The Proposed Constitutional Amendment on the Child: An Initial Analysis from a CRC Perspective

After over 2 years, 62 meetings and numerous milestones highlighting the precarious position of children’s rights in Irish society including the publication of the Ryan and the Murphy reports, the Oireachtas Committee on the Constitutional Amendment on Children has at long last issued its third and final report.

The Committee’s terms of reference were to ‘consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007.’ In her Foreword to the Report, the Committee Chairwoman, Mary O’Rourke, TD, stated that ‘since it began its work just over two years ago, the sole objective of the Committee has been to ensure the strongest protection of the rights of children and to further their best interests.’ The key question at this point is whether the Committee has, in fact, achieved this.

Having deliberated on the proposed Article 42(A).1–4 set out in Twenty-eighth Amendment to the Constitution Bill 2007, the Committee recommended ‘an alternative approach’. According to the Report:

The Committee proposes that the existing Article 42 of the Constitution is amended as set out in the following section.

Amendment of Article 42 of the Constitution
Article 42 of the Constitution is proposed to be amended as follows—
(a) existing sections 1 and 5 to be deleted,
(b) new sections 1 – 6 set out below to be inserted, and
(c) existing sections 2 – 4 to be rearranged and numbered as sections 7 – 8.

Children
Article 42
1. 1° The State shall cherish all the children of the State equally.
2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.
3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.

2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii the right of the child to an education;
iii the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.

3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status.

5. Provision may be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child and where the best interests of the child so require.

6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.

7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
3° Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State.

8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

In doing so, the Committee highlighted that

It was not within the remit of the Committee to address or consider the provisions relating to education which are set out in Articles 42.2 – 42.4 inclusive of the Constitution. However, because the Committee has proposed the deletion of the current Article 42 and its replacement with a new one, it is necessary to re-state the retained Articles 42.2 – 42.4. They now appear essentially unaltered in Articles 42.7 and 42.8 of the Committee’s proposed Article 42. These retained sections are in a different order to that which pertains in the Constitution. They are numbered together at the end of the Committee’s proposed amendment to set them apart from the new sections proposed by the Committee. There is only one very minor amendment to the wording of these sections, namely the deletion of the word “this”, which appears in the current article 42.2. This is merely a technical alteration as this provision in its new position in the proposed Article 42.7.3 would otherwise not make sense.

There is much to be welcomed in the draft amendment, albeit that it still evidences some serious shortcomings in ensuring holistic protection to the rights of the child. In addition, there are a wide range of perspectives from which the proposed text could be considered. This blog entry, however, will focus on whether, if adopted, the Committee’s proposed wording would bring Ireland into compliance with its voluntarily assumed international human rights law obligations under the UN Convention on the Rights of the Child.

The Committee on the Rights of the Child (ComRC) has directly addressed the issue of the domestic incorporation of the CRC in relation to Ireland on a number of occasions. In its 1998 Concluding Observations on Ireland’s initial State Report, the ComRC urged Ireland to

take further steps to ensure that the Convention is fully incorporated as part of the domestic law, taking due account of its general principles as defined in article 2 (non-discrimination), article 3 (best interests of the child), article 6 (right to life, survival and development) and article 12 (respect for the views of the child)

It also recommended that Ireland

take all appropriate measures to accelerate the implementation of the recommendations of the Constitutional Review Group for the inclusion of all the principles and provisions of the Convention

8 years later, the ComRC bemoaned the fact that the Convention had not yet been incorporated into domestic law ‘as recommended by the Committee in its previous concluding observations’.

The Oireachtas Committee’s Report makes it clear that that body was aware that the current Irish domestic framework is out of kilter with the CRC, with the Committee expressing its view that ‘our laws and services for children should be in accordance with the State’s obligations under the United Nations Convention on the Rights of the Child’. In doing so, the Committee stated that

The Committee endorses the fundamental principles of the UNCRC as identified by the UN Committee on the Rights of the Child. These are:
(i) Non discrimination in enjoyment of convention rights;
(ii) That the best interests of children are a primary consideration in all actions concerning children;
(iii) The right of the child to life, survival and development; and
(iv) The right of the child to be heard in all matters concerning him or her.

The Committee went on to say that it recommends that Article 42 of the Constitution is amended as proposed ‘in order to implement these recommendations’. It is thus appropriate to evaluate the proposed amendment in light of the general principles of the UNCRC. That is, the right of the child to be heard (Article 12 CRC), the child’s right to survival and development (Article 6 CRC), the non-discrimination principle (Article 2 CRC) and the best interests of the child (Article 3(1) CRC).

The Right to Survival and Development

The draft wording does not explicitly enshrine this right, nor does it include any socio-economic rights apart from the right to education – a right that was already ready part of the constitutional schema. The amendment does contain a provision on ‘the right of the child to such protection and care as is necessary for his or her safety and welfare’. Similarly it iterates the ‘responsibility of parents’

to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

In terms of determining whether the amendment gives effect to Article 6 CRC, much hangs on the interpretation of ‘physical, emotional, intellectual, religious, moral and social education and welfare’ or ‘the right of the child to such protection and care as is necessary for his … welfare’. If these provisions are interpreted as being solely concerned with welfare in the sense of child protection or education solely in the sense of scholastic education, then Article 6 and the range of socio-economic rights accorded to children under the CRC will not be reflected or implicitly covered by any part of the provision – whether by parents or by the state in the case of parental failure. While Article 42.1.2° provides that ‘The State recognises and acknowledges the natural and imprescriptible rights of all children’, the failure to expressly set out any socio-economic rights other than the right to education as well as the reluctance of the Irish courts in recent years to become involved in the delineation of unenumerated socio-economic rights or the enforcement of already-identified constitutional socio-economic rights (see, e.g., TD v Minister for Education )(2001) strongly suggests that the amendment as it stands is highly unlikely to guarantee the right to development.

The Committee’s refusal to include socio-economic rights provision is undoubtedly linked to the legal advice it received that:

It is an impermissible breach of the doctrine of separation of powers for the courts to make orders directing the State to implement particular policies which go beyond the particular needs of an individual child, as this involves the court in determining policy issues concerning particular social problems.

This sweeping statement is premised on a highly contested conception of the separation of powers doctrine which has been strongly advanced by several current members of the Supreme Court. Such an approach is certainly not an inevitable construal of Irish constitutional law as whole, nor does it take account of international experience involving the adjudication of children’s socio-economic rights. Given that the ComRC has made it clear that CRC rights – including ESR – are to be regarded as justiciable, the Committee’s approach on this issue is undoubtedly potentially in contravention of a correct understanding of the obligations imposed by the CRC. Furthermore, given the inclusion of a reference in draft Article 42 to the duty of the state to endeavour ‘to supply or supplement the place’ of parents ‘by proportionate means’ (which the Committee envisages extending to ‘the need for proportionate intervention to support and protect families’), it is not clear that a court in ordering the state to provide state supplementation to parents in the would, in fact, be able to avoid ‘determining policy issues concerning particular social problems’ albeit that the order of the court may only apply to the specific situation before it.

Indeed, in light of the fact that the legal advice received by the Committee stated that ‘there is some doubt as to the nature and extent of such rights if they are un-enumerated socio-economic rights’, the non-delineation of socio-economic rights other than education in the draft provision is arguably a missed opportunity to address this legal uncertainty.

The Best Interests of the Child

It is notable that in some parts of the amendment where the best interests of the child might be referred to, the language of the ‘welfare’ of the child (see Article 42.1.2°) has been used instead. At one level this is unproblematic due to the fact that there is a considerable overlap between common understandings of the content and function of the ‘welfare’ and ‘best interests’ of the child. However, unlike the child’s ‘welfare’, the ‘best interests of the child’ are generally understood to be determined in light of the totality of the provisions of the CRC. By employing the language of ‘welfare’ rather than ‘best interests’, the Committee is arguably recommending a narrower concept that establishes a paternalistic approach primarily concerned with child protection and that does not take into account the range of CRC rights that may play a key role in determining what is in the child’s best interests. Indeed, the inclusion of both the language of ‘welfare’ and ‘best interests’ in the provision seems to auger strongly for a separate (and thusfar indeterminate) meaning for welfare. This is despite the fact that, in some parts of its report, the Committee appears to regard them as synonymous (see, e.g., Chapter 10.6). Furthermore, given the number of clauses containing the word ‘welfare’, it seems to be being used to cover a wide range of issues pertaining to the child’s condition and a definitive fleshing out of its meaning may require a series of cases being brought with regard to the various elements of the proposed amendment.

The current draft wording is an improvement on the 2007 proposals in that it extends reference to the ‘best interests’ of the child to contexts beyond those of adoption, guardianship, custody or access matters to include disputes concerning the ‘care or upbringing’ of the child. Indeed, the draft provision arguably goes beyond the provisions of the CRC (which refers to the best interests of the child as a ‘primary consideration’ in ‘all matters concerning children’) in stating that the best interests and welfare of the child ‘shall be the first and paramount consideration’ in the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child. However, by failing to include a statement outlining the right of the child to have their ‘best interests’ (as opposed to their welfare) regarded as a primary consideration in Article 42.1.2°, the Committee introduces a potentially weaker standard in relation to (the very wide range of) contexts other than those outlined in Article 42.1.3°.

It is also unclear as to whether the inclusion of the welfare/best interests of child (and indeed many of the other provisions) in draft Article 42 would, in fact, ultimately operate in a child-centric way in practice, given the Committee’s decision to leave Article 41 untouched.

As it stands, the draft provision is decidedly more limited than the mandatory requirement set out in Article 3(1) CRC that the best interests of the child are to be a primary consideration in all matters affecting them. Certainly, the proposed constitutional amendment will not result in the Constitution meeting the standard set out by the Committee in its General Comment No.5 on General measures of implementation of the Convention on the Rights of the Child that:

[e]very legislative, administrative and judicial body or institution [being] required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions …, including those which are not directly concerned with children, but indirectly affect children.

Non-Discrimination

The Committee’s text is a strong improvement on the previous draft amendment’s failure to include a clear statement that the state is obliged to give effect to the rights of all children in Ireland without discrimination of any kind. Admittedly, the draft provision does not contain an express prohibition of non-discrimination against children on a wide range of grounds in the manner of the CRC. However, it is to be hoped that the statement in Article 42. 1. 1° that ‘The State shall cherish all the children of the State equally’ will serve the purpose of a general non-discrimination clause, albeit that the inclusion of an open-ended/non-exhaustive list of prohibited grounds of discrimination would have provided useful guidance to the courts and law and policymakers seeking to implement this right.

Draft Articles 42.5 and 42.6 remove the current constitutional distinction in terms of adoption and placement for adoption between marital and non-marital children. Positively, again, Article 42.4 removes the current distinction between marital and non-marital children in terms of the test triggering state intervention into the family.

The Right of the Child to be Heard

Article 12 CRC states that:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Very positively, draft Article 42 provides that:

2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
ii the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.

In doing so, the Committee’s proposed wording strongly enshrines the child’s right to be heard in ‘judicial and administrative proceedings affecting the child’, thereby giving effect to Article 12(2). However, this provision falls considerably short of setting out right of the child to express her views ‘in all matters affecting the child’.

The draft amendment’s failure to reflect the full scope of Article 12 is perhaps unsurprising. In Chapter 1.3, the Report highlights that the Committee had ‘the opportunity to hear the views of a number of expert persons and bodies whose expertise included child protection, criminal law, psychology, children’s rights, child welfare, and other fields of direct relevance to the matters considered by the Committee.’ It is striking that there is no reference to the Committee seeking the direct input of children either here or elsewhere in the report. This is despite clear statements of the Committee on the Rights of the Child that the views of the child ‘should be considered in decision-making, policymaking and preparation of laws and/or measures as well as their evaluation’ (General Comment No.12 on the right of the child to be heard, para 12).

Indeed, serious questions have to be asked about the compliance of the Committee’s procedure with Article 12 CRC. Given the existence of bodies such a Dáil na nÓg , it is surprising and disappointing that the Committee does not seem to have deliberately sought out the views of children or ensured child participation in such a key standard-setting process in relation to their rights. While adequate child consultation would have taken time and required resources, it is unfortunate that the Committee did not take advantage of its very lengthy period of consideration in order to ensure that children were consulted – whether by carrying out such outreach work directly (for instance, by specifically seeking submissions from children or taking evidence from child representatives) or indirectly (by developing its relationships with child sector organisations who could have carried out such a consultation to feed into the process).

As it stands, the draft provision does not meet the requirements of Article 12(1).

Next steps

It was reported on RTE news this evening that Barry Andrews, Minister for Children, has said that he cannot anticipate when a referendum will take place. The inexcusable nature of any delay in holding the referendum has already been highlighted on this blog. It is to be hoped that the near future will see greater specification of when the proposed referendum is due to be held.

Furthermore, in its report, the Committee recommended that ‘The Committee also recommends that any of the UNCRC principles not adopted into the Constitution should be incorporated into Irish Law by appropriate means‘. Given the gaps identified by even a relatively brief perusal of the amendment in terms of the general principles of the CRC, much work remains to be done to ensure that this occurs.

Over the new few days, further analysis of the proposed amendment text will be posted on this blog. The amendment has previously been discussed here, here and here.

Other analyses and statements on the draft text are available (or will be available shortly) on the websites of the Children’s Rights Alliance, the Ombudsman for Children and Barnardos Ireland.