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

This amendment proposes that the best interests of the child should be the paramount consideration. This intention of "best interests" was also contained in the proposal from the Oireachtas Joint Committee. In Article 42A.4.1° we have outlined in a very specific way where proceedings can be brought by the State as the guardian of the common good. I have outlined this in such detail in order to capture all care proceedings because there had been some doubt as to whether the formulation of the Oireachtas joint committee, which simply mentioned "welfare", would suffice. It captured this area by mentioning "care or upbringing" but we did not consider that was clear enough and so we spelt out in more detail in this Article precisely what would be the proceedings brought by the State. I bring Senators' attention to the fact that in Article 42A.4.1°(i.), concerning the adoption, guardianship, custody or access to the child, the wording does not refer to "brought by the State". That is a different provision and Senators might wish to note that.

There are some general principles regarding what is intended. An obligation is put on the State to enact legislation to provide that in proceedings of the kind identified the best interests of a child will be the paramount consideration. I already spoke about the balance with parental rights and do not believe I need to repeat it. Instead, "having regard to the constitutional rights of the family" is included whereas previously the phrase was "subject to the rights of the family". That is a recalibration of the rights of the child, to have his or her interest advanced as against other constitutional rights, for example, the right of the family. This is a significant balancing of the best interests of the child and is very important. It will, of course, apply to all children.

I refer to the amendments. These are linked and relate to the scope of the provision and aim to comprehend in the provision all legal proceedings that could be taken by a child or a member of a child's family against the State, the outcome of which concerns the child. Senator Hayden looked at both sides, on the one hand noting that if the provision is extended it could be very wide and could cast a wide net over all kinds of judicial proceedings, to car accidents or all kinds of criminal proceedings. She wondered about that but on the other hand asked why we should not make the provision that wide. Obviously, we considered doing so, and so did the committee, which restricted the provision to key disputes, cases or decisions that affect a child's life when the State intervenes. It decided to focus on the areas under the Child Care Act - we made that specific - but also the other key areas identified, which were adoption, custody, access and guardianship. If provision is broadened it could have implications where the State has to decide, for example, an issue on the basis of the common good, rather than on the interests of the child. That could apply to a variety of situations, as Senators can imagine. It could also interfere with the State's capability to balance and reconcile the rights of different parties. We must keep in mind the overall approach and the objective intended in the article.

I have a number of other points. This amendment to the Constitution asserts the rights of children in robust language. For the first time, children are recognised in the Constitution and rights are to be conferred on them in an acknowledgment of their vulnerability. We have talked about this a number of times today. I refer the Senator back to the overarching provision in Article 42A as he considers his amendment. We must remind ourselves about the express reference made there to "the natural and imprescriptible rights", which powerful and compelling language is now proposed for the first time for the Constitution. I went into some detail as to why this was considered stronger than the formulation to cherish all the children equally, as I believe it to be. We should not overlook that. That article frames the best interest of the child and, I repeat, must be looked at again in the context of both that article and other articles in the Constitution. It is intended to comprehend family law proceedings and proceedings under child care legislation.

To answer the points raised by Senator van Turnhout about what comes under this provision, a voluntary care order still falls under child care proceedings and would be covered. I refer to another point the Senator made. She has a particular interest in the direct provision issue. I just read what the Minister for Justice and Equality, Deputy Shatter, had to say about that when it was discussed in the Dáil. He is very clear about examining what is contained in the report mentioned and about asking the RIA to examine it. As to the question of the welfare of children in direct provision, the Minister used very strong language to describe how outraged he would be if some of what has been reported is true, in terms of the basic requirements these children should have. We need to examine that issue and must take that report very seriously. I assure the Senator that work is underway to examine it and its implications and to arrive at the facts in question.

The approach of identifying specific key proceedings relating to children is consistent with the approach of the committee as regards best interests. It is somewhat different when it comes to the views of the child and I will make separate comments on that because the two amendments have been linked to both provisions. This is about the resolution of all disputes concerning the key areas and for that reason, I will not accept the amendment.

I do not know if we are going to address the issue of the views of the child separately. Are these amendments linked?