The Constitution should be changed to lower the threshold for State intervention in marital families where there are child protection concerns, the Ombudsman for Children has advised the Government.
It is one of a series of recommendations contained in a report by the Ombudsman, Emily Logan, regarding the proposed referendum on children's rights.
She has proposed amending three articles of the Constitution in a way that would recognise children as individual rights holders and ensure their best interests prevail in issues affecting them.
Ms Logan said there was a lack of clarity about children's rights in the Constitution and any changes should reflect key provisions of the UN's Convention on the Rights of the Child.
On the issue of child protection, she said the threshold for State intervention in marital families where there were child protection concerns or other matters concerning a child's best interests was set too high.
Article 42.5 of the Constitution states that the State may only intervene in "exceptional cases where the parents for physical or moral reasons fail in their duty towards their children".
Ms Logan said this article should be reformulated in such a way that State intervention would be expressly permitted where the best interests of the child required such intervention.
An express statement of the circumstances in which the State may interfere with, or restrict, the exercise of family rights guaranteed by the Constitution should also be included, modelled loosely on provisions in the European Convention on Human Rights.
Other proposed changes include amending articles of the Constitution relating to family and personal rights to ensure children of marital families and non-marital families are treated equally.
The strong constitutional status of the family, which refers to a family's "inalienable" and "imprescriptible" rights, gives rise to an anomaly where children of non-marital families in some instances have greater legal protection than children of marital families.
Ms Logan proposed amendments to Article 41, which deals with the family, and Article 42, which deals with education, by inserting a provision stating that the best interest of a child would be a primary consideration in all actions concerning them. The description of a family's rights as "inalienable and imprescriptible" should also be removed.
Ms Logan also highlighted the lack of specific references to the rights of the child in the Constitution.
She advised that Article 40, which deals with personal rights, be amended to include a provision that the best interests of a child should be a primary consideration.
She also recommended a provision in the same article including express children's rights such as the right to freedom from discrimination, the right to participate in all matters affecting the child and the right to family care or alternative care when removed from the family.
Overall, Ms Logan said the UN convention was consistent with the Constitution in terms of its presumption that the family environment was the optimal environment for a child's growth and wellbeing.
"The State needs to recognise the many changes and challenges facing families today", she said.
