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

I thank Senator David Cullinane for moving the amendment. I welcome Sinn Féin's stance on the constitutional amendment and acknowledge the work Deputy Caoimhghín Ó Caoláin has done for many years. He has played a sterling role in the development of the committee's work, ensuring children remain central to our considerations and building all-party support for the amendment.

A couple of points have emerged in respect of the article recently. The phrase "cherish all the children equally" was used. Yesterday, a number of Senators said this has a resonance for historic reasons with many people and it emerged from the committee wording. However, when I had to make the transition from the committee wording to constitutional language and started to examine the meaning of the phrase from a legalistic point of view and what it might imply, I found the phrase was much weaker than what I am recommending should be in the Constitution. When one examines the word "cherish" from a legal point of view and tries to define precisely what it would mean, it does not take us very far. Instead, what I am saying is that, "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." This is a stronger formulation than the committee wording and would have more impact in terms of an approach to children and children's rights.

In terms of equality, I am clear that the articles apply to all children and there is no discrimination between marital and non-marital children. The first article mentions all children. The new sub-article recognises and affirms the natural and imprescriptible rights of all children and it does require the State to vindicate those rights. I cannot say how precisely this will be interpreted, no more than anybody here can. As the Attorney General says, every word put into the Constitution has a meaning. That is why I have been careful in the range of words used. We have built up the formulas in a careful way, having regard to other rights already enumerated in the Constitution. At the end of the day it is the Supreme Court which will decide, given all the other elements of the Constitution, precisely what the meaning is. It is a strong statement. It is the first time the Constitution will have specifically spoken about the rights of the child as an individual. Some commentators would make the point that under the more general rights in the Constitution children are included; one could make that argument. I have said that what is being done here is in addition to that. For the whole range of reasons which almost every Senator spoke about yesterday, we have decided to have to a stand-alone article for children. It is generally accepted, given everything that has gone before, that this is the right way to approach the issue.

I have considered the amendment and appreciate the constructive objective behind it. I remind the House that Article 40.1 of the Constitution provides that general guarantee of equality under the law which applies to children. It is difficult to predict what additional protections or rights it is intended to provide under the formulation suggested by the Senator. It is unclear, as mentioned by Senator Bacik, if the intention is to ensure an equality of treatment or an equality of outcomes. If this is intended to comprehend a right to additional assistance to all children or between children in different circumstances, it is not clear how that would be realised. The question could arise as to whether it could preclude any assistance by the State to positively discriminate in favour of those who are disadvantaged. To accept this wording could establish that potential conflict between the new article 42A and Article 40.1 which reads:

All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

I made some comments yesterday on the United Nations Convention on the Rights of the Child. Senators agreed that this is a very broad convention which outlines a whole range of rights and principles which the UN, when it first formulated it, believed should be signed up to by all countries and implemented either by legislation or constitutionally. Countries vary in how they adopt it. Ireland signed and ratified it. Only two countries have not done so. It is interesting to note the Vatican was the fourth country to sign up to the United Nations Convention on the Rights of the Child and accepted the principles outlined therein about support for children, maintaining contact with families, developing the child's individual potential and so on. Ireland's approach has informed Irish policy making and legislation and continues to inform and has informed the work on this amendment. We have done this in our own way, having regard to the provisions already in the Constitution. We have gone for that balancing of rights, therefore, the words "proportionate" and "exceptional" are included. I have approached the issue primarily based on the all-party committee's work. We did not take a decision as the Irish Human Rights Commission suggested yesterday to incorporate all of the United Nations Convention on the Rights of the Child because that was not practicable.