Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

We are here to discuss the Thirty-First Amendment of the Constitution (Children) Bill 2012, a Bill that will move the position of children onto a new plane as regards recognition of the unique qualities and vulnerabilities of childhood and adolescence and reflect this in constitutional change. Few changes matter as much as this one. Much of what we do in these Houses is about legislation which, by its nature, must be about delivering to meet the needs and problems of today. Constitutional change goes way beyond this in terms of the imprint it leaves on values for upcoming generations.

The Bill provides us, as legislators, and, ultimately, the entire voting public with the rare opportunity to look at how we view children in society and reflect that view in the Constitution. Whatever the answer to this may prove to be in the decision of the people in the referendum, it is certain from the reaction to date to the proposed measures that we do not wish the position to endure that children are virtually "invisible" in the Constitution. The opportunity the Bill puts before us is for this generation to author an enduring positive message to future generations that we place among the highest values of our society the protection and welfare of children.

The Constitution, rightly, recognises the centrality of the family and the special position of parents in the care and upbringing of their children. This is guaranteed by the Constitution under Articles 41 and 42. Let me be clear that the referendum will not alter this position. Unfortunately, however, all children do not have a safe and nurturing family life and hard, sometimes awful, experience has taught us that the rights of children to be protected can reveal tensions between the constitutional rights of different parties which may complicate or suggest a basis for reservation as regards taking resolute action on behalf of the child at risk. This is not something newly discovered. As far back as 1993, Mrs. Catherine McGuinness, a former Supreme Court judge, in her report on the Kilkenny incest case, pointed to the need for constitutional change in respect of children. At the time she was talking about a young girl who had been raped over a period of 15 years by her father. When she heard the case, she felt this type of change was necessary in the Constitution in order to protect that child and other children like her. Since that time successive Governments have received report after report and evidence upon evidence that the Constitution is failing children. Members of this House will be all too familiar with the litany of human misery contained in various reports over many years. That failure was multifaceted.

That knowledge leaves us facing a simple question: do we believe the way children were treated in the State represents what we believe to be the values, morals and ethics of the people? I have absolutely no doubt that the answer of the people to that question is a resounding "No." When all of the complex and sophisticated arguments are boiled down to whether anything should be allowed to get in the way of protecting children from abuse or neglect, the common will of the people is crystal clear - the safety and welfare of the child are paramount. However, up until now we have failed to make sure this national determination to ensure the safety of children is adequately expressed, enacted and implemented. This applies across the range of discussions on the issue. This is about constitutional change, but it became clear in the discussion in the Dáil - I am sure it will here also - that it was also about how we delivered services, as well as resources. The referendum is our opportunity to put this right at a constitutional level, but it is only part of the solution.

As a Member of this House at the time, I was privileged to serve on the Joint Committee on the Constitutional Amendment on Children under the chairmanship of then Deputy Mary O'Rourke, to whom I pay tribute for the work she did as Chairman.

A huge amount of work was done on that committee, with 64 dedicated meetings and 175 written submissions. Its work means there is a significant body of study and authority in regard to the challenge of achieving an effective rebalancing of rights under the Constitution in order that there can be a greater focus on the welfare of the child.

Since taking office, my Department and I have been working very closely on the amendment, together with the Office of the Attorney General, to whom I pay tribute for the time, care and attention to detail she and all her staff have taken in working with me and my Department to make the transition from the committee wording to a robust constitutional wording. There is a transition to be made given the all-party committee wording is different. That is, in fact, what we have done to ensure we have the desired effect for children. Based on the comments and the support articulated to date from many quarters of society, including yesterday from Archbishop Martin, I believe we have struck that balance. Clearly, there will be different views and I have said again and again that there is no perfect wording. What I wanted to do was come up with a strong and robust constitutional wording that was meaningful and protected children.

The Bill proposes a new dedicated article, Article 42A, titled "Children", which will contain a series of provisions and will be put to the people as one, single question for their approval on 10 November. Members will appreciate, and we need to consider this quite carefully, that the Constitution must be read as a whole. Changes to the Constitution and the formulation of appropriate wording to achieve the desired change is a complex and challenging task. The aim of the Government in this case has been to present a coherent proposed wording which will interact, in the manner intended, with the Constitution as a whole. The balance to be struck is critical as to how effectively the new article will feature as part of the key considerations that must be carefully weighed in deciding actions on the future care of children. Critics might say it constitutes some form of attack on the family and, in particular, the rights of parents, which it certainly does not. However, I respect the right of every person to have his or her say on what is being proposed in the referendum and I am happy to address those concerns.

The Government's commitment was to bring forward a constitutional amendment to strengthen children's rights along the lines of the joint committee's recommendations. However, the committee also rightly expressed the view that many people regard Article 41 as central to the rights of the family under the Constitution and as generally reflecting the social and cultural view of the importance of the family. The committee felt that the continued existence of Article 41 provided that assurance to parents. On balance, the committee favoured retaining Article 41 and felt that the combination of its wording and that article provided a better balance of rights as between the State, the family and children, obviously in conjunction with the new article.

The Bill is fully consistent with the thinking and approach of the committee in this crucial regard. It makes no change to Article 41 and so does not remove or diminish the recognition given to the family under the Constitution. Nor does it remove or alter the rights and duties of parents under the Constitution to provide, in accordance with their means, for the education and care of their children.

Last week marked the 20th anniversary of Ireland's ratification of the United Nations Convention on the Rights of the Child, UNCRC. I have to say I have heard what I consider some rather bizarre and unfounded comments and criticism of the UNCRC. The UNCRC has been ratified by more countries than any other human rights convention, with only two countries not having ratified it. The principles of the UNCRC are important and we have done much in this country to act on those principles. I visited a conference on Friday last on play and recreation for children. The UNCRC has something very strong to say about cultural, social, play and recreational opportunities for children and, equally, it states at Article 7 that the bonds a child has to their family must be maintained and supported. It names these principles for which there is universal support.

Other issues have arisen during the initial stage of debate and more issues will undoubtedly arise in coming weeks. It is my hope that we have a debate which is fully informed. I would ask every Member of this House to play their part in fostering informed debate and to highlight childrenreferendum.ie, the website where we will reply to all of the different points which are emerging and try to give as informed a view as possible on all of the issues and the meaning of the different words, because there is quite a lot of focus on the meaning of the different words and phrases which are used in the amendment.

I ask people to read the proposed wording. It is drafted in constitutional language and is four sections long. It is not 20 pages like the stability treaty so it should be somewhat easier - if complex enough - to read in conjunction with the Constitution. On reading it, the clear purpose of this amendment comes shining through.

Childhood does not stand still and can be a very vulnerable time. We see from reports, including the child death report, that timely and effective decision-making for vulnerable children is critical. If one analyses what is in the child death report, one will find that one of the big failings was that there was not enough timely and effective decision-making and that the kinds of decision that should have been taken in order to protect them in a whole variety of ways were not taken.

Some families clearly need help and support in parenting their children and this can involve providing family support, including addiction and mental health support and family and individual counselling. The best place for a child is with the family. The intervention must be proportionate and the Government is doing an awful lot in terms of providing support to families in communities, whether it is through counselling grants, budgeting for family resource centres or direct help to families. However, in the more serious cases, children may be moved from the family and cared for by people other than their parents. It is a sad fact that more than 85% of non-voluntary admissions to care in 2011 were due to abuse, neglect and serious family problems. There are a large number of admissions to care for very short periods to support families going through transient problem; in such cases, the child returns to the family within two to three months. Clearly, that is where most effort is directed to try to ensure reunification where possible.

There are approximately 6,250 children in care placements currently. We are fortunate in this country that more than 91% of all children in care are living with a foster family. When people talk about State care, it is really important to remind ourselves that State care effectively means living with a foster family. That is different from some other countries. It is within a loving family and a family setting. Our focus when children are in care is very much on family care. Some 2,000 children have been living with a foster family for more than five years. Some of those children would be eligible, in some circumstances, for adoption but up to now have not been for the reasons I outlined. This is a referendum for all children but, in particular, for those children most vulnerable and most at risk.

What is the referendum about? It is about treating all children equally, particularly by removing inequalities in adoption. It is about protecting children from abuse and neglect by placing the protection of children at the centre of decision-making. I will outline how in the wording we have put the focus on the impact of the failure on the child. It is a newer approach to ask what is the impact of the failure on the child, as opposed to highlighting the failure of the parent. The referendum is about supporting families by reaffirming and underpinning early intervention and family support services to protect children in their homes, and that is shown by the use of the word "proportionate". It is about recognising children in their own right.

I will now focus my comments on the intent of the different elements set out in the amendment that is to be put to the people on 10 November next for incorporation in the Constitution. I will not read out each sub-article because Senators have them in front of them. Sub-article 1 sets out rights for all citizens. This sub-article will provide, for the first time, a strong affirmation of the rights and protections to be enjoyed by children as children. The proposed Article 42A specifies certain rights that relate to children having regard to their age and potential vulnerability. Given that the Constitution is to be read and interpreted as a whole, these rights relating to children will be in addition to, not instead of, existing Constitutional provision. That is a very important point.

Some lawyers have said, for example, that the general provision on the rights of all citizens is inclusive of children. Of course, it is; it relates to everyone, but what we are doing is inserting a specific article, given the vulnerable period of childhood and because we have so many reports and instances where it was considered the balance was not right. It is an addition to, not instead of, existing constitutional provision.

Sub-article 2.1will replace the current Article 42.5 under the heading of "Education" in the Constitution. Moving this article from under the "Education" provisions fits well with having a new article relating to "Children". All of the educational provisions remain in the Constitution. We have not dealt with education under this provision. The articles remain as they are in the Constitution. The committee did deal with educational provisions, but we have focused entirely on the previous article.

There has been uninformed comment, even scaremongering, on the powers the proposed amendment will give the State to intervene in the family to protect children at risk. Certainly, as I have said, the State has failed children and families in the past. It is, however, charged by the people with the duty of protecting the common good. Our job, as legislators, is to ensure services are fit for purpose to follow through effectively and efficiently on the solemn responsibility the people have entrusted to the State in that regard but in an equitable manner. As I have said, the sub-article replaces an existing provision in the Constitution which states:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as the guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

There are a number of points I wish to highlight in that regard. One is that the power is to be used in exceptional cases. Second, there must be a failure by the parents in their duty towards their children, for physical or moral reasons. That is what what was in place previously. Third, the means of intervention used by the State must be "appropriate"; and, fourth, there must be "due regard to the natural and imprescriptible rights of the child". I will not read out the new article, but, again, it refers to the State only making use of the power in exceptional cases; there must be a failure of parental duty towards the child - "where the parents, regardless of their marital status, fail in their duty towards their child"; any failure must involve the likelihoodof harm or risk to the child's safety or welfare - "to such extent that the safety or welfare of any of their children is likely to be prejudicially affected"; the actions of the State must be in balance with the harm or risk to the child that needs to be addressed "by proportionate means; the actions the State can take must be set out in law "as provided by law"; and there must always be due regard to "the natural and imprescriptible rights of the child".

The articles must be read together. The reference to "exceptional" applies to all children. It is spelled out how the harm must be analysed by "proportionate means" and the response must be "as provided by law". There is a whole series of connecting statements that must apply in the interpretation of the article. The cumulative effect of the new wording is to place the protection of children at the centre of decision-making. That is the key point. It places the protection of children at the centre of decision-making, regardless of their parent's marital status. As I have emphasised, this wording will not change the assumption in law which is shared by Irish society that the best place for children is with their families. As I have said, protecting children and supporting families are simply two sides of the same coin. With this in mind, let us be clear that it is not the mission or objective of the child protection services to take children into care unless that is absolutely necessary to ensure the child's safety and well-being. The explicit inclusion in the amendment of a reference to a response by "proportionate means" seeks to reaffirm this principle, as well as reaffirming and underpinning the State?s continuing development of early intervention and family support services, to protect children in their homes.

The commitment to not retaining children in care for longer than is necessary for their safety and welfare is perhaps best demonstrated by the fact that large numbers of children stay in care for relatively short periods.

As in the figure I quoted for 2010, one third of children who came into care were discharged within the same year.

The next sub-article is Article 42A.2.2°. The Constitution currently does not refer to the circumstances in which adoption may be provided for in law, which has created some uncertainty in the development of laws dealing with this important area. As I stated, 91% of children in care are cared for by foster families, with over 2,000 children living with the same foster family for more than five years. In not all of these cases would adoption be appropriate; the children might not want to be adopted or the foster family might not be in a position to adopt them. Nevertheless, only 16 children in foster care were adopted in each of the years 2011 and 2010. There is probably a variety of reasons for this but I will give one. The High Court cannot authorise the Adoption Authority to make an adoption order unless it is satisfied there has been a failure of duty by the parents towards their child, that this failure is likely to continue until the child is 18 years old and that the failure amounts to the parents' giving up all rights towards the child. Therefore, while it is already the case that a child who is in care may be adopted by his or her foster parents, in practice this happens to a very limited extent and only in the most extreme of cases, as the test set out in existing law is difficult to meet. The proposed wording provides for the making of legislation to allow for adoption where it is in the best interests of a child who is in foster care due to the serious and persistent failure of his or her parents in their duty towards the child, irrespective of the parents' marital status. The aim of this change is to promote family care, remove inequalities in adoption and put the treatment of all children on an equal footing.

I refer Senators to the general scheme of the adoption (amendment) Bill 2012, which outlines clearly the detailed legislation that will follow if the referendum is passed. This will come to the Houses for discussion and to be passed as legislation. I gave Senators details about what is in the draft Bill and the circumstances that will apply. This draft outlines the role of the High Court, which must be satisfied that the parental failure constitutes an abandonment of parental rights. The court must also be satisfied that adoption is the most appropriate way in which to provide for the parenting of the child. It must consider the constitutional rights of all parties, including the natural parents where they wish to be heard, but ultimately, in the resolution of these proceedings, the best interests of the child must be the paramount consideration for the court. I also outlined the timeframes involved. Parents will have to have failed in their duty towards the child for three years and have no reasonable prospect of resuming care of the child. In addition, the child will have to be at least 18 months in the care of foster parents who are applying to adopt. It is worth reminding ourselves that most adoptions in this country are inter-country adoptions, with more than 3,000 such adoptions taking place in recent years. There are very few young children available or suitable for adoption in this country and this legislation is more likely to affect older children. In other countries it is increasingly seen that it is older children who have been with foster parents for some time who are available for adoption.
Article 42A.3 concerns the voluntary placement for adoption and adoption of any child. The aim of the change is to make it possible for married parents to place their child for adoption and consent to an adoption in the same way as a parent or parents who are not married. Most people probably do not realise the current constitutional position. I am not sure what the numbers are likely to be, but this will take away an existing impediment. The numbers will probably be low. However, it brings to an end the current constitutional situation in which children are treated differently on the basis of their parents' marital status. Adoption will continue to be carefully regulated. Every adoption must go to both the Adoption Authority and the High Court. It is a stringent process and will remain so.

Article 42A.4.1° provides that the best interests of the child are the paramount consideration. This "best interests" principle is already well established in Irish statute law under the Guardianship of Infants Act 1964, the Child Care Act 1991 and the Adoption Act 2010. The referendum will give constitutional recognition to this principle. By recognising the principle at constitutional level, it is strengthened when counterbalanced against other constitutional rights and principles that might arise in such proceedings. The provision will also ensure that no future Government can repeal or dilute the existing legislation that makes the best interests of the child the paramount consideration in such proceedings.

A core objective of the proposed Article 42A.4.1o is that when the State is taking child protection proceedings which may involve removing a child from its home, for example, in proceedings taken under the Child Care Act, those deciding the matter must regard the best interests of the child to be the paramount consideration in determining arrangements for the future care and upbringing of the child. This places an appropriate discipline on the State in actions of the kind contemplated under child protection legislation. In addition, the best interests principle is to be regarded as the paramount consideration in the very considerable body of proceedings concerning adoption, guardianship, custody or access. Currently, the court in determining these proceedings applies the test of best interests of the child, subject to the rights of the family. Under the new provision the court will consider the best interest of the child having regard to the rights of the family.

The proposed Article 42A.4.2o is about ensuring that the views of the child who is capable of forming his or her own views are also taken into account. This again gives constitutional recognition to the rights of the child to have his or her views heard and given due weight in critical court proceedings in the areas of child welfare and protection, guardianship, custody and access. While this amendment refers solely to these critical court proceedings, the Department and I are equally committed to working with others in the development of legislation, policies or procedures to extend this "voice of the child" approach to other spheres of decision making. Similar to "best interests", this principle is already recognised in existing child care and family law and will be included in further legislation in those areas affecting children.

These two provisions will provide for real visibility of children in the Constitution and the decision-making of judges and the courts. I believe that the dark stain of child abuse and the failure of those in positions of power to protect children must propel us to listen to children and act in their best interests. The constitutional change we propose addresses that imbalance.

I wish to comment on the broader programme of change for children we have under way. The establishment of the Department is part of that. The programme involves a range of initiatives relating to legislation, the withholding of information legislation which has already been enacted by the Minister for Justice and Equality, Deputy Shatter, the placing on a statutory basis of Children First, the vetting legislation and the reform of child protection services. This change will not happen overnight. There is much work to be done with regard to child protection services and their development as there are inconsistencies and a lack of national data. We are addressing these issues and the change programme is under way under Gordon Jeyes, the director of child and family support services, but there is serious work to do.

We have increased the budget for child and family services, but there are increasing pressures on it. We have a small increase in the number of children coming into care, in line with the population increase and there are demands for secure care for small numbers of children who need specialist services which are extremely expensive. These are a huge demand on the budget of child and family support services. The courts are also taking a more direct interventionist approach, in terms of asking the services to provide certain sorts of care, which is very expensive. All of this adds to pressure on the services, in addition to the pressures families are under in general. I am also bringing in HIQA to look at standards in child protection. It is an important initiative to have HIQA oversee the standards.

This referendum will help ensure we treat children equally, by removing inequalities in adoption. It will protect children from abuse and neglect by providing greater clarity on the State's role. It will support families by focusing on a proportionate response and will recognise children in their own right. I thank Senators for their attention and look forward to a positive debate on this important legislation. I commend the Bill to the House.