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

-----that it was long past time we highlighted the rights of children . He also referred to the type of balancing we are seeking to bring about.

Senator Mullen referred to physical and moral considerations. As Senators are aware, the term "physical and moral reasons" is contained in the existing version of the Constitution. If we included reference to physical and moral considerations in the wording to be put to the people in the referendum, I am of the view that the ordinary - as opposed to the constitutional - meaning of that would be quite difficult to explain. What we have done is recast the article to reflect concerns which are more relevant and which really capture contemporary thinking with regard to children.

The aim is to highlight the impact on the child. The focus is not on the failure of the parents but rather the impact of that failure on the child. The joint committee report did not include the phrase, "physical and moral" either but I have included a section that looks at the impact on the child. This is very appropriate.

Under Article 42.5 the court is not only obliged to satisfy itself of the existence of parental failure but must attribute it to either a physical or moral failure. It could be that due to a physical disability the parent did not have the capacity to care for his or her child, whereas a parental failure that could not be attributed to a physical failing was a moral reason. I remember someone saying to me that in the court decisions where physical or moral failure was used, the headings of physical or moral were used to encompass many aspects. The proposed formulation is a more straightforward one which can take account of physical failure. It is a question of what is meant by "moral" in the contemporary context. This could have given rise to much debate that is not relevant to the key points.

I emphasise the key intent in order that people will understand the change. The key intent of the policy is to move to a more child-centred focus within the constitutional provision relating to State intervention in the place of parents. This demands a change in the orientation of the provision around the needs of the child and in that context the impact of the behaviour, whether blameworthy or not, on the child. Particular care is taken to retain the threshold for intervention. In that respect, "prejudicially affected" is seen to be very much in line with the provisions of the Child Care Act 1991. The focus of the policy rationale is to encourage judicial decision-making in which the focus for the judge is on the effect of the behaviour on the child rather than the culpability of the parents. I am satisfied that the focus on the nature of the impact of the failure is an important alternative qualifying aspect of the provision. An important point is that it is further qualified by "in exceptional cases" and "proportionate". One must consider the combination of words. For example, the words, "prejudicially affected" cannot be taken alone. Any court or judge will look at "proportionate" and "in exceptional" and "prejudicially affected". It is important, in my view, to look at the whole range of wording in that provision. It is not simply a question of removing one wording. The proposed wording carries forward the recognition of the constitutional status of the family while taking a child-centred approach. There will be a series of criteria. The failure of parental duty towards the child must exist, regardless of marital status. Any failure must involve the likelihood of harm or risk to the child's safety or welfare. I emphasise the word, "likelihood" and it is to such extent that the safety or welfare of the child is likely to be prejudicially affected. I refer to the term, "proportionate" which means that the actions of the State must be in balance with the harm or risk to the child that needs to be addressed. The actions which the State can take must be set out in law and there must always be due regard to the natural and imprescriptible rights of the child. These are a series of applications that will have to be taken into account and no one is taken on its own. This will be the case in the courts.

I will expand on this point in the interests of clarifying the policy. Under the proposed Article, as drafted, the State may only intervene in exceptional cases. This makes clear that the bar for intervention is high and that the State cannot intervene where the concern for the child's safety or welfare is not a significant one. In that regard, the inclusion of the word "likely" clearly indicates a well assessed and evidenced approach is needed to underpin action of the kind comprehended in the section. To further qualify this provision, inserting "and significantly" would lead to uncertainty in terms of its interaction with "in exceptional cases" and the relative nature of the term to be inserted.

In considering the proposal I have to bear in mind the core objective of protecting children and to ask myself if the addition of the words "and significantly" to the existing requirements for action under the provision, would best serve the attainment of that objective. The question I have to ask when I examine the Senator's amendment is whether it adds to that objective of protecting children.

I refer to the detailed process relating to the application for and the making of care orders for children, which I will summarise briefly for the information of the House. I reiterate that there is no rush to take a child into care; it is a last resort. It arises where social workers and others, including gardaí, doctors and teachers, are sufficiently concerned regarding a child's welfare and safety, and where efforts made by the HSE to support the parents - in the future this will be the role of the new child and family support agency, as mentioned by Senator Henry - in providing a safe environment for the child have been unsuccessful. That is the point at which an application can be made to the courts for a care order.

I reiterate the point that last year, 1,500 children who had been sexually and physically abused were brought into care. That is a significant number of children and those are the statistics from 2011. In such cases, the HSE, through the delegated authority of the social worker, must give evidence of the neglect or abuse that has been observed, the efforts made to support the parents and the risk that the situation will continue unless there is intervention by way of a court decision. I really wish that we could hear more in public about some of the family law cases because people forget that this legislation is in place and that these cases are being heard every day in our courts. The judge makes a determination based on the evidence presented. There were some questions yesterday as to how it can be assured that the views of the child can be represented and the guardian ad litemsystem is one way. Senator Norris has a particular interest in this matter. However, that system needs a more national approach and I will be working on that. It has been too ad hoc and it needs a further development. Legislation will be required.

For the information of the House, in 2010, 55% of children in care were subject to an emergency care order, an interim care order or a care order, and the remaining 45% were in care under a voluntary agreement. There are quite a number of families who voluntarily request support from the State and who are unable to continue to care for their children. It is very difficult for people to understand this. Senator Mullen made the point that the lens through which we discuss this provision is the lens through which we view the disadvantaged or vulnerable children and we have to remind ourselves that there have been dramatic changes in Irish childhoods and that the vast majority of Irish children have good childhoods. Our attitudes to physical punishment and to parenting have changed. I refer to the great care and love given by the vast majority of parents to their children. It is easy to forget this fact when discussing the more vulnerable group of children. The Senator is right to remind us of it.

The proposed amendment, as drafted, is measured and effective in the protection of children. I do not intend to accept Senator Mullen's amendment and I hope he understands the reasons I will not accept it.

I have tried to clarify the reasons the Government did not retain the wording proposed by the committee but instead sought to develop a formulation that would reflect the types of balance to which I referred. There is a balance there in the imperative to protect children's rights while recognising that children are brought into the care system only in exceptional circumstances. Of the 1.2 million children in the State, 6,000 are currently in care, with 2,000 of those being in the system for more than five years. In other words, taking children into State care is an exceptional course of action and the State's actions in this regard must always be proportionate.

The need to improve child protection services, as raised by Senator Averil Power, is a matter for debate in its own right. I accept there is a great deal of work to do in this regard, whether in legislative terms or in terms of the quality and consistency of services we would like to see, and it will not be done overnight. It is important to note that when children are taken into care in this country, they are brought into a family care setting. It is not really a question of whether one can trust the State. In fact, 92% of children who are taken into care are entrusted to foster families. I accept, nonetheless, that there is an ongoing standards issue in regard to foster care which must be addressed.

I hope I have given Members a clear view on how we arrived at the proposed wording and the balances we have sought to include. As I said, our focus moved more towards the impact on the child as opposed to the failure of the parent. In that context, the phrase "prejudicially affected" must be seen in the context of the clear statement in the proposed article that any action by the State will be "proportionate" and apply only in "exceptional" circumstances. I assure Members that there is no evidence in recent times of the State seeking to micro-manage families.