Barry Andrews (Dún Laoghaire, Fianna Fail)

I am delighted to be discussing this important issue today.

I wish to make some comments about the statements made by previous Deputies. I agree with Deputy O'Rourke that we will never have a better opportunity to transpose into the Constitution what represents the clear consensus and political will in this House and I am ambitious that we would do that. As she said, it is not a panacea and other reforms need to take place. Deputy Shatter made reference to these other reforms and I agree with him. The shortcomings are there for all to see and that is why I consider child protection to be my priority. It is why we promulgated the implementation plan following the Ryan report and backed it up in the budget. While we are trying to reach our targets, there are still shortcomings and some individuals are falling between the cracks. We need to be honest with ourselves. There is no point in trying to be overly defensive. I have never said we have moved from a period of oppression into liberation and it is not as if that can happen by acknowledging what happened in the Ryan report. That does not happen. This is a reform that will need to take place in partnership with and with the support of Members of this House.

Regarding specific issues from previous reports, the national vetting bureau Bill has not been presented to Government yet. The heads of the Bill should be presented to Government very soon. However, the general framework is broadly agreed by the crucial Departments involved, namely, the Departments of Justice, Equality and Law Reform, Education and Science, and Health and Children. It provides a very good framework. It was very important to get that agreement between the various Departments before we proceeded further. We have got over the most difficult barrier to transpose that first report of the committee into legislation. The second is the criminal justice (sexual offences) Bill, the heads of which have been presented to Government. Progress is being made on the drafting of that Bill which is to transpose the second report into legislation.

Deputy Howlin made the point about sourcing information regarding the Child Care Act and how it plays out in the District Court in particular. Valuable work similar to that was done by Carol Coulter regarding the family law courts. The work recommended by the report will give us a much better idea of how care orders are sought, the circumstances in which they are given, how they are followed up and the care plans that are reviewed by the courts. We can look at that element of child protection which is properly prevented from publication in normal circumstances. We can find the same mechanism and that is a recommendation I would very much support.

Deputy Howlin also emphasised the individual nature of the rights of children proposed in this recommendation. It is important to note that under Article 40.3 individual rights are protected in so far as they are protected for all citizens. The Constitution undertakes to vindicate, protect and guarantee those rights. Equally we need to do that specifically for children. I do not see why there should be any difference between adults and children in that respect.

Deputy Ó Caoláin raised a number of other issues and talked about the balancing of rights, which is very important. It also applies to the publication. He was talking about the publication of reports regarding child protection. There is a real consideration of the balancing of rights. It is not a screen behind which to hide reputations. It is a genuine balancing exercise that needs to be done. I hope the independent review group we announced earlier in the week together with the HIQA guidance that was announced yesterday will ensure that in future these reports are done expeditiously in such a way as will restore public confidence in our capacity to face up to the realities of failures that occur from time to time.

I acknowledge the work done by Deputy O'Rourke as Chair. I believe the other speakers articulated her great work and her ability to bring together all of us. We worked well together and enjoyed it up to a point. I also acknowledge the Vice Chairman, Deputy Noonan, who stepped into the breach from time to time. He also provided a steadying hand when we occasionally lost the run of ourselves.

Reference has been made to the time it has taken to get to this point. We are not talking of just this committee but of previous Oireachtas committees, the constitutional review group and the Kilkenny recommendations going back over almost 20 years. The UN Committee on the Rights of the Child, in examining Ireland's first report on the implementation of the convention in 1998, stated that "Ireland's approach to the rights of the child appears to be somewhat fragmented". The committee further reiterated the need for constitutional change having outlined its concern that Ireland's "welfare practices and policies do not adequately reflect the child rights-based approach enshrined in the Convention". It recommended in favour of the accelerated enactment of the constitutional review group's recommendations.

The committee that looked into family rights between 1997 and 2002 recommended an amendment to Article 41 to include a new section on the rights of children. It was in this context that the then Minister of State with responsibility for children, Deputy Brian Lenihan, undertook an article-by-article review of the Constitution to examine the status of children. From this emerged the Twenty-Eighth Amendment to the Constitution Bill, which, for the first time, sought to enshrine in the Constitution rights that would accrue to children as a distinct group and not simply as human beings and individuals or members of a family unit. This article, for the first time, singled out children as a discrete group possessing rights.

The Government's policy intent in pursuing an amendment to the Constitution was threefold. It sought to provide a clearer and more direct acknowledgement of the rights of children, a restatement of Article 42.5 which would, inter alia, extend the provision to all children, and a statement which would permit the adoption of marital children and children in care. It was accepted that if the amendment was to have any chance of passing in a referendum, political consensus was essential. Consequently, the 2007 programme for Government contained a commitment to "establish an all-party Committee to examine the proposed constitutional amendment with a view to deepening consensus on this matter".

I have already referred to the previous reports. In addressing the specific issue of children's rights, the committee faced a challenge to balance the rights of families, children, marital and non-marital parents. This delicate balancing act took place against the background of the debate over whether barriers to State intervention in support of children should be altered. The new provision begins with a restatement of the oft quoted phrase from the 1916 Proclamation that we should "cherish all the children of the nation equally". Ironically, the signatories to the Proclamation were not referring to "children" as we understand the term but to the need to recognise and be tolerant of minorities - religious and political.

The newly proposed Article 42.1.2 ° clearly states that the State has a duty to vindicate the rights of children and affirms that children enjoy human rights that the State is obliged to uphold. The provision reads:

The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.

Reflecting wording included in section 3 of the Guardian of Infants Act 1964, the newly proposed article incorporates the right of children to have their welfare regarded as a primary consideration. It has been said that the requirement to take a child-centred approach to such issues is strengthened by this article, which requires that the welfare and best interest of the child must be the first and paramount consideration in areas concerned with family law decision making, such as guardianship, adoption, custody, care or the upbringing of a child.

One of those who commentated on the publication of the report, Dr Ursula Kilkelly, has stated that when these two provisions are taken together they will ensure that "decisions affecting children are focused, first and foremost, on their rights and interests. This mandates a genuinely child focused approach to the treatment of children by all organs of the State".

Article 42.2 steers a new course by proposing to require the State to recognise and vindicate the rights of all children as individuals. Under the terms of the proposed wording, children accrue rights as individuals independent of adults. Some experts who made presentations to the committee advocated a full incorporation into the Constitution of the United Nations Convention of the Rights of the Child. The committee took the approach that it did not want to recommend inserting in the Constitution provisions that the State was not in a position to guarantee.

Where criticisms of the report have been aired, attention has been drawn to the newly proposed Article 42.4. Some have suggested that any reduction in the threshold that allows for State intervention in the family should be resisted. This is construed as an attack on the integrity of the family - that in some way by giving rights to children they are being taken away from the family. This was not the intention of the 2007 Bill nor is it the intention of the current proposal. The newly proposed Article 42.4 sets a new threshold, based on proportionality. It is not a case of granting the State extra powers enabling social workers to wade into a family and remove the child or children. Dr. Geoffrey Shannon stated last week that the wording contained in the proposal makes clear that removal of the child from the family is a last resort and by providing for early intervention the likelihood of the child being taken into care is significantly reduced.

The time available to me is very short. The rest of my prepared speech is available for Members. Members will also want to know when we will proceed with this proposal. It took two years for the committee to put together its recommendations. It is now up to the Departments to look at the committee's recommendations. I am determined that we will bring it to Government at the earliest possible opportunity and that the Attorney General will give his view. We may have to discuss that matter further. I look forward to any further discussions about the wording and how we can ensure we get full Government support because it is a very significant achievement to get political support on this issue. It is not easy to do that at the best of times but the motivation behind the committee was to focus on the best interests of children. I thank all of the committee members for their co-operation on this crucial matter.

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