Seanad debates

Wednesday, 3 October 2012

Thirty-First Amendment of the Constitution (Children) Bill 2012: Committee Stage

 

12:45 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank Senators for their contributions on the amendment. I am happy to give as much information as possible on this matter. I hope this information will be of assistance in the context of people understanding the approach we have taken to this article.

My first point relates to children being taken into care. It is important to lay down a marker to the effect that the State is not rushing into taking children into care. There was a 3% increase in the number of children coming into care last year but this was in line with the increase in the population. By international standards, Ireland is quite low on the league table in the context of the number of children coming into care. People are not rushing to put children into care. It is something that happens late and in circumstances where families have not been able to look after their children where there are questions of abuse, neglect, incapacity to cope, etc. I intend to comment in detail on the criteria currently used in respect of this matter. I am sure the lawyers present will agree that there is no evidence of the Supreme Court micromanaging parental duties or rights. We do not have such a tradition in this country, in fact the position here is quite the opposite. That is an important point to make in order to provide something of a backdrop to this debate.

Senator Walsh referred to the wording put forward by the Joint Committee on the Constitutional Amendment on Children, which was to the effect that "Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means ...". I examined that wording very carefully in order to establish how we might deal with the formulation. Some might argue, as did Senator Walsh, that the threshold in this regard is too low, while others might say that the threshold is correct and that it reflects the point at which we should intervene. I have chosen to take some of the best parts of the wording brought forward by the joint committee and, like the latter, I have chosen to leave Article 41 in place.

In the interests of providing a background to the discussion on this matter, I wish to make a number of points regarding our existing constitutional and statutory framework. That framework provides that the State may intervene in cases where children are not receiving adequate care and protection. Some people are approaching this debate on the basis that we do not already have legislation in place which deals very clearly with many of these issues. As Senator Bacik indicated, that legislation is being applied in the courts on a daily basis. For example, section 3 of the Child Care Act clearly delineates how the State may intervene. It also sets out the circumstances in which such interventions can take place and establishes that the welfare of the child is the paramount consideration. This is, however, qualified by the requirement to have regard to the rights and duties of parents, recognising that it is generally in the best interests of a child to be brought up in its own family. That is the starting position.

The amendment, in its totality and in the context of the other provisions in the Constitution, makes clear that there is a range of rights to be considered in these cases. No one set of rights trumps all others. At the core of our discussion is the question relating to what are the balances involved.

I reiterate that there will be no change to Article 41. The presumption will continue to be that the best interests of the child are best met within his or her family. That is an important point. The rights of the child are expressly recognised in the proposed new Article 42A. The constitutional recognition of the principle of best interests, contained in the proposed new Article 42A.1, will operate as a sort of counterbalance against other constitutional rights. We are not concerned here with a strict hierarchy of rights; we are, rather, concerned with the ability to balance those rights. When one thinks about it, that is precisely what one would want to see happen in the courts when key decisions relating to children's futures are being made. Such decisions relate to matters including where a child will live in the future and they also encompass issues such as parenting, adoption and access. These are absolutely key decisions, regardless of whether the child is five, ten or 15 years of age.

The provision relating to best interests is mandatory because the word "shall" is used. The provision sets out that the Oireachtas shall legislate to provide for the best interests of the child being of paramount consideration in determining certain proceedings. The courts will, when applying this principle, have regard to the constitutional framework and all of the rights contained therein, including those of the family. We are referring here, therefore, to the constitutional rights of parents. The overall impact will be to ensure that in the future the best interests of the child must be considered, having regard - but not being subject - to the constitutional rights of parents. This is a very careful counterbalance. I reiterate that the basis of the policy intent in framing this article was to ensure there will be a more child-centred approach to decision-making in these areas.

I am sure Senator Mullen will probably have comment to offer in this regard but I thought Archbishop Martin put it very well when he stated-----

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