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

I thank the Deputies. I wish to make a few general comments regarding the amendments. It is widely acknowledged that what we are doing in asking the people to vote on a constitutional amendment relating to children is long overdue, much needed and historic. It represents a hugely symbolic and enduring practical measure centred on the welfare of children, to be entrusted by this generation to succeeding generations. The Government and I are clear that the amendment to the Constitution, effected by way of the new article, would greatly inform the courts' consideration of the legal framework for decision-making regarding children. The test of "best interests", for example, will now carry the weight of constitutional expression and give a greater counterbalance than currently exists as regards other expressed rights in the Constitution. The new article would also be a powerful tool in the hands of the Oireachtas to legislate for children's best interests and to balance the rights of the child appropriately with the rights of families under Article 41 and those of birth parents under Article 43.

The wording I have proposed is a careful crafting of constitutional language. I know the Deputies opposite would not underestimate for a moment the challenge of introducing new words or unnecessary words or new concepts at this stage. I must assess the direct implications of any potential change as well as its indirect implications in terms of the effect on other elements of the proposed wording, on the constitutional provisions that already exist and on statute law. The Constitution is a finely crafted legal document which is worded to allow for flexibility. It has avoided - this is relevant to Deputy Ó Caoláin's point - creating a rigid hierarchy of rights, so that the constitutional rights of one group can be balanced against competing rights depending on the circumstances of each case. Care needs to be exercised that any amendment does not limit the power of the State, the Executive and the Oireachtas to determine how State resources are applied, which is a basic function of the State in any democracy. It must be remembered that the child's "natural and imprescriptible rights" is a broad concept. Article 42A, as it is drafted, expressly affirms those rights but does so in a way that will recognise that in vindicating and protecting those rights, the State must be mindful of and balance those rights against the rights and demands of the common good.

As I have said on a number of occasions, we are looking at a calibration of competing rights within our Constitution. I have reflected very carefully on the best approach to optimise child protection and welfare and believe we have arrived at a workable consensus, as has been seen here in the past few days. The legal and constitutional implications have been considered at some length, as Deputy Ó Caoláin will know because he did this himself as a member of the all-party committee. The construction of the new article is finely balanced and highly integrated. It must be viewed as a package of provisions and not a menu. The elements of the package are numerous and include the overarching statement of the State's recognition of, and commitment to, the rights of children, which are described as natural and imprescriptible. Following on from this, the article allows that the State should be in a position to intervene on behalf of children in exceptional cases. It has been made clear that the State must act proportionately and in accordance with the law. Looking beyond such exceptional circumstances, on parental failure, the article provides a clear constitutional basis for children whose parents have failed them for a considerable period - which will be set down in law - to be adopted. With regard to adoption law, it provides a basis for addressing major shortcomings by providing legal certainty for the voluntary placement of children. The final element of the package, which is designed to secure the care of children, is the recognition of the principle that the child's best interests should be a paramount consideration and that the views of children are necessary in determining proceedings that are fundamental to future arrangements for their parenting and care. Obviously, that refers to proceedings taken under the Child Care Act 1991, adoption proceedings or those concerning guardianship, custody and so forth.

This perspective on the interlocking nature of the article should assist in further understanding what it sets out to achieve for children. The provisions are intended to focus on a specific body of proceedings - namely, those proceedings which will determine a child's future parenting or future care in circumstances in which the State is obliged to become involved to protect the child's safety and welfare. In common with the direction taken by the joint committee, it allows for a rebalancing of rights so that there can be a greater focus on the welfare of the child.

Article 42A.1, which we are discussing in respect of the first group of amendments - that is, amendments Nos. 1 and 2 - recognises and affirms the natural and imprescriptible rights of all children and requires the State, as far as practicable, to protect and vindicate those rights. It is intended that by expressly recognising the natural rights of the child, the Constitution will be singling out children as a discrete group possessing rights and this will give a greater weight to these rights when counterbalanced against other rights such as the rights of the family. It is important not to lose sight of what we are trying to achieve in this amendment. It is fully focused on achieving a greater balance of rights for children in specific areas relating to their future care and upbringing. Deputies are already familiar with the areas that are involved.

Obviously, there are a number of issues with regard to this amendment, but the Constitution must be read as a whole. That is extremely important. All of these articles must be considered in relation to the other articles we are bringing in and, indeed, in relation to the Constitution as a whole. I thank the Deputies for tabling these amendments and assure them that I very much appreciate the tone they have taken in this entire debate. I also appreciate the constructive objectives behind their tabling of these amendments.

Regarding amendment No. 1, Deputy Troy expressed a concern that the courts may look at children's rights as being covered under the proposed new Article 42A.1 and not by the current Article 40.3.1°, under which the State guarantees in its laws to respect and, as far as practicable by its laws, to defend and vindicate the personal rights of the citizen. Given that the Constitution must be read and interpreted as a whole, the Deputy's concern in this regard is misplaced. There is nothing in the amendment to preclude a child from invoking the protections afforded to him or her as a citizen under Article 40.3.1°. The beauty of the proposed Article 42A is that it specifies certain rights that relate to children, having regard to their age and potential vulnerability. However, I must stress that it is in addition to, not instead of, existing constitutional provision. The use of the word "shall" in the proposed Article 42A represents an obligation imposed on the State, as far as practicable, to protect and vindicate those rights through its laws. The term "guarantees", as proposed by Deputy Troy, suggests that the State itself promises to, or gives a formal assurance that it will, as far as practicable, in its laws, protect and vindicate the rights of the child. Replacing "shall" with "guarantees" will not augment the legal effect of the provision. Also, as I have said already with regard to the care of children, the provisions in Article 42A would now be incremental to those provisions already under Article 40.3.1°.

The Deputy also suggests that we use the words "defend and vindicate" as opposed to "protect and vindicate". I am advised that the duty to defend arises only when the rights in question are under threat, while the duty to protect is ongoing and, as such, is likely to impose a higher duty on the State. The phrase "protect and defend", which we have in Article 42A, is in fact stronger than the suggestion made by Deputy Troy. The requirement to protect places a higher duty on the State to fulfil its obligations.

On amendment No. 2, Article 40.1 of the Constitution provides a general guarantee of equality under the law, which applies to children. Accordingly, it is difficult to predict what additional protections or rights it is intended to provide for under the formulation suggested by Deputy Ó Caoláin in the amendment. The question could arise as to whether it could preclude, for example, any assistance by the State to positively discriminate in favour of those who are disadvantaged. To accept the wording would be to establish a potential conflict between the new Article 42A and Article 40.1. The latter article states:

All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

I do not propose to accept amendments Nos. 1 and 2 but I hope Deputy Ó Caoláin will understand from the description I have given that when one examines the detail of the proposed amendment in conjunction with the Constitution as a whole, the point the Deputy makes is addressed. In response to Deputy Troy, in fact what we are doing in the amendment is a stronger measure than that outlined in the amendment he suggests we replace it with.

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