Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)

I know but I hope the Aire Stáit will clarify this for us. Much of the work regarding placing children's rights in the Constitution has already been done. The All-Party Committee on the Constitution in 2004 and 2005 reviewed several related articles and submissions were made on children's rights, including proposed wordings from Sinn Féin and others. The Government majority on the committee opposed the idea of a comprehensive amendment on children's rights. Instead of the committee proceeding with the proposal and seeking the advice of constitutional lawyers available to the committee, the matter was shelved. Now the Government is apparently resurrecting the idea of an amendment on children's rights but in a most confusing way.

Sinn Féin argued in its submission to the all-party committee that the balance between the rights of the family as a unit and the rights of individual members favours the family disproportionately, in a manner potentially in conflict with the International Convention on the Rights of the Child, and the implications of this for the rights of children, particularly in respect of child protection.

The minimal wording proposed by the majority on the all-party committee does not adequately address this issue while Article 41.1.1 of the Constitution states that the family is "the natural primary and fundamental group of Society, and as moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". It lacks a specific comprehensive article on the rights of the child.

The constitutional issues remain to be fully teased out but the Bill before us today deals on a more practical level with the rights and needs of children in foster care or in the care of their relatives. More than 4,200 children are fostered in the 26 counties. Over 1,500 of these have been in care for five years or more, though not all may have been in the same placement throughout the five year period.

The Bill's stated aim to is give long-term foster parents and relatives more autonomy on issues such as consent to medical examinations and treatment and applying for passports, as well as needs that arise regularly, such as giving permission for children and young people to participate in school tours or other such educational, sporting or leisure activities, where adult permission is required. This would remove inconvenience and embarrassment for foster children who face delays and obstructions in joining the normal activities that their friends and fellow pupils take for granted. Anything which removes forms of differentiation, or even stigma, for children in foster care is to be welcomed.

In practice, this is probably a grey area of the law and I presume that many relatives who care for children, due to the inability of a parent or parents to do so, fulfil these functions without having their status checked by schools for the purposes of such permissions. Obviously, foster parents would be conscious of all their legal obligations but I doubt very much if this is the case with relatives. This matter needs to be addressed, without unduly burdening relatives caring for children.

There is a distinction to be made in cases where informal arrangements exist between parents and other relatives to care for children without reference to the Health Service Executive, in which case I presume the provisions of this Bill do not apply. As in all cases, the welfare and rights of the child need to be paramount.

The Bill provides that a foster parent or a relative who has cared for a child for a continuous period of five years, the child having been placed with him or her by the Health Service Executive, may apply for a court order for increased autonomy in regard to the care of the child. On Second Stage in the Seanad, Senator Henry questioned the five year stipulation. I share her concern. It seems a long period. It is also a continuous period and does not take account of breaks that may occur in that period of foster care. There is a need for more flexibility here and I ask the Minister to reconsider a shorter period, as well as some provision for breaks in the period of care. For example, a child may return for a time to his or her natural parent or parents but may have to return to foster care.

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