Brendan Smith (Cavan-Monaghan, Fianna Fail) | Oireachtas source

I welcome the Thirty-First Amendment of the Constitution (Children) Bill 2012. Immediately after its publication, the Fianna Fáil Party stated clearly that we fully support the referendum and will campaign strongly for a "Yes" vote. My colleague and party spokesperson on children, Deputy Robert Troy, has submitted three amendments which we believe will strengthen the proposed wording. Throughout this debate, my party will take a totally constructive approach to this important issue both inside and outside the Oireachtas. The amendments we have tabled have the capacity to strengthen the provision and afford greater protection to children.

I am particularly glad the referendum will be held on its own and will not coincide with other referendums or elections. As I outlined approximately one year ago in the House and in conversations with the Minister, it would not be advisable to put this important question before the people alongside any other referendum or election. The Taoiseach had suggested in early 2011 that the referendum could be held with the presidential election of October 2011 or alongside other referendums. I am pleased this has not occurred and that only one issue will be put to the people. This issue is of such importance that unrelated issues should not be brought into the debate.

We had plenty of commentary, not all of it accurate, both inside and outside the House about the delay in finalising the wording of the referendum and putting the proposal before the people. Regardless of which party or parties comprised the Government, I have always advocated the need to achieve the best and strongest possible wording to ensure the basic rule of law of the country - namely, the Constitution - can facilitate the necessary legislative measures to achieve the objectives of all Members of the Oireachtas.

Substantial work has been done over a number of years by many people in public life, non-governmental organisations and the public and Civil Service to prepare for a referendum. In noting the substantial improvements that have taken place in rolling out services for children, I do not underestimate the major deficiencies that remain in this area. The Minister for Social Protection, Deputy Joan Burton, referred to the unfortunately large number of cases involving abuse of children and a failure to protect their rights. All of us recall being shocked and horrified at these reports. I recall my late colleague, Mr. Brian Lenihan, stating that we should not underestimate the major responsibility that rests on all of us who seek to strengthen the position of the child in our Constitution. The burden of persuasion in any referendum is a heavy one and all the greater when the proposal relates to the delicate and intimate relationships that exist between child, parent, family and State.

The fundamental law of the land, Bunreacht na hÉireann, should reflect our commitment to value and protect childhood. Provision must be made in our Constitution for children to be protected from maltreatment, neglect or abuse. The Constitution must require that we protect the welfare of the child and enable us to implement the necessary legislative measures to achieve these objectives.

For many years, there have been justified calls from many quarters to strengthen children's rights, including calls for an amendment to the Constitution to reflect the rights of children. In 1996, it was recommended in the report of the Constitution Review Group that the Constitution be amended to include the welfare principle and provide an express guarantee of certain other children's rights deriving from the United Nations Convention on the Rights of the Child. In January 2006, the All-party Oireachtas Committee on the Constitution recommended in its review of the articles dealing with the family that a new section be inserted in Article 41 dealing with the rights of children.

In September 2006, the then Minister of State with responsibility for children, Deputy Brian Lenihan, led the Irish delegation at the United Nations committee hearing on Ireland's second report on the implementation of the United Nations Convention on the Rights of the Child. The committee expressed concern that some of the recommendations that had previously been made had not yet been fully addressed, particularly those relating to the status of the child as a holder of rights. The then Taoiseach stated later in 2006 - I believe it was in November - that a referendum on children's rights should take place. The Minister of State was asked to initiate a process of consultation and discussion with the other Dáil parties and all relevant interest groups with the aim of achieving consensus on the wording of an appropriate constitutional amendment. My understanding is that an extensive round of consultations was held, and the Twenty-Eighth Amendment of the Constitution Bill was published in February 2007. The Bill proposed a wording to amend the Constitution in respect of children's rights.

That particular Bill sought to repeal Article 42.5 of the Constitution and insert a new Article 42A. The proposed text incorporated several separate proposals covering areas such as the imprescriptible rights of the child, adoption, collection and exchange of information on persons who are a risk to children, and absolute and strict liability for offences against children.

The electoral cycle had moved on and the programme for Government agreed in June 2007 included a commitment to "establish an all-party committee to examine the proposed constitutional amendment with a view to deepening consensus on this matter". The power to change our Constitution rests with the people alone and sovereignty rests in the people. Time and again, the people of our State have demonstrated their strong attachment to the Constitution. Proposing an amendment to the Constitution puts an onus on all of us to ensure the appropriate wording is presented. It goes without saying we all want to see the best possible safeguards and protection for our children.

Substantial and long overdue legislation has been enacted, particularly since the late 1990s, including the Protections for Persons Reporting Child Abuse Act 1998, the Sex Offenders Act 2001, the establishment of the Garda central vetting unit in 2002, the Child Trafficking and Pornography Act 1998, the Children Act 2001, the Protection of Children (Hague Convention) Act 2000, the Children Act 1997, the Adoption Act 2010 and the publication of the revised Children First guidelines in December 2009. Those various legislative measures were brought before the Oireachtas by Ministers of different political parties over the years. It also showed the significant deficiency in the legislative base in this area. Another important development was the establishment of the Office of Ombudsman for Children. This officeholder is not appointed by the Minister or the Oireachtas but by Uachtarán na hÉireann, which denotes the status and the importance of the work this office and its officials do.

I served briefly as Minister with responsibility for children's affairs in 2007 and 2008. In October 2007, I advised Dáil Éireann that it was intended to establish a Joint Committee on the Constitutional Amendment on Children to further the proposal to amend the Constitution in respect of children's rights. I believe the establishment of this committee was another important step towards ensuring the legal framework adequately values, respects and protects the rights of children. The then Government was adamant that the terms of reference meet with the agreement of the Opposition parties. I worked with the then Fine Gael spokesperson on children's affairs, Deputy Shatter, the then Labour spokesperson on constitutional matters, Deputy Howlin, and Sinn Féin's spokesperson, Deputy Ó Caoláin, on agreed terms of reference. The launch of this committee was the culmination of a great deal of deliberation, discussion and agreement both inside and outside the Oireachtas. From the start, I emphasised very clearly the absolute need to deepen consensus on the matter. There was constructive dialogue, deliberation and work among all committee members. The committee had a very tight timeframe to report back to the Oireachtas, and it quite rightly sought extensions on several occasions to continue its work.

The terms of reference of the committee did not confine its deliberations to Oireachtas Members. Provision was made for both oral and written submissions to the committee to ensure an input from people working outside the Oireachtas. Current Ministers including Deputies Noonan, Fitzgerald, Shatter and Howlin were members of the committee, as well as other Members who are now retired. All contributed to an area of significant complexity, as was evident from those outside groups that presented to the committee. The Minister for Finance, Deputy Noonan, earlier paid tribute to the chairman of the joint committee, Ms Mary O'Rourke. I want to pay tribute to all committee members for their enthusiasm and diligence, as well as their commitment to ensuring the best possible protection for our children in this State.

I commend the Minister for Children and Youth Affairs, Deputy Fitzgerald, on her work. I welcome the publication of the Bill and the holding of the referendum in early November. Fianna Fáil will be strong advocates of this amendment. I also want to pay tribute to the Minister's predecessor, Barry Andrews, who did enormous and positive work in contributing to this proposed amendment.

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