Willie Penrose (Longford-Westmeath, Labour) | Oireachtas source

I sincerely welcome the fact the Government has finally published the wording of the 31st amendment of the Constitution on children's rights. I compliment the Minister on doing so and on the publication of the Adoption (Amendment) Bill 2012, which facilitates the adoption of children born to a marital family but who are in long-term foster care, which I understand will be defined as being for a period of at least 36 months. This referendum will have a particularly significant impact in ensuring there are no inequalities between children when it comes to adoption. It is amazing the number of people I have met in the course of my professional life who were unable to recognise this distinction, but a number of articles that have appeared of late have been very useful in informing the public of this particular aspect of adoption.

The Minister has outlined a number of key objectives in the proposed constitutional amendment, including the protection of children and a focus on the "best interest" principle. The concept of "best interest" is already well known and illustrated in Irish law and was a core element of the Guardianship of Infants Act 1964 and the Adoption Act 2010. It is a well defined principle, but it is now being given the imprimatur of constitutional backing. Other core objectives are supporting families, the removal of inequalities in the area of adoption and the recognition of children in their own right. The voice of the child will now be heard, as circumscribed in the new Article 42A.4.2^o. This is important, notwithstanding the fact that in family law proceedings the voice of the child could be heard. Now, however, this provision will part of the bedrock of the Constitution.

Our Constitution is now 75 years in existence. It is the origin of the fundamental or basic laws of the State and guarantees a wide range and spread of personal rights. We must acknowledge that many rights have, through judicial interpretation, been expounded upon as a result of proceeding through the High and Supreme Courts and we must be grateful for the level of judicial activism that put flesh on many rights through the interpretation of constitutional law, our bedrock or fundamental source of law.

Children have rights under the Constitution, under Articles 41, 42, 43 and 44, which are the same fundamental rights granted to all ordinary citizens of the State. These rights are implicit. However, the conundrum arises when we examine the express constitutional provisions for references to children. It is only in Article 42.4, which concerns the provision of free primary school education, we find direct reference to children. We will leave aside for now the notion of free primary school education, which has never been as expensive as it is now. Those who say children are virtually invisible within the Constitution are broadly correct in their analysis.

The primacy of the nuclear family is defined in the Constitution and the special protection afforded the family under Article 41 remains firmly preserved and is not impacted upon by the insertion of this new amendment. This is as it should be. As parents, we are acutely aware that the rights of parents and children are always inextricably linked. This fact can be garnered from the UN Convention on the Rights of the Child, introduced in 1989 and adopted and ratified by us in 1992. The family is recognised as the fundamental grouping in society and as the natural environment for the growth and well-being of children. Parents have, therefore, primary responsibility for the upbringing and development of their child.

Article 18 of the convention affirms that the family requires protection and assistance to fulfil its responsibilities and places a clear duty on the State to support parents in rearing their children. Of course, children have a right to be cared for by their families and this duty places an onus on parents to which they have not always adhered. As we have seen from recent HSE performance monitoring reports, there are 6,282 children in the care of the State and 5,724 of these are in foster care.

A number of rights interpreted in the Constitution and originating in the umbrella Article 40.3.1^o are termed unenumerated rights, because they are not found directly in the wording. However, as stated previously, they have derived from judicial interpretation. In the absence of judicial activism, such rights might not have been found, and even when found, they are not absolute and can be limited or circumscribed by subsequent judicial decisions or by Government inspired legislation to restrict their application. I could mention 100 of these in the education area that I have come across in practice. Therefore, if a right is not expressed, it may not be found and if it is found, it can be subsequently circumscribed or restricted. That is the simple reason we need the amendment. There is no big hullabaloo about anybody interfering with a family or trying to rush in and take children away from parents.

We are all aware that children's rights are determined by the marital status of the child's parents. Therefore, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family. This is now a kind of stand alone provision. The new provision recognises explicitly that children have rights and that all children are equal. This, thereby, permits the balancing of constitutional rights where necessary. In other words, we are recalibrating the rights in a hierarchy. The principle of the paramountcy of the "best interests of the child" to guide court decisions when resolving disputes involving adoption, guardianship, custody or access and the acceptance of the principle of "hearing the voice of the child" in any judicial and administrative proceedings affecting the child will now have constitutional affirmation if this amendment is passed.

We are all aware of the background to the reasons this amendment is required. I will not recount these as they have been referred to by Deputies Ferris, Troy and the Minister. We are acutely aware of the failure of the State in numerous cases to intervene in a timely way, especially in cases of abuse and neglect. Therefore, it is vital it facilitates State intervention and thereby places an onus on the State to support families and adopt a proportionate State response to parental failure. The State must step up to the mark. We should acknowledge it has a chequered history with regard to where children are concerned. We cannot now just put down a marker and say that is the end of the matter.

The reformation of the adoption laws is an important step, with over 6,200 children in the care of the State and approximately one third of these children in long-term care for more than five years. Some of these have had little or no contact with their birth parents. The legislation that will be introduced once this amendment is passed will allow children in the care system who have been abandoned to be eligible for adoption if this is in the best interest of the child. Likewise, it will allow that children can be voluntarily placed for adoption, but with due safeguards to ensure that such a decision is not made under any coercion.

Recently, I read an excellent article in The Sunday Business Post by Dr. Aisling Parkes and Dr. Simone McCaughren, both lecturers and experts in their respective areas of law in UCC. This article expanded in a lucid and comprehensive way on what this referendum will mean to those in long-term foster care. It focused in particular on the fact that currently it is virtually impossible for children born to married parents who are placed in long-term foster care to be placed for adoption, despite obvious failures on the part of the parents in caring for the children. It also pointed out that unlike other children, such as those who grow up in their birth families or who have been adopted, these foster children are only afforded partial inclusion in family life and remain in a state of limbo.

Under the new adoption Bill, marital children will be eligible for adoption once they have been in foster care for a continuous period of 36 months preceding the date of application. The Bill provides as a protection that there must be no reasonable prospects that the child's birth parents will be able to care for the child properly so as not to impact negatively his or her safety and welfare. This provision will only apply in the exceptional circumstances outlined by the Minister.

Where children are capable of forming or expressing their own views, their voices will be heard and given weight in adoption cases.

That will depend on the age and maturity of the child. The evaluation will be predicated on what is in the child's best interests. I can do no better than to repeat the conclusion delivered by Dr. Parkes and Dr. McCaughren in their excellent article:

This referendum has the potential to change children's lives for the better by enshrining their rights in our Constitution. A constitutional provision that promotes the legal, emotional and social needs of all children who remain vulnerable in Irish society should be embraced.

All that remains for me to say is I hope the referendum will be passed and that the necessary resources will be provided to enable the Minister to achieve what is set out in the Bill and the constitutional provision it will introduce.

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