Rónán Mullen (Independent) | Oireachtas source

Tairgim leasú a 2:

I gCuid 1, leathanach 7, líne 10, ?suntasach? a chur isteach i ndiaidh ?dochar?,
agus
I gCuid 2, leathanach 9, líne 10, ?and significantly? a chur isteach i ndiaidh ?prejudicially?.

I move amendment No. 2:

In Part 1, page 6, line 10, after ?dochar? to insert ?suntasach?,
and
In Part 2, page 8, line 10, after ?prejudicially? to insert ?and significantly?.

I welcome the Minister to the House and apologise for the fact I was not in a position to hear her responses yesterday. I have found the past few minutes of this debate particularly engaging. Many important and profound points have been made, both by Senator Jim Walsh and the Minister. It occurred to me at one point that in recent months as we have been reflecting on the referendum, much of what we are talking about focuses on dealing with problems that arise.

The Constitution is also a document that sets out our national vision. It is our basic law, our bunreacht. We also have our directive principles of social policy, which enjoy a different status in terms of justiciability. The Constitution lays out the vision for what we seek to be as a people and a society. It occurred to me that in another time and place, we might also have seen fit to find some constitutional means of expressing our national aspiration that the State would acknowledge or pledge to respect and vindicate, as far as practicable, the natural right of children to be raised by their biological parents. The gold standard internationally is recognised as two biological parents in a low conflict marriage. This aspiration must be circumscribed by law. People go to prison and people are bereaved, etc. However, perhaps in the future we will find a fair and respectful way, mindful of the complexities of so many people's lives, to be truthful about what we believe to be in the best interests of children and what we should seek to promote and support as a state.

I mean this in no intemperate sense, but in a playful sense, when I say that I am always amused as a politician - I recognise why it happens - when I hear the Vatican being roped in in support of particular measures and on other occasions cut adrift when its philosophy and values are challenging. This comment is not in any way directed at the Minister. I am sure the papal nuncio will take consolation from the fact that were the country in question Iran, the Vatican would not be cited with approval in the national parliament. I hope this citation betokens a welcome thaw in relations. It seems there is goodwill on all sides.

While welcoming the referendum proposal, I commend the Minister and others, particularly Senator van Turnhout who has invested much time, energy and personal commitment on this issue. People like Dr. Geoffrey Shannon and many others deserve great credit for their focus on what needs to be done to vindicate the rights of children in society. I stated yesterday that I felt it my duty to examine the text closely to see whether it was the best it could be. I offer only my own opinions, having regard to the advice I said I would seek and the study I said I would give the matter. I have submitted two amendments which I believe would shore up what I regard as the intended meaning of the Constitution. I think that what I propose will make the meaning more coherent and, perhaps, prevent certain phrases from introducing any unhelpful incoherence. We should avoid confronting our courts with significant interpretive challenges in the future.

Amendment No. 2 has to do with the test for parental failure. As we know, the constitutional order being replaced provides that the State shall endeavour to supply the place of the parents where parents fail, for physical or moral reasons. We are moving away from that notion of the reason for the failure towards introducing a definition of the level of failure. What is proposed is that the failure would be to such extent that the safety or welfare of any of the children is likely to be prejudicially affected. This is a new specification of parental failure and is not present in the current wording of Article 42.5.

The phrase "affect prejudicially" appears already in the Constitution in Article 44.2.4^o, which provides:

Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

We note that the phrase "affect prejudicially" is used in connection with a child's right. However, the new wording in the proposed Article 42A connects the notion of prejudicially affecting to the question of a child's welfare. It is clear that welfare is a more indeterminate concept than the notion of a right and possibly a concept with a less substantial constitutional and legislative status.

What I am saying is that the notion of prejudicially affecting here might, for example, have a very low threshold.

We can contemplate with serenity the idea that even the slightest impact on a right would be something the Constitution would forbid, although it does allow it in some cases. If we are dealing with something that is more difficult to determine, such as welfare, then the notion of something being prejudicially affected, were that to mean even a slight negative impact, might be quite troublesome for many voters. In all of the child care, adoption and guardianship Acts, I can find only one mention of the cognate term "prejudice" and, again, it is in connection with children's rights as distinct from welfare. The phrase talks about the High Court giving "a direction in respect of such order, extension or variation which would prejudice, or otherwise interfere with, the rights of the child in the proceedings". Again, one has the notion of prejudice linked with prejudicing rights.

What I am trying to suggest is that the clause is at least partly innovative. I am concerned that the phrase "prejudicially affected" is rather vague. It does not of itself imply failure on the part of parents to talk about a child's welfare being "prejudicially affected". It is obviously linked with parental failure but it is the test of parental failure that will permit the State to intervene. Bearing in mind its dictionary definition, "prejudicial" connotes a negative or injurious effect when applied here to the question of child welfare. However, it does not of itself denote a negative effect that would, for example, be so injurious or sustained as to constitute a serious or significant parental failure.

Good parents may sometimes act in ways that will impinge negatively on their children's welfare, but we would regard that in many cases as being a long way from what we would describe as the kind of parental failure that requires the State to endeavour to supply the place of parents. As we all know, all parents fail at some time or another. Good parents fail, but failure can be momentary, it can be temporary, it can be accidental, it can be substantial or it can be ongoing. Therefore, the question is: what is the level of failure that can attract State intervention of the kind to be contemplated by the Constitution? In a sense, we are introducing a threshold for failure that is not referred to in the existing article. This is why I say we could be presenting the courts with a significant interpretative challenge. I wonder whether the phrase "prejudicially affected" is out of step with the phrase "in exceptional cases" and with the term "fail". I ask this in a spirit of genuinely seeking to deal with a problem I think may be there. I took advice and agonised about what might improve the situation. The wording I propose is that the child's welfare could be "prejudicially and significantly affected".

What I do not want to do is to introduce such a high threshold that the State would not be able to do what we know the State must be able to do. However, if one asks the question, "If we regard a parental failure as not being significant, should the State be allowed to intervene in the way contemplated?", the obvious answer is "No". If a failure is not significant, clearly it is not the time for the State to intervene. Therefore, I believe the use of the phrase "and significantly" might assist matters.

There are people who, rightly or wrongly, are concerned about what they would see as a busybody State. They want a caring State but they do not want a busybody State. They want a State that is ready and able to intervene when appropriate but they do not want a State under which social workers or others intervene in matters that are not appropriate. In countries such as Sweden, controversies have occurred in regard to intervention by the state services in ways that turned out to be inappropriate. Of course, this happened in cases in which parents were not perfect, but the problem was that their imperfection was not to such an extent that the state had a right to intervene. These are difficult issues.

Looking at what is set out in legislation and elsewhere, it is hard to find anything that helps us understand what "prejudicially affected" might mean. By contrast, the concept of "significant" is to be found in Article 35.3.b of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which states: "The Court shall declare inadmissible any individual application submitted under Article 34 [where] ... the applicant has not suffered a significant disadvantage". It is not proposing a word that has not been used or that does not have some standing.

My amendment would add coherence to the relevant subsection by adding the phrase "and significantly" after the word "prejudicially". The notion of a significant negative effect is already made use of in Article 35.3.b of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I said that people are sometimes worried about the State's intervention. Those concerns are sometimes grounded in reality and sometimes ill-founded. However, there are situations in which one does have to adjudicate on whether such concern is grounded or ill-founded because one can remediate the situation in advance and prevent the possibility of misunderstanding. It is in that spirit that I have proposed this amendment.