Brendan Howlin (Wexford, Labour)

She was part of a team that produced an effective and compelling report in a short period of time. That put the requirement for constitutional change on the agenda for the first time, and we have been debating it in some shape or form since. I hope we are now getting to the final stages of the debate so that we can get to a point of engaging with the people because their sovereign decision will determine whether our words become part of the Constitution. I hope we will shortly have that opportunity.

I want to make mention briefly of the two previous reports. The work of the committee had three milestones in its journey. The first was the report on the so-called soft information. I am heartened to hear, as reported by Deputy O'Rourke, that there will shortly be legislation on this matter. This also goes back a while. The recommendations were compelling in the Ferns report which, unfortunately, I read with more than a degree of local interest in that it pertained to my constituency.

One of the real difficulties in protecting children is the lack of ability to alert people to significant suspicions that a sexual predator has access to children. Unless the person in question has a conviction, that information cannot be passed on. In the past few days we have heard of people, not on the sex offenders register because their convictions predate its establishment, who can set up home in neighbouring jurisdictions and no one is aware of it. That is not good enough. It will not be resolved by the proposals in the first report but it is a matter of which we should be mindful. I look forward to the publication of the legislation in this area. It has been a long time coming because one of the committee's decisions was to extract that early on as there was consensus on it.

The second, and probably much more difficult, issue the committee tackled in its second report was the issue of strict liability and a detailed examination of the aftermath of the CC case. I was a member of the first all-party committee that examined this issue and I must confess that I changed my views on it because of the debate the committee had on it. It is good that we listen to practitioners in the field and legal advice to assist us in shaping our attitudes and laws.

While not a consensus report, it was a good one. The majority recommended a legislative role in addressing the aftermath of the CC case. I did not hear Deputy O'Rourke say legislation was imminent in this area, so I hope the Minister of State will refer to it. I would not want that work to fall off the agenda or be left on the shelf in the interim.

The committee's third report deals with the need for a constitutional amendment to strengthen children's rights. The calls for an amendment go back some time. In 1996, the Constitution review group recommended the Constitution be amended to include the welfare principle and provide an express guarantee of certain other children's rights, deriving from the United Nations Convention on the Rights of the Child. The Committee on the Constitution published its report in January 2006. Its relevant recommendations concerned amending Article 41 which did not find great favour with many external commentators at the time.

Subsequent to that, in November 2006 the then Taoiseach, Deputy Bertie Ahern, said there would be a referendum on children's rights. At the time it was agreed there was a need to strike a balance between the rights of the family and the child. On the direction of the Government, proposals were brought to the Cabinet by the then Minister of State with responsibility for children, Deputy Brian Lenihan, for a referendum to amend the Constitution in respect of children's rights. In February 2007, the Twenty-eight Amendment of the Constitution Bill was published.

The committee was seized of this issue and asked to examine if the wording of the constitutional amendment was fit for purpose. A consensus emerged early on that it needed to be strengthened. It was going to be a tough task. I do not think I would be telling tales out of school if I said there was vigorous debate in the committee on whether this could be done by amending Article 41 or Article 42. The committee debated in some detail the interplay between the two articles as they stand and if they were amended.

It was a difficult balance to strike. The consensus in the committee was that the family is the bedrock of our society, the building block of our community. The committee did not want to dislodge the rights of the family in any way. At the same time, it wanted children's rights to be vindicated on their own rather than through the family provisions.

In the end it was decided a new Article 42, entitled "Children", would be recommended. That was one of 14 recommendations as contained in the report. I recommend all 14 are read because they are all interlinked and stand together. Recommendation No. 14, raised by a Fianna Fáil Member and supported by all others, states:

During its deliberations the committee noted that there is a lack of access to source information relating to cases under the Child Care Act 1991. These cases are heard in the District Court where judgments are rarely written and there is no facility for recording such judgments. The committee did not have access to any records that could assist in ascertaining how these cases are decided in normal situations. The committee therefore recommends that facilities are established to enable reporting of District Court cases on the same basis as is available in general family law cases.

It is an important issue that should not fall off the agenda.

The third report comes to 178 pages and is recommended reading for all Members and those others interested in children's welfare. Not only does it deal with its recommendations and the background history, but also with recent case law and real issues with which Members often have to grapple.

The committee proposed a new Article 421.1° that, "The State shall cherish all the children of the State equally". Many believe this, or something akin to it, is already in the Constitution which is wrong. Let us not gild the lily but some would argue that a provision with such wording may not have profound legal effect. However, it has a clear guiding principle for the Legislature and the Judiciary that all children have rights in and of themselves.

It was the committee's consideration to ensure any proposed amendment would establish the interests and welfare of the child as paramount, as a person in his or her own right, separate from the welfare of his or her natural or adoptive parents and other parties, including the State. It would also see, in so far as we could, a child having rights that are their own and could not be trampled on because of the welfare interests of a third party, even if that were the State itself.

The Guardianship of Infants Act 1964 established in law that a child's welfare is paramount. It was the objective of all committee members to take that legislative principle and turn it into a constitutional one. Various wordings were worked on to achieve this.

Under Article 40, the personal rights of all citizens, every child in the State enjoys constitutional rights that accrue to every citizen. Article 41 delineates the rights of the family and the child's rights are mediated through that. Article 42, which we seek to amend, sets out the child's rights in respect of education. Article 43 sets out the rights in respect of private property and Article 44 in respect of religion. There is a corpus of rights that exist and these have often been argued and vindicated in the courts. Our job was to go beyond that and see if we could give the principle in the Guardianship of Infants Act of the paramountcy of children's rights a constitutional status. It was a balancing act and whether we have got the balance right will be determined by the assent of the people in a referendum and by judicial case law when the exact meaning of the provision, should it become part of the Constitution, is tested in subsequent court cases. I am strongly of the view, shared by those who have spoken, that this will be a substantial step forward in a long journey to deal with the issue of the rights of children.

I thank the Chair of the committee, Deputy O'Rourke, for her tolerance of us and our vagaries. She steered us to a safe port, with a few storms en route, with her usual grace and charm. I thank the colleagues who worked in a very open way, all contributing to the best of our capacity, to achieve a common objective. This is not always the case in the way we do business here. I should also mention the staff of the committee and our legal advisers, to whom we are really grateful, but also the Minister of State at the Department of Health and Children, Deputy Barry Andrews, whose attention to the committee is to be applauded and welcomed. I am arguing in a different forum to re-establish the strength and authority of this House. It goes a long way when Ministers of State involve themselves in the committee work of the House. I hope this will bear fruit.

What now? Where do we go from here?

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