The Constitutional Protection of Children in Ireland ? Assessing the Need for Reform and the Available Alternatives

Date01 January 2008
The Constitutional Protection of Children
in Ireland – Assessing the Need for Reform
and the Available Alternatives
After many years of debate, a consensus on the constitutional position of
the child in Ireland seemed to have emerged in late 2006. The then
Government announced its intention to hold a referendum to bolster child
protections and appeared to have the support of the related interest groups
and a significant amount of the electorate.2This consensus was born out of
a long running debate in both academia and the public sphere.
In 1993 Mrs Justice Catherine McGuinness submitted her report in the
Kilkenny Incest Investigation.3This report is now widely seen as
representing the first in a line of authoritative appeals for constitutional
reform of the child protection provisions. The need for constitutional
reform in the area was echoed, inter alia, by the 1996 Constitutional
Review Group4and in 2006 by the All Party Oireachtas Committee on the
Constitution.5These reports were accompanied by appeals for reform from
academia,6from interest groups7and, on occasion, from members of the
1Oliver Fitzgerald BA (UCD, Dublin) MA (DIT, Dublin), Trainee Solicitor with Orpen
Franks Solicitors. This Article composed of extracts from a thesis on the same subject
submitted by the author to Dublin Institute of Technology in May 2008 as part of the
MA in Law programme. Thanks ar e due to Dr Fergus Ryan for his supervision and
input on the original thesis.
2Carl O’Brien, “Poll Shows 70% Favour Change to Constitution on Children’s
Rights” The Irish Times (11 November 2006).
3Kilkenny Incest Investigation: Report presented to Mr Brendan Howlin TD, Minister
for Health by South Eastern Health Board (Dublin: Stationery Office, 1993).
4Report of the Constitution Review Group (Dublin: Stationery Office, 1996).
5All Part y Oireachtas Com mittee on the Constitution, Tenth Report – The Family
(Dublin: Stationary Office, 2006) at p 124.
6Examples include : Report of the Constitutional Re view Group (Dublin: Stationary
Office, 1996); Geoffrey Shannon, Child Law (Dublin: Thompson Round Hall, 2005)
at p 45; Conor O’Mahony, “Children, Parents and Education Rights: A Constitutional
Imbalance” (2004) 7(3 ) IJFL 3; Fergus W Ryan, “Recognising F amily Diversity:
Children, One-Parent Families and the Law” (2006) 9(1) IJFL 3.
7Examples include: T he Children’s Rights Alliance, Small Voices, Vital Rights,
Submission to the UN Comm ittee on the Rights of the Child (1997); Children’s
Rights Alliance, Submissi on to the Joint Commi ttee on Chi ld Protection, August
2006; submissions by Aim Family Services (at p A21), Barnardos (at p A36) and the
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judicial branch.8Finally, in November 2006, the Government of the 29th
Dail announced its intention to hold a referendum on child protection and
duly published the proposed Bill in February 2007.9
However this period of accord seems to have been short lived. Following
the 2007 General Election, the Government of the 30th Dail decided to
remit the matter to the newly formed Joint Committee on the Constitutional
Amendment on Children. After extending the committee’s original 4 month
timescale, the current Government appears to be abandoning the idea of
holding a referendum.10
This article will assess whether such a decision would be advisable. This
exercise will involve, firstly, an assessment of the constitutional status quo
and of the relevant arguments as to the need for a constitutional amendment
or lack thereof. Secondly, the article will analyse the potential alternative
models that could be adopted if a constitutional amendment was considered
necessary. It should be noted that focus will be limited to constitutional
issues and there will be no attempt to deal directly with issues more central
to criminal law such as statutory rape and the age of consent.
As regards the central issue it will be argued that, far from providing
adequate protections for children, the Constitution is fundamentally
incapable of adequately protecting children in its current formulation.
Furthermore, this paper will maintain that there has been little meaningful
debate on what form a constitutional amendment should take and that
many of the proposed alternatives could prove worthless and even counter-
productive. This article is not attempt to definitively propose an alternative
model; rather, the aim is to analyse the relevant models and concentrate on
defining a process through which an appropriate model could be found.
In many cases, reform advocates fail to appreciate the legal power of
existing constitutional provisions and place far too much faith in the ability
of alternative models to resolve issues. There is a general lack of
appreciation of the link between child protection and family law generally.
A state cannot successfully guarantee the rights of the child or enshrine the
‘best interests’ standard if parental rights considered superior in the
hierarchy of rights. What must be appreciated is that any meaningful
increase in child protections must simultaneously reset the constitutional
balance between parent, state and child.
Reform advocates often maintain an axiomatic trust in alternative
models such as the ‘best interests’ standard and ‘children’s rights – attempts
Church of Ireland (at p A42) to the All Part y O ireachtas Committee on the
Constitution, Tenth Report – The Family, (Dublin: Stationary Office, 2006).
8See, in particular, the judgment of Mrs Justice McGuinness in Baby Ann[2006] 4 IR
374 at p 498. See also, DPP v JT [1988] 3 Frewen 141; Southern Health Board v CH
[1996] 1 IR 231; DPP v Best [2000] 2 IR 17.
10 Carl O’ Brien, “Andrews Signals Referendu m on Children s Rights Unlikely” The
Irish Times (12 August 2008).
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to assess practical advantages and disadvantages are rare.11 Under closer
inspection, it will be shown, many of these theories are potentially critically
flawed; these flaws go largely unacknowledged in domestic discourse. This
paper will argue that a proper analysis of the merits and demerits of the
various models will require a far more sophisticated process and a more
informed panel of adjudicators than those required for a constitutional
amendment. The debate on what form an alternative model should take
might indeed be too complex and academic to be encapsulated in a
referendum debate.
However it does not necessarily follow that a referendum is not necessary
nor does it follow that one is not possible. A Constitution – limited as it is
by the requirement that it must be clear and concise – is not suited to
governing wholly every aspect of law. This article will argue that the
Constitution is too rigid a source of law and too blunt an instrument to
adequately govern child protection and the related areas of family law. This
is particularly so when the provisions are as definitive and conclusive as the
Irish constitutional provisions are. A far more sensible approach would be
to remove the most problematic constitutional provisions and abdicate
legislative responsibility in the area to the Oireachtas – a body far better
positioned to govern complicated bodies of law.
The Constitutional Status Quo
Article 40 of the 1937 Constitution guaranteed a novel degree of legal
protection for the family.12 These protections were judged to be vested in the
family unit itself rather than the individual members of the family13.
Consequently, in practice, children derive few individual rights from these
protections and it is notable that the child is not mentioned in the article.
The child is mentioned in the Article 41 provisions on education but
these guarantees are made “with due regard … to the rights of the parents”.
11 See, for exampl e, the submissions by The Ad option Board (at p A15–p A18) , AIM
Family Services (at p A21), Barnardos (at p A36), the Churc h of Ireland (at p A42)
to All Party Oireachtas Committee on the Co nstitution, Tenth Report – The Family
(Dublin, Stationary Office, 2006). These are just a few examples of submissions that
support the best interests prin ciple or the addition of children’s rights to the
Constitution with very little evidence cited to prove the desirability of such theories.
12 It was promised that the State would recognise “the family as the natural primary and
fundamental unit group of society”. C rucially, Article 41.3.1° provides that the “…
State pledges itsel f to guard with special care the insti tution of Marriage, on which
the Family is founded, and to protect it against attack.” The rights that are afforded
to the marital family are said to be “inalienable and imprescriptible” which has been
held to mean that they cannot be surrendered, given away, lost or forfeited over time.
13 Per Costello J, Murray v Ireland [1985] IR 532.
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