Seanad debates

Wednesday, 24 February 2010

Report of Joint Committee on the Constitutional Amendment on Children: Statements

 

12:00 pm

An Cathaoirleach:

I welcome the Minister of State.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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The publication of the third and final report of the Joint Committee on the Constitutional Amendment on Children has been widely welcomed. The constructive approach taken by members of the committee to the serious and complex legal issues under consideration created an environment in which political consensus could be arrived at. The building of political consensus was the first challenge facing the committee and without a common approach, I doubt we would be here today discussing the next steps and the likely process the Government will now enter. In this respect, I pay tribute to the Chairman, Deputy Mary O'Rourke, for her stewarding of the work of the committee in the past two years, all of the members, and in particular the Members of this House, all of whom played a very active role in drafting, amending and finalising the three reports the committee has published. It is only appropriate that any discussion of the work of the committee in this House should recognise the contributions of Senators Corrigan, Feeney, Fitzgerald and Alex White. I was in the strange position of being a member of the committee during its deliberations and I am now charged with taking the report to the Cabinet where it will be considered.

Dr. Ursula Kilkelly, the family law expert, wrote in The Irish Times last week that "Ireland has come late to children's rights". It is hard to argue with that assertion when we consider that the need for constitutional change in regard to children was first voiced by Mrs. Justice Catherine McGuinness almost 20 years ago in her capacity as chairwoman of the Kilkenny incest inquiry. In writing the report on that case she stated "the high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving higher value to the rights of parents than the rights of children". The matter was subsequently addressed by the Constitution review group which, in its 1996 report, recommended that the Constitution be amended to include the welfare principle and to provide an express guarantee of certain other rights for children deriving from the United Nations Convention on the Rights of the Child. The UN Committee on the Rights of the Child, in examining Ireland's first report on the implementation of the convention in 1998, stated "Ireland's approach to the rights of the child appears to be somewhat fragmented". The committee reiterated the need for constitutional change, having outlined its concern that Ireland's "welfare practices and policies do not adequately reflect the child rights-based approach enshrined in the convention". It recommended in favour of the accelerated enactment of the Constitution review group's recommended reforms.

The 1997 to 2002 programme for Government contained a commitment that the issue would be referred to an all-party committee on the Constitution. That committee reported in 2006 and recommended an amendment to Article 41 to include a new section on the rights of children. It was in this context that the then Minister of State with responsibility for children, Deputy Brian Lenihan, undertook an article by article review of the Constitution to examine the status of children. There was recognition of the need to insert in the Constitution an article to expressly set out the rights of children. The publication of the Twenty-eighth Amendment of the Constitution Bill 2007 provided, for the first time, a form of wording that sought to enshrine in the Constitution rights that would accrue to children as a distinct group, not simply as human beings and individuals or members of a family unit. For the first time, this article singles out children as a discrete group possessing rights. The Government's policy is intent on pursuing an amendment to the Constitution and threefold. It would provide a clearer and more direct acknowledgement of the rights of children within a constitutional presumption that the best interests of children are served within the family; a restatement of Article 42.5 which would, inter alia, extend the provision to all children; and a statement which would permit the adoption of marital children and children in care. It was accepted that, if the amendment was to have any chance of political success, political consensus was a must. Consequently, the 2007 programme for Government contained a commitment to "establish an all-party committee to examine the proposed constitutional amendment with a view to deepening consensus on this matter". At this point, the joint committee came into being and set about its work.

Prior to turning its attention to the specific matter of children's rights, the committee published two reports, the first dealing with soft information and the second with the issue of strict and absolute liability. It was unanimously agreed that, in the case of soft information, a constitutional referendum was not required to effect the desired change. A majority of the committee decided that absolute liability should not be reinstated in respect of defilement and statutory rape cases and as such, a referendum was not necessary. That the committee was able to deal with these two very complex issues separately and disentangle them from the wider question of the rights of the child was a major achievement. In addressing the specific issue of children's rights the committee faced a challenge to balance the rights of families, children, marital and non-marital parents. This delicate balancing act took place against the debate on whether the barrier to State support should be lowered to allow the State to intervene with the family at an earlier point where evidence of family failure first presented.

Having met on 62 occasions, the 118-page report from the committee recommends inserting a new Article 42 in the Constitution, reiterating the bulk of its current provisions on education but adding several new sections. The new provision begins with a restatement of the oft-quoted phrase from the 1916 Proclamation that "the State shall cherish all the children of the State equally". Ironically, the signatories to the Proclamation were not referring to "children" as we understand the term but the need to recognise and be tolerant of minorities, both religious and political. The newly proposed Article 42.1.2° clearly states the State has a duty to vindicate the rights of children and affirms that children enjoy human rights that the State is obliged to uphold. The provision reads: "The State recognises and acknowledges the natural and imprescriptible rights of all children, including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights". Reflecting wording included in section 3 of the Guardian of Infants Act 1964, the newly proposed Article 42.1.3° incorporates the right of children to have their welfare regarded as a primary consideration.

It has been said the requirement to take a child-centred approach to such issues is strengthened by this article which would require that the welfare and best interests of the child be the first and paramount consideration in areas concerned with family law decision making such as guardianship, adoption, custody, care or the upbringing of a child. The paramountcy principle is thus not just confined to judicial proceedings, but extends to "the resolution of all disputes" including determination of the broad issues of care and upbringing. The child's voice must also be heard in any proceedings affecting him or her, having regard to his or her maturity.

According to Dr. Kilkelly, when these two provisions are taken together, they will ensure that:

decisions affecting children are focused, first and foremost, on their rights and interests. This mandates a genuinely child-focused approach to the treatment of children by all organs of the State.

Article 42.2 steers a new course by proposing to require the State to recognise and vindicate the rights of all children as individuals. Under the terms of the proposed wording, children accrue rights as individuals independent of adults. Some experts who made presentations to the committee advocated a full incorporation of the United Nations Convention of the Rights of the Child into the Constitution. I think it is fair to say that the committee took the approach that it did not want to recommend inserting in the Constitution provisions that the State was not in a position to guarantee.

Where criticisms of the report have been aired, attention has been drawn to the newly proposed Article 42.4. Some have suggested that any reduction in the threshold that allows for State intervention in the family should be resisted. This is construed as an attack on the integrity of the family; that in some way by giving rights to children we are taking them away from the family. This was not the intention of the 2007 Bill nor is it the intention of the current proposal. The newly proposed Article 42.4 sets a new threshold, based on proportionality. It is not a case of granting the State extra powers enabling social workers to wade into a family and remove the child or children. Dr. Geoffrey Shannon, the rapporteur to the Oireachtas on child protection, stated last week that the wording contained in the proposal makes clear that removal of the child from the family is a last resort, and by providing for early intervention, the likelihood of the child being taken into care is significantly reduced. He stated that proportionate intervention means minimum intervention to secure the child's welfare and safety. The removal of the child is only countenanced when all other interventions have failed.

The removal of a child from the family is a very sensitive matter and is likely to be highly contested during the course of any referendum campaign. It is my firm belief that the best interests of the child are served in a loving family unit. However, not all families and parents discharge their responsibilities to children in a proper fashion. Due to external factors, some parents cannot nurture and care for a child in a manner that satisfies the child's requirements. I believe that the increase in the number of children taken into care last year owed more to increased awareness of child protection generally and an increase in babies born to mothers addicted to drugs or alcohol in some areas, than a decline in family income.

The provisions relating to adoption do not stray too far from the original wording and the intent of the 2007 Bill. The desire in 2007 to liberalise the domestic adoption framework has been restated in the report. The Government is expected to publish any legislation that would propose change in advance of any referendum.

Having dealt with the Adoption Bill 2009 in this House some months ago, Senators know that adoption is a critical form of alternative care. The committee examined the proposed provisions that were intended to improve the prospects of adopting children of married parents, which are currently extremely limited, and also allow for the voluntary placement of children for adoption. Out of the 5,694 children who are in care today, approximately one third are in long-term foster care and might benefit from the stability of adoption. The State will be able to remove them from their parents but is unable to provide for adoption, which may be preferable in some circumstances to foster care. For the adoption of children of marriage to take place, the court must be satisfied of the following: there has been a failure in the duty towards the child for physical or moral reasons for the previous 12 months; the failure is likely to continue without interruption until the child is 18; and the failure constitutes an abandonment on the part of the parents of all constitutional rights. Moreover, the failure must be total and must arise for physical or moral reasons. It must be a joint failure by both parents.

According to Dr. Shannon:

For a significant number of children in long-term foster care, rehab with their natural family is an unobtainable goal. These children, although they no longer have access with their natural family, nevertheless legally belong to them and are not free for adoption. They can only be freed for adoption if it can be proven that the married parents of the child have so comprehensively abandoned their parental duties in such a manner as indicates that the child is unlikely ever to receive even minimal care from them. Of necessity, then, due to the Constitution these children live in a twilight world between a family that cannot fully care for them and a family that cannot fully have them.

The new Article 42.5 enables provision to be made by law for the adoption of any child where the parents have failed in their responsibility for that child for such a period as may be prescribed by law, and where the best interests of the child so require. The committee proposal aims to enhance the prospect of decisions being based more readily on what is best for the child, having regard to the importance of continuity of care.

The second proposal on adoption will make it possible for married parents to agree to the placement of a child for adoption. The committee considered that the Constitution should set out specific rights for children and noted the potential for inequality under the current constitutional provision. Reference was made last week to a recent High Court decision of Mr. Justice Sheehan, wherein he stated that children of non-marital families have lesser rights to proper provision and accommodation than children born to a marital family. We would all agree this is unsatisfactory, given the State's attempt to remove any distinction between marital and non-marital children in the Status of Children Act 1997.

The Government will now consider the report in some detail, and as the Taoiseach stated in the Dáil last week, the Attorney General will be asked to examine the constitutional ramifications arising from the proposals contained in the report. There have been calls to commit immediately to a timeframe for a referendum, but I remind all interested parties that the committee took over two years to get to its current position. The Government will need a little time to consider the full import of the proposal before committing to any timeframe. Having said that, it is my intention to bring the report to the Government in the very near future and begin deliberations.

Photo of Ciarán CannonCiarán Cannon (Fine Gael)
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I welcome the Minister of State to the Chamber. The American journalist Bill Moyers, who has written extensively on the essence of politics and democracy, once said that "Ideas are great arrows, but there has to be a bow, and politics is the bow of idealism". There should always be room for idealism in politics. Without idealism, politics would be a shallow and utterly pointless pursuit. Those of us who are parents always strive to create the ideal home environment for our children, though we may not always succeed. Those of us who are involved in community activism strive to create communities that are vibrant and inclusive, and again we may not always succeed. I also believe that the vast majority of us who have chosen politics as a career have done so in the hope that we can play our part, no matter how small, in shaping the ideal nation, a nation of which we can all be proud. While our idealism may often be diluted by the cynicism of others or by a lack of resources, it should still be the reason we get up every morning to do the work we do.

Just over 20 years ago, the UN General Assembly adopted a far-reaching and idealistic treaty that would dramatically alter the way the world looks at children. The UN Convention on the Rights of the Child, developed after years of intricate negotiations, offered a vision of a world in which all children survive and develop, and are protected, respected and encouraged to participate in the decisions that affect them. Based on the four core principles of non-discrimination, the best interest of the child, the right to life, survival and development, and respect for the views of the child, the convention made it not just wise and just, but legally imperative for governments to recognize and uphold children's rights. Twenty years later, it is clear that the convention has inspired a global movement for children's rights and that laws have been changed to protect children better. Since 1989, the convention has been ratified by 193 countries. More than 70 countries have incorporated children's codes into national legislation, as part of law reform efforts based on the convention's provisions.

Here in Ireland, the Children's Rights Alliance is a coalition of over 80 NGOs working to secure the rights and needs of children in this country. It aims to improve the lives of all of our children through securing the necessary changes in Ireland's laws, policies and services. The vision statement of the Children's Rights Alliance is immensely powerful in its simplicity and brevity. It states that Ireland will be one of the best places in the world to be a child. It is just one simple sentence, almost childlike in its formation and I suspect it is deliberately so. We should be ashamed that following years of unprecedented wealth, Ireland is not already one of the best places in the world to be a child. The alliance is equally succinct in proposing how to reach that goal. Its mission statement also contains only one sentence, one ambition and that is to realise the rights of children in Ireland through securing the full implementation of the UN Convention on the Rights of the Child.

Every healthily functioning and meaningful democracy requires an underlying ethos, a philosophy which guides us in making decisions that affect the lives of our citizens. Here in Ireland, that ethos is contained in our Constitution. The new constitutional article published two weeks ago by the Joint Committee on the Constitutional Referendum on Children, if accepted by our people in a referendum, would transform our constitutional ethos and would result in our constitution for the first time expressly acknowledging a child's individual humanity and rights. Rather than usurping the role of parents in a child's life, the new proposed article instead recognises and respects that role. While requiring the State to intervene where children are truly at risk, it ensures that any such intervention must not only be effective but must also be proportionate. The new article also holds out the possibility of adoption to approximately 2,000 children presently in long-term care, mainly long-term foster care, who have no realistic prospect of being brought up by one or both of their biological parents for the rest of their childhood. As the Minister of State pointed out, they are living in limbo.

We as politicians are often accused of being overly partisan and incapable of putting aside our political differences to work for the greater good. The valuable work done by the Joint Committee on the Constitutional Referendum on Children should help to dispel that notion and I congratulate all members of the committee, including our Seanad colleagues Senators Fitzgerald, Corrigan, Feeney and Alex White, on their contribution. I also congratulate the Minister of State for being so proactive with this issue. I hope he will make the referendum a priority. I am encouraged by the fact there is €3 million set aside in this year's Estimates for a constitutional referendum and I very much hope that such a referendum will be held this year. It would be fitting for the Minister of State to be able to look back and say he was at the forefront of the campaign for such a referendum.

The publication of the Ryan and Murphy reports last year brought a new urgency and impetus to the issue of children's rights in this country. Both reports illustrated starkly what can happen when children's voices are ignored and deliberately stifled. We heard the harrowing accounts of the horrific abuse that children can be subjected to when they are relegated to a low priority in our society. That is what this amendment is about, rebalancing our priorities and for the first time making a positive statement of the rights of children as individuals to have their welfare regarded as a primary consideration. For example, the proposed new article 42.1.2 requires that the State recognises the natural and imprescriptible rights of all children and undertakes, as far as practicable, to protect and vindicate those rights. This clear statement that the State has a duty to vindicate the rights of the child is a welcome affirmation that children, just like adults, enjoy human rights which the State is duty-bound to uphold.

As we move ever closer to a referendum on this issue, the debate will intensify over the need for such a referendum and I would like to take a few moments to address a few of the issues that have arisen in recent discussions. The debate will certainly not be helped by a sensationalist approach such as that employed by journalist John Waters, when he wrote recently that the only "equality" provided by the amendment would be the equal right of all parents to have their children "snatched by the State".

Mr. Waters and others argue that this amendment will somehow undermine the status of the family unit and allow for inappropriate or disproportionate intervention on the part of the State. This is not the case. These concerns are met by the proposed wording, that State intervention shall be "by proportionate means, as shall be regulated by law". The emphasis is on supporting families in their responsibilities to their children, and the removal of children from their parents will be a last resort.

Also, Article 42.4 addresses the concerns with the existing Article 42.5 by setting a new threshold, based on proportionality, for State intervention in the family to protect children. The provision makes clear that children are entitled to State support regardless of their family status and represents a major advance in the relationship between children, their parents and the State. Rather than bringing more children into care, this provision suggests that the removal of a child from the family should only occur where a no less invasive measure would suffice.

It is worth noting that in her most recent annual report, Children's Ombudsman Emily Logan remarked that out of the 810 complaints received in her office in 2008, not one of them emanated from a conflict between the best interests of the child and the rights of parents. Ms. Logan very much supports the proposed amendment and is not looking for the State to supplant parents but to respond "in a proportionate way, one that will support, not punish families in difficulty".

The new amendment is a substantial improvement on the amendment originally contained in the Government's 2007 Bill. With all-party support in the Houses of the Oireachtas and the support of groups, organisations and individuals who daily and with extraordinary commitment work to help and protect children, it can be successfully incorporated into our Constitution with substantial public support in the required referendum. I urge the Minister of State and indeed his Government colleagues to make the holding of this referendum a priority for 2010.

There is an ethical obligation on us as law makers to put the interests of our children at the very heart of our Constitution. Bringing about such a change to our Constitution requires a certain amount of idealism on all of our parts. Without such idealism we have no direction, we are just angry and disillusioned people doing nothing more productive than complaining. Some of us cannot imagine a future without strife and so cannot develop a map to guide us there. We now have in our hands the map to a better place for our children at least and we should have the courage to take our children there as soon as possible.

4:00 pm

Photo of Mary WhiteMary White (Fianna Fail)
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I welcome the Minister of State and compliment him for the fine speech he made this afternoon on this most important issue.

On 16 February, the Joint Committee on the Constitutional Amendment on Children issued its final report. The discussions of the joint committee took place against the backdrop of the numerous reports that have highlighted the lack of constitutional provision for children's rights. As the Minister of State noted, Dr. Ursula Kilkelly, the family law expert, writing in The Irish Times, stated that Ireland has come late to children's rights. It is hard to argue with that assertion when we consider the need for a constitutional change with regard to children was first voiced by Mrs. Justice Catherine McGuinness almost 20 years ago in her capacity as chairman of the Kilkenny incest inquiry. In writing the report into the Kilkenny incest case, Mrs. Justice McGuinness stated that the high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving higher value to the rights of parents than the rights of children.

In the past, the absence of a constitutional provision to ensure that decisions about children take into account their interests led too often to their rights being ignored. To address this problem it is vital we pursue the opportunity to introduce the necessary constitutional reform.

The Constitution contains two pivotal provisions concerning children. The first of these, Article 41, recognises the family as the natural, primary and fundamental unit group of society. This provision is untouched by the recommendations contained in the joint committee's report. The proposed constitutional amendment relates to the second provision to which I refer, namely, Article 42. Under the new Article 42.1.2o, the State recognises the rights of all children and undertakes as far as practicable to protect and vindicate their rights. The provision proposes to incorporate as a constitutional principle the right of children to have their welfare regarded as a primary consideration. This provision is strengthened by Article 42.1.3o which states the welfare and best interests of the child must be the first and paramount consideration in the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child. The proposals express the State's duty to recognise and vindicate the rights of all children as individuals. These rights include the right of the child to care and protection and education. They also include a child's right, having regard to his or her age and maturity, to have his or her voice heard in any proceedings affecting him or her.

The final provision of note is the replacement of Article 42.5. The proposal in this regard suggests that the wording will emphasise the need for the State to support parents who have difficulties in fulfilling their duties towards their children. The Minister of State put it so succinctly when he indicated:

However, not all families and parents discharge their responsibilities to children in a proper fashion. Because of external factors, some parents cannot nurture and care for a child in a manner that satisfies the child's requirements. I believe that the increase in the number of children taken into care last year owed more to increased awareness of child protection generally and an increase in babies born to mothers addicted to drugs/alcohol in some areas than a decline in family income.

Any intervention in the family must be proportionate, provided for by law, and ensure equal treatment of all children regardless of their parents' marital status.

These proposals reflect a new approach to the treatment of children and a rebalancing of the responsibility of the State and parents. The recognition of the voice of children and of their rights as individuals is necessary to ensure that Ireland meets its obligations under the UN Convention on the Rights of the Child. These proposals represent a bold step forward in our commitment to enshrining the rights of children in Irish law. They have received widespread support from those who work with children.

In my opinion, the reform of the Constitution would be the greatest memorial to the tens of thousands of children who were abused while in the care of the State and whose stories were so succinctly outlined in the Ryan and Murphy reports. I wish the Minister of State well with regard to the reform of the Constitution.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I wish to share time with Senator Mullen.

An Cathaoirleach:

That is fine.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I welcome the Minister of State and congratulate him on the important work he has done. I have some reservations with regard not to what is contained in the joint committee's report but rather in respect of what is missing from it. I wish, therefore, to make two significant points - I know the Minister of State will take them on board - and ask two questions.

It is stated in the report that under the Constitution children have a right to free primary education. That is factually incorrect. If such a right exists, it is certainly not stated in the Constitution. Appendix 5 to the report refers to the UN Convention on the Rights of the Child, one of the articles of which refers to making primary education compulsory and freely available to all. We have a responsibility to ensure that the substance of that article is reflected in our Constitution.

One of the most important items of case law relating to primary education is that involving Crowley v. Ireland, which arose in 1980. As it happens, I had a great deal to do with that case. Judge Kenny's judgment in the case reflected the contents of the Constitution, which says that "the State shall provide for free primary education". The Irish version of the Constitution is equally unclear in this regard. It states, "Ní foláir don Stát socrú a dhéanamh chun bunoideachas a bheith ar fáil in aisce". The Constitution does not in any way impose upon the State responsibility to provide free primary education. We are being presented with an opportunity to change Article 42.4 in order that it might state "The State shall ensure that all children have compulsory and free primary education".

I wish to comment on the issue of the State and the family. I asked a simple question of three members of the joint committee but I could not obtain a straight answer. The Constitution states:

The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

It also states:

The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

If they choose to educate their children, parents are, therefore, responsible for their physical education. Parents may decide not to educate their children and send them to school. The latter is what most parents choose to do.

Why is physical education excluded from what the State must provide? There is a school on the South Circular Road, which was opened amid great hoo-hah and which was supposed to reflect the fact that ours is a great pluralist society, where girls are not allowed to pursue the full programme relating to physical education. When the Constitution was being drafted, Archbishop John Charles McQuaid and Eamon de Valera, one of the founders of the Minister of State's party, were of the view that the word "physical" related to how women's bodies worked and that it would be terrible if they were given information relating to their bodies during lessons at school. They also held that girls might be exposed to the odd fact relating to birth control, which would be even worse.

This is still the position with regard to our Constitution. I asked three members of the joint committee why the word "physical" was dropped from the report. I presume the joint committee obtained all sorts of legal advice. I do not believe the church would even argue that physical education is an important aspect of children's overall education. I am concerned about this matter because the clause was often used to argue against the introduction of sex education to primary schools in the 1980s and 1990s. People stated at that time that sex education should not be taught in such schools.

I do not wish to take away from the work of the joint committee, which is extremely good and important. I welcome what the joint committee has done and I congratulate its members, particularly those from this House who have made a solid contribution to its work, its Chairman, Deputy O'Rourke, and the Minister of State. However, the UN Convention on the Rights of the Child is not properly reflected in the joint committee's report. In that context, we should once and for all include in written form in the Constitution the State's responsibility to provide children with compulsory and free primary education. We must also ensure that where the State is educating a child and is responsible for exposing him or her to certain minimum levels of education, this should also include exposure to physical education.

Photo of Rónán MullenRónán Mullen (Independent)
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I thank Senator O'Toole for sharing time and I welcome the Minister of State. Tributes are due to the joint committee in respect of the hard work it has done. I hope we will have more than one debate on this matter in the coming weeks and months. In light of the importance of this topic, the time allocated is too short to allow Members to tease out the relevant issues properly. I will be asking the Leader to schedule further debates on this matter. Let us consider this to be an opening opportunity to debate the issues involved.

In paying tribute to the committee, I note that it was unanimous in making its recommendations. However, we should not confuse this with an idea that there is cross-party support. We need discussion within the parties on what has been proposed by the committee. While the proposal contains much that is meritorious, there are certain key issues that will have to be addressed and changed.

There is no doubt that the main thrust of the proposed amendment dealing with the rights of the child is to give the State more interventionist power. However, we know from previous case law dealing with the educational needs of disabled and homeless children that the State has sat on its hands; I am thinking of the Sinnott case and the case of T.D. v. the Minister for Education and others. This is not to forget the all too easily forgotten reality that recent revelations show that the State is in a poor position to take the moral high ground when it comes to child welfare. This is not rule out, a priori, the possibility that the constitutional threshold for State intervention is too high. If a case was suitable as a justification for this contention, it would be the heel prick case, although even in this instance, one would not have to try too hard to imagine how State intervention in medical decisions affecting children could quickly shift from being "proportional and reasonable" to arbitrary usurpation of parental authority.

There are legitimate concerns about the issue of children in the custody of their married parents. I welcome in general terms the desirability of providing for the greater potential of the State to intervene in cases of abuse and also in certain situations involving the adoption of children of married parents. The very well documented abuse cases quoted in recent days are covered by existing constitutional provisions as thousands of children are taken into the care of the State each year. This view is accepted by eminent persons such as Gerard Hogan who recently stated he disagreed with the suggestion that current constitutional provisions for the protection of children had not worked well, did not strike the right balance or were in some way responsible for many modern ills. He saw this as a grotesque misstatement and misunderstanding of the constitutional provisions.

Turning to the specific provisions of the proposed amendment, I am struck by the rather novel concept of "children of the State" in the first paragraph of the article. I note the Minister of State has referred to the 1916 Proclamation and the fact that it refers to all of the children of the Gael, not only minors. More to the point, the Proclamation refers to children of the nation, not to children of the State. When one shifts the course of a ship by one or two degrees, it may not make much difference at the outset but at the destination point it may make quite a difference. That is precisely the type of issue we need to tease out very carefully in the coming weeks and months. The idea of "children of the State" suggests the concept of the State as parent. I am not sure that is the appropriate way to look at its role, even if, on occasion, it must be required to take the place of the parent, which is a different idea. I wonder about the implications this concept could have for the courts, without wishing to be definite about the implications it might have. Could it exclude the possibility of non-citizens enjoying certain categories of rights? Would the provision establish the idea of the State's children and, as such, are we looking at a rather dramatic transfer of rights and responsibilities from parents to the State? A strong case can be made for eliminating that part of the proposed amendment, as it is too vague and rhetorical and its relationship with the more specific statements on the duties of the State and parents is completely unclear.

This is not the only example of potentially problematic ambiguity in what is proposed. The third paragraph deals with the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child. I wonder whether, on the basis of consistency, we should ask whether, in the context of the consideration of divorce proceedings, the principle of paramountcy should also apply, whereby the child's best interests would be paramount and the first consideration. We are all in favour of ensuring the best interests of the child but there is something of a mother and apple pie dimension to this, as Gerard Hogan stated. However, we must ask ourselves, when we speak about ensuring the best interests of the child, who will decide what these are and how it will be done. We are only scratching the surface of this issue today and as such, I would not like anything I state at this point in such hasty circumstances to be regarded as conclusive of my views. We need to tease out these matters.

I find it strange, given that Article 41 is so strong on the family, that there is no mention of the family in the proposed Article 42. I wonder whether there is a need for an amendment to the effect that there would be a presumption in favour of a child's welfare being best supported within the family, although I suspect Article 41 already provides for this. I also wonder whether, in the light of the social and scientific data, there should be an acknowledgement that, while we seek to treat all children equally regardless of their family circumstances, if we really care about the welfare of children, we should also seek to enshrine a presumption or assumption by the State that generally a low-conflict marital lifelong relationship between the natural parents is in a child's best interests, if one takes an honest look at the data.

We have further to go on this matter. I hope we will have a very respectful debate in the coming weeks and months and that we will have robust exchanges because these are very important issues. If we are united on the aim of genuinely seeking to protect children, particularly the most vulnerable children in our society, we will surely arrive at the right answer.

Photo of Dan BoyleDan Boyle (Green Party)
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There is a line in the famous work by the Lebanese poet Khalil Gibran who wrote The Prophet which suggests our children are not our children but a part of life's longing for itself. The nature of this debate is about the role of children in modern Irish society; not that they are owned or are chattel or that they are part of a particular unit or the State, but that collectively we have a responsibility to ensure their physical, emotional and education needs are met and that they are provided with whatever support they require to become fully functioning adults in society. Modern social history has tended to put this aside where children tended to be seen but not heard. We have evolved to the current state of affairs where an Oireachtas committee with representatives from almost every political party has come to the conclusions before us today which will eventually be put before the people and which provide us with a definition of the role of the child in modern Ireland.

Other Senators are correct to state we must treat this debate with the utmost seriousness. We must also acknowledge that as a state we have very much failed in this, the reasons for which are that we invested too much in concepts taken for granted as the natural home for the upbringing of children but from which many children were taken for very spurious and social policy reasons that we cannot defend in this century or the modern era. While the family is the preferred model for the upbringing of children, it is not always the ideal. We must legislate constitutionally and in statute to take account of those circumstances where the well-being of the child cannot be met through the conventional structures in which we hope such needs are met. In the past the problem was not caused by a failure to meet these needs; it was a failure of the children, through no fault of their own, to fit into that conventional structure. Children were removed from unmarried or single parents or where parents did not conform to an overriding religious ethos. Because of this we created an institutional culture which had a side-effect of institutional abuse, with which society is still dealing. That is why this is important and why we need to have a reasoned and considered debate. I am glad the committee has dealt with this in a detailed and considered way and in a way which invites the wider discussion we need to have as a society.

We must also take into account that, surprisingly enough, Bunreacht na hÉireann is one of the oldest written constitutions in Europe. Our nearest neighbour does not have a written constitution and the constitutions of most European countries were formed in the aftermath of the Second World War. Bunreacht na hÉireann defined its vision of Ireland in 1937 and needs to be considered in a modern context.

The committee has done valuable work in terms of deciding how that should apply when defining the status and rights of the child.

We also have to comply with our international obligations and while the committee is only today presenting its report for our consideration, we have singularly failed as a State to live up to the original UN Convention on the Rights of the Child which we signed up to 20 years ago. We cannot take pride in the fact that it has taken us two decades to arrive at our current position. However, as we say in all good political and economic debates, we are where we are. We have to address this issue because it can no longer be put on the long finger.

The commitment shown by the committee, the Minister of State and the original and revised programmes for Government demonstrate this issue is being treated with the utmost seriousness. The degree of consensus reached among politicians and political parties will help the national debate. For these reasons I welcome the report of the committee and look forward to the wider debate that will take place. We are debating the ability of the State to recognise children as evolving adults who need to be listened to and protected. Their voice cannot be put aside nor their rights diminished. If we want to live in a modern Ireland which offers protections equal to those of other progressive societies, we need to make this amendment to our Constitution.

Photo of Alex WhiteAlex White (Labour)
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I welcome the Minister of State on the occasion of the publication of this extremely important report which is founded on a high level of consensus across the political divide. I endorse the comments of my colleagues regarding the input of all parties into the report. In particular, I commend the Minister of State on his consistent engagement and regular attendance at committee meetings. The commitment shown by Senators in the committee's deliberations was exemplary and undermines any argument that might be made for abolishing this Chamber.

This issue is characterised by complexity and, often, the presumption of disagreement even where it does not exist. People assumed on the basis of history that certain things cannot be changed but when we began to examine in detail what words actually mean, it was funny how quickly we were able to progress towards agreement. The Minister of State clearly outlined the achievements made in terms of the proposed wording. If this amendment is implemented, we would have a Constitution which protected children as the holders of autonomous rights. It would be a misnomer to say we are putting children's rights into the Constitution for the first time but we want to ensure they have rights in and of themselves and not just mediated through their membership of families.

The Minister of State has regular dealings with all the organisations engaged with children's rights and advocacy, including the Children's Rights Alliance and Barnardos. These organisations offered significant support to the committee and in some cases made multiple submissions. Their universal welcome for the outcome of our deliberations is in itself a measure of the extent to which progress has been made in the course of our work.

In regard to Senator O'Toole's remarks, it would be more accurate to say the committee proposes to revise Article 42 rather than insert a completely new article because some of the existing wording is retained. This may give rise to confusion in some quarters during the debate. The provisions dealing with primary, physical, moral and intellectual education which are already in the Constitution are simply lifted into this new proposal. The committee debated whether we should unpick the provisions on education or include a right to secondary education. Several colleagues even argued for the inclusion of a right to third level education. However, members did not feel the terms of reference of the committee extended that far and I believe we reached the correct conclusion. The Bill published in 2007 delineated to a considerable extent the work of the committee. A major debate remains to be had, not least in the context of the Constitution, regarding the right to education but it was not within our remit to make proposals in regard to the sections we lifted from Article 42. We have not dropped the word "physical" because the provision in question was simply left unchanged.

Senator Mullen made the rhetorical point that the State does not have the right to occupy the high ground all the time because it cannot always be relied upon to be the best agent for vindicating the rights of children. He makes a fair point when he puts it that way. Our proposal does nothing to change the basic presumption that a child's welfare is best served within his or her family but we cannot ignore the fact that, unfortunately, the family is not always the safest place for children. We have seen terrible examples in recent years, culminating in the reports we all have read. The 1937 Constitution itself provides a basis for intervention on the part of the State, albeit in exceptional circumstances. I doubt if Senator Mullen or anyone else would say that there ought never be a basis for the intervention of the State. That seems to me an absurd suggestion and one that could not be justified. The question is when, how and under what circumstances and controls this ought to be permitted to occur. That is simply what we were wrestling with.

I was not sure initially about the notion of proportionality and that it would be the basis upon which intervention would take place but I found myself convinced that it is a useful concept to consider. I cannot say what proportionality would mean to a court but to me it would mean that intervention would take place only when it is necessary and only in so far as is necessary. It is not something that happens very easily or automatically. It is something that is required to occur under particular circumstances. A test of proportionality is the appropriate one. I hope those who might have problems with this proposal would discover that they do not have as many problems when they read it and that they might agree that proportionate intervention is the right way to proceed.

I listened to what Senator Mullen had to say on the question of cherishing all the children of the State equally. We know that the phrase comes from the Proclamation and, as the Minister of State pointed out, the signatories and those who wrote it were not talking about children in the sense in which we are talking about them. They were talking about something much more political in the sense of people of different traditions and backgrounds and that irrespective of one's background or religion one would still be cherished by the State. That was a declaration of intent and a hugely resonant and important one historically for Irish people. We are familiar with the phrase. There is no problem with that kind of phraseology being drawn on in this report. In a sense that proposal is a proclamation as well, that the State should cherish all the children of the State equally.

The legal content is open to debate but it seems to me that the rest of the proposal which deals with actual specific rights being accorded to children for the first time, such as the right to be heard, the right to have one's welfare regarded as a paramount consideration, and all the specific rights set out in the amendment, are the terms the courts will be required to consider if there is a necessity to analyse what we are proposing if the people were to adopt it. That overarching proclamation of cherishing all the children of the State equally is an appropriate one. Even if it is just simply rhetorical in that kind of historical sense, it is one that will resonate with people. I see no reason we would not consider putting that into our Constitution in this particular context.

The Minister referred to Ursula Kilkelly's response. It is the only academic response I have seen in the past week or ten days to this proposed amendment. It is fair to say it is a positive one on her part. She is someone who has a track record in analysing the performance of the Government and the State on the nature and appropriateness of laws relating to children. The way I read it, she has given a strong endorsement of the work that has been done by the committee. I find that gratifying, not because I am looking to academics to tell us whether we are performing well but because she is someone who has analysed this incredibly complex area and found that the wording comes up strongly from any analysis done on it.

She makes the point that the committee neatly sidestepped the issue of Article 41 by replacing the reference to the family in Article 42 with a reference to parents. Senator Mullen was critical of the wording on that basis also. However, he fairly acknowledged that he believed that the continuation in being of Article 41, untouched by the work of the committee, should give a considerable degree of comfort to those who, like him, take the view that there ought to be no change in that regard at all. We might be criticised in other quarters for not having addressed Article 41.

The test in regard to proportionality is an important advance. We have noted in the course of our work that a test of abandonment, which is essentially what is in place at the moment, has been interpreted by the courts in an onerous sense. By that I mean that abandonment has been interpreted as meaning, essentially, that the abandonment of the child is likely to continue up to the age of 18 and that it has no way of being repaired or temporarily abated. That test is too onerous. What we have done is navigated the complexities of the issue and come forward with a set of proposals that will win widespread agreement across the community. I certainly hope it will.

If the past ten days is anything to go by in terms of criticisms of what we have done, the arguments have not been particularly compelling. Senator Cannon referred to one such criticism by John Waters that the proposal could be reduced to a sense in which all parents of the State would now be equal in terms of the likelihood or possibility of their children being snatched from them. That is so absurd in the context of this debate as to be ignorant of the issues that are being dealt with here. I hope the debate does take place at a higher level than that. I think it will and that the contribution we have made in the committee in the past two years will go a long way towards leading that discussion and, I hope, bringing about a much better state of affairs constitutionally for the children of the State and of the nation.

Photo of Larry ButlerLarry Butler (Fianna Fail)
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We are having an interesting and good debate on the proposed amendment. I speak from the perspective of being a father and what I would look for in terms of providing shelter, education and various supports for my children. The committee has got this bang on. The proposed amendment is a good document. As a parent I accept that safeguards have to be in place. There is no question that some homes are dangerous places for children. We have to recognise that. There are families who do not bring up their children to the standards to which I aspire. Families expect the Government to support and provide for children up to a certain standard and benchmark. The aim of the amendment is to provide support. I commend the committee on that.

I commend the Minister of State on his work in ensuring the child is to the forefront in anything that we do because our children are the most important people in the country and we have to ensure we look after their welfare. The family home is the best place for the protection of children. Fostering and adoption are the other two areas in which we can ensure children are best served. In the past we let ourselves down badly. The State handed over the responsibility for the care of children. We saw the result of that in the Murphy report. We were badly served. We moved away from the most important unit, the family, including those involved in foster care and adoption, and the children were badly abused in commercial schools. We must protect our children from such a scenario.

Our children should receive the best education possible. The State has an obligation to ensure a good standard of education is available to them. The Minister for Education and Science is moving in the right direction this year by providing a free preschool place for one year for children. That will pay huge dividends in the years to come. Investment has also been made in parks, playgrounds and other recreational facilities. We must not forget the recreational aspect of bringing up children and helping them to develop before they enter their teenage years and adulthood.

The State cannot intervene all the time to overcome the problems encountered in the system. This cannot become a nanny state. It must be ensured families will take responsibility for their children. The onus is on every member of a family to ensure he or she takes this responsibility seriously. It is important that legislation does not take anything from families and that it provides them with the support necessary to make sure children have access to the best education and recreational facilities.

Deputy Andrews is the second Minister of State to be appointed with responsibility for children. I was a member of a health board for eight years and can recall the lack of regulation and support in this area. Services for children were rarely mentioned but now a Minister of State has responsibility for such services which are where they should be. In so doing, high standards will be ensured and good support provided for children to ensure they will develop in the normal way.

It is crucial that we all learn from the Murphy report. It is an important document and shows clearly that when responsibility is handed over to a different organisation, support must be provided for children. Child abuse has also been uncovered within a number of sports organisations, including those responsible for swimming. Unless the appropriate safeguards are in place and no matter how good legislation is, it has to be policed to ensure the best results. That is all we can do in this legislation. It is vital that it be well debated in the House. There is a high standard in this House of teasing out legislation, which is why it is an important chamber. Members have the time and expertise to examine legislation.

I thank the committee for its hard work and simplifying the legislation. People will criticise it but the simpler things are kept, the better. The legislation will do what is required and, with all-party consensus, I am confident it will be passed without much difficulty. The Minister of State will have an important role to play in the referendum and I am sure he will get his message across clearly, as will each of us.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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I welcome the opportunity to debate this issue. I also welcome the Minster of State, as he played a key role in the committee's work in the past few months. It has been an extraordinary experience to be a member of the committee. I pay tribute to the Chairman, Deputy Mary O'Rourke, because, as Senator Alex White said, it was complex gathering together all of the work that had been done previously, examining the Constitution, considering how it should be amended, which is such a significant move, examining the balance that needed to be maintained and working out final recommendations regarding the various articles. Deputy O'Rourke presided over the committee with great patience and tenacity and ensured we arrived at a point where we could publish with all-party agreement, on which I compliment her and the members of the committee. The members with legal experience played a unique role, particularly Deputy Shatter and Senator Alex White. We also had a superb legal team. Self-praise is no praise but to arrive a point where we had consensus among all the political parties on such an issue was important.

The Minister of State and the Government have a unique opportunity to implement the report and put the matter to the people in a referendum, assuming the seismic changes in politics of the past few weeks do not continue. If the Minister of State has the opportunity, he should grasp it with both hands. He has been given an unique opportunity to bring forward watershed legislation and a watershed referendum on children's rights. I know he wants to do this and hope he will not be stymied by the Attorney General and that he will get the support he should receive. So much time and work has gone into this that the goodwill and good intentions of the committee in the final set of recommendations must be accepted. The public will accept that the committee sought to strike the correct balance between protecting the family and protecting the rights of children. Proportionality is an important term in the recommendations and the proposed amendment to the Constitution. The recommendations at which we have arrived grasp that balance well and elegantly and in a way that is protective of the family and children. That is what the people want. They do not want the family unit to be undermined; they want children's rights to be recognised in order that children will not be neglected in the way they have been for such a long period.

If one considers the history of children's rights in Ireland over a long period, the Murphy and Ryan reports contained strong evidence that children's rights were not central. This also was evident with the Child Care Act, when it took 100 years to replace an old English Act with the new children's legislation that was introduced in the 1990s.

It is extremely important to consider the highly positive response of groups and individuals to this report and I believe one should not go into a referendum campaign assuming there will be a high degree of conflict because there is absolutely no need for it. This measure has all-party support and as Senator Alex White noted, there has been an extremely positive response from those experts in the area who have examined it in detail. Moreover, all the existing children's rights organisations have expressed their support for the work that has been done. Indeed, as Senator White observed, such organisations have heavily influenced this work by repeatedly appearing before the joint committee to amend work that had been done. This places the Government in a unique position to bring forward children's rights, to change the Constitution and to ensure the balances are better than has been the case over a long time. The Minister of State's contribution referred to Mrs. Justice Catherine McGuinness and the Kilkenny incest report, which was when consciousness was heightened in respect of children's rights, the failure of the Constitution to protect them and the plight of children in incestuous situations. Other children were in care or had parents who were alive but were not in contact with them. While they were being brought up in institutions, they could be adopted by a loving family were the Constitution different.

I perceive this report to be hugely supportive of the family. While there have been a few comments to the effect that it could lead to inappropriate interventions in families, I do not believe this to be the case. I noted an example being given on television recently that the State will seek to interfere in cases involving obese children. I thought this diminished the work put into the report regarding the balances that were carefully arrived at and demonstrated a simplistic attitude to the highly complex work the joint committee was trying to carry out. Were this referendum to be passed, judges who came to interpret these proposals would be obliged to weigh up a careful balance between what happens to the individual child and to the family. Furthermore, there is no question of snatching children from families. The recommendations are written in too nuanced and careful a manner for this to be the outcome. From a public perspective, the Murphy and Ryan reports, as well as the kind of information that has entered public consciousness over the past year or two in particular, have heightened people's awareness and levels of information about what has happened to children.

I ask the Government to make a rapid decision in this regard. It has both all-party support and that of all the organisations with respect to the report's contents. However, a strong informational campaign for the public will be needed in order that they understand the recommendations and I ask the Minister of State to examine this proposal. One should recall what happened in respect of the Lisbon treaty referendum, when people did not understand, became confused or thought it proposed one thing rather than another. Members will recall the efforts they were obliged to make to provide detailed explanations and to clear up any misunderstandings and consequently should ensure there will be no misunderstandings about these proposals or that there will be no glib comments about it destroying families. Instead, Members should communicate to the public what it actually proposes, which is that for the first time, the Constitution will expressly acknowledge a child's individual rights. In addition, it will recognise the central role of parents in the development of a child but will note the State must intervene when children are truly at risk. Equally however, it will ensure that such interventions must be proportionate and effective and will hold out the possibility of adoption for the approximately 2,000 children who are in long-term care at present and who have no realistic chance of being brought up by one or both of their birth parents. In the course of two years of hearings, there have been 62 meetings and the joint committee has received huge input to arrive at this position. I wish the Minister of State well when he takes this report to the Government and I hope he will receive strong support. I am confident he will and that he will continue to receive the all-party support that emerged at the joint committee.

5:00 pm

Photo of Maria CorriganMaria Corrigan (Fianna Fail)
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I welcome the opportunity to debate the highly important report before Members and welcome to the House the Minister of State, who I note has been present for the entire debate, which is a significant reflection of his commitment to the work that must be done in this regard. In particular, I welcome the reasonable debate that has occurred in this Chamber this afternoon. As other colleagues have observed, a substantial amount of work has been undertaken by this all-party committee, which commenced with a proposed wording that sought to address several different aspects. I take this opportunity to pay tribute to the joint committee's Chairman, Deputy O'Rourke, and to all its members, including my Seanad colleagues, all of whom are present in the Chamber, namely, Senators Fitzgerald, Alex White and Feeney. The two interim reports and the final report are a demonstration of how politics can be done and how it can be both constructive and effective. This is to be welcomed, particularly in the context of what has occurred in the last couple of weeks.

The background to the establishment of the joint committee was the desire to fulfil Ireland's obligations with regard to the United Nations Convention on the Rights of the Child, as well as the strong public desire to ensure no constitutional impediment existed to ensuring the strongest possible protection for children. The interim reports, to which the Minister of State already has referred, addressed the issues of soft information and absolute and strict liability. This final report and its proposed wording for a referendum on amending the Constitution addresses a number of issues. Very importantly, it acknowledges the right of children to be treated as individuals and to be heard in any judicial or administrative proceedings affecting a child, subject to his or her age and maturity. This has long been sought and reflects the contents of more recent legislation to come before the Houses. It acknowledges the right of children to be treated equally, regardless of the marital status of their parents and acknowledges their right to an education.

Significantly, the report before the House and the proposed wording address a number of obstacles that had prevented the opportunity of adoption being available to some children, such as, for example, the voluntary adoption of children of married parents. In the course of their work on the joint committee, its members became aware of the cases of hundreds of children who are in foster care at present and who have had happy and fulfilled development within those settings. As those children reach the age of 16, 17 or 18, the families with whom they are living seek the opportunity to adopt them but because they are children of married parents, this is not possible. I welcome in particular the report's addressing of this obstacle.

Throughout its work, the joint committee also heard from a number of people and organisations of increasing concerns that the bar for the State intervening in child protection cases required a threat of imminent death and therefore made difficult any intervention by the State to protect a child's welfare and best interests on some occasions. I believe the recommendations to address this issue are generating the most concern regarding this report and the proposed wording. The joint committee was conscious of the sensitivities of the issues raised and did not seek in any way for this debate to become polarised or to be centred on the rights of the family versus the rights of the child. The joint committee stressed clearly that in the vast majority of cases, it considered that the best interests of the child are served within the family and it gave recognition to this point by not seeking to change Article 41, as well as by making an explicit reference in the proposed wording to the rights of the family to determine the education of the child and, if they felt fit to so do, to provide education in their own homes for their children, as well as to the right of the family to determine moral and religious upbringing. Where intervention is deemed to be necessary, the joint committee has recommended that it be proportionate. As other colleagues have remarked, this is a particularly vital inclusion. Initially, it is a question of seeking to provide added protection and support for families. The Minister of State clearly outlined the intention that the removal of a child from a family is the last resort. The goal is early intervention to support the family and the child and to avoid the necessity for the child's removal arising.

In my experience, families are the strongest advocates for children. In some of the cases that recently appeared on the national stage regarding realising the rights of children, it was the families that took court cases on behalf of children in nearly all instances. This is an important point we must keep in mind. Therefore, in strengthening and acknowledging the rights of children, we are strengthening the family's armoury in seeking to have children's rights realised. It is important that the rights of both should not be perceived as being incompatible or mutually exclusive. That perception is not helpful and has not been the situation in the majority of the cases taken in recent years. In many instances, a child's rights would never have been realised if not for the advocacy and campaigning of his or her family.

When one listens to the concerns and arguments tabled by people who are worried that the acknowledgement and strengthening of the rights of the child will take away from the rights of the family, one realises that fear and anger over the current system as it relates to cases on child care, child protection and child custody lie at the heart of their concerns. I refer in particular to the rights and protection for fathers. We must take some responsibility. The practice of not recording decisions has resulted in only anecdotal accounts and accounts of the most extreme nature being available for our information and consideration, especially in child care cases. This has left us exposed to some accurate accounts but also to some myths and fears about what is occurring. Most seriously, it has left us without a sound and reliable evidence base of what is actually occurring in such cases. The committee recognised this as a deficit for future plans, considerations and developments. Therefore, I welcome the final report's recommendation that a mechanism should be developed to enable the reporting of such cases without putting in jeopardy the anonymity and privacy of the parties involved.

Let us be clear. The State is not looking to take children from their families. Policies across all areas of care are focused on keeping the individual, be he or she a child or vulnerable adult, in his or her own home. However, we cannot be intimidated by people who seek to scare us into turning a blind eye to unsafe situations in which children are in danger. As a country, we already have a shameful history in this regard. There is no honour, humanity or Christianity in so doing.

The final report is a genuine effort of an all-party group to provide a better situation in terms of the rights and safety of all children. I urge Members to consider this intention and to make constructive suggestions and comments that will enable us to realise this legitimate goal.

Photo of David NorrisDavid Norris (Independent)
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I welcome the Minister of State and applaud this decision. Partial though it is, it is an improvement. We are starting from a low base. The Minister of State in his speech rehearsed criticism from the UN Committee on the Rights of the Child. When reporting on the implementation of the Convention on the Rights of the Child in 1998, it stated that our approach to children's rights seemed to be somewhat fragmented. This was diplomatic language for saying that we had done a bad job. The committee also indicated that our welfare practices and policies do not adequately reflect the child rights-based approach enshrined in the Constitution. In fact, matters are worse than that. It is not just that the old Victorian idea about children being seen and not heard was widespread, an idea that children were, in some sense, the property of their parents and were treated as such, just as women were treated as chattels. Rather, it is also the appalling situation in which both church and State stood deeply condemned for their complete dereliction of their responsibility for looking after the welfare of children. Children were not regarded as significant or as having any right to a voice. They were serially abused, degraded, humiliated, physically tortured and interfered with sexually. This is the base from which we are starting.

A number of years ago in the House, Senator O'Toole and I advocated the Stay Safe programme to protect children in schools. We were attacked widely by elements in society, the voices of which are still being heard. The reason for the attack was that the family, as an institution, was regarded as some kind of sacred shibboleth, the interests of which were placed above those of the child. This was an horrendous absence of any type of moral value. It is always wrong to place an institution above an individual. The individual feels, bleeds and suffers. The institution is created for the welfare of the individual. I go right back to the Bible for this point. Christ was reproved for just grinding an ear of corn between his fingers. The self-righteous hypocrites of the New Testament, who are still with us, accused him of working on and breaking the Sabbath. He made the point that the Sabbath was made for man, not man for the Sabbath. This is why it is so important that we recognise the humanity of children, which has been done in this amendment to the Constitution.

I compliment our former colleague in this House, Deputy O'Rourke, who was a forthright and clear Leader of the Seanad. With great skill, she moderated the committee's discussions. It is a tribute to her and all the committee members, some of whom are present, that an agreement was reached on a sensitive matter. It is useful that the agreement has the strength of the support of a committee drawn from all the political parties in the Houses. I welcome this development.

The Minister of State has indicated that voices such as those to which I referred are still active in our community. I would quote him if I could find a copy of his speech. The copy I have is not mine. He referred to people being concerned about the intervention of the State and the lowering of the threshold at which that takes place, thereby infringing the rights of the family in some way. I have also heard these opinions, but I deplore them and those who expressed them. I question their representative nature. I have heard representatives from the so-called Iona Institute speaking on this subject and advocating the rights of the family and the parent. I heard similar people when we raised the issue of fathers sexually abusing their children, at which time we were told that we were in some way interfering with the family. The family needs to be interfered with in those circumstances. It is right and proper that it should be.

The Iona Institute has every right to exist and express its view. However, let us be clear. It is an unelected, unrepresentative group of reactionary, right-wing, religiously motivated people. They have an undue prominence in this debate. Contributions to this debate should be proportionate. It is most unwise to give oxygen, in the media and other places, to this very nasty view. When I heard one of their spokespeople on the radio the other day I had an instant sense of déjÀ vu. I was thinking of my wonderful old friend and inspiration, the late Dr. Noël Browne, the mother and child scheme and the way in which the church in this country objected to the sustenance given out to nursing mothers and their children because it thought this was an interference and an undermining of its authority. Once again, the Church did not give a damn about the welfare of the mothers and their children. It was interested in its own power. I would like to think those days have gone from this society and that we will bravely support the rights of children.

We have had a number of cases like the Kilkenny incest case. In 1993 the Honourable Ms Justice Catherine McGuinness asked for this kind of referendum.

I would welcome the suggestion implicit in the wording that we would insert in the Constitution that glorious phrase from the 1916 Proclamation that the State cherishes "all the children of the State equally". I understand that is one suggestion and I hope it is taken on board. Most citizens of the country believe the phrase is already in the Constitution so let us satisfy them and put it there. Let us also remember that the word "children" did not mean people under a certain age. It meant all the people of the State because we are all the children of the State.

We need also to take our courage in our hands and look at Article 41 and this constrictive definition of the family. It does not suit the 21st century. We should look at that again, particularly if it inhibits the application of the proposal.

With regard to the question of adoption, I hope the disgraceful moral ignorance and neglect of the Government in the civil partnership legislation, where the rights of children of gay couples are ignored totally, will be addressed with the support of this proposed amendment. It will give the children some rights, at least. I know I am speaking to a sympathetic audience in this House, and in particular to the Minister of State whose decency I well understand. The Minister of State and virtually everyone in this House must agree with me that it is a nonsense that gay people can legally adopt children as single individuals, whether they are biological parents or not, but if the adopting parent dies the child is left with no rights whatever. Perhaps this will be some kind of half measure to address that.

When the civil partnership Bill comes to this House I will be attempting to amend it in order to protect the rights of children and I will be calling the bluff of the Government to make sure it is serious when it says the rights of children are paramount. It is not the rights of parents, gay or otherwise, but the rights and welfare of children which are important. I can say that with some background because I was responsible for the section of the Child Care Act which introduced the guardian ad litem principle, in the aftermath of the Maria Colwell case, in order to give a voice to children, who must be heard.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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With the permission of the House I will share time with Senator Fiona O'Malley.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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Is that agreed? Agreed.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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Like other speakers, I am delighted to see this day when we are in the House with the Minister of State to debate this wonderful report. I feel a little out of place now because at this time on Wednesday Senator Alex White and I used troop off to a meeting, of which there were 62, of the Committee on the Constitutional Amendment on Children. I find I am at a loss these Wednesdays. I do not know what to do with myself.

The report was published a week ago and it is timely that we are already here to discuss it with the Minister of State. I commend him for the great interest he has in his brief. I have had numerous chats with him about various matters, one as recently as this morning. It always comes across to me that deep in his heart he has children's interests first and foremost. Even before the interests of parents he sees the child's interest as paramount over all else. Not everyone might have taken the interest he has taken in this brief.

Other speakers have dealt with the legalistic aspects of the report. That is one area of our committee meetings I will not miss. There were times when they were so legalistic that one wondered what one was doing there. Yet, one was compelled to be there because it was such an interesting committee. I am proud to have been asked to serve on the committee and of everyone's work on it. We had a wonderful Chairman in Deputy Mary O'Rourke. She was humorous and hard-working and kept us all on our toes. She was so inclusive that she included every single member. There were days when one felt that if one kept one's head down she might not ask for one's opinion but she always asked for everyone's opinion. This was good because it made us work hard.

The work was two years in process but the two years were well spent. A mature approach was taken by the whole committee. No one came with fixed ideas. Everyone had an open mind. Last week at the launch of the report, Deputy Brendan Howlin said the work of the committee and the way in which we reached a consensus was a blueprint for how committees should work. There was much arguing and party lines were followed but they were then thrown out because every member of the committee had the interests and protection of children to the front and to the centre of what we were doing.

This report comes on the back of the Murphy report. There is a huge desire for change and now is the time to make it. I hope we see a referendum at the back end of 2010 and that the report does not have a chance to gather dust. I am glad to see we are looking after children. I hope we will see the end of long-term fostering and that every child in the State will have the experience of knowing what it is to have parents.

Photo of Fiona O'MalleyFiona O'Malley (Independent)
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I thank Senator Feeney for sharing time. Like other speakers I welcome the Minister of State and pay tribute to the work and dedication of the committee. As the report has taken two years to produce I am sure its recommendations were not arrived at simply or quickly. Therefore, we need a long discussion about the legislation to be drafted and the referendum.

Every time a constitutional referendum is proposed I realise how out-of-date is the Constitution. Rather than have amendment after amendment we should have a total revamp of the Constitution. Today we are discussing a referendum on children. We could equally discuss the whole issue of the family, as Senator Norris and other Members have recommended. What is meant by the family? What was meant by the family in 1937 is no longer relevant today. We need to recognise this and update the Constitution. Members of the Oireachtas are not required to take an oath to uphold the Constitution but Ministers are. Therefore, I hope what I am proposing is not sacrilege. Our Constitution is out of date and no longer serves the required purpose or the people. It certainly does not serve the children of this country. That is why I welcome the recognition of the rights of children.

Senator Alex White surprised me when he said children do not have rights in court. I thought they did.

Photo of Alex WhiteAlex White (Labour)
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I did not say that.

Photo of Fiona O'MalleyFiona O'Malley (Independent)
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I apologise. I thought the Senator said that this will guarantee them rights in hearings on custody issues or other such issues. I misunderstood the Senator. I understood children had these rights. This is something which is long overdue.

I endorse something Senator Norris said. We need to be careful in regard to civil partnerships. Words and platitudes are all very well but unless they have real meaning, what good are they? While we all purport to give equal rights to children, Senator Norris pointed out where those rights will be strongly challenged in legislation. This is an opportunity for us to show that this is a modern society - I do not know whether it is appropriate to call it a pluralist one - that we have nothing to fear and that we will give all children and families, whatever that word means, equal status and equal rights in our Constitution. I propose to support whatever amendment Senator Norris plans to table to the civil partnership legislation.

We can no longer pretend all children are equal while some are more equal than others. Either they are all equal or they are not. This forthcoming legislation will give us the opportunity to show what we mean.

Senator Norris is an example of someone who has been the subject of prejudice. While I listened to him, I thought that it was a pity he was not a woman because women's rights in the Constitution would have changed much more quickly because he was able to stand up for the rights of the minority he happens to represent. We need to be cognisant of that. Senator Norris has highlighted an issue in regard to children and where they might be subject to prejudice and I would like to alert the Minister of State to that.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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The Order of Business requires that I call the Minister of State to reply at 5.20 p.m.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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I am disappointed I did not have the opportunity to hear Senator Buttimer's comments but I am sure they would be fully laudatory of every aspect of the Government's performance. I thank all Senators for the valuable contribution they made. As always, it is a great pleasure and honour to be in the Seanad. I wish to mention the wide-ranging views expressed in this House and the engagement all Senators have had with what is a very important document produced in such a short period under the chairmanship of Deputy Mary O'Rourke.

To the best of my ability and in the short time available, I will address my comments to the specific issues raised. Senator Cannon spoke about trying to create a monument to past failures. That is a very fair point and one which was very much expressed in the contributions of members of the committee throughout the sittings. Senator Mary White made a point about Article 41 remaining in situ. We had a considerable amount of debate about that and were determined that it was important that the presumption that a child's place is best served in the family, which has been expressed many times in the Supreme Court as an interpretation of Article 41, would not be interfered with. What we wanted to do for the first time was to place a specific and discrete article in the Constitution that referred to children's rights and not dilute the importance of the family in a child's life and development. We were absolutely clear about that.

Senator O'Toole raised specific issues in regard to the exclusion of the word "physical" in what is described as the general education of a child. It was quite interesting that he raised that because only yesterday, Dáil na nÓg made a presentation to the Oireachtas Joint Committee on Health and Children in which they expressed their disappointment that relationship and sexual education is available on the curriculum in only 27% or 28% of senior cycle schools. They found that it was generally associated with religion teaching in so far as it was available. Senator O'Toole's points were very well made and I would say in all honesty that they had not occurred to me in our deliberations. The legal advice we received in regard to the second point was that free primary education is a constitutional obligation.

Senator Mullen made some very important points, which I respect. He articulated views widely held throughout this country, if not in this House, so one must consider them very carefully. He said the Government did not come to this argument with clean hands because of previous failures and has let children down in the past. He is right about that but that should not be used as an argument not to make an effort to improve in the future. It could be an argument for the Government to excuse itself in the future from any type of proper radical reform in the area of children's rights.

Senator Mullen referred to the concern about the phrase "children of the State". Senator Alex White also referred to this first sub-article of what is proposed. We had a wide discussion on whether this should be included. I was not aware at that time that, historically, this was supposed to refer to children in the widest sense and not just minors. The general view of the committee was, as Senator Alex White mentioned, that it should be something of a proclamation itself, aspirational as it were, in the way it is expressed.

I would say to Senator Mullen that it is absolutely the case that there is a presumption in our Constitution, which we propose to maintain, that a child's best interests are served within the family. That has been a Supreme Court interpretation of our Constitution on a number of occasions. We do not propose to dismantle that in any way.

Senator Alex White referred to the fact that this, for the first time, affords children rights in their own right. That is a very good phrase to use to describe what we sought to achieve.

Senator Butler spoke about some of the practical achievements we have made and referred to the free preschool year which was only introduced last month. It is true to say that while the Constitution represents the highest declaration of the legal position in the State, it is also by one thousand smaller things that we really give expression to children's rights. It is appropriate to refer to the progress made under various programmes introduced by the Government over past ten to 15 years.

Senator Fitzgerald spoke about the consensus achieved by the committee in such a short period, which I acknowledge. I submit that may have had much to do with the fact that committee meetings were held in private for the most part. It allowed everyone to proceed in perhaps a much more frank way than would ordinarily be the case and, on my part as a Government representative, perhaps in a less defensive way. It is an excellent piece of work and great credit is due to the Chairman, Deputy Mary O'Rourke.

I would argue a little with what Senator Fitzgerald said about the Murphy and Ryan reports. I deliberately had not associated this proposal with the failures in regard to clerical child sexual abuse because it is not about church-State relations but about families, individuals and children, regardless of religious issues. I would not put it in the context of a church-State type of argument, on the contrary. I am not saying that is the way the Senator describes it. I deliberately avoided saying we had our failures in the past in regard to clerical child abuse and, therefore, we should vote for this. It would be unfair and unwise to try to limit it to that.

Let us not forget that 90% of child sexual abuse is carried out by family members. That is as much as we need to know when we talk about the Murphy and Ryan reports. It is about a lot more and it is more significant than that.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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I was making a point about the status of children.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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I accept that clarification. Senator Corrigan spoke about the lack of information in the District Court. As she knows, the report made a recommendation that a study be done to elicit information on judgments and decisions made in regard to the child care legislation in order that we would know what issues are raised in terms of the limits on the ability to support families where children are at risk and, of course, referring to the crucial issue of proportionality.

Senator Norris mentioned the Civil Partnership Bill, a matter for debate on another day, and also referred to the right of a child to have his or her voice heard. One of the recommendations made in the report published last week is that this be one of the few enumerated rights included in the Constitution.

Senator Feeney said there should be no long-term fostering. However, I argue that long-term fostering is appropriate in certain circumstances. Adoption breaks a child's ties with his or her siblings, not only with his or her family. It will not suit everybody, but there will be a role and place for long-term foster care for some children.

Senator O'Malley spoke about the need for a total revamp of the Constitution which, again, is probably outside the bounds of this debate. She said that if Senator Norris was a woman, women's rights would have been advanced much more quickly, having regard to how much he has argued for on behalf of gay people; however, women are not a minority group.

Photo of Fiona O'MalleyFiona O'Malley (Independent)
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Not, but they have been repressed.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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I understood the point the Deputy was making.

There is much more to debate in dealing with this issue, as can be seen in the breadth of contributions made today. I am committed to bringing the report to the Government as soon as possible. It is clear that this is a determined piece of work by a committee which was very focused. I want to establish form on the issues involved. Two other reports were published by the committee and their recommendations were acted upon. Legislation is in preparation on foot of them. I hope the report on this issue will not gather dust.