Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein) | Oireachtas source

I acknowledge that the wording brought forward by the all-party committee was the result of long and intense debate to which the Minister was a party. As outlined, it represents a compromise on the part of all the participants at the committee. Of course, the proposed Article 42.1.3^o of the all-party committee states, "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 would have thought this was open to a wider interpretation than that which is contained in the wording presented to us in the Bill. I wish to confirm that the wording presented to us in the context of affirming the best interests of children in the specific areas addressed is absolutely momentous and wholly capable of support in its own right. The Minister will appreciate that I come from a position where I want this to be built on. I understand that is the view other colleagues in the House also hold. We do not want to lose what is before us. However, this is the appropriate opportunity to address the matter.

I did not seek to amend either the new Article 42A.2 or 42A.3. My focus is on the new Articles 42A.1 and 42A.4. The former are everything I would have expected them to be and hope they will stand the test of time. I can understand from where the Minister is coming in respect of the argument relating to equality and the limitation brought by the State. I also understand why this argument is being presented. However, there are other jurisdictions in which there are listed rights. South Africa is a case in point and there are both older and new and emerging democracies that have taken the brave and bold step of affirming listed rights. In that context, the all-party committee's formulation in this regard states:

The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:

i the right of the child to such protection and care as is necessary for his or her safety and welfare;

ii the right of the child to an education;

I understand the existing Article 42 is being retained in the Constitution and that the proposed new Article 42A is not a substitute for it. As a result, the affirmation in respect of education is already in situ.

The all-party's formulation also refers to "the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity". This is where there is a significant difference. The all-party committee's proposed Article 42.2.iii makes very clear the right of the child's voice to be heard in any judicial and administrative proceedings affecting the child. The new Article 42A contemplates a more restrictive provision. While the new Article 42A.4.2^o includes the words, "in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight", use of the term "referred to in subsection 1^o" restricts matters to specific areas and only in cases taken by the State.

There is a marked difference between the all-party committee's agreed position and that with which we have been presented in the Bill. That is unfortunate because in every respect we want the child's voice to be heard and his or her best interests to be taken into account in all cases affecting him or her. This is my position on the matter, which is why I tabled the amendments in my name.

See this speech in context