Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

I thank the Minister. Last Wednesday was an important day in the history of the State, a day which finally saw the publication of the wording for the children's referendum - the 31st amendment to the Constitution. I warmly welcome the fact this day has finally come. The people of this country now have an opportunity for a national debate on enshrining the rights of children in the Constitution. As we begin this debate it is important to question and to seek clarification on certain issues in order to satisfy ourselves that we are inserting the best possible wording into the Constitution. In light of that, we have tabled a number of amendments which we feel will enhance and strengthen the wording. I will outline my rationale for the amendments later in the debate. We hope the Government will give them due consideration.

I acknowledge the work that has been done in publishing the wording and securing a date for a referendum. I commend the work carried out by the Minister, Deputy Fitzgerald, and her Department in the past 18 months, which has continued the good work initiated by her predecessors. The development of child welfare and protection is not something that has only begun in the past 18 months, as some would have one believe. In that context I wish to place on the record of this House some of the good work that was carried out in the past decade and prior to that. The Child Care Act 1991 sets out the responsibility and duties of the Health Service Executive, HSE, towards children. It places a legal obligation on the HSE to promote the welfare of children who are not receiving adequate child care or protection and requires that "the best interest of the child" be considered in all matters affecting their welfare. It places the emphasis on prevention, early intervention and family and community support, with the removal of the child being a last resort. The Children Act 2001 is the main piece of legislation governing children within the criminal justice system. It focuses on preventing criminal behaviour, diversion from the criminal justice system and rehabilitation. The Ombudsman for Children Act 2002 provided for the establishment of the Office of the Ombudsman for Children. The Ombudsman for Children must promote the welfare and the rights of children, including advising the Minister on the development and co-ordination of policy relating to children. Information systems and accountability within the HSE have been improved through the national child care information system. The Ryan report implementation plan was developed and €15 million was allocated to it. A total of 256 additional social workers were provided as part of the plan. Their recruitment was exempt from the moratorium on public service recruitment.

The original commitment to hold a referendum on children's rights was given more than five years ago. It is disappointing that it has taken this long to come to fruition. The former Minister, the late Brian Lenihan, introduced an amendment in 2007 but at that time it was decided to refer it to an all-party Oireachtas committee chaired by my former colleague, Mary O'Rourke. No one knows better than the Minister the sterling work carried out by the committee to ensure consensus on an all-party basis. In fact, many of her Cabinet colleagues know that to be the case as they were also members of the committee. In her speech the Minister, Deputy Fitzgerald, alluded to the fact that the committee of which she was a member had met on 64 separate occasions. My colleague on my right, Deputy Caoimhghín Ó Caoláin, the Sinn Féin spokesperson on children, was also a member of the committee. Extensive work was done by the committee which culminated in an all-party agreement with the final report being brought before the Houses of the Oireachtas in February 2010. At the time the former Minister of State with responsibility for children, Barry Andrews, worked on putting forward wording for a referendum. The wording was finalised by the Cabinet in January 2011 but, as we are all aware, the Government fell and it was unable to hold a referendum.

It is wrong to say that no work was done, but it would also be wrong not to recognise that much more work remains to be done. That is borne out when one considers the publication of the 17 horrific reports that were published detailing the failure of the State to protect the children of the State from abuse by families and religious congregations. A constitutional change will bring many benefits but it is not panacea, and without appropriate funding it is mere window dressing. I was pleased to hear the Minister's colleague, the Fine Gael director of elections outline on "The Week in Politics" on Sunday night that this constitutional and legislative change alone will not guarantee child welfare and protection. He correctly stated, as I have done on numerous occasions, that the changes must be matched by a commitment to additional funding. Prior to the referendum campaign getting into full swing we must be informed that the Government is prepared to underpin the new rights it is seeking to establish for children in the Constitution with the necessary resources. The Minister must outline the requirements for additional resources. She must come into this House and itemise provision by provision where additional resources are required and commit to delivering them. Could she advise how many additional social care workers will be provided? In addition, could she outline whether it is her intention to maintain the foster care allowance for foster carers who adopt the children in their care? Funding is crucial. That is apparent from a reply I received last week detailing that the percentage of children in foster care and institutional care without a social worker has increased in the past 18 months. Therefore, it is imperative that a commitment on resources is forthcoming. I accept that we are in difficult economic times. However, on the implementation of the Ryan report the previous Administration sanctioned 256 additional social care workers at a time when there was an embargo on recruitment in the public service. When one talks to front line staff they express the wish to see the aspirations of the referendum matched by the required resources.

The question has been asked as to whether there is a need for a referendum. We agree with the Government, and have always agreed, with the need for such a referendum. This is a constitutional provision that will protect the legal, emotional and social needs of all children in this country. The need for this constitutional change was first voiced by Mrs. Justice Catherine McGuinness in 1993.

Her report in the Kilkenny incest investigation found that the strong emphasis on the rights of the family in the Constitution may, consciously or unconsciously, be interpreted as giving higher value to the rights of parents than to those of children. Mrs. Justice McGuinesss presented her report to the then Minister, Deputy Brendan Howlin, in 1993. This matter has been ongoing for a long period and although many changes have been made through legislation this referendum was long promised and is long overdue. I welcome it today.

In July, the Government's special rapporteur on child protection stated there is no current provision in the Constitution to protect children as autonomous individuals, that their rights are an after-thought and, as such, invisible. Article 41 of our Constitution recognises the family as the natural, primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. I welcome that this referendum does not seek to diminish the role of the family. By inserting Article 42A, thereby enshrining the rights of children, we would recognise the importance of the family and, at the same time, balance that importance with the importance of our children. The courts will now have to balance the rights of the individual and the rights of the family, as both sets of rights are constitutionally guaranteed.

The new Article 42A.1.1° states: "That 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." This is a very specific statement which recognises that all children have natural and imprescriptible rights. The amendment leaves it to the courts to determine those rights. The article applies to all children who live in Ireland, irrespective of whether they are citizens. It also applies a set of distinct rights that will apply only to children.

My party's amendment seeks to replace the word "shall" with "guarantees" as we believe this will strengthen the article. The amendment proposed in the draft Article 42A.1 should be amended so that it is consistent with the constitutional protection given to citizens under Article 40.3.1°. That article provides that the State guarantees, as far as practicable, by its laws, to protect and vindicate the personal rights of the citizen. Fianna Fáil believes a similar level of protection should be afforded in a new article in regard to children which would state: "That the State recognises and confirms the natural and imprescriptible rights of all children and guarantees as far as practicable, by its laws, to defend and vindicate those rights." These amendments will ensure that the same protection is afforded to children as is referred to in Article 40.3.1°. We believe this is necessary and appropriate because it is likely that the courts will interpret children's personal rights as being protected by Article 42A rather than by Article 40.3.1°.

The proposed Article 42A.2.1° states that in exceptional cases where the parents, regardless of their marital status, fail in their duty towards their children to such an extent that their safety or welfare 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 to the natural and imprescriptable rights of the child". This would replace the existing Article 42.5 and insert the phrase, "regardless of marital status", thereby removing the current discriminatory distinction between children of married and non-marital families.

We propose another small amendment and again do so to try to strengthen the wording. The amendment is to the effect that intervention in exceptional cases, as provided for in Article 42A.2.1°, should be clarified to correspond to the statutory protection afforded to the child under the Guardianship of Infants Act 1964 and the Child Care Act 1991, which refer to the health, development and welfare of the child. Our proposal is that this be mirrored in the constitutional protection and that it merely be broadened in order to correspond with the Guardianship of Infants Act 1964 and the Child Care Act 1991.

The proposed Article 42A.2.1° is largely similar to Article 42.5 in that it emphasises that intervention may only take place in exceptional cases, which is the case under the current Article 42.5. Unfortunately, in a minority of instances the best interest of the child is not served by remaining with his or her natural family and in those cases we are duty bound and the State has a moral obligation to replace the family and provide the care needed. The State must ensure that all possible supports and resources have been made available to the family prior to removal of the child and that this action is undertaken only as a last resort. The former governor of Mountjoy Prison, John Lonergan, was quoted in a newspaper at the weekend as stating that if the State is serious about vindicating children's rights it must be serious about resourcing and supporting children to ensure their lives do not fall into crisis. I acknowledge that the establishment of the Child and Family Support Agency is a move in the right direction in this regard.

According to the proposed Articles 42.A.2.2° and 42.A 2.3°, respectively: "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..." and "Provision shall be made by law for the voluntary placement for adoption and the adoption of any child." This wording introduces adoption into the Constitution for the first time. The article is an enabling provision and provides for the adoption of children who have been failed or abandoned by their natural parents. It also provides for the voluntary placement of children for adoption regardless of their parents' marital status.

I am glad the Minister followed my advice and published the draft legislation in conjunction with the wording for the referendum. Will she clarify that the draft we see before us is what will discussed if the referendum is passed? On previous occasions draft legislation, as published, has changed by the time it comes for debate before the Oireachtas. It is important that the Minister gives a clear commitment that what we see today is what we will see if the referendum is passed. Perhaps she might give an indicative timeline for the passage of the legislation through the Oireachtas.

This is an extremely important element of the referendum and the accompanying legislation should receive priority as it will afford very many children the opportunity of a second chance in life. I understand that at present there are approximately 1,600 children of married parents in foster or institutional care. They are living in limbo. According to current provisions, the child must have been abandoned for 12 months and must prove continued abandonment extending to the age of 18. This is virtually impossible. As a result, children are being left in long-term foster care with the prospect of spending all their childhood in this situation. Foster carers are not legal guardians and many simple decisions, even one as small as taking a family holiday, cannot be made without the consent of the HSE. The child who is welcomed into the family unit and brought up by a foster family has a different surname. This is far from ideal.

The wording in the draft Bill as proposed under the new adoption legislation states that marital children will be eligible for adoption once they have been in foster care for a continuous period of 36 months preceding the time of the application, and have been living with the prospective adoptive parents for at least 18 months . The Bill also states there is to be no reasonable prospect that the child's birth parent will be able to provide for the child. It is important to point out that involuntary adoption will affect a very small number of children in our country and only in exceptional circumstances. It will have to be proved that the parents in question have failed in their duty towards their children to such an extent as to constitute abandonment of the children's rights.

Heading six states that children, in all adoption cases where they are capable of forming views, will have their views heard in accordance with the age and maturity of the child. How will that be done? It is vague, and the issue of resources will apply.

Legislation on adoption is an extremely important aspect of the referendum. An article by Olivia O'Leary in last Sunday'sedition of the Sunday Independent gave a harrowing account of many young children crying out in the night for their mothers, in need of a loving home and a second chance, when many couples who cannot have a child of their own would sacrifice so much to offer a child a warm, loving, affectionate stable home. We must see far greater detail on adoption legislation and when it comes before the Oireachtas we will have a greater opportunity to debate it at length. I have some questions in regard to it. What level of counselling will be available for parents who wish to place their children for adoption? Will the adoption board be given additional resources to deal with these new situations? When will the Minister detail the way the new proposals will operate? How many foster care children qualify for adoptions? Will parents who adopt maintain the foster care allowance?

In referring to adoptions, the Minister gave a commitment previously to bring forward legislation on information and tracing. When will that legislation be forthcoming as we are one of the few countries in the western world not to have such legislation in place?

I will not read the new Articles 42A.4.1 and 42A.4.2 into the record as my time is limited but both articles are enabling provisions where we will have to bring forward legislation. When will that legislation be brought forward? Has it been drafted yet? Will the Minister indicate a timeframe for it to come before the Oireachtas?

In recent days the Minister will have heard two voices expressing concern about these articles. On "Morning Ireland" last Friday, David Kenny, an assistant professor of law in Trinity College, said that some clarification should be made in the language used to enshrine the consideration of the best interests of the child in Article 42A.4. He is worried that the Bill does not go far enough to protect the interests of the child, in particular in cases of where guardianship is contested between adoptive and natural parents.

I am sure the Government wishes the child's interests to be the paramount consideration in matters of adoption, custody, guardianship etc., and the amendment commands that this be placed in law where appropriate. It seems clear that while family interests may be regarded in such determinations, what the Government wishes to achieve is a situation where the best interests of the child, assessed independently of other interests,are the primary concern. Family and other interests would then be considered separately.

The problem is that the phrase "best interests" is not new to Irish law. For instance, section 3 of the Guardianship of Infants Act 1964 states that the best interests of the child shall be the "first and paramount consideration" in matters of guardianship. However, the courts have interpreted this phrase in a way that does not necessarily put the independent interests of the child first. The courts have ruled that, in light of the Constitution's very strong protection of the marital family, the best interests of the child presumptively lie with the marital parents.

The leading cases on this point, interpreting best interests in the 1964 Act, are Re J [1966] IR 295; Re JH [1985] IR 375; North Western Health Board vHW & CW [2001] 3 IR 622, which are the most well-known, certainly to me; and N vHealth Service Executive & Other [2006] 4 IR 374, otherwise known as the baby Anne case. I seek clarification that this may lead to a situation where even though the best interests of the child are nominally the central consideration, in reality these are rendered subservient to the interests of the marital parent. One has to show very strong evidence that the child is not best served by its marital parents before this presumption can be shifted.

I believe the Government hopes that this judicial reasoning would be reconsidered in light of the new constitutional language. That may happen, but I do not believe it is guaranteed. The protection of the family in Article 41 will remain after this amendment has been passed, and it would be open to the courts to retain this interpretation of best interests in light of that. If a presumption operates in this way, the best interest of the child are not being independently considered, as I believe the Government would like to see happen. This is not a certain result and the Government's intended outcome could come about. I am simply not certain that this will be the case and I ask the Minister to clarify it. This is particularly the case given that the proposed amendment will not alter Articles 41 and 42 of the Constitution except in so far as it repeals Article 42.5 and inserts a new Article 42A.2.1.

In yesterday's The Examiner, Dr. Conor O'Mahony, a lecturer in constitutional law at UCC, raises a similar point. He states:

One of the reasons that this amendment is being put forward is that existing legislation, which already provides for the best interests principle and the right to be heard, has been found to be ineffective due to the overarching influence of the constitutional protection provided to the family in Article 41. In the hierarchy of laws, the Constitution takes precedence over legislation, and legislation falls to be interpreted in light of the Constitution.

I quote those two independent experts to reaffirm some of my own doubts.

I seek clarification also regarding cases not brought by the State for the safety and welfare of the child where the voice of the child should be heard. I do not know if the Minister read it but a case was brought to my attention this morning involving an article in yesterday's edition of The Irish Timeswhich suggests that such cases would not be automatically entitled to the fourth proposal because the parents, and not the State, are bringing forward the case. Is that the Government's intention and, if so, what is the reason?

I appreciate the Minister will not answer this question today but it concerns a judgment delivered on 3 July 2010, KA vHealth Service Executive and Others. In that judgment it appears that where the State is not bringing forward the case, cases are not automatically entitled to the fourth proposal. That is worrying. I am sure the Minister will clarify if that is the Government's intention and, if so, give the reason.

At the outset I said we will support this referendum. I look forward to working with the Minister, all Members of the Oireachtas, the members of the Children's Rights Alliance and the various children's rights groups in a positive manner to ensure that we convey the true message about this referendum but we must be honest and up-front with the people. It is not a panacea. It will not fix everything. I hope the Minister responds to the issues I raised.

The issue of resources is critically important. I accept that what is proposed is a constitutional change but legislative changes were made in the past and reports detailing horrific events have continued to emerge. Without adequate resources and staff being put in place, what is proposed will be mere window dressing.

I have already referred to the adoption legislation, what is in the best interests of children and also children's right to be heard. In addition, I spoke about cases not being brought by the State. The most important aspect of the referendum will relate to eventual implementation. I look forward to working with Members on all sides in order to ensure that every child in this State will get what he or she deserves, namely, a loving and meaningful childhood.

See this speech in context