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

I thank the Senators for their contributions.

I have stated that the policy intent is not to change the threshold but to create a focus on the child. It must be clear as well, of course, that the framework of the Constitution must be further defined by law, and it is.

I want to comment on this notion of intervention by the State as being something that, if one likes, happens in a way where the State jumps into action at a specific point. That is not the way to characterise this. It is much better to think of it as a continuum of risk for children whose welfare is being prejudicially affected, that is, being impaired or harmed in a detrimental or injurious way. The State, in intervening, has a range of options at the end of which is a court ordered care arrangement. The constitutional amendment allows that sort of breadth and flexibility which is required in these cases. Of course, we are absolutely assuming that it be proportionate and "to supply the place of the parents". It is absolutely clear from the phrase, as has been stated by quite a number of Senators, that the word "proportionate" allows the supervision order and the support to families proportionately as a first step. That kind of characterisation of the State suddenly moving in happens neither from a practice point of view nor legally. As I stated repeatedly, and on which case law including the major cases in this area would support me, the State does not want to micro-manage the kind of scenarios of which Senator Mullen spoke in relation to alcohol. With alcohol, the first intervention will always be about support around addiction. On the continuum of risk in relation to it which everybody would accept exists, where the safety and welfare of the child, because of alcohol, is impaired to the degree, the court would define in exceptional cases proportionate response bearing in mind that there are already the provisions in the Constitution that support the family. It is in all of those contexts that any intervention must be seen. Where the safety and welfare of the child is prejudicially affected, one is talking about proportionate response and one is talking about in exceptional cases.

I remind Senators about the kind of definitions already in law for interventions under the Child Care Act. We are talking about constitutional change. When one looks at the kind of law that has flowed from our thinking on children, on examination of the Child Care Act, in the case of a care order which is the more extreme example, one is talking about where, on the application of a health board with respect to a child who resides or is found in its area, the court is satisfied of the following: the child has been or is being assaulted, ill-treated, neglected or sexually abused; the child's health, development or welfare has been or is being avoidably impaired or neglected; or the child's health, development or welfare is likely to be avoidably impaired or neglected. These are the stringent requirements on which the court, under the care Acts, must find and it is relevant to look at those in responding to the debate.

It is implicit in this constitutional amendment - I want to make it absolutely clear - that the State will be far short of a care order in many situations. As I have stated, one third of the cases coming to the attention of the State are where parents voluntarily request support, and there is this continuum. The constitutional amendment reflects that continuum and that must be borne in mind.

Early intervention and the early opportunity to support parents must also be contemplated because all the evidence is that early intervention is crucial to effective outcomes. Those are the kinds of balances we are trying to capture. I have outlined how the constitutional amendment has been constructed to provide that careful balance with respect to the rights of the child and families contained within the Constitution, and those rights are respected.

As every Senator appreciates, the phraseology that we are using in this Article has been carefully considered. We have looked at and had to go through many alternative formulations. This is our very best thinking on how to capture the kind of essential balances of which we all have spoken today.

Crucial to the final formulation - I do not want to repeat myself but I must make the point - was the retention of the words "in exceptional cases". That was not in the committee's formulation. I felt it was important to bring it in and then to combine it with looking at the impact on the child and the proportionate response. The three together achieve the kind of balance that most reasonable people would believe is necessary to protect children.

I do not believe that the addition of a limiting criteria is required. In acknowledging that such cases are exceptions it is clear that these are cases where extremes of behaviour or failure have been reached.

I am concerned that the addition of another term would potentially be overly restrictive and not to the benefit of children which is our prime aim. I question whether the wording Senator Mullen proposes adds to the protection of children. I would answer "No". We have the kinds of balances that are necessary. I would be concerned about including it at this point. It could be overly restrictive and not to the benefit of children.

I also think it has potential for creating conflict with the thresholds I have outlined in the Child Care Act 1991, thereby casting doubt on that well established Act. I have elaborated in some detail the clear safeguards that are in place. I am satisfied that the balance should not be disturbed and, for this reason, I am not prepared to accept the amendment.

The Minister for Justice and Equality is studying the report on direct provision. Clearly these provisions apply to all children and will have to be examined down the line. He has expressed concern about some of the issues raised in the report and wants in particular to investigate the welfare of children in these circumstances. However, he believes that safeguards have been put in place notwithstanding what has emerged in the report. We have changed the way in which we deal with unaccompanied minors. They should not, for example, be subjected to direct provision. Unaccompanied minors should be cared for by foster families. I will follow up on the report and will liaise with the Minister for Justice and Equality on it.

Senator Power referred to the views and voice of the child and asked how this might be implemented. Yesterday Senator Healy Eames asked about judicial training in this regard. It is correct that due weight should be given to children's opinions in addition to hearing their views. However, while the views of the child will be considered by the courts, they are not determinative because the courts will be obliged to take account of the child's best interests as the paramount consideration. We will have to do more work on this area if the referendum is passed. Practices in this area are developing internationally and I have had interesting conversations about how the courts are organised. The lawyers in the Chamber will be more familiar than me with the questions of how friendly the courts are to children and how easy it is for judges to hear the views of children given the physical set-up of some of the courts. The courts will have to take appropriate measures to ensure this provision is effectively and fairly implemented. We will probably need to develop family courts if we want to ensure cases are heard in an atmosphere that is less adversarial. It is not necessarily to the benefit of children that so many cases are discussed in the current context and the Minister, Deputy Shatter, has indicated his intention to move to a system of family courts.

Constitutional change is just one aspect of change for children. We also have to consider the legislation that would arise from this referendum and the changes needed to the wider judicial system to make it a more child friendly and less adversarial place.