Kilkelly on ‘Best Interests’ and the Proposed Constitutional Amendment

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The report of the Joint Oireachtas Committee on the amendment to the Irish Constitution includes a proposal to include what is commonly known as the ‘best interests principle’ into the new Article 42 in two forms. The first form appears in Article 42.1.2° which recognizes the rights of all children and specifies that this includes the right ‘to have their welfare regarded as a primary consideration’. Although this provision refers to ‘welfare’ rather than ‘best interests’ and so could be said to be narrower (and arguably more paternalistic) in nature it otherwise mirrors the standard set out in Article 3 of the Convention on the Rights of the Child (CRC). Although the latter has been criticised for not requiring that the child’s interests are paramount, its strength is that it has wide application, potentially applying to all areas of state decision-making that affect children. Including this principle here, therefore, should require the state to ensure that regard is had to the child’s welfare in areas like budgetary decision-making, planning, immigration and criminal justice.

Building on this general principle, Article 42.1.3° provides that ‘[i]n 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.’ This is a stronger principle that requires children’s welfare and interests to be the ‘first and paramount’ factor in decisions made about them in a wide range of areas, including family law areas (eg custody and guardianship), while also including the broader categories of care and upbringing. These terms might, feasibly, be defined to include children’s treatment in care, in custody/the criminal justice system and education. So, this section too has a potentially broad effect meaning that, overall, giving the principle constitutional expression in the manner outlined must be welcomed, insofar as it has real potential to ensure that decision-making that affects children has a much greater focus on children themselves. The replication of the language of the CRC is also important because it will allow those interpreting and applying the provisions to draw on the guidance inter alia of the Committee on the Rights of the Child and, in particular, its recommendation that decisions concerning a child’s interests must take into account the views of the child.

At the same time, it is important to be mindful of the criticism often leveled at the best interests principle generally, namely that it is a vague provision which gives enormous discretion to the decision-maker to impose his/her own judgment as to what the child’s welfare demands in a particular case. This is a valid concern but the provision is already enshrined in Irish law where it provides the basis on which decisions are made in family law cases every day. No effort has been made to address its vagueness, for example, by developing a ‘welfare checklist’ (the approach taken in many other jurisdictions) to ensure that decision-making is more tightly circumscribed, or to require that the bases for such decisions are published to ensure proper public scrutiny. Legislative provision along these lines should be given serious consideration in the event that the principle is given constitutional expression.