Rónán Mullen (Independent) | Oireachtas source

I congratulate the Minister on the long journey she has taken with her Department during which time a lot of hard work has been done by many people. On the day the wording was announced I expressed my sincere view that it achieves an important balance. It maintains the principle that the State may only intervene to supply the role of parent in exceptional circumstances, and then only proportionately. Maintaining that principle does not in any way disregard the rights of children and in fact it enhances them because the time honoured presumption is that the interests of children are best guaranteed by the safety and security of their home. The State must be a cautious guardian of the common good but clearly it needs to exercise its role in certain exceptional cases.

It is time that we make a special statement about how we cherish children in the Constitution. The phrase "cherishing the children of the nation equally", which we have used for so many years, expresses people's longing for a constitutional entrenchment of our obligations to children as important and vulnerable members of our society. I have opposed the use of the phrase "children of the State" because that would have been an unfortunate and unpredictable addition to the Constitution.

While the Constitution recognised a number of important rights and values at a time when they were not acknowledged in other parts of Europe and the world, this is an area in which we need to grow and develop. However, I do not agree with the Minister that the Constitution fails children. The amendment secures an imbuing spirit going forward but to blame the Constitution for failing children would be like blaming the constitutional provisions for mothers in the home for not providing in any meaningful way for families who wish to care for children within the home, such as through taxation. The Constitution establishes the spirit but I do not think it has ever frustrated the welfare of children. Governments have failed to properly implement legislation and systems have failed but I do not accept the analysis that the Constitution has failed.

The Convention on the Rights of the Child gives international recognition of what is owed to children and I agree with the Minister that it is substantially positive in this regard. I may, however, disagree about the way certain committees seek to campaign on the basis of the convention to further agendas which I do not support. The preamble to both the 1959 Declaration on the Rights of the Child and the convention states "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal proection, before as well as after birth". Senator Hayden is correct to note this constitutional proposal is not about abortion but as I indicated in the Seanad and the media, I expect consistency in supporting this proposal because it supports the welfare of children. I expect a Government with includes a majority party that committed in advance of the last election to guaranteeing the best medical care for women and upholding the duty of care to the child to put the unborn child on the same level. Any indications to the contrary in the coming weeks and months would make a mockery of this Government's declared commitment to uphold and protect the welfare of children.

That is even more the case when we know and need to affirm there is nothing in the European Court of Human Rights decision that states we have to legislate for abortion. It is clear we can give the necessary legal clarity on the best medical practice that takes place in Ireland and the reason we have the lowest maternal mortality in the world. I make no apologies for introducing that point because consistency is of the utmost importance and there is a duty on us to cherish human life at all stages. Otherwise, what we are talking about is absolute nonsense and hypocrisy. Therefore the point must be made in the same way that Senator Hayden was right to raise the point about the Magdalene laundries.

I would not be doing my duty if I did not seek to look at the wording of the amendment and ask particular questions. I have tabled some amendments which we can debate tomorrow. I do so in a profoundly sincere spirit of seeking greater clarity and precision about what is meant in the wording. Also, I am proposing that certain additions would further the intentions of the Government in circumstances in which the wording may be vague and its precise meaning unpredictable. It is our job to provide legal scrutiny, to ask those questions and to engage in a genuine searching debate. While the proposal is broadly good and balanced, certain important issues need to be clarified and examined. I shall deal with the detail of those tomorrow but I wish to flag some of the issues. It is difficult to know precisely, at first reading, whether the Government thinks that the introduction of the phrase "fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected," raises the threshold for intervention, lowers it or leaves it the same as it was. It is difficult to gain a precise sense of what "prejudicially affected" means. Clearly, in view of what I said about the need to be consistent about life at all stages, it is absolutely beyond argument that there must be no difference between the children of marital families and the children of single-parent families when it comes the State's right and duty to intervene. In a sense, that is the golden thread of equality based on which all must support what the referendum proposes, and is one of the reasons it is worthy of support, the other being the provision that the children of marital parents may be adopted in certain cases. I ask whether the phrase "prejudicially affected" goes beyond or changes the current text, which refers to failure. There is also the deletion of the phrase "for physical and moral reasons." What change does the exclusion of those words bring about? Does the Minister consider it widens the scope for intervention by the State?

A third issue, which is addressed in one of my proposed amendments, is that provision can be made by law for the adoption of any child. Obviously, the Constitution must be changed with a eye to future possible legislation and therefore we cannot judge it in terms of the legislation being proposed. However, I believe it is the Government's intention that forceable adoption - that is, the non-voluntary placing for adoption of a child - can happen only in exceptional cases and where the parental failure meets the test set out in sub-article 2.1, namely, in the event that the parents fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected. Must that test be met before it shall be constitutionally permissible for provision to be made in law for the adoption of any child? I submit that the inclusion of the words "in particular" would put that issue beyond doubt in a way that would be very helpful - perhaps essential - provided the Minister intends that same threshold be met before the law can make provision for the placement for adoption of children in such circumstances.

I read and listened carefully to the Minister's speech. With regard to the best interests of the child being the paramount consideration, the legal position is that there is a presumption that the best interests of the child are secured within the marital family. That is a rebuttable presumption. Does that remain the case? I presume the application of the best interests test takes place at the second stage of the process, the first stage being that the State intervenes only in exceptional cases, as stated in sub-article 2.1, and, that test having been met, the best interests being the paramount consideration becomes relevant. I would welcome clarification of that issue. If the best interests test on its own were to balance out, modify or qualify the meaning of sub-article 2.1, that would change the position. I apologise that some of these arguments may appear to be technical considerations. However, we are changing the Constitution and we are all approaching it in a spirit of goodwill. We seek to vindicate the best interests of children and we need to know these things. The electorate has a right to know, including those people who are perhaps unnecessarily worried about an overly adventurous State. Even with regard to the Baby Ann case, which Senator van Turnhout mentioned, there is another way of looking at it; social workers do not necessarily come out of it well, if I recall the judicial reasoning correctly. I remember seeing that case; the constitutional position was as it was. It is not our main point today.