Children
Children’s Rights Guarantee
Article 42 A provides that the State recognises and affirms and imprescriptible rights of all children and shall insofar as practicable by its laws protect and vindicate those rights. In exceptional circumstances, where parents, regardless of their marital status, fail in their duty towards their children to such an extent that safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good, shall be proportionate means as provided by law endeavour to supply the place of the parents but all must with due regard to the natural and imprescriptible rights of the children.
Provision shall be made by law that in the resolution of all proceedings brought by the State as guardian of the common good for the purpose of preventing the safety or welfare of any child from being prejudicially affected or concerning the guardianship or custody of or access of or access to any children, the best interests of the child shall be the paramount consideration.
Provision shall be made by law for securing insofar as practicable that in all proceedings referred to above in respect of any child who is capable of forming his own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
Pre-Amendment Position
Prior to this amendment, in custody disputes involving a parent, there was a very strong presumption that the welfare of the children was best served as being part of the family. It was sought to place greater emphasis on the right of children.
It was argued that notwithstanding that the Guardianship of Infants legislation had provided that the child’s best interest was the first and paramount consideration, that the effect of the family provision of the Constitution without the above amendment was to create a certain bias towards custody by one or other parents. It was criticised as giving insufficient protection to the interest of the child, in child care proceeding.
In North Western Health Board v. MW, Murray J for the Supreme Court stated:
If the State had a duty or was entitled to override any decision of parents because it concluded, established or was generally considered that that decision was not objectively in the best interest of the child, it would involve the State and ultimately the court, in a sort of micro-management of the family. Parents with unorthodox or unpopular views or lifestyles with a consequential influence on their children might for that reason alone find themselves subject to intervention by the State or by one of the agencies of the State. Similar consequences could flow where a parental decision was simply considered unwise.
This would give the State a general power of intervention and would risk introducing a method of social control in which the State or its agencies would be substituted for the family. There would be an infringement of liberties guaranteed to the family.
Decisions which are sometimes taken by parents concerning their children may be met with discomfort or even distress to the rational objective bystander but…. there must be something exceptional arising from failure of duty… before the State can intervene in the interest of an individual child.
There must be something immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically, morally or socially, deriving from an exceptional dereliction of duty on part of the parents to justify such intervention.
Eduction
Article 42 provides that the family is the primary and natural educator of the child. It guarantees to respect the inalienable right and duty of parents to provide, according to their means, for their religious and moral, intellectual, physical and social education of their children. The State may prescribe minimum standards of education.
In Re School Attendance Bill 1942, the Supreme Court held provisions requiring parents to send their children to a recognised national school or another certified school (with an exception where parents provided for suitable education) was found unconstitutional. The State was entitled to interfere with the parental choice to a certain extent, to the extent of requiring a minimum standard of elementary education or general application.
The State could not compel parents to send their children to State-owned, recognised or certified schools. Parents could choose to educate their children at home or in a private school provided the minimum standard was met. Some provisions were found unconstitutional and the Bill was not upheld.
The Constitution provides that parents are entitled not to be required to send their children to State school, where attending them would be in violation of their conscience. There is little definition as to what constitutes the minimum standard of elementary education in this context. The absence of definition was not a defence to school attendance prosecution under the former legislation. In proceedings, the judge or fact-finder concerned could determine what is a minimum standard in the circumstances.