Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

The Bill I have brought to the House will allow for one of the most important referendums in the history of the State. I would like to begin by thanking Members on both sides of the political divide in this House who have given so much time and effort to the development of the amendment I am now proposing. I thank those in every party who have expressed support for the recommended change. Few changes matter as much as this. Most of what we do in this House is about legislation. By its nature, legislation has to be about delivering for the needs and problems of today. Constitutional change goes way beyond that. It gives us a rare opportunity to look at ourselves as a nation and ask if we are truly espousing the correct values. It gives us an opportunity to assess what we stand for. Ultimately, constitutional change allows us to consider future generations and ask what Ireland they should live in.

We are rightly proud of Bunreacht na hÉireann. We are rightly proud to live in a State that is defined by a document which enshrines personal liberty, protects rights and guarantees religious freedom. Over the decades, the society defined by such ideals has become taken for granted. We assume our rights and we rarely question the freedoms or guarantees provided to us in the Constitution. The average citizen does not wake each morning with gratitude for the protections provided to him or her by a document that is nearly 80 years old. Few people think of the Constitution every day. In one way, that proves the effect of Bunreacht na hÉireann. The values it espouses and rights it provides are so intrinsically connected with being a citizen of this nation that we rarely question from where those rights and values come. The only time the average person really needs to pay direct attention to the Constitution is when it is discovered to be lacking or when he or she needs to rely on it to protect his or her rights. In the case of the children of the State, it is lacking.

Since Mrs. Justice Catherine McGuinness's call in the report on the Kilkenny incest case, successive Governments have received report after report, and evidence upon evidence, that the Constitution is failing our children. We have had reports such as that on Kelly Fitzgerald and the west of Ireland farmer case, reports such as the Ryan commission report and the Cloyne report, and reports in between, such as Roscommon - in all, at least 17 major reports on gross child protection failings.

Those reports are added to by the achingly sad personal evidence of those adults whose childhoods were poisoned by violence, neglect, abuse and loneliness, those who suffered at the hands of family members, State institutions and religious institutions. Every person in this House knows now that, for decades, Irish children suffered in their own personal hells, while the system was unable, unwilling or simply unmotivated to do anything.

That knowledge leaves us facing a simple question. Constitutional law can be complex. The question facing us is not. Constitutional language can be subtle and nuanced. The question facing us is not. Constitutional change can be contentious. The question facing us is not. The question facing us is simple. Do we believe that the way children were treated in this State represents what we believe to be the values, morals, and ethics of the Irish people? The answer is pretty simple too. It is a "No". None of us should be proud of what happened to thousands of Irish children since the foundation of the State. None of us should think that brutality, ignorance and neglect are the attributes that characterise us.

We, as a nation, are fair, decent and honourable. If one attends any of the citizenship ceremonies which welcome the new Irish to our national family, one will see people proud to be joining a nation that they know stands for something, a nation that has, at its core, a belief that people are equal, that they deserve fairness and that they must be protected from harm. Until now, we have failed to make sure that those beliefs are adequately expressed and enacted in regard to children. This referendum is our opportunity to change that. This referendum is the chance to create fundamental change in how we treat children. In 50 years, we must hope that no one will pay much attention to Article 42A of the Constitution. We must hope that it will be assumed. We must hope that all children will have rights, will be protected and will be treated equally. We must hope that Article 42A just becomes one more strand in the fabric of Irish life, defining directly and indirectly our belief that children deserve to be enveloped by the characteristics that make us proud to be Irish. We must hope that, some day, the rights accruing to Irish children will be implicit. Until then, we must make them explicit.

Some 64 dedicated meetings of the Joint Oireachtas Committee on the Constitutional Amendment on Children, chaired by the former Deputy and Minister, Ms Mary O'Rourke, and including many Members of this House, including Deputy Ó Caoláin and others, including myself, proposed changes to protect children, to give them legal clarity, to name children's rights at constitutional level and to achieve the right balance with other aspects of Bunreacht na hÉireann.

Since taking office, my Department and I have been working on this amendment, together with the Office of the Attorney General, to make the transition from an Oireachtas committee proposal to a robust constitutional wording and to achieve the right balance, one which will have the desired effect for children. I pay tribute to the Attorney General and her staff as well as the staff of my Department for the work, commitment, time and effort they have put into the planning and work on the Bill.

The Bill proposes a new stand-alone article, Article 42A, titled "Children", which will contain a series of provisions and will be put to the people as one, single question for their approval. I want to emphasise that the Constitution must, of course, be read as a whole. Changes to the Constitution and the formulation of appropriate wording to achieve the desired change is a complex and challenging task. The aim of the Government in this case has been to present a coherent proposed wording which will interact, in the manner intended, with the Constitution as a whole. It has been very carefully balanced in the final draft before us today because the balance to be struck is critical.

The Bill does not remove or diminish the recognition given to the family under the Constitution, nor does it remove or alter the rights and duties of parents under the Constitution to provide, in accordance with their means, for the education and care of their children. However, it identifies and brings the greatest possible clarity to a number of key areas - for the Oireachtas in future law-making relating to children, for the Judiciary in future decision-making relating to children, but, most important, for all of us as a nation and as a State.

This is an essential amendment for our Constitution which, I hope, following Oireachtas consideration, will be supported by the people on 10 November. It is a statement about the rights of our children and about our views of Irish childhood now. This referendum will strengthen the protection of all children from abuse and neglect by putting their safety and welfare at the centre of decision-making; it will support families by reaffirming and underpinning the State's continuing development of early intervention and family support services to protect children in their homes; it will treat all children equally when it comes to issues such as adoption, regardless of the marital status of their parents; and, it will recognise children in their own right by providing, for the first time, an express statement of their rights and giving constitutional standing to the best interests and the views of the child in child care and family law proceedings.

This is a referendum for all children but, in particular, for those children most vulnerable and most at risk. Childhood does not stand still. Childhood can be a very vulnerable time and effective and timely decision making for vulnerable children is critical. We know that the vast majority of children live in loving, caring families and never require the assistance of the State's child protection and welfare services, but this is not always the case. Some families do need help and support in parenting their children. This can involve providing help and support to parents by means of family support, including addiction and mental health support and family and individual counselling. In the more serious cases, however, children may be moved from the family and cared for by people other than their parents.

Over 85% of non-voluntary admissions to care in 2011 were due to abuse, neglect and serious family problems. In total, at present there are approximately 6,250 children in care placements. We are very fortunate in this county that over 91% of all children in care are living with a foster family. Therefore, already in this country, the focus is very much on family care, and more than 2,000 children have been living with the same foster family for over five years. This amendment is about ensuring the safety and welfare of children, it is about ensuring that those children who need it can have the second chance of a family life and it is about ensuring that, when questions on such issues arise, the best interests of the child come to the fore and their own views on their future are given consideration.

I will now focus my comments on the intent of the different elements set out in the Bill which it is proposed to put to the people on 10 November next for incorporation in the Constitution. Sub-article 1 states: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." The Constitution sets out rights for all citizens. This sub-article will provide, for the first time, a strong affirmation of the rights and protections to be enjoyed by children as children. It provides that the rights and protections enjoyed by children are to be enjoyed by all children, irrespective of their parent's marital status, while continuing to respect and preserve the rights of the family as set out in the existing Article 41.

The rights referred to are the "natural" rights, which means rights that belong automatically to a person. They are "imprescriptible" rights - they cannot be lost, they cannot be abandoned. They include the entire range of rights that all human beings enjoy, in particular, children in their formative years. Under this provision, the State is required to protect and vindicate those rights "as far as practicable". There has been some discussion about the phrase "as far as practicable". I want to remind the House that this phrase is standard constitutional drafting and is used in respect of the provision of other fundamental rights in the Constitution, most notably in respect of the personal rights of all citizens under Article 40.3.1°.

Sub-article 2.1°states:

In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

This provision will replace the current Article 42.5 under the heading of "Education" in the Constitution. This is the sub-article in the Constitution that underpins the Child Care Act 1991 and many of the actions of the child and family support services to secure the protection and welfare of children. Such actions include applying to the courts for the making of care orders whereby children are placed in foster care, or the making of supervision orders in which the courts can order home visits by social workers or other professionals to monitor a child's care. Removing this sub-article from the education provisions fits well with having a new article relating to children. However, while the existing and new wordings have similar content, there are essential differences. It will continue to be the case that the power given by the Constitution in this area can only be used by the State in very well defined circumstances. The State can only make use of the power in exceptional circumstances, as under the existing constitutional provisions. There must be a failure of parental duty towards the child and any failure must involve harm or risk to the child's safety or welfare "to such extent that the safety or welfare of any of their children is likely to be prejudicially affected...". This represents a move away from focusing solely on the reasons for the failure of the parents to the impact of the failure on the child. The Constitution currently provides that where parents fail in their duty to their children "for physical and moral reasons", the State should intervene. The proposed wording puts the focus directly on the impact of parental failure on children and their welfare. This represents a more modern and child-centred approach to this provision.

The actions of the State must be "proportionate" to the harm or risk to the child that needs to be addressed. This means that a child will only be removed from the care of his or her parents when there is no alternative option which can protect his or her safety and welfare. The protections apply to all children equally, as explicitly provided for in the use of the phrase "where the parents, regardless of their marital status, fail in their duty towards their child". The cumulative affect of this new wording is to place the protection of children at the centre of decision-making, regardless of their parents' marital status.

The presence of failure in parental duties towards the child remains a condition of the State getting involved. The State cannot intervene where such a failure has not taken place. The new wording focuses on the effect of such a failure on the child. The wording will not change the assumption in law which is shared in Irish society that the best place for children is with their families. As I have often said, protecting children and supporting families are simply two sides of the same coin.

The referendum explicitly acknowledges the range of responses the State has to consider in protecting a child, including early intervention and family support services, which play a vital role in responding to child welfare concerns, thereby preventing more serious problems arising, with the objective of protecting children in the home and preventing children being taken into care at a later stage. This amendment is about protecting children and supporting families.

Under sub-article 2.2°, "provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require". The Constitution does not currently refer to the circumstances where adoption may be provided for in law. This has created uncertainty in the development of laws dealing with this very important area. The normal way a child is adopted involves the agreement of his or her parents or guardian, as required by law. This is to remain the position.

The great majority of children are fortunate to grow up in loving, caring families. In a small minority of exceptional cases, however, this is not so. For example, following parental failure and harm to a child's safety and welfare, it may be necessary to place him or her in foster care. I have referred to the large number of children in foster care, many of whom have been living with the same foster family for over five years, yet only 16 children in foster care were adopted in each of the years 2010 and 2011. We must ask why this is so. Currently, the High Court cannot authorise the Adoption Authority to make an adoption order unless it is satisfied that there has been a failure of duty by the parents towards their child, that this failure is likely to continue until the child is 18 years old and that the failure amounts to the parents giving up all rights towards him or her. Therefore, while it is already the case that a child in care may be adopted by his or her foster parents, in practice - as the figure I mentioned demonstrates - this happens to a very limited extent, in the most extreme of cases, as the test set out in existing law is difficult to meet. The proposed wording provides for the making of legislation to allow for adoption where it is in the best interests of a child in foster care owing to the serious and persistent failure of his or her parents, irrespective of their marital status. This change is about giving children in foster care a better opportunity of achieving the certainty and permanency which comes from living in a loving, caring family.

Last week I published the draft adoption legislation which the Government plans to bring before the Oireachtas on the passing of the referendum. This legislation has been the subject of much discussion and sets out, in detail, the conditions which will apply. The draft Bill requires that for foster carers to be in a position to adopt a child, the child's parents will have to have failed in their duty towards him or her for three years and have no reasonable prospect of resuming the care of the child. Furthermore, the child will have to be at least 18 months in the care of the foster parents who are applying to adopt. The draft Bill will outline the role of the High Court which must be satisfied that the parental failure constitutes an abandonment of parental rights. It must also be satisfied that adoption is the most appropriate way in which to provide for the parenting of the child. It must consider the constitutional rights of all parties, including the natural parents where they wish to be heard, but, ultimately, in the resolution of these proceedings the best interests of the child must be the paramount consideration for the court.

Sub-article 2.3° allows for the voluntary placement for adoption and the adoption of any child. This important change will bring to an end the current constitutional situation where children are treated differently on the basis of their parents' marital status. Under the current law, the only route to adoption for a child whose parents are married is for them to totally fail in their duties towards him or her. Even if married parents, for good reasons and with the best interests of their child at heart, decide on adoption as the most suitable means for the future care of their child, they cannot achieve this end by giving their consent.

Under sub-article 4.1° provision shall be made by law that in the resolution of all proceedings brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or concerning the adoption, guardianship or custody of or access to any child, the best interests of the child shall be the paramount consideration. This wording requires the best interests of the child to be the paramount consideration in critical court proceedings relating to a child, including proceedings taken by the State under the Child Care Act relating to child protection, as well as proceedings on adoption, guardianship, custody and access. The best interests principle is already well established in Irish statute law, including in the Guardianship of Infants Act 1964, the Child Care Act 1991 and the Adoption Act 2010. The referendum gives constitutional recognition to this principle. By so recognising it, it is strengthened when counterbalanced against other constitutional rights and principles that might arise in such proceedings. This provision will also ensure no future Government can repeal or dilute the existing legislation that makes the best interests of the child the paramount consideration in such proceedings.

Sub-article 4.2° is complementary and reads as follows:

Provision shall be made in law for securing, as far as practicable, in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child which shall be ascertained and given due weight, having regard to the age and maturity of the child.

Similar to sub-article 1°, the aim is to give recognition at constitutional level to the rights of children to have their views heard and given due weight in critical court proceedings in the areas of child welfare and protection, guardianship, custody and access.

While the amendment refers solely to critical court proceedings, my Department and I are equally committed to working with others in the development of legislation, policies or procedures to extend this "voice of the child" approach to other spheres of decision-making. Similar to "best interests", this principle is already recognised in existing child care and family law and will be included in further legislation in areas affecting children. These two provisions together will provide for real visibility of children in the Constitution and the decision-making framework of our judges.

The dark stain of child abuse and the failure of those in positions of power to protect children must propel us to listen to children and act in their best interests. On that day in the High Court, when the judge read the Constitution and made his decision in the Roscommon case, the only persons whose best interests could not be taken into account sufficiently were the children.

The constitutional change we propose will address the imbalance. This week coincidentally marks the 20th anniversary of Ireland's ratification of the United Nations Convention on the Rights of the Child, UNCRC. The UNCRC has been ratified by more countries than any other human rights convention, with only two countries not having ratified it. The principles of the UNCRC are clearly important and we have done much to act on those principles. Later this year I hope to submit Ireland's update report on the implementation of the convention to the UN. The change we are discussing today also forms part of the Government's ambitious programme of reform in child protection. We are reforming child protection laws through the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act, brought to this House by the Minister for Justice and Equality, Deputy Shatter, and the publication of Children First and National Vetting Bureau legislation and we are significantly reforming child protection services through establishing the new Child and Family Support Agency independent of the HSE. Each of the reforms is important but none can have the wide-ranging and permanent effect of constitutional change. That is why this referendum is so important. In essence, the referendum will help protect children from abuse and neglect, support families, treat all children equally and recognise children in their own right. I look forward to a positive debate on this important legislation and I commend the Bill to the House.

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