The Best Interests of the Child

On the 10^th November 2012, the 31^st Amendment to Bunreacht na hEireann was approved. The new Article 42A in relation to Children’s Rights provides:

ARTICLE 42A – CHILDREN.

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 the child.

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 prescribed by law in their duty towards the child and where the best interests of the child so require.

3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings -

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child

What does this mean?

Article 42A.1 The Government and State is obliged to ensure, as far as practicable, that the rights of ALL children are protected and vindicated. The main effect is to recognise and affirm rights of children and place them on the same plane as the general personal rights of citizens. Citizen children would have held the personal rights of citizens in any event. There is a difference between “all children” and “citizens”. However, in practice the courts have never limited the rights protected by Article 40.3 to citizens, so this distinction is of no practical effect. Essentially, Article 42A.1 is intended to signal a clear intention to protect the individual rights of all children, regardless of marital status.

Article 42A.2. 1° - The State may intervene and try to supply the place of the parents, if the parents fail in their duty towards the child. The emphasis has been shifted so that the State’s obligation to protect and vindicate children’s rights is a constant duty owed to children, and not a mere default duty This intervention must have due regard for the child’s rights and will only be allowed in exceptional cases. The biggest change here is that the State can intervene where the parents have failed in their duty towards their children, whether in fact, those parents are married to each other, or not. Previously this failure was in relation to moral and social duties, whilst now the wording refers to failure in their duties to such extent that the safety or welfare of any of their children is likely to be prejudicially affected. Under this approach, parents would be taken to have failed in their duty if they did something (or failed to do something) which was likely to affect prejudicially the safety or welfare of their child consequently leading to State Intervention. It is clear this establishes a different standard for intervention. It could imply that conscientious parental choices, based on moral or religious or philosophical commitments, might be overridden by the State where they are thought to prejudicially affect children’s safety OR welfare. Any intervention by the State must involve the use of proportionate means, which must be set out in legislation.

                 

Article 42A.2. 2° - A major change relates to the issue of adoption. Previously there was no law permitting married parents to voluntarily place a child for adoption. The law now provides, at a constitutional level, for the adoption of any child, whether that child be a child of a married, or unmarried, couple. The proposed amendment provides for adoption where the parents have failed in their duty towards the child for a specified period of time, and where the best interests of the child so require. The draft legislation published with the provision allowed for a period of three years, however this could be decreased or increased in the future.

Article 42A.3 - This represents a firm move away from the original rationale underpinning Irish adoption law: that adoption was designed to give children born outside marriage the opportunity of a life within a marital family. Previously voluntary placement for adoption was permissible only where the child was born outside of marriage or orphaned. In respect of a child born to parents who were married to each other at the time of the child’s birth, unless both parents are deceased, the child could only be adopted in the exceptionally limited circumstances envisaged by Sections 53 and 54 of the Adoption Act 2010;  any child – marital or non-marital – could be adopted where the parents have failed in their duty towards the child for at least one continuous year, and where this failure is likely to continue without interruption until the child is 18. The failure must amount to an abandonment of all parental rights in respect of the child. Such an adoption, moreover, could only proceed with High Court approval, and having due regard to the parents’ and child’s constitutional rights. Art.42A(3) offers children born inside marriage who are in long-term foster care, offering them the prospect of a more regularised and secure position through adoption. Significantly, the amendment departs markedly from the traditional view that the function of adoption is to provide a marital home for non-marital children, recognising that some children born within marriage may also be best served by adoption

Article 42A.4 1° - applies to proceedings initiated by the State and proceedings not necessarily initiated by the State. This section introduces a best interests test into the constitutional text for the first time. In all court proceedings, where significant decisions are being made in relation to a child, the paramount consideration is the best interests of the child. There is nothing to suggest that legislation enacted on foot of Article 42A.4.1 will be any different in status to legislation already in place. Note that legislation already requires that the best interests of the child are a paramount consideration in family law proceedings. For instance, section 3 of the Guardianship of Infants Act 1964 requires that in any proceedings regarding ‘the custody, guardianship or upbringing of an infant’, the welfare of that child will be the paramount consideration. In section 19 of the Adoption Act 2010, the courts and the Adoption Authority are bound to consider the welfare of the child as ‘the first and paramount consideration’. In section 24 of the Child Care Act 1991, the courts are required in any proceedings concerning the care and protection of a child to regard the welfare of the child as the first and paramount consideration. It is only in this latter case where an argument might be made as to the added value of Article 42A.4.1 in that section 24 of the 1991 Act refers to the parallel duty on the courts to have regard to the rights and duties of the parents, under the constitution or otherwise, in such proceedings.

Article 42A.2 2° - The amendment provides that where practicable, the views of the child himself, or herself, should be obtained and due weight given to those, having regard to the age and maturity of the child. It is the case that the views of the child are often taken into account in Court proceedings however the reformed article will put this on a Constitutional footing. This best interests test can only come into operation when the threshold for state intervention has been passed.This represents a very cautious and limited attempt to incorporate Article 12 of the United Nations Convention on the Rights of the Child into Irish domestic law. Indeed, Article 12 of the Convention is much broader in scope, not only recognising the right of the child to be heard directly and indirectly in all judicial and administrative proceedings (Article 12(2)) but, more generally, it recognises the obligation on the State to assure to all children the right to express their opinions freely in all matters concerning them once they are capable of forming views. In contrast, Article 42.A.4.2 fails to make reference to any other area of a child’s life other than child and family law proceedings.

                 

The Constitution must be interpreted harmoniously, and article 42A will be read in light of other constitutional provisions, namely the unaltered article 41. The Family will still be regarded as the “natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law,” with a State commitment to protecting it in its “constitution and authority”.

Brophy Solicitors

7.12.12

Periodic Report Outcome 19.10.11

Ireland’s Universal Periodic Review took place in Geneva recently where Minister for Justice, Equality and Defence, Mr. Alan Shatter defended Ireland’s human rights record. Delegations of other United Nations countries put questions to the minister and made recommendations on how Ireland could improve shortcomings in the human rights area.

Of particular interest to us, is that the government have expressed their commitment to reducing the time taken to process applications for citizenship to an average of six months. It was also commented that the implementation of citizenship ceremonies demonstrated a positive attribute to welcoming new citizens into Ireland.

The United Nations outcome report on Ireland was adopted on Monday 10^th of October by the government and included 126 recommendations. Some of the noteworthy recommendations include that all asylum seekers in Ireland should be able to effectively accede to the process of determination of their refugee condition and that decisions on the necessity for international protection be reviewed and be subject to independent judicial supervision.

It was also suggested that practical and legal measures are adopted  to curb racial discrimination and discrimination against migrants and to look at the appeal by UNESCO (United Nations Educational, Scientific and Cultural Organisation) to ratify the 1960 Convention to counter discrimination in the area of education.

It was also interesting to note the suggestion to extend the remit of the Ombudsman to children in prison and asylum seeking children.

It is hoped that these recommendations will be adopted and allow Ireland to improve the current shortcomings in the area.



PROPOSED REFERENDUM ON CHILDRENS' RIGHTS PLANNED FOR NEW YEAR

The United Nations Convention on the Rights of the Child requires that states act in the best interests of the child. Ireland is a signatory to the Convention and ratified it since 1992. States that ratify it are bound to it by international law. In 2006, the United Nations Committee on the Rights of the Child in Geneva expressed concern that the wording of the Irish Constitution does not allow the state to intervene in cases of abuse, other than in very exceptional cases. Therefore, the Irish Government undertook to amend the Constitution to make a more explicit commitment to children’s rights.

In his recent address to other UN member states in Geneva as part of Ireland’s Universal Periodic Review, Minister Alan Shatter said that the referendum on children’s rights will be held early in the new year. The announcement was welcomed by many groups such as Barnardos, CARI, the Children’s Rights Alliance, The Dublin Rape Crisis Centre, ISPCC, One in Four and the Rape Crisis Network of Ireland. The Irish Council for Civil Liberties said that a more definitive date was needed.

The proposed wording for a referendum on children says the following:

‘In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be first and paramount consideration.’

The proposed amendment will bring Irish law in line with the current UK position, as confirmed by the recent Court of Human Rights judgement in the case of ZH (Tanzania) (concerning the removal of a non-British parent of a UK citizen child). The Court of Human Rights held that the over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK. In the words of Lady Hale:

‘In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.”

The new Constitutional provision may have quiet an impact in the immigration field and the exact wording of the proposal amendment is of much interest to us.  For example, the inclusion of the word ‘upbringing’ gives scope for the argument that children have rights to be brought up in the country of their nationality. This would be a novel right under Irish law, given the current position as set down by the Supreme Court in the case of L and O case  (Lobe v. Minister for Justice, Equality and Law Reform [2003] IESC 3 (23 January 2003). In that case the Supreme Court held that requirements of the common good, including the need to preserve the integrity of the asylum and immigration process, could justify the deportation of a parent of a citizen child and a denial of the child’s right to the care and company of their parents in the State. 

The proposed wording of the new Constitutional provision gives room to argue that the deportation of an Irish citizen child could be deemed unconstitutional if it was not in the best interests of the child’s upbringing. Could it not be argued that in most cases a child would be better off to be brought up in a developed country like Ireland, than many developing countries where standard of life may be of a lesser quality? Could it be argued that the rights of the child extend not only to parents, but other immediate family members, such as siblings?

Certainly, some discussion is necessary on how a balance may be struck between achieving the protection of the rights of children and permitting the State to act within its required duty to protect the Immigration and welfare systems. We believe that the upcoming referendum is a good opportunity to assess these sometimes conflicting rights of the State and individuals. It is an opportunity to create and improve current policy in respect of the rights of children, and their position in society.  We welcome the implementation of children’s rights into the Constitution and the State’s commitment to ensuring that children are protected and a statement by the people of Ireland about the type of society in which we would like to live.

Brophy Solicitors

14.10.11

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[1] ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC

UNIVERSAL PERIODIC REVIEW

This October saw Ireland examined for the first time by other United Nations (UN) countries on our human rights record. The process is called Universal Periodic Review.  It is a process where the human rights record of the United Nations 192 member states are reviewed and assessed every four years. It is an important part of reminding states of their responsibility to fully respect and implement all human rights and fundamental freedoms. As noted by Ban Ki – moon, UN secretary General, the Universal Periodic Review ‘has great potential to promote and protect human rights in the darkest corners of the world.’ 

Minister Alan Shatter personally attended the United Nations Geneva Head Quarters on the 6^th October 2011 to answer questions on Ireland’s human rights record as Ireland submitted to its first ever ‘Universal Periodic Review’. In his opening address, Minister Shatter made specific references to both the positives and negatives of Ireland’s human rights record. Of particular interest to us was his specific reference to the unacceptable delays in the Naturalization process. He confirmed that he was taking steps to rectify this problem, and aimed in due course to have all applications dealt with within a six month period. He acknowledged criticism for the lack of appeal process to decisions of Naturalization applications, but confirmed that he reviewed all decisions and therefore there was no higher authority to determine appeals.  He cited the new Citizenship ceremonies as a positive step towards welcoming and celebrating newly declared citizens. 

Questions were then put to the Minister from each represented member state focusing on human rights issues of concern in Ireland today including children’s rights, access to abortion and the ABC judgment, prison violence, overcrowding and sanitation and traveller’s rights. The review marked an opportunity for people in Ireland to highlight important human rights issues which face the country, and to encourage Ireland to promise to address these issues in front of an audience of their international peers.

The Minister made some positive statements such as confirming that a Referendum on children’s rights would be held early in 2012 in order to bring Ireland into line with the UN Convention on the Rights of the Child. He acknowledged the urgent need to modernise our mental capacity legislation in order to protect those who are vulnerable in society. He also outlined a commitment to ratify the optional protocol to the Covenant on Economic, Social and Cultural Rights which would allow individuals to complain about alleged violations of these rights at an international level.

However, it has been noted that the Minister was short on detail in response to questions on other issues that are related to human rights protection in Ireland. For instance, the Minister noted the government are preparing legislation to enable it to ratify the Optional Protocol under the UN Convention against Torture. This is an important development and would require the establishment of a national body to monitor places of detention. However, the Minister failed to go into detail on the substance of that legislation or to give any timeline for its implementation. Irish Council for Civil Liberties (ICCL) Director Mark Kelly has commented that while Mr. Shatter appears to be sincere in his intentions, concrete action will be required to meet the promises made by Mr. Shatter at the review.

On the 11^th October, the UN Human Rights Council adopted its ‘Outcome Report’ on Ireland. This contained a summary of what was discussed at the hearing and a list of recommendations for Ireland to improve the human rights situation. This will be formally adopted at a hearing in March 2012, where Ireland, The United Nations Human Rights Council, and NGOs will be able to discuss the report and the obligations which Ireland are required to meet.  Once this report is formally adopted, it will form the basis on which Ireland’s human rights performance will be measured for the coming 4 years.

We believe that the Universal Periodic Review (UPR) is an essential part of improving the human rights situation in all countries and to address human rights violations whenever they occur. It has allowed for civil society to contribute to the examination of Ireland by highlighting the human rights issues of concern which are facing Ireland today and providing evidence of this to the United Nations about how they are affecting people on the ground.

Brophy Solicitors

13.10.11