SUBMISSIONS OF THE LAW REFORM COMMITTEE OF THE FAMILY LAWYERS ASSOCIATION TO THE JOINT OIREACHTAS COMMITTEE ON PROPOSED WORDING OF ARTICLE 42A

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1 SUBMISSIONS OF THE LAW REFORM COMMITTEE OF THE FAMILY LAWYERS ASSOCIATION TO THE JOINT OIREACHTAS COMMITTEE ON PROPOSED WORDING OF ARTICLE 42A The issues addressed in the proposed Constitutional Referendum on Children s Rights are of central interest to the Irish Family Lawyers Association who support any step to promote children s interests. During the course of 2007 the Law Reform Committee of the Family Lawyers Association canvassed the membership for their views on the wording of the proposed Amendment, and in January 2008 held a debate to allow members to examine the import of the wording. It is not the function of the Law Reform Committee to formulate policy on behalf of the members of the Association whose views diverge on both the form and content of the proposed wording. Some members offer support for the full wording as drafted; others support some, but not all elements; others are opposed to the wording in its entirety. There is also a view within the Association that a nation s Constitution, which purports to expound general principles of governance and personal rights, is not the vehicle for such particular matters as the wording addresses, which they argue, would be better served via direct legislation. Others consider the wording as proposed necessary to vindicate the rights of vulnerable children. It is therefore not possible to alter our opinion based on consensus. Nonetheless, it is the considered opinion of the Association s Law Reform Committee that certain issues with regard to the proposed wording require to be highlighted. These are summarised below. 1. Some members state that they would vote in favour of some parts of the amendment but would not support other parts. If this proposed wording is put to voters in a referendum in its current format, it could result in a rejection of the amendment in its entirety. In order to avoid the risk of rejection, the Committee suggests that consideration be given to separating out the different sections of the amendment, providing an option to vote for some of the provisions, while rejecting others. This would safeguard support for the parts deemed acceptable to voters without endangering the passage of the entire amendment. It would also create a voter-friendly environment in permitting voters a choice.

2 2. It is noted that there is no proposal to amend or delete Article 42.1 of the Constitution which refers to the rights and duties of parents in a Family, which itself is founded on the institution of Marriage as laid down in Article This could lead to problems of interpretation of the proposed Article 42A, as discussed below. Example 1 The import of the provision for the voluntary placement for adoption and the adoption of any child as stated in Article 42(A)3 does not appear to sit harmoniously with the existing provisions of Article 41.1 and 42.1 which refer to the rights of the family based on marriage as inalienable and imprescriptible. (Note that the Constitutional Review Group recommended that the description of any rights or duties specified in Articles 41 or 42 should not include adjectives such as inalienable or imprescriptible, should there be an acceptance of the opportunity presented by this amendment to effect such change). Example 2 There is a view among members that the test for State intervention in the case of in re J.H, as approved in the N case, arises from the provisions of Article 42. It is not clear from case law that the high threshold test for State intervention in a marital family arises only from Article If this is the case (i.e. the high threshold test does arise from Article 42.1), and if the amendment as presently drafted is passed, this may lead to there being two differing thresholds for State intervention, depending on whether the child is a marital or non-marital child. On the other hand, if the high threshold test arises from the wording of Article 42.5, then after the Amendment comes into force, the high threshold for State intervention will apply to all children. Is it the State s intention to apply the same test for all children? If so, then should the provision not explicitly state this? This anomaly demonstrates the potential confusion that could arise. Some Family Lawyers Association members expressed the view that reform of the Adoption Act 1988 would be appropriate rather than the inclusion of miscellaneous clauses regarding adoption law within the proposed wording of a Constitutional Amendment. Others commented that any changes in the Adoption legislation may provoke a Constitutional challenge, and therefore the Constitutional Amendment is necessary.

3 Some of our membership expressed the view that the amendment as drafted, would actually exacerbate the differences between children born inside and outside marriage. The amendment does not specifically state that non-marital children have the right to grow up in their family in the same way as marital children. The Association recommends that this should be overtly stated to guarantee parity of protection between marital and non-marital children. 3. The point has been made that the wording of Article 42.A.1 does not provide that the State shall vindicate or defend the rights of children which are expressed in that section. This could potentially weaken the protection afforded to the rights which the amendment purports to declare. The Law Reform Committee recommends that further consideration be given to this concern (we presume it is, in fact, the State s intention to defend and vindicate all children s rights). 4. The provisions of Article 42.A.2 has aroused concern amongst some of our membership. Some members favour the wording as drafted, believing that it corrects an existing Constitutional imbalance in that too much emphasis is placed on the rights of parents over children s rights. Others, however, are of the view that a Constitutional amendment is not necessary for the reform of adoption law, as stated above in Example 2. Concern was expressed that, due to the current wording, the Amendment could provide the basis for the involuntary adoption of children after a very short period of parental failure without the necessity of demonstrating that this failure will continue or that it amounts to abandonment, thereby diluting the existing test. The intention of the legislature should be clearly stated so that the electorate can understand the consequences of this important provision. To this end, we feel it imperative that an express statement of the circumstances in which the State may interfere with, or restrict, the exercise of family rights guaranteed by the Constitution, loosely modelled on Article 8(2) of ECHR should be included (as recommended by the Constitutional Review Group in May 1996). 5. Some members suggested that Article 42.A.3 may conflict with Article 42.1? 6. The intention of the wording of Article 42.A.4 is unclear. The various Acts dealing with the issues of adoption, guardianship, custody and access, already make provision for the best interest of the child principle. If the

4 Government wants to impose a Constitutional duty on the courts to do this, which finds favour with some of our members, then the wording of the section addressing this principle should state so clearly and unambiguously. 7. At the Family Lawyers Association debate on the proposed wording, reservations were expressed regarding the import and ambit of the wording of criminal law provisions with respect to their potential interpretation. Again, some members contended that it would be illconceived to place these specific issues within the Constitution, and that regulation should be effected by way of legislation. Is there a compelling case for according such matters, profoundly serious though they may be, Constitutional status? The Law Reform Committee is of the view that the legislative provisions envisaged by Article 42.A.5 must be drafted with due diligence to ensure that the totality of rights and interests of all parties concerned are prudently balanced. Furthermore, the provision of information must be strictly regulated. It is noted that no Constitutional duty is imposed on the State to take protective measures. If this is the intention, then consideration might be given to clearly stating so. The aim and intention of this provision requires clarification. 8. Article 42.A.5.2 confers perpetual immunity on future legislation. The Law Reform Committee wishes to emphasise that this provision has no precedent under Irish Law. Given that it must be acknowledged that sexual acts with children can also involve such acts being committed by children with other children, it seems essential to differentiate more carefully between consensual childhood sexual exploration and authentic sexual predator-type activity where adults exploit children. How will children s rights be protected under this provision? Would a 17-year old boy face automatic prosecution under this wording for sexual acts with a consenting 17 year-old girl? Any protection afforded consensual sexual acts between underage children should not dilute legal protection against rape of minors. It is noted that the wording does not limit perpetual immunity to sexual offences but relates to all offences involving children. By extension, offences such as the inadvertent selling of alcohol to underage children would fall under the ambit of these provisions. The Law Reform Committee queries whether this is the intention of the legislature. Overall, the Committee has concerns as to whether the wording should be so broadly drafted.

5 Conclusion The Law Reform Committee reports above the reactions, recommendations, advice and suggestions of the Family Lawyers Association membership with respect to the proposed wording of the Article 42A amendment. Some members favour the wording as currently drafted and would support it in a referendum, others favour the legislative as opposed to the constitutional route to effect the reform of well acknowleged loopholes in current legal provisions. It is also the case that the current wording of the Article 42A draft has provoked concern among the membership in the areas highlighted above. The Law Reform Committee urges a reappraisal of the current provisions with attention to both the form and content of the wording. In conclusion, a Constitutional amendment offering choices for law reform, while facilitating the passage of the amendment, even partially if necessary, would provide a more nuanced and fitting regulatory mechanism for the future protection of the areas it addresses. The Committee are happy to make oral submission if viewed helpful. Audrey Byrne Chair Law Reform Committee Family Lawyers Association 18 February 2008