With tomorrow’s divorce referendum just a matter of hours away, our online editor takes a look at whether Article 42A, which was inserted into the Constitution following the 2012 children’s rights referendum, has had a measurable impact on family law proceedings in this jurisdiction.
The most notable aspects of this constitutional amendment for the present purposes are that it explicitly states that in family law proceedings, the ‘best interests of the child shall be the paramount consideration’. To this end, provision is made for the courts to take into account the voice and opinions of the child, provided they are capable of forming their own views. These shall be weighted according to the age and maturity of the child in question.
The 1937 contained no express declaration on children’s rights, as they were viewed as coming under the considerable protections afforded to the family unit as an extension of their parents. However, with many different types of families outside of the traditional nuclear now commonplace, recognising children’s rights as a standalone concept became a paramount objective for successive governments – particularly after it was recommended by the Constitution Review Group of 1996. As we know, this became a reality in 2012, with the introduction of Art 42A in place of the old Art 42.5.
The key provision with which we are herein concerned, Art 42A.4, holds as follows:
‘4 1° Provision shall be made by law that in the resolution of all proceedings –
i. 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
ii. concerning the adoption, guardianship or access to, any child
the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as is 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.’
So was this a necessary insertion into the Constitution? Interestingly, the child’s right to be heard in court proceedings had already been recognised as falling under the umbrella of unenumerated rights discovered in Art 40.3 by Finlay Geoghegan J in the case of FN and EB v CO. This decision was endorsed in the later case of V v U, where McMenamin J indicated that judges should be allowed to interview children where they are of an appropriate age.
The primary difference between the new regime as laid out under Art 42.5 is that a mandatory obligation is created to ascertain the views of the child. This is vastly different to a mere recommendation that the views of the child be taken into account where they are offered voluntarily, as the court must straddle the fence between giving the child a voice without forcing them to give evidence in a pressurised environment. Speaking at our recent Family Law Conference, Sonya Dixon BL noted:
‘Children’s maturity levels can vary greatly at the best of times. Sometimes there are additional complicating factors such as disabilities or trauma which may hinder a child’s ability to express his or her own view. These factors do not obviate the need to ascertain the views and specialists can be appointed to ascertain those views where at all possible.’
However, constitutional provisions have no direct effect in and of themselves. They must be given effect to via legislation and the operative law here is the Guardianship of Infants Act 1964. A new Part V was inserted into this act through the Child and Family Relationships Act 2015 and is available to view in full on the LRC’s revised acts section. Section 32 provides that the court may appoint an expert to compile a report on the child’s views, or to determine and convey same to the court. These 32 reports are broad in scope in that they aim to address any and all issues which may impact upon the welfare of the child.
Following on from this, S.I. 587/2018 provides that the maximum fee that may be charged in respect of one of these reports is €240. According to Ms Dixon, this cap is problematic as many leading psychologists have indicated that it is not viable for them to provide reports at this rate. An obvious alternative to this would be for the child to give direct evidence to the judge in camera, however, this raises the question as to whether judges would need specialist training to this end.
In practice, what change has this amendment brought about? Obviously, children now have an explicit constitutional right to have their voices heard in proceedings which concern them. However, as Ms Dixon notes, due to the acrimonious and adversarial nature of divorce proceedings, the voice of the child can often get lost in the noise – no matter how much both parents advocate for the child’s welfare to be prioritised. Therefore, it seems little will change in practice, especially seeing as the child’s right to be heard had been recognised in pioneering decisions by the likes of Ms Justice Finlay Geoghegan.
But what other options are there? Dr Connie Healy at NUI Galway, a long-time advocate for mediation, wrote in the Irish Times in 2012 that: ‘The research has shown children value the opportunity to have some input and to be treated with respect…. enabling the parties to reach more family-friendly resolutions’. While mediation seems like the obvious solution, practitioners have their doubts as it is rare for both parties to be equally amenable to the process. Oftentimes, the party who feels they have been wronged will want their day of vindication in court.
And the last issue which needs to be considered is whether the referendum was necessary at all, given that the rights enunciated in Art 42A were already recognised as existing under the wider umbrella of unenumerated rights found in Art 40.3. A paper by Alan Brady BL offers very clear insight on this issue. He holds that Art 42A has ‘permitted developments in legislation’ and may, depending on how it is interpreted in the years and decades to come, open a door to a ‘potential constitutional right to housing for children’. He notes that constitutional law cannot be compared with the spheres of private law like tort and contract, where rights cannot exist without remedies. Constitutional rights carve out a space within the wider public law landscape beyond individual cases, offering again the example that it may some day lead to the recognition of a right to housing.
This blog post has compiled with reference to secondary sources which have been acknowledged throughout, particularly Sonya Dixon BL’s paper, ‘The Voice of the Child’, which she gave at Bloomsbury Professional’s Family Law Conference. This article is for general interest only and is not to be regarded as a substitute for legal advice. Any errors should be notified to the author and will be dealt with accordingly. For more on this, see our upcoming title, Divorce and Judicial Separation Proceedings in the Circuit Court: A Guide to Order 59.