Children’s Best Interests? A Constitutional Question

The past decade has been a landmark in modernising and liberalising the Irish Constitution. The marriage equality referendum in 2015 and the abortion referendum in 2018 addressed two of the most controversial issues which have ever arisen in Ireland regarding constitutional rights. In 2012 it seemed as though the matter of children’s rights, under Article 42 of the Constitution, had been resolved in a similar manner when the 31^st Amendment was passed in referendum (known as the children’s referendum). Although issues regarding voluntary adoption and children’s views being given weight in custody proceedings were addressed, the amendment failed to satisfactorily address one crucial area: the primacy of parental rights under the Constitution. In this article I will discuss where children’s rights stand after the 31^st Amendment, and the questions which Irish courts will have to continue to wrestle with in the future.

History of the ‘Best Interests’ Test

The issue which arose from the original wording of the Constitution was essentially that Articles 41 and 42 of the Constitution gave very strong protections to the institution of the marital family, whilst making very limited reference to the rights of the child. The result was that in matters of child custody or any proceedings concerning the welfare of the child, a parent-centric view tended to be observed by the courts. According to the Report on the Kilkenny Incest Investigation, the courts at times interpreted the Constitution as giving ‘higher value to the rights of parents than to the rights of children’.[1]

The truth of this statement became apparent shortly after the introduction of the Guardianship of Infants Act 1964. Under section 3 of the Act, in any proceedings concerned with the ‘custody, guardianship or upbringing of an infant’, the courts would regard the ‘welfare of the infant as the first and paramount consideration’.[2] The question to be addressed here was how this legislation would line up with the constitutional framework which preceded it. This was answered partly in State (Nicolaou) v An Bord Uchtála.[3] This case concerned an unmarried father who wished to have an adoption order that had been made without his consent quashed. Rather than employing section 3 of the Guardianship of Infants Act in a manner which made the welfare of the child the paramount consideration, the High Court instead based its decision upon the respective rights of the mother and father, ultimately finding in favour of the mother. The key point here is that the case did not revolve around the welfare of the child, but rather around resolving the conflicting rights of the mother and father. This approach was followed in the case of G v An Bord Uchtála,[4] where the court put the constitutional rights of an unmarried mother before the welfare of her child, again basing the decision upon parental rights rather than the rights of the child. In assessing these cases, Harding astutely summarised the approach employed by the courts as being ‘far removed from putting the welfare of the child first as mandated by s 3 of the Guardianship of Infants Act’.[5]

The dangers of such an approach become very apparent when looking at the case of M v An Bord Uchtála.[6] Here, a child was given up for adoption and successfully placed with a family. However, the original adoption order was found to be defective. The natural parents of the child had since married and, four years after the child had been placed with the adoptive parents, looked to enforce their constitutional rights as a family. The Supreme Court ruled in favour of the plaintiffs, thus ordering the return of the child six years after he had been placed with his adoptive family, without giving ‘any consideration to the issue of whether a change of custody would be harmful to the child’.[7] The parent-centric approach employed by the courts here belies any interpretation of the Constitution which would put the interests of the child as their paramount concern.

More recently, the Baby Ann case[8] showed that the judiciary continued to hold this parent-orientated view in the 21^st century. The case also gave a clear articulation of the judicial presumption that the interests of the child are best served in the marital family. Fennely J stated that there is a ‘primordial constitutional principle that a child’s welfare is best served in the heart of its natural family. It is well established and widely known.’[9] The judicial standpoint on the issue was clear: the judiciary had decided that under the Constitution, the best interests of the child were best served in the family, and not on the basis of a test which looked at what was objectively best for the child.

The 2012 Children’s Referendum

This brings us to the focal point of this article, the 2012 children’s referendum, in which the Irish people voted in favour of the 31st Amendment of the Constitution. This referendum came as a result of unease surrounding the cases just discussed, alongside controversy surrounding restrictive adoption regulations. The enactment of the amendment was delayed as it faced a challenge to its constitutionality,[10] however the challenge ultimately failed, and the enactment finally came into effect in 2015. Considering how recent this development is, the full ramifications of the amendment are still being tested. However, by looking at how the text of the Constitution has been altered, alongside some of the effects it has had, a limited assessment of the amendment can be made.

Articles 41 and 42

A point which is important to firstly note is that the Amendment did not alter Article 41 or Articles 42.1- 42.4 of the Constitution. I would like to draw attention to Articles 41.1 and 42.1.

Article 41.1 states:

1 1° The State recognises the Family 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.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 42.1 states:

The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

The retention of these articles is very significant, as it is from them that the courts have traditionally upheld the primacy of the rights of the family in the Constitution, as previously set out in the first part of this article. Language such as ‘inalienable and imprescriptible rights’ has not been altered, and as such it seems that the basis for prioritising the rights of parents over those of the child has been retained. Harding therefore posits that the effect of the 31^st Amendment will not be to create a test that objectively judges what is best for the child, rather the ‘creation of an extra layer of abstract concerns in the form of children’s rights will render decisions even more complicated’.[11]

Article 42A

The actual effect of the Amendment was to delete Article 42.5 of the Constitution. This was the provision which had previously provided for the grounds upon which the state could interfere with the constitutional rights of the family. The threshold for this has traditionally been very high, with the courts taking a rather conservative approach in overriding the rights of the family. The 31^st Amendment replaced this provision with Article 42A. In order to address concerns that had arisen from the cases previously discussed, this provision intended to introduce a child-centric test for constitutional rights as well as to update the conditions for voluntary adoption and give weight to the views of the child in custody proceedings. While these latter two objectives have been achieved, it is questionable whether the amendment went far enough to ensure that a child-centric test would replace the parent centric one that had been employed by the courts up until this point.

For the first time, the Constitution contains an explicit recognition of children’s rights. Article 42A.1 states that ‘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.’

However, the significance of this provision is limited, as judges have already accepted that children’s rights are contained within the Constitution.[12]

Article 42A.2.2° states that ‘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.’

This new provision at first seems to endorse the idea of a child-centric best interests test with constitutional recognition. However, it is important to bear in mind that there is already a judicial presumption under the Baby Ann case[13] that the best place for the child is within the marital home. Also, as previously discussed, the ‘inalienable right’ of parents under Article 42.1 remains intact.  As such it is uncertain whether this provision could be interpreted so as to result in a different test to that which has been previously employed.

An Alternative Approach

In assessing the shortcomings of the 31^st amendment, it is useful to compare it to the amendment that was proposed by the Joint Oireachtas Committee on the Constitutional Amendment on Children in February of 2010.[14] This suggested amendment deletes Article 42 and replaces it with an entirely new version. This version would have allowed for voluntary adoption and giving weight to the views of the child in custody proceedings in a similar fashion to Article 42A, while also going further in promoting a child-centric best interests test. The relevant text of the proposed amendment reads as follows:

1. 1° The State shall cherish all the children of the State equally.

2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.

3° 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 the first and paramount consideration.

The similarity to Article 42A here is obvious, in that this version also includes an explicit recognition of children’s rights for the first time. However, an important distinction is pointed out by O’Mahony,[15] who notes that the best interests test set out in this version is not subject to the phrase ‘provision shall be made by law’. The distinction here is that there is currently a constitutional obligation only to legislate for a best interests test,[16] which has been done since the Guardianship of Infants Act 1964.[17] Under this alternative amendment, the best interests test itself would receive constitutional protection.

Important also in this alternative amendment is that it deletes the provision of Article 42 concerning parents’ rights,[18] and replaces it with the following text:

3 – The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

The distinction here is that the rights of the parents are not ‘inalienable’ as they are under the current version of the Constitution. The Report of the Constitution Review Group suggested that the use of the words ‘inalienable’ and ‘imprescriptible’ in Articles 41 and 42 ‘potentially places too much emphasis on the rights of the family as a unit as compared with the rights of individuals within the unit.’ They suggested that such adjectives should be deleted from these provisions of the Constitution.

This version of the Amendment adheres much more closely to the Report’s recommendations than Article 42A, in that it promises only to ‘respect the right’ of the parents under Article 42 and deletes the word ‘inalienable’. Given the importance the court has attached to such language in the past, in conjunction with constitutional guarantees set out for children’s rights in the previous provisions, this version of the Amendment could have gone far enough to rebut the presumption that the best interests of the child are best served in the marital family and paved the way for the introduction of an objective best interests test for children.

2015 Children’s Act

The best interests test set out in Article 42A[19] was given effect in the Child and Family Relationships Act 2015. This best interests test has been considered by the court on five occasions since its implementation.[20] However, none of these cases have dealt with the conflict between parental rights and children’s right. As such, it has yet to be tested in court whether this new best interests test is in any way substantively different from the test which preceded it.

The judicial commentary that does exist on the matter is conflicted. In PH v Child and Family Agency, Humphreys J stated that Article 42A did not take away from the marital presumption, stating obiter that the presumption should apply ‘in favour of the child’s best interests lying with the society of its parents’.[21] This supports the old standpoint on the welfare test, and if correct, would mean that Article 42A had little to no effect on altering its parent-centric standpoint.

On the other hand, in M v Minister for Justice and Equality, the Supreme Court noted the problems which existed prior to the enactment of Article 42A in relation to the rights of the child within the family.[22] They referred specifically to the presumption of it being in the best interests of the child to be with its natural parents and suggested that it could be inferred that Article 42A was meant to change the law in this regard.[23] If this view were to be expanded upon by the judiciary, it is possible that a child-centric best interests test could finally be implemented.

Conclusion

The full implications of the 2012 referendum for a child-centric best interests test are as of yet unclear. The courts have yet to test the new provision, and the limited case law which does exist on the matter is conflicted and does not establish a binding interpretation. What is clear is that a lot more could have been achieved by the 31^st Amendment. A version closer to that which was proposed by the Joint Oireachtas Committee in 2010 would have moved the courts away from the marital presumption, and towards an objective test for assessing the best interests of the child. As it stands, we have been left with an Article which confuses the matter instead of clarifying it. The future of the best interests test has been left in the hands of the courts, a position worryingly similar to that which existed prior to 2012.

 

 

 

[1] South Eastern Health Board, Report on the Kilkenny Incest Investigation (1993), 96.

[2] Guardianship of Infants Act 1964, s 3.

[3] State (Nicolaou) v An Bord Uchtála [1966] IR 567.

[4] G v An Bord Uchtála [1980] IR 32.

[5] Maebh Harding, ‘Constitutional Recognition of Children's Rights and Paramountcy of Welfare’ [2013] International Survey of Family Law, 181.

[6] M v an Bord Uchtála [1975] IR 81.

[7] Gerard Hogan and Gerry Whyte, Kelly: The Irish Constitution (5th edn,

Bloomsbury professional 2018) 2291.

[8] N v HSE [2006] IESC 60, IR 374.

[9] Ibid 592.

[10] Re Referendum Act: Jordan v Minister for Children and Youth Affairs [2015] IESC 33, [2015] IR 232.

[11] Harding (n 8) 194.

[12] G v An Bord Uchtála (4) 55.

[13] N v HSE (n 11).

[14]https://www.childrensrights.ie/sites/default/files/submissions_reports/files/JtCommConstAmendChildren-ThirdReport160210.pdf accessed 13 January 2018, 15 – 17.

[15] Conor O’Mahony, ‘Falling short of expectations’ [2016] IPS 252, 264.

[16] Art 42.2 2°.

[17] O’Mahony (n 24) 264.

[18] Art 42.1.

[19] Art 42A.4.1°.

[20] NK v SK [2017] IECA 1; PM v VH [2018] IECA 4; In re the Adoption Act 2010, s 49(2) and JB (a minor) [2018] IESC 30; AMQ v KJ [2018] IECA 97; Child and Family Agency v LB [2018] IEHC 423.

[21] PH v Child and Family Agency [2016] IEHC 106

[22] M v Minister for Justice and Equality [2018] IESC 14, [2018] 2 ILRM 81.

[23] Hogan and Whyte (n 10) 2298.