Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister back to the House. It is always a pleasure to have her present. I know her personal commitment to the issue as well as her political commitment in her role as Minister for Children and Youth Affairs. From the time she was in the House as Leader of the Opposition when I was first elected I know she has had a long-standing commitment to improving children?s rights and the protection of children. We debated together on the Adoption Bill and on many other pieces of legislation.

The Bill has received deserved cross-party support. There is no doubt the Bill is one that has been carefully crafted. Everyone who has spoken to date in both Houses has recognised that. The Attorney General has had a significant input and that is evident, as is the work of the Department. We see the evidence of that in the support the Bill has received. The wording has been crafted to ensure a balance of rights and responsibilities and it has greatly improved upon the various drafts produced in previous times. That said, we all owe a debt to the Minister?s predecessors. Others have paid tribute to Ministers such as the late Brian Lenihan and Barry Andrews who started the process of drafting a children?s rights referendum. It needed the long lead-in time and extensive hearings in Oireachtas committees to arrive at a stage where we could put forward a wording with the support the Bill has received. Others have also paid tribute to the work of NGOs such as Barnardos and the Children?s Rights Alliance and Senator van Turnhout?s work which has gone into making the Bill well crafted legislation and, if adopted, a well crafted constitutional amendment.

I should declare a little interest as someone who has acted professionally as a barrister in cases involving child custody and the care of children. From that work I know that the referendum is not just of symbolic significance - although we should not underplay the symbolic significance in a State that has an appalling record on the protection of children in the past - but it also has a practical import and will have practical significance for the day-to-day work done by those working in front-line social services with children and children at risk.

The first practical reason this is important, as others have said, is that it will enable the adoption of children of married families. That is a clear imperative. I have been involved in some of those cases and I know how incredibly difficult it is under the current law, even where everyone is in agreement that the child should be adopted where the child has been in the care of foster parents over many years and where the married parents have effectively handed over responsibility. It is a difficult test and the test that will be set out in the legislation gives equality to the children of marital parents who have been in foster care for some time. It will enable justice to be done for those children who are currently in a form of legal limbo in which they cannot be adopted by their long-term foster parents despite the fact that they wish to be in that position. That is hugely important and is the first item of practical significance. It relates to Article 42A.2.

There will also be great practical significance in giving the best interest test constitutional status and ensuring the views of the child will be heard. That is provided for in Article 42A.4. This will extend not only to proceedings brought by the State but to proceedings concerning adoption, guardianship, custody or access to children. It will give great support and help to the courts, often not only in cases in which the State is seeking that a child be brought into care but also in separation and divorce proceedings between parents where the child is often caught in the middle and it can be difficult for a judge to adjudicate. It gives a judge much clearer guidance. It may also require us to expand the provision for guardian ad litem to private custody disputes. That may be for another day but it is something I have raised in the House previously, as has the Minister. It is something we should examine. There may be difficult cases involving young children where it is difficult for a judge to ascertain the views of a child when they are not apparent. In those cases guardians ad litem could add to the protection of the rights of the child and ensure that the best interest test is observed properly.

Another reason this measure will be of practical significance goes beyond those cases involving access to children and child custody. I refer to cases in which the rights of children have until now been peripheral or the courts have been unable to take them into consideration - cases such as the CC case in May 2006, in which a challenge was taken by an accused person to provisions of the criminal law concerning the existence of a strict liability offence of unlawful carnal knowledge, or statutory rape as it was called. It struck me at the time, reading the Supreme Court judgment in which it struck down the offence and declared it was in breach of the rights of accused persons that a serious offence of this nature was capable of being prosecuted on a strict liability basis, that there was a glaring absence of any consideration of the rights of the child and the State?s duty to protect the rights of children. At the time, there was a practical reason the Director of Public Prosecutions was prosecuting cases of child sexual abuse under those provisions and it made it much harder to prosecute following that judgment. I felt it would have strengthened our legal system greatly had the courts had an obligation to consider the constitutional right of the child in carrying out the balancing exercise of different constitutional rights. That is something which again will happen because of this provision and particularly because of Article 42A.1, which is the more encompassing framework right, as it has been described. That will enable the courts to take children?s rights into account in all sorts of different cases, including criminal cases in which they are currently unable to do so. Others have mentioned more direct examples of cases, such as the Baby Ann case in 2006 in which, again, it would have assisted the court had there been constitutional protection for the right of the child that could have been balanced against the rights of the marital family. People are familiar with the facts of the case, to which previous reference has been made. I take strong issue with Vincent Browne?s recent article suggesting that the Supreme Court?s judgment in 2006 might not have been affected by the passing of the referendum. I carefully read the judgment, in which the Supreme Court overruled a High Court finding that the best interests of the 17-month-old child lay in staying with the adoptive parents. It was most unusual that the Supreme Court ruled against that. Clearly, a strong factor in the decision was the paramount nature of the rights of the marital family. That is not to make a judgment or cast an aspersion on any of the individuals involved, but it would have assisted the court greatly had it been obliged to have regard to the rights of the child. In some ways it is extraordinary that it did not - that it was not a right of constitutional status and still is not.

Others have mentioned the Kilkenny incest case. The Minister referred to Mrs. Justice McGuinness?s clear commentary as far back as 1993 and, since then, the litany of abuses against children recorded in the Ryan and Murphy reports, among others. We are well aware that the State has failed children too many times in the past. Others have talked about coming to the debate without complacency and with some passion. It is important that we bring passion to the debate - a passion for the protection of the rights of children and equality for children. There was a concern that too much power might be given to the Judiciary in substituting their judgments for the judgments of parents. That has been carefully dealt with in the wording of the amendment, particularly in the reference to provisions being made by law, which will enable legislation to provide greater clarity and more comprehensive guidelines to judges.

Equality is still an issue for children of same sex parents. A strong argument is made by the campaign group Marriage Equality, with which I agree, that children cannot be treated equally until we have marriage equality for same sex and opposite sex couples. That debate is perhaps for another day. We are all in agreement that the State has failed children too many times in the past. The referendum is part of a package of measures. I compliment the Minister on the introduction of some of those other measures.

I was delighted to see the announced phasing out of detention of children in St. Patrick's Institution, which was a glaring example of how we failed and have continued to fail children for a long time. We have also passed a great number of pieces of legislation that will strengthen the protection of children such as the Criminal Justice (Withholding of Information) Bill, the National Vetting Bureau (Children and Vulnerable Persons) Bill, and so on. I see this as merely part of a whole package of measures. It is not a panacea but it will make ours a much safer state for children, both symbolically and in a very practical way.