Martin Ferris (Kerry North-West Limerick, Sinn Fein) | Oireachtas source

My party welcomes the decision to call this referendum. My colleague, Deputy Ó Caoláin, was one of those who did tremendous work on the all-party committee on the proposed amendment and Deputy Adams is on record congratulating the Minister and everybody associated regarding the work that has been done on this proposed amendment.

The fact that there is almost universal support for the proposed wording is a tribute to the committee and, indeed, as with some other rare reports and issues, is testament to what can be achieved when all parties co-operate on issues that are not, or at least should not be, party political in nature. If there was ever an issue that is not party political in nature, it is the rights and entitlements of children, and fair play to everybody concerned.

We have noted publicly that the proposed text is not exactly that agreed by the committee and as a matter of course consulted our own legal advisers in regard to minor amendments which we and others feel may be necessary in order to come closer to the spirit of what was agreed at the committee. Deputy Ó Caoláin has tabled a number of amendments in that spirit which will be debated here. We are doing so in order to bring the wording closer to the wording favoured by the committee and to strengthen the protections that it is proposed to insert into the Constitution.

The amendment after line four is to restore the recognition of the need for equality between all the children of the State as was recognised by the original wording proposed by the committee two years ago. It also is in line with the republican ethos of equality for all citizens and the need to recognise children as full citizens, something which has not been the case over much of the history of the State. Tonight we continue last night's debate on the Magdelene Laundries and what happened the children who were put into institutions. They had no protection and no rights. We are cleaning up the mess where previous Governments, the political establishment and the State failed children so terribly in the past. That is what we are trying to do to ensure that there will be protection for children in the future.

The amendment to Part 2, to substitute the phrase "brought by the State" with "that the State is party to", is designed to tighten up the definition of cases involving children in which the State may be involved in any manner, and not just where the State might be the guardian where a child is in public care. The key concern must be to ensure that the State is clearly defined as the ultimate guarantor of the constitutional rights of children. That is essential to guard against any situation in which it might be argued in law that no one has any right to intervene where there is clear evidence of or a strong belief that children are being denied those rights.

Later this evening we will be return to the debate on my party's Private Members' motion on the Magdalene Laundries and the horrors that led to underline the dangers of a situation in which citizens, many of them legally children, were denied basic human rights. That is a legacy of a hopefully receding past, but one the consequences of which still need to be addressed in order to ensure justice for the survivors.

Of course, it could also be argued that at the time of the Magdalene Laundries and the industrial schools the State had abdicated its responsibilities in that regard and, in effect, privatised what was regarded to be a solution to a supposed problem of girls and women who were perceived to have offended against supposed social norms of morality. That underlines the importance of enshrining basic rights in the Constitution so that the protection of those rights are never subject to current prejudices or even political ideology, but are enshrined in law. That, indeed, is the purpose of a Constitution and the ability to amend that Constitution, as is proposed here, ensures that it can be brought into line with changing circumstances.

The ideological issue relates to the period in which Bunreacht na hÉireann was drafted. It contains many positive aspects and in the context of the time was not the uniformly reactionary document which some now see it as. There were genuine concerns about the role of the state in the 1930s when most of the peoples of Europe were under totalitarian rule of one form or another. Other European democracies did not have a constitution and that was seen as making them vulnerable to the erosion of rights.

Totalitarianism regards people not as free citizens of a state but as virtual state slaves, here only to do the bidding of the state. The concept of rights does not exist. However, the other extreme of claiming that the state ought to have no business in legislating in areas such as children rights, is equally flawed.

There are clearly circumstances where the rights of children need to be protected even against their own parents. We have seen in many instances where that was required and, unfortunately, will in the future require direct public intervention and in some instances the removal of children from dangerous family situations.

While most people appear on poll and other evidence to be satisfied with the proposed amendment to the Constitution, there are some dissenting voices. They deserve to be allowed state their case and their arguments need to be taken on.

One of the arguments in opposition is that the proposed amendment will give the State too much power and might even potentially lead to a situation in which the State would have tyrannical powers over parents and families. Examples have been given by opponents of children potentially being taken from their parents because a teacher, nurse or other person in contact with a child formed an opinion that the child was in actual or potential danger. There is a certain validity to that argument but it does not carry sufficient weight to counter the need for the provisions proposed. Professionals in contact with children need to be properly trained in the area of dangers to children and there ought to be safeguards against arbitrary and mistaken interventions. However, that is not a strong enough argument against what is proposed in this amendment. My party's advice also is that there is no danger, as argued by some of the more extreme opponents of the amendment, that the State will, in effect, become the ultimate legal guardian of all children.

Of course, we must also recognise that the State has a responsibility to improve its own dealings in the area of child protection. There is the historical legacy of the industrial schools and the Magdalene laundries, but also more recent and current shortcomings.

One of these is the situation of children in the care of the HSE. A worryingly large number of those children attempt or are successful in leaving HSE accommodation. At present, in the region of 200 children are officially under HSE care but are unaccounted for. That is not an acceptable situation. While there are clearly many factors involved, it is an area that needs to be further investigated to ensure that children are not disappearing into lives of great potential danger, including trafficking.

In conclusion, my party welcomes the decision to hold a referendum on children's right and sees it as a positive step for society. We look forward to debating our proposed amendments and to studying the provisions in the current wording. We are dealing with a terrible legacy and there are concerns regarding the State becoming the guardian of the child. The State must be the guardian of the rights of the child, not the guardian of the child, just as it must be the guardian of the rights of every citizen. If we as legislators can do anything towards improving the Constitution, what we do must concern protecting rights and ensuring the rights of children, senior citizens and everybody are protected. I look forward to the debate, but overall it is a welcome development.

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