Dáil debates
Wednesday, 19 May 2010
Private Members' Business.
Constitutional Amendment on Children: Motion (Resumed)
7:00 pm
James Reilly (Dublin North, Fine Gael)
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I wish to share time with Deputy Neville.
Charlie O'Connor (Dublin South West, Fianna Fail)
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Is that agreed? Agreed.
James Reilly (Dublin North, Fine Gael)
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I thank the Members of the Labour Party for bringing this motion to the House.
Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is a joint motion with Sinn Féin.
James Reilly (Dublin North, Fine Gael)
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I am more than happy to acknowledge that.
I, like the other Members of the House, would like to extend my sincere condolences to the family of Daniel McAnaspie who was under the care of the HSE at the time of his tragic and untimely death. I met his sisters outside this House some time ago and raised the issue of his disappearance here. It is particularly sad that this motion is being debated during the week that Daniel's remains have been found and it is desperately disappointing that the House will divide this evening on the simple matter of giving a commitment to hold a constitutional referendum on the rights of children in 2010. Of the 24 children to die in the care of the HSE, Daniel is the first we know to have been murdered. There must be no more. It is the most horrible manifestation of an abject failure of duty of care by the State to a child.
As Deputy Shatter pointed out last night, this motion has the full support of Fine Gael. It is deeply disappointing that it is necessary to table a motion in an attempt to force the Government to set a date for the referendum, especially when one considers the number of debates we have had in this House in the past 12 months on the importance of the care and protection of children, combined with the fact that we are at such an advanced stage on the constitutional amendment.
The final report of the Joint Committee on the Constitutional Amendment on Children was published on the 16 February 2010. It sets out the wording for the amendment which is agreed by all parties. In the last budget the Government allocated €3 million for the holding of the referendum in 2010. Despite the funding allocation and a substantial amount of work, the Government has refused to give a commitment to hold the referendum in 2010. As late as this morning the Taoiseach again refused to confirm a date. Yet again, there is much talk but no action. It is time for the Government to take action so that we, as a society, offer children the very best protection they deserve.
Tomorrow marks the first anniversary of the publication of the Ryan commission report and despite all the rhetoric at that time, the past 12 months have continued to expose a litany of child protection failures - not of yesteryear, but of the services that are being delivered today. Recently, the Fine Gael spokesperson for children, Deputy Shatter, published a suppressed PA Consulting Group report, completed in October 2009, which identifies a litany of chronic and systemic failures in the management and delivery of child protection services. The report shows that the needs of children come secondary to the system and that the creation of the HSE in 2005 has done nothing to improve the delivery of children's care and protection services. There is an echo of that in the care that our adults also get.
The ethos that has evolved in the HSE since its inception is one of a self-serving system and not a patient-centred service or a child protection service. The findings in this report were supplemented by the publication last week of the report of the Ombudsman for Children who investigated the implementation of the Children First guidelines. This report identifies 11 findings of unsound administration confirming that successive Fianna Fáil-led governments have simply paid lip service to child protection. Despite a plethora of damning reports, including the Tracey Fay report published by Fine Gael, the Government and the HSE continue to fail to protect vulnerable children.
For too long change and reforms have been promised but not delivered upon. Fine Gael is committed to challenging the status quo and believes that we must act now to ensure children at risk are given the protection to which they are entitled. Fine Gael believes that the Government amendment to the motion being debated tonight is a damning indictment of a tired, worn out Government that is not fit for purpose. Given the publication of the report of the Joint Committee on the Constitutional Amendment on Children, which proposes an appropriate and agreed wording to strengthen children's rights, Fine Gael believes that the Government must tonight give a firm commitment to hold a constitutional referendum in 2010.
Dan Neville (Limerick West, Fine Gael)
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I welcome the opportunity to contribute to the debate. I fully support the Labour motion. As a member of the committee-----
Charlie O'Connor (Dublin South West, Fianna Fail)
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I am told the Deputy should refer to the Labour and Sinn Féin motion.
Dan Neville (Limerick West, Fine Gael)
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I apologise to Sinn Féin Members. We would like to have been included ourselves.
The committee spent long hours mainly on Tuesday evenings from 5 p.m. to 7 p.m. and sometimes to 7.30 p.m. debating this issue. It took a considerable amount of work. I commend Deputy Shatter, Senator Alex White, Deputy Howlin and other members of the committee whose-----
Mary O'Rourke (Longford-Westmeath, Fianna Fail)
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Would it kill the Deputy to say my name?
Dan Neville (Limerick West, Fine Gael)
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Will Deputy O'Rourke give me a chance?
Charlie O'Connor (Dublin South West, Fianna Fail)
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Deputy Neville, without interruption.
Dan Neville (Limerick West, Fine Gael)
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Now that Deputy O'Rourke has intervened I will not mention her.
Mary O'Rourke (Longford-Westmeath, Fianna Fail)
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How sweet of the Deputy.
Dan Neville (Limerick West, Fine Gael)
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It resulted in a consensus between Opposition and Government on a wording of a referendum. We endorsed a motion stating that Ireland needs a constitutional amendment to enshrine and enhance the protection of children's rights. The wording of the referendum was agreed after long and arduous deliberations, many hours of legal debate, much involvement by many legal people and a lot of expense to the State in regard to the work of the commission. The money was well spent if the referendum can be brought through at an early date to ensure the protection of children, as recommended by the committee.
According to Amnesty International, the UN Convention on the Rights of the Child is foremost in regard to many issues around the protection of children. This wording reflects one of our obligations under the UN Convention on the Rights of the Child and recognises the primacy and importance of the family and the role of parents. The proposal ensures the rights of parents are protected, while ensuring that, where children are at risk, a proportionate intervention is permitted and facilitated under our Constitution, as amended under the referendum.
The current system of child protection is not working. At present, 5,600 children are in care. As was brought out in the debate, especially last night, tragically the State institutions have failed some children. In the case of too many, their lives ended prematurely.
I introduced a Private Members' Bill in 2000, the Children's Bill, which became the Children Act 2001. This was very good legislation but, unfortunately, it has been practically ignored in many of its best aspects because resources have not been put in place to ensure the broader protection of children and offer the opportunity to rehabilitate children and have them taken care of in a positive way by replicating, in some ways, the old institutions but in a modern proper way for children who are in difficulties or crisis. Unfortunately, resources have not been put in place to ensure that such children are dealt with as envisaged under the Act.
The fact remains that children's and adolescent psychiatric services account for merely 5% to 10% of spending in mental health services although they serve 22.7% of the total population, the percentage of the population who are children. This underinvestment has resulted in child and adolescent services which are sporadic or non-existent.
Charlie O'Connor (Dublin South West, Fianna Fail)
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The next speaker is Deputy Mary O'Rourke and I understand she is sharing her time. There are 30 minutes in the slot.
Charlie O'Connor (Dublin South West, Fianna Fail)
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Thirty-three minutes. I apologise for my Dublin accent.
Mary O'Rourke (Longford-Westmeath, Fianna Fail)
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I will speak for ten minutes. The next speaker is Deputy Seán Ó Fearghaíl but I do not know how the time is divided after that.
Charlie O'Connor (Dublin South West, Fianna Fail)
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Perhaps I can be of assistance. Deputy Ó Fearghaíl will speak for five minutes, Deputies Timmy Dooley, Margaret Conlon and Michael Kennedy all have five minutes and Deputy O'Rourke has ten.
Mary O'Rourke (Longford-Westmeath, Fianna Fail)
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I thank the Acting Chairman. I am very happy to speak on this motion. I praise and thank the Labour Party and Sinn Féin for tabling it. In so doing, I pay tribute to Deputy Brendan Howlin, Senator Alex White, Deputy Caoimhghín Ó Caoláin and the Fine Gael members. However, I particularly wish to mention those I named because they laboured long and hard on the committee. I want to give full expression of my confidence in their work and thank them for the dedication and time they spent on the matter. This motion was very well chosen by both parties. None of the Labour Party or Sinn Féin Members I mentioned ever missed a meeting. In the entire two years and three months I missed half a meeting but I believe they did not miss any in all that time while the whole debate was taking place.
I am disappointed that no date has been set for the holding of a referendum. I take hope from many of the points the Minister of State, Deputy Andrews, made last night. He stated that a group of senior officials was working to the Cabinet sub-committee on social inclusion. They were reconvened to guide the interaction and co-ordinate the responses of all Departments. As I understand it, the wording and conclusion we reached went through the Minister of State to each Minister and Department. The senior officials group has met once and will meet again at the end of this month. It is important that they do that. We were very well and professionally legally advised on all the works we did in the committee. At the same time, it is the Government of the day that will bring the wording to the people and therefore it is important that such wording be proper and right in every aspect.
I regard the holding of this debate over the past two nights as very much part of the process leading towards the holding of the referendum. There have been money issues. I do not know how far €3.5 million goes in the holding of referenda but I guess it is a statement to have it there, included in a sub-heading.
Rather than dissipate the cordiality that existed among the leading people representing their parties on the constitutional amendment group, among whom I include Deputy Shatter, the Government would be well served to move swiftly to deal with the wording as proposed. We were very intent on what we did. We tried to avoid a conflict with any aspect of the Constitution which would give rise to conflict with the tenet of the family, which, as we know, is regarded very strongly in Ireland. We did not want such to emerge at any time amid the debate we hope will occur when the referendum goes to the people. Prior to that there must be legislation on adoption, either accompanying the referendum wording or brought in beforehand. I hope that also will find favour with the electorate and we can move on.
When I spoke I wanted to offer sympathy to the family of Daniel McAnaspie and state clearly that the holding of a referendum, if successful, does not mean there will not be sad events surrounding children in the future. This referendum will not be a panacea to end all ills. How could it be? It was never meant to be that. What it was meant to be is expressed by the wording at which we finally arrived, namely, that children, as individuals, have rights just as adults have. It is, in the first place, the exposition of their rights followed by the affirmation of those rights. That is hugely important and very much in line with the UN Convention on the Rights of the Child. At the last convention meeting, Ireland was castigated for not having something of this nature in place. I hope the outcome of this will be fruitful but I also hope we at least have a referendum, with the people having the right according to our Constitution, to vote "Yes" or "No" to such a wording. There is all-party support for this wording, which is very rare within these Houses. That consensus, which was carefully built by all participants, will dissipate if action is not taken. I know quite well the way senior civil servants work and I suppose many people here also know it.
Mary O'Rourke (Longford-Westmeath, Fianna Fail)
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Festina lente could be the maxim to which they operate. It is not the time to hasten slowly; however good the template might be for other occasions, it is not appropriate to this issue. The opposite to this might be carpe diem, seize the day, and we should use this as inspiration for our actions.
The Minister of State, Deputy Andrews, was very careful to point out the intervention which has already given rise to some debate by a person who has a massive log on his shoulder. His argument is that the clause will mean the State will move in on every case but that is not so. The action would be proportional on both sides, which is very important. As we go to the hustings we will need to emphasise this more and more.
As the Minister of State is present I indicate again that there is no panacea; there is no Aladdin's cave containing a golden box which when opened will prevent sadness for children in care or with families. It cannot be. Our actions would realise the objectives sought by Ms Justice Catherine McGuinness, now on the Law Reform Commission, since 1993. Deputy Brendan Howlin when Minister for Health asked her to chair the Kilkenny incest inquiry and one of her most salient conclusions was that there should be a referendum on children's rights. Various other luminaries have put their point of view along the way, always echoing her aims.
Members of the 2006 committee also served on our committee, and it fell to us to scrutinise the 2007 legislation. We saw that the rights of the child were not sufficiently emphasised and brought forward in that Bill, and we proceeded to forensically examine it before putting forward our own ideas. I commend those who proposed the motion. We all know how Private Members' business works and I wish there would be no division on the matter.
Brendan HowlinMary O'Rourke (Longford-Westmeath, Fianna Fail)
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The Government cannot give a date while it is still examining the matter. I am heartened by soundings taken from Ministers whom I have been harassing on the matter. I understand much thought is going into it. I ask the Government to arrange this year for a referendum on children's rights.
Mary O'Rourke (Longford-Westmeath, Fianna Fail)
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Children should be seen and heard, and they should assume their rightful place in society.
Seán Ó Fearghaíl (Kildare South, Fianna Fail)
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Ba mhaith liom mo bhuíochas a ghabháil leis an Teachta O'Rourke a chuid ama a roinnt liom. I am glad to have the opportunity to contribute to this debate on the proposed constitutional referendum on children's rights, and I compliment the Labour Party for using its Private Members' time for raising a matter that is of the utmost importance. In light of everything that has arisen in recent years regarding the experiences and welfare of children, it behoves us all to keep children's rights and welfare at the centre of the political and public agendas.
Like Deputy O'Rourke, I want also, in the few minutes available to me, to acknowledge the value of the political consensus that was reached within the Joint Committee on the Constitutional Amendment on Children, and to pay tribute to all the committee members for their work. I mention especially the leadership given by Deputy Mary O'Rourke, who chaired the committee in her inimitable fashion, and the major positive contributions made by the party spokespersons Deputies Howlin, Shatter and Ó Caoláin. Senator Alex White was also a major participant in the process.
Only yesterday, the Joint Committee on Health and Children, which I am privileged to chair and which the Acting Chairman and Deputy Kathleen Lynch sit on, decided to undertake the challenge of preparing a report to Government on the need for legislation in the area of assisted human reproduction. It is my fervent hope that we can achieve the same level of political consensus as we attempt to propose a legislative way forward in this other controversial and critical area.
My late grandfather used to say that children should be seen and not heard and given that Bunreacht na hÉireann was written during his era, it is not surprising that it makes few specific references to children. Long before the United Nations had adopted its Convention on the Rights of the Child in New York in November 1989, enlightened legislators around the world had come to realise that the rights and welfare of children are central to the well-being of society itself and had begun to legislate accordingly. Having signed the convention ourselves in 1990, it could understandably be argued that the Irish State has been tardy in making the necessary constitutional changes to expand on the general protective provisions contained in Article 40 of Bunreacht na hÉireann.
One should not, however, ignore the fact that the concept of the welfare of children has been enshrined in modern legislation here and major initiatives have been taken by Governments, such as the establishment of the Office of the Ombudsman for Children. Additionally. the legislative and policy framework has been significantly strengthened through the passage of major pieces of legislation such as the Children's Act 2001, the Child Care Amendment Act 2007 and Bills such as the Adoption Bill and the 2009 Child Care Amendment Bill currently working their way through these Houses.
I further acknowledge that the Minister of State with responsibility for Children, Deputy Barry Andrews, has taken seriously the first two reports of the joint committee, dealing with the matters of soft information and vexed issue of strict and absolute liability. With his Government colleagues, he is progressing towards the publication of legislation in each of these important areas.
All of us involved to date in this process are motivated by nothing other than what is in the best interest of children but it is inevitable that there will be those among the public who will not agree with the detail and nature of our recommendations. I fully believe there is nothing in the 2007 Bill, or more especially in the committee's recommendations, that would negatively impact on the status of the family. I welcome the fact that the concept of the family based on marriage is not in any way being challenged in the proposals we are discussing.
In short, I believe the committee in its proposals has got the balance right between what some may see on occasions as the competing interests of the family and the rights and welfare of the child. In referring to the business of legislation and constitutional provision, we must accept there are other realities that impact on children's lives. I refer to, among other things, the changes in Irish society, the sexualisation of children by elements within the music and entertainment industries and to the type of rampant commercialism which targets marketing campaigns at children.
The reality of paedophilia has haunted the land and despite all the revelations and recommendations, the evil that is paedophilia has not and will not cease to exist. We can only really guarantee the welfare of our children by ensuring that we are individually and collectively as a society constantly vigilant and attentive to their genuine needs. It is imperative that the Government holds a referendum on the rights of the child to be decided by the people and that it does so without undue delay so that all political parties in the House can give this important challenge their undiluted attention in a bid to get a positive outcome.
Timmy Dooley (Clare, Fianna Fail)
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I welcome the opportunity to contribute on this debate. There is little doubt that the issue is critical to each of us. Every Deputy is committed to ensuring the legislative framework is strengthened to improve the protection and welfare of children. Clearly, an amendment to the Constitution is a critical component of the process and I welcome and recognise the significant efforts of the committee chaired by Deputy O'Rourke and the work of Deputy Ó Fearghaíl and his committee in furthering the process. I also recognise that the work of Deputy O'Rourke's committee took a protracted period, given the complexity of the issues.
There seems to be a consensus on the way forward. I agree with other Deputies that the Government should be given adequate time to ensure that whatever proposal is put before the people is properly thought out and has the capacity to be supported by every Deputy because removing some of the rancour and politicisation from the debate will be to the benefit of those we seek to protect.
I offer a word of caution to those outside the House who seem to believe that the passage of legislation and the amendment to the Constitution will somehow be the means by which all problems will be solved - far from it because these are complex issues. While our work is to ensure a legislative framework within which to work, the interaction is between human beings. We seek often to place a responsibility on the State in the belief it has the capacity to do better than any group of individuals. This issue will be a matter of interaction between local professionals supported by the legislation. If we believe an amendment to the Constitution will somehow resolve all ills, we are misguided. Being balanced in this regard is necessary.
While there have been many tragic cases, the most recent might be the reason we are discussing this report. Notwithstanding this, we must recognise the many families and children who have been greatly affected over successive decades. Highlighting an individual case as a means of seeking a resolution to the current impasse would be wrong. We need to be realistic about the outcome we seek or expect from a referendum.
While listening to some of earlier contributions, I noted a number of references to Mrs. Justice Catherine McGuinness' 1993 recommendations in which she called for an amendment to the Constitution in respect of children's rights. I do not want to be overly political but certain charges have been made about a delay on the Government's side despite the need to move forward. Every party in the House, excluding Sinn Féin, has had an opportunity to hold such a referendum since 1993.
Charlie O'Connor (Dublin South West, Fianna Fail)
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The Deputy has one minute remaining.
Timmy Dooley (Clare, Fianna Fail)
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Deputies Kenny and Gilmore and others have discussed the matter on the Order of Business, but none of them took the opportunity to hold a referendum. Were it straightforward, an amendment would already have been made, but it has not. It took until 2007 to have a referendum Bill published and a protracted period was required for the committee to agree a resolution. It is not unfair to facilitate the Minister of State and the Government in tabling the proposal required to ensure whatever the House does is on a sure footing and is done in a way that seeks the approval of the people.
Margaret Conlon (Cavan-Monaghan, Fianna Fail)
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I am delighted to have this opportunity to make a brief contribution on the issue of a children's referendum. I was a member of the committee, albeit a late recruit, and I witnessed from the outset the commitment and dedication of every member from all sides of the Houses. I put on the record my appreciation of the Chair, Deputy O'Rourke, for the way in which she guided the committee. I commend her on her stewardship. The process gave me confidence in the political system. I was heartened by the fact that, despite the complex nature of the subject under discussion, we were in a position to agree on a report and a wording. That agreement will be positive and beneficial when the referendum is put to the people.
I thank the members of the Opposition for this welcome and necessary debate. I agree with Deputy O'Rourke on the need for consultation and the requirement for information to be in the public arena. This debate is a part of that consultative process.
While I, as a Government party Member, want an improvement in child welfare and protection and the referendum to be held without undue delay, the referendum will not cure all our problems. In recent years, we have witnessed many changes in terms of child welfare and protection, and rightly so. We have also witnessed and heard dreadful, harrowing stories involving fatal consequences for children. We must do whatever we can to ensure such events are not repeated, but we can only do so much. The constitutional amendment is a key piece of the jigsaw.
I sympathise with the family of the late Daniel McAnaspie. It is a dreadful, harrowing situation for any family to face. In these difficult and dark days, his family should remain foremost in our thoughts.
I would welcome the inclusion in the Constitution of the right of the child to have his or her voice heard in judicial or administrative proceedings affecting him or her and with regard to his or her maturity. The latter provision is relevant and is how it should be. For too long we heard the old saying, "Children should be seen and not heard." The inclusion of the proposed provisions in the Constitution would be a welcome advancement.
The family has always been and continues to be considerably important to citizens. I am glad our committee made it clear we were not attempting to reduce or dilute family rights in any way, because a child's best interests are served by being a part of a stable family unit. I have always stated that caring for children is the one job people do without any training. One has a baby, is handed the child, takes him or her home and learns as one goes. For some families, caring for children proves difficult for a variety of reasons, but children should only be removed from their family homes and familiar surroundings as a last resort and after other interventions have failed.
It took us a long time to get to where we are - 62 meetings, eight months of deliberation and the movement of the concluding date several times - but we managed to reach a consensus. As a Government, there is work still to be done. As a committee, we were united in a common purpose I hope will continue during the referendum campaign. It is important that people have the information presented to them in a clear and concise manner to avoid doubt or ambiguity about the implications of this proposal.
It is important we get it right and I would like to believe the referendum will be held without undue delay. I am pleased the Government is treating the issue seriously and that work is ongoing. While there should be no undue delay, a rushed referendum might not achieve the result we desire. It is important that people fully understand the complex issues involved.
Michael Kennedy (Dublin North, Fianna Fail)
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I welcome the opportunity to speak on this important issue and I congratulate the Labour Party for bringing it before the House. I also congratulate Deputy O'Rourke and the other members of the Joint Committee on the Constitutional Amendment on Children, including Deputies Howlin, Shatter and Ó Caoláin, in addition to the Minister of State, Deputy Barry Andrews, and his predecessor, the Minister, Deputy Brendan Smith. The committee held 62 meetings and received more than 175 deputations. I am not a member of that committee but I understand the Minister of State attended many of those meetings, which shows his commitment and that of the Government. We are all at one on this matter. It is great that there has been cross-party agreement on how to move forward. I hope we will continue to have such agreement and, even though we will have a division here tonight, we all recognise that we want that referendum to be held. We all respect the concept of improving and underpinning children's rights. Whether one is young or old, one can appreciate that.
A number of separate Bills will be needed to deal with the referendum, including the Adoption Bill. Those have to be passed, but by their very nature that will cause some delay. The old maxim has it that rushed legislation is often bad legislation. I do not want people in future to criticise a decision taken in 2010 when I was a Member. I want to ensure that we will get it right, so it will stand the test of time.
We should acknowledge that three or four Departments are involved in this process, including the Department of Health and Children, the Department of Education and Skills, and the Department of Justice, Equality and Law Reform. It is not necessarily a simple thing to achieve co-ordination. Lest the public say that this is a problem for the Minister of State, Deputy Barry Andrews, it is a bigger issue which involves other Departments. In that context, it should be acknowledged that there may be delays.
I spoke to the Minister of State about this and have also mentioned it to the Taoiseach in passing. I know there is a commitment to have this referendum and get the legislation passed. The report was only given to the Government in March, and the Attorney General is now considering it. He will offer his advice to the Minister of State and other Ministers. Given that the committee took two years and three months to reach a final conclusion, it is unreasonable to suggest that we should be able to hold a referendum overnight, just two months after the report was sent to the Government. Nonetheless, there is a total commitment by the Government to hold a referendum.
Organ donation is an issue close to my heart. The Minister for Health and Children, Deputy Harney, is dealing with various options in that regard. My preferred option is the opt-in organ donation and I understand that would also involve a referendum. Perhaps we could hold both referenda on the same day. The organ donation issue is not as advanced at the issue before us, but we should use the opportunity to get as much passed as possible on one day.
I extend my sympathy to the family of Daniel McAnaspie. It is a horrendous situation and everybody in this House shares that family's grief. We wish it had never happened but, as other speakers have said, we are dealing with human nature. I hope such a situation will not recur.
Kathleen Lynch (Cork North Central, Labour)
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I wish to share time with Deputies Tuffy, Morgan and Ferris.
Charlie O'Connor (Dublin South West, Fianna Fail)
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Is that agreed? Agreed.
8:00 pm
Kathleen Lynch (Cork North Central, Labour)
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Recent years have exposed many institutional failings in caring adequately for the children of the nation. I express my condolences to the family and friends of Daniel McAnaspie and of all the other children who have died in the care of the State. His untimely death may perhaps serve to focus our minds on the task of protecting children.
Daniel is one of 24 children who have died in the care of the State. That care is delivered by the HSE, as agents of the State. We know that many others have gone missing in what is loosely termed "the care of the State". Daniel was the second child to be murdered while being cared for by the State.
The Ferns, Murphy and Ryan reports detailed the horrific abuse of children, for which the State must take responsibility. There are also countless instances of children being neglected within families that are simply not capable of providing the care required. Only last week, the Ombudsman for Children published a comprehensive report which demonstrated how child protection systems and services are failing our children. It is for these reasons that we urgently need to enshrine children's rights in the Constitution and provide our young with the greatest protection and opportunities in life.
The need for constitutional reform to protect children has been well flagged by organisations concerned with child welfare. Regrettably, as we know from the past, children are often not listened to. That is why it is vital to listen to organisations that give children a voice and work tirelessly to ensure that vulnerable ones are cared for. Their efforts are to be commended.
As a nation, we have a duty to ensure that this work is supported in every possible manner. Reforming the Constitution to include children's rights would be a positive step in this direction. The final children's rights report of the Joint Committee on the Constitutional Amendment on Children was published on 16 February 2010. The committee was chaired by Deputy Mary O'Rourke and included among others, Deputies Shatter, Howlin, Ó Caoláin and Senator Alex White. They were dedicated to producing that report.
I listened to the debate yesterday and today. I have repeatedly heard about the awfulness of what has happened to our children. I reckon that 24 is a conservative number because there are probably many more children who have died from lack of State care. Despite that, I have heard it said in this debate that the issue is far too complicated to rush into. When I hear such comments, it means that we really do not care. Care is central to this entire argument. We are not talking about children who are loved within families that protect them. We are talking about vulnerable children who find themselves in circumstances where they cannot care for themselves and where the adults around them are also incapable of caring for them. We are really saying that they are not our priority. They are children of the poor, or orphans, who are abused. They are at odds with society, needing care, protection and help, but we do not care about them. There will be another Daniel and another Tracy who will die in the care of the State. We will come in here, wring our hands and cry crocodile tears, but we do not care because these children are not our priority. These are the children of the poor.
When it comes to care, this constitutional amendment will only be the start because an element of responsibility will flow from it. We should have that responsibility now. For instance, who was responsible for Daniel McAnaspie? Whose name is on the front of his file? Who did not take the type of action that was necessary to ensure that he remained safe? Who did not call to the house asking why he was not in school and, if not, where he was?
If this were to happen in England, our pagan neighbours, the person responsible for this disaster would be identified and held accountable. However, no one is held responsible in Ireland because a person has one social worker today, another tomorrow and a third the day after. No one is held responsible and no one cares. The next time there is a tragedy, the next time a Ferns Report or a Ryan report is published, or the next time there is a case at which all Members wring their hands in horror, they will stand up in this Chamber and say the same things again.
This amendment to the Constitution is not about the majority of children but vulnerable children. It is about children who need Members' help more than anything else. However, its incorporation in the Constitution would oblige this society to do the things that are necessary to invoke it. The amendment states the State would be responsible for children who were vulnerable or ended up orphaned. Moreover, people who love them would be able to step forward, go to court and demand such protection. I am neither a lawyer nor a constitutional expert, but in my humble opinion this is the single thing the Government does not want to see happen. It does not wish to be obliged to stand up, defend and put in place the resources that would be necessary to ensure the poor did not end up in prison, murdered on the streets, dead as a result of drug addiction or in awful circumstances because they had no choice. That is what this referendum would be about.
Members of the House are united by more than what divides them and I believe, at heart, each Member agrees this should be done because it is the right thing to do. I commend Deputy Howlin and Sinn Féin on tabling this Private Members' motion. I ask all Members to search their hearts. Next time they should not enter this Chamber, wring their hands, cry crocodile tears or state an awful thing happened when it could have been prevented.
Joanna Tuffy (Dublin Mid West, Labour)
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I thank the Ceann Comhairle and the Minister of State. Like the Minister of State, I studied history at third level. One reason I love it as a subject is that while not all of it is about progress, much of it is. I refer, in particular, to the progress made through politics. Often, when preparing to speak in a debate in the House, I look up the Official Report of historic debates on the Oireachtas website to find out what was said about an issue in the past. Today I looked up the phrase "children's rights" and, as far as I could make out, it was not really mentioned until 1965, when the Minister of the day, Brian Lenihan Snr., spoke about children's rights in the context of the Succession Act. Thereafter, its use became more frequent in the 1970s and 1990s.
In the course of my searches of the website I discovered there had been a debate in this House in which Deputies Howlin and Higgins had participated on 27 February 1992. Moreover, the Minister of State's father, Mr. David Andrews, was Minister for Foreign Affairs at the time. The debate was on the United Nations Convention on the Rights of the Child. As Deputy Ó Fearghaíl noted, Ireland had signed the convention in September 1990 but not ratified it by February 1992. Consequently, Deputies Howlin, Higgins and others asked the then Minister for an update as to when the Government intended to ratify it. The then Minister, Mr. Andrews, told them that the Government was "fully committed to ratifying the Convention at the earliest possible opportunity". He also stated, "The views of the Attorney General are being sought with regard to what additional measures, if any, are required to enable the Government to proceed to ratification." Deputy Higgins then asked him whether he would review the consequences of delaying ratification and in response the Minister of State's father replied that he certainly would do what Deputy Higgins had requested. A few months later, on 7 October 1992, he informed the Dáil that in the course of his visit to the United Nations at the end of September he had deposited with the UN legal counsel the instrument of ratification by Ireland of the convention and that it would enter into force in Ireland on 28 October 1992. In other words, he had made that progress within a year.
My point is that progress has been made during the years on children's rights. Moreover, this train of thought runs through our history as a state, dating back to the Proclamation. I often have spoken about the highly progressive move made on universal children's allowance in 1943. The Labour Party supported its introduction by the then Minister, Seán Lemass. As the Minister of State spoke yesterday, I noticed he picked up on a view expressed by Mr. Justice Adrian Hardiman that the wording of the Proclamation did not refer to children but to people in the nation and that it related specifically to minority groups, rather than the literal understanding of children as one may read it. I do not agree. The point about documents such as the Proclamation is that they are universal and open to interpretation. It is highly likely that when the word "children" was used in the Proclamation in 1916, it was not used lightly. It probably was used to mean everyone as children of the nation and to refer to children specifically. The proposed amendment would introduce the phrase, "the State will cherish the children of the nation equally". As Deputy Rabbitte pointed out in an article he wrote on the Proclamation a couple of years ago, it is the use of the word "children" that gives the term "equally" all the more power. Consequently, it is quite likely that the word was used by the authors of the Proclamation to mean children literally, as well as a collective description of everyone as children of the nation. As I stated, it is a universal document and people are right to interpret it in the manner they do. I do not agree with Mr. Justice Hardiman in this regard.
Obviously, the State has experienced many failures. Members have debated the Ryan and Murphy reports and all the issues that arise therefrom. Members are familiar with the ill-treatment, abuse and neglect of children, about which they read in the newspapers. While people make the point that this often takes place within the family, the State often has a role also through its failure to step in to protect children when it should. When one considers the wording of the Constitution and the reference to children in Article 42, children are brought in as an afterthought. It talks about parents initially and then mentions children. While the Constitution has been interpreted highly positively in respect of the implicit rights of children, certainly the manner in which it is set out is not explicit about children's rights and tends to perceive them not as individuals but as members of their families. In addition, there is a strong train of thought that considers children to be the property of their parents. One talks about parental choice in respect of issues pertaining to children. As for the idea that children should be seen and not heard, I remember people would talk in such a way when I was a child. Obviously, there are many failures within our society in the vindication of children's rights.
As for the rationale for making children's rights explicit in the Constitution, I refer to the conclusions of the joint committee. I commend everyone, including Deputies Howlin, O'Rourke, Ó Caoláin, Shatter, Senator Alex White, the Minister of State and anyone I may have omitted, for the thorough way in which they went about their work which was evident as I read through the report today.
They set out the reasons they see gaps in the Constitution, but there is a value in expressly setting down children's rights. It would inform policy development.
We face many challenges as we try to rebuild the economy and to develop a society that is fair. It is important that we now set out children's rights in the Constitution so they inform our policy making, allowing us to take into consideration the idea that we should treat all of our children equally. That would be a progressive move.
Arthur Morgan (Louth, Sinn Fein)
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Yesterday the Tánaiste stated that it was her personal view that the referendum on children's rights was very important and should be a stand-alone referendum, not held on the same day as by-elections. I welcome that statement and I hope it is more than a personal view, that it is shared by her Government colleagues. Let me say to the Government on behalf of Sinn Féin that we will not press for the by-elections to be held on the same day as the referendum. The referendum should have a clear run. All the issues need to be clearly explained and properly debated. There is no good reason why that should not happen this year. I call on the Government to accept the good will of the Opposition parties, the parties with which its members worked closely on the Joint Committee on the Constitutional Amendment on Children, and to proceed to implement the agreed recommendations. Put the agreed wording to the people in a referendum and do it this year.
The Minister of State, Deputy Barry Andrews, said in his speech last night that we were "never closer" to a referendum. How close is closer? How long is a piece of string? We need certainty, not such vague reassurances. I note also that the Minister of State changed his script. The script referred to a referendum which "may follow" but the Minister of State, in his delivery, changed that to "will follow". Does that indicate an unwillingness on the part of the Minister of State's officials to commit in any way to a referendum? The Minister of State should ignore such attitudes and follow the advice of the committee of which he was a key member.
The Bill to hold a referendum on children's rights is long overdue. The fact that there is such a poor approach to children in every statutory body is testament to this. In the area of child protection in my own constituency of Louth, I am aware of at least one out-of-hours GP co-operative that does not ensure that the locum doctors it employs are vetted by the Garda Síochána. In Dáil questions that my colleague Deputy Caoimhghín Ó Caoláin has submitted, the Minister for Health and Children and the HSE have refused to give a straight answer as to whether it vetted all of its employees that work with or have access to children.
It is this sort of information that is particularly worrying for the people of Louth, considering it was in that county that the health board allowed Dr. Shine to operate freely in Our Lady of Lourdes Hospital in Drogheda while being well aware of the allegations that had been made against him. Such inertia could allow another Dr. Shine-type situation to develop.
When children are placed in residential care facilities after being removed from risky situations, they are subject to further risk. These facilities do not receive independent and thorough inspections. Legislation must be enacted to ensure this happens. When children are in the care of the State, social work provision is patchy or non-existent. We have recently seen a case where a child was left overnight in an Internet café due to a lack of facilities. How crazy is that situation? Children are still sleeping in Garda stations. There are no therapeutic facilities in this State for children with severe difficulties, and the HSE sees fit to export them to facilities overseas rather than providing for them here, where they can be near their families. This is not the story of a State that can claim to respect or uphold the rights of children.
We do not even know the full extent of the problems faced. The Children Acts Advisory Board has noted that HSE data are challenging when trying to make year on year comparisons. Published data are incomplete even though they are not published for between nine and 18 months after the fact.
Very often there are no separate facilities for children with intellectual disabilities, and where there are facilities, they are often inadequate. I am aware of cases in one facility in my constituency for children with intellectual disabilities where adults in the adjoining facility have wandered into the building. This is highly inappropriate. This same facility is in need of massive refurbishment, as well as extra staff.
In the meantime the Government considered it appropriate to make massive cuts in education spending across the board, with special needs assistants being cut, leading to severe effects on schools' efficiency and the ability to deliver for children. I have received huge numbers of representations on this issue, as has every Member, from parents who are distraught at the withdrawal of these essential supports from their children, supports that would be of substantial benefit to them.
The Irish Government signed the UN Convention on the Rights of the Child in 1990 and ratified it in 1992. This ratification committed the State to promote, protect and fulfil the rights of children as outlined in the articles of the convention. A constitutional amendment is one of the ways we need to do that. There is cross-party agreement and support for the proposed amendment wording. The Government has no excuse for putting this on the back-burner. Let the referendum take place and let it be this year. Sinn Féin has cleared the way for doing so by setting aside temporarily the issue of the by-elections. The Government has no excuse for not proceeding immediately.
Martin Ferris (Kerry North, Sinn Fein)
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It is clear from the contributions of the Minister of State, Deputy Barry Andrews, and others on the Government side that the Fianna Fáil-Green Government has no intention of bringing forward legislation to hold a referendum this year that would enshrine stronger rights for children in the Constitution.
The final report of the Joint Committee on the Constitutional Amendment on Children was published in February with its agreed wording for a constitutional amendment. To get agreement across all parties in the Dáil was a major achievement. It is extremely disappointing that the Government has not followed up with the political will to implement the committee's recommendations. Our call is for the referendum to be held in 2010. Does the Government wish to see a year pass from the publication of the report before a referendum Bill is published?
The truth is that this Government has a very sorry record as far as the rights of children are concerned, and I include in that social and economic rights, as well as legal and constitutional rights. The less rights children have the better in the Government's eyes. This attitude is clear when we look at the fact that the Government has not only not upheld children's rights in the past, but actively worked against them. The number of children at risk of living in poverty is steadily on the rise because of the savage budget cuts that have reduced the level of support available to the most vulnerable in Irish society. The most vulnerable people in disadvantaged families are children.
Budgetary decisions have been taken purely on the basis of creating short-term savings which are making life harder for children who already have to deal with the ineptitude of a Government that has misdirected resources towards those who already have more in society, such as builders, developers and bankers.
In 2008, after years of record prosperity in the Irish economy, the figures for child poverty were shameful. According to Barnardo's, 6.3% of children continued to live in consistent poverty, amounting to 65,270 children. This compares with a consistent poverty rate of 1.7% among persons aged 65-74 and 1% among persons aged 75 or over. Consistent poverty means that these children are living in households with incomes below 60% of the national median income and experiencing deprivation based on eight agreed deprivation indicators. This can mean going for a whole day without a substantial meal or being cold because parents are unable to afford home heating.
Children continue to be the age-group most at risk of poverty, with a rate of 18% in 2008. This compares with an at risk poverty rate of 13.5% among people of working age. Children account for 38.7% of all those in consistent poverty, a shameful indictment of this Government and its predecessors. These are figures for 2008. Since then we have had three savage budgets that have cut social welfare, education and health services. We have seen the heartless slashing of the social welfare Christmas bonus on which families living in poverty depend so much.
Under-investment and under-resourcing in education, child protection, social welfare and family supports are a recurring agenda for the Government. We are consistently being told that there is no money, but conveniently there is a substantial amount of money when it comes to bailing out the banks.
Families are forced to turn to the Society of St. Vincent de Paul and Barnardos or to moneylenders when the State fails yet again in its obligations. It should not be left to these already stretched organisations to cater for children purely because the Government would rather see the fat cats remain and children go hungry in prefab classrooms. Recent budgets have been consistently unfair to children. There has been no job creation for the unemployed parents of children in Ireland. Instead, the Government went after young people, those on low incomes and working families who are only barely surviving. Stimulus measures have been misdirected while €54 billion has been dished out to the banks. Of those in receipt of the family income supplement, 11% are public sector employees of the State.
We have been told that we have turned an economic corner. For parents who have to go to the Society of St. Vincent de Paul to put food on the table, this corner is nothing but a figment of the Taoiseach's vivid imagination. Social welfare payments should have been ring-fenced and in some cases they should have been increased. The Government has had more than enough opportunity to do this. Sinn Féin and others presented alternatives but the Government chose not to listen.
In 2005, Senator Dan Boyle stated children are "twice as likely to be poor than adults in present day Irish society" and said that this was a statistic that should take away the self-satisfied glow that permeated Fianna Fáil. The Green Party, now that it is in Government, is singing a different tune. It has joined with Fianna Fáil in displaying its "indifference towards the issue of child poverty", which were Senator Dan Boyle's words and not mine.
The Children's Rights Alliance issued a report card that provided a comprehensive review of how the State performed in its services to children during 2009. The Government was given a D-grade. The failure to eliminate child poverty during the Celtic tiger era is a reflection of its attitude. At this stage, we should not expect any more. If Government Members had any belief in upholding children's rights, they would walk out of the Dáil in shame.
In my constituency I receive regular representations from the families of children, and from those charged with looking after them, concerning the impact of the current austerity measures on child care and educational facilities. These range from the ongoing unacceptable conditions that children in schools such as Scoil Eoin in Tralee and Blennerville national school have to endure, in buildings that are overcrowded, poorly kept and in urgent need of repair.
What kind of state allows children with autism in my county to go undiagnosed for up to a year because of a shortfall of staff? What kind of government allows children with psychiatric problems to go as long as four years before being assessed? Does anyone on the Government benches find it acceptable that children in Kerry with serious mental health problems are put on regular hospital wards because there is nowhere else for them to go?
Access to health care, housing and education are fundamental rights. They are not luxuries to be done away with in hard times. We need to copperfasten children's rights in the Constitution and Sinn Féin will continue to campaign until we achieve this aim. The Minister of State has a choice this evening, to sit there as he has done and pay lip-service to the fat cats and support them and bail out the bankers or for once in his life to stand by the children of the country who are in poverty.
Michael Finneran (Roscommon-South Leitrim, Fianna Fail)
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I am pleased to have the opportunity to speak on this important subject at the end of what has been an interesting debate.
A key objective of the Government in putting forward the Twenty-eighth Amendment of the Constitution Bill in 2007 was to provide a clear statement on the rights of children, while continuing the constitutional presumption that the best interests of children are served within a stable family. That objective is still valid and was a cornerstone of the committee's work. The Irish people place a particular value on the family of marriage, and I think we are all agreed that any amendment to the Constitution should not in any way weaken its position.
The Minister of State, Deputy Barry Andrews, referred yesterday to the need to make sure that when the amendment is put to the people they understand that these proposals will not challenge or attack the current position of the family. This is very important, as it is not our intention to take away from the rights of the family by giving rights to children. I support his view that these proposals, by promoting interventions to support families in difficulties, may result in better outcomes for children.
The committee's adoption proposals which are similar to those in the 2007 Bill aim to allow some children an opportunity to be part of a new family unit. The proposals will particularly benefit children in long-term foster care, who may have spent their whole lives with their foster family with little or no contact with their natural family. Given that their parents are married, the burden of proof of abandonment that is required for them to be adopted is extremely high. For some of these children, where it would be in their best interests, the proposals would provide a second chance of belonging to a family.
These proposals will not lead to huge numbers of children of marriage being adopted, nor will they alter to any great extent the threshold for State intervention in the family. They will not lead to more children being taken into the care of the State. However, they will permit children to be adopted where it is in their best interests and where a period of time has elapsed in alternative care. It will remove the limbo that some of these children find themselves in - feeling part of one family, but legally part of another with which they have little or no link.
There were two earlier reports by the committee, the first on the exchange of soft information with regard to sexual abuse and the second on the age of consent and defences available to defendants. In both cases, rather than amending the Constitution to deal with the issues raised, a legislative solution was decided upon. The Office of the Minister for Children and Youth Affairs, in conjunction with the Department of Justice, Equality and Law Reform, is working on legislation which will provide for the establishment of a national vetting bureau to facilitate the collection and exchange of information, both hard and soft, for vetting purposes. This will be an important step forward in our efforts to prevent abuse of children.
The Department of Justice, Equality and Law Reform is working on legislation to deal with the age of consent and other issues, including reforming the law on incest. Again, this will be an important element in the future protection of children. It must be recognised that these are complex issues. In particular, the need to balance the rights of the various parties is key in developing effective but fair legislation, but it is also challenging to achieve that balance successfully. However, significant progress has been made, reflecting the priority that Government has given to the legislation.
Earlier speakers suggested that it should be possible to announce a referendum immediately, and implied that because agreed wording has been put forward by the committee, the Government should not scrutinise the proposal. It would be reckless of the Government to adopt such an attitude. There are a number of things that need to be done before a referendum can be announced. As the committee recommended, a number of pieces of legislation in the adoption area need to be drafted and published. To ensure that from the beginning of a referendum campaign clear information is available, this legislation needs to be presented before a campaign commences. It is also possible that other legislation may also need to be published in advance of the referendum, and the Attorney General will advise on that. The Government needs to clarify what legislation needs to be drafted, how complex it will be to draft and how long it will take before it can realistically set a date for a referendum.
As many speakers have said, the work of the joint committee in reaching consensus on difficult, complex and sensitive issues was a significant achievement and I congratulate it. The Government places considerable weight on the value of this consensus and has no wish to move away from it. However, the fact that there is cross-party consensus does not mean that the Government can abrogate its responsibilities, which it would do if it did not carefully examine the wording. It is essential that the wording of the referendum proposal be forensically examined for its implications, including its implications in areas outside child welfare and protection.
The committee's wording extends well beyond the realm of child protection and impacts on the areas of education and health and may potentially impact on immigration policy. In March, the Government referred the proposals to a senior officials group that reports to the Cabinet sub-committee on social inclusion to carry out this work as quickly as possible. The relevant Departments are looking at the wording in that context and will report back shortly on any issues that emerge.
As the Minister of State, Deputy Barry Andrews, said yesterday, the Government must ensure that no unintended consequences arise from the wording. It is the responsibility of Government when putting the referendum to the people to ensure there is no ambiguity or doubt about the wording and that people are clear on the effects of the proposal. It would not be acceptable for any Government to put a proposal for constitutional change to the people without having examined it in detail.
The committee took more than two years to complete its work. It is not unreasonable for the Government to take the time it needs to get this right. These are complex issues, as the committee found. Getting it right is not easy but it is essential. The Government's responsibility is to ensure the referendum, if passed, will have the effect intended and no accidental impact. Any amendment to the Constitution is a major endeavour. In this case, where the issues are so complex, it is essential the Government takes the time to get it right. Until it is clear what, if any, issues need to be addressed, it would be premature to announce a date for a referendum. The Government will announce a date as soon as it is possible to do so, and when this referendum is brought to the people, it will have been properly considered and all the issues dealt with.
Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Ba mhaith liom mo chuid ama a roinnt leis an Teachta Michael D. Higgins. Ba mhaith liom chomh maith mo bhuíochas a ghabháil leo siúd ar fad a ghlac páirt sa díospóireacht go dtí seo. Ba mhaith liom freisin mo náire a lua i dtaca an méid atá ráite ag Teachtaí an Rialtais go dtí seo, go háirithe an fudge a bhí soiléir ón méid adúirt an tAire Stáit, Deputy Finneran, where he kicked to touch the issue and the need for legislation. Since 2008 and 2009 when the first and second reports of the committee were issued, the need for legislation has been recognised and there is no need at this stage to continue to delay a referendum which is required now. The main issue is the tabling of a motion by Sinn Féin and the Labour Party to try to ensure the Government holds a referendum to vindicate the rights of children. We need a constitutional amendment to ensure the Government, its successors and we as a society take far more seriously our responsibility to protect children. How many reports does the Government want to see before it realises there needs to be a radical overhaul of child protection services in this State?
The report on the tragic life and death of Tracey Fay in State care caused great concern. There were statements in the Dáil on the matter on 4 March. We have now seen the murder of Daniel McAnaspie who was in HSE care. This is not a new concern but has been pointed out repeatedly over many years, with thousands of children who are vulnerable and at risk still being denied access even to initial assessments of their plight. The Ryan report and the report on abuse in the Catholic archdiocese of Dublin exposed the widespread and systematic abuse of children up to the end of the 1980s at the latest. We need to focus on neglect and abuse in more recent times and, above all, to address the systematic failures that allow children to be victimised or neglected today in 2010. Such abuse and neglect may have proved fatal in at least 24 cases, the latest being Daniel McAnaspie.
The State does not even know if the figure of 24 dead children is correct. It could be much higher, given that more than 500 children have gone missing from State care in the past ten years and this State has no idea where the majority of those children ended up. They could be dead for all this State cares. Until a week ago, the Minister of State, Deputy Barry Andrews, acknowledged that 23 children had died in the care of the State, but the HSE told everyone the figure was only 20. Who is right and who is wrong?
The report issued last week by Emily Logan, the Ombudsman for Children, on the implementation of the Children First child protection guidelines was yet another damning indictment of the pitiful state of the child protection system, with 11 findings of unsound administration made against public bodies and 22 recommendations made to improve the system. Níos mó ná riamh, cruthaíonn an tuairisc úr ón Ombudsman do Pháistí, Emily Logan, chomh luachmhar agus atá a hobair siúd agus an gá cur i gcoinne aon chinneadh chun an oifig sin a chur an treo céanna leis an tÚdarás Chomhionnanais.
The Minister of State, Deputy Andrews, yesterday and the Taoiseach again today tried to excuse the lack of a firm Government commitment to holding a referendum. Their excuse was that the report of the joint committee was being examined by 15 Departments and the Attorney General. It is another delay. Deputy Ó Caoláin asked the Taoiseach when those Departments and the Attorney General received the report. He did not receive a clear answer but if they received it in February when it was published, they should have had adequate time to examine it. The time is up for the Government to examine the reports. It knew what was in them and it was part of the consultation and committee. The referendum needs to be held now.
Michael D Higgins (Galway West, Labour)
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I thank all those who contributed to the debate, which was initiated by the Labour Party and Sinn Féin, and pay tribute to all those who contributed to the work of the joint committee which achieved a consensus.
As we finish this debate, I note how difficult it is to establish any rights base in this country for any purpose. One would like to think that it would be a basic aspect of citizenship that there would be a floor of rights which would affect and protect all people. We are very far from that and I interpret the Minister of State's speech, which spoke of consultation, bureaucracy and the Attorney General, as an invitation to engage with an almost intractable force which is against rights. The history of rights in this country is a poor one.
One need only take the transition from the democratic programme of the First Dáil to the 1937 Constitution, and what one sees is the slipping away of any commitment to rights. I noted in the discussions which took place in the committee the hostility to changing Article 41 is based on the fact that children's rights are not accepted in the fullest sense and, rather, are contextualised It does not surprise me because as a very young Senator I moved one of the earliest attempts to abolish the status of illegitimacy. It was very clear at that stage in the Irish psyche - we were not a republic by any stretch of the imagination - that property and other institutions came first. I reflected long and hard, and I do so again today, on how long it took us in this republic to stop beating children, sending them to adult jails and sending children with mental difficulties to adult psychiatric wards where, in effect, they are incarcerated rather than treated. That is the legacy and urgency, and people want people to respond to these issues and be able to say that, in a place which calls itself a republic, every child will be protected.
Some of the decisions made by post-dictatorship societies are very interesting. I visited Nicaragua with the father of the Minister of State. One of its first actions was to publish a chapter on the rights of the child, Para los Niños, which was influenced by Ernesto Cardinal, among others, and received a reward from UNESCO. It recognised the rights of the child as a person. There are immense complexities about whether one is talking about personal rights, individual rights, collective rights or whatever, but it is possible, even for developing countries, to establish constitutional protection for children as children.
I was on the MacBride commission and remember the tears of a senior official of the then Department of Education who told me he could look at the faces of children from troubled families and know from their school attendance records that they would be the people who would go on to prison. Despite this, at that time the then Department of Education did not speak to the then Department of Justice. Thus, there was an incredible grinding bureaucracy. These are the Departments which have reports that said everything was fine in Daingean and these are people who lost the minutes taken by junior civil servants who saw a child being stripped naked and beaten on the landing there. That is the record. It is simply not convincing for anyone to say after two years and eight months, after the Government being represented at every stage and after it being open to every civil servant to know what the proceedings and the arguments were in a committee which, to its credit, achieved consensus that one must start all over again and consult with every Department and the Attorney General with their despicable records in regard to the protection of the child.
I refer to all these sanctimonious statements from all these people who have been elected from all around the country and who have discovered how complex things are. They are not that complex if one wants to do something. There is a consensus available which, I believe, is a very conservative one. I would have gone much further in regard to Article 41 because I do not believe that in the international definition of rights, one has any right to suggest that a child should be locked into a dysfunctional family and that the child's rights are residual to establishing, somehow or another, that one must be beaten before one is free to enjoy one's personal rights. People gave way on many different aspects of this proposal. What we have now is something which will be voted on but it has been said we are not ready. No one suggested that the Government act in some impetuous way.
This is a very serious situation. There was an opportunity for two and a half years, since 2007, to address these issues. Going back to 1992 and 1993, before ratification, one could have anticipated a great deal of these issues. In between, we have had a series of reports which simply show that children have been scandalously treated.
Over the decades the failure to protect children has had horrific consequences. Some of the most vulnerable have found themselves in institutions, frequently followed by prison. One must ask what is the basis of that vulnerability. Why did children not have access to protection? What happened between the democratic programme of the first Dáil and the 1937 Constitution? Mediating blockages were put in between. It was suggested that a child would first have to show he or she was being neglected in the family, that the institution abused the child and so forth. Why not have a child's rights as a person based on personal dignity and on his or her essence as a human being? That was the challenge facing us in the Republic but it was a slided away from.
There was an authoritarian ethos that kept saying it was right to slap children. It was only in 1982 that corporal punished was stopped. That is a stain on the history of this Republic. I am not making just a partisan point. People said times were different but they were not different. It was an abuse by the strong of the weak.
As I speak, the absence of provisions available to lonely children in institutions, to children sitting on kerbs and to children who should be entitled to medical facilities is scandalous. A monster called the HSE is not able to say it can count the number of children for which it has responsibility. That is a scandal in any country not to speak of one which calls itself a republic.
I have spoken to children in my advice centres. They go into prison illiterate and come out not only illiterate but dependent on drugs. All of the time we have reviews, commissions and so forth reporting.
What must be decided? The children of the people who will be consulted in all the Departments are not at risk. If one wants to say every child is a protected child in this Republic, then one will vote for the motion. That is what we should do. We do not need any more time.