Charlie McConalogue (Donegal North East, Fianna Fail)

This is a Bill to amend the Constitution to insert a new Article 42(A) which would make provision in the Constitution for any Irish child to have the opportunity of adoption in cases where it is appropriate and in the child's best interests.

I extend my best wishes to the new Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, and congratulate her on her appointment as Minister. It is a great honour and privilege to assume the office of Minister and to carry executive responsibility on behalf of the public in a ministerial capacity. I wish her success in her new role.

I commend the Government on promoting the ministry to a full Cabinet position. That is a positive development and builds on progress in recent years. I hope it will lead to priority, protection and services for the country's children to assure they get the best possible start in life, as befitting the capacity of our Republic.

For a number of years Fianna Fáil has advocated a constitutional amendment on the rights of the child. The two adoption provisions being presented in the Bill were first included in the Twenty-Eighth Amendment to the Constitution Bill 2007 which was introduced by our late colleague, former deputy leader of the party, and Minister, Brian Lenihan. I pay tribute to his Trojan work and pioneering efforts in promoting the enshrinement of children's rights in the Constitution.

The strong position accorded to the family in the Constitution, in conjunction with the fact there is no provision in the Constitution for children to be adopted has resulted in thousands of children spending their entire childhood years in foster care without the right to be adopted by their new family. The purpose of the Twenty-Ninth Amendment of the Constitution (No. 3) Bill is to ensure that the best interests of a child should be the primary consideration to be weighed against the rights of marital parents and the provisions of Article 42.5, thus allowing some children the opportunity of a stable and secure family life which is currently not available to them.

The amendment forms part of the new Article 42(A). The Bill states that:

- Provision may be made by law for the adoption of a child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child, and where the best interests of the child so require.

- Provision may be made by law for the voluntary placement for adoption, and the adoption, of any child.

Adoption is currently dealt with by law, and is not referred to in the Constitution. The 1952 Act was intended to deal with the adoption of children born outside marriage. However, over the years a number of situations emerged where it could be in the best interests of children of marriage to be adopted. Examples of these situations include children, one of whose natural parents has died, and the other parent marries again. The new parent has no rights in terms of giving agreement to treatment in illness, signing a passport or other applications, or signing forms of a day-to-day nature, for example, for school purposes. Another category relates to children who have been in long-term foster care. Some children go into foster care at a very young age and grow up as part of their foster family, in some cases using the name of the foster family. There is no possibility of their return to the birth family, but they cannot become a legal part of their new family. Another category relates to where parents have failed to care for a child and they have been in the care of the State for a substantial period. A further category relates to children whose parent has a long-term illness or disability where the parent wishes the child to be placed for adoption. An additional category concerns children who have been placed for adoption but whose parents subsequently marry.

In view of the above types of case, the Adoption Act 1988, provided for the adoption of children including children of marriage. However, the Bill was referred to the Supreme Court by the President, in light of the place of the marital family in the Constitution. The Supreme Court found that the Bill was constitutional but set out very limited circumstances in which children of marriage could be adopted, including that it must be proved that the failure of duty by marital parents is likely to extend until the child is 18 and must amount to complete abandonment. Minimal contact from parents has been interpreted as showing that this has not taken place which makes it almost impossible for a child with married parents to be adopted.

The amendment to the Constitution would empower the Oireachtas to introduce legislation to allow for the adoption of children in long-term care if it is in their best interests. Before a referendum is put to the people a White Paper or legislation will be required. The Department must outline what exactly will be introduced should the referendum pass. It will be necessary to set out what the exact requirements will be and what threshold will have to be met before it is possible for a child in foster care to be adopted. Currently, in Britain the waiting period is one year, which is very short. Fianna Fáil suggests a period of five years before a child can go for adoption after being placed into care. I urge the Minister to prepare a Bill to cater for the possibility of adoption for children in care between now and the presidential election in October or November. There is adequate time for that to happen because this is the first of the referenda Bills which the Government plans to present to the electorate during the presidential election. By taking the Bill now there will be time for the Minister to bring forward a White Paper or legislation on the issue. Preparatory work was done by the previous Minister for children, former Deputy Barry Andrews. I have no doubt the Minister will be able to progress the issue.

The Bill affirms the right of all children to be adopted regardless of the marital status of their parents but, most importantly, it does so without interfering with the primacy of the family under the Constitution. At present, there are more than 6,000 children in care, 5,500 of whom are in foster care, which is approximately 90%, and one third of those children are in long-term foster care. In some cases, children are taken into care at birth and raised by foster parents and may only have sporadic contact with their parents. The possibility of adoption would represent a chance for a stable and secure family life, which is something every child deserves.

As the Chief Justice, Mr John Murray, outlined in his introduction to "Child Law - 2nd Edition" by Geoffrey Shannon, "Adoption into a family, where circumstances so warrant, has always been considered superior to other options such as care in State institutions". The fact that one third of children in foster care are in long-term care is way out of kilter with the situation in other countries. That statistic indicates the problem that exists for children moving from foster care into adoptive care. Given the high threshold that is required to be met in order for an adoption to proceed, children are opting to seek adoption when they are 17 years of age, just short of their 18th birthday, in order to get the rights afforded to them by adoption. The reason there are so many cases in that category is because it is nearly impossible for them to meet the criteria any younger than that.

This referendum Bill is very much needed. The reason we are taking the step of introducing a referendum Bill is in part due to the U-turn by the new Government on its commitment to run the proposed children's rights referendum at the same time as the presidential election. As recently as early February, just three weeks before election day, the new Taoiseach, Deputy Enda Kenny, promised to hold the children's rights referendum on the same day as the presidential election. However, he and the new Minister, Deputy Frances Fitzgerald, have now abandoned this promise, saying there will be no referendum until some time next year. The Government's position is that it now wishes to spend further time examining the wording for a referendum on children.

Fianna Fáil has supported, and continues to support, the need for a wider referendum to enshrine children's rights in the Constitution. However, the Government's delaying on this and its breach of election promises is not acceptable. Measures to improve the rights of children are not a political football that can be bounced in order to win votes during an election campaign only to be dropped as soon as a party gains power.

This referendum Bill deals only with the adoption aspects of the proposed children's rights referendum, on which there is widespread consensus. It is our position that hundreds of children cannot be asked to continue in foster care without the right to be adopted into families that are ready, willing and anxious to provide them with the loving and supportive environment they deserve. It is simply not acceptable that those children and families who are waiting for this change are forced to wait another year or longer because the Government has backed away from its election pledge. Both the new Taoiseach and the Minister, Deputy Frances Fitzgerald, have said that the children's referendum is a complex matter. Of that there is little doubt. One needs only to think about the abortion referendums of the early 1980s to see the problems that arise when amendments to the Constitution are not fully thought through and are poorly worded. All of this shows that the position of Fine Gael and the Labour Party in Opposition was purely political. On the very day that the Joint Committee on the Constitutional Amendment on Children issued its third and final report, the current Minister for Justice and Equality, Deputy Shatter, demanded that the then Government name a date for the referendum. This was before the Cabinet had even received a copy of the report, let alone had time to consider the proposed wording.

Since taking office, the current Taoiseach and Minister have placed great store in the advice of the Attorney General, as they are duty-bound to do. To do otherwise would be highly irresponsible. However, practically every day on the Order of Business in the last Dáil, the current Taoiseach and Tánaiste berated the last Government for its failure to name a date for the referendum. Little credence was given to replies that the Attorney General had to consider the wording, as did the various Departments. According to the current Taoiseach, Tánaiste and Minister for Justice and Equality, there was across-the-board political consensus on the wording proposed by the joint committee, and hence no need to consult with anyone; all that needed to be done was to name a date for a referendum. It was stated that every day the Government procrastinated, the children of the country were being denied their inalienable rights.

The former Government took the steps necessary to ensure that the wording to be put to the people would not give rise to consequences that were not envisaged by the joint committee. Various concerns were identified, such as the prospect of impinging on immigration policy and the issue of legal representation in administrative proceedings concerning children. Although I was not a member of the joint committee, I do not believe it was its intent to introduce a range of socio-economic rights into the Constitution.

The wording approved by the last Government was shared with Fine Gael, the Labour Party and Sinn Féin as well as the Ombudsman for Children and NGOs dealing with children. The former Minister of State with responsibility for children and youth affairs, Barry Andrews, proposed to hold the referendum on the day of the general election. As we know, the general election was called sooner than anticipated and that jettisoned any prospect of holding the referendum on the same day. Many inside and some outside the House suggested that the original timeframe was too tight and that the ideal time to hold the referendum was on the day of the presidential election. Little did anyone expect that the issue would be pushed out to 2012, at the earliest, by the new Government.

The new Minister said only last Thursday that she wishes to revert to the wording proposed by the joint committee. Although she has all the legal advice from the last Attorney General at her disposal, she wishes to discount it. I ask whether she has yet sought a view from the new Attorney General as to whether she concurs with her predecessor. Has she expressed any view on the matter? The House is entitled to know where it stands, well after the Government's first 100 days in office. Although I think it highly unlikely, should the Attorney General express the view that the wording proposed by the joint committee should be contained in a new referendum Bill, we as a party would be willing to consider such a proposal. The consensus built in the joint committee was hard-won and should not be dispensed with lightly. However, I cannot but think that the wording that is eventually proposed some time next year, to use the Minister's own words, will not greatly differ from the proposal that was put on the table by the then Minister of State last January.

It is the Government's right and prerogative to review all versions of the wording. I would expect nothing else. However, we are entitled to ask about the timeline and the process by which the Minister will examine the wording. Does she propose to share any new thinking with the Oireachtas?

Some may legitimately ask why we are proposing to put the adoption provisions contained in all previous forms of the wording in a separate referendum. The answer is straightforward. It is not fair to ask the thousand children who are currently in long-term foster care and do not have the option of proceeding to adoption with a new family to wait. There is absolute political consensus on the wording of the two adoption provisions. The matter took up relatively little time in the joint committee and there has been no straying from the original wording proposed by the late Brian Lenihan in 2007.

There is no doubt that the eventual children's rights referendum will be hard-fought, and despite cross-party agreement and support, there is no guarantee it will be passed by the people. Should a proposal be put to the people only to be rejected, all of the Bill will fall, including the adoption provisions. In that event, the children I have spoken about tonight, the children in long-term foster care who cannot be adopted, and possibly the next generation of children in care, will not be eligible for adoption. One thing is sure: if a children's referendum is defeated, it will be a long time before the matter will be revisited, regardless of the shape of future Governments. That is reason enough to seriously consider running this referendum on the same day as the presidential election. This is a Bill that is much needed and it makes eminent sense to run the referendum alongside the upcoming presidential election.

Fianna Fáil continues to support the need for a wider referendum to enshrine children's rights in the Constitution. We will work with the Minister and other parties on that. However, the issue of adoption rights is not contentious and enjoys widespread support. My question to the Government is this: why would we make a single child in need of a loving home wait another year, if not more? This anomaly can be fixed now. Our Bill can be accepted tonight without compromise of principle on anyone's behalf.

Tonight, the Dáil can send a strong and clear message to these children and the families that want to provide them with a supportive home. Some issues are too important to delay upon, and this is one of them. I commend the Bill to the House.

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