Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank colleagues for their contributions and fulsome support for the Thirty-First Amendment of the Constitution (Children) Bill which we have been debating over the past couple of days. Deputy Connaughton is correct that the issue is now about communicating it properly to the public. This is extremely important. It has been interesting to see the cross-party support for the amendment and I welcome that.

When I introduced the Bill, I began by saying I wanted to thank everyone, across the political divide, who contributed so much to the development of the amendment now proposed. I pay tribute to the all-party committee which was chaired by former Deputy, Mary O'Rourke and the huge amount of work done by it. I also pay tribute to colleagues like Deputy Alan Shatter, who have spoken about this issue and highlighted the need for change for 20 years. I also pay tribute to the former Ministers or Ministers of State, Brian Lenihan, Barry Andrews and Mary Hanafin. So many people have contributed to the development and thinking around putting children at the centre and about the need for change. So many of those who have suffered directly have spoken out and by their courageous testimony have impacted on the debate we have had.

I have been struck by the contributions made in this House and by the personal stories of many people and Deputies who have had experience of adoption and fostering and have had direct contact with families who are suffering or who have seen abuse in families that have come to them and have dealt with very complex issues in care proceedings. The debate has reflected a changed reality in Ireland and a change in society's understanding of children. We have seen debates like this before, when homosexuality was decriminalised and when the second commission reported in 1992 and we had a debate in the House. What Members across the House are clearly saying is that this change must be reflected in our Constitution and they are offering strong support to the kind of change proposed. I thank all Members for the care they have taken with regard to this debate and for the detail and quality of their contributions.

When I introduced this Bill the other day, I said that constitutional change gives us a rare opportunity to look at ourselves as a nation and to ask whether we are truly espousing correct values. It gives us the opportunity to assess what we stand for. Ultimately, constitutional change allows us to consider future generations and to ask what kind of Ireland they should live in. Those questions have been comprehensively answered by Deputies here. Equally, Deputies have been very clear that when we look at the record on our most vulnerable children, we have been found lacking. We have been lacking also at constitutional level. When I put the question the other night as to whether we believe the way children are treated in this State represents what we believe to be the values, morals and ethics of the Irish people, the answer was a resounding "No". We need to change that.

A range of issues have been raised by Deputies and I want to address some of these. A number of Deputies raised questions relating to the language used in the amendment. As the Attorney General who has done so much work on this amendment - along with her staff - has said, every word that is put into the Constitution has a meaning and that meaning will be interpreted. We do not know and cannot be sure how the courts will interpret this language, but the balances we are trying to achieve are important. These concern the balance between the family, the child, getting the correct balance for children in need of protection and ensuring the State can intervene when it needs to.

We use the word "imprescriptible". In the context of rights, imprescriptible means rights which cannot be lost by the passage of time or abandoned by non-exercise.

"Natural rights" are personal rights that we enjoy by virtue of our humanity under natural law. In a 1980 case, G v. An Bord Uchtála, the Supreme Court considered the natural rights that are enjoyed by the child. Of course, we do not know precisely how the Supreme Court will interpret the new Article 42A.1 in the future, but undoubtedly it will be interpreted. We are seeking to give strength to children's rights by including the new article in the Constitution.

The best interests principle is already well established in Irish statute law in the Guardianship of Infants Act 1964, the Child Care Act 1991 and the Adoption Act 2010. This referendum seeks to give constitutional strength to this principle, as provided for in these Acts. The amendment, as drafted, mandates the Oireachtas to legislate for the attainment of "the best interests of the child". This means that the best interests test may be further prescribed in law by the Oireachtas. If the referendum is passed, it will carry constitutional strength. That will give it a greater counter-balance than heretofore as against other expressed rights in the Constitution. By specifically and specially recognising the best interests principle within this article, we are bringing an important balance to Article 41. Therefore, the new article will be a powerful tool in the hands of the Oireachtas when it sets out to legislate for children's best interests and to balance them appropriately with the rights of families under Article 41 and the rights of birth parents under Article 43.

I want to draw attention to the use of the words "any" and "all" with respect to children. In each place where this formulation is used, the intention is that all children of marital and non-marital families will be treated equally when it comes to protecting their safety or welfare, their access to adoption and the consideration of their best interests and views in key proceedings.

I have been asked about the legislative changes that follow this amendment if the people support it. Clearly, there is a need for legislation in a number of areas. I have already published the general scheme of a Bill in relation to adoption. I decided to publish that draft Bill because it proposes a significant and highly sensitive change and deals specifically with the constitutional rights of a number of parties in those proceedings. Additionally, I want to inform Deputies that I intend to ensure the best interests and views of the child elements that are reflected in this amendment are brought fully into the new adoption legislation.

It has already been pointed out that the best interests and views of the child elements are already provided for in a number of other specified areas of law. While they are set out in a number of different legal formulations, they have the same impact and intent. The explicit inclusion in the amending Bill of a reference to these matters puts it beyond doubt that this House has the capacity to legislate for such matters. I will also introduce legislation in relation to the child and family support agency. Following that, I will further examine the Child Care Act in its entirety to ensure it reflects to the fullest degree possible the reforms in practices and processes that are part of a modern and integrated child and family delivery system. I will also ensure it reflects fully, in all of the relevant areas, the principle that the best interests of children should be the paramount consideration in child care proceedings. I will also look at the guardian ad litemservices under the Child Care Act 1991 with a view to ensuring the service is better structured and regulated and provides improved value into the future.

The programme for Government contains a commitment to reform and modernise aspects of family law. In this context, the detailed recommendations of the Law Reform Commission's report on the legal aspects of family relationships and guardianship rights are under consideration in the Department of Justice and Equality with a view to preparing legislative proposals. The question of whether existing provisions under the family law code should be amended to better reflect the proposed new constitutional provisions on the rights of the child, including those relating to the best interests of the child and the hearing of the child's views, is also under consideration. Other areas of legislation might arise following this amendment.

It is clear from the debate that the issue of adoption strikes a chord with many Deputies and many people outside the House. I want to make it clear that the intention is not to support or advocate the wholesale adoption of children from care - far from it. I am clear in my mind that this provision will benefit some children in care, but clearly not all children in care. The legislation we have drafted reflects that position. Many children come into care for very short periods before going back to their families. Care is used as a family support for such families. Of course that will continue. Improving assessment, the planning of care and the matching of children with stable care placements has to be a key priority for us. When one examines the child deaths report and reads about the kind of movement in and out of care that is experienced by many children, one appreciates the need for improved assessment, better permanency planning, better care planning and better placements for those children who are most at risk. We have to make sure they benefit from the stability of care, even when adoption is not the preferred option. This is very important. As I have said, adoption is not for all children in care. This is an extremely important amendment for some children in care who are eligible for adoption. Deputies on all sides of the House have understood that and addressed that issue.

The carefully balanced changes that are set out in the draft Bill reflect not only the changes to the Constitution which are proposed, but also the existing rights of all parties in adoption proceedings under Articles 40, 41 and 42 of the Constitution. Very detailed notes on this are available. I want to be completely clear on the process that is involved in a child being adopted from care. The details are contained in the draft Bill. The process and the sequencing, the specific tests to be met and - critically - the safeguards for the child and the parents that apply and will continue to apply in the area of adoption are well explained in the material I have made available publicly. I hope that will become further known around the country as people get closer to voting on 10 November.

A number of Deputies asked specific questions about counselling for adults who propose to place a child for adoption. I assure Deputies that under section 14 of the Adoption Act 2010, a mother or a guardian who agrees to place a child for adoption must be counselled and given full information about the adoption process before the child is placed for adoption. An authorised person is specially appointed by the Adoption Authority of Ireland to ensure the parent's consent is full, free and informed. The exact same process is used in intercountry adoptions. Without consent to the placement of a child for adoption, a voluntary adoption cannot proceed under any circumstances. This process will be retained following the proposed amendment to the 2010 Act.

Deputy Troy and other speakers asked about whether the foster care payment will continue to be made when a child is adopted by his or her foster parents. The Child Care Act 1991 provides that when a child is adopted from foster care, the HSE may contribute to the maintenance of the child as if he or she were still in foster care. This provision gives some scope and a limited number of circumstances for the HSE to acknowledge the financial burden that might arise for some families if the foster care allowance were discontinued from the moment of adoption. It is an exceptional provision, but it is available for those situations where the continuation of some financial support might be required in the short to medium term due to the particular circumstances of the situation.

I was also asked if the general scheme of the draft Bill represents the final draft I expect to bring to the House if this amendment to the Constitution is accepted by the people. The draft Bill sets out the policy of the Government. Perhaps technical amendments will emerge as being required to bring greater clarity to the legislation. Changes might be required to strengthen the draft Bill further in the manner I have suggested, with particular regard to the general provisions in adoption law regarding the best interests principle, the views of the child and the various proceedings under the Adoption Act 2010. I do not envisage any change in policy from that set out in the draft Bill and the information and explanatory notes that have already been made available.

There was a great deal of discussion on how services for children are being delivered at present, on the services that are available and on the future of such services in this country. I agree that the referendum is not a panacea - it is one aspect of our approach to strengthening child protection and children's services in this country. Of course a much bigger picture needs to be addressed. That is why we have an ambitious programme of child protection legislation and why we are changing the way we deliver services. The Deputies present in this House had an opportunity to discuss the development of those reforms in detail yesterday.

I certainly take the point that there is ongoing work to do in regard to the organisation of services for children and families and the development of services. Of course, we are doing that at a time of limited resources whereas, in the past ten years, huge resources were available but we did not deal with some of these challenges. We need to examine how we are delivering these services and we need to take a reforming approach to them. Deputies will know the work we are doing in that area. Of course, resourcing is an issue across Departments and there are difficult choices to be made. However, I remain committed to ensuring we make real improvements for children in the lifetime of this Government. I am also determined that the new agency is significantly different both in terms of political accountability and delivery of services to what has gone before and that it is sufficiently resourced to achieve the improvements that are essential.

I want to finish by reiterating my thanks to the House for the support I have received in respect of the Bill. I was struck by the sentiments expressed by so many in this House during the course of the debate. Deputy Troy spoke about every child in this State getting what he or she deserves, namely, a loving and meaningful childhood. Deputy Ó Caoláin spoke very movingly in regard to this constitutional amendment giving all voting citizens the opportunity to say "stop" to the abuse and neglect which has characterised some of our past and which has been so horrifically detailed in the reports with which we are all familiar. There is no room for complacency. There is no doubt that eternal vigilance is the price of ensuring that children are not abused in current times as well.

I welcome the cross-party support which I have received. As I said, we all have a very big job to do in terms of ensuring that the kind of debate which we heard in the House over the past few days, and the kind of detailed information and understanding which was shared, is communicated to the citizens who will have the opportunity to vote in the referendum in November. I thank all Deputies for their contribution during the course of the debate.

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