Children's Referendum November 10th 2012

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.

What will change if the referendum is passed?

This Referendum proposes to place a dedicated Article in the Constitution which has children as its central focus.

This Referendum is about strengthening the Constitution:

• To provide that the rights and protections set out in this new Article should apply equally to all children, regardless of the marital status of their parents;
• To protect children from abuse and neglect;
• To recognise children in their own right.

The wording of the proposed Constitutional amendment is available here.

Protecting children

For children at risk, this Referendum seeks to ensure that they are protected from harm.

It sets out when and how intervention should occur, with the focus on the child, and referring to the impact of parental failure on the child’s safety and welfare, rather than solely on such failure and the reasons for it.

Overall, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family.

Supporting Families

The amendment will require State intervention in the family to be proportionate.

This is in line with current Government policy, which is to continue the development of early intervention and family support services, which play a vital role in responding to child welfare concerns, thereby preventing more serious problems arising. Furthermore, the government’s objective is to protect children in the home and prevent children being taken into care at a later stage.

Removing Inequalities in Adoption

On the passing of this Referendum a clear standard will apply across areas of law relating to child welfare and protection and family law that the rights and protections set out are to be enjoyed by all children, irrespective of the marital status of their parents.

If passed:

• Provision shall be made by law for the adoption of any child, irrespective of his or her birth status. This will provide greater opportunity for children in foster care to be adopted; and where it is in the best interests of the child
• Provision shall be made by law for the voluntary placement for adoption of any child (again, irrespective of birth status)

There will be a revision of existing adoption law to more readily facilitate the adoption of children in certain well-defined circumstances. These are 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. It will give them a better opportunity of certainty and permanency of living in a loving, caring family.

Recognising children in their own right

It will mean that provision is made by law, that in the resolution of all proceedings concerning the protection and welfare, adoption, guardianship, custody, and access in respect of any child, the best interests of the child shall be the paramount consideration.

This Referendum proposes to change our Constitution to include a standalone article (Article 42A) on ‘Children’, thus providing a strong affirmation of each individual child’s inherent rights, while continuing to respect and preserve the rights of the family, as set out in the existing Article 41.

This Referendum also proposes, for the first time, to give Constitutional recognition to the best interests and views of the child in court cases affecting their life.

This Referendum, if passed, will mean that provision may be made by law to ensure that in the resolution of all proceedings concerning the protection and welfare, adoption, guardianship, custody, and access in respect of any child that:

• the paramount consideration is the best interests of the child.

• the views and wishes of the child should be taken into account, as long as the child is sufficiently mature to make this appropriate.