Averil Power (Fianna Fail) | Oireachtas source

The Minister is very welcome to the House. I support comments made by other colleagues in that I consider this wording as a very careful balance. We must all be conscious of the fact that it has been worked on at Cabinet level only during the past year and a half. It is very similar to the wording agreed before the election by the previous Cabinet which was brought to that point after more than 60 meetings of an all-party committee. By the time legislation comes to this House it has gone through a most extensive process. I refer in particular to the number of meetings of that committee, on a cross-party basis. I would have confidence in generally accepting there is a reason for the wording being the way it is, and that it is appropriate in terms of the balance that has to be struck between conflicting rights.

It is significant that Article 41, which relates to the family, is staying put. It will leave in place the presumption that the child's welfare is best met in his or her natural family but with the new Article 42A we are putting in place a system by which that presumption can be displaced, by giving the child clear rights in his or her own respect. It is important to note it will be displaced only in exceptional circumstances and the wording, as it stands, makes that very clear. It is also clear that this will only occur when the child's welfare and safety are prejudicially affected. The word "prejudicially" is strong enough. The fact is we have two articles which will have to be balanced against each other, and our courts in general ensure that when they are weighing up conflicting rights they have regard for proportionality. The safeguards are already in place in that wording and for those reasons I support the amendment.

I have certain concerns. Perhaps Senator Mullen would like to come back and explain how exactly this proposal would change the threshold in question. I would have concerns about the uncertainty in that regard. If this is the appropriate threshold, as decided on by the Government and the all-party committee, I would like to know what the addition of the word "significant" means, and in what way it would make that change. The last thing we need in this area is uncertainty; that is why we are here. We have had problems in not being clear about children having rights in their own respect. They are protected as individuals under Article 40.3 but we have never had clear protection for the child, as a separate individual in his or her own right, with a separate constitutional provision to cover same. The last thing we need, therefore, is uncertainty.

In discussing this section, I point out that the wording of the referendum has obviously been considered very carefully and I support the referendum 110% because it will give children clear rights as individuals and reflect the value we should have put on children's rights a long time ago. It will reflect the value we as a society place on children and show we want to ensure they are protected from harm even when unfortunately that harm arises, in exceptional cases, in their own home. However, although the legal framework will be put in place by this amendment, I am concerned to ensure that the right procedures and supports are in place on the ground. The point was made already in debates on the referendum that there have been cases of failure in the past where the HSE did not act in circumstances in which the law was not the obstacle. We need to be very conscious of that and the fact that although this referendum is very important, it is only one small part of the solution in terms of child protection. The Minister addressed that point. I assure her of the support of this side of the House as she fights at the Cabinet table for resources for child protection and support services for children. That is how we will ensure the aspiration of the Constitution and that the legislative framework will mean real protection for children on the ground. That is the important part when this referendum goes through, as I hope it will. It is significant that it has support on an all-party basis. I am sure all Members of this House will campaign for it but that is only the start of the process of improving children's rights in this country. We must move towards implementation and proper resourcing of services.