Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein) | Oireachtas source

The term is often used but I am happy to say that, for me and, I am sure, for everyone else who is interested in the subject which lies at the core of this debate and that which will occur in the Seanad next week, this is an historic occasion. It is one that the children of Ireland have awaited far too long. I commend the Minister, Deputy Fitzgerald, on bringing forward a formula of words which, if passed, will provide a constitutional amendment acknowledging children's rights, as individuals in their own right.

We in Sinn Féin have called for children's rights to be enshrined in the Constitution for many years. It is our view that the minimum standard for children's rights within any state or legal system is the United Nations Convention on the Rights of the Child, UNCRC. This was the view we set out when the discussions around the enshrining of children's rights resumed in 2008. It was the view we held when the then Minister of State, the late Brian Lenihan, produced a formula of words. It was the view to which we adhered during the deliberations of the Joint Oireachtas Committee on the Constitutional Amendment on Children, chaired by former Deputy Mary O'Rourke. It it was the view we retained when former Minister of State with responsibility for children and youth affairs, Barry Andrews, produced a formula of words. The UNCRC must be the document which underpins all of our laws concerning children. As contributors to the wording that eventually received cross-party endorsement at the joint Oireachtas committee, we were pleased that although it did not directly incorporate the UNCRC into domestic Irish law, it did go some way towards including some of the core elements within it. I refer, in this regard, to the principle of equality between all children and that the best interests of all children be paramount in matters concerning them. While the words contained in the final report of the committee, which was published in February 2010, received cross-party support, it is regrettable - it would be a mistake on my part not to say so - that it did not find favour with all who have addressed this matter since.

The Thirty-first Amendment of the Constitution (Children) Bill 2012 does not mirror that wording. However, I acknowledge that it addresses some important issues for children in Ireland. If passed, the constitutional amendment will mean that the "natural and imprescriptible" rights of all children will be protected and vindicated. The precise constitutional meaning of those natural and imprescriptible rights is not clear, however. There is no accompanying legislation which sets out said rights but it is quite clear to anyone familiar with the Irish legal system and establishment that the Supreme Court will not interpret this to mean that the UNCRC will suddenly be part of domestic Irish law. The Bill does acknowledge that children do have rights and this is important. In my view this is a significant step on the road towards ensuring that children's rights, as set out in the UNCRC, will be incorporated into Bunreacht na hÉireann and will become binding upon the State. We in Sinn Féin do not view this amendment as being a panacea to rectify the myriad ways in which the State has failed to cherish all children of the nation equally. It is my opinion that the Minister also shares this view. Sinn Féin sees the amendment as the first step on the road towards incorporating the UNCRC into Irish law. We hope this will be achieved in due course.

This amendment does not do everything we would like it to but it does have the potential to rectify some of the legal barriers that have prevented the State from intervening in marital families where there is child is at risk or is being abused. The amendment will readjust the threshold for State intervention and place an onus on the State to support children and adopt a proportionate response to parental failure in order that cases such as the notorious Roscommon abuse case will not be allowed to happen again. It will also ensure that children who have, in very exceptional circumstances, been totally and utterly failed by their birth families and have been placed in the care of foster families and have formed loving family connections with their foster parents may be adopted by and become the legal children of the latter. It will further ensure that such children will be entitled to all of the rights and privileges which accompany that status. There are 6,000 children in the care of the State. Some of them have been in care for more than five years and have no contact with their birth parents.

The amendment will also accommodate those parents who are married and who, as a result of whatever unfortunate circumstances, may wish to place their children for adoption. While the State must do everything within its power to help keep families together and ensure that they are adequately supported, there will be those exceptional cases where this will simply not be possible. In such instances, the child or children must be given a second chance to experience a loving family relationship. This amendment will have no impact on the definition of the "family" under the Constitution. It will, however, permit the Oireachtas to legislate to allow abandoned marital children to be adopted if this is in their best interests. Under this constitutional amendment those children's best interests would be the paramount consideration for the courts. We cannot underestimate the power of this.

Our only criticism is that this particular constitutional provision means that the courts will not be required to view the best interests of the child as the paramount consideration in cases where there is not a guardianship, or custody or access issue in question. The provision is specifically drafted to exclude the courts from being required to consider the best interests of the child as paramount where the State is merely a party to a case. The provision is drafted so that the wording means that if, for example, a parent of a child with a disability takes a case against the State because she or he feels the latter has breached its duties under the Education for Persons with Special Educational Needs Act as a result of a lack of special needs assistant hours, the courts will not be required to examine what are said child's best interests.

I would have argued strongly for a much stronger affirmation of the rights of the child through the process of the all-party committee but I acknowledge that what we arrived at was, of course, a compromise of our respective positions and discussions over that long engagement. Further, outside of those guardianship and custody cases, the child will have no constitutional right to ensure that his or her own views are taken into account by the deciding court. It is restrictive in that it is quite particular, specific, in the areas in which this particular right will be provided for.

If this amendment is passed either in its current form or as amended in our debates over this and next week in the Houses of the Oireachtas, it is important that the Government gives a commitment that the necessary resources will be provided so that the rights provided to children will then actually be realised. It will be essential that the legal profession and Judiciary receive appropriate training on the new constitutional and legislative provisions.

I am happy to note that some of the principles of the UN Convention on the Rights of the Child, UNCRC, have been encapsulated in the Minister's text although Sinn Féin was disappointed with how narrowly they were drawn. This constitutional amendment will not directly affect most children. It will resolve the outstanding child protection issues and adoption issues for children in marital families, but for the child who is living in poverty, or who has had his or her special needs supports cut, or who is in need of additional educational supports to help them through the school year, this constitutional amendment will not address, let alone resolve, their situation. We must be clear about what this amendment does and does not do. Some will be disappointed that it does not go far enough and I would be one of those. Some will think it goes too far and I would like to address that view. I believe the vast majority of people will support this constitutional amendment and see it as a real progress and a strengthening of the foundations of our society. I wish to record that this is how I see it. It is the reason that I and my party will campaign in support of this constitutional change at the conclusion of the debate.

I have referred to other opinion. I have read some of the commentary of those who oppose this proposed constitutional change. As I said earlier, this amendment will have no impact on the definition of the family in the Constitution. I understand that there are people who will be concerned that this amendment will mean that there will be unnecessary levels of State intervention or that the parent will not be the rightful automatic carer of their children. I wish to state categorically that these arguments are false and potentially misleading. While I would like to see a constitutional amendment to change the definition of family in order to more accurately reflect the diverse nature of modern families, this particular proposition will not do so. It will neither alter nor weaken the constitutional family unit. The special protection afforded to the traditional family construct in Article 41, will not be damaged.

I call on the Government to ensure that it invests the required resources to inform people as to the reason for this referendum. It is of the utmost importance that false arguments are shown to be so because what is at stake are children's lives, end of story. Childhood does not last forever, and for far too long in our society we have seen generations of children grow up without their needs being met. If this constitutional provision is passed it will mean that the Irish people will have acknowledged that children have legal rights as individuals. It will be a constitutional acknowledgement that children have the right to be seen and heard, something they did not have in 1937 or since. It will be another important step forward to a new and enlightened attitude towards children. For several years and with what has seemed an almost six-monthly regularity, new reports have been published. Some are historical investigations while others are current and interim. I refer to the Ryan report, the Roscommon case, the independent child death review group reports, the inspections of the special care homes and the investigations into church dioceses. It has been a long and sorry litany. They have made for harrowing reading and we must all have felt ashamed. We have read the details of who knew of child abuse and when they found out and their failures to act. People have cried out: "Why did no one say stop?"

This constitutional amendment gives all voting citizens the opportunity to say "Stop". It is also about starting anew. This amendment is not perfect but it is a major step forward. We in Sinn Féin commend to the Government and to all Members our amendments to the proposed wording. We have tabled them to help make the wording as strong and comprehensive as possible. This referendum is a very real opportunity to make further tangible changes to children's lives in Ireland and it is an opportunity that may not present itself again for some considerable time. I appeal to the Government to look favourably and sympathetically at the proposals being made and to seize the moment and to make this proposed constitutional change the very best and most worthwhile possible. Whatever the outcome of our debate and deliberations over these couple of weeks, I am happy to confirm now that it is my party's intention to proactively participate in the commendation to the electorate of the 31st amendment of the Constitution.

See this speech in context