Brendan Howlin (Wexford, Labour)

I move:

That Dáil Éireann:

- welcomes the final report of the Joint Committee on the Constitutional Amendment on Children published on 16 February, 2010;

- commends the members of the committee for the manner in which they discharged their duties and the fact that cross-party consensus was achieved on this issue;

- accepts the need for a constitutional amendment to enshrine and enhance the protection of the rights of children;

- endorses the draft wording for a proposed constitutional amendment, contained in the report of the Committee; and

- calls on the Government to bring forward the necessary constitutional amendment Bill and to set a date in this year for the holding of a referendum.

I propose to share five minutes of my time with Deputy Liz McManus and 20 minutes with Deputy Caoimhghín Ó Caoláin. I move this motion tonight in my name and that of my Labour and Sinn Féin colleagues, in the shadow of yet another tragic death, this time a murder of a child in the care of the HSE. We do not know the full story of the life and death of Daniel McAnaspie but what we know is disquieting and a cause of real concern. As we have done already today and will do collectively tonight, I send our heartfelt and real condolences to Daniel's family. We must also resolve to do more.

In February 2007, more than three years ago, the then Government presented the Twenty-eighth Amendment of the Constitution Bill to this House. After many years of debate and consideration, there was consensus that we needed to change the Constitution to give greater rights to children.

Children's rights organisations, some of which are represented here tonight, had long argued for change but the vulnerability of children, their lack of unique constitutional presence and the consequences of this position had become a matter of real and urgent concern. Going back to the conclusions of the Kilkenny incest case of 1993, Deputy Shatter and I would remember well how a committee of investigation was set up, with a then senior counsel, Catherine McGuinness, now Ms Justice Catherine McGuiness, asked to head the investigation. Among the important recommendations of the group was that "a specific and overt declaration of the rights of born children" be included in the Constitution.

Since 1993, a number of other reports or court cases involving individual children and their families have continued to raise the question of the apparent conflict between the best interests of children and the rights and duties of married parents. In too many cases, professionals or courts involved in decisions relating to children made decisions on the basis of our current constitutional balance and failed to act in the interests of the child. Children met with harm, sometimes unimaginable harm, because of this approach.

This House has debated many of these cases and reports over the past 15 years. In 2007 it was decided that we needed to act to bring about real and substantial change and the Government published a constitutional amendment Bill. The 2007 Bill, which proposed the insertion of a new Article 42(A) in the Constitution, was referred to an all-party committee for detailed consideration. The committee met weekly and examined in very minute detail, as the Minister of State will remember, the law relating to children.

In September 2008 the committee presented its first interim report, dealing with a proposal to give legal authority for the collection and limited exchange of information concerning the risk of the endangerment, sexual exploitation or sexual abuse of children. It was our unanimous view that the gathering and limited exchange of so-called "soft information" could be achieved by legislation without the need for a constitutional change. Since this was a prime recommendation in the Ferns inquiry report and featured in other horrific cases such as the Soham murder case, where Holly Wells and Jessica Chapman were murdered by local school caretaker, Ian Huntley, the committee believed urgent legislation was required. We made the recommendation in September 2008. Unfortunately, one year and eight months later we still await the publication of this important Bill.

The committee then set to work on the difficult and complicated proposal to give legal authority to create offences of absolute or strict liability in respect of sexual offences against or in connection with children. That work was completed and a detailed second interim report was presented to Dáil Éireann in May 2009. The majority of the committee recommended the creation of offences by legislative means. We again await the response of Government to this very detailed report; here too urgently required legislation that mobilised thousands of people outside this House has been long promised yet undelivered.

The third and final phase of the committee's work deals with the remaining issues of required constitutional change. Specifically, these are the issues of children's rights, the best interest of the child, the power of the State to intervene in the family and adoption. Again, an extraordinary amount of work, research, hearing of evidence and consideration of submissions informed the detailed debate that shaped the ultimate recommendations of the committee.

It was our shared view from an early stage that the published 2007 Bill did not go far enough to achieve the aim of enhancing children's rights. From an early stage of our deliberations, all members of the committee from all shades of opinion and all parties, grappled to see if we could shape a wording that could be agreed and which would advance children's rights in a groundbreaking fashion. It is a remarkable achievement to have produced in February of this year, some three months ago, an all-party agreed set of proposals, including an agreed wording for constitutional change. Many times during the committee deliberations I did not think we would reach that momentous moment but we did.

This report followed what was probably the most comprehensive examination of the truly complex issues involved in trying to enshrine and enhance the protection of the rights of children. I pay tribute, as I did on its publication, to all members of the committee who worked under the able chairmanship of Deputy Mary O'Rourke in a non-partisan way to address the complicated and delicate issues. The final report enjoyed the support of all members, representing every Oireachtas party. We also benefited from the participation of the Government through the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and the Minister of State with responsibility for children, Deputy Barry Andrews. For that reason, one could hope and expect a speedy response to the committee's groundbreaking proposals. Clearly, we are all agreed that few issues better demand our attention and action. Unlike most committee work, nothing new was presented to the Government three months ago. It has been fully engaged with the arguments, genesis and conclusions. The parties that constitute the Government signed up to those proposals.

This motion, sponsored by the Labour Party and Sinn Féin Deputies, seeks to move the process along. It needs to be moved along urgently. We have waited long enough for this change. Dáil Éireann must again unite on this issue and remain united, endorse the draft wording for constitutional change recommended unanimously by the committee and announce our determination to bring this proposal to the people this year.

It is said by some that the Government will not agree to a referendum this year for fear of needing to hold the by-elections that are due. That cannot be tolerated as an excuse for inaction on this issue. The welfare of children and the failure of State, church and society to give them adequate protection have convulsed this House and the nation. Our words of determination to do better, which followed every report and debate in the House, and to act decisively in the interest of children will ring hollow indeed if we long-finger this much needed change. This proposal will require detailed explanation, debate and engagement with the people. That will require time. The sooner we complete the legislative phase of the constitutional amendment Bill, the sooner we can start the process of real engagement and dialogue with the electorate we must persuade to pass it.

There have been a few voices of concern. Any change gives rise to proper questioning. We need to know the Government's intention now so that fears are not fanned by the vacuum of inaction. In short, we need to start a detailed process of communication with the electorate.

What is recommended in the words proposed? We recommend a new Article 42 to be entitled, "Children". This new article sets out the recognition of equality between all children, with no inequalities before the law between the children of married parents and the children of unmarried parents, the recognition of children's natural and imprescriptible rights vested in themselves, their right to have their welfare regarded as either a primary or paramount consideration, their right to protection and care and the right of the child's voice to be heard. It acknowledges parents as the primary and natural carers, educators and protectors of the welfare of their children and guarantees to respect these rights and responsibilities. It would allow the State, where parents fail in their responsibilities, to supply or supplement the place of the parents by proportionate means. It would provide for adoption of children where their best interests so require. It re-enacts the existing provisions dealing with the rights of parents to provide for the education of their children.

These and the other recommendations in the 117 pages of the report can make a real and historic difference, but only if they are acted upon. Too many sad, depressing, horrific reports on the abuse of children have been laid before the House. Just as we united in expressions of outrage when we read of the abuse of children, let us unite in our determination to make things better in a concrete fashion. The committee did not divide on party political lines, so let us not divide now. The proof of our sincerity on these issues will be provided in our deeds, not our words.

I am profoundly disappointed to read the amendment proposed by the Government. I believe in the goodwill and determination of the Minister of State with responsibility for children to bring about real change, but he must be supported by the House and he must demand the action of the Cabinet. Pass this motion tomorrow evening and let us show a common determination to act on this issue for the common good of all, particularly the children of this country.

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