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Topic 18- The Family, Children and Education
Children's Rights and…
Topic 18- The Family, Children and Education
Children's Rights and Children's Right Referendum
Children's Rights
Courts have recgonised children have certain rights under the Constitution
- State (Nicolaou) v An Board Uchtala Rights of legitimte and illegitimate children are the same
G v An Bord Uchtala: Child is entitled to be supported and reared by its parents
Referendum
- Deleted A42.5
- Inserted A42A
Art 42A.2.1express recognition of rights of all children
New Test
- This replaces old A42.5 and replaces the language of 'failure in moral duty' with a parental failure 'to such an extent that he safety or welfare of any of their children is likely to be prejudicially affected'
- Regardless of marital status
Adoption
A42A.2.2 provides that any child may be placed for adoption where parents have failed in their duty
- A42A.3 provides for the voluntary placement of any child of adoption
- Removed difficulty of adopting children born within marriage
Interests of the child
A42.4.1: provides that legislation shall be made providing that the interests of the child are paramount in certain types of proceedings
- Safety and welfare proceedings brought by the state
- Adoption, custody, guardianship or access proceedings
- This article not self-executing and does require positive legislation
Views of child
A42.4.2: legislation (in relation to the above procedure) shall provide that the view of child should be ascertained and due weight gvien to them having regard to age and maturity of child
Note
- The amendment does not give recognition to the non-marital family
- Nor does it change position of unmarried fathers
- Remains to be seen whether cases e.g. PKU test would be decided same way
- Will court still be as deferential towards decisions of family ?
Education
Article 42
With exception of A42.5 (Now 42A) this article has received only limited judicial attention
Note from Text
- Primary educator of a child is the family
- It is the 'inalienable duty' of parents to provide for the religious, moral, intellectual, physical and social education of their child
- Parents are free to provide this education at home, in private schools, or in school established by state
- State cannot oblige parents to send their children to state schools or to any particular type of school
- but shall ensure children receive a 'certain minimum education'
- State 'shall' provide for free primary education
Article 44.4
Provides that legislation providing for State aid for schools shall not discriminate between schools under management of different religious denominations
- Refers to right of any child to attend a school receiving public money without attending religious instruction at that school
O'Shiel v Minister for Education
Facts: Parents wanted the Department to fund a Steiner School
- Particular type of schools whose principles were no in accordance with Department guidlines
- Department declined to fund the schooll
: Held: HC - refused relief sought
- State not obliged to provide a particular type of education
Campaign to Separate Church and State v Minister for Education: Barrington said that while a child ahs rightt o opt out of religious instruction in school
- No requirement for school to change general ethos
Primary Education
Sinnott v Minister for Education
Held: Severely autistic child with profound mental and physical disability was entitled to suitable education up until age 18
- The judges expressed different views on precisely what 'primary education' meant
- normal child- could end at 12, but continue to 18 for children with learning disabilities
- As a whole court agreed applied only to children and therefore could not extend beyond 18
Home Schooling
DPP v Best
Facts: D was home-schooling children
- School Attendance Act 1926 required that children be sent to school unless child received 'suitable elementary education' at hom
- Dstrict Court judge found children not receiving education in line with national cirriculum
- Stated case to HC on meaning of suitable elementary education
SC: Held phrase could not be interpreted as requiring more than the 'certain minimum education, moral, intellectual and social' referred to in A43.3.2
- Denham J noted this was not to be equated with national school curriculum
- The absence of Irish, was not fatal, but was factor to be taken into consideration
Case Law on A42A
M v Minister for Justice
Case on rights of the unbornHC- meaning of 'the family' may have to be changed in light of legal and social developments
SC: noted HC comments were obiter and case law was clear
- Left open possibility of greater recognition, but would need to be fully argued e..g unmarried family related less-favourably in an immigration case ( could lead to court changing view on protection of married/unmarried family)
Re JB (2018)
Facts: couple adopting 2 children from foreign country
- Complex case where case stated to HC under Adoption Act 2010
- Foreign adoption order not valid under Adoption Act
- No issue with children remaining with teh parents- pure legal issue
Issue; Could A42A confer jurisdiction or help construe the 2010 Act
- Court divided on appropriate remedy (3-2)
But almost united on what A42A allowed them to do
Held: Minority- No possibility of using A42A in this way
- 'Provision be made by law' for the best interests of child to be paramount: to do otherwise would be usurping legislative role, court cant step in to do this
- Majority: Placed a small amount of reliance on A42A
: Could inform construction of Act, BUT could not be relied upon in isolation
- I would too entrely deprecate a reliance in isolation on one Article of the Constiution, when, as is well-established a harmonious interpretation of all the provisions is necessary. But the word 'all' in A42A would include this indivdiual case. I take the view this places an obligation on Court to have particular regard to the welfare principe in this case, without becoming a means of defeating objective of the Act
Comment: Broad level of agreement
- Cannot be used as a free-standing principle
- But may inform the interpretation of statutory privision
- Shouldnt have much direct effect