31st amendment to the Constitution

The 31st Amendment to the Constitution, which was passed by the people in the Constitutional Referendum of November 2012, has finally been signed into law by the Presidential Commission following the Supreme  Court’s rejection of a legal challenge to the validity of the November 2012 Referendum.

The introduction of Article 42A of the Constitution recalibrates rights between a child and his/her parents and will impact on how children are treated in our society generally.

First of all, the State recognises and affirms the rights of all children and shall, as far as practicable, protect and vindicate those rights regardless of whether the child is born to married parents or not.

Secondly, where parents fail in their duty towards their children to such extent that the safety or welfare of the children is likely to be prejudicially affected, the State shall, by proportionate means, endeavour to supply the place of the parents (regardless of the marital status of the parents).  This position is significantly different to the previous position where the State could only intervene in exceptional circumstances.  The test now focusses on the impact of the parents’ failure on the child.

Thirdly, Under the 31st Constitutional Amendment, there will be significant changes to the law of adoption,  and the evidential  threshold in adoption applications will be significantly lowered. In addition to this, the child of married parents can now be placed for adoption by his/her parents.

Fourthly, the 31st Constitutional Amendment enshrines the best interest of the child as the paramount consideration in all proceedings brought by the State with regard to the safety and welfare of the child and in all adoption,  guardianship, custody and access matters- this is a significant development.

Finally,  the 31st Constitutional Amendment states that, in all proceedings brought by the State regarding the safety and welfare of the child, or, in all proceedings  relating to adoption, guardianship, and custody and access, the views of the child shall be ascertained.

It will be very interesting to see how the 31st Constitutional amendment is interpreted by the Irish Courts.  

If you require further information, please contact Sinéad Kearney, Partner from our Health and Social Care Team.