The Supreme Court has unanimously held that information provided by the Minister for Children and Youth affairs at the time of the 2012 Children’s Referendum was not sufficiently biased to have had a material effect on the decision of the public to alter the Constitution. The referendum sought to replace Article 42.5 with Article 42(A) 1, recognising that children have natural and imprescriptible rights which must be protected by the State.
The Court examined information publications that were distributed by the office of the Minister, along with their effect under the McKenna principles of impartiality. The landmark judgement, laid down by the Supreme Court in the 1995 McKenna case, established a constitutional prohibition on public spending by the Government to advocate support for a particular side in a referendum. The McKenna principles state that an information campaign by the Government must ‘materially’ affect the outcome of a referendum to be deemed unconstitutional. The High Court had ruled that the standard had not been met in this case, and dismissed a claim that such a test was impossible to prove and therefore unconstitutional in itself.
The Supreme Court, referring to the McCrystal judgment, clarified the test as “reasonably possible that the irregularity or interference identified affected the result” or where a “reasonable person could be in no doubt about, and no longer trust, the provisional outcome of the election referendum”. The particular irregularity alluded to was a spend of €1.1million by the Government department on the information campaign; however the unanimous decision by the seven judges ruled that this could not be deemed as an ‘unacceptable interference’ which directly interfered with the will of the people to vote in favour of the amendment.
This decision was welcomed by children’s rights groups and will have the effect of allowing many children in State care be adopted and further ensure that children’s views are at the centre of decisions affecting them, such as custody and guardianship.
The outcome of the Children's Referendum was ultimately signed into law on 28 April 2015.
Click here to read the judgement in full.