Rónán Mullen (Independent)

Cuirim fáilte roimh an tAire Stáit. Níl mórán le rá agam. Is maith an rud é go bhfuil an díospóireacht seo againn inniu. Bheinn buartha dá mbeimid ag cur iomarca béime ar ghnéithe an tuarascála atá fágtha ar lár. Tá línte ag dul tríd na hailt sin. Tá contúirt ann go gcaithfimid iomarca ama ag caint faoi ceisteanna a bhaineann le cursaí dlí. Sa chás sin, b'fhéidir go ndéanfaimid neamhaird ar na buncheisteanna atá ardaithe i tuairisc Móin na gCaor. I mo thuairim, is é an rud is tábhachtaí a léiríonn an tuairisc ná gur theip ar an Stát cloí le fealsúnacht agus moltaí treoirlínte Children First. Is é sin bun agus barr an scéal. Theip ar an Stát é sin a dhéanamh.

This is a welcome debate, especially in light of the publication of the Ryan commission report. However, I caution against giving too much attention to the blackening out of elements of the report. Notwithstanding the comments made by my esteemed colleague, Senator Buttimer, if genuine legal issues exist there is a danger that our attention will be diverted away from the key issues raised by the Monageer report.

This report clearly demonstrates the lack of State compliance with the philosophy and recommendations of the Children First guidelines. It is clear the HSE is not policing itself with regard to their implementation. Interested practitioners in the field of child care have made it clear to me that oversight of HSE activities is greatly lacking. There is, for example, considerable confusion over who decides when to call a child protection case conference to discuss particular cases which arouse the suspicion of the relevant parties. There is also a lack of consistency as to when and why such conferences are called. In short, there is a lack of rational ownership of the issue. No child protection case conference was called on the Monageer case nor was a preliminary strategy meeting considered.

Legislation is not the problem because the legislative framework is in place to address cases such as Monageer. The problem is, as is so often the case with the HSE, the failure to implement policies properly. With that in mind, I wish to make a passing comment on the constitutional issue of child protection. It is natural at a time when people are deeply concerned and angered by the past neglect and abuse of children that a constitutional referendum would be considered as a necessary next step. A decent argument can be made to support such a view but we must stick to the facts.

In Judge Walsh's decision in G v. an Bord Uchtála he stated that nothing in the Constitution indicates that in cases of conflict the rights of the parent are always to be given primacy. Writing about constitutional law in Ireland, Hogan and Whyte note that an approach which places greater emphasis on the rights of children and is more protective of the important psychological relationships which a young child establishes with a caring adult can be achieved by re-arguing the constitutional principles involved and without the necessity of a constitutional amendment. It is worth rehearsing Article 40.3.1°, which states: "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." Furthermore, Article 42.5 refers to the natural and imprescriptible rights of the child. The Guardianship of Infants Act 1964 clearly requires that the welfare of the child be paramount and this principle informs family law generally. It is worthy and important that we debate what more we need to do to protect children but we should remember that constitutional change or legislation may be less important than, as arose in the Roscommon incest case, asking whether the law as it stands is implemented in favour of vulnerable children.

There is a need for an independent observer to act as watchdog, unafraid to name and shame structural and professional inadequacies. Ironically, in appointing Ian Elliot as an independent outsider to oversee the implementation of guidelines aimed at the safeguarding of children, the church, by which I primarily mean the diocesan church, has shown encouraging signs of learning from past mistakes. There is no reason the HSE should not follow this model because thereby it would help to circumvent a system characterised by conflicting interests and bring clarity to a situation marked by confusion.