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

This provision in the new amendment places an obligation on the State to enact legislation to provide that in the proceedings of the kind identified the best interests of the child will be the paramount consideration. That in itself is extremely important. Giving constitutional recognition to the principle that the best interests of the child should be the paramount consideration in these proceedings means that this principle should now be a determinative factor in the resolution of such proceedings, having regard to the constitutional rights of the family, whereas prior to this the best interests of the child could only be a determinative factor subject to the constitutional rights of the parents.

This is a significant recalibration of the rights of a child to have his or her interests advanced as against other constitutional rights. The requirement applies to any child, thereby ensuring it will apply to all children without distinction.

The amendments relate to the scope of the provision and aim to comprehend within it all legal proceedings that could be taken by a child or a member of his or her family against the State, the outcome of which concerns the child. The best interests of the child could, therefore, become the paramount consideration in judicial review proceedings in respect of decisions taken right across the spectrum of State activity. The potential implications for the State are open-ended and undefined. In practical terms, what is proposed would effectively remove or, at least, diminish the prerogative of the Government and the Oireachtas as regards priorities relating to services and funding allocations. It could also have implications in circumstances where they State might be obliged to decide on an issue on the basis of the common good rather than the interests of the child. I refer, for example, to a case involving suspension or expulsion from a school. What is proposed could also interfere with the State's capability to balance and reconcile the rights of different parties.

We need to bear in mind the overall approach and objective intended in the article. This amendment to the Constitution asserts the rights of children in robust language. For the first time children are to be recognised in the Constitution and rights are to be conferred on them in acknowledgement of their potential vulnerability. I remind Deputies that the overarching provision contained in the new Article 42A.1 makes express reference to affirming the natural and imprescriptible rights of all children. It is important not to overlook the compelling and powerful language used in respect of children in this stand-alone article.

We must consider how the new article, as a whole, frames the best interests of children. We must, therefore, view it in the context of the new Article 42A.4.1o, which is intended to include family law and other proceedings relating to child care legislation. As Members can see, I have made specific reference to the child care proceedings in the provision. There was some concern that the language contained in the formulation produced by the joint Oireachtas committee and previous formulations did not capture child care proceedings. We have been very careful to ensure all of the key proceedings that affect children's lives are captured within the provision to which I refer. That is why we have used the formulation contained in the Bill. The proceedings to which I refer are the focus of child welfare and protection and really are pertinent in the context of this article.

The Deputies will understand the points I have made about extending it more broadly and the implications this could have for the legal system. The proceedings to which I refer have been intentionally identified as the object of this provision. I am sure Deputy Caoimhghín Ó Caoláin will agree that the approach of identifying specific, key proceedings relating to children is entirely consistent with that adopted by the joint Oireachtas committee. The proposed wording put forward by the latter was, "In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration". I hope the Deputies will understand the reasons I cannot accept their amendments.

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