Colm Burke (Fine Gael) | Oireachtas source

I thank the Minister, Deputy Frances Fitzgerald, for bringing forward this proposal for a constitutional amendment on children's rights. The timeline of the debate on this issue goes back as far as the taskforce on child care services which reported in 1980. Senator Jillian van Turnhout referred to the many calls for constitutional change going back over years. The Minister referred to the various reports which pointed to the problems with the current situation. The debate has been going on for a long time. In that context, we all must welcome the bringing forward of the proposal just 18 months after the Minister came to office.

Other speakers referred to the scaremongering from certain quarters in regard to what is proposed. The Master of the Rotunda Hospital told me last week that some 40 babies are born in that hospital every year suffering withdrawal systems because their mothers are drug addicts. I understand the corresponding figure in the other two Dublin maternity hospitals is approximately 20 per annum in each case. This is the type of parental situation envisaged in the proposed constitutional amendment, yet an editorial in one of the newspapers circulated in churches last weekend warned us:

The amendment states that provision shall be made by law for the adoption of any child where the parents have failed and where the best interests of the child so require. This is explosive. It leaves the way open to social workers and the courts to take almost any child from its parents, married or single, and have it given up for adoption.

Many speakers referred to the Roscommon case. The conclusion in chapter 6 of the report into the case is worth considering:

The Inquiry Team concludes that the six children of the A family were neglected and emotionally abused by their parents until their removal from the family home in 2003 or 2004. Some of the children have spoken of severe physical abuse by their parents. Some of the children were also sexually abused. There is no evidence that either parent understood or sought to consistently meet their children's needs. Both parents, but particularly Mr A, successfully resisted the efforts of professionals to work in a meaningful way with the children, while appearing to be cooperative on the surface.

The State attempted to support this family but such efforts were unsuccessful in terms of their primary aim, which was to protect the children. The report states:

Staff utilised services to support the parents. The parents tended to agree readily to accept the support offered but the Inquiry Team did not find any evidence that any area of their parenting showed a positive consistent change over the eight year period from 1996 to 2004.

Despite an ongoing engagement over an eight-year period, nothing changed and the children continued to suffer.

The limits of existing legislative and constitutional provision are clear from the way in which the courts have found their hands tied in certain situations. Reference has been made in this context to the Baby Ann case and the JH case. The judgment in the Baby Ann case runs to 103 pages and offers an excellent review of the constitutional issues dealt with by the High and Supreme courts. Comments by Mr. Justice Lynch in his conclusion in the JH case are also instructive:

If one looks at the claim to custody through the eyes of the parents they have a very strong case to be awarded custody of the child. If, on the other hand, one looks at the claim to custody through the eyes of the adopting parents they also have a very strong case to be awarded the custody of a child. That is why it is so very important in the circumstances of this particular case to look at it through the eyes, or from the point of view, of the child and the best way of doing so is, in my view, by posing and answering the question which I have already put above. I have come to the conclusion that the answer to my question is that there is not anything really worthwhile to be gained for the child by transferring her from the adopting parents to the parents. If custody were changed I think that the risk of long term psychological harm, and therefore of unhappiness, is sufficiently proximate to outweigh the contrary factors referred to above.

The High Court considered the issue from the perspective of the child. People may criticise the courts for not taking all relevant matters into account but judges try hard to consider all the issues. For example, I was involved in a family law case involving a dispute over custody of a ten-year old child. The judge decided to take the child in question to a burger outlet at lunchtime to ascertain the child's views. I do not accept the argument that courts do not consider the wishes of children. However, judges must also work within the rules. The problem in the Baby Ann case was that the Constitution prevented the court from taking all matters into consideration. The case was subsequently overturned in the Supreme Court, which found the following:

In the case, therefore, of a contest between the parents of an illegitimate child ? who with the child constitute a family within the meaning of Articles 41 and 42 of the Constitution ? and persons other than the parents as to the custody of the child, as this case is it does not seem to me that section 3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in section 2 of the Act of 1964 must be the sole criterion for the determination by the court of the issue as to the custody of the child.

This decision means that despite the relevant legislation - the 1964 Act - providing that the welfare of the child is to be the primary consideration, the Supreme Court found that its hands were tied because, in its opinion, the Constitution takes priority. This is one of the problems with the current system.

The Supreme Court also found the following:

Furthermore, notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the court cannot, it seems to me, as an organ of the State supplant the right to education by the family and parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the court a failure on the part of the parents as defined in Article 42, s. 5 and ?exceptional circumstances?.

The referendum proposes to change Article 42.5 through the inclusion in the Constitution of this well thought out and an appropriate amendment which will address a complicated issue and ensure children have the rights they deserve. I wish the Minister well in her endeavours and thank her for acting in such a timely manner. Everyone must work to ensure the referendum is passed on 10 November.