Committee finalises child rights proposals

MARRIED PARENTS could consent to having their children placed for adoption if a constitutional amendment on children’s rights proposed by an Oireachtas committee is supported in a referendum.

The wording for a referendum and a rewrite of article 42, which would recognise the rights of children as individuals, will be recommended by the Oireachtas committee on the constitutional amendment on children in its final report today.

The committee proposes that the current article 42, entitled Education, be deleted from the Constitution, except for sections two, three and four which will be renumbered and rearranged within the new article, to be entitled Children.

The newly proposed article 42.4 would allow the State, where single or married parents fail in their responsibilities, to either supply or supplement the place of parents in what is described as a “proportionate” manner.

“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,” it states.

One new provision would enable the Oireachtas to enact legislation to prescribe a period of time for failure of parental responsibility. The newly proposed article 42.5 states: “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.”

Article 42.6 states: “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.”

The proposed new article would begin with a declaration to be known as article 42.1: “The State shall cherish all the children of the State equally.” The rights of children as individuals, including 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, would be outlined in article 42.2.

Article 42.3, as proposed, would acknowledge parents as primary carers, educators and protectors of children’s welfare, and includes a guarantee to respect the right and responsibility of parents to provide according to their means.

Articles 42.7 and 42.8 would re-enact some of the existing provisions of article 42. These recognise the rights of parents to send their children to schools other than those established by the State, while at all times ensuring that children receive a certain minimum standard of education and the right to free primary education.

A constitutional referendum could take place “at the back end of the year”, said Minister for Social and Family Affairs Mary Hanafin. The committee is expected to recommend the legislation around adoption be drafted for consideration together with the proposed amendment.

CONSTITUTION CHANGE: THE NEW AND THE OLD WORDING

PROPOSED NEW WORDING

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.

7.2° 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.

7.3° 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.

OLD WORDING

EDUCATION ARTICLE 42

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, according to their means, for the religious and moral, intellectual, physical and social 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.

3. 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.

4. 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.

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.