The courts will determine

The practical effect of the Children’s Referendum depends on the legislature and judiciaryUrsula Kilkelly 


Over the past 20 years, many national and international bodies have recommended that express protection be given to children’s rights in the Irish Constitution. When the wording to be put to the people on November 10th was published, the Minister for Children and Youth Affairs, Frances Fitzgerald, described it as a “major and historic change”. But, what, if any, real effect will these proposals have on children’s lives?

In 1989, the United Nations Convention on the Rights of the Child recognised that children are holders of a wide range of rights including the right to protection from harm, to participate in decisions that affect them; and to basic needs like health and education. These rights exist outside as well as within the family, and parents play a hugely important role in their protection. The Convention recognises the clear importance of the family to children, while at the same time it acknowledges that the state has the ultimate responsibility to ensure that children’s rights are vindicated.

It is significant then that the first part of (the new) Article 42A proposed in the amendments recognises, in explicit terms, that children have rights that the state has a duty to protect. This strongly-worded statement has great potential to hold the state to account for its treatment of children. Whether this is realised, however, will depend on how the rights of children are inferred by the Courts, and the extent to which lawyers use the provision to advance children’s rights through litigation.

In addition, the proposed amendment seeks to change existing Constitutional provision. In particular, Article 42A.2 makes three relatively modest amendments to Article 42.5 concerning state intervention in the family. It also requires the enactment of legislation to enable children born to married parents to be placed for adoption and the enactment of legislation to ensure that judicial proceedings in family law matters have regard both to the best interests of the child as the paramount consideration and to the views of the child, in line with the child’s age and maturity.

There is nothing wrong with any of these proposals. It is sensible that adoption should be available to all children in need of permanent alternative care where it is in their interests. Legal interpretation has highlighted the need for Constitutional reform here.

However, it is more difficult to understand the need for Constitutional change with regard to a) the best-interests principle and b) the child’s right to have his/her views taken into account in family law proceedings. The proposed amendment does not incorporate these two principles into the Constitution per se. This means they will not be available to guide the Courts as a matter of Constitutional law. Rather, the amendment merely requires provision to be made for these principles in legislation.

However, these two principles are already on the statute book in various forms. For example, existing law makes clear that the Courts must treat the child’s best interests as the paramount consideration in cases of child protection, adoption, guardianship, custody and access. Legislation also provides for children’s wishes to be taken into account in child protection proceedings and, although similar provision was made in respect of private family law disputes, concerning custody and access for example, this law was never brought into force. Although the amendment should ensure that measures are taken to ensure that children’s views are taken into account in private family law proceedings, this could, in fact, happen without Constitutional change.

The proposed amendments to the Constitution may stimulate debate about how the law can be more effectively applied and enforced to advance children’s rights. However, beyond this symbolism, it is difficult to see what they will add to existing law. It is particularly disappointing that the best-interests principle and the child’s right to be heard are not incorporated fully into the Constitution so that they could guide judicial decision making in all areas affecting children including, for example, education, immigration or healthcare. It is also regrettable that these provisions are restricted to the judicial and thus do not apply to administrative proceedings. The result of this is that decision-making concerning child protection, healthcare, education, welfare and housing, for example, will be unaffected by the Constitutional changes.

The advancement of children’s rights in Ireland also demands a reforming agenda that modernises Irish child law, promotes widespread training on children’s rights for those who work with and for children, and ring-fences budgets to ensure that these rights are protected in practice. Constitutional expression of children’s rights is an important platform from which these developments could be built and, taken together, they could usefully promote the development of a children’s rights culture that might ultimately transform the treatment of the child in Irish law.

It is not clear whether the presence in the Constitution of a provision dedicated to ‘children’ will have a substantive effect on the way cases that affect them are decided.


Professor Ursula Kilkelly is Director of the Child Law Clinic and Dean of the Faculty of Law, University College Cork