Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)

Sinn Féin supports the intent of the Bill. The current legal framework and the discriminatory constitutional definition of "the family" has led to a situation whereby children of marital relationships cannot be adopted even where clearly it would be in their best interests to be so. Under current legislation, children can live in foster care for all of their childhood and never be allowed to be adopted into a family. They can be removed on the whim of a social worker or shifted elsewhere when another more needy child is chosen to be placed in that particular foster family's care.

This situation has arisen out of an archaic set of laws regarding children and the family which are quite obviously unfit for modern Ireland. Approximately 2,000 children in foster care, who have grown up with little or no regular contact with their birth parents, are ineligible for adoption. These children are being denied the opportunity to receive full legal recognition of their real families as distinct from their married birth parents. Foster parents are the only family they have ever known; they are the people who have reared and sustained them and shown them the real love and support they have needed. They are denied the stability and sense of permanency offered by adoption.

Article 2 of the UN Convention on the Rights of the Child outlines the right of all children to enjoy all the rights in the convention without discrimination of any kind. The current restriction on the adoption of Irish children of marriage discriminates against them on the basis of the marital status of their parents. At present, the courts require a very high threshold proving that marital parents are failing in their duty and will continue to fail in this duty. The same standard is not required of unmarried families as the Constitution, the courts and State do not view them as a recognised family. Marital parents may have reason to voluntarily place their children for adoption but cannot do so. This too must be rectified.

As I stated, we welcome the Bill but with some considered reluctance. It would be remiss of me not to place on record our firm opposition to the manner in which Fianna Fáil has chosen to approach this. It has chosen to isolate one aspect of what was contained in the recommendations of the final report of the Joint Oireachtas Committee on the Constitutional Amendment on Children. The wording of its proposed article 42(A) is lifted directly from the text of the agreed wording produced in that committee's report in our proposed articles 42.5 and 42.6 with a one line omission. Interestingly, that line states "and any such law shall respect the child's right to continuity in its care and upbringing". This same omission is made in the document provided to me by the then Minister of State, Deputy Barry Andrews, at 6.45 p.m. on 13 January 2011.

The proposers of the Bill have focused on adoption and neglected to include anything else that would make a meaningful difference in the lives of children in Ireland. I am at a loss as to why Fianna Fáil would - and I give some thought to stating this - play politics with an important issue such as this. Any of us could have taken this course but we have chosen not to. Fianna Fáil committed to holding a referendum on children's rights and its party members on the Oireachtas committee endorsed the final report. We had cross-party consensus on the issue and I stress that in my view this was and remains an essential if we are to have a successful referendum campaign. Given this belief, I must ask whether Fianna Fáil has fully thought through the potential consequences of sequestering the adoption elements of the report. Everybody agreed there needs to be a constitutional provision to allow children of marital families to be adopted but we also agreed there needs to be a referendum with a broader remit that would strengthen children's rights under the Constitution and we remain committed to this.

The proposed wording contained a provision to ensure the right of the child to have his or her best interests considered paramount in all cases concerning guardianship, adoption and care. It would expressly enshrine a child's right to protection in care, to an education and, very importantly, to be heard. It balanced this with the rights of parents to be the natural carers, educators and protectors of the child while acknowledging there are sometimes unfortunate and tragic cases where parents cannot or should not be the primary carers of their children. I ask somebody on the Fianna Fáil benches to let us know whether it has abandoned the idea of a comprehensive children's rights amendment.

In 2007, the then Fianna Fáil Government tabled a referendum Bill on children's rights with which nobody was happy. After the most recent cross-party Oireachtas committee produced its agreed wording, in January this year - and I referenced the text of the Minister of State - the Fianna Fáil and Green Party Government produced yet another formula of words that significantly weakened what the committee had agreed and was seeking to achieve. That wording went out of its way to ensure that children were not guaranteed rights; the rights were merely acknowledged. However, it did ensure the children of marital families may be adopted but this was about the sum total of it. I must ask whether it was the intent of Fianna Fáil all along that this would be the only subject dealt with. This is still my concern.

I wish to refresh the memories of the Members of the Government parties that the Labour Party and Fine Gael representatives endorsed the wording set out in that same Oireachtas committee report. Now they are happily ensconced in government and have had time to settle down, I hope they have revealed their true feelings on the subject. As an opposition voice, I am pleased to state I am a staunch supporter of the new Department and the Minister's appointment. No one in the House wishes the Minister a fairer wind than this Deputy.

The manifestos of the Labour Party and Fine Gael contained commitments to hold a referendum on children's rights, as did the programme for Government, which referred to a referendum along the lines of the wording of the report of the Joint Committee on the Constitutional Amendment on Children. The Minister for Justice and Equality, Deputy Alan Shatter, who played a significant role in the committee's work, asked the following question in the House on 12 May last year: "Will the Taoiseach acknowledge that the delay in even acknowledging that a referendum on children's rights will take place this year absolutely confirms that the Government is doing nothing other than paying lip service and is prepared to sacrifice the welfare of children to cheap headlines and sound-bites in the daily newspapers?" I put the same question to the Taoiseach. Does he acknowledge that his Government is doing nothing other than paying lip service to children's rights? Prevarication, the absence of product and the failure to give an indication of real progress being made begs the question as to what has happened to the Fine Gael Party's position since it entered government? It was an ardent proponent of a referendum on children's rights and strongly of the view that there should not be any delay in holding it.

In May 2010, the Labour Party supported a Dáil motion tabled jointly with Sinn Féin calling for a children's rights referendum. What has changed the minds of Labour Party Deputies? Where is the urgency on this issue expressed in the party's manifesto. The Government parties have an obligation to live up to the promises they made to the electorate by holding a referendum at the earliest opportunity.

While Sinn Féin does not agree with the Fianna Fáil Party's decision to separate this issue, there is no doubt that, if passed, the amendment proposed in the Bill would be a measure of progress. This must be acknowledged. There are children who spend large parts of their lives with the same foster parents but cannot be adopted. While there is a provision in the 1988 Adoption Act which provides for the adoption of a marital child, the constitutional right of the marital family remains in place. In one case of which I am aware, which is referenced in the final report of the joint committee - Western Health Board H.B. and N.B. v. An Bord Uchtála of 1995 - a child was born to a married woman who had separated from her husband. She believed the child to be that of a man with whom she had been in a relationship. It transpired, however, that the child was of her former husband who had raped her. The child was placed with foster parents who wished to adopt it. After some time, the husband sought custody. A court held that the mere actions of the husband seeking custody were sufficient to establish he had not abandoned his parental rights and, accordingly, the child could not be adopted. The best interests of the child were nowhere to be seen in the consideration of this case.

It is up to Fine Gael and the Labour Party to live up to their obligations and commitments to hold a referendum on children's rights with appropriate urgency. The Government must also show appropriate urgency regarding the all-party agreed recommendations contained in the first report of the most recent joint committee published in September 2008, which addressed the need for legislation on soft information. We are weeks from the summer recess and on the return of the House, a full three years will have passed without legislation being published, not to speak of being passed.

For the purposes of the proposition before the House, Sinn Féin will support the Private Members' Bill with all the reservations I have placed on record. However, the legislation must not be viewed as a substitute for a comprehensive constitutional amendment which will give children the rights they deserve. I place my trust in that regard in the Minister and her new Department. From time to time I will urge her and egg her on as best I can. I call on the Government, as a matter of urgency, to fulfil its promises and to hold a referendum based on the wording set out in the final report of the Joint Committee on the Constitutional Amendment on Children.

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