Amendment to Irish Constitution Granting More Rights to Children - Case Study Example

Amendment To Irish Constitution – Granting More Rights To Children – An Analysis Introduction Irish Constitution was drafted as early as in 1937 and children till they attain the age of seventeen, they are under the control and care of their parents. Today, society is of the view that children do have privileges and they should be allowed to exercise their individual decision when they feel necessary. The Irish constitution through its Article 40 guarantees that Irish children have imprescriptible and irrefutable rights, which safeguard their individual privileges. However, the Irish Government having considered in the background of the “undeniable right and responsibility of parents” mentioned in Article 42.1, it has come to a conclusion that the privileges of children should be accorded more in plain expression. The Irish Government also desires to make certain that the privileges and safeguards enclosed in the Constitution relate to all children irrespective of the marital position of their parents. The proposed amendment to the Irish Constitution will attain this objective, and it will carry out the same without interfering with the superiority of the family under the Irish Constitution as the component within which the paramount interests of the child are best worked out and met. In this research essay, I am going to analyse why it is necessary to amend the Irish Constitution to give more rights (like redefining the terms of adoption and family) to children in detail. Analysis The Irish Supreme Court in “In re JH (An Infant)”1 held that intervention by state in a family affair is only considered as reasonable only if it proved that there are “persuasive objectives” why the well being of the child could not be offered in the guardianship of the parents. This was also reiterated in “N v Health Service Executive” where it was held by Irish Supreme Court that “extraordinary situations “did not present to substantiate a child to remain in the custody of her pre-adoptive parents. (O ‘Halloran 2009:216). In “North Western Health Board v. H.W and C.W” 2, the local health board initiated an action against parents of a fourteen month old child, seeking a declaration from the court that parent’s refusal to submit their son to PKU test, which amounted to the paramount significance of the best concern of the child. Further, the health department argued that department should be permitted to initiate the PKU test without the consent of the parents. Though, the parents offered urine, hair samples for the medical test and department was of the view that it was less effective. The Irish Supreme Court, however, viewed that the constitution of Irelands safeguards the family as the ‘fundamental, key and natural unit faction in the society and the court found enshrined the supremacy of the family, compelling the state to safeguard the family against capricious interference in the decision making process by families. However, critics observe that though a child is having a constitutional right to remain under the custody of a parent but if his family evaluation of his medical needs for the critical medical care is not in their best interest, what would happen. Surprisingly, the majority of judges do not even deliberate for this concern in this verdict (Bueren 2007:122). Section three of the Adoption Act 1988 is considered to be the most controversial part for the adoption of siblings of marital parents where there has been an infringement to carry out the duties to their wards by parents. The constitutionality of this provision was examined by the Irish Supreme Court in “Re Article 26 and the Adoption (No 2) Bill, 1987". “Re Article 26 and the Adoption (No 2) Bill, 1987". In this case, Irish Supreme Court negated the argument that the character of the family as a unit group having imprescriptible and inalienable privileges, obliges it constitutionally impossible for a law to reinstate to any associate of an individual family legitimate privileges of which he has been denied by a strategy which alters or disturbs the set up of that family if that strategy is essential to attain that objective. Thus, the constitution is offering a guarantee to the institution of the Irish family, with their consequential advantage to the children of a family. Further, it should not be interpreted so that upon the stoppage of that advantage and it cannot be restored where the scenario requires it, by rearing of the child in a substitute family. (O’ Mahony 2009:5). “Murray v Ireland" In “Murray v Ireland"3, it was held that the Article 41.3 unambiguously defines the Family, which is accredited under the Irish Constitution as “a Family that is footed on marriage. “The meaning of the family includes the childless spouses also. According to Irish Constitution, a family will be recognised on the basis of a valid marriage. This point has been obviously demonstrated in “G v An Board Uchtala”4 and in “State (Nicolau) v. An Board Uchtala”. 5 In Nicolaou case, it was observed that Irish Constitution does not recognise the family of a putative father with an illegitimate sibling and in case of child born out of rape of a woman by a man as there is no family relationship in these incidents. Thus, it is unambiguous that privileges assured under Article 42.1 to parents, can be claimed only where the child and the parents are members of the same family and the only family acknowledged by the Constitution under the Article 41.3 is the legally concluded marriage. In “Zappone v Revenue Commissioner”, 6both the legislative explanations and the common law of marriage were confronted and Justice Dunne acknowledged that Constitutional provisions should be applied in the present scenario and construed in the background of contemporary standards and views in the society. However, in tune with the recent legislation of 2003 and 2004 which signified that marriage in Irish law could only happen between one woman and one man. Justice Dunne also observed that popular unanimity was against delineating the concept of marriage in Article 41. However, this view has been appealed to the Supreme Court as of now. In extraordinary circumstances, where the parents of the child for moral or physical causes fall short of their responsibility towards their offspring, then the government as custodian of the general well-being, by suitable ways shall try to provide the place of the parents, but forever with due respect for the imprescriptible and natural privileges of the child. (O’ Mahony 2009:6). In” Murphy v Attorney General” and in “O’B v S”78 , it was held that the main objectives of Article 41.1 and 41.3 are mainly to safeguard the institution of marriage and family from the encroachment of legislative machinery. It is to be observed that in “Foy v An t-Ard Chlaraitheoir”9, Justice McKechnie viewed that as far as the legal purpose, marriage connotes long term bonding between the opposite biological sex. Thus, a valid marriage under common law is the permanent and voluntary union of one woman and one man to barring of all other for the whole life as held in “B. V B”10. In other words, a family under Article 41 of the Irish Constitution excludes living together of homosexual couples. Article 42.5 demands a commitment from the Irish government to make efforts to step into the status of the parents in case if the parents fail to carry out their duties to their wards. The above view was confirmed in the following cases; “N v Health Services Executive”11; “Re Article 26 and the Adoption (No 2) Bill12”, and “North Western Health Board v HW”13. Matrimonial Home Bill was published in 1993 and the Irish legislature endeavoured to alter the bill by initiating significant reforming initiatives, which intended to vest in each spouse with analogues rights of ownership in their matrimonial house. Thus, in “Re Article 26 of the Constitution “and the Matrimonial Home Bill 1993 14 where the president had some disbelief about the constitutionality of a Bill, and he submitted to the Supreme Court for a ruling under Article 26. However, this case was concluded not on the footing of Article 43 of the Constitution which pledges the right to private property but rather on the lines of Article 41, which enshrines the State’s assurance to safeguard the family in its authority and constitution. (Bainham 1994: 277). “Attorney General v. Dowse” In “Attorney General v. Dowse 15", a vital issue pertaining to the legal impact of rescinding the entry of the adoption order especially in the Register of Foreign Adoption was analysed. Normal Rules Private international law has, in fact, facilitated the passive acknowledgement of something not described in the domestic law and hence, it is probable to acknowledge the impact of the cancellation of an adoption in Indonesia and cancel the entry in the Irish Register. (O ‘Halloran 2009:244). The Hague Conference on Private International Law organised a number of conferences to develop Convention that would demonstrate various established standards, principles and rules on number of issues. . (O ‘Halloran 2009:143) In “P. W v A.W “16 , the precedents set by Irish courts was followed by Ellis J and held that the most apt place for a child was with his family. He held that the imprescriptible and inalienable privileges of a sibling could be safeguarded by the Courts by considering the well-being of the sibling as the supreme deliberation in all litigations as to its guardianship. (Breen 2006:184) It is better to analyse what the current Article 42.5 states and to evaluate what the proposed amendment to the Irish constitution is going to introduce. Article 42.5 of the Irish Constitution specifies the following: “Offering constitutional appreciation for the privileges of all children as individuals including a child’s privilege to have her or his grievances heard as regards to her or his maturity or age; For the well-being of children, such care and protection is being offered to them. “ The envisaged amendment to Irish Constitution will offer:- A. Recognition by the Irish government of the innate and imprescriptible privileges to all Irish children. B. Rewording of the present safeguarding provisions of parents and children comprised in the current Article 42.5 and the application of this provision to all children regardless the marital status of the parents. C. Extending a legal right for the adoption of children who have been in need for a sizeable period of time if it is in the paramount interests of those children. D. To make sure that all children are entitled for voluntary adoption. E. To provide legal privileges to ensure the paramount interests of children in any court or legal trials pertaining to guardianship, access, custody or adoption. F. To offer legal sanctum for the assimilation and exchange of data pertaining to the risk or authentic happening of child sexual abuse. G. To provide legal power to make offences of strict or absolute liability relating to offences in connection with or against children. It is to be observed that the proposed amendment does not alter the Supreme Court verdict giving parents the final approval in any medical processes pertaining to their children. Further, the power of the Irish government to interfere in a family remains unaltered. It can only interfere in extraordinary scenarios where there is a moral or physical failure in the family. I suggest that Article 42.5 should be amended or redrafted as follows: By establishing an impartial standard of safeguard for all children which include their privilege to have their welfare considered as supreme. To necessarily authorise the government to interfere in a timely and proportionate manner to support families in accomplishing their obligation to justify the privileges of their child. To redress the blockades that are presently hampering the successful operation of the child care, protection and adoption systems and If a child of marital family has been abandoned, to permit for the adoption of offspring in the best concern of such child. (Turnhout 2010). Conclusion I strongly suggest that Irish Constitution should be amended to redefine the term family and adoption by taking into account the changes in social mannerism as of date. Further, I suggest that we should incorporate salient features of” UN Convention on the Rights of the Child” in the Irish Constitution. The imprescriptible and irrefutable privileges of Irish parents emanate from Article 41 and “Article 42 of the Irish Constitution”. It is to be noted that these articles are not altered in the proposed amendment. In common, Irish Constitution attempts to make balances between the rights and duties of parents, the status of the family, personal rights, and the authority of the Irish government as a custodian of the common good. It is to be observed that the main endeavour of the Irish Government in its anticipated amendment is merely to incorporate children’s right to take decision on their own. (Now, law requires parent’s consent on medical, education or adoption issues. After amendment, Irish Children can decide on their own on these issues.) List of Reference Bainham, Andrew. (1994). The International Survey of Family Law, 1994. London: Martinus Nijhoff Publishers. Breen, Claire. (2006). Discrimination and Children’s Rights. London: Martinus Nijhoff Publishers. Bueren, Geraldine Van. (2007). Child Rights in Europe: Convergence and Divergence in Judicial Protection. London: Council of Europe. O’ Halloran, Kerry. (2009).The Politics of Adoption. London: Springer. O’ Mahoney, Conor. (2009). Article 41 –The Family – The Irish Constitution Law. Turnhout, Van Jillian. (2010). Set Date For Children’s Right Referendum: Alliances Urges Government. http://www.childrensrights.ie/index.php?q=knowledgebase/irish-constitution/%E2%80%9Cset-date-children%E2%80%99s-rights-referendum%E2%80%9D-alliance-urges-government Read More