The Constitution Before and After
the Amendment on Children
Dr Conor O’Mahony
Faculty of Law
Article 41 (unchanged)
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1. 1° Family is the “natural primary and
fundamental unit group of Society…possessing
inalienable and imprescriptible rights,
antecedent and superior to all positive law.”
2° “The State, therefore, guarantees to protect
the Family in its constitution and authority…”
…
3. “The State to guard with special care the
institution of Marriage, on which the Family is
founded, and to protect it against attack.”
Articles 42.1 and 42.2 (unchanged)
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1. “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…for the…education of
their children.”
2. “Parents shall be free to provide this
education in their homes or in private schools or
in schools recognised or established by the
State.”
Articles 42.3 and 42.4 (unchanged)
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3. 1° “The State shall not oblige parents in
violation of their conscience and lawful
preference to send their children to…any
particular type of school designated by the
State.”
4. “The State shall provide for free primary
education…”
Article 42.5 (to be replaced)
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“In exceptional cases, where the parents for
physical or moral reasons fail in their duty
towards their children, the State…shall
endeavour by appropriate means to supply
the place of the parents, but always with due
regard for the natural and imprescriptible
rights of the child.”
Current constitutional position
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Extensive rights for the (marital) Family
(Article 41)
 “inalienable and imprescriptible rights”; “constitution
and authority” to be protected
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Strong express rights for parents (Article 42)
 “inalienable right and duty” to educate children
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Barely mentions children
Legislation on child welfare
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Child Care Act 1991
HSE has duty to promote welfare of children
HSE may apply to District Court for
supervision orders or care orders
Welfare of children the paramount
consideration
Views of child may be heard by court
Legislation on child custody etc
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Guardianship of Infants Act 1964
(guardianship, custody, access)
Adoption Act 1974
Welfare of child the first and paramount
consideration for the court
Provision made for views of child to be heard
 but never implemented
Presumed best interests
Constitution is supreme source of law
 Legislation must be read in light of it
 Legislative welfare principle is read in light of
strong constitutional protection for rights of
the Family and parents
 “Presumed” best interests
 Very hard to rebut presumption: Re JH
(1985), PKU (2001), Baby Ann (2006)
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Proposed Article 42A
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.
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Clear statement of individual rights of child
Clarifies any doubt re extra-marital children
Proposed Article 42A
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
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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.
Proposed Article 42A
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Replaces existing Article 42.5
Defines “failure”: safety or welfare of children
is likely to be prejudicially affected
“Proportionate” means – more balanced and
incremental – level of intervention linked to
level of risk to child
More emphasis on earlier and less intrusive
support – less focus on crisis intervention
Proposed Article 42A
2. 2° 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.
3. Provision shall be made by law for the
voluntary placement for adoption and the
adoption of any child.
Proposed Article 42A
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.
Proposed Article 42A
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Legislation must be passed providing for
welfare principle in proceedings concerning
child protection, adoption, guardianship,
custody, access
“Best interests” instead of “welfare”
Principle not applicable outside of the context
of the specified court proceedings
Legislation only – presumed best interests
still applicable – Article 41 takes precedence
Proposed Article 42A
2° 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.
Proposed Article 42A
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Legislation must be passed providing that the
views of the child shall be ascertained in
proceedings concerning child protection,
adoption, guardianship, custody, access
Mandatory: “shall” (currently optional)
Public and private law (currently public only)
Principle not applicable outside of the context
of the specified court proceedings
Summary
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Statement of individual rights of all children
Slight re-phrasing re State intervention
Adoption of children of married parents
Best interests principle to be legislated for in
specified court proceedings
Legislation to provide that views of the child
shall be ascertained in same proceedings
Some changes to existing law
Largely symbolic in nature