Dan Neville (Limerick, Fine Gael) | Oireachtas source

I wish to share my time with Deputy Michael Creed.

I welcome the opportunity to contribute to the debate and congratulate the Minister for Children and Youth Affairs on how quickly she has brought this process to referendum stage, as promised. In the referendum we are asking the people to expressly recognise children in their own right within the Constitution. It is important that every child enjoy certain rights. He or she deserves protection from the State by virtue of the fact that, as a child, he or she is vulnerable.

It is important to view the matter in perspective. In 2011 in excess of 30,000 child welfare concerns were reported to the welfare services. Where children are in difficulties, it is important that family and parental supports to overcome such difficulties are available. No sparing should be made in the provision of these facilities. It is frightening that last year some 1,500 welfare cases concerned sexual, physical or emotional abuse.

We are asking the people to support a change to the Constitution to ensure children are protected and families supported, that inequalities in adoption are removed and that the State, through the Constitution, recognises children in their own right. We are asking the people to support the referendum to ensure children at risk are protected from harm and that a system allowing for intervention to take place is set out focusing on the child and referring to the impact of parental failure on child safety and welfare. By voting to pass the referendum, the people will reaffirm and underpin the commitment to early intervention and the development of family support services, which are vital to respond to child welfare concerns. This will prevent more serious problems from arising within the family and, therefore, protect children in the home and prevent them from being taken into care when a more serious problem develops.

The passing of the referendum will provide the legal framework for adoption of any child, irrespective of his or her birth status. This will give an opportunity for children in foster care to be adopted where it is in their best interests and it will give foster families the opportunity to enjoy full parental responsibility and succession rights for adopted children. The Government has published proposed legislation to amend the existing adoption law to facilitate children in clearly defined circumstances. Such cases include children who have been reared by foster parents and who have been with them for a considerable period and where there has been a failure by their parents to look after them.

The inclusion of a provision for children in the Constitution has been called for since the Kilkenny incest investigation in 1993. This call was repeated in the Constitution review group report of 1996 and the 2006 report of the All-Party Oireachtas Committee on the Constitution, of which I was a member. In the report on the Kilkenny incest investigation of May 1993 Mrs. Catherine McGuinness, senior counsel, stated:

While we accept that the courts have on many occasions stressed that children are possessed of constitutional rights we are somewhat concerned that the "natural and imprescriptible rights of the child" are specifically referred to in only one sub article (Article 42.5) and then only in the context of the State supplying the place of parents who have failed in their duty.

She further stated:

We believe that the Constitution should contain a specific and overt declaration of the rights of born children. We therefore recommend that consideration be given by the Government to the amendment of Articles 41 and 42 of the Constitution so as to include a statement of the constitutional rights of children.

The Joint Committee on the Constitutional Amendment on Children, of which I was a member, was established by resolution of the Dáil and the Seanad on 22 November 2007. I found the deliberations rather detailed, legalistic and most efficient under the chairmanship of Mrs. Mary O'Rourke and the vice chairmanship of Deputy Michael Noonan. The committee also included the current Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, and the Minister for Justice and Equality, Deputy Alan Shatter. It met on 62 occasions during more than two years of deliberations. It met in public session on 15 occasions and in private session on 47 occasions. Its clear recommendation was that the proposal for an amendment to the Constitution to enshrine and enhance the protection of the rights of children should be submitted by referendum to the decision of the people. The final report was published in February 2010 and addressed the need to strengthen the rights of children.

The committee was concerned that in certain cases the current constitutional framework created a difference in treatment between children of marital and non-marital families. This inequality arises particularly when a court is called on to resolve an issue pertaining to the guardianship, custody or day-to-day care of a marital child in a dispute between parents and third parties. The committee was of the view that children of marital parents were less protected from harm within the family than children of non-marital parents. It pointed out that there were still some difficulties with the treatment of children based on their parents' marital status. Aside from this, an unmarried mother cannot seek maintenance for her personal support and, therefore, is not likely to be in a position to choose to remain at home on a full-time basis. The committee also expressed a concern that where a family was found to be experiencing difficulties in the care and upbringing of children, there should be proportionate intervention by way of the provision of assistance and support for the family.

The committee emphasised that in the vast majority of cases parents were best placed to protect the lives of their children and that it was only in those cases where there was a genuine threat to a child's safety or welfare the courts of the State should be entitled to intervene and that any intervention had to be proportionate. The committee held that there should be specific rights attributed to children and that these specific rights should be enumerated in the Constitution. It considered favourably the core provisions of the UN Convention on the Rights of the Child setting out the basic rights which should be acknowledged with reference to all children. It also expressed concern that children who were in long-term foster care might be precluded from adoption. Adoption by the foster family, where it would be in the interests of the child to be adopted, should be possible.

The Minister for Finance, Deputy Michael Noonan, referred to the change to the proposed wording. There are some changes between the wording proposed by the committee to which I referred and that to be put in the referendum. Lengthy debates on the wording took place at the committee.

We received much legal advice and legal opinion, and as the House will be aware, the more legal opinion one gets, the more differences emerge on what is right and wrong. The committee was determined that there would not be a division on this matter. We wanted an all-party outcome in recommending the wording. Nobody was fully satisfied. All parties had to compromise. What came out of it was a compromise on the views of all the parties - some significant, some not so significant - and at the end of the day, there was all-party support. It was only right that the Minister, objectively, with legal advice, looked at that in the context of what I am saying, and we now have a wording which, thankfully, everybody in the House agreed.

I refer to the Report of the Constitution Review Group, chaired by Dr. T.K. Whitaker, published in 1996. On the correct balance in children's rights and parents' rights and duties, the report clearly stated:

... it would appear necessary to expand the circumstances referred to in Article 42.5 so as to include a situation where the protection of the constitutionally guaranteed rights of children require intervention. A re-wording of the State's duty to the child under this Article is necessary in the light of the Review Group's proposed amendments to guarantee expressly certain rights of the child and elsewhere remove adjectives and phrases which appear to refer to natural law which have been a source of some difficulties.


Further, if parental rights and children's rights are both being expressly guaranteed, it would be desirable that the Constitution make clear which of these rights should take precedence in the event of a conflict between the rights. One can envisage, for example, a situation where a child has lived for, say, ten years with foster parents and a natural father or mother seeks to recover the custody of that child. The natural mother might well have a constitutional right to the custody of the child but the best interests of the child might require it to remain with its foster parents. If, as suggested above, there is an express statement included in any revised Article 41 that in all decisions affecting a child its best interests should be a paramount consideration, then this would resolve any conflict in favour of the child.

See this speech in context