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Ireland: ‘Best Interests’ as a Limited Constitutional Imperative

Published online by Cambridge University Press:  09 November 2019

Maebh Harding
Affiliation:
Associate Professor, School of Law, University of Warwick, United Kingdom
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Summary

INTRODUCTION

In 2012, a constitutional amendment to strengthen the recognition of children's rights was approved by the Irish people. In 2015, following legal challenges, this amendment finally took effect at a constitutional level. However, the required legislation to fully implement the constitutional change has still not been fully realised. This chapter provides an update on the effect of this Children's Rights referendum on the structure of Irish child law, looking in particular at the tension between ensuring the paramountcy of the best interests of individual children in court decision-making and the traditional constitutional duty under Articles 41 and 42 to protect the integrity of the family unit.

A CONSTITUTIONAL DEFERENCE TO PARENTAL AUTHORITY

Throughout Irish constitutional jurisprudence, the recognition and protection of the individual rights of marital family members has been of secondary concern to ensuring the integrity and authority of the marital family unit. This order of priorities is particularly observable when it comes to the development of children's rights.

The Irish constitution recognises the marital family as an institution possessing inalienable and imprescriptible rights. While the definition of marriage has changed to encompass same-sex couples with the adoption of the Marriage Equality amendment, the obligation to protect the marital family in its constitution and authority endures. Such constitutional rights of family integrity do not apply to the non-marital family.

The individual rights of children received limited recognition in the Irish constitution as originally draft ed. Article 42.5 imposed an obligation on the state to have due regard to the ‘natural and imprescriptible rights of the child’ but only in the exceptional situation of state intervention to ‘supply the place of the parents’. The primary authority of parents to raise their children is expressly recognised under Article 41.2. Married parents have both the right and duty to provide for the religious, moral, intellectual, physical and social education of their children. State intervention was restricted at the constitutional level by Article 42.5 to exceptional situations, where the parents had failed in their duties for either physical or moral reasons. Children's individual rights were thus given little weight where they conflicted with the institutional rights of the constitutional family.

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Publisher: Intersentia
Print publication year: 2019

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