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Aspects of Family Law

Children are the future and the care which is given to the welfare, education and protection of children is widely recognized as paying dividends in their later years. Children are one of the most vulnerable beings in our society and that is why the protection of the children are one of the most important rights to uphold in society. This assignment will critically discuss areas that uphold these rights such as the constitution regarding articles such as 41 and 42, legislation, various legal and social policies and children in the criminal justice system. This assignment will also include three recommendations about improving the position and welfare of children in the Irish society.


The first area that upholds children rights is the Irish Constitution, Bunreacht na hEireann. This ‘fundamental legal document sets out how Ireland should be governed and the rights of Irish citizens’, (Constitution n.d). In the constitution, Article 41[1] refers to the family. This article gives the family rights, which outweigh any other rights. It is a special protection from the State to grant the ideal environment to raise a child, (Ferguson and Kenny 1995). The State protects and values the family but only as a unit. This unit refers to a married family, which concludes that this protection is only to a married family. ‘The family unit in Ireland has autonomy over and above that of the individual members of the family’, (Geoffrey 2003).  Once the parents are not married, the father has no constitutional rights to his child, (Nestor 2004). Article 41 ‘enshrines the protection of the family from undue interference by the State and titled the balance institutionally towards the enchantment of parental rights and the minimum intervention end of the continuum’, (Duncan 1993).

Article 42[2] states that the very first people to educate a child are the parents. This is a duty that is imposed by the Constitution and in return for this duty, the custody and guardianship are guaranteed to the family. The State “guardian of the common good” also provides free education for the children. On the other hand, Article 42 is not all just about education. Article 42.5[3] concludes that when parents fail to look after and care correctly after their children, the State will step in and intervene. The precautions that will occur will be the State becoming the parent of the child or find substitute parents. The factors that allows the State to intervene range from child abuse, neglect and very serious cases. However the Constitution still did not ‘define the rights of children as distinct from those of the Family’, (Children’s Rights Alliance, Children’s Rights 2012). With this article, children were still seen as a possession or belonging and not an individual with rights.

On the 10th November 2012, the people of Ireland held a referendum in order to change to text of Article 42.5. Article 42.5 was deleted and Article 42A was inserted, (Quinn 2012). The legislative perspective of this Act was about the child’s best interest and since it was enacted children were granted the same fundamental and unenumerated rights as adults, (Children’s Rights Alliance, Children’s Rights 2012). This Act puts children first and sees a child not just as a belonging. In addition, Article 42A gives the child a choice to make their own decision but the views of the child shall be made certain of balance with regard to age and maturity of child. Before the referendum, there were some serious tragedies, one horrible case, in what most people until this day say, the children involved in this disaster were ‘failed by everyone around them’, even Judge Miriam Reynolds (RIP) agreed with this statement[4]. Mrs A, a mother of six children, was sentenced due to her conviction for incest, neglect and ill-treatment. The reason everyone had failed these children was the fact the Western Health Board had been involved since 1996, but the children had not been taken into care until 2004. Ms Laverne McGuiness, National Director of Integrated Services Directorate in the HSE commented on the situation, “children let down badly by society….we can ensure in as far as possible, that no other child, as to face such an unspeakable tragedy ever again”. Since horrible tragedies like this, the child’s best interest will always be put first, from this ever happening again. Article 42A is there in the constitution to specifically protect children from these horrible situations they happen to be in.

The Constitution is the fundamental law of State. The Constitution constructs the intercommunication between the State and adults, including children and gives the direction to the Oireachtas and Courts on how to balance each of their interests and rights. Article 42A takes into consideration the vulnerable situation of a child, in that they are largely dependent on adults for their care and are often powerless to justify and uphold their own rights. The Constitution was amended so that family and the child can be separated and that the child’s life and rights are mirrored to the parents. Furthermore, it was amended to put in place for a more efficient child protection system, (Children’s Rights Alliance, Children’s Rights 2012). On behalf of the child, 42A is a constitutional development for the protection of children and with hope, no more cases such as the Roscommon Child Care Case will happen again.

A recommendation about improving the child’s safety and welfare in Irish society will start with amending our Constitution. The Constitution, regarding the child has now improved but there is still one section, which needs developing: Article 41 concerning the Family. Article 41 does not recognized an unmarried couple with a child as a family, (Nestor 2004). This is a grave problem, as unmarried parents are not considered a ‘family’. Article 41 does not protect unmarried couples as it does with married couples. This gives problems with the constitutional rights and there will be a problem to intervene. The father also has no custody or guardianship to this child, if he and the mother are not married, unless he applies for the guardianship. This is very unfair, outdated and should be changed. It should be changed for the child’s safety and welfare as it is not the child’s concern if their parents are married or unmarried.


The Child Care Act 1991 is a primary piece of legislation, which safeguards a child’s health and safety[5]. It regulates all child protection and it ‘imposes a positive mandatory obligation on the HSE to ‘promote the welfare of a child in its area who are not receiving adequate care and protection” (Ireland, Department of Children and Youth Affairs, 2010). The Child Care Act 1991 (which I will state ‘1991 Act’ for the remainder of this assignment), is an acknowledgment to Article 42.5 to specify the rights and provide the needs for children. It is a ‘clear recognition of states obligations with respect to the protection of children at risk’, (Ferguson and Kenny 1995).

(Nestor 2004)

The legislative prospective of the courts will always be in the child’s best interest.

[1] Article 41°.

[2] Article 42°.

[3] Article 42.5°.

[4] Roscommon Child Care Case.

[5] Child Care Act 1991.

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