Peer-Reviewed Journal Details
Mandatory Fields
Conor O'Mahony
Irish Supreme Court Review
The Same, but Different? Article 42A and the Threshold for State Intervention in Family Life: In Re JJ
Optional Fields
Constitutional law; children's rights; separation of powers; socio-economic rights
In November 2012, the Irish people approved by referendum the enactment of a new provision of the Irish Constitution – Article 42A, which recognised the rights of children and made provision for a range of issues affecting adoption and private and public family law court proceedings. A key component of Article 42A was the replacement and reformulation of Article 42.5, which governed the circumstances in which the State may intervene in family life to protect children’s rights. The first significant court decision to address the question of whether the enactment of Article 42A had altered or lowered the threshold for State intervention in family life was In Re JJ, in which the Supreme Court ruled that a treatment plan recommended by a medical team treating a severely injured young boy should be authorised in spite of the objections of the boy’s parents (who favoured a different course of action). The Court strongly suggested that one of the effects of the enactment of Article 42A was to lower the threshold for State intervention in family life, and spoke in broad terms of a “clearly discernible” direction of travel introduced by the amendment. However, the precise nature of this change is not immediately obvious from the judgment. This article will explore this aspect of the decision in In Re JJ with a view to establishing whether the threshold for State intervention in family life really has changed; and if so, why, and to what extent? It will be argued that careful comparison discloses that the suggested changes in the threshold for intervention are overstated, and that it is difficult to identify any concrete example of a departure from pre-existing law.
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