existing constitutional conception of the rule of law that it
is almost impossible to justify. It is thought that a specific constitutional recognition
of the importance of child protection would not alter the outcome of the case because,
as already stated this was a factor to which the court had regard.
8
9
[2006] 4 I.R. 1.
[2006] 4 I.R. 88.
8
Moreover, even if the interests of the child were to be given constitutional status so as
to be taken into account in the course of a criminal trial where the victim is a child, an
argument could be made that the strict liability regime itself actually offends against
the rights of any accused who is also a child. It is arguable that children, by virtue of
their greater exposure to, and interaction with fellow children, are more likely to be at
risk of unwittingly committing the offence of unlawful carnal knowledge. A strict
liability regime therefore would criminalise those children who have consensual
sexual intercourse with other children. Therefore a constitutional amendment seeking
to safeguard the rights of children may not provide a solution to a C.C. situation.
Article 40 and Personal Rights
This Article guarantees a number of important fundamental rights, including the right
to equal treatment, the right to life, the right to liberty, freedom of expression,
freedom of association and assembly, and the inviolability of the dwelling place. It
also commits the State to the protection of the ‘personal rights’ of the citizen, an
open-textured formulation which has been interpreted by the courts to include rights
which are otherwise not specified in the Constitution, commonly referred to in legal
parlance as unenumerated rights.
Although none of the various elements of Article 40 make specific reference to the
position of the child, some attempts have been made to identify the rights of the child
under the Article 40.3 guarantee to protect the “personal rights of the citizen from
unjust attack”. O’Higgins C.J. in G. v. An Bord Uchtála found, for example, that:
“The child has the right to be fed and to live, to be reared and educated, to
have the opportunity of working and of realising his or her full personality and
dignity as a human being.”10
Finlay-Geoghegan J. expressed the view that:
10
[1980] I.R. 32, at 56.
9
“[T]he right of a child to have decisions in relation to guardianship, custody or
upbringing, taken in the interests of his/her welfare is a personal right of the
child within the meaning of Article 40.3 and therefore one which the State
pledges to vindicate as far as practicable.”11
MacMenamin J. applied this right in the ‘Baby Ann’12 case in reaching the decision to
grant custody of the child in question to her prospective adopters, rather than her
natural parents. However, this decision was reversed on appeal to the Supreme Court
which favoured the more traditional approach in determining that the interests and
welfare of a child are best protected within the child’s constitutional family.
Conclusion
As is evident from the foregoing the broad terms of the Constitution are capable of
incorporating the interests of the child, but it is equally clear that each such reference
is capable of being overruled by another provision. These references lack the clarity
and certainty required to definitively state that our Constitution does adequately cater
for the interests of children. As shall become imminently clear the following analysis
of the express constitutional rights of the child does little to appease this opinion.
11
12
F.N v. C.O. [2004] 4 I.R. 311, at 323.
N. v. Health Service Executive [2006] 4 I.R. 374.
10
II:
EXPRESS CONSTITUTIONAL RIGHTS OF THE
CHILD
This section examines the constitutional provisions directly referable to the child and
his or her upbringing. As shall become evident, the child in a constitutional context is
only expressly referred to in relation to other constitutional personae, most notably
parents and the family unit, with the State occupying a subsidiary role.
As a
supplement to this section, the subsequent section shall demonstrate the truly
subservient role which children’s rights currently engage in the Irish Constitution by
virtue of the limitations and restrictions contained therein.
Article 41 and the Family
Article 41 concerns the family based on marriage.
Although the only express
reference to a child in this Article is in relation to the requirement to make proper
provision upon divorce, it is implicit that as a member of a constitutional family the
child does benefit from consequential rights. Finlay C.J., relying on Articles 41 and
42 stated that:
“The infant, being the child of married parents, now legitimised, has … rights
under the Constitution as a member of a family, which are
(a) to belong to a unit group possessing inalienable and imprescriptible
rights antecedent and superior to all positive law;
(b) to protection by the State of the family to which it belongs, and
(c) to be educated by the family and to be provided by its parents with
religious, moral, intellectual, physical and social education.”13
Indeed the child of a non-marital family enjoys the same rights, as is evident from the
dicta of Gavan Duffy P. in Re M. wherein he confirmed that a child born outside
marriage “has the same ‘natural and imprescriptible rights’ as a child born within
13
In re J.H. [1985] I.R. 375, at 394.
11
wedlock”.14 However, a child does not enjoy the right to be a member of a family
solely by virtue of his or her birth to his or her parents, as in the jurisprudence of the
European Court of Human Rights in interpreting the European Convention on Human
Rights.15 Instead, under Irish jurisprudence a child only becomes a member of a
family if his or her natural parents are married to one another. There are various
concomitant effects arising from this mode of thinking which most notably arise in the
context of adoption. The recent Supreme Court decision in the ‘Baby Ann’ case is
demonstrative of the fact that in the eyes of the Irish courts the welfare and best
interests of a child are best served by placing the child within a constitutional family
which consists of parties who may well be strangers to the child, rather than allowing
the child remain in the custody of parties who have acted in loco parentis for the
majority of the child’s life. It is difficult to decipher what constitutional rights, if any,
of the child are being vindicated and protected in such a scenario. Instead it would
appear to be bolstering the rights of the natural parents, which may well be contrary to
the best interests of the child in question. It is pertinent to remember that a natural
parent’s right to his or her child may not always accord with the child’s right to have
his or her welfare protected.
Article 42 and Education
Article 42 deals with the right to education, although it is true to say that it has more
to do with the Family, thus almost acting as an addendum to Article 41.
The
constitutional concept of education is broader than scholastic education and includes
the general upbringing of the child which is a duty bestowed upon parents with the
State acting in a subordinate role. Although the State is obliged to provide for free
primary education, Article 42 also acknowledges the primacy of the Family as an
educational provider. Article 42.3.1° further specifies that the State cannot oblige
parents to send their children to a particular school, or type of school “in violation of
their conscience and lawful preference”.
14
[1946] I.R. 334, at 344. This was repeated by the Supreme Court in State(Nicolaou) v. An Bord
Uchtála [1966] I.R. 567.
15
Keegan v. Ireland (1994) 18 E.H.R.R. 342.
12
Education has been interpreted broadly by the courts to include forms of
developmental training beyond those involved in traditional academic schooling. This
Article was thus relied on in relation to claims by children with disabilities that the
State was making inadequate provision for their educational welfare. The utility of
this right was, however, arguably limited by the refusal of the Supreme Court in
Sinnott16 and T.D.17 to compel legislative and executive expenditure on the
enforcement of this socio-economic entitlement.
16
17
Sinnott v. Minister for Education [2001] 2 I.R. 545.
T.D. v. Minister for Education [2001] 4 I.R. 259.
13
III: CONSTITUTIONAL LIMITATIONS ON THE
RIGHTS OF THE CHILD
This section shall examine the limitations imposed by the Constitution itself on the
exercise of the rights of a child.
The analysis thus far has demonstrated that
children’s rights play a minor role at best within the Irish Constitution. The following
examination shall demonstrate that when considered in conjunction with other
constitutional rights, the rights of the child occupy a subservient role within the
Constitution as it currently stands.
Family and Parental autonomy
The Constitution’s protection of the notion of parental or familial autonomy has the
potential to produce sub-optimal welfare outcomes for the child members of such
units. It is submitted that the constitutional portrayal of the family as an autonomous
unit, immune from everyday State intervention, adversely impacts on the protection of
the rights of the child.
Articles 41 and 42 of the Constitution demonstrate a strong commitment to the
conception of the family as an independent decision-making body. The family is
described as the “primary educator” of children, its significance assured by the
Constitution’s depiction of it as a “moral institution possessing inalienable and
imprescriptible rights”.
As the “natural primary and fundamental unit group of
society”, it is thus heavily protected from State interference.
The Interaction Between the Rights of the Child and the Rights of the Family
It is submitted that at the crux of any proposed amendment in relation to the rights of
the child it is necessary to contend with the issues arising from the current interaction
between the rights of the family unit and those individuals within it. Article 41 has
been held by the courts to protect the autonomy of the family as an institution.
Costello J. concluded in Murray v. Ireland that:
14
“The rights in Article 41.1.1 are those which can be properly said to belong to
the institution itself as distinct from the personal rights which each individual
member might enjoy by virtue of membership of the family.”18
Kenny J. had similarly held in Ryan v. Attorney General that Article 41 addressed the
question of the constitutional protection of the family “in its constitution and
authority”.19 This Article thus appears to govern the relationship between the family
unit and external actors, such as the State. Article 42, on the other hand, addresses the
distribution of authority within the family unit, vesting primary responsibility for the
education of the child in its parents.
It is clear therefore that the family’s right to autonomy from State interference is
established in strident and expansive terms in the constitutional text. The courts have,
however, emphasised that these rights, despite being described as imprescriptible and
inalienable, are not absolute.20 The Constitution’s commitment to the independence
of the unit could not, for example, overbear an individual’s right to be protected
against injurious attack by another family member.21 An infringement of Article 41
and 42 could similarly be upheld where the dictates of public policy or of the common
good so demanded.22 It is thus inaccurate to suggest that the rights of the family
automatically outrank the rights of the child. As Denham J. stated in her decision in
the case of North Western Health Board v. H.W.:23
“The child is the responsibility of the parents. The rights of the parents in
exercising their responsibility are not absolute; the child has personal
constitutional rights. The child has rights both as part of the unit of the family
and as an individual.”
18
[1985] I.R. 532, at 538.
Ryan v. A.G. [1965] I.R. 294, at 350.
20
See, for example, Murray v. Ireland [1985] I.R. 532; and A.O. & D.L. v. Minister for Justice,
Equality and Law Reform [2003] 1 I.R. 1.
21
The People (DPP) v T. (1988) 3 Frewen 141.
22
A.O. & D.L. v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1.
23
[2001] 3 I.R. 622, at 718.
19
15
The courts evidently accept that there is a need for a balance to be struck between the
personal rights of individual family members and the autonomy of the unit, and of the
parents. Denham J., in her judgment in H.W., subsequently commented:
“The court has a constitutional duty to protect the life or health of the child
from serious threat and the court has a constitutional duty to protect the
family. A just and constitutional balance has to be sought.”24
The particular nature of this balance must therefore be a key concern for any
examination of the Constitution’s protection of the rights of the child. The focus of
this analysis will thus fall on the courts’ perception of the point at which State
intervention on behalf of the child is constitutionally permissible.
The first obstacle to any attempt by the State to undertake child protection measures is
the presumption that the welfare of the child is best served by its membership of the
constitutional family unit.
The Supreme Court in J.H. held that the protected
autonomy of the marital family established a “constitutional presumption that the
welfare of the child … is to be found within the family”. 25 Furthermore, Finlay C.J.,
in reliance on Article 42.5, concluded that this presumption could only be rebutted
where:
“[T]he Court is satisfied on the evidence that there are compelling reasons
why [the welfare of the child] cannot be [found within the family], or … the
Court is satisfied that the evidence establishes an exceptional case where the
parents have failed to provide education for the child and continue to fail to
provide education for the child for moral or physical reasons.”26
The recent Supreme Court decision in the ‘Baby Ann’27 case reiterated this
constitutional presumption and emphasised the importance of establishing a failure of
parental duty, thereby illustrating the prevailing acceptance of this traditional
constitutional balance.
24
[2001] 3 I.R. 622, at 726.
[1985] I.R. 375, at 395.
26
[1985] I.R. 375, at 395.
27
N. v. Health Service Executive [2006] 4 I.R. 374.
25
16
The fact that this reasoning established a very high threshold for State intervention
was clearly demonstrated in the case of North Western Health Board v. H.W..28 The
case concerned the refusal of a child’s parents to allow a diagnostic PKU test to be
conducted on their child. The test involved the taking of a sample of blood by way of
a heel-prick, and had been proven to reduce the incidence in Ireland of a number of
serious childhood illnesses. The performance of the test was thus, as Murphy J.
admitted “beyond debate … in medical terms, … unquestionably in the best interests
of the infant”.29
The majority of the Court nonetheless concluded that the parents were entitled to
refuse to allow their child to undergo the test. The constitutional presumption that the
child’s welfare is generally found within the family unit thus operated to expose the
infant in question to a danger which, the deciding judges accepted, was not in his best
interests. “Unwise and disturbing”30 as the parent’s decision appeared, the Supreme
Court felt that the autonomy of the parents prevented the State from ensuring that the
child received the medical treatment which an overarching concern for his welfare
would require.
In keeping with his judgment in H.W., Hardiman J. in the later case of ‘Baby Ann’
appeared to regard the rights of the child in terms of the relative rights of parents and
third parties. In interpreting the rights of the child Hardiman J. appears to suggest that
these rights do not have an independent existence. Rather, a child’s rights operate in
practice as a right to decisional primacy over the care of the child. The child does not
appear in the court’s assessment of individual entitlements. The question instead is
one of whether the parents or some third party ought to exercise control:
“A right conferred on or deemed to inhere in a very young child will in
practice fall to be exercised by another on his or her behalf. In practice,
therefore, though such a right may be ascribed to a child, it will actually
28
[2001] 3 I.R. 622.
[2001] 3 I.R. 622, at 729.
30
[2001] 3 I.R. 622, at 741, per Murray J.
29
17
empower whoever is in a position to assert it, and not the child himself or
herself.”31
Hardiman J. thus envisaged the constitutional protection of the rights of a child as a
choice between the effective vesting of those rights in the parents, on the one hand, or
a third party such as the State, on the other. He thus argued that the current regime
“does not prefer parents to children”, but rather “prefers parents to third parties,
official or private, priest or social worker”.
There is, of course, some merit in this view. However, it is arguably based on a
narrow conception of the character of a child’s entitlements under the Constitution.
Hardiman J. views these in strictly subjective and autonomous terms. A right, in his
opinion, is necessarily connected to an individual’s autonomy. It guarantees the
individual’s ability to make his or her own judgments and decisions in respect of
particular matters. In the context of a child, these decisions are those related to the
upbringing and welfare of the child. This sort of autonomy-entitlement cannot be
exercised by a young child.
Hardiman J. neglects, however, the possibility of a constitutional entitlement to an
objective level of treatment. Such an outcome-oriented conception of entitlements is
alien to our traditional understanding of the rights of adults in a liberal system. In
terms of children’s rights, however this welfare-oriented understanding of rights has
been accepted by many commentators.
This is important from the point of view of any possible amendment to the
Constitution. On Hardiman J.’s analysis, the rights of the child are effectively vested
in another party until such time as he or she is in a position to exercise them himself
or herself. Thus, any greater protection of children’s rights would simply increase the
rights of the party holding those rights.
If there is a desire to increase the objective protection of children from harmful
situations, it may therefore be necessary to include an express welfare component in
31
N. v. Health Service Executive [2006] 4 I.R. 374, at 503.
18
any definition of the rights of the child. Any amendment would necessarily have to
declare that the entitlement being created is one to an objective level of treatment, if it
was to achieve its aim. This would not necessarily have to reduce the primacy of the
parents’ subjective decision-making, when compared to that of the State. It would,
however, ensure that where the decisions of any party, parent or State, could be shown
to adversely impact on the child, its entitlement to have its welfare ensured would be
vindicated by the courts.
The Subsidiary Role of the State
The court’s interpretation of the constitutional text reflects a clear conception of the
State as simply an ancillary protector of children’s rights.
Denham J., having
identified the necessity for a balance between parental autonomy and the personal
rights of the child, felt that “[t]he people have chosen to live in a society where
parents make decisions concerning the welfare of their children and the State
intervenes only in exceptional circumstances”.32
Murphy J. agreed that the
Constitution “relegat[ed] the State to a subordinate and subsidiary role”, concluding
that “[t]he failure of the parental duty which would justify and compel intervention by
the State must be exceptional indeed”.33
From the point of view of child protection, there are, therefore, two chief objections to
the Constitution’s approach to parental autonomy. The first is that it “plainly accords
a primacy to the parent and [that] this primacy … gives rise to a presumption that the
welfare of the child is to be found in the family exercising its authority”. 34 The
second difficulty is the fact that the courts have, by analogy with the terms of Article
42.5, generally allowed the State to rebut this presumption and intervene on behalf of
the child only in the narrow and limited context of ‘exceptional circumstances’ of
parental failure.
In light of the courts’ conclusion that the personal rights of the child arise in Article
40.3, the judiciary’s treatment of the State as the subsidiary guarantor of these rights
32
[2001] 3 I.R. 622, at 722.
[2001] 3 I.R. 622, at 732.
34
[2001] 3 I.R. 622, at 764, per Hardiman J.
33
19
is somewhat surprising. Article 40.3, after all, obliges the State to “defend and
vindicate” these rights “as far as practicable”. There exists, therefore, a positive duty
on the State to actively protect the personal rights of all citizens. However, in the case
of children, this duty is effectively delegated to a third party.
Furthermore, the duty is delegated to a third party which, by virtue of Article 42.5, is
immune from State scrutiny or intervention except in exceptional circumstances.
Alone of the State’s citizenry, the State therefore appears to owe its children a reduced
obligation under Article 40.3. For all others, the State must act “as far as practicable”
to uphold their rights. For children, however, the State is not obliged and in fact is not
entitled to intervene except in a very limited context.
This high threshold for State intervention thus undermines the extent to which a child
can successfully assert its entitlements under Article 40.3.
Exceptional Circumstances and State Intervention
The Supreme Court held in Re Article 26 and the Adoption Bill (No.2) 198735 that
Article 42.5 applied not only to the failure of parents to provide education but also to
a failure to secure the “other personal rights of the child”. This Article, with its
requirement of “exceptional circumstances” of “physical or moral” failure, thus
became the jurisdictional template for State intervention in defence of the rights of the
child.
In the context of the adoption of children of married couples Finlay C.J. held that the
requirement of failure would not be satisfied by a “mere inadequacy of standard in the
discharge of parental duty”. Failure must be total, and must arise for physical or
moral reasons.
It must be a joint failure by both parents but it need not be
blameworthy. Such a strict definition of the concept of failure implicitly precludes
State intervention in a situation in which actions of parents which fall short of total
failure nonetheless have an adverse impact on the welfare of their child.
35
[1989] I.R. 656.
20
The statutory insistence on proof of abandonment, which is interpreted in an objective
manner, in the context of what became the Adoption Act 1988 was described by
Finlay C.J. as indicative of a “special regard for the constitutionally protected parental
rights”. This leaves open the question of whether a requirement of abandonment is
actually mandated by the Constitution’s commitment to parental autonomy.
At
present, however, it is regarded as a necessary additional proof in cases of adoption.
Thus, the possibility exists that the requirement of abandonment might not be
satisfied, even in situations where a total failure of parental duty has been
established.36 This should, however, only apply to the actual adoption of the child. It
ought not preclude State intervention in defence of its welfare.
The State’s ability to ensure the welfare of the child in the constitutional family is
inhibited not only by the court’s strict construction of the concept of failure, but also
by the insistence on proof of exceptional circumstances. This is further compounded
by the approach taken to date by the Irish courts in examining such cases. As already
noted, there is a presumption that the best interests of the child are served within the
constitutional family. In addition the Supreme Court has taken the view that, in cases
in which the actions of a parent are at issue, “[i]t is presumed that his or her actions
are in accordance with the best interests of the child.”37 This clearly indicates that the
courts will not examine the welfare implications of a parent’s conduct unless some
positive “evidence [is] produced that it would not serve [the child’s] best interests”.38
As highlighted in the earlier examination of the decision in J.H., as upheld in the
recent ‘Baby Ann’ case, the State will only be permitted to intervene where it can
satisfy the Court that there are exceptional circumstances, or compelling reasons, to
allow it.
This was reiterated in the decisions of the majority of the Supreme Court in H.W.. The
individual judges furnished a variety of examples of situations in which they would
regard State intervention as justified. Denham J. felt that exceptional circumstances
could include the existence of an immediate threat to the health or life of the child.
Murray J., as he then was, similarly spoke of an immediate and fundamental threat to
36
In re Article 26 and the Adoption Bill (No.2) 1997 [1989] I.R. 656, at 664.
McK. v. Information Commissioner [2006] 1 I.R. 260, at 267.
38
Ibid,. at 268.
37
21
the capacity of the child to continue to function as a human person, deriving from an
exceptional dereliction of parental duty. Murphy J. meanwhile referred to an instance
of parental neglect which would constitute an abandonment of the child and of all
rights in respect of him.
Furthermore, the threshold for State intervention was, if anything, raised by the recent
Supreme Court decision in ‘Baby Ann’. The Court in that case emphasised that the
constitutional presumption in favour of parental autonomy could only be rebutted
where a failure of parental duty had actually been established.
The judges went further, however, to consider what could constitute a failure of duty
on the part of the parents. The Court held that, where no issue of physical incapacity
was raised, a failure of moral capacity would have to be established. A failure on this
ground could only be established by blameworthy or culpable parental conduct. The
mere giving up of a child for adoption could not, in the Court’s view, be regarded as
blameworthy.
This decision arguably makes the already elevated criteria of Article 42.5 even more
difficult to satisfy. This is especially so given the general reluctance of courts to
attribute blame or fault in such sensitive matters. A court may be unwilling (and,
arguably, it would be unsatisfactory on policy grounds) to readily accuse individuals
of morally culpable conduct in their dealings with their child. This is reflected in
Hardiman J.’s view that:
“[I]n a case such as this where there is no question of physical incapacity to
rear a child, an allegation of failure in duty to the child is … a very grave
allegation.”39
These tests create an obvious risk that the State could be prohibited from intervening
to prevent parental actions which have a negative impact on the welfare of the child,
where those actions fall short of these raised thresholds, a point starkly evident in the
above mentioned case of H.W..
39
N. v. Health Service Executive [2006] 4 I.R. 374, at 533.
22
In his judgment in H.W. Hardiman J. appeared to suggest an additional restriction on
State intervention under Article 42.5. The learned judge was of the opinion that the
authority of the family is incapable of temporal subdivision.40 He thus envisages
intervention by the State only in situations in which it is to supplant the place of the
parents entirely. This would logically seem to prohibit any transient interventions by
the State to address a temporary risk. This could further expose a child to the danger
of occasionally detrimental conduct on the part of its parents which nonetheless fails
to justify its removal from the family entirely.
Comparison with the Rights of Children of Marital and Non-Marital Parents
The presumption that the welfare interests of a child coincide with its membership of
a marital family, allied to the Article 42.5 inspired exceptional circumstances
threshold for State intervention, clearly reduces the level of protection which a child is
entitled to expect from the Irish constitutional order. That this is unquestionably the
case is demonstrated by a comparison of the way in which the courts have treated the
rights of children under Article 41 and 42, with the rights of those children of
unmarried couples which rest entirely on Article 40.3.
The absence of an Article 41/42 dimension allows the court to treat the welfare of the
child of a non-marital couple as its primary and paramount concern. The rights of the
child’s parents are recognised by the courts, but are only a subsidiary factor in its
overall welfare assessment. In the cases of K. v. W.41 and W.O’R. v. E.H.42 the
applicants were natural fathers seeking to assert guardianship rights over their
children so as to partake in any subsequent adoption process involving the respective
children. Although dismissing both applications the Courts set out the rights of the
natural father in a child-centred fashion. Unencumbered by pre-existing assumptions,
the welfare of the child was examined in the context of the actual circumstances of his
case. The constitutional entitlements of the father were thus dependent on the extent
to which the relationship would benefit the child. Hamilton C.J. summarised the
position as follows:
40
[2001] 3 I.R. 622, at 758.
[1990] 2 I.R. 437.
42
[1996] 2 I.R. 248.
41
23
“[T]here may be considerations appropriate to the welfare of the child … as
may make it desirable for the child to enjoy the society, protection and
guardianship of its father …. The extent and character of the rights of the
[natural] father of a child … accrue not from any constitutional right vested in
the natural father to be appointed guardian but from the relationship of the
father to the child.”43
A similar overriding concern for the welfare of the child is evident in the court’s
treatment of the rights of the natural mother. The rights of the natural mother in
respect of her child have long been established as more extensive than those of the
father.44 Unlike the father, for example, the consent of the mother was required in the
case of an adoption.
Despite the Constitution’s strong protection of this right,
however, the courts have subjected these rights, where appropriate, to the interests of
the child.
In Northern Area Health Board v. An Bord Uchtála,45 for example,
McGuinness J. allowed an adoption to proceed without the consent of the mother
where the mother was regarded by experts as unable to care for her child.
It would appear, therefore, that two very different child protection regimes exist
within the parameters of the Irish Constitution. In cases concerning the children of
non-martial couples, the welfare and interests of the child are treated as the court’s
primary concern. Issues of parental rights are examined in terms of their impact on
the welfare of the child. The court is charged with the contextualised assessment of
the evidence before it, aiming to establish, on balance, what will actually be in the
best interests of the child.
Cases involving the rights of children of marital couples are of a very different order.
The court is not asked to examine the best interests of the child. On the contrary, the
task in such cases is to consider if exceptional circumstances of parental failure have
been shown, such as would allow the State to intervene to protect the child. The
logical corollary of this type of analytical approach is that neither the courts nor,
consequently, the relevant State authorities, are entitled to act in situations in which
W.O’R. v. E.H. [1996] 2 I.R. 248, at 261-262.
State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567, at 644; G. v. An Bord Uchtála [1980] I.R. 32,
at 55.
45
[2002] 4 I.R. 252.
43
44
24
welfare-adverse treatment of the child exists, but does not satisfy the designated
constitutional criteria.
From the point of view of child protection, this is obviously unsatisfactory. The fact
that, as the decisions in H.W. demonstrate, the threshold for State intervention is set at
such a high level inevitably exposes children to the risk of unchecked infringements
on the part of their parents of their Article 40.3 rights. The conclusion to be drawn
from this overview of the constitutional caselaw must therefore be that the continuing
influence of Article 42.5 constitutes the biggest single obstacle to a successful child
protection regime. The notion of parental autonomy, of itself, need not overbear the
interests of the child. However, a situation in which the State is entitled to act – in
fulfilment of its express constitutional duty to uphold the personal rights of its citizens
– only in a limited and much-constrained context is a matter of concern.
Conclusions
As is clear from the foregoing analysis, the operation of Article 42.5 is the antithesis
of an effective constitutional child protection system. Its fundamental premise is
contrary to the desired objective. Article 42.5 is based on establishing a failure of
parental duty and is therefore constructed in negative terms and indeed has been
interpreted accordingly.
It is submitted that what is required is a positive and
purposive approach to child protection within the Constitution. There is a need to
adequately recognise the child as being an individual constitutional persona entitled
to, and capable of, enjoying the benefit of constitutional rights. To achieve this it is
necessary to positively vest constitutional rights in the child. Such an amendment
would remove the need to prove that there has been an initial failure on the part of
other persons or entities before asserting the child’s constitutional entitlements.
Rather, the child will always be deemed entitled to enjoy the benefits which the
Constitution may bestow on him or her. In light of these observations the following
section details a number of recommendations for reform.
25
IV: RECOMMENDATIONS FOR REFORM
The commentary thus far demonstrates that the Irish Constitution fails to protect the
welfare and interests of children with the degree of clarity, certainty and force deemed
necessary in today’s society. In particular, the inability of the State to intervene in
defence of a child’s rights in any situation which does not constitute “exceptional
circumstances” is a matter of concern. It is thought that the crux of this problem lies
in the fact that the Constitution, and its interpretation to date, focuses on the need to
establish a parental failure as opposed to adopting a positive approach in simply
expressly recognising the rights of the child and allowing them to be taken into
account in a similar manner to those of parents and/or the family unit. There is a need
to recognise the individual constitutional persona of the child and not to have regard
to children in consequence to other constitutional personae, most notably parents and
the family unit. Essentially what is called for is a child-centred approach.
At present the Joint Committee on the Constitutional Amendment on Children is
considering the Twenty-eighth Amendment to the Constitution Bill 2007 (hereinafter
referred to as the ‘2007 Bill’). It proposes to repeal Article 42.5 and substitute a new
Article 42A.46
This submission does not intend to merely analyse this proposed amendment, rather it
seeks to set out a number of amendments that can be made. Also, additional models
are considered and discounted for the reasons set out below in an effort to provide an
objective analysis. It is hoped that this submission will be of assistance to the Joint
Committee. In addition, reference shall be made to the proposed reforms posited by
the Constitution Review Group (CRG) in its report published in 1996.47 As part of a
radical overhaul of Article 41 and 42, the CRG made a number of recommendations
in relation to the protection of children.
46
47
See Appendix 1.
See Appendix 2.
26
Article 42.5
In tandem with the proposed amendment contained in the 2007 Bill it is recommended
herein that Article 42.5 of the Constitution be deleted. As is clear throughout this
submission one of the key problems with child protection in the Irish Constitution is
the presumption that the welfare of the child is best protected within the constitutional
family, and the elevated threshold of proof required to rebut this presumption. Family
autonomy and child protection need not operate as two exclusive objectives. Rather,
family autonomy and child protection can operate in conjunction with one another as
is evident from the jurisprudence of the European Court of Human Rights. So as to
achieve a balance between these two objectives the “exceptional circumstances”
requirement of Article 42.5 needs to be removed. As shall be seen below it is
recommended that this be accompanied by amendments to Articles 40 and 41 so as to
strike the appropriate balance between family autonomy and child protection. An
amendment to just one article of the Constitution is not sufficient to adequately meet
the requirements of child protection.
It is necessary to adopt a comprehensive
approach and to consider all consequential and related factors.
Express Recognition of the Constitutional Rights of the Child
It is recommended that the Constitution be amended so as to provide express
recognition of the constitutional rights of the child. Article 42(A).1 in the 2007 Bill
seeks to provide such. However, it is argued that such a right ought to be included in
Article 40 under the heading of personal rights as opposed to Article 42.
The
reasoning for this is as follows. So as to invoke a truly child-centred approach to any
reform in this field it is necessary to recognise the child as being an individual
constitutional persona. Therefore a child needs to enjoy the benefit of constitutional
rights purely by virtue of his or her existence and not arising out of a relationship with
another party or consequential to an event or failure of duty of another. By including
the specific rights of the child in Article 40 it underlines the relationship between the
State’s obligation to protect the child, and its existing Article 40.3 duty to defend and
vindicate the personal rights of its citizens. Children, as citizens, are already entitled
to rely on these rights.
Any express incorporation of children’s rights should
therefore be regarded as a restatement of their personal rights in a specific form. To
locate the rights of children elsewhere in the Constitution would be to suggest that
their rights are of a different order to those of other individuals, thus implicitly
27
treating children as a sub-group of citizens. Given the difficulties which the guarantee
of the autonomy of the family has posed for the protection of children, it would be
particularly unfortunate to include a section on children’s rights in Article 41 and 42.
Any amendment should contend with the variety of issues that might arise from the
usage of the phrase “natural and imprescriptible” in reference to the rights of the
child. Article 41.1 provides that the constitutional family also enjoys imprescriptible
rights. In proposing any amendment to the Constitution in relation to the rights of
children it is necessary to consider the effect of Article 41 on any such amendment.
The interpretation of Article 41 posits a perception of the family, and thus of parents,
as an autonomous unit which is generally immune from State intervention. It is
possible therefore that conflicts could arise between Article 42(A).1 and Article 41.1
as to whether the rights of the child or the family should prevail.
To avoid such difficulties there are two possible models of reform. The first as
suggested by the CRG is to delete the references to “inalienable” and
“imprescriptible” in Article 41. Such a reform would have to be accompanied by a
deletion to the phrase “imprescriptible” in Article 42(A).1, as to otherwise leave this
reference in place may lead to a situation whereby children enjoy a constitutionally
paramount position over others which can lead to additional problems as shall be
discussed below. Again, however, it is submitted that an amendment in this form
would do little to alleviate the present difficulties in seeking to align the balance
between the rights of the child and his or her parents and family.
The second, and favoured, model of reform is to insert a qualifying clause into Article
41. This Article protects the constitution and authority of the family, securing its
autonomy from State intervention. It is these values with which the rights of the child
are more likely to conflict. Thus, it seems more sensible to include the qualifying
clause in this Article as opposed to amending Article 42. Such a clause should
transform the relationship between parent and child from one of parental rights into
one of parental responsibilities.
This would revive the understanding of the
28
Constitution outlined by O’Dálaigh C.J. in Ryan v. Attorney General48 and Walsh J. in
G. v. An Bord Uchtála wherein he stated:
“One of the duties of a parent, or parents, be they married or not is to provide
as best the parent or parents can for the welfare of the child and to ward off
dangers to the health of the child.”49
Such a qualifying clause may take the following form:
Article 41.4
Nothing in this Article shall be understood to reduce, weaken or otherwise
undermine the primary responsibility of parents and, where necessary, of the
State to protect a child from physical, mental or emotional harm as far as is
practicable.
A number of features of this clause should be noted:
(i) Parental responsibilities
In its language, it embraces the notion of parental responsibilities, thereby advancing
a purposive understanding of parental rights as connected to the protection of the
child. The autonomy of the family unit is thus connected with the defence of the
rights of the child, rather than being conceived as a rival value.
(ii) The role of the State
The proposed Article 41.4 also refers to the role of the State in supplementing the
responsibility of the parents. The reference to ‘primary responsibility’ is intended to
reflect both its status as the most prioritised parental obligation, and the fact that it
vests, initially, in parents rather than in the State.
The State thus continues to be envisaged in a subsidiary role. This aims to reflect the
fears, expressed by McCracken J. in H.W. and expressly approved by Hardiman J.50
48
[1965] 1 I.R. 294.
[1980] 1 I.R. 32, at 68.
50
[2001] 3 I.R. 622, at 757.
49
29
on appeal, that a reorientation of this relationship between parent and State would
result in a “Brave New World’ in which the State always knows best”.51
Nonetheless, the threshold of necessity – although somewhat lacking in specificity –
is evidently lower than that which has existed up to this point. This therefore would
have serious implications for the State. At present, the State is only entitled to
intervene in cases of exceptional circumstances. The relevant authorities thus fulfil a
primarily fire fighting role. However, if a lower threshold is introduced, the State will
not only be entitled, but obliged to intervene in many more sub-exceptional cases.
This will require considerable changes to be made to the way in which the relevant
agencies in this area currently operate, imposing on them additional obligations in
terms of ongoing supervision and intervention.
This would therefore expose the State to potentially greater liability in situations in
which harm ultimately befalls a child. Although the parents retain primacy of care,
the lower threshold for State intervention would oblige the State to attempt to ensure
it is aware of when intervention might be necessary. This would apply not only to the
functioning of the relevant child welfare authorities but also to the legislative action
(or inaction) of the State. The State could, for example, be regarded as failing in its
duty if it neglected to ensure an adequate system of reporting obligations in cases
where there are suspicions of some form of child abuse.
(iii) Necessity
The necessity threshold is, as noted, relatively imprecise.
This would therefore
entrust the courts with a considerable discretion to decide in what cases the State is
required to act. The clear connection drawn between necessity and the protection of
children from harm is designed to provide some sort of concrete focus for cases in this
area. As this is, however, a primarily policy choice, an alternative calibration of the
balance between parental autonomy and state action to protect the rights of the child
may be desired.
51
[2001] 3 I.R. 622, at 635.
30
Nonetheless, it must be remembered that the setting of this threshold at too high a
level has been at the root of many of the problems encountered in this area in the past,
and indeed may be at the root of future European Convention on Human Rights
orientated problems. Necessity is, it is submitted, the most constrained conception of
the State’s ability to act which will ensure that the rights of the child are not
overborne by the protected autonomy of its parents.
(iv) Imprescriptible Rights
It is suggested that if such a qualifying clause is inserted into Article 41 and an
express recognition of the rights of children is provided for in Article 40 then any
reference in such a provision to the “imprescriptible” nature of those rights is not
problematic, and indeed may in fact be beneficial. In his seminal judgment in Ryan v.
Attorney General Kenny J. shed some light on the meaning of this phrase stating
“imprescriptible’ means that which cannot be lost by the passage of time or
abandoned by non-exercise”.52 Children ought to be prevented from losing their
rights because practically speaking the vast majority of children will not be in a
position to exercise such rights. This is an inherent feature of childhood, and should
not deprive children of the benefit of these rights.
The Nature of an Express Constitutional Right of the Child
The CRG recommended that a constitutional amendment in this context be worded in
such a manner so as to seek to ensure that the best interests of the child are always
considered. It is respectfully submitted that such an approach not be taken.
A
provision centred on the best interests of the child is inherently problematic. In order
to illustrate this point a comparative analysis with the position in South Africa is
instructive.
Following the apartheid era, the South African state made a conscious attempt to
construct a constitutional order which would be characterised by a firm commitment
to the defence and vindication of the human rights of its citizens.
The 1996
Constitution was thus inspired by a desire to ensure that the South African system
52
[1965] 2 I.R. 294, at 308.
31
would be a model of best practice in the protection of human rights. One important
point to note, however, is that the South African constitution makes no specific
provision for a right to family life, or for any particular protection of marriage or of
the family unit. In this, it obviously differs sharply from the Irish text. The South
African courts have inferred a right to family life from the individual members’ right
to dignity.53 The absence of a guarantee of autonomy for the unit, however, suggests
a situation in which State intervention is much more readily justifiable than in Ireland.
This should be borne in mind in any comparison of the caselaw between the two
jurisdictions.
Placing a particular emphasis throughout on the interests of its most vulnerable
citizens, the Constitution thus included a series of guarantees in relation to children’s
rights.54 Section 28(2) specifically provides that “[a] child’s best interests are of
paramount importance in every matter concerning the child.” The best interests test
has long been criticised as a vague and indeterminate term:55
“If human rights norms in general can be said to be inherently indeterminate,
the best interest principle is located by most of its critics at the most
indeterminate outer margins of even that body of norms.”56
Its lack of clarity confers considerable discretionary powers on any court asked to
interpret it. The law, as a result, risks inconsistency and unpredictability, thereby
denying individuals the capacity to understand the law, and orient their behaviour
accordingly.
The South African experience with the section 28(2) ‘best interests’ guarantee reflects
the accuracy of Mnookin’s complaint.
Some courts have regarded this as an
independent right of the child,57 some have described it as a standard which aids in the
53
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of
Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others (2000) (8)
BCLR 837 (CC), at para. 37.
54
See Appendix 3.
55
Mnookin, “Child custody adjudication: Judicial functions in the face of indeterminacy” (1975) 39
Law and Contemporary Problems 226.
56
Rodham, “Children under the law” in Freeman (ed.), Children’s Rights (Cromwell, 2004).
57
Minister for Welfare and Population Development v. Fitzpatrick (2000) (7) BCLR 713 (CC).
32
evaluation of the child’s other rights, while others have treated it as some sort of
interpretative principle.
More importantly, the way in which this provision has been treated by the courts has
generated considerable confusion. In its emphasis on the evidential specifics of a
particular case, it appears more like a common law principle than a human rights
norm. Courts asked to examine asserted infringements of human rights usually have
to ascertain if the right has been infringed, and if that infringement is therefore
justified. This is a fundamentally negative analytical exercise. On the contrary, an
enquiry into what constitutes the best interests of the child in an individual case
requires the reaching of a positive conclusion on the basis of an involved examination
of the evidence before the court. The best interests test thus involves a very different
approach from the balancing exercise which usually characterises cases involving
human rights. This necessarily produces a situation in which constitutional issues
involving children are decided on a case-by-case basis. This creates a degree of
uncertainty in an important area of the law.
The indeterminacy of the test also renders it peculiarly susceptible to judicial
prejudices and assumptions. In South Africa, for example,:
“Some courts have ignored the existence of the [best interests] principle, or at
least its constitutional manifestation. Other courts have assumed that its
inclusion in the Constitution has made no legal difference since existing
common law rules adequately cater for the best interests of children, while a
last category of cases enthusiastically use the best interests principle to change
the common law.”58
Aside from the charges of unpredictability this situation obviously attracts, it also
underlines the possibility that the insertion of a ‘best interests’ provision into the Irish
Constitution might not, of itself, produce the desired results. Pre-existing assumptions
as to what constitutes a child’s best interests might still prevail. Given the current
Irish presumption is that the welfare of the child is best served within the confines of
58
Bonthuys, “The best interests of children in the South African Constitution” (2006) 20 (23) IJLP&F.
33
the autonomous and effectively unsupervised family unit, this has particular relevance
for any proposal for Irish constitutional reform.
Given the Constitution’s strong protection of the authority and autonomy of the
family unit, this could lead the courts, in their interpretation of the test, to find that the
best interests of the child are presumed to be found in its membership of the family
unit. This would continue the current approach to child protection and defeat the
purpose of the amendment.
One possible solution to this issue is to incorporate a guarantee that a court will take
account of the wishes of a child who is of sufficient age and maturity. This obviously
would not oblige the court to accede to the wishes of the child. It would, however,
concentrate the attention of the court on the position of the child, ensuring that its
interests are factored into the court’s conclusions. Furthermore, it would underline
the child’s status as an autonomous individual with distinct rights and interests. The
second recommendation of this submission is therefore that a reference to the need to
take account of the views of the child be inserted in place of an overarching
commitment to the child’s best interests.
Paramountcy
Not only did the CRG recommend a “best interests” orientated provision, but it also
stated that the “best interests of the child shall be the paramount consideration”.59 It is
submitted that this type of supra-constitutional status is generally inadvisable. As set
out above Section 28(2) of the South African Constitution prescribes the best interests
of the child as being paramount. Again an analysis of the relevant South African
jurisprudence is helpful in considering the potential effects of such a clause in Ireland.
The court in Laerskool Middelburg60 held that the constitutional reference to
paramountcy meant that children’s interests prevailed over all other interests and
rights. In general, however, the South African courts have begun to recognise the
interests of the child as occurring in communion with the interests of its parents, and
59
60
Constitution Review Group, Report of the Constitution Review Group 1996.
Laerskool Middelburg v. Departementshoof (2003)(4) SA 160 (T).
34
those of the common good. In V. v. V.,61 for example, the High Court found that
access should not be understood solely as a right of the child but was “part of a
continuing relationship between parent and child”. Similarly, the Constitutional Court
in Grootboom refused to allow parents of children to assert a superior entitlement to
shelter over those families who were without children.
The Irish courts have consistently rejected the existence of a hierarchy of
constitutional values. As the troublesome cases of A.G. v. X.62 and Re Ward of
Court63demonstrate, it is difficult, and arguably unwise, to attempt to prescribe a fixed
scale of constitutional rights. This is especially so in the context of a guarantee which
can clearly give rise to unforeseen claims. With so many areas of the law potentially
impacting upon the interests of the child, it seems imprudent to regard these interests
as always paramount. There are obvious tensions, for example, between the interests
of the child, that of society and those of its parents.
An amendment prescribing the rights of the child to be paramount could, of course,
confine the guarantee to cases of custody, adoption or guardianship.
This has,
however, already been done by statute. Paramountcy is perfectly acceptable within
the confines of a specific statutory regime. In the Constitution, however, it is liable to
impact upon an unforeseeable array of situations.
From the point of view of existing caselaw, for example, this type of amendment
would arguably require a reconsideration of the decisions in A.O.64 and T.D.65. If the
rights of the child are constitutionally stated to be paramount, it would be very
difficult to assert that they should be subject to a non-particularised public interest in a
coherent immigration policy, or an implicit constitutional doctrine of separation of
powers. In particular, an obligation to treat the child’s interests as paramount would
seem to require at the very least that Fennelly J.’s concerns in A.O. about the
61
(1998) (4) SA 169 (C). This approach is also evident in, for example, President of RSA v. Hugo
(1997) (4) SA 1 (CC); and Bannatyne v. Bannatyne (2003) (2) BCLR 111 (CC).
62
[1992] 1 I.R. 1. One of the key factors in this case was the Constitution’s express provision that the
rights of the mother and child were equal. This greatly complicated the courts’ task of trying to balance
the two rights.
63
[1996] 2 I.R. 79.
64
A.O. & D.L. v. Minister for Justice [2003] 1 I.R. 1.
65
T.D. v. Minister for Education [2001] 4 I.R. 259.
35
availability of review be reflected in the introduction of an ‘anxious scrutiny’ type
standard in this area.
Furthermore, the issue would probably arise in other areas of the law. Could a
juvenile offender be imprisoned if his rights are to be paramount? Would any type of
punitive sentence be appropriate? Could the cross-examination of child witnesses be
prohibited on the grounds that it could expose the child to emotional strain? Would
the interests of child consumers predominate in cases of commercial or competition
law?
The risk would also arise of the child being used as a vehicle for the articulation of
claims to paramountcy by third parties. The South African case of S. v. Howells66 is
an instructive example of how the rights of the child can be used in support of the
arguments of its parents. In this case it was argued that a parent could not be
sentenced to a term of imprisonment upon conviction for a criminal act on the ground
that this would not be in the best interests of his child. Evidently, this was not a case
to which section 28 was intended to apply. Nonetheless, it is a plausible construction
of the constitutional text. The court ultimately held that the interests of the child were
subject to the societal interest in the effective punishment of crime. However, this
does illustrate the risk that a general constitutional commitment to the best interests of
the child will impact on cases far beyond the scope of traditional family law. This
could lead to a situation in which parents of children are entitled to greater
constitutional protection of their own interests (portrayed as in the interests of their
children) than those citizens who do not have children. In light of the Constitution’s
guarantee of equality, this would be unacceptable.
From a practical point of view, the courts would have to devise a way of avoiding the
logical consequences of a guarantee of paramountcy. It is thus argued that it would be
better not to incorporate it into the Constitution in the first place.
Some
acknowledgment of the need for a court to pay particular interest to the position of the
child would be preferable as it would encourage the courts to maintain a strong
commitment to the interests of the child, without having to treat it as a constitutional
66
(1999) (1) SACR 675 (C).
36
trump in evidently unsuitable cases.
Therefore it is recommended that the
Constitution require that ‘special regard’ be had by the organs of the State to the rights
and interests of the child.
Guarantee of the Rights of the Child
The final issue therefore is the nature of the proposed Article 40 guarantee itself.
Although it has been argued that children’s rights should not be constitutionally
described as being paramount there is still a need to direct the court’s attention in such
a manner so as to give due weight and regard to such rights. The CRG’s preference
was for an express enumeration of the rights of the child. This removes the element
of uncertainty which exists in the courts’ current doctrine of unenumerated rights.
However, it also fossilises the rights of the child at a particular moment of
constitutional enactment. Any attempt at the enumeration of the rights of the child in
Article 40.3 would not preclude attempts to assert additional rights in the future. The
proposed clause, it should be borne in mind, is included as an attempt to restate the
particular importance of ensuring the protection of those rights which the child is
already guaranteed under Article 40.3.
To some extent, therefore, any effort at
introducing certainty into this area of the Constitution is doomed to failure, unless
there is a more radical removal of unenumerated rights from the Constitution entirely.
It is therefore proposed that a more general guarantee of children’s rights be inserted
into the Constitution. That should not be taken, however, as an implication that the
inclusion of a specific selection of children’s rights would be inadvisable. On the
contrary, it would ensure that particular children’s rights would have to be enforced
by the courts. The specifics of such a list are, however, very much a matter of
political choice. Because of this, and because of the Constitution’s current preference
for more general guarantees, any amendment of Article 40.3 could take the following
form:
Article 40.3.4 -
(i) The State acknowledges childhood as a unique and
vulnerable state, which requires it, in its actions and
enactments, to have special regard to the rights and interests of
the child.
37
(ii) A court shall accordingly have due regard, where
appropriate, to the views of a child, provided that child is of
sufficient age and maturity.
This restates the personal rights of the child in a form which underlines the reasons
why it deserves particular prominence in the decisions of government organs. The
obligation to have ‘special regard’ to the rights and interests of the child is confined to
the State, thus preserving an area of autonomy for the family unit. Taken together
with the specific reference in the proposed Article 41.4 to the responsibility of the
parents, and the State, to protect the child from physical, mental or emotional harm, it
should increase the protection of children’s rights without a significant distortion of
the existing constitutional regime.
As regards the obligation on the court to take account of the views of the child ‘where
appropriate’, this should be confined by the courts to situations in which the interests
of the child are at stake. The danger here is in overextending the scope of the right by
a reference, for example, to ‘all cases concerning children’.
The language of
appropriateness therefore attempts to allow the courts to confine the application of
this right to suitable situations.
The vagueness of these Articles would leave a number of issues for resolution by the
courts. Perhaps the most noticeable of these is what is intended by ‘physical, mental
or emotional harm’. Does this impose an enforceable obligation on parents in respect
of the development of a nurturing and loving environment? It would be hoped that
the reference to practicability would rebut any such arguments. This should also
apply in respect of any attempt to impose responsibility on the State for the acts of a
third party against the child.
Perhaps the key objection to these proposals is their vagueness. This necessarily
entrusts the courts with considerable power in ascertaining what is appropriate in this
area. This does, however, also allow the courts the freedom to deal sensibly with
situations as they arise, rather than excessively fettering them with the unintended
consequences of ill-advised specifics. Furthermore the amendments as proposed seek
to remain, as far as possible, within the existing constitutional orthodoxy. Although
38
they should increase the protection of children’s rights under the Irish Constitution, it
is to be hoped that they would not lead to unexpected developments in other areas,
which ought to be a significant concern in any process of constitutional reform.
Wording and the Irish Text
In constructing any constitutional amendment in this field it is imperative to have due
regard to the Irish text of such an amendment. Article 25.5.4° clearly states that in the
event of conflict between the English and Irish text of the Constitution, the Irish text
shall prevail.
This has had specific consequences in the context of children.
References to children in the English text appear in the Irish version as leanbh (and its
derivatives leanaí and linbh) or clann. Leanbh is generally taken to refer to an infant
child of approximately pre-school age. There is thus a potential argument that the
rights of the child when referred to as leanbh actually vest only in children of a very
young age.
This interpretation of leanbh as a phrase applicable only to individuals of a certain age
was accepted by Hardiman J. in Sinnott.67 In that case, counsel for the plaintiff had
argued that ‘child’ in Article 42 referred to the individual’s membership of a family
unit, rather than his age. On this analysis, the phrase ‘child’ indicated that the
individual was the offspring of his parents rather than that he was of a particular age.
This implied that the right to education was temporally unlimited.
In his consideration of this question, Hardiman J. expressly alluded to the Irish text.
Leanbh, in his view, carried connotations of age. He thus concluded that he “[could
not] accept the artificial construction advanced on behalf of the Plaintiff: that the word
“child” or its equivalent in the national language should be interpreted as extending to
a person of any age who has an ongoing need for education”.68
Hardiman J.’s judgment stands as authority for the proposition that the phrase leanbh
can only be used in relation to children of a certain age. The learned judge did not,
however, clarify what ages were covered by this term.
67
68
Sinnott v. Minister for Education [2001] 2 I.R. 545.
[2001] 2 I.R. 545, at 690.
39
In a similar vein, the obligations of parents in respect of the care, education and
welfare of their children appears in the Irish text as a duty towards the clann, or
family unit. As a slightly broader term, there is, again, an arguable discrepancy here.
This disparity could support the suggestion that a court called upon to examine
allegations of a failure of parental duty should require the failure to be in respect of
the family in general, rather than in relation to an individual child. Once more,
however, this would not reflect the current caselaw.69
Therefore, it is clear that any proposed amendment in this field must be cognisant of
the Irish text. There is a need to consider the purpose of each amending provision to
determine the appropriate language to be used. It would be unfortunate to say the
least if children’s rights would only vest in children of a certain age, e.g. 12 years old,
leaving those in their remaining teenage years before majority in a constitutional
lacuna. In addition, if children’s rights impose corresponding duties on others, e.g.
parents, then the text should adequately protect each individual child in this regard.
69
Re J.H. [1985] I.R. 375.
40
V:
CONCLUSION
The primary focus of this submission is to analyse the current constitutional standing
of the child in Ireland and to submit recommendations for reform. As we enter 2008
the impending amendment to the Constitution on the rights of the child draws nearer,
and as this submission illustrates there is an urgent need to engage in the issues
involved. The fact that the child is not adequately protected under our Constitution is
evident as sections I, II and III of this submission demonstrate. The crux of the
present problem is the constitutional focus on the need to establish a failure on the
part of parents of a child before the rights of the child are considered. This constitutes
a negative approach in the quest to protect children in our Society.
Following the fallout from the Supreme Court cases of CC. v. Ireland70 and A. v.
Governor of Arbour Hill Prison,71 public consensus appeared to be in support of a
reform to our law in this regard. The Twenty-eighth Amendment to the Constitution
Bill 2007 was introduced on foot of this.
This submission proposes a number of recommendations for reform, and it is hoped
that these recommendations will rekindle the debate on this topic before any
referendum.
In order to adequately provide for the position of the child in our
Constitution a comprehensive and considered approach is required, with a childcentred approach being adopted and the fundamental objective of ensuring that the
interests and welfare of the child are protected. There is a need to examine the nature
and effects of Articles 40, 41 and 42. For the reasons put forward in Section IV the
following recommendations are submitted:
(i) Article 42.5 of the Constitution be recalibrated.
(ii) The rights of the child be expressly recognised in Article 40 of the
Constitution, thereby demonstrating that the child is in fact an individual
constitutional persona entitled to rights and protections by virtue of its being.
70
71
[2006] 4 I.R. 1.
[2006] 4 I.R. 88.
41
(iii) So as to account for the need to balance the constitutional relationship
between the family unit and the child the following clause ought to be inserted
as Article 41.4:
Nothing in this Article shall be understood to reduce, weaken or
otherwise undermine the primary responsibility of parents and, where
necessary, of the State to protect a child from physical, mental or
emotional harm as far as is practicable.
(iv) It is recommended that any constitutional guarantee of the rights of the child
not be framed in such a manner so as to impose a ‘best interests’ type test, or
to render the rights of the child paramount. Instead special regard should be
had to the rights and interests of the child.
(v) In light of the foregoing the following guarantee ought to be inserted into
Article 40 of the Constitution so as to protect the rights and interests of the
child.
Article 40.3.4°:
(i)
The State acknowledges childhood as a unique and vulnerable
state, which requires it, in its actions and enactments, to have
special regard to the rights and interests of the child.
(ii)
A court shall accordingly have due regard, where appropriate,
to the views of a child, provided that child is of sufficient age
and maturity.
(vi) Consideration should be given to the Irish text of any such amendment so as to
avoid ambiguities that may arise, particularly in relation to any references to
the ‘child’ in different contexts.
42
APPENDIX 1
————————
TWENTY-EIGHTH AMENDMENT OF THE CONSTITUTION
BILL 2007
————————
BILL
entitled
AN ACT TO AMEND THE CONSTITUTION.
WHEREAS by virtue of Article 46 of the Constitution, any provision
of the Constitution may be amended in the manner provided
by that Article:
AND WHEREAS it is proposed to amend the Constitution:
BE IT THEREFORE ENACTED BY THE OIREACHTAS AS
FOLLOWS:
1.—The Constitution is hereby amended as follows:
(a) section 5 of the Irish text of Article 42 shall be repealed,
(b) section 5 of the English text of Article 42 shall be repealed,
(c) the Article the text of which is set out in Part 1 of the
Schedule shall be inserted after Article 42 of the Irish
text,
(d) the Article the text of which is set out in Part 2 of the
Schedule shall be inserted after Article 42 of the English
text.
2.—The amendment of the Constitution effected by this Act shall
be called the Twenty-eighth Amendment of the Constitution.
This Act may be cited as the Twenty-eighth Amendment of the Constitution
Act 2007.
43
SCHEDULE
PART 2
CHILDREN
Article 42(A)
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.
44
APPENDIX 2
RECOMMENDATIONS OF THE CONSTITUTION REVIEW
GROUP IN RESPECT OF THE FAMILY AND CHILDREN
1 All family rights, including those of unmarried mothers or fathers and children born
of unmarried parents, should now be placed in Article 41.
2 Delete existing Articles 41.1.1°, 41.1.2°, 41.2.1°, 41.2.2° and 41.3.1°.
3 The description of any rights or duties specified in Articles 41 or 42 should not
include adjectives such as ‘inalienable’ or ‘imprescriptible’.
4 A revised Article 41 should include the following elements:
i) recognition by the State of the family as the primary and fundamental unit of
society
ii) a right for all persons to marry in accordance with the requirements of law
and to found a family
iii) a pledge by the State to guard with special care the institution of marriage
and protect it against attack subject to a proviso that this section should not
prevent the Oireachtas from legislating for the benefit of families not based on
marriage or for the individual members thereof
iv) a pledge by the State to protect the family based on marriage in its
constitution and authority
v) a guarantee to all individuals of respect for their family life whether based
on marriage or not
vi) an express guarantee of certain rights of the child, which fall to be
interpreted by the courts from the concept of ‘family life’, which might
include:
a) the right of every child to be registered immediately after birth and
to have from birth a name
45
b) the right of every child, as far as practicable, to know his or her
parents, subject to the proviso that such right should be subject to
regulation by law in the interests of the child
c) the right of every child, as far as practicable, to be cared for by his
or her parents
d) the right to be reared with due regard to his or her welfare
vii) an express requirement that in all actions concerning children, whether by
legislative, judicial or administrative authorities, the best interests of the child
shall be the paramount consideration
viii) a revised Article 41.2 in gender neutral form which might provide
The State recognises that home and family life give society a support
without which the common good cannot be achieved. The State shall
endeavour to support persons caring for others within the home
ix) an amended form of Article 42.5 expressly permitting State intervention
either where parents have failed in their duty or where the interests of the child
require such intervention and a re-statement of the State’s duty following such
intervention
x) an express statement of the circumstances in which the State may interfere
with or restrict the exercise of family rights guaranteed by the Constitution
loosely modelled on Article 8(2) of ECHR
xi) retention of the existing provisions in Article 41.3.3° relating to
recognition for foreign divorces.
46
APPENDIX 3
SECTION 28 OF THE SOUTH AFRICAN CONSTITUTION
(1) Every child has the right:
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when
removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that –
(i)
are inappropriate for a person of that child’s age; or
(ii)
place at risk the child’s well-being, education, physical or mental
health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in
addition to the rights a child enjoys under sections 12 and 35, the child
may be detained only for the shortest appropriate period of time, and has
the right to be –
(i)
kept separately from detained persons over the age of 18 years; and
(ii)
treated in a manner, and kept in conditions, that take account of the
child’s age;
(h) to have a legal practitioner assigned to the child by the state, and at state
expense, in civil proceedings affecting the child, if substantial injustice
would otherwise result, and;
(i) not to be used directly in armed conflict and to be protected in times of
armed conflict.
(2) A child’s best interests are of paramount importance in every matter
concerning the child.
(3) In this section, ‘child’ means a person under the age of 18 years.
47
Section 37 further provides that section 28(1)(d), section 28(1)(e), section 28(1)(g)(i)
and (ii) are non-derogable, and that section 28(1)(i) is non-derogable in cases
involving children who are 15 and younger.
48