Frances Fitzgerald (Dublin Mid West, Fine Gael)

Molaim leasú Uimh. 1:

Go scriosfar na focail go léir i ndiaidh "Go" agus go gcuirfear an méid seo a leanas ina n-ionad:

"ndéanann Dáil Éireann

-Tacú leis go bhfuil gá le leasú ar an mBunreacht maidir le leanaí a mbeidh bonn leathan faoi agus, de réir an ghealltanais a tugadh i gclár Rialtais 2011, go mbeidh an fhoclaíocht ar aon dul leis an bhfoclaíocht a mhol an Coiste Uile-Pháirtí Oireachtais,

-Tacaíocht a thabhairt do na bearta atá déanta ag an Rialtas reatha chun dlús a chur leis an bpróiseas leasú ar an mBunreacht maidir le leanaí a thabhairt isteach,

Ag glacadh leis go bhfuil an Roinn Leanaí agus Gnóthaí Óige, i gcomhar le hOifig an Ard-Aighne, ag forbairt moltaí faoi láthair i ndáil le dréacht-fhoclaíocht do leasú ar an mBunreacht a chuirfidh leis na moltaí ón gComhchoiste um an Leasú Bunreachta maidir le Leanaí,

a bheartú go measfar an Bille um an Naoú Leasú is Fiche ar an mBunreacht (Uimh. 3), 2011 a bheith léite an Dara hUair sé mhí ó inniu.".

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann

- Supports the need for a broad based amendment to the Constitution in relation to children and that, in accordance with the commitment given in the programme for Government 2011, the wording will be along the lines of that proposed by the all-party Oireachtas committee,

- Endorses the actions taken by the current Government to progress the introduction of the amendment to the Constitution on children,

Accepting that the Department of Children and Youth Affairs is currently, in co-operation with the Office of the Attorney General, developing proposals for draft wording of an amendment to the Constitution which will build on the Joint Committee on the Constitutional Amendment on Children proposals,

resolves that the Twenty-Ninth Amendment of the Constitution (No. 3) Bill 2011 be deemed to be read a Second Time this day six months.".

I welcome the opportunity this Private Members' motion gives us to focus on this issue. I wish to comment on the sensitivity and concern that has been shown by the speakers who have already spoken on the motion regarding the position of those children in foster care who cannot be adopted. This is an issue that has been little understood over the years and I am delighted to see it get the kind of focus it is getting in this debate, because it raises serious issues about the care of children. As Deputy Ó Cuív said, for a long time - for 14 years of Fianna Fáil Government - the Government failed to enact the kind of protection in legislation and amendment to the Constitution that was needed to copperfasten children's rights.

As Members are aware, the Department of Children and Youth Affairs was formally established earlier this month. The decision of the Taoiseach and the Government to establish a new full Ministry and Department of Children and Youth Affairs marks, I believe, a very important value statement about the position of children in our society. Some commentators have asked why Ireland needs a Department such as this. With 1.1 million children and young people aged under 18 in Ireland, the real question is why it has taken so long to establish a Department with the commitment to support, safeguard and cherish our nation's children and their quality-of-life and opportunities. Our children are our future and remain our country's greatest asset. I see the Department also as very much an economic Department, because the future of our economy is dependent on the access to opportunities in education and health of our children. Our economy will be hugely determined by how our young people experience life.

I wish to take this opportunity to congratulate Deputy Charlie McConalogue not only on his election, but also his appointment as party spokesman on children. I look forward to his constructive engagement and that of my Opposition colleagues as I progress my Department's agenda to enhance the outcomes for all our nation's children and young people. I also wish to acknowledge the work done by Deputy Ó Caoláin and his party during the period when the various committees were considering the issues of children's rights. They played a strong role on the committee.

As part of my Department's ambitious work programme, I confirm and reaffirm the Government's absolute commitment, as provided for in the programme for Government, to bring before the people a proposed amendment of the Constitution to strengthen the protection of the rights of children, along the lines recommended by the all-party Oireachtas committee. The current Bill, brought before the House tonight by Fianna Fáil, limits itself to the adoption issues alone. We have heard some comment already as to whether we can have stand alone amendments such as this. They raise serious questions. Deputy Ó Cuív spoke about unintended consequences which can arise when one proposes amendments to the Constitution. I fear that tonight's proposal falls into that category because it does not attempt to raise the broader and vitally-important matters which were the subject of both the 2007 Bill and the proposed wording prepared by the Joint Committee on the Constitutional Amendment on Children.

Parent-child relationships, with their deeply-woven balance of needs, rights and responsibilities, can be most complex, even within a stable and secure family setting. This is even more so in the case of families in crisis and children at risk. How the State, through it laws and interventions, both at service and court level, interfaces with the diverse experiences of families and children requires the utmost sensitivity and an appreciation that change in one area can often cause or require change in others. Our Constitution strikes a balance between personal rights, the status of the family, the rights and duties of parents and the power of the State as guardian of the common good.

My aim is simple. It is to bring forward a holistic and joined-up response to the long-identified need to strengthen our Constitution, copperfasten children's rights and safeguard our children's well-being, while at same time supporting families. I do not see the reasoning behind bringing forward such a limited approach on just two of the sub-sections of the joint committee's much more comprehensive proposal. I am not interested in any piecemeal approach to amending the Constitution on this matter. I believe the way forward and where we should focus our attention is on the development of a composite amendment on children's rights, which will include provisions with regard to adoption. The principles of the Deputy's Bill will be incorporated in that work. It is for that reason I do not wish to reject the Deputy's motion at this stage, but rather to amalgamate the commonly shared principles into the broader amendment on children's rights, as was done by the Oireachtas committee of which the Fianna Fáil Party was a member. The road to constitutional reform of any type can be protracted and cautious by nature. This is appropriate given the need to ensure that the Constitution, the cornerstone and basic law of the State, reflects the needs, culture and ethos of the people.

Before considering the proposal in detail, I would like to provide the background to the referendum on children's rights. The suggestion of constitutional change in regard to children was first voiced by Mrs. Justice Catherine McGuinness, almost 20 years ago, in her capacity as chairwoman of the Kilkenny incest inquiry. Subsequently, the Constitution review group, in its 1996 report, recommended that the Constitution be amended to include the welfare principle and to provide an express guarantee of certain other rights for children, deriving from the United Nations Convention on the Rights of the Child. In 1998, the UN Committee on the Rights of the Child, examining Ireland's first report on the implementation of the convention, found that Ireland's welfare practices and policies did not adequately reflect the child rights-based approach enshrined in the convention and recommended in favour of the accelerated enactment of the Constitution review group's recommended reforms.

Between 1997 and 2002, family rights and related issues were referred to an all-party committee on the Constitution. That committee reported in 2006, recommending an amendment to Article 41 to include a new section on the rights of children. Following that recommendation, the late Minister of State with responsibility for children, Mr. Brian Lenihan, to whose work I pay tribute, undertook a review of the Constitution to examine the status of children. That review, which included wide consultation, resulted in the publication of the Twenty-Eighth Amendment to the Constitution Bill in February 2007. It 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. The Joint Committee on the Constitutional Amendment on Children reviewed the Twenty-Eighth Amendment to the Constitution Bill and recommended an alternative wording for an amendment to the Constitution.

The third and final report of the joint committee, published in 2010, deals with the rights of children under the Constitution and the statute and case law concerning adoption, guardianship, care proceedings, custody and access to children. The committee's final report came after five extensions to its time schedule, due to the extremely complex matters under consideration. As the House will know, I, along with Deputy Ó Caoláin, served as a member of the joint committee. The committee's work was positive and focused on the need, where possible, to deliver and develop political consensus. For the main part that positive approach that led to the development of political consensus. I, in common with my ministerial predecessors, place a high value on the consensus outcome that was achieved and will work in the same vein to ensure effective outcomes for Irish children. I hope the introduction of the Bill does not mark or lead to a fragmentation of that all-important consensus. In developing its report, the committee faced a challenge to balance the rights of families, children and marital and non-marital parents.

The committee's report, which is very detailed, carefully and thoroughly examines the proposals contained in the Twenty-Eighth Amendment of the Constitution Bill. As an alternative to the wording contained in that Bill, the joint committee's report recommends inserting a new Article 42 into the Constitution, restating most of the education provisions but adding several new sections and renaming the section entitled "Education" as "Children".

The proposed Article 42.1.2o provides specifically that children have specific human rights and that the State has a duty to vindicate the rights of children. While the concept of the welfare of children is enshrined in some legislation, its use in the proposed Article 42.1 would ensure that children's welfare would be a primary consideration in a range of areas affecting children.

The proposals in Article 42.2 would require the State to recognise and vindicate the rights of all children as individuals, as opposed to as children within the family. It also proposes that a child's voice be heard in any matter affecting the child, with due regard for the age of the child in accordance with the United Nations Convention on the Rights of the Child.

The proposed Article 42.4 deals with what is for many people the most complex part of the proposals. The primacy of the family is very important to Irish people and there has been concern that by giving rights to children as individuals, rights are taken away from the family. It should be emphasised, however, that neither the 2007 Bill nor the committee's proposal is attempting to reduce family rights in any way. It is widely accepted that the best interests of the child are served by being part of a stable family unit. I hope that, through new constitutional provisions, we can better protect children through supporting the family.

However, in amending the Constitution, I want to ensure the State's child and family services have the power to intervene to support families in crisis at an earlier stage and make the sorts of decisions Deputies referred to in the best interests of the child. I refer to children in foster care, for example, who could be adopted. We need to safeguard the well-being of children and ultimately support the family with the aim of keeping children from being taken into State care wherever possible. Under this proposal, the removal of children from their family home will continue to be a last resort.

On the proposals relating to adoption, I acknowledge the work of the joint committee in considering this matter in the widest possible context and in the context of legislation. Unfortunately, as I have stated, the Deputy's Bill, which is published in isolation, represents a limited approach involving two of the subsections of the joint committee's wording and does not achieve the Government's objective of strengthening children's rights in the Constitution. Furthermore, the proposal is phrased in a discretionary and permissive manner. It provides that laws may be enacted in accordance with the terms therein.

As the Deputy is aware, there is a body of work to be done in preparing proposals to be published in conjunction with the Bill to amend the Constitution in respect of adoption, to clarify the Government's intended approach to the operation of this provision. The Deputy has not published any such proposal, nor has he given an indication of the parameters within which his proposal would apply. The Government would like to ensure that draft adoption proposals are published before any referendum so the people will be clear about the circumstances in which this would apply and where the best interests of the child would be served by it. It is critical that people understand what they are voting for.

Article 42.5 of the Constitution sets out the threshold for State intervention in family life on behalf of a child, where in exceptional circumstances the State may supply the position of parents. Until 1988, only the children of unmarried parents could be legally adopted. The view was taken that the irrevocable nature of an adoption order was incompatible with the inalienable nature of the family's rights under Articles 41 and 42 of the Constitution.

The Adoption Act 2010 prescribes that adoption can only occur where the court is satisfied there has been parental failure in the parents' duty towards the child for physical or moral reasons for the previous 12 months, that the failure is likely to continue without interruption until the child reaches 18 years, and that the failure constitutes an abandonment of all constitutional rights on the part of the parents. The result is that, to date, the availability of adoption to children of marriage has been severely circumscribed, with the result that many children in care are deprived of a second chance for a stable and secure family life.

I appreciate that the proposal in the Bill before us appears to be formulated to allow the adoption of children where there has been a failure for such a period as prescribed by law of parents in their responsibility towards their child and where the best interests of the child so require. However, the Deputy has not indicated the supporting proposals prescribing the period for which failure of parental responsibility must occur. Would it be for a period of three, five or seven years? This uncertainty would be most unwelcome. As I stated, it is for this reason that the Bill needs to be accompanied by a supporting position paper to clarify these issues for the people.

The proposal, as published in the Bill, fails to provide a coherent philosophy of children's rights. It is unfortunately flawed in that it does not clarify the central question of how the rights of children and parents ought to be reconciled in cases where they come into some degree of conflict. If the proposed articles were passed, the courts would have to decide these issues on the basis of conflicting constitutional criteria.

With regard to the specific issue of adoption and in the absence of legislation, the amendment could have a variety of consequences. It could require the introduction of an approach premised on the best interests of the child. It could change very little or it could curtail the circumstances in which the children of unmarried parents may be adopted. To the extent that the drafting of the proposed articles is relevant, the establishment of parental failure as a constitutional principle in all cases would suggest the latter option is the most likely outcome. It is questionable whether the courts would, for policy reasons, adopt such a restrictive approach. However, this is a risk that cannot be discounted.

For all of these reasons, I am not willing to consider at this stage proposals that offer a piecemeal approach to amending the Constitution when a much more broad and well-rounded approach is and has been the basis of cross-party consensus. All of society is governed by the Constitution. It is the Government's position that the rights of children must be balanced with other important principles already contained in the Constitution and which, we believe, are important in protecting and safeguarding children from harm. The Government is committed to ensuring that there is no dilution of the equally important concepts of the duties of parents and the core position in Irish society of the family unit, and any amendment developed will respect the constitutional position of the family. These issues were teased out very carefully in work of the committee.

Under the last Government, draft wording was developed but, in my view and that of the parties in the new Government, it did not adequately reflect the good work done by the all-Party Oireachtas committee. The programme for Government for 2011 states the referendum on children's rights is a priority and that the wording will be along the lines of that proposed by the all-party Oireachtas committee.

Since taking office as Minister for Children and Youth Affairs, officials from my new Department have commenced discussions with the Attorney General with a view to preparing draft wording that will more closely reflect the outstanding work of the joint committee than that approved by the previous Government in draft form. Following completion of these careful deliberations, I intend to bring the matter to the Government for approval to draft a Bill and hold a referendum.

Recently, the Taoiseach stated that the referendum will not take place on the same day as the presidential election. There is concern that to do so would unnecessarily and unhelpfully politicise children's rights, and that a separate referendum would be more appropriate for this important and sensitive issue.

We will take our time over the coming months, although the time the Government takes will be much less than the years of delay by Deputy McConalogue's party when it was in government. We will take our time and we will get it right and I hope that early next year, when we bring our comprehensive amendment before the people that we will have the support of all parties in the House.

I remind the House that our Constitution is held in high esteem not only by the Irish people but also by others throughout the world. It has been a model for many countries and the Irish have a strong attachment to it. I aim to present the people with an amendment that is clear and comprehensive, addressing the full range of matters identified by the joint Oireachtas committee. This is an enormous task but it is also a great opportunity and I invite all sides of the House to join with me over coming months and to help make a difference through progressing a constitutional amendment that properly reflects our shared commitment to support Irish families and to safeguard and cherish our nation's children.

See this speech in context