Thirty-first Amendment of the Constitution (Children) Bill 2012

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The Thirty-first Amendment of the Constitution (Children) Bill 2012 (Bill No.78 of 2012[1]) is a proposed amendment to the Constitution of Ireland, relating to children's rights and the right and duty of the state to take child protection measures. The bill was passed by both Houses of the Oireachtas (parliament) on 10 October 2012,[1] and approved at a referendum on 10 November 2012, by 58% of voters on a turnout of 33.5%.[2] As of 14 November 2013 the bill has not been signed into law by the President, because of a Supreme Court case challenging the conduct of the referendum.[3]

Supreme Court ruling[edit]

Two days before the referendum was held, in McCrystal v. Minister for Children the Supreme Court ruled that the government had breached the constitution by using public funds to publish and distribute information concerning the referendum that was biased in favour of a yes vote.[4] In 1995 in the case of McKenna v. An Taoiseach, the Supreme Court had ruled that public funds should be used for explaining referendums in an impartial manner. While a statutory Referendum Commission fulfilled the latter role, the Minister for Children and Youth Affairs had published a separate booklet and webpages which were found to be non-neutral.

Proposed changes[edit]

The proposed changes are as follows:[5][6]

Text to be deleted

Section 5 of Article 42 of the Constitution is proposed to be repealed:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Text to be inserted

A new article is proposed to be inserted after Article 42. Section 2.1° of the proposed Article 42A replaces the above deleted section:

Article 42A
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.
2 In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such an 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 regard for the natural and imprescriptible rights of the child.
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.
3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4 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.
Provision shall be made by law for securing, as far as practicable, that in 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 due weight having regard to the age and maturity of the child.

Result[edit]

Thirty-first Amendment of the Constitution Bill 2012[7]
Choice Votes  %
Referendum passed Yes 615,731 58.01%
No 445,863 41.99%
Valid votes 1,061,594 99.57%
Invalid or blank votes 4,645 0.43%
Total votes 1,066,239 100.00%
Registered voters/turnout 3,183,606 33.5%

Court challenge[edit]

On 19 November 2012, two women, Joanna Jordan and Nancy Kennelly, brought petitions to the High Court challenging the referendum result, claiming that the unlawful use of public funds by the government had materially affected the outcome.[8] Kennelly, who claimed she had voted Yes based on misleading advice in the government campaign,[8] withdrew her petition the following week.[9] The case of Jordan, who was active in the No campaign, was adjourned pending the handing down of written judgements in the McCrystal case,[8] which occurred on 11 December 2012.[10] The case was heard in April and May 2013, with expert witnesses differing on the interpretation of a Behaviour & Attitudes survey of voters carried out for the Referendum Commission after polling day.[11][12] Judgment was reserved on 16 May 2013.[13] On 18 October 2013, judge Paul McDermott rejected the petition, ruling that Jordan had failed to prove the government's advocacy had "materially affected" the referendum result.[14][15] McDermott ordered a two-week stay on the delivery of the final referendum certificate, to give Jordan an opportunity to appeal his decision to the Supreme Court.[3][16] An appeal was duly lodged on 24 October.[3] Jordan's original challenge to the referendum was made and processed by the procedure prescribed in the Referendum Act 1994; after the High Court case, she launched a separate challenge to the constitutionality of those provisions, arguing they placed too high a burden of proof on the petitioner.[17] This challenge was also rejected by McDermott in the High Court, on 19 June 2014.[18] Kathy Sinnott, who supports Jordan's case, stated that chief justice Susan Denham had agreed for the Supreme Court to hear appeals to both High Court judgments at the same time, probably in the autumn 2014 session.[19]

Subsequent legislation[edit]

Prior to the 2012 referendum, the government published the general scheme of an amendment to the Adoption Act, which it plans to enact if the constitutional amendment is upheld.[3][20]

References[edit]

  1. ^ a b "Thirty-First Amendment of the Constitution (Children) Bill 2012". Houses of the Oireachtas. Retrieved 24 September 2012. 
  2. ^ "Children's Referendum amendment passed by 58% of voters". RTÉ News. 11 November 2012. 
  3. ^ a b c d FitzGerald, Frances (14 November 2013). "Written Answers No 185: Proposed Legislation". Dáil Éireann debates. Oireachtas. Retrieved 16 December 2013. 
  4. ^ "Children's referendum set to proceed despite court ruling". irishtimes.com. Retrieved 24 November 2012. 
  5. ^ Thirty-First Amendment of the Constitution (Children) Bill 2012, As passed by both Houses of the Oireachtas
  6. ^ "The proposed change to the Constitution". The Children Referendum. Referendum Commission. 2012. Retrieved 4 October 2013. 
  7. ^ "Referendum Results". Department of the Environment, Community and Local Government. Retrieved 14 August 2014. 
  8. ^ a b c Healy, Tim (19 November 2012). "High Court challenge to Children’s Referendum 'yes' result". Irish Independent. Retrieved 24 November 2012. 
  9. ^ "Woman withdraws from constitutional challenge to Children’s Referendum". Irish Independent. 27 November 2012. Retrieved 4 October 2013. 
  10. ^ McCrystal -v- Minister for Children and Youth Affairs & ors [2012] IESC 53 O’Donnell Denham Murray Fennelly
  11. ^ O’Loughlin, Ann (20 April 2013). "Referendum booklet increased yes vote, says advertising expert". Irish Examiner. Retrieved 4 October 2013. 
  12. ^ Healy, Tim (7 May 2013). "No evidence of effect of campaign on Children Referendum voters". Irish Independent. Retrieved 4 October 2013. 
  13. ^ "Written Answer No. 601: Constitutional Amendment on Children". Dáil debates. Oireachtas. 28 May 2013. Retrieved 4 October 2013. 
  14. ^ "High Court rejects challenge to Children's Referendum". Irish Independent. 18 October 2013. Retrieved 18 October 2013. 
  15. ^ "[2013] IEHC 458: In the Matter of the Referendum on the Proposal for the Amendment to the Constitution contained in The Thirty First Amendment to the Constitiution (Children) Bill 2012, Held on 10th November 2012". Judgments. Dublin: Courts Service. 18 October 2013. Retrieved 25 October 2013. 
  16. ^ Waters, John (25 October 2013). "Racism is not the most obnoxious aspect of these child snatchings". The Irish Times. Retrieved 25 October 2013. 
  17. ^ "High court dismisses woman's challenge to laws governing the challenging of referendum results". Irish Independent. 20 June 2014. Retrieved 11 July 2014. 
  18. ^ Carolan, Mary (20 June 2014). "Woman loses challenge to referendum laws". The Irish Times. Retrieved 7 July 2014. 
  19. ^ Sinnott, Kathy (22 June 2014). "Update 26 Referendum Challenge". beforeitsnews.com. Retrieved 7 July 2014. 
  20. ^ "General Scheme Of Adoption (Amendment) Bill 2012". Dublin: Department of Children and Youth Affairs -. 2012. Retrieved 16 December 2013. 

External links[edit]