A Critical Analysis of the Thirty First Amendments to the Constitution
In November 2012, a proposal to insert a new article into the Constitution was put before the people of Ireland. The new amendment is specific to children’s rights and proposes to extend and strengthen current provisions in the Constitution concerning these rights. The foundation for the Children’s Rights Referendum is from a number of different sources. In addition, the bill was passed by the Oireachtas and approved by a majority vote at referendum. Nonetheless, the bill has not yet been signed into law, pending the legal outcome of a challenge to the validity of the constitutional referendum. Moreover, if the bill is signed into law, Article 42.5 of the Constitution will be deleted and Article 42A will be inserted into the Constitution. Furthermore, the Thirty-First Amendment to the Constitution includes four vital elements, each addressing constitutional protection for children. This paper will attempt to explore the matter in greater detail.
Primarily, current provisions in the Constitution prevent any State intervention concerning marital families, where there is a serious risk to the child. In addition, the current law restricts married parents regarding adoption law. Furthermore, there is a concern that currently a child’s wishes is not taken into account regarding custody proceedings. Additionally, the State cannot impede decisions of the marital family even if they are conflicting with the child’s best interest.
As stated by David Kenny
The impetus for this change is most frequently attributed to Ms Justice Catherine McGuiness, acting as chair of the Kilkenny Incest Inquiry in 1993. She suggested that the strong emphasis on the rights of the family in the Constitution, may, consciously or unconsciously, cause people to give more value to the rights of parents, at the expense of the rights of the child.
Most importantly, the proposed new amendment which will replace the current Article 42.5 of the Constitution consists of the following provisions. Many of the new provisions underpin what is already set out in the Constitution. The structure of Article 42A is as follows.
1.The State recognises and affirms the natural and imprescriptible rights of all
children and shall, as far as practicable, by its laws protect and vindicate those rights.
2.1° In exceptional cases, where the parents, regardless of their marital status, fail in
their duty towards their children to such extent that the safety or welfare of any of their
children is likely to be prejudicially affected, the State as guardian of the common
good shall, by proportionate means as provided by law, endeavour to supply the place
of the parents, but always with due regard for the natural and imprescriptible rights of
2° Provision shall be made by law for the adoption of any child where the parents
have failed for such a period of time as may be...