Why do we need this referendum?

Our Constitution is the foundation for all the State’s laws and policies. However, it does not provide an express statement of rights for children.

The Government is bringing forward this Referendum to give the Irish People the opportunity to change this. This Referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children. The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State’s obligation, as far as practicable, to protect those rights.

There have been seventeen major reports on child protection failings in Ireland since 1970. The Government now has a Programme for Change for Children  and is bringing in new laws on the reporting of child abuse and safer practices for organisations, where children spend time, and is also reforming Ireland’s child protection services by transferring them from the HSE and establishing a dedicated new Child and Family Support Agency.

These reforms focus on intervention to ensure the safety and welfare of children is protected and to ensure that child protection services can respond appropriately to all child protection concerns.

Passing this Referendum will put children’s needs at the centre of decision-making and will facilitate changes to adoption legislation.

Why is this proposed Referendum needed?

Our Constitution is the foundation for all the State’s laws and policies but as it stands, it does not provide an express statement of rights for children.

The Government is bringing forward this proposed Referendum to give the Irish People the opportunity to change this. The proposed Amendment will give people the option of updating the Constitution to reflect our shared values in relation to ensuring the protection of all of our children.  The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State’s obligation, as far as practicable, to protect those rights.

The proposal also seeks to strengthen our Constitution’s provisions in the key areas of child welfare and protection, adoption, guardianship, custody and access.

The incorporation of dedicated provisions for children into the Constitution has long been called for by expert groups, including the Kilkenny Incest Investigation (1993), the Constitution Review Group (1996), the All Party Oireachtas Committee on the Constitution (2006) and the Joint Committee on the Constitutional Amendment on Children (2010).

What will it change?

The changes that would be brought about by the proposed Constitutional Amendment include the following:

• the provision of express rights for all children;
• strengthening of protections for all children where parents are failing in their duties towards them;
• the removal of inequalities in adoption between children on the basis of the marital status of their parents
• strengthening of the principles of best interests and consideration of the views of children in child care, adoption and family law proceedings.

How will this Referendum affect the adoption laws?

This Referendum proposes to change our Constitution to extend the option of voluntary adoption to all children, regardless of the marital status of their parents.

The proposed adoption provisions also allow for changes in the law to provide for adoption where parents have failed in their duties towards the child and it is in the best interests of the child.

This will facilitate the adoption of certain children, who have been reared by foster parents, for a considerable period, by reason of the failure of their parents to look after or care for them, giving those children the opportunity of certainty and permanency in their future care within a loving family.

The Government is publishing its proposed adoption legislation at the same time as the Referendum proposal in order that the detailed considerations and protections governing the adoption process are fully laid out.

Don’t children already have rights under the Constitution?

While all citizens have rights, the Constitution does not currently provide an express statement of rights for children. The proposed Amendment provides a strong affirmation of each individual child’s inherent rights and a clear statement that children’s rights need to be protected and vindicated; while continuing to respect and preserve the rights of the family as set out in the existing Article 41.

The objective is to give children special protection having regard to their young age and their potential vulnerability.

This Referendum is about strengthening our Constitution’s provisions with respect to the protection and equality of children, irrespective of the marital status of their parents. It’s about updating Ireland’s adoption laws.  It’s also about ensuring that in key court proceedings affecting a child their best interests and views are taken into account. The proceedings where there will be a Constitutional requirement to provide for the best interests and views of the child are those taken by the State to protect the safety and welfare of a child or family law proceedings relating to adoption, guardianship, custody or access.

Does the State not already have enough power and scope under the Constitution to make the proposed changes in child protection and adoption?

There have been a number of examples of legal comment and court judgements which suggest that there is further scope within the Constitution to strengthen laws, in particular the adoption laws.

However there are also a number of examples of expert legal comment calling for the Constitution to be changed. For example, in 1993, in her report on the Kilkenny Incest Case, Judge Catherine McGuiness called for constitutional change on the rights and protection of children.

Only a definitive amendment to the Constitution can give the certainty and clarity to both the Oireachtas (who makes the laws) and to Judges (who apply and interpret the law in their decision making) on these key questions relating to the protection and equality of children.  Ultimately, the Constitution belongs to the People and it is for them to decide the values and protections to be contained within it.  Constitutional amendments passed through referendum can be expected to guide the Oireachtas in the making of laws in relevant areas into the future and the subsequent interpretation of these laws by the courts.

Will this Referendum result in a dilution of parental rights or give the Government more power to bring in laws that interfere with family life and parental decision-making?

There is no amendment proposed to the rights of families as set out in Article 41. For example, Article 41 (1) states:

“The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

“The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”

Article 42 (1) also states that:

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

Therefore, parents will continue to be recognised as the most important carers in the children lives.

Under the proposed Referendum, intervention by the State relates to exceptional cases when a child is being abused, ill-treated or neglected such as to harm or likely to harm their safety and welfare, and the State must act, in the common good, to protect the child. This is a re-casting of the existing provisions of Article 42.5 which already allows for the State to intervene and supply the place of parents in the case of the failure of those parents in respect of their child.

The other areas affected by the change and expressly provided for are those relating to the making of laws regarding consideration of the best interests

of the child as paramount in proceedings brought by the State to protect any child or proceedings concerning adoption, guardianship, custody of or access to any child; and that the views of the child be taken into account in such proceedings..  It is proposed that there be a requirement that there no discrimination between children in such proceedings based upon the marital status of their parents.

Will this Referendum make it easier for the State to remove children from their families?

The State already has the powers under the existing provisions of Article 42.5 of the Constitution and under the Child Care Act 1991 to, in exceptional cases, apply to  place a child in foster care or in residential care where the child’s  parents have failed in respect of their child.

The intent of the proposed Constitutional Amendment is to recast the test of failure for State intervention in more modern terms. It is intended to ensure the focus is on the impact on the child’s safety and welfare – making it more child-centred.

However, under the proposal the only powers given to the State to intervene in the parenting of children are in respect of exceptional cases when a child is being abused, ill-treated or neglected such as to harm (or likely to affect prejudicially) their safety and welfare, and the State must act, in the common good, to protect the child.

Furthermore the proposed Amendment requires that any intervention will always be proportionate to the risk facing the child, which ensures that a child is only removed from his or her parents where no other appropriate action can be taken which will protect the child’s safety and welfare in the home. This will enable the State’s family support and early intervention services to work with parents to support the welfare of children in the home and with the goal of hopefully preventing more serious problems later on which might result in children being taken into care.

How does Irish and UK Adoption Law compare in relation to children who are the subject of care orders?

Summary of Key Differences

In the UK local authorities can place children for adoption, who are the subject of Care Orders, without consent of their parents which can be dispensed with by order of the court.  It would seem that a child could be placed for adoption very soon after he/she has been made the subject of a care order.  Under the legislation, the local authority can apply for an order to place a child before a full care order is made.

In Ireland, the HSE / Agency does not, and will not, have the power to “place” a child for adoption by virtue of having that child in its care under a care order.

In theUKan adoption application in respect of a child in local authority foster care can arise once the child has been in the care of the prospective adopters for 15 months.

In Ireland, under current legislation, the parents must have failed in their duty (as established in the Constitution) towards the child for a period of at least 12 months before that child can be considered for adoption.  Under current law the child must be in the custody of and have a home with the prospective adopters for at least 12 months immediately preceding the adoption application but the High Court must be satisfied that the failure will continue until the child reaches 18 years of age.

The proposed amendment to the Adoption Act would provide that, before that child could be considered for adoption, the parents must have failed in their duty towards the child for at least three continuous years with no reasonable prospect that they will be able to care for their child. A child must be in the custody of and had a home with the applicants for 18 months before an adoption application may be made by them.

A further safeguard in Irish adoption law is contained in section 53 of the Adoption Act 2010.  This requires the Adoption Authority of Ireland to make a declaration that it would be satisfied to make an adoption order if the High Court authorised the making of such an order in the particular case.  The section involves the Authority, in its consideration of the making of a declaration, to hear the HSE and others who wish to be heard (including the prospective adopters, the child, the parent(s), and a relative of the child).  If the Authority does not make such a declaration, an application to the High Court cannot proceed.

In the UK, the only consideration the courts have to take into account in determining whether to make an adoption order without the consent of the parent(s) is the welfare of the child. This applies whether the child has been voluntarily placed for adoption by a parent or guardian or by the local authority in the context of a care order.

In Ireland, should the proposed amendments to the Adoption Act be enacted, a far more stringent test must be met before the High Court will authorise the adoption of a child who is in care.  As stated above, the Court must be satisfied that there has been parental failure, that there is no reasonable prospect that this will change, that the failure amounts to an abandonment of all parental rights as provided for under the Constitution, before the Court will consider a child eligible for adoption. The Court must then consider the Constitutional rights of all parties including the rights of the family under Article 41; the Court must take into account the views of the child and in making its determination the best interest of the child shall be the paramount consideration.

It is also to be borne in mind that there is a strong cultural difference between Ireland and England in the area of adoption which is reflected in UK Government policies in the respective jurisdictions.  In October 2011, the UK Government challenged local authorities in England ‘to do better on adoption’[1]. It has produced performance tables ranking local authorities in England on key issues, including how quickly they place children for adoption.  The average length of time for an adoption to take place was two years and seven months; the government there wants this to be quicker.

In Ireland there is a very different policy approach which treats foster care and adoption as entirely separate and distinct processes. A key difference in approach is evidenced by the fact that the HSE cannot (and will not under proposed legislation) be able to place a child in foster care for adoption.   As already mentioned, consideration of adoption for a child in foster care only arises in circumstances of parental failure amounting to abandonment of parental rights which has occurred for a prescribed period of time.

There is no reason or plan to change this policy.  In addition, any change to the law that could be contemplated would be required to take account of the Constitutional rights of the family under Article 41 and the constraints placed by the Constitution on State intervention in the family to supply the place of the parents under the proposed new Article 42A 2.1.  Such constraints provide considerable safeguards compared to the UK’s legal framework.

[1] http://www.education.gov.uk/inthenews/inthenews/a00199774/local

How will the “best interests” principle be applied under the proposed constitutional amendment on children ?

The best interests concept is widely understood and applied in this jurisdiction.

The best interests provision only relates to certain proceedings identified in the proposed amendment:

• when parents have failed their children and put their safety and welfare at risk and the State has been obliged to intervene (child care proceedings); or
• when parents or guardians are in dispute about custody/access in family law proceedings or in adoption proceedings.

The proposed amendment recognises, at a Constitutional level, that realising the ‘best interests’ of the child should be the paramount consideration in the resolution of these proceedings and in determining the best interest of the child the court will take into account the views of the child where that child is old and mature enough to be able to express his or her views.

The best interests test requires the focus in these proceedings to be on securing the best outcome for the child.

• The Courts have not attempted to prescribe the best interests test in absolute terms.  Where Courts have remarked they have clearly favoured retaining a flexibility.  For instance the Court has stated that “…the circumstances in which a child lives and the relationships of the child are important factors in determining the best interests of the child” [ J. McD v P.L and B.M [2010] 2. I.R 199, p 276]

It is important to emphasise that while the Courts exercise a degree of discretion in determining what is in the “best interest of the child” given the range of facts, circumstances and considerations that can present in that regard, they are not unfettered and there are certain principles or presumptions that will influence any such determinations.  A major consideration will be the existence of the legal presumption that the best interests of the child are best met within the family unit. This presumption is well established in Irish law.

The Constitutional Rights of parents set out in Articles 40 and 41 of the Constitution remain unchanged.