Barry Andrews (Dún Laoghaire, Fianna Fail)

The publication of the third and final report of the Joint Committee on the Constitutional Amendment on Children has been widely welcomed. The constructive approach taken by members of the committee to the serious and complex legal issues under consideration created an environment in which political consensus could be arrived at. The building of political consensus was the first challenge facing the committee and without a common approach, I doubt we would be here today discussing the next steps and the likely process the Government will now enter. In this respect, I pay tribute to the Chairman, Deputy Mary O'Rourke, for her stewarding of the work of the committee in the past two years, all of the members, and in particular the Members of this House, all of whom played a very active role in drafting, amending and finalising the three reports the committee has published. It is only appropriate that any discussion of the work of the committee in this House should recognise the contributions of Senators Corrigan, Feeney, Fitzgerald and Alex White. I was in the strange position of being a member of the committee during its deliberations and I am now charged with taking the report to the Cabinet where it will be considered.

Dr. Ursula Kilkelly, the family law expert, wrote in The Irish Times last week that "Ireland has come late to children's rights". It is hard to argue with that assertion when we consider that the need for constitutional change in regard to children was first voiced by Mrs. Justice Catherine McGuinness almost 20 years ago in her capacity as chairwoman of the Kilkenny incest inquiry. In writing the report on that case she stated "the high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving higher value to the rights of parents than the rights of children". The matter was subsequently addressed by the Constitution review group which, in its 1996 report, recommended that the Constitution be amended to include the welfare principle and to provide an express guarantee of certain other rights for children deriving from the United Nations Convention on the Rights of the Child. The UN Committee on the Rights of the Child, in examining Ireland's first report on the implementation of the convention in 1998, stated "Ireland's approach to the rights of the child appears to be somewhat fragmented". The committee reiterated the need for constitutional change, having outlined its concern that Ireland's "welfare practices and policies do not adequately reflect the child rights-based approach enshrined in the convention". It recommended in favour of the accelerated enactment of the Constitution review group's recommended reforms.

The 1997 to 2002 programme for Government contained a commitment that the issue would be referred to an all-party committee on the Constitution. That committee reported in 2006 and recommended an amendment to Article 41 to include a new section on the rights of children. It was in this context that the then Minister of State with responsibility for children, Deputy Brian Lenihan, undertook an article by article review of the Constitution to examine the status of children. There was recognition of the need to insert in the Constitution an article to expressly set out the rights of children. The publication of the Twenty-eighth Amendment of the Constitution Bill 2007 provided, for the first time, a form of wording that sought to enshrine in the Constitution rights that would accrue to children as a distinct group, not simply as human beings and individuals or members of a family unit. For the first time, this article singles out children as a discrete group possessing rights. The Government's policy is intent on pursuing an amendment to the Constitution and threefold. It would provide a clearer and more direct acknowledgement of the rights of children within a constitutional presumption that the best interests of children are served within the family; a restatement of Article 42.5 which would, inter alia, extend the provision to all children; and a statement which would permit the adoption of marital children and children in care. It was accepted that, if the amendment was to have any chance of political success, political consensus was a must. Consequently, the 2007 programme for Government contained a commitment to "establish an all-party committee to examine the proposed constitutional amendment with a view to deepening consensus on this matter". At this point, the joint committee came into being and set about its work.

Prior to turning its attention to the specific matter of children's rights, the committee published two reports, the first dealing with soft information and the second with the issue of strict and absolute liability. It was unanimously agreed that, in the case of soft information, a constitutional referendum was not required to effect the desired change. A majority of the committee decided that absolute liability should not be reinstated in respect of defilement and statutory rape cases and as such, a referendum was not necessary. That the committee was able to deal with these two very complex issues separately and disentangle them from the wider question of the rights of the child was a major achievement. In addressing the specific issue of children's rights the committee faced a challenge to balance the rights of families, children, marital and non-marital parents. This delicate balancing act took place against the debate on whether the barrier to State support should be lowered to allow the State to intervene with the family at an earlier point where evidence of family failure first presented.

Having met on 62 occasions, the 118-page report from the committee recommends inserting a new Article 42 in the Constitution, reiterating the bulk of its current provisions on education but adding several new sections. The new provision begins with a restatement of the oft-quoted phrase from the 1916 Proclamation that "the State shall cherish all the children of the State equally". Ironically, the signatories to the Proclamation were not referring to "children" as we understand the term but the need to recognise and be tolerant of minorities, both religious and political. The newly proposed Article 42.1.2° clearly states the State has a duty to vindicate the rights of children and affirms that children enjoy human rights that the State is obliged to uphold. The provision reads: "The State recognises and acknowledges the natural and imprescriptible rights of all children, including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights". Reflecting wording included in section 3 of the Guardian of Infants Act 1964, the newly proposed Article 42.1.3° incorporates the right of children to have their welfare regarded as a primary consideration.

It has been said the requirement to take a child-centred approach to such issues is strengthened by this article which would require that the welfare and best interests of the child be the first and paramount consideration in areas concerned with family law decision making such as guardianship, adoption, custody, care or the upbringing of a child. The paramountcy principle is thus not just confined to judicial proceedings, but extends to "the resolution of all disputes" including determination of the broad issues of care and upbringing. The child's voice must also be heard in any proceedings affecting him or her, having regard to his or her maturity.

According to Dr. Kilkelly, when these two provisions are taken together, they will ensure that:

decisions affecting children are focused, first and foremost, on their rights and interests. This mandates a genuinely child-focused approach to the treatment of children by all organs of the State.

Article 42.2 steers a new course by proposing to require the State to recognise and vindicate the rights of all children as individuals. Under the terms of the proposed wording, children accrue rights as individuals independent of adults. Some experts who made presentations to the committee advocated a full incorporation of the United Nations Convention of the Rights of the Child into the Constitution. I think it is fair to say that the committee took the approach that it did not want to recommend inserting in the Constitution provisions that the State was not in a position to guarantee.

Where criticisms of the report have been aired, attention has been drawn to the newly proposed Article 42.4. Some have suggested that any reduction in the threshold that allows for State intervention in the family should be resisted. This is construed as an attack on the integrity of the family; that in some way by giving rights to children we are taking them away from the family. This was not the intention of the 2007 Bill nor is it the intention of the current proposal. The newly proposed Article 42.4 sets a new threshold, based on proportionality. It is not a case of granting the State extra powers enabling social workers to wade into a family and remove the child or children. Dr. Geoffrey Shannon, the rapporteur to the Oireachtas on child protection, stated last week that the wording contained in the proposal makes clear that removal of the child from the family is a last resort, and by providing for early intervention, the likelihood of the child being taken into care is significantly reduced. He stated that proportionate intervention means minimum intervention to secure the child's welfare and safety. The removal of the child is only countenanced when all other interventions have failed.

The removal of a child from the family is a very sensitive matter and is likely to be highly contested during the course of any referendum campaign. It is my firm belief that the best interests of the child are served in a loving family unit. However, not all families and parents discharge their responsibilities to children in a proper fashion. Due to external factors, some parents cannot nurture and care for a child in a manner that satisfies the child's requirements. I believe that the increase in the number of children taken into care last year owed more to increased awareness of child protection generally and an increase in babies born to mothers addicted to drugs or alcohol in some areas, than a decline in family income.

The provisions relating to adoption do not stray too far from the original wording and the intent of the 2007 Bill. The desire in 2007 to liberalise the domestic adoption framework has been restated in the report. The Government is expected to publish any legislation that would propose change in advance of any referendum.

Having dealt with the Adoption Bill 2009 in this House some months ago, Senators know that adoption is a critical form of alternative care. The committee examined the proposed provisions that were intended to improve the prospects of adopting children of married parents, which are currently extremely limited, and also allow for the voluntary placement of children for adoption. Out of the 5,694 children who are in care today, approximately one third are in long-term foster care and might benefit from the stability of adoption. The State will be able to remove them from their parents but is unable to provide for adoption, which may be preferable in some circumstances to foster care. For the adoption of children of marriage to take place, the court must be satisfied of the following: there has been a failure in the duty towards the child for physical or moral reasons for the previous 12 months; the failure is likely to continue without interruption until the child is 18; and the failure constitutes an abandonment on the part of the parents of all constitutional rights. Moreover, the failure must be total and must arise for physical or moral reasons. It must be a joint failure by both parents.

According to Dr. Shannon:

For a significant number of children in long-term foster care, rehab with their natural family is an unobtainable goal. These children, although they no longer have access with their natural family, nevertheless legally belong to them and are not free for adoption. They can only be freed for adoption if it can be proven that the married parents of the child have so comprehensively abandoned their parental duties in such a manner as indicates that the child is unlikely ever to receive even minimal care from them. Of necessity, then, due to the Constitution these children live in a twilight world between a family that cannot fully care for them and a family that cannot fully have them.

The new Article 42.5 enables provision to be made by law for the adoption of any child where the parents have failed in their responsibility for that child for such a period as may be prescribed by law, and where the best interests of the child so require. The committee proposal aims to enhance the prospect of decisions being based more readily on what is best for the child, having regard to the importance of continuity of care.

The second proposal on adoption will make it possible for married parents to agree to the placement of a child for adoption. The committee considered that the Constitution should set out specific rights for children and noted the potential for inequality under the current constitutional provision. Reference was made last week to a recent High Court decision of Mr. Justice Sheehan, wherein he stated that children of non-marital families have lesser rights to proper provision and accommodation than children born to a marital family. We would all agree this is unsatisfactory, given the State's attempt to remove any distinction between marital and non-marital children in the Status of Children Act 1997.

The Government will now consider the report in some detail, and as the Taoiseach stated in the Dáil last week, the Attorney General will be asked to examine the constitutional ramifications arising from the proposals contained in the report. There have been calls to commit immediately to a timeframe for a referendum, but I remind all interested parties that the committee took over two years to get to its current position. The Government will need a little time to consider the full import of the proposal before committing to any timeframe. Having said that, it is my intention to bring the report to the Government in the very near future and begin deliberations.