'The Same, but Different? Article 42A and the Threshold for State Intervention in Family Life: In Re JJ

In November 2012, the Irish people approved by referendum the enactment of an amendment to the Irish Constitution (Article 42A) on the issue of children's rights. Much of the impetus for the amendment came from a series of reports which had suggested that the threshold for State intervention in family life to protect children had been set too high. Accordingly, a key component of Article 42A was the provision governing the circumstances in which the State may intervene in family life to protect children’s rights. In January 2021, the Supreme Court decided In Re JJ, the first decision in which the revised provision was carefully considered. The Court strongly suggested that one of the effects of the amendment was to lower the threshold for State intervention; 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 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 begin by setting out the backdrop to the enactment of Article 42A, before examining the facts and outcome of In Re JJ. It will proceed to carefully deconstruct the passages of the judgment in which the Court indicates that Article 42A must have altered the threshold in some way, and that it seems likely to have lowered it. These findings will be measured against pre-amendment case law. 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. The end result is a judgment that suggests that something is different, even though much is still the same; the implications of this for future cases are unclear.