The Government is seeking submissions on its proposed children's rights referendum. In a newspaper ad last week, it announced that it had established a Joint Committee on the Constitutional Amendment on Children, to examine the current wording of the amendment. The proposed wording was unveiled earlier this year by then Minister for Children, Brian Lenihan, and will replace the current Article 42.5. It reads:
1. The State acknowledges and affirms the natural and imprescriptible rights of all children.
2.1 In exceptional cases, where the parents of any child for physical or moral reasons fail in their duty towards such child, 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.
2.2 Provision may be made by law for the adoption of a 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 may be made by law for the voluntary placement for adoption and the adoption of any child.
4. Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child.
5.1 Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law.
5.2 No provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age.
5.3 The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability.
Many, such as children's law expert Geoffrey Shannon, say that the amendment is needed to enable children in foster care whose natural parents are married to be adopted. While such adoptions are possible under the 1988 Adoption Act, Mr Shannon says that, in practice, the legal test under the Act makes the adoption of the child of married parents almost impossible.
However, prominent legal figures, such as Trinity law professors William Binchy and Gerry Whyte, fear that the wording may allow the Oireachtas to create a law which would radically alter the current legal climate in a way harmful to the interests of natural parents and without serving children.
According to Professor Binchy, section 2.2 of the proposed wording would allow the non consensual adoption of children "where the parents had failed in their duty for a very short period – in theory a few weeks could suffice".
Speaking earlier this year, Professor Whyte echoed these concerns. Section 2.2, he said, only required a temporary failure of duty on the part of parents for their child to be adopted compulsorily, he noted. He also pointed out that non-consensual adoption based on failure of duty for reasons other than physical or moral, for example for reasons of handicap, could be allowed.
All interested organisations and members of the public have been invited to make submissions by January 31, 2008.
The members of the Committee will include the Minister for Justice, Brian Lenihan, the Fine Gael spokesperson on children Alan Shatter, and the current Minister for Children, Fianna Fáil TD Brendan Smith.
The orders of reference for the committee can be viewed online.
Submissions can be sent to: Clerk to the Joint Committee on the Constitutional Amendment on Children, Kildare House, Kildare Street, Dublin 2 or emailed to: childamend@oireachtas.ie.
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