Jillian van Turnhout (Independent) | Oireachtas source

Successive Governments have made promises to strengthen children?s rights in the Constitution and with this in mind I heartily congratulate the Government, and in particular the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, for publishing the wording and for setting the date for the children?s referendum.

Acknowledgement of the need for change is not new. It was first raised in the Oireachtas more than 35 years ago by former Senator, later President of Ireland, Mary Robinson, during the 1976 debate in this House on the powers of the Adoption Board. In recent years the Oireachtas has spent significant time discussing horrific reports concerning the abuse of children. When the child death review group report was published in June, I expressed my profound sadness and a sense of the responsibility and shame I bear as a member of society that has systematically failed to protect our most vulnerable children.

The opportunity presented by this referendum brings us closer to securing constitutional change that will make a real and positive difference to all children in Ireland. For several years I have campaigned for children?s rights. With others, we moved the need to strengthen children?s rights in the Constitution up the political agenda. I wish to take a brief moment to pay tribute to others whose steadfast commitment and dedication to children?s rights has helped bring us to this vitally important juncture. First, I thank the Minister and commend the Government for prioritising the referendum.

I also thank the former Minister of State with responsibility for children and youth affairs from 2002-07, the late Brian Lenihan. He was the first Minister for children to secure a seat at the Cabinet table and was instrumental in securing significant advances for children during his tenure. He recognised the need to bring about constitutional change for children and threw his energies into examining this issue.

I also pay tribute to the former Deputy, Mary O'Rourke, who in her role as chair of the Oireachtas Joint Committee on the Constitutional Amendment on Children, worked to secure all-party agreement on this issue. She was aided by all members of the committee but I pay particular tribute to the Minister for Justice and Equality, Deputy Alan Shatter, and Deputy Caoimhghín Ó Caoláin, who in their respective roles as Opposition spokespersons, showed great leadership on that committee.

I pay tribute to the non-governmental and civil society organisations which have been convinced for a long time of the need to strengthen children's rights in the Constitution and have campaigned relentlessly to spur us on to this point. In particular, I highlight the role of the Children's Rights Alliance, Barnardos and the ISPCC, with more than 100 member organisations of the CRA. Last, but certainly not least, I thank Dr. Geoffrey Shannon whose expertise on child and family law is renowned and whose work as special rapporteur on child protection has heightened public awareness.

I refer to the amendment before us, that will shortly go before the people for their considered opinion. I do not believe it will be a surprise to the Minister that I would have preferred if it had gone further in a number of areas, particularly in stating certain rights such as the right to identity. I am keenly aware that more than 50,000 adopted persons have no automatic legal right to their birth certificate, medical information or history, or any legal right to trace information about their identity. We will be able to address this issue in part through legislation but aspects may need to be addressed at constitutional level. Legislative and constitutional change on this area is an issue for which I will continue to advocate.

I considered tabling some amendments to the Bill but after long reflection I believe the wording of the proposal before us strikes an appropriate balance. However, when I outline some points both today and on Committee Stage I hope to get the commitment of the Minister in response. I reserve the right to table amendments on Report Stage if I believe it to be necessary.

Although I have waited a long time for this referendum, I know that even if it is successful, it will not be a panacea to solve all ills. There are many issues facing children and families today for which I will continue to advocate strongly, both inside and outside the Seanad. It is our role as legislators to be ambitious on behalf of the people and, in this case, on behalf of children and their families. I am convinced that a constitutional amendment on children's rights is absolutely necessary. It is needed to overcome legal road blocks that prevent us from fully protecting children and supporting families, hamper us from making decisions that are child-centred and prevent us from reforming our adoption laws.

I turn my attention to the campaign period we are about to commence. In years gone by children were seen but not heard. I hope we will not have a campaign in which we see but do not hear, where we may see posters on lampposts but the air waves will be practically silent and decisions are made in a void. The media will have a critical role to play. From speaking to groups in recent days I believe there is a real appetite to know exactly what people are being asked to vote upon. People do not want to hear generalities about children's rights but want to understand what this amendment means. I have heard parents say, "This amendment won't affect my child". Maybe it will not, but it is every parent's safety net, if one I hope they will never need to use. However, if there is a family bereavement or break-up, for example, one would want a legal safety net to be in place.

We should not underestimate the power of the people and their opportunity to vote on 10 November and say "Yes; children have rights". I call on all journalists to take time to understand what this referendum means and use their platform to inform the public. I call on all political parties, groups and representatives to use their voices and their feet to inform as many people as possible. Several non-governmental organisations and civil society organisations have campaign plans in place.

It is fitting that the referendum will take place on Saturday, 10 November, the birthday of Padraic Pearse who, when reading out the Proclamation in 1916, urged us to cherish all the children of the nation equally. I realise he did not mean children in a literal way but the concept of cherishing children and childhood is close to the hearts of many of us. I very much welcome the decision by the Government to hold the referendum on a Saturday, thereby allowing young people to go back to their constituencies to vote and ensuring that schools do not have to close unnecessarily.

I strongly advocated for Saturday voting when I was the president of the National Youth Council of Ireland in 1999 and maintain that this should be the case for all referenda and elections.

Let me take the amendment point by point. I propose, where time does not permit today, to come back on Committee Stage to address particular aspects.

The potential of Article 42A.1 is huge. Its interpretation will be important as it is the bedrock of the entire amendment. I trust that the courts will be informing their interpretation of the provisions against the UN Convention on the Rights of the Child. This provision should guide and potentially strengthen the protection of children in other areas if read with other laws. It provides signposts for the courts, policymakers and decisions makers that children are independent rights holders. I will come back to this point on Committee Stage.

On Article 42A.2.1°, I have stated on several occasions that I hoped the proposed amendment would enumerate the word "proportionate" and I welcome its inclusion. I note the proportionality test as set out in law in Heaney v. Ireland and will elaborate on it on Committee Stage.

The majority of care planning does not include thinking of a permanent care solution for children. Children can drift in the care system indefinitely. This provision will be a significant shift in how we approach taking children into care. It will reframe how and when the State should intervene. It has important safeguards built in to protect against unwarranted interventions by using the words "exceptional cases" and "proportionate".

The Minister should note that I considered amending the Irish language translation of "exceptional"?, to which some have attributed the literal translation "uncommon", but I am now satisfied that there is sufficient judicial precedent around "exceptional" to allay any concern in this regard.

On the articles on adoption, first, I very much welcome the publication of the Minister's intentions on the adoption Bill. This is an intricate area that will need some thoughtful and careful consideration. The Minister mentioned that there are approximately 2,000 children who, if this legislation is passed, may become eligible for adoption, that is, children that have been in foster care for five years or more. Not every child wishes to be adopted, nor does every foster parent wish to adopt. We need to ensure that there are options available to suit each circumstance. I encourage the Minister to introduce the Bill in the Seanad to allow for that deliberation.

I welcome the use of the term "shall be made by law", although its power has been overstated in some statements. Effectively, it means that these provisions will be dependent and, in fact, puts an obligation on us in the Oireachtas to legislate. This is the first of four places in the proposed amendment which we need to provide for in law and there will be considerable work for us. It is important that the Minister would outline the timetable for the legislation related to this amendment.

Another important question which, I suppose, is one of those which are indeterminable, is how judges will balance these provisions against Article 41. When discussing N v. HSE [2006], more commonly known as the Baby Ann case, I have always stated that strengthening children's rights may not necessarily have changed the outcome of this case. However, I believe that this amendment would have changed the way in which it was handled.

In effect, the Baby Ann case could be summed up by saying, "You have my property ? I am entitled to it and so give me my property back." The judgment in this case follows a long line of jurisprudence in the adoption field, particularly two dating from 1966 and 1985. These judgments are Re: J [1966] I.R. and Re: J.H. [1985] I.R. In both of those cases, the courts concluded that the child should be returned to its natural parents. This amendment would have allowed for Baby Ann to be viewed as an autonomous being with constitutional rights ? the same as any other citizen ? not greater or lesser, but equal. That is hugely significant.

In considering Article 42A.4.1°, I recognise that the Minister wished to exclude cases taken against the State by using the term "brought by the State", but this has unintended consequences, which I would ask her to commit to addressing through legislation. In particular, I would cite the Child Abduction and Enforcement of Custody Orders Act 1991.

I noted, in the Dáil last week and today, the Kilkenny, Roscommon and child death reports cited. This provision does not remedy the failure of the State to act on the concerns of family and extended family members, which were key features of these reports, and this concerns me. It is an issue to which we need to return.