Éamon Ó Cuív (Galway West, Fianna Fail)

I accept this is a complicated matter when considered in the overall issue of the children's referendum. When introducing constitutional referenda, we must ensure there are no unintended consequences. There was the famous case of the so-called abortion referendum – the right to life referendum – which led to unforeseen consequences. There was also a need for a follow-up referendum in respect of the Good Friday Agreement because what appeared to be a quite normal and amiable form of words gave rise to unforeseen difficulties.

When we were in government, we considered the issue of children's rights. Everyone wants to vindicate those rights. We examined the wording put forward by the Joint Committee on the Constitutional Amendment on Children. The then Attorney General, Mr. Paul Gallagher, was concerned about the possible effects this wording might have and that it might give rise to unintended consequences. This is a complicated matter and I am of the view that the Government should take time to consider the wider children's rights issue. If it is not disposed to accept the wording drawn up by the previous Attorney General, and if it is determined to adopt the original wording put forward, it should give careful consideration to whether the difficulties Mr. Gallagher identified in respect of the latter wording might come to pass. We should move forward in a steady manner and the matter to which I refer should be examined carefully on a stand-alone basis.

The position with regard to adoption is clear. It is not for me to state that their lordships in the Supreme Court got it wrong. When I read the Irish version of the Constitution, however, I find it difficult to understand how they ever reached the conclusion that it is only in extremely limited circumstances that the children of a marriage might be adopted. The Irish version of the Constitution refers to "do chearta nádúrtha dochloíte an linbh". In the English version this is translated as "the natural and imprescriptible rights of the child". Use of the term "dochloíte" means that these are rights which cannot be taken away. In my humble opinion this indicates that the child must always come first.

It is difficult to see how what is stated in the Constitution was perceived as being a vindication of the institution of marriage, which is a broad and sweeping concept. The premise is that marriage cannot be abolished and that the institution must be supported because of the nature of its effect on society. When the great jump is then made to a position where if a child's welfare is placed against the institution of marriage - particularly in the context of the exceptional cases to which the Constitution refers - I cannot understand how the 1988 legislation was ruled to be too generous in respect of this matter and that it was necessary to adopt a very confined interpretation.

I have always believed the Constitution to be a document written not only for lawyers but also for ordinary people. In other words, it is meant to be capable of being understood by the latter. It is strange, therefore, that under the interpretation handed down by the Supreme Court in respect of the Constitution - and regardless of how difficult or exceptional might be the circumstances involved - it is practically impossible to adopt children from a marital situation. I cannot understand how this can be reconciled with the "chearta nádúrtha dochloíte an linbh" or "natural and imprescriptible rights of the child" to which the Constitution refers. My attitude is that if this is the nature of the Supreme Court's ruling, then so be it. However, I do not believe that is what was envisioned by the ordinary people when they voted in favour of the Constitution. The simple answer is, therefore, that we should put matters right. There is a good argument to the effect that it should never have taken us this long to address this issue and that it should now be dealt with forthwith.

Not incorporating all the changes to the Constitution in one article gives rise to certain advantages. If, for example, arguments and difficulties arose in respect of the second proposed wording, not all would be lost if a particular question were rejected by the people. In other words, if one all-encompassing question were put in a referendum, there is a danger that everything would be lost. It makes sense, therefore, to move forward with this non-contentious item of legislation and put it before the people. I will be interested in hearing what the Minister has to say but I believe that, on a stand-alone basis, she will probably find no fault with the Bill.

Given that a referendum commission must be established and that it is not possible to run a referendum overnight - it is proper that there should be a good lead-in period to referenda - I ask the Government to reconsider whether it should accept the proposal contained in the Bill. I have no doubt that there would be all-party agreement in that regard. The Government could then return to tease out the more complex issues with which it is trying to deal. In light of the fact that this is a complex matter, I have no doubt that if it engages in such a process the Government will be presented with ample wordings and plenty of arguments from various lawyers. In such circumstances, the Minister's head will be "done in" as she tries to consider whether every angle has been examined in the context of the consequences to which a change to the Constitution might give rise.

The then Attorney General was of the opinion that the 1988 legislation was constitutional but the Supreme Court adopted a different view. That shows how it is possible for unintended consequences to arise. Even eminent lawyers can different on particular matters. In 1988 the then Attorney General must have been satisfied that the relevant legislation was constitutional.

We tend to discuss undoing the past a great deal. To a certain extent we can try to ameliorate the damage that was done but we cannot undo the past. On each occasion a debate on that matter is begun, I always ask the question "What about the present?" We can do something about what is happening today and what will happen tomorrow. We can cater for the interests of children now rather than in 20 or 30 years asking why we did not take action in order to give children in long-term foster care the type of stable homes they require. Is it not much better to do something rather than in the future being asked why one did not act? It is good to break large problems down into their constituent parts. If there is a part which might be easily tackled and which is stand alone in nature, I cannot understand why we cannot just proceed to tackle it. We could then tease out the more complex and difficult parts and take action once consideration has been given to every eventuality.

The other issue relating to children should be dealt with. There is a massive debate taking place about how far the Government might resile from the previous Attorney General's proposal to the proposal put forward by the joint committee, the point at which any wording should be included in the Constitution, whether the rights to be granted should be justiciable, etc. I am aware that, regardless of how quickly one might wish to proceed, careful consideration is required in respect of this matter.

Ba mhaith liom moladh a thabhairt do mo chomhleacaí, an Teachta McConalogue, as ucht an Bille seo a thabhairt os comhair an Tí. Tá súil agam go smaoineoidh an Rialtas ar seo thar oíche agus go bhfeicfidh sé nach ceist pháirtí í ar chor ar bith. Is ceist í go bhféadfadh muid ar fad a aontú agus a rá, sa bpolataíocht nua ar a bhfuil muid ar fad ag caint, go ndearna muid é seo sa bhliain 2011 agus go ndearna muid an t-athrú seo chun feabhais gasúr óga na tíre seo. Féadfaidh muid a rá go bhfuil muid ag déanamh saoil níos fearr agus níos foirfe dóibh agus go bhfuil muid ag déanamh cinnte go bhfuil cearta dochlóite an ghasúir tugtha chun cinn againn agus go bhfuil na cearta sin á chosaint againn agus go bhfuil brí dá thabhairt don Bhunreacht a mbeidh chuile duine sa sochaí ar a shon. Mar sin, tá súil agam, nuair a dhéanfaidh an tAire a macnamh ar an Bhille anocht, go bhfeicfidh sí nach bhfuil muid ag imirt polataíochta le seo - cinnte, níl mise.

Táim ag impí ar an Aire glacadh leis an Bille mar is ar son ghasúr na tíre é. Ba cheart glacadh leis agus dul ar aghaidh leis. Nuair a bheidh an tAire réidh leis an chuid eile den obair atá le déanamh aici ar son páistí na tíre seo, ba cheart sin a dhéanamh in am tráth agus focail eile agus leasaithe eile a chur os ár gcomhair le déileáil leis an obair sin. Ach idir an dá linn, ní cheist chonspóideach í uchtú gasúr. Ní dóigh liom go bhfuil éinne in aghaidh gasúir a uchtú. Mholfainn don Aire agus iarraim uirthi glacadh leis an leasú bunreachta seo.

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