OIREACHTAS COMMITTEE:A NEW Article 42 should be inserted into the Constitution, replacing the existing Article 42 and expressly recognising the rights of children, the Oireachtas Committee on the Constitutional Amendment has recommended.
The recommendation comes in its 118-page third report, published yesterday. The existing distinction in the Constitution and law between marital and non-marital children with regard to the kind of protection they are entitled to, and their availability for adoption, should be abolished, it states.
Marital children should be adoptable either by being placed voluntarily for adoption, or where their parents have abandoned them. This would enable the adoption of hundreds of children at present in long-term foster care and unlikely ever to be cared for by their parents.
The committee recommends that a Bill be published along with the proposed amendment, spelling out the new basis for adoption if the amendment is passed.
The report states the committee’s concern that parents would be assured that their rightful authority in relation to their children would not be undermined in any way by the proposed amendment. Thus it recommends leaving untouched Article 41, which recognises the family as the natural, primary and fundamental unit group of society.
The existing Article 42 recognises the family as the primary and natural educator of the child, providing for the State to intervene only in “exceptional cases . . . where the parents . . . fail in their duty towards their children”. The committee considered this to be too high a threshold that could inhibit necessary intervention.
In February 2007, the Government presented a Bill to the Dáil proposing the insertion of a new Article 42 (a) in the Constitution, dedicated to children’s rights. This provided for adoption to be open to the children of married parents, and for provision that in proceedings before any court concerning guardianship, custody of or access to any child, the court should endeavour to secure the best interests of the child.
This wording was widely criticised as inadequate, with some commentators pointing out that there was stronger protection for the rights of children in existing legislation, and the joint committee, chaired by Mary O’Rourke, was charged with coming up with a wording on children’s rights. After 62 meetings over two years, it has now done so unanimously.