Rónán Mullen (Independent)

I thank Senator O'Toole for sharing time and I welcome the Minister of State. Tributes are due to the joint committee in respect of the hard work it has done. I hope we will have more than one debate on this matter in the coming weeks and months. In light of the importance of this topic, the time allocated is too short to allow Members to tease out the relevant issues properly. I will be asking the Leader to schedule further debates on this matter. Let us consider this to be an opening opportunity to debate the issues involved.

In paying tribute to the committee, I note that it was unanimous in making its recommendations. However, we should not confuse this with an idea that there is cross-party support. We need discussion within the parties on what has been proposed by the committee. While the proposal contains much that is meritorious, there are certain key issues that will have to be addressed and changed.

There is no doubt that the main thrust of the proposed amendment dealing with the rights of the child is to give the State more interventionist power. However, we know from previous case law dealing with the educational needs of disabled and homeless children that the State has sat on its hands; I am thinking of the Sinnott case and the case of T.D. v. the Minister for Education and others. This is not to forget the all too easily forgotten reality that recent revelations show that the State is in a poor position to take the moral high ground when it comes to child welfare. This is not rule out, a priori, the possibility that the constitutional threshold for State intervention is too high. If a case was suitable as a justification for this contention, it would be the heel prick case, although even in this instance, one would not have to try too hard to imagine how State intervention in medical decisions affecting children could quickly shift from being "proportional and reasonable" to arbitrary usurpation of parental authority.

There are legitimate concerns about the issue of children in the custody of their married parents. I welcome in general terms the desirability of providing for the greater potential of the State to intervene in cases of abuse and also in certain situations involving the adoption of children of married parents. The very well documented abuse cases quoted in recent days are covered by existing constitutional provisions as thousands of children are taken into the care of the State each year. This view is accepted by eminent persons such as Gerard Hogan who recently stated he disagreed with the suggestion that current constitutional provisions for the protection of children had not worked well, did not strike the right balance or were in some way responsible for many modern ills. He saw this as a grotesque misstatement and misunderstanding of the constitutional provisions.

Turning to the specific provisions of the proposed amendment, I am struck by the rather novel concept of "children of the State" in the first paragraph of the article. I note the Minister of State has referred to the 1916 Proclamation and the fact that it refers to all of the children of the Gael, not only minors. More to the point, the Proclamation refers to children of the nation, not to children of the State. When one shifts the course of a ship by one or two degrees, it may not make much difference at the outset but at the destination point it may make quite a difference. That is precisely the type of issue we need to tease out very carefully in the coming weeks and months. The idea of "children of the State" suggests the concept of the State as parent. I am not sure that is the appropriate way to look at its role, even if, on occasion, it must be required to take the place of the parent, which is a different idea. I wonder about the implications this concept could have for the courts, without wishing to be definite about the implications it might have. Could it exclude the possibility of non-citizens enjoying certain categories of rights? Would the provision establish the idea of the State's children and, as such, are we looking at a rather dramatic transfer of rights and responsibilities from parents to the State? A strong case can be made for eliminating that part of the proposed amendment, as it is too vague and rhetorical and its relationship with the more specific statements on the duties of the State and parents is completely unclear.

This is not the only example of potentially problematic ambiguity in what is proposed. The third paragraph deals with the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child. I wonder whether, on the basis of consistency, we should ask whether, in the context of the consideration of divorce proceedings, the principle of paramountcy should also apply, whereby the child's best interests would be paramount and the first consideration. We are all in favour of ensuring the best interests of the child but there is something of a mother and apple pie dimension to this, as Gerard Hogan stated. However, we must ask ourselves, when we speak about ensuring the best interests of the child, who will decide what these are and how it will be done. We are only scratching the surface of this issue today and as such, I would not like anything I state at this point in such hasty circumstances to be regarded as conclusive of my views. We need to tease out these matters.

I find it strange, given that Article 41 is so strong on the family, that there is no mention of the family in the proposed Article 42. I wonder whether there is a need for an amendment to the effect that there would be a presumption in favour of a child's welfare being best supported within the family, although I suspect Article 41 already provides for this. I also wonder whether, in the light of the social and scientific data, there should be an acknowledgement that, while we seek to treat all children equally regardless of their family circumstances, if we really care about the welfare of children, we should also seek to enshrine a presumption or assumption by the State that generally a low-conflict marital lifelong relationship between the natural parents is in a child's best interests, if one takes an honest look at the data.

We have further to go on this matter. I hope we will have a very respectful debate in the coming weeks and months and that we will have robust exchanges because these are very important issues. If we are united on the aim of genuinely seeking to protect children, particularly the most vulnerable children in our society, we will surely arrive at the right answer.