Book contents
- Frontmatter
- Preface
- Contents
- List of Contributors
- Albania: Are Albanian Legal Rules on Divorce Adequate for High-Conflict Divorces?
- Australia: Reform and Complexity: A Difficult Balance
- Brazil: The Social Food Bank and the State's Duty to the Child in the Face of the Non-Fulfillment of Child Support Executions
- Canada: Habitual Residence of Abducted Children and Divorce Act Reform
- China: On Protection of the Child's Right to Care under the Minor Guardianship System in China
- England and Wales: Familial Relationships: Entrances and Exits
- The Faroe Islands: A New Family Law is Born
- France: A Chronicle of French Family Law
- Hong Kong: Slow Progress Towards Family Law Reform?
- Ireland: ‘Best Interests’ as a Limited Constitutional Imperative
- Italy: The Divorce Allowance in Italian Law: The Role of Jurisprudence in the Formation of the Legal Rule in the Family Sphere
- Korea: AID and Surrogacy in Korean Law
- Namibia: Towards a New Juvenile Justice System in Namibia
- New Caledonia: Legal Pluralism and Diversity of Interpretation of Fundamental Rights (Common Law, Customary Law, Reservation Related to Indigenous Rights): The Example of New Caledonia
- New Zealand: Reform is in the Air
- Papua New Guinea: State and Customary Laws and the Underlying Law of Papua New Guinea: A Family Law Conundrum
- Portugal: What's Mine is Mine and Won't be Yours: The Newly Introduced Possibility of Opting Out of the Mandatory Succession Effects of Marriage in Portugal
- Serbia: Transgender Issues before the Constitutional Court of Serbia
- The Seychelles: The Seychellois Family Tribunal and its Implementation of the Family Violence (Protection of Victims) Act 2000
- UN Committee on the Rights of the Child: Reflections on Family Law Issues in the Jurisprudence of the CRC Committee: The Convention on the Rights of the Child @ 30
- United States of America: Same-Sex and Different-Sex Relationships: Is it Time for Convergence?
- Index
Ireland: ‘Best Interests’ as a Limited Constitutional Imperative
Published online by Cambridge University Press: 09 November 2019
- Frontmatter
- Preface
- Contents
- List of Contributors
- Albania: Are Albanian Legal Rules on Divorce Adequate for High-Conflict Divorces?
- Australia: Reform and Complexity: A Difficult Balance
- Brazil: The Social Food Bank and the State's Duty to the Child in the Face of the Non-Fulfillment of Child Support Executions
- Canada: Habitual Residence of Abducted Children and Divorce Act Reform
- China: On Protection of the Child's Right to Care under the Minor Guardianship System in China
- England and Wales: Familial Relationships: Entrances and Exits
- The Faroe Islands: A New Family Law is Born
- France: A Chronicle of French Family Law
- Hong Kong: Slow Progress Towards Family Law Reform?
- Ireland: ‘Best Interests’ as a Limited Constitutional Imperative
- Italy: The Divorce Allowance in Italian Law: The Role of Jurisprudence in the Formation of the Legal Rule in the Family Sphere
- Korea: AID and Surrogacy in Korean Law
- Namibia: Towards a New Juvenile Justice System in Namibia
- New Caledonia: Legal Pluralism and Diversity of Interpretation of Fundamental Rights (Common Law, Customary Law, Reservation Related to Indigenous Rights): The Example of New Caledonia
- New Zealand: Reform is in the Air
- Papua New Guinea: State and Customary Laws and the Underlying Law of Papua New Guinea: A Family Law Conundrum
- Portugal: What's Mine is Mine and Won't be Yours: The Newly Introduced Possibility of Opting Out of the Mandatory Succession Effects of Marriage in Portugal
- Serbia: Transgender Issues before the Constitutional Court of Serbia
- The Seychelles: The Seychellois Family Tribunal and its Implementation of the Family Violence (Protection of Victims) Act 2000
- UN Committee on the Rights of the Child: Reflections on Family Law Issues in the Jurisprudence of the CRC Committee: The Convention on the Rights of the Child @ 30
- United States of America: Same-Sex and Different-Sex Relationships: Is it Time for Convergence?
- Index
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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- Information
- International Survey of Family Law 2019 , pp. 139 - 162Publisher: IntersentiaPrint publication year: 2019