Briefing note on proposed amendment
The proposed amendment will provide:-
1. An acknowledgement by the State of the natural and imprescriptible
rights of all children.
2. Restatement of the existing protection of children and parents
contained in the current Article 42.5 and the extension of this provision
to all children.
3. Legal authority for the adoption of children who have been in care for
a substantial period of time if it is in the best interests of those children.
4. Ensuring that all children are eligible for voluntary adoption.
5. Legal authority to secure the best interests of children in any court
proceedings relating to adoption, guardianship, custody or access.
6. Legal authority for the collection and exchange of information relating
to the risk or actual occurrence of child sexual abuse.
7. Legal authority to create offences of absolute or strict liability in
respect of offences against or in connection with children.
Do children not already have rights under the Constitution?
Yes. Children have rights under Article 40 which protects personal rights.
Nevertheless, the Government believes in the context of the “inalienable right
and duty of parents” referred to in Article 42.1, the rights of children should be
given more explicit expression. The Government also wants to ensure that the
rights and protections contained in the Constitution apply to all children
regardless of the marital status of their parents. The general
acknowledgement which the Government is proposing to insert in the
Constitution will achieve this and it will do so without interfering with the
primacy of the family under the Constitution as the unit within which the best
interests of the child are best exercised and met.
Should the amendment not include an explicit list of rights for children?
The Government’s view and the advice of the Attorney General is that the
existing rights set out in Article 40 apply to children. Therefore, these rights
which relate to equality and the vindication of personal rights do not need
explicit or exhaustive restatement.
The Supreme Court has found that “the child’s natural rights spring primarily
from the natural right of every individual to life, to be reared and educated,
to liberty, to work, to rest and recreation, to the practice of religion and to
follow his or her conscience. …It lies not in the power of the parent who has
the primary natural rights and duties in respect of the child, to exercise them
in such a way as intentionally or buy neglect to endanger the health or life of
the child”.
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Other important rights are provided for in legislation. Significant legislative
milestones in Ireland which have strengthened children's rights include: Status
of Children Act, 1987, Child Care Act, 1991, Children Act, 1997, Criminal Law
Act 1997, Non-Fatal Offences against the Person Act 1997, Education Act,
1998, The Education (Welfare) Act, 2000, The Equal Status Act, 2000 and The
Children Act 2001, Education for Persons with Special Educational Needs Act,
2004.
Does the express acknowledgement of the natural and imprescriptible rights
of children diminish the rights of parents?
No. The inalienable and imprescriptible rights of parents derive from Article 41
and Article 42 of the Constitution. Nothing in the amendment being proposed
by Government alters that Article. In general, our Constitution strikes balances
between personal rights, the status of the family, the rights and duties of
parents, and the powers of the State as guardian of the common good. The
aim of the Government in its proposed amendment is simply to include
children in this equation.
Will the inclusion of the best interests principle lead to a conflict between the
rights of parents and the rights of children?
No. Great care has been taken in drafting this amendment to respect the
basic principle of our Constitution that the best interests of children are best
secured within the family unit. Authority is being given to the Oireachtas to
provide for the protection of the best interests of a child only in the event of
family failure in a custody, guardianship or access disputes and in adoption.
If this amendment is passed, will more children be taken into care?
No. The proposed amendment makes no change in the circumstances where
the State can intervene in the family. The test for family failure remains
unchanged. If this amendment is passed, it would be neither easier nor more
difficult for child to be taken into care.
Why should we make it easier for children to be adopted?
If approved by the people, this amendment will empower the Oireachtas to
bring in legislation to allow for the adoption of children in long term care if it is
in their best interests. At present, there are approximately 5,000 children in
care. Almost 85% of them are in foster care and of that figure about a third
are in long-term care (for over five years). In some cases, children are taken
into care at birth, raised by foster parents with their birth parents contacting
them or expressing an interest in contacting them only sporadically. For such
children, where a return to their birth families is not an option, the possibility of
adoption represents a second chance for a stable and secure family life. This
proposal will allow the adoption of children where there has been a failure of
duty for such a period as prescribed by law and where the best interests of
the child so require. It makes no change to existing policy or legislation
regarding the appropriate circumstances in which a child should be
considered for adoption. Therefore, it will not lead to the inappropriate
placement of children for adoption.
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Does this amendment change the Supreme Court decision giving parents the
final say in any medical procedures relating to their children?
No. The authority of the State to intervene in a family remains unchanged. It
can only intervene in exceptional circumstances where there is a physical or
moral failure in the family.
Why is the application of the best interests principle so limited in the
amendment and why does it not include a general statement of the best
interests principle?
A fundamental principle of our Constitution is that the best interests of
children are best secured within the family unit. This principle is also contained
in the United Nations Convention on the Rights of the Child which recognizes
that the child “for the full and harmonious development of his or her
personality, should grow up in a family environment, in an atmosphere of
happiness, love and understanding.” Therefore, the only circumstance in
which it is appropriate for the State to intervene to secure the best interests of
children is where there is family failure.
Why do we need to change the Constitution to allow for the collection and
exchange of information concerning the risk or the occurrence of
endangerment, sexual abuse or exploitation of children?
One of the central recommendations of the Ferns Report, which was
accepted by Government, was the need to establish inter-agency groups
comprising representatives of An Garda Siochana, the HSE and the relevant
organisation in which there was suspicion of abuse. The Minister for Children
has encountered considerable legal obstacles in his efforts to implement this
recommendation. The advice of the Attorney General was sought and he is
of the view that the establishment of the inter-agency groups will be difficult,
if not impossible, in the absence of the authority conferred by this proposal.
Child Protection organisations such as the ISPCC and Barnardos have
consistently called for the release of so-called soft information. This
amendment would allow the Oireachtas to provide for this. The Garda
Vetting Service only releases details of criminal convictions, successful or
unsuccessful, pending or completed. That means that, for example, a school
seeking to recruit a teacher who has been investigated or even repeatedly
questioned in connection with incidents of child sexual abuse, cannot be
given this vital information because there has been no arrest.
Legislation allowing for the release of so-called soft information would be
significant buttress to our existing child protection law. The Attorney General
advises that the proposed amendment would facilitate such legislation.
Does the proposal for the collection and exchange of information concerning
the risk or the occurrence of sexual abuse not endanger the right of the
individual to his or her good name?
Exchange and collection of “soft” information is fraught with difficulties.
However, appropriate systems have been put in place in other jurisdictions
which enhance the protection of children and other vulnerable people.
Legislation in this area will have to strike a proper balance in seeking to
protect children without opening the way for the spreading of malicious or
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vexatious rumour about an individual. However, in the interests of the
greater protection of our children, the Government believes appropriate
legislation can be devised to underpin a vetting system that includes soft
information and at the same time respects the constitutional right of
individuals to their good name.
Why is the age of consent not included in the amendment?
The age of consent is set by statute and is not a matter for the constitution.
The current age of consent is 17 and the Government is not proposing any
change in this. The Joint Oireachtas Committee on Child Protection made a
majority recommendation that the age of consent be set at 16. The
Government believes that a decision on that recommendation should be left
to the next Oireachtas.
Is the proposal to allow the Oireachtas to create offences of absolute or strict
liability in respect of children not an attack on the constitutional right of the
individual to a fair trial?
No. It will still be the case that accused persons receive a fair trial in
accordance with the law. Prior to the Supreme Court decision on the C case
last Summer, a person charged with having sex with a minor could not claim
the defence that he thought the girl was over 17. In effect, the offender was
guilty of statutory rape and the victim did not have to endure cross-
examination about her demeanor and deportment. The Supreme Court
decision found that law to be unconstitutional and that the offender could
claim the defence of honest mistake. We know from the DPP that, as a result
of that judgement, there has been a fall off in the number of complaints
about underage sex offences.
There is cross-party support for the proposition that it is unacceptable to
subject young victims to the trauma of cross-examination about their age
and appearance. The Government also believes that, as a community, we
need to send out a strong message to would be sexual predators that there
can be no defence for their actions.
What is the difference between absolute liability and strict liability?
In general terms, an offence of absolute liability is one for which a defence of
mistake is not allowed. Offences of strict liability require proof by the accused
of reasonable mistake. In the context of this amendment, the Government is
proposing to bring forward legislation which would make sexual relations with
a child under the age of sixteen an offence of absolute liability.
It is proposed to make sexual offences against a teenager of the age of 16 or
17 offences of strict liability in appropriate circumstances.
Why does the amendment not specify sexual offences? Is it not conferring too
much power on the Oireachtas?
The Government does not want to limit the power of the Oireachtas to
legislate in this area. There may well be situations where, in the future, the
Oireachtas may wish to provide absolute protection to children, especially
very young children. There are no plans to introduce such legislation at
present but it would be wise to permit the Oireachtas discretion in this matter
in the future.
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