Legal Analysis of Article 42A.2.2

Dr Liam Thornton is a lecturer in law and director of clinical legal education in the School of Law, University College Dublin.

Proposed Article 42A.2.2 provides:

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.

This amendment provides the power for the Oireachtas to further legislate on issues in relation to adoption.

This provision is closely linked with Article 42A.3, which Dr Fergus Ryan discusses in the next post. If passed, it will introduce into the Constitution an explicit mention of the State’s ability to legislate on issues relating to adoption.*

Current Law

Adoption

It should be noted that currently the Oireachtas have the power to legislate on adoption.  The current law adopts different rules concerning  the adoption of children of unmarried parents and the adoption of children from a marital family.  For parents who were unmarried, the natural mother had particular rights to consent ( and to withdraw consent) or be deemed to have consented to the adoption. The role of the natural non-marital father is exceptionally limited and at most only has an obligation to be consulted.

The current law on adoption of children born to marital parents adopts a very stringent test so as to permit a child of marital parents to be only be adopted where the child is abandoned and this abandonment will last until the child was 18. The courts have interpreted this provision very strictly, as seen from the Baby Ann case. Due to the judiciary’s very conservative interpretation of another article of the Constitution (Article 41) and Article 42.5 (which is to be deleted if this amendment is passed), an exceptionally high threshold is placed on what constitutes abandonment by the marital parents.

Best Interests

The ‘best interests’ test is currently not a part of Irish adoption law. Instead, the welfare of the child is regarded as the ‘first and paramount’ consideration. Case law from the Irish courts have tended to view the welfare of the child as being synonymous with the wishes/intentions of the parents (see the Heel Prick case). The principle of best interests of the child has not been extensively considered by courts in Ireland.

Impact of the Amendment

This amendment apparently places an obligation (‘Provision shall‘) on the Oireachtas (Irish Parliament) to legislate on the following issue:

  1. On the adoption of any child where the parents have failed in their duties towards the child for a period of time. This time period is to be set down in legislation; AND
  2. It would be in the best interests of the child to be adopted where their parents have failed in their duties for the prescribed period of time.

Adoption

This provision (and Article 42A.3) will ensure that marital children can be placed for adoption or adopted in the same manner as children from a non-marital family and it will be for the Oireachtas to legislate and give effect to the explicit power that they have in relation to legislating on issues relating to adoption.

The current scheme of the Adoption Bill 2012 will equalise laws on the adoption of children, be they from marital or non-marital families. However, this Bill is not part of the constitutional amendment and can itself be amended by the Oireachtas.

Best Interests

The phrase best interests of the child comes from the Convention on the Rights of the Child. It remains to be seen how the courts will interpret this provision in light of the totality of Article 42A. However given that the constitutional  protection of the marital family is maintained under Article 41 of the Constitution, it would be hard to envisage the courts interpreting this provision as providing the State with extensive powers to supplant its judgment for the judgment of the parents.

*(A previous constitutional amendment on adoption ensured that adoption orders made by the (then) Adoption Board could not be declared invalid because they were not made by a court).