Barry Cowen (Laois-Offaly, Fianna Fail) | Oireachtas source

Like many other speakers I congratulate the Minister, Deputy Fitzgerald and her staff on this momentous occasion. She has brought forward a wording which has been deliberated upon for many years by her predecessors and by Oireachtas joint committees. I welcome the wording of the amendment and the decision to hold the referendum on a Saturday which ensures that everyone in the State will have an opportunity to participate in the vote. I hope there will be full participation in the debate over the coming weeks.

The wording is similar to that proposed by Barry Andrews and agreed by the previous Government in January 2011. Significant progress has been made, despite many contentions to the opposite, in recent years. The rights of children have been enhanced through legislation such as the Children Act 2001 and the Child Care Act 2007.

I wish to acknowledge the work of former Ministers with responsibility for children, Barry Andrews and Brian Lenihan. That this proposed wording has achieved cross-party consensus is a tribute not only to the Minister but to all those across the political divide who were members of the previous Oireachtas joint committee chaired by Mary O'Rourke. There is universal approval for the measure before the House, which will be put to the people. It is right, however, to examine the failings of the State in the past and more important, seek to rectify the wording in the Constitution to ensure the many failings recognised in such damning reports are not repeated in the future.

A few points keep re-emerging and which were to the forefront of the minds of everyone who, in the past, sat down with a view to rectifying this situation in the Constitution. The aim is that all children, both from marital or non-marital relationships, are treated the same. The voice of the child must be recognised in the Constitution. A welcome provision is that children are to be treated equally with regard to adoption. This is a very welcome development in addition to the wording and it is vital that it is dealt with alongside the amendment to the Constitution.

Having witnessed these damning reports we have a duty as legislators and parliamentarians to give the electorate the opportunity to make this amendment, based on the best expert advice and opinion that has been used, through the leadership of the Minister. The amendment must ensure that the State takes responsibility and responds in a timely fashion to protect children who are being abused or neglected. It must ensure that the State takes responsibility and will never again stand idly by and allow troubled children to fall through the net and end up in prison and on the streets. It must ensure that children are never discriminated against again. It must ensure that in any legal or judicial setting where the future welfare of a child is at stake, the best interests of that child are paramount.

We accept that the children's rights referendum is not necessarily a panacea for all child protection issues but there are some immediate and substantial differences which it will bring about. It will allow for hundreds of children in long-term foster care to be adopted by their foster parents, something that until now has not been possible. I commend Deputy Jim Daly and I acknowledge his commitment in his capacity as a foster parent. I pay tribute, as did both he and the Minister, to all those who take it upon themselves to nurture and develop the minds of children who have not had the same opportunities as many of us. That is a most commendable trait in any person. Expending effort in so many ways, financially and emotionally, for someone else's child, is a significant service to the State which must be recognised. I am pleased that the proposed amendment contains the options for this service to be formalised in an adoptive nature in the future.

The Children's Rights Alliance notes that currently more than 2,000 children in long-term foster care will be affected by this proposal.

As Mr. Geoffrey Shannon, the Government's special rapporteur on child protection, said this week, this amendment will help to prevent a situation where children are drifting rudderless in the welfare system and will allow hundreds of children in long-term foster care to be adopted. We hope the referendum will end the legal limbo in which hundreds of child find themselves and which hundreds more will face in the future unless the Constitution is changed to allow for the adoption of marital children. These are points we hope to reiterate at every given opportunity to ensure the public understands absolutely that these amendments to our Constitution can only improve the lot of the children we seek to protect.

Under the proposed amendment, married parents will be allowed to place their children for adoption. This is about giving all children equal rights regardless of the marital status of their parents. It is not about removing children from their families and putting them into care. The objective is to ensure that children in the care system are no longer left to drift but are instead given a second chance. Mr. Shannon has articulated his view that this will not lead to a situation where larger numbers of children go into the care system. Instead, it will ensure the right children are brought into the system, which is precisely what matters most.

One only has to consider the work of the Office of the Ombudsman for Children to see how children's rights are absent from decision making across a wide range of public bodies. In a report published by that office in April 2011, entitled A Children's Rights Analysis of Investigations, ten investigations by the office in recent years were reviewed from a children's rights perspective. These cases concerned school transport, local authority housing provision, special needs provision, Health Service Executive provision for alternative care and the handling of a child protection complaint. Several common themes emerged in these investigations, with all of them showing that children appear to be largely invisible in decision-making processes which affect their lives and that decision making by public bodies often was not informed by the impact on children or what was in their best interests. In short, decisions taken and how the decision-making process was handled were not informed by children's rights principles. It is amazing in this day and age, despite all the warning signs and all the damning reports, that arms of this State can make decisions without taking into consideration the basic rights of children. The report stressed the need for an amendment to the Constitution based on the principles of the United Nations Convention on the Rights of the Child.

Fianna Fáil considers the proposed amendment to the Constitution as a welcome addition to the legislation already in place to protect the welfare of children. Various items of legislation introduced in the Dáil in recent years were welcome in so far as they went, but they did not complete the package as this proposal will do. As such, we congratulate those involved in bringing the proposal to this stage. Our decision to submit amendments is based purely on a desire to strengthen the proposed wording as much as possible. It is not an attempt to take from what is before us or to deflect from the effort and commitment attached to the achievement of having brought the proposal before the House. It would be commendable of the Minister to assess our proposals on their merits. To reiterate, we fully support the Government proposal and will campaign for a "Yes" vote. Nevertheless, we are of the view that the proposed wording could be amended slightly to afford even greater protection for children.

Specifically, our proposal is that the draft Article 42A.1 be amended to make it consistent with the constitutional protection afforded citizens under Article 40.3.1. The latter provides that, "The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen." A similar level of protection could be afforded in the new article concerning children by amending the proposed wording to read as follows:

The State recognises and affirms the natural and imprescriptible rights of all children and guarantees, as far as practicable, by its laws to defend and vindicate those rights.

This configuration would ensure the same protection for children as is provided to the citizen in Article 40.3.1. This is necessary and appropriate since it is likely that the courts will interpret children's rights as being protected by the new Article 42A.1 rather than Article 40.3.1.

Our second amendment proposes that the exceptional cases intervention provided for in Article 42A.2.1 be clarified to correspond with the statutory protection afforded to the child under the Child Care Act 1991, which refers to the "health, development or welfare" of the child. It is proposed that this be mirrored in the wording of the constitutional protection. For the same reason, Fianna Fáil proposes, in its third amendment, that Article 42A. 4.1(i) be amended by replacing the reference to the "safety and welfare of any child" with a reference to the "health, safety, development or welfare of any child".

I ask the Minister to give careful consideration to our amendments. I conclude by commending her once again on the work she has done to bring this proposal to the House. I hope she will be rewarded by way of a resounding "Yes" vote by the electorate. I thank other speakers for the insight and personal experience they brought to bear in their contributions. If this Dáil were to achieve nothing other than the successful passage of this proposal to include specific rights for children in the Constitution, it will have been a good Dáil.

See this speech in context