Fidelma Healy Eames (Fine Gael) | Oireachtas source

This is a good day for all of us. Nelson Mandela's comment to the effect that "There can be no keener revelation of a society's soul than the way in which it treats its children" highlights the stage we have reached with the referendum on children's rights. I compliment the Minister, who has taken the lead in respect of this matter and spent a great deal of time researching it, on the work she has done. Her efforts and those of her team are reflected in the wording that has been produced. As previous speakers noted, the efforts of many others who preceded the Minister have also helped us to reach this stage. That fact must be acknowledged.

The majority of children have happy childhoods. The forthcoming referendum relates to those who have not enjoyed good fortune in that regard. The action that is being taken is for the benefit of those who are at risk and vulnerable and who have either been neglected or failed by their natural parents. The referendum is, therefore, really about what is in the best interests of children. I have studied the legislation and the wording it contains. I must admit that I feel comfortable about it and, given that what is proposed is so simple, I am obliged to wonder why action was not taken previously. The Minister has found a way to state that the rights of the family and those of the child can coexist. As Senator Bacik indicated, she is making it easier for judgments to be made. In view of the fact that both sets of rights will have equal standing, it will be easier for a judgment to be made with regard to who is being failed.

I welcome this amendment to the Constitution, which is long overdue and which will afford the children of Ireland the rights they deserve and need. It will also allow us to give them the protection they require. Running through the constitutional amendment and the Adoption (Amendment) Bill 2012 is the central guiding principle that acting in the best interests of the child is of paramount importance. I have a great deal of personal experience in this area because I have adopted two children, one from Ireland and one from abroad. Regardless of how much agony I might have felt as an adoptive parent, I was 100% clear that everything I did was about the best interests of the child. There have been legal cases in this country where, as a result of the position with regard to the Constitution, that to which I refer was not the central guiding principle on which the courts could rely. This has contributed hugely in the context of certain children in this country being failed. This was no more evident than in the recent Roscommon child care case. As the Minister stated in commenting on this matter, the children who were the subject of the inquiry in Roscommon were fed dog food. In view of the way the Constitution is framed, the judge who heard the case was prompted to suggest that the adults involved perhaps needed to be sent on a parenting course. It is clear that criminal acts were committed in this instance and that there was a need to act in the best interests of the child. However, the court's hands were tied behind its back.

The constitutional amendment will for the first time give children a voice and a level of visibility they have never previously had within the legal system. Thus the old adage to the effect that "Children should be seen and not heard" will be made redundant in judicial and legislative terms. Why is the amendment necessary? Some 17 reports on this issue were compiled in the past 20 years. I refer to the Ryan and Cloyne reports, various reports relating to deaths in care, the report into the Roscommon child care case and others. These reports have led us to recognise the stark deficiencies that exist in the area of child protection in this State. The abuse catalogued in some of the reports to which I refer such as that perpetrated in the Kilkenny incest and Roscommon child care cases highlights the fact that children are not afforded adequate protection under the Constitution, as it stands, and under the existing legislative framework. Put simply, the Constitution is currently not strong enough in the context of allowing the relevant authorities, etc., to act in the interests of children, when necessary. As former Supreme Court Justice Catherine McGuinness noted in respect of the Kilkenny incest case, "that the very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the rights of parents than to the rights of children."

Senator Bacik also referred to the Baby Ann case, where the rights of the marital family - as opposed to those of the adoptive family - were seen as being of paramount importance. I thank God that I never ended up in court but adoptive parents can often have children for ten, 12 or 14 months before a final adoption order is made. If a matter goes to the High Court and if it comes to a choice between the natural marital family or the adoptive family, the latter family will also fight to keep the child.

What will the constitutional amendment achieve? The wording contained in the legislation is very fair. For the first time in the country's history, children will be recognised in their own right under the Constitution. The Minister has struck a balance between protecting children and preserving the special place of the family - as laid down in Article 41 - in the Constitution. The Minister's greatest achievement in respect of this matter is the fact that the rights of the family will not be affected. As stated earlier, the rights of the family and the child will coexist. Given that what is proposed is so simple, why did we not take action in this regard before?

Equality of all children, regardless of their family status or background, lies at the heart of the constitutional amendment. Ireland's first Adoption Act was passed in 1952, which means that it has been possible for people here to adopt children for the past 60 years. In what area do the children of unmarried parents have more rights than those of their married counterparts? It ironic that the answer in this regard is in the area of adoption. Until now, only the children of unmarried parents could be adopted. The constitutional position in this regard was quite confused because in the past the unmarried mothers of the children to whom I refer were thrown into the Magdalene laundries and abused. We are all aware of the position in which the State finds itself in respect of that matter. It is high time we rectified the inequalities that have affected the children of married parents until now as a result of the way in which the Constitution is currently worded.

If passed, both the constitutional amendment and the Adoption (Amendment) Bill 2012 will ensure that children of married parents who have been in long-term care will not be obliged to wait until perhaps they are 17 years of age to prove that they were abandoned in order that they might be adopted by foster families which have loved and cared for them for a significant part of their lives. I was fortunate enough to take home a child from a foster family. The child in question was seven years old, was from a marital family and had been placed in the care of the foster family to which I refer. The child was very loved but probably lacked a real identity. It is wonderful that the position in this regard is going to change. As Dr. Geoffrey Shannon of the Adoption Authority of Ireland stated last week, the referendum will end the legal limbo in which hundreds of children find themselves and which gives rise to them drifting rudderless within the care system. It will also facilitate changes in the lives of hundreds of children across Ireland who deserve a second chance to belong to loving families.

It is about belonging. I refer to one fact I learned from listening to the Minister and her advisers and it is a very interesting point. Just because children are eligible for adoption does not mean necessarily that they will be adopted. It will be a case of whatever is in their best interests and that is very important. I have four final questions but they are very short.