Falling short of expectations: the 2012 children amendment, from drafting to referendum

ABSTRACT

In November 2012, the Irish electorate approved a new provision in the Constitution dedicated to children’s rights. The popular portrayal of the referendum campaign was that it was largely uncontroversial, albeit with a sting in the tail. However, this over-simplifies the reality of a political struggle that was vigorously contested for almost a decade before the actual referendum campaign. While the idea of a children’s rights amendment was never far from the political agenda during this period, the political appetite for ambitious reform ebbed and flowed. The campaign itself was successful in passing the amendment, but the outcome was nonetheless seen as a disappointing one. This paper will explore two questions regarding the genesis and evolution of the children amendment, from initial public consultations through to the referendum campaign. First, what were the political forces that sought to influence the wording of the amendment, and which side had more reason to be pleased with the final product? Second, what were the factors that caused the referendum campaign to play out in such an unsatisfactory way for the Government?

KEYWORDS:

• Ireland
• constitution
• referendum
• children's rights

Acknowledgements

I am grateful for comments on an earlier draft by Ursula Kilkelly, Oran Doyle, Angela O'Connell, and the anonymous referees.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Article 41 of the Irish Constitution 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’, and provides that ‘[t]he 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 builds on this by granting strong rights to parents with respect to the education of their children.

2 The full text of Article 41.3 reads: ‘The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.’ The courts have repeatedly held that the effect of this provision is to limit the protection of Article 41 to families based on marriage – see, e.g. State (Nicolaou) v An Bord Uchtála [1966] IR 567; JK v VK [1990] 2 IR 437; WO'R v EH [1996] 2 IR 248, and JMcD v PL [2010] 2 IR 199.

3 As originally enacted, Article 41.3.2° provided: ‘No law shall be enacted providing for the grant of a dissolution of marriage.’

4 Article 41.2 provides:

1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. 2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Numerous recommendations have been made to revise this provision in gender-neutral terms; see Constitution Review Group (1996) and Convention on the Constitution (2013).

5 See, e.g. Re JH (an infant) [1985] IR 375; North Western Health Board v HW [2001] 3 IR 622; and N v Health Services Executive [2006] 4 IR 374, as discussed in Kilkelly and O'Mahony (2007).

6 North Western Health Board v HW [2001] 3 I.R. 635.

7 N v Health Services Executive [2006] 4 I.R. 374.

8 See section 3 of the Guardianship of Infants Act 1964; section 2 of the Adoption Act 1974; sections 3 and 24 of the Child Care Act 1991; and section 19 of the Adoption Act 2010.

9 For example, the proposed Article 42(A).1 failed to specify any particular rights of children; it simply reproduced the text of the existing Article 42.5 and left it to the courts to define the rights that children have. The Joint Oireachtas Committee on the Constitutional Amendment on Children (JOCCAC) and various commentators rejected this as inadequate (Carolan, 2007; Kilkelly & O'Mahony 2007; JOCCAC, 2010: 57 and 106–107). While it is possible that the courts will expand on the content of the provision, this is neither certain nor especially probable (Carolan, 2007), and it would have been preferable for the provision to be more specific as to the rights to be protected (Nolan, 2007: 510–511; IHRC, 2012: 5–6).

10 See http://www.oireachtas.ie/viewdoc.asp?fn=/documents/Committees30thDail/J-ConAmendChildren/Submissions/List_Of_Submissions/document1.htm.

11 McKenna v An Taoiseach (No. 2) [1995] 2 IR 10.

12 McCrystal v Minister for Children and Youth Affairs [2012] 2 IR 726.

13 Multiple opinion polls over a period of 18 months showed the Yes side in the marriage equality referendum polling at between 75 per cent and 80 per cent (see, e.g. Red, 2015: 10). It was not until one week before polling day that this figure really began to fall (see, e.g. Leahy, 2015). The final Yes vote in the referendum itself was 62.1 per cent.

14 Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1.

15 Section 43.

16 Jordan v Minister for Children and Youth Affairs [2013] IEHC 625 and [2014] IEHC 327.

17 Jordan v Minister for Children and Youth Affairs [2015] IESC 33.

18 Hanafin v Minister for the Environment [1996] 2 IR 321.