The Government's briefing document (edited)
Current wording
Education: Article 42.5 -In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
Proposed changes
Education and Child Protection: Article 42.5 - Rights of the child: Article 42.5 at present contains an implicit reference to "the natural and imprescriptible rights of the child". The Minister proposes to make this reference explicit through a clear acknowledgment by the State that all children have natural and imprescriptible rights and that all parents have the primary duty to respect these rights.
Protection of children taken into care system:It is proposed to re-state the existing protection in Article 42.5 for parents and children with two qualifications. The provision as amended should provide:
In exceptional cases, where the parents of any child for physical and moral reasons, fail in their duty towards that child, the State as guardian of the common good, by appropriate and proportionate means shall endeavour to supply the place of the parents but always with due regard for the natural and imprescriptible rights of the child.
The Minister also proposes to include an express constitutional provision permitting the adoption of children in long-term care under court order. It is proposed to empower the Oireachtas to provide by law for such adoptions where there has been substantial continuity of care and the best interests of the child so requires.
Protection of the best interests of children placed in care or placed for adoption with the consent of their parents:Current care practice permits the voluntary placement in care of any child. It is proposed to recognise this practice in the Constitution and require that best interests of the child apply to any placement in care.
Current adoption practice does not permit the adoption of a child of a marriage. It is proposed to make all children eligible for consensual adoption. It is also proposed to require that the best interests of the child apply to any such adoption.
Protection of best interests in decisions on the termination of care:Current practice permits the placement of children in care. The courts need clear guidance on what principles to apply when adjudicating on cases where it is proposed to terminate a care placement.
It is essential that the courts are empowered to make decisions in the best interests of such children and having regard to the need for continuity of upbringing.
Protection of children from sexual exploitation and sexual abuse: The Minister proposes to have a clear statement of a requirement on the State to provide for laws which create offences related to sexual exploitation and sexual abuse. Specifically, the amendment would also provide that laws which involve such offences against children under the age of 18, may provide that these offences are of absolute or strict liability. The legislative power of the Oireachtas would not be limited by any of the provisions of the newly-drafted section.