The Referendum Relating to Children

The Referendum was held on 10th November 2012. While turnout was low, the majority of voters voted in favour of the referendum proposal (58% voted yes and 42% voted no).

A challenge to the Provisional Referendum Certificate was lodged in the High Court on 19th November 2012 under the provisions of the Referendum Act 1994.

The judgment in the High Court Petition challenging the result of the referendum was delivered on 18th October 2013 – the petitioner was unsuccessful in her challenge to the Provisional Referendum Certificate. An appeal against the judgment was heard by the Supreme Court in December 2014 and on 24th April, 2015 the Court unanimously dismissed the appeal. The Thirty-First Amendment of the Constitution (Children) Act 2012 was signed into law 28th April, 2015.

The Thirty-First Amendment of the Constitution (Children) Act 2012 provides for the following:

Repeal of Article 42.5

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.

Insertion of Article 42A

• 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
• in exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such 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
• provision shall be made by law for the voluntary placement for adoption and the adoption of any child
• 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 and welfare of any child from being prejudicially affected, or

-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