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The Children’s Referendum proposals and equality

 

This morning, the government revealed the proposed wording for the Children’s Referendum, which is due to take place on Saturday, 10th November.

 

 

The wording may change as the issue is debated in the Dáil and Seanad. It’s based on the proposals from the Joint Committee on the Constitutional Amendment on Children from February 2010, but differs quite significantly. (For instance, it omits entirely any reference to education.)

So what might the referendum mean for children raised by same-sex couples? The wording is broad, which is fairly standard when it comes to the Constitution: the finer details are honed by our law-makers passing legislation in the Oireachtas.

Going through the wording, then, I have some initial thoughts. Keep an eye out for the experts’ views, however!

I’m guessing Human Rights in Ireland will have an analysis before too long (they published an excellent piece this morning by Edel Quinn of the Children’s Rights Alliance), and legal academics and practitioners will no doubt share their thoughts over the coming weeks and days.

 

The proposed wording opens with:

Article 42A

Children

1. 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.

This provision recognises children as individuals in Ireland’s Constitution for the first time. Yes, that’s as depressing as it sounds, but the provision is to be welcomed hugely.

Notably it refers to “all children”, without distinction. Presumably, this can only bode well for the rights of children raised by same-sex couples.

The government is giving the State some wiggle room by including the phrase “as far as practicable”, but such a clause is fairly standard.

2. 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such 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, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

This sub-paragraph relates to child protection, and the government is raising the bar fairly high here, by including the phrase “in exceptional cases”. This implies that not all instances of parents’ failure “in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected” will warrant the intervention of the State.

It’ll be interesting to see how children’s rights advocates view that one.

The inclusion of the phrase “regardless of their marital status” is a good thing, however, and finally brings an end to the differential treatment (depending on whether the parents are married or not) given to children at risk.

Whether that phrase applies to same-sex couples, however, I doubt: Who is a “parent” in the eyes of the law, even if this referendum passes? My guess is that this refers to biological parents.

Recently, the Law Reform Commission (LRC) examined the issue of step-parents, grandparents and other care-givers of children whose relationship with the child (and vice versa) is not recognised by law.

The LRC made recommendations in relation to certain (though not all) same-sex relationships where children are being raised. It could be that the LRC’s proposals will be used to deal with these issues separately. Although, even if that’s the case, LRC reports have been known to languish gathering dust indefinitely.

All that being said, it’s also welcome – and important – that the paragraph concludes with “always with due regard for the natural and imprescriptible rights of the child”.

Provision shall 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 duty towards the child and where the best interests of the child so require.

This seems to relate to child protection and welfare issues in general, although again the definition of “parents” will be one to watch: although the referendum wording begins by referring to “all children” without distinction, does this sub-paragraph apply where a child who is raised by non-biological parent(s) is at risk?

3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

This paragraph seems to allow a parent to voluntarily give up a child for adoption (as opposed to where the child is at risk, presumably), and for that child to be adopted, but it seems very broad.

Even for the general language expected in the Constitution, it seems curious that there’s no mention of the consent of both parents (biological or otherwise) – notwithstanding the fact that the onus is being placed on law makers to legislate for this issue (“provision shall be made by law”).

Could this be an area where the issue of same-sex couples and adoption rights arises?

4. 1° 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.

In my view, this is good: the language is fairly unequivocal, and enshrines in the Constitution that in certain sensitive and important instances, the best interests of the child “shall be the paramount consideration” (my emphases).

This language is stronger than that currently in legislation or which was proposed by the Oireachtas Committee (which states that the best interests of the child shall be “a paramount consideration”).

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.

This echoes some existing legislative provisions and the UN Convention on the Rights of the Child (e.g. Article 12), but seems to be narrower in scope than the Convention’s minimum requirements.

While the referendum wording refers to a child’s views being heard in relation to certain proceedings initiated by the State and certain family law cases, the Convention states that “the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child” (my emphasis).

It’s also couched in “as far as practicable” terms, what ever that might mean in reality.

 

So, what do you think? What have you heard?

Do you think the referendum will help children in Ireland who are being raised by same-sex couples?

Could it address the fact that a child’s non-biological parent is a stranger to them in the eyes of the law?

 

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3 Comments

  • thanks for your posting, it was great to see the proposed wording laid out

    Ruairi Donovan said:
  • Wow yet another eye opening article on this website…

    Nora said:
  • Personally I think it’s all long overdue stuff and I have high hopes it’ll pass this weekend. I’ve really only thought about this referendum in terms of individual children, I hadn’t really thought of the same sex thing. Seeing as you ask, I think the move away from ‘if the parents are married, then it must be a happy home’ is really important, because it signals a shift away from an attitude to family formulation that’s steeped in Catholic ethos which can only be good news for everybody.

    Ciardubh said:
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