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When: Nov 2, 12
Where: Uncategorized
Who: Staff
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It is proposed that the Constitution will be changed through a referendum on Saturday 10th November, 2012 so that there would be included in our Constitution a separate statement of rights for children.

The wording of the proposed amendment is as follows:-

ARTICLE 42A – Children

1.     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.  

This amendment seeks to add a provision dedicated to the rights and protections to be enjoyed by children rather than include them under the general rights for all citizens.  This proposed amendment is intended to strongly incorporate rights specific to children in the Constitution so that these rights may be taken into account in the making of laws and Court decisions regarding children.


2.    1˚ In exceptional cases, where the parents, regardless of their marital status, fail in their duties towards their children to such extent that the safety or welfare of     any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law,     endeavour to supply the place of the parents, but always with due respect for the natural and imprescriptible rights of the child.  

It is intended that this will replace the current Article 42.5 under “Education” in the Constitution.  This change would not alter the fact that it is the primary duty of the parents to care for and protect their children, as is currently the case.  It is intended that the State would step in to take a child into care only in exceptional circumstances.


       2˚ 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.

The usual way a child is adopted requires the agreement of his or her parents or guardian and this will remain the position.   If the referendum is passed it is proposed to introduce legislationto amend the Adoption Act 2012 and the new legislation will set out new requirements which must be met before the High Court can authorise the adoption of a child in foster care.

  1. The requirement to prove total abandonment “without interruption” until the child is 18 years of age will be changed.  The requirement will be that parents will have to have failed in their duty towards the child for 3 years.
  2. That the parents have no reasonable prospect of resuming the care of the child.
  3. The High Court must also be satisfied that this failure constitutes an abandonment of the parental rights.
  4. The child will have to be at least 18 months in the care of those who apply to adopt them.
  5. As is the case now, the Court must be satisfied that adoption is an appropriate way in which to provide for the parenting of the child.   It must consider what is in the best interests of the child bearing in mind the Constitutional rights of all of the parties, including the child.   It must consider the views of the child provided, of course, that the child is old enough to be able to express his or her views.

3.    Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.  

This amendment seeks to make it possible for married parents to place their child for adoption and to consent to an adoption in the same way as a parent or parents who are not married.   Currently married parents are not allowed to place their child for adoption and  this provision, if passed, would change that.  Legislation is proposed to allow married parents who decide adoption is the best option for their child to place such child for adoption.  Adoption will continue to be regulated under the Adoption Act 2010.


4.     1˚ Provision shall be made by law that in the resolution of all proceedings:-

            i.    brought by the State, as guardian of the common good, for the purpose of  preventing the safety and welfare of any child from being prejudicially affected, or

        ii. concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration

This provision explicitly states that the best interests of the child should be the most important consideration when deciding issues such as guardianship, custody and access of any child and proceedings relating to child protection and adoption.  This principle can be found in existing legislation, however this amendment seeks to give specific recognition to the principal in the Constitution.


2˚  Provision shall be made by law for securing as far as practicable, that in the all proceedings referred to in subsection 1˚ of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given full due weight having regard to the age and maturity of  the child.

This gives recognition at Constitutional level to the rights of children to have their views heard and taken into account in Court proceedings in the areas of family law, child protection and adoption.


The Government is bringing forward this Referendum to give the Irish people the opportunity to make a decision on this matter.  The proposed amendment is intended to give recognition to the rights of children under the Constitution and to affirm the State’s obligation, as far as practicable, to protect those rights.


The Referendum is intended to put children’s needs at the centre of decision-making and to facilitate changes to adoption legislation.


We at Kieran McCarthy & Company can advise on all aspects of child law and in particular, access, custody, adoption and maintenance.  Should you have any query regarding these issues please contact us at

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Kieran McCarthy & Co. Solicitors
Floor 3B, 6 Lapps Quay, Cork.
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