Irish Catholic Bishops’ Conference
Statement on the proposed thirty-first amendment of the Constitution Article 42A, on Children
source – irishbishops.ie
5 November 2012
Over recent years the question of giving explicit recognition to the rights of children in Bunreacht na hÉireann Constitution of Ireland has been the subject of public debate and consideration by a number of All-Party Oireachtas Committees. A key question in this debate is whether the protection of children’s rights is best achieved through express recognition in the Constitution or through legislation alone.
On the one hand, any constitutional change could have wide-ranging and unforeseen consequences for the relationship between children, the family and the State. In particular, it could undermine the careful balance between the rights of parents and children and between the rights of parents (or guardians) and the State achieved by current constitutional provisions. On the other hand, the Constitution has an important role in ‘signalling’ the priorities and fundamental values of our society. Given that children are among the most vulnerable members of the human family and in need of the greatest protection, explicitly recognising the dignity and rights of Children in our Constitution is an important and principled proposition that deserves serious consideration. The legacy of failure by individuals, organisations, the Church and the State to adequately protect children in Ireland strengthens the case for signalling our commitment to the dignity and welfare of all children at a Constitutional level.
As bishops we share the concern of others to ensure that the proposed amendment on children does not undermine the rights of parents and the presumptive place of the family, based on marriage between a woman and a man, as the unit in which the welfare and rights of children are best exercised and safeguarded. We share some of the concerns that have been raised by others about the potential out-working of future legislation and practice in this area.
However, when read in conjunction with the unaltered constitutional provisions on the family and education, the wording of the Thirty-First Amendment on Children suggests that a reasonable and balanced approach to framing the proposed new article on children’s rights has been taken. The proposed amendment largely reflects those rights of children already present in existing case law and legislation, such as the Child Care Act 1991 and the Adoption Act 1988. Critically, the current constitutional presumption that the welfare and rights of a child are best exercised and safeguarded within the family in all but exceptional circumstances is preserved. In such an exceptional event, it is clear that parents will have the same constitutional rights, and the same right to defend proceedings and challenge evidence presented by the State, as they have at present. The principle of proportionality introduced by the proposed amendment also ensures that excessive State intervention that goes further than absolutely necessary to protect children can continue to be challenged through the courts.
While the possibility of unintended consequences is always present in the context of Constitutional change, it is clear that the wording of the proposed amendment on children is not intended to undermine the current Constitutional balance between the rights of parents and children, or between parents and the State. If unforeseen or unintended consequences do emerge in time, the remedy of further Constitutional amendment or amending legislation is available to mitigate the consequences of any such developments.
Many of the concerns that have been raised about possible future negative consequences arising from the proposed amendment exist whether the proposed Constitutional amendment on children is passed or not. This highlights the need for active and on-going engagement as citizens in the democratic process as the legislation arising from the proposed amendment is developed.
As it is, we as bishops repeat the view of the Committee for the Family of the Irish Catholic Bishops’ Conference in 2008, that in the context of a decision to hold a Constitutional referendum on this issue, ‘the case is strong for signalling the value which society and the Church attach to children’s rights’ . As an exercise of co-responsibility for the common good, we strongly encourage all those with the right to vote in the forthcoming referendum to do so after carefully weighing up all the important values and issues involved.
 In its submission to the Oireachtas Joint Committee on the Constitutional Amendment on Children in March 2008, the Committee for the Family of the Irish Catholic Bishops’ Conference stated that ‘Given the likelihood that a Constitutional referendum will take place, the case is strong for signalling the value which society and the Church attach to children’s rights’.