Wednesday, 3 October 2012
Thirty-First Amendment of the Constitution (Children) Bill 2012: Committee Stage
The substance of the debate on Committee Stage is the wording of the proposed constitutional amendment which is set out in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long-standing practice, debate on them is postponed until consideration of the Schedule has been completed. In accordance with precedent and Standing Order 122, is it agreed that consideration of sections 1 and 2 be postponed until the Schedule has been disposed of? Agreed.
Tairgim leasú a 1:
I move amendment No. 1:
I gCuid 1, leathanach 7, líne 6, ?go comhionann? a chur isteach i ndiaidh ?uile?,
I gCuid 2, leathanach 9, líne 5, ?equally? a chur isteach i ndiaidh ?children?.
In Part 1, page 6, line 6, after ?uile? to insert ?go comhionann?,I move this amendment because it is important that the word "equally" be included. Sinn Féin Members in both Houses have expressed broad support for the proposed wording of the amendment, but we have also pointed out that it differs from the text agreed to by the all-party committee. By adding the word "equally" we could enhance the wording of the proposed article. If we are to adhere to the true meaning of the 1916 Proclamation which promised to cherish all the children of the nation equally, this would be a significant and important amendment.
In Part 2, page 8, line 5, after ?children? to insert ?equally?.
The purpose of the amendment is to provide strong protection for children and make a real difference in their lives. This means all children, regardless of whether they are from disadvantaged backgrounds, members of the Traveller community or suffering from poverty. We held a number of good debates on these issues in the context of previous Bills and have called for Government policies to be both poverty-proofed and child-proofed. This is important, given the reality faced by many children in the State, with more than 100,000 living in poverty. We must examine how we deliver services and be honest in admitting that the State did not cherish all the children equally in many of the services for which it was responsible. Many children are on waiting lists for health care or suffering because of housing policies which drive families into inappropriate accommodation. If we are truly to deliver on the logic of the referendum, we have to go beyond words to ensure children and their rights are put at the centre of Government policies.
I am sure the Minister for Children and Youth Affairs appreciates Sinn Féin's position on these issues. We supported the all-party committee and Deputy Caoimhghín Ó Caoláin was vocal in expressing his support for doing the right thing by children and learning from the mistakes of the past. We genuinely want to arrive at a wording that will enable or, in some cases, force the State to do the right thing by children. That is the purpose of the amendment. I look forward to hearing the Minister's response.
On Second Stage a number of Senators spoke about the merits of the wording presented in the Bill and, in particular, how it would guarantee greater equality among children, particularly those from marital families who heretofore were not capable of being adopted in the same way as those from non-marital families. I appreciate the principle of inserting a reference to equality. The Irish Human Rights Commission has suggested consideration be given to the inclusion in the Constitution of an effective guarantee of equality. However, I prefer its approach to securing a guarantee of equality by amending Article 40(1) which has been widely criticised as being too limited.
I do not wish to pre-empt the Minister's reply, but I would be concerned about simply inserting the word "equally" into the current text of Article 42A(1). I am not sure it would work. The article would state, "The State recognises and affirms the natural and imprescriptible rights of all children equally". Vindicating the natural and impresciptible rights of certain children would mean that they were treated unequally in that they required additional support or help. I am not sure that is captured by the word "equally". While I appreciate the intention behind the amendment, I am not sure it is the correct way to proceed.
I apologise for arriving late for the debate, but I was launching a report produced by the One in Four organisation.
There is considerable potential in the proposed Article 42A(1) and how it is interpreted will be important because it is the bedrock of the entire constitutional amendment. In the event that the courts seek to establish the intention of the framers to guide their interpretation of the article, will the Minister confirm that the amendment has been drafted to be in keeping with Ireland's international treaty obligations as contained in the Convention on the Rights of the Child and as recommended by the UN Committee on the Rights of the Child on two separate occasions, in 1998 and 2006, respectively? This provision should guide and potentially strengthen the protection of children in other areas when read with other laws. It provides signposts for the courts, policy-makers and decision-makers that children are independent rights holders.
Much has been made of the phrase "as far as practicable", but this is standard constitutional wording and it will be our role, as legislators, to articulate and express these rights appropriately in legislation.
I thank Senator David Cullinane for moving the amendment. I welcome Sinn Féin's stance on the constitutional amendment and acknowledge the work Deputy Caoimhghín Ó Caoláin has done for many years. He has played a sterling role in the development of the committee's work, ensuring children remain central to our considerations and building all-party support for the amendment.
A couple of points have emerged in respect of the article recently. The phrase "cherish all the children equally" was used. Yesterday, a number of Senators said this has a resonance for historic reasons with many people and it emerged from the committee wording. However, when I had to make the transition from the committee wording to constitutional language and started to examine the meaning of the phrase from a legalistic point of view and what it might imply, I found the phrase was much weaker than what I am recommending should be in the Constitution. When one examines the word "cherish" from a legal point of view and tries to define precisely what it would mean, it does not take us very far. Instead, what I am saying is that, "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." This is a stronger formulation than the committee wording and would have more impact in terms of an approach to children and children's rights.
In terms of equality, I am clear that the articles apply to all children and there is no discrimination between marital and non-marital children. The first article mentions all children. The new sub-article recognises and affirms the natural and imprescriptible rights of all children and it does require the State to vindicate those rights. I cannot say how precisely this will be interpreted, no more than anybody here can. As the Attorney General says, every word put into the Constitution has a meaning. That is why I have been careful in the range of words used. We have built up the formulas in a careful way, having regard to other rights already enumerated in the Constitution. At the end of the day it is the Supreme Court which will decide, given all the other elements of the Constitution, precisely what the meaning is. It is a strong statement. It is the first time the Constitution will have specifically spoken about the rights of the child as an individual. Some commentators would make the point that under the more general rights in the Constitution children are included; one could make that argument. I have said that what is being done here is in addition to that. For the whole range of reasons which almost every Senator spoke about yesterday, we have decided to have to a stand-alone article for children. It is generally accepted, given everything that has gone before, that this is the right way to approach the issue.
I have considered the amendment and appreciate the constructive objective behind it. I remind the House that Article 40.1 of the Constitution provides that general guarantee of equality under the law which applies to children. It is difficult to predict what additional protections or rights it is intended to provide under the formulation suggested by the Senator. It is unclear, as mentioned by Senator Bacik, if the intention is to ensure an equality of treatment or an equality of outcomes. If this is intended to comprehend a right to additional assistance to all children or between children in different circumstances, it is not clear how that would be realised. The question could arise as to whether it could preclude any assistance by the State to positively discriminate in favour of those who are disadvantaged. To accept this wording could establish that potential conflict between the new article 42A and Article 40.1 which reads:
All citizens shall, as human persons, be held equal before the law.I made some comments yesterday on the United Nations Convention on the Rights of the Child. Senators agreed that this is a very broad convention which outlines a whole range of rights and principles which the UN, when it first formulated it, believed should be signed up to by all countries and implemented either by legislation or constitutionally. Countries vary in how they adopt it. Ireland signed and ratified it. Only two countries have not done so. It is interesting to note the Vatican was the fourth country to sign up to the United Nations Convention on the Rights of the Child and accepted the principles outlined therein about support for children, maintaining contact with families, developing the child's individual potential and so on. Ireland's approach has informed Irish policy making and legislation and continues to inform and has informed the work on this amendment. We have done this in our own way, having regard to the provisions already in the Constitution. We have gone for that balancing of rights, therefore, the words "proportionate" and "exceptional" are included. I have approached the issue primarily based on the all-party committee's work. We did not take a decision as the Irish Human Rights Commission suggested yesterday to incorporate all of the United Nations Convention on the Rights of the Child because that was not practicable.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
I thank the Minister for her frank and genuine response. We accept that to interpret the wording that goes into the Constitution from a legal perspective might be different from the intent that any party or individual may have in terms of wanting to put a formula of words into the Constitution. It is then the Minister's responsibility to interpret what that will mean. I accept that. The Minister mentioned the word "cherish". That word was in the original agreed wording from February 2010, which reads, "The State shall cherish all the children of the State equally". I accept what the Minister has said in respect of the word "cherish" but our amendment seeks to include the word "equally". We want to ensure the equality principle is clear and explicit in the wording.
In addition, we want to make it patently clear for those who adhere to and will have to implement the constitutional amendment, that we mean equality and treating people equally. It is important that we have a frank, open and fair debate on the issue. We do not want the debate muddied by, for example, not having the 50:50 referendum coverage. Although not strictly related to the amendment, I take the opportunity to say to the Minister that we should not be afraid to listen to people who have alternative views and to challenge them, where necessary. It is important that all parties accept this and will make the arguments. For those who make the case against, if there is 50:50 coverage those who favour the passing of the referendum should have no fear. Although some Members said yesterday they were in favour of abolishing the 50:50 coverage, I am not in favour of doing so. It would be unfair to use the children's referendum as an opportunity to do that.
If it were possible, it would be ideal to incorporate Senator Cullinane's sentiments. We have to acknowledge that children are born into varying circumstances, including socio-economic and attitudinal. As a consequence I am persuaded by the Minister's response. I acknowledge she has done a good job in crafting the amendment for the Constitution. There was a certain challenge in balancing the rights of the family and the rights of the child in a way that everybody of reasonable views could subscribe to. I ask the Minister about the clause "due regard for the natural and imprescriptible rights of the child."
Does the Minister accept that such an important phrase should include the right of children to a father and a mother and to know their identity? An issue that has often cropped up but has never really been addressed is the lack of involvement by fathers and, in some instances, their not accepting their responsibility for having brought a child into the world. It is wrong and the State should seek to ensure that fathers meet their obligations. Sometimes they are excluded from the rearing and development of their children. Perhaps this is due to a fractious relationship with the natural mother. The issue must also be examined.
I like the phrase used in the amendment because it covers some of the issues that I have and shall raise. For many years I have been a strong advocate for children knowing the identity of their natural parents and for them to be involved. I accept that in exceptional circumstances parents do not measure up to fulfilling their parental responsibilities. Adoption should be allowed when that happens.
The State should use every effort to assist and work with families that need a little assistance to be good family units and parents. That is the ideal and any move away from that stance on child welfare would seriously concern me.
I accept Senator Cullinane's point that those of us who support the referendum should be comfortable debating it and dealing with any concerns. As I said yesterday a number of times - probably too many times - we have a duty to go out and inform people. They need to be informed. The referendum is only on one page and is small when compared with the 20 pages of the stability treaty. We are dealing with matters that go to the heart of people's views on children and families. People will have a strong natural response to it. We want to ensure that people understand why we are putting the wording in the Constitution, what we are putting in and what we are not putting in. Again, I agree with the point the Senator made.
I must reiterate my concern about his comments on the amendment. First, I do not believe that the amendment would achieve what the proposers intend. As I have outlined, and partly because the formulation is somewhat ambiguous and could have unintended consequences, Article 42A.1 refers to all children. The provision does not discriminate between different groups of children. It implies that all children are equal because they are all acknowledged under the article as enjoying natural and imprescriptible rights. That means it covers all of the children. We are not defining some children in particular circumstances. It is all children.
As I have said, children do enjoy a constitutional right to equality under Article 41. The interplay between it and Article 42A.1, if amended, as suggested would be unclear. As I said earlier, it is my experience from drafting the wording, and working with a range of people to arrive at it, that when one adds words and new concepts they must be used very sparingly. The reason is that we must examine the Constitution as a whole and the interplay between articles, not just in Article 42A but throughout. Therefore, one must add words sparingly and read the Constitution as a whole.
I understand the sentiment expressed by Senator Cullinane and where it comes from. As he said, the amendment has implications for other legislation. It has implications for resource allocation. It also has implications for the concept of child-proofing and I was a big proponent of equality-proofing. Both are imperfect concepts as we have all seen over the years. The amendment does not solve all of the problems when it comes to equality and child-proofing. As a concept and an approach to major decision-making in Government, policy or legislation they are lenses - certainly one of the lenses - through which we should view decisions. Obviously there is more scope for us to do that than was done previously. We are having a constitutional amendment because children have been so invisible. We did fail in terms of child-proofing decision making when it came to resources and court decision making over the years. I hope the Senator will understand that it is on that basis that I cannot accept his amendment.
I beg the Senator's pardon. I did mean to respond to his points. I agree with the point that he made on identity. The Government will introduce legislation and there will be a change in the registration Act to ensure that fathers are named on birth certificates. I have never understood why they are not because they should be. Only in exceptional cases will a father not be named on a birth certificate. Identity is critical for the individual, as we know. For example, we have become more conscious of the issues surrounding identity in intercountry adoptions. If one talks about identity in Ireland we know that there are so many people who want to access information, to trace their origins and to have medical information but we have constitutional difficulties with that. Members will remember that when an attempt was made to deal with the issue there was a big reaction. People were worried about the rights of mothers who had placed children for adoption and expected that their action would remain secret forever. There are delicate balances but we should be clear about birth certificates.
I am quite sympathetic to the point made by the Senator on how family law has dealt with fathers and men. Every effort should be made for both parents to continue their involvement in the care of their child where appropriate and unless there are circumstances such as violence, domestic violence or other reasons. We are developing new services such as the new mediation service and the conflict resolution services for children in such circumstances. Barnardos also runs two pilot projects in Dublin that work with families going through a separation. The courts are more sensitive to the issue as well.
I take the points made by the Senator. We still have work to do on the issue. A great number of new services are being developed that have resulted in men becoming involved in their local communities. I have seen a lot of work done with fathers. The unemployment situation has given rise to more pressures being placed on men and women. Traditionally, these services were availed of by women but they reach out more to men now.
I welcome the Minister's reply, particularly her comments on the schemes undertaken by the Department with Barnardos to address situations where families are in difficulties and parents are separating or divorcing. Such schemes ensure that the interests of the child are paramount.
The amendment is pertinent. An expressed intention of the referendum is that we try to achieve a situation where children are reared with their fathers and mothers. Does the Minister agree? I know that there are exceptional circumstances such as the example she gave of domestic violence. There is a role for the State to be much more proactive when dealing with these problems in families. It should assist them to move beyond their difficulties to where the children can grow up in a loving and nurturing environment. For a long period the State has failed to address the problem. I know, as I am sure other Members do, of marital relationships that ran into difficulties but the couple stayed together in the interests of the children and until they reached adulthood or thereabouts. That is commendable. Those parents put the interests of their children ahead of their own personal desires and interests and we should encourage that type of giving. When people marry and have children it is all about giving and we know that it is in the giving that one receives. We should nourish that attitude in society. There is still a low level of divorce in Ireland and we should ensure that we work to maintain it.
I am tempted to submit a matter for the Adjournment on this issue.
A recent report in Sweden dealt with mental illness in adults and compared adults from families that were divorced and families that stayed together. The report was conducted over quite a long period, from 1968 until 2006 if memory serves me correctly. It demonstrated that the incidence of mental health illness in middle-aged people from broken homes where marriages had failed was much more pronounced than for others. There are many good reasons, not least economic ones, we should plough resources into the area I have mentioned. We should assist people get over difficulties rather than take the other option, which oftentimes, I am sorry to say, social workers and the legal profession advocate. Instead, they should try to deal with the underlying difficulties to see if the relationship can be repaired and restored. We do all that in the interest of children.
A stable childhood is the very best thing one can offer any child. However, it is realistic to point out that families do run into difficulties. The State is doing a lot to support those families. In recent years in particular, significant funding has been put into counselling services. While there are waiting lists for these services in some places, there has been a significant increase in resources for them. The 102 family resource centres have also received funding. I accept everybody is stretched at this time, but family support is an area in which the State invests heavily.
Equally, we must be realistic about the pressures on families. Take, for example, the number of children who came into care in 2011 when we had 2,218 admissions to care. Almost half of those were voluntary admissions. The others were as a result of court or emergency care orders. The second largest category of children coming into care, 772 children, or 35% of children admitted, was due to abuse. The Constitution talks about supporting the family and the primary role of the family and that does not change with this amendment. However, the balance in the Constitution through the amendment ensures that in those circumstances where families are not coping - I accept the best place for children is with their families - there is clarity around the intervention and a good alternative offered.
Tairgim leasú a 2:
I move amendment No. 2:
I gCuid 1, leathanach 7, líne 10, ?suntasach? a chur isteach i ndiaidh ?dochar?,
I gCuid 2, leathanach 9, líne 10, ?and significantly? a chur isteach i ndiaidh ?prejudicially?.
In Part 1, page 6, line 10, after ?dochar? to insert ?suntasach?,I welcome the Minister to the House and apologise for the fact I was not in a position to hear her responses yesterday. I have found the past few minutes of this debate particularly engaging. Many important and profound points have been made, both by Senator Jim Walsh and the Minister. It occurred to me at one point that in recent months as we have been reflecting on the referendum, much of what we are talking about focuses on dealing with problems that arise.
In Part 2, page 8, line 10, after ?prejudicially? to insert ?and significantly?.
The Constitution is also a document that sets out our national vision. It is our basic law, our bunreacht. We also have our directive principles of social policy, which enjoy a different status in terms of justiciability. The Constitution lays out the vision for what we seek to be as a people and a society. It occurred to me that in another time and place, we might also have seen fit to find some constitutional means of expressing our national aspiration that the State would acknowledge or pledge to respect and vindicate, as far as practicable, the natural right of children to be raised by their biological parents. The gold standard internationally is recognised as two biological parents in a low conflict marriage. This aspiration must be circumscribed by law. People go to prison and people are bereaved, etc. However, perhaps in the future we will find a fair and respectful way, mindful of the complexities of so many people's lives, to be truthful about what we believe to be in the best interests of children and what we should seek to promote and support as a state.
I mean this in no intemperate sense, but in a playful sense, when I say that I am always amused as a politician - I recognise why it happens - when I hear the Vatican being roped in in support of particular measures and on other occasions cut adrift when its philosophy and values are challenging. This comment is not in any way directed at the Minister. I am sure the papal nuncio will take consolation from the fact that were the country in question Iran, the Vatican would not be cited with approval in the national parliament. I hope this citation betokens a welcome thaw in relations. It seems there is goodwill on all sides.
While welcoming the referendum proposal, I commend the Minister and others, particularly Senator van Turnhout who has invested much time, energy and personal commitment on this issue. People like Dr. Geoffrey Shannon and many others deserve great credit for their focus on what needs to be done to vindicate the rights of children in society. I stated yesterday that I felt it my duty to examine the text closely to see whether it was the best it could be. I offer only my own opinions, having regard to the advice I said I would seek and the study I said I would give the matter. I have submitted two amendments which I believe would shore up what I regard as the intended meaning of the Constitution. I think that what I propose will make the meaning more coherent and, perhaps, prevent certain phrases from introducing any unhelpful incoherence. We should avoid confronting our courts with significant interpretive challenges in the future.
Amendment No. 2 has to do with the test for parental failure. As we know, the constitutional order being replaced provides that the State shall endeavour to supply the place of the parents where parents fail, for physical or moral reasons. We are moving away from that notion of the reason for the failure towards introducing a definition of the level of failure. What is proposed is that the failure would be to such extent that the safety or welfare of any of the children is likely to be prejudicially affected. This is a new specification of parental failure and is not present in the current wording of Article 42.5.
The phrase "affect prejudicially" appears already in the Constitution in Article 44.2.4o, which provides:
Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.We note that the phrase "affect prejudicially" is used in connection with a child's right. However, the new wording in the proposed Article 42A connects the notion of prejudicially affecting to the question of a child's welfare. It is clear that welfare is a more indeterminate concept than the notion of a right and possibly a concept with a less substantial constitutional and legislative status.
What I am saying is that the notion of prejudicially affecting here might, for example, have a very low threshold.
We can contemplate with serenity the idea that even the slightest impact on a right would be something the Constitution would forbid, although it does allow it in some cases. If we are dealing with something that is more difficult to determine, such as welfare, then the notion of something being prejudicially affected, were that to mean even a slight negative impact, might be quite troublesome for many voters. In all of the child care, adoption and guardianship Acts, I can find only one mention of the cognate term "prejudice" and, again, it is in connection with children's rights as distinct from welfare. The phrase talks about the High Court giving "a direction in respect of such order, extension or variation which would prejudice, or otherwise interfere with, the rights of the child in the proceedings". Again, one has the notion of prejudice linked with prejudicing rights.
What I am trying to suggest is that the clause is at least partly innovative. I am concerned that the phrase "prejudicially affected" is rather vague. It does not of itself imply failure on the part of parents to talk about a child's welfare being "prejudicially affected". It is obviously linked with parental failure but it is the test of parental failure that will permit the State to intervene. Bearing in mind its dictionary definition, "prejudicial" connotes a negative or injurious effect when applied here to the question of child welfare. However, it does not of itself denote a negative effect that would, for example, be so injurious or sustained as to constitute a serious or significant parental failure.
Good parents may sometimes act in ways that will impinge negatively on their children's welfare, but we would regard that in many cases as being a long way from what we would describe as the kind of parental failure that requires the State to endeavour to supply the place of parents. As we all know, all parents fail at some time or another. Good parents fail, but failure can be momentary, it can be temporary, it can be accidental, it can be substantial or it can be ongoing. Therefore, the question is: what is the level of failure that can attract State intervention of the kind to be contemplated by the Constitution? In a sense, we are introducing a threshold for failure that is not referred to in the existing article. This is why I say we could be presenting the courts with a significant interpretative challenge. I wonder whether the phrase "prejudicially affected" is out of step with the phrase "in exceptional cases" and with the term "fail". I ask this in a spirit of genuinely seeking to deal with a problem I think may be there. I took advice and agonised about what might improve the situation. The wording I propose is that the child's welfare could be "prejudicially and significantly affected".
What I do not want to do is to introduce such a high threshold that the State would not be able to do what we know the State must be able to do. However, if one asks the question, "If we regard a parental failure as not being significant, should the State be allowed to intervene in the way contemplated?", the obvious answer is "No". If a failure is not significant, clearly it is not the time for the State to intervene. Therefore, I believe the use of the phrase "and significantly" might assist matters.
There are people who, rightly or wrongly, are concerned about what they would see as a busybody State. They want a caring State but they do not want a busybody State. They want a State that is ready and able to intervene when appropriate but they do not want a State under which social workers or others intervene in matters that are not appropriate. In countries such as Sweden, controversies have occurred in regard to intervention by the state services in ways that turned out to be inappropriate. Of course, this happened in cases in which parents were not perfect, but the problem was that their imperfection was not to such an extent that the state had a right to intervene. These are difficult issues.
Looking at what is set out in legislation and elsewhere, it is hard to find anything that helps us understand what "prejudicially affected" might mean. By contrast, the concept of "significant" is to be found in Article 35.3.b of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which states: "The Court shall declare inadmissible any individual application submitted under Article 34 [where] ... the applicant has not suffered a significant disadvantage". It is not proposing a word that has not been used or that does not have some standing.
My amendment would add coherence to the relevant subsection by adding the phrase "and significantly" after the word "prejudicially". The notion of a significant negative effect is already made use of in Article 35.3.b of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I said that people are sometimes worried about the State's intervention. Those concerns are sometimes grounded in reality and sometimes ill-founded. However, there are situations in which one does have to adjudicate on whether such concern is grounded or ill-founded because one can remediate the situation in advance and prevent the possibility of misunderstanding. It is in that spirit that I have proposed this amendment.
I said yesterday I wanted to make a few points on this provision. I have stated on several occasions that I hoped the wording of the amendment would include the word "proportionate" and it is significant that the Minister has included it. This will perhaps address some of the concerns Senator Mullen has raised.
I also very much welcome the removal of the specification of failure "for physical or moral reasons" and the insertion in its place of the phrase "to such extent that the safety or welfare of any of their children is likely to be prejudicially affected". I believe this reframes how we view child protection. Instead of looking to why parents fail, we will instead be looking at the impact on the child. All too often, I have heard of cases which start with somebody, perhaps a teacher or health professional, reporting a concern about a child. The social worker will arrive at the family's home to investigate the concern and, given the current constitutional framework, instead of first looking at the child, the family and the surrounding environment, the social worker will have to ascertain the marital status of the parents because the threshold for intervening in a married family differs so substantially from that for intervening in a non-marital family.
We have the focus all wrong in the current situation, in which it seems intervention is more about building a case against the family. Obviously, in exceptional cases in which a child is in danger, an immediate intervention should take place to protect the child. However, in the majority of cases - this echoes much of what has been said today - there is an ongoing concern for the welfare of the child, and in these cases we should be empowering both the State and the family to work together to remedy the situation. We should be working to keep families together and if, after a defined period, remedy cannot be found, then the emphasis should move to the best interests of the child.
I would like to note the proportionality test as set out in law in Heaney v. Ireland, which is as follows:
The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:?(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;This is very important for us to note.
(b) impair the right as little as possible; and
(c) be such that their effects on rights are proportional to the objective.
This provision also holds that the State will "supply the place of the parents". There has been some confusion and concern about what this means. To "supply", in the context of State intervention, will not mean in all cases that the State will replace or take over from parents.
The term "supply" also means to make available for use, to provide, to furnish, to equip, to make up for a deficiency, to compensate for or to serve temporarily as a substitute. In the majority of cases it means that the State will support the role of parents and families. Supplying can be in part; it does not have to be mean "replace". This provision shifts the trigger of intervention from a consideration of the reasons for failure of the parents to a consideration of the impact of the failure on the child. As my colleague Senator Mullen is aware, I looked at the wording closely and considered tabling amendments. I cannot support the amendment because we cannot just look at the interplay within the sentence; we must look at the provision. The term "proportionality" is extremely important. I have a difficulty in that the threshold will be raised if we put in ?and significantly?. Having taken advice overnight, I have concluded that the interplay between "prejudicially" and "significant" would increase the threshold to where it currently is. What we are trying to do is to make a level threshold for all children and all families so that we have the same threshold for intervention. In this way we can, I hope, support families. In exceptional cases the State would intervene to remove a child, but they are exceptional cases, and that is where we need to keep everything in balance.
I agree with Senator van Turnhout. I also checked about the inclusion of the words ?and significantly?. It would raise the bar extremely high. It would cause more problems than it would solve in the sense that the bar would be set so high that the courts would find themselves again in a stranglehold such as that to which I referred yesterday in the context of Mr. Justice Lynch in the JH case. He was trying to look at the situation through the eyes of the child as opposed to the eyes of the natural parents and the eyes of the adopting parents, and when he came to his conclusion based on examining the situation through the eyes of the child, the Supreme Court allowed the appeal of his decision. Likewise, if one adds the words ?and significantly? it would cause problems for the courts because the effect on the child would have to be of major consequence and would cause problems in the sense of the courts stepping in. Senator van Turnhout made a submission on the word ?proportionate?. The section overall does deal with all of the circumstances, taking into account the parents but also the child. It makes sure that if there is to be a level of involvement by the State, it is in a measured way and that it is not overly intrusive in dealing with the matter. The section as drafted is the appropriate way of dealing with the issue. I support the Bill as is. I am not in a position to support the amendment tabled by Senator Mullen.
This is a valuable debate to have. I thank Senator Mullen for tabling the amendment because it enables us to tease out, as Senator van Turnhout has done, the entire wording of the provision, just to reassure ourselves that the appropriate balance we all seek to make is met. I am reminded of Mrs. Justice Denham?s words in the PKU case, where the authority of the parents was recognised by the Supreme Court. She said she had a fear of stepping towards the brave new world in which the State always knows best. Clearly, we want to ensure that the State will only intervene in exceptional cases and then only by proportionate means. The inclusion of those two phrases "exceptional cases" and "proportionate means" should address any concern that the test is set too low by the use of the words ?prejudicially affect the safety and welfare of children?. I do not see the need to include Senator Mullen?s proposed extra words. Significantly, I share the concern of Senators Burke and van Turnhout that it might in fact set the bar too high.
From my own experience in Dolphin House and in the District Court in Dublin in these cases, the State?s intervention is not limited, as is often assumed, to the full care order. The Minister referred to the State?s increased investment in family supports to ensure that a full care order is the last resort and the exceptional case. Even in cases in which children are admitted to care, on which the Minister gave the figures, in many cases interim care orders are granted. They may be renewed for periods of weeks, but the child may well be returned to the parents. There are many cases, even when genuine concerns are raised about the safety and welfare of children, in which the approach taken is to support the parents, provide parenting classes and counselling, and in some cases provide residential placements for parents and children together to ensure that the family will be kept together and that the full intervention or care order will not be necessary. There is a greater understanding now of the need to support parents and to ensure the child can stay in the family as far as possible, rather than having the State replace the parent, as is the norm in the case of a full care order.
When we read the provision we should not assume the State's intervention consists of the child's entry into care. We should instead note that the phrase ?by proportionate means? refers to the wide range of measures available to the courts in trying to support children and parents to ensure that the welfare and safety of children will not be prejudicially affected. The Human Rights Commission?s helpful observations state that the wording should also ensure families are properly supported to allow them to effectively nurture, care for and bring up their children with the full support of the State. That is correct. The State intervenes to support parents; as Senator van Turnhout has pointed out, the word ?supply? includes family supports. It does not necessarily mean only care orders.
Yesterday in the House we spoke about the Baby Ann case, which is an important case in this context, and I mentioned that Vincent Browne had misread the judgment. I am pleased to see he commented on that in his article today and referred in particular to some of the more significant judgments, such as that of Mrs. Justice McGuinness in which she referred to her difficulty with the decision she felt she had to come to. In this carefully crafted wording we are reaching a better balance than is currently the case. Looking again at the judgment in the Baby Ann case, we are reminded of the need to strike a balance and to ensure the State?s intervention is proportionate and limited to exceptional cases. That balance is achieved in this wording.
I have much sympathy for the Minister?s position of having to formulate words that strike a balance. This goes back to the previous amendment as well. I accept that when we propose to add a formula of words - whether a number of words or one word - to the amendment, there are repercussions and issues that must be examined and teased out. It is important that we are having the debate. While additions might be well intentioned by those who propose them, they can, as the Minister said, have unforeseen consequences. I agree with the Government representatives and Senator van Turnhout. I listened to Senator Mullen?s contribution and I have a question for him. It is important that the people who propose the amendment tease out exactly what they mean. I share the view that this could potentially increase the threshold for intervention. I fully agree with Senator van Turnhout: the word ?proportionate? is important in the context of the overall provision. It is sufficient for me not to support the amendment but to support the provision as it stands.
Semantics are a huge part of the debate, as is the case in any referendum when people have different interpretations of what an amendment contains. We must be clear on what we mean. My question for Senator Mullen is this: if we include the words ?and significantly?, how do we define ?significant?? What does a court use as a benchmark for determining what is significant? It would raise serious problems for the courts. This is why I find it difficult to support the provision. Perhaps Senator Mullen could respond. We must be careful.
One of the reasons we have not tabled many amendments is that we are very conscious of the work the Minister had to do in striking a balance. We will have arguments around the Government amendments but I would be very concerned about putting words into the amendment that could have consequences for legal people and those in the courts who have to interpret what we mean. That is why it is important that we, as legislators, know what we mean when we wish to put into the Constitution words such as "and significantly". What does that phrase mean? What is the benchmark? How should it be interpreted? Those might be questions for Senator Mullen. If he gets an opportunity to return at some point he might be able to expand on or explain the point.
The Minister is very welcome to the House. I support comments made by other colleagues in that I consider this wording as a very careful balance. We must all be conscious of the fact that it has been worked on at Cabinet level only during the past year and a half. It is very similar to the wording agreed before the election by the previous Cabinet which was brought to that point after more than 60 meetings of an all-party committee. By the time legislation comes to this House it has gone through a most extensive process. I refer in particular to the number of meetings of that committee, on a cross-party basis. I would have confidence in generally accepting there is a reason for the wording being the way it is, and that it is appropriate in terms of the balance that has to be struck between conflicting rights.
It is significant that Article 41, which relates to the family, is staying put. It will leave in place the presumption that the child's welfare is best met in his or her natural family but with the new Article 42A we are putting in place a system by which that presumption can be displaced, by giving the child clear rights in his or her own respect. It is important to note it will be displaced only in exceptional circumstances and the wording, as it stands, makes that very clear. It is also clear that this will only occur when the child's welfare and safety are prejudicially affected. The word "prejudicially" is strong enough. The fact is we have two articles which will have to be balanced against each other, and our courts in general ensure that when they are weighing up conflicting rights they have regard for proportionality. The safeguards are already in place in that wording and for those reasons I support the amendment.
I have certain concerns. Perhaps Senator Mullen would like to come back and explain how exactly this proposal would change the threshold in question. I would have concerns about the uncertainty in that regard. If this is the appropriate threshold, as decided on by the Government and the all-party committee, I would like to know what the addition of the word "significant" means, and in what way it would make that change. The last thing we need in this area is uncertainty; that is why we are here. We have had problems in not being clear about children having rights in their own respect. They are protected as individuals under Article 40.3 but we have never had clear protection for the child, as a separate individual in his or her own right, with a separate constitutional provision to cover same. The last thing we need, therefore, is uncertainty.
In discussing this section, I point out that the wording of the referendum has obviously been considered very carefully and I support the referendum 110% because it will give children clear rights as individuals and reflect the value we should have put on children's rights a long time ago. It will reflect the value we as a society place on children and show we want to ensure they are protected from harm even when unfortunately that harm arises, in exceptional cases, in their own home. However, although the legal framework will be put in place by this amendment, I am concerned to ensure that the right procedures and supports are in place on the ground. The point was made already in debates on the referendum that there have been cases of failure in the past where the HSE did not act in circumstances in which the law was not the obstacle. We need to be very conscious of that and the fact that although this referendum is very important, it is only one small part of the solution in terms of child protection. The Minister addressed that point. I assure her of the support of this side of the House as she fights at the Cabinet table for resources for child protection and support services for children. That is how we will ensure the aspiration of the Constitution and that the legislative framework will mean real protection for children on the ground. That is the important part when this referendum goes through, as I hope it will. It is significant that it has support on an all-party basis. I am sure all Members of this House will campaign for it but that is only the start of the process of improving children's rights in this country. We must move towards implementation and proper resourcing of services.
The thirty-first amendment to the Constitution affords rights to children and gives them protection that heretofore has often been sadly missing in our society, as the Minister well knows. The amendment gives effect to the line in the Proclamation which states we should cherish all the children of the nation equally. It is appropriate also that the date for the referendum is the birth date of Pádraig Pearse, one of the signatories of the Proclamation which remains timeless and universal in its aims and objectives.
I wish the Minister well in the referendum. She has put in a great deal of hard work on this with her officials in recent months and although we are debating the wording, the objectives and the spirit of the amendment must be welcomed. It is great to see such cross-party support for the thirty-first amendment.
Senator Power has mentioned this is only the start and she is right. Wording in the Constitution will probably not change the position of children substantially. What we do on the ground and attitudinal changes will make the most significant difference. Senator Power also referred to the all-party committee. I commend the Minister for changing the wording proposed by the committee. She has improved the situation with the new wording.
The one area that struck me when I read the published wording was the next clause, also referred to here, namely, that we had moved from the physical or moral reasons, so to speak, to more general duties. That struck me as an area that might be tilting the balance one way or the other and I put that question to the Minister. The debate is very good. I have no difficulty with the implementation of what Senator van Turnhout describes as the modus operandi but we must look at the wording in question. In going back over what has happened up to now, Senator Bacik was not particularly pertinent in that we are now putting new wording into the Constitution which will be interpreted, as the Minister stated, by our Judiciary and this may change the manner in which these cases are considered.
I wish to tease something out with the Minister. I am not sure whether the phrase "and significantly" tilts this issue back the other way too much. As it is really a legal question, I must defer to legal minds on it.
The debate has reawakened some small concerns I had with regard to the wording, for example, parents "failing in their duty towards their children". This phrase is qualified by "the safety and welfare of any of their children". Growing up as a young garsún in the 1950s in the house where my father had died, I remember being acutely aware that children in those circumstances were, to some extent, exposed to the possible intervention of what was then called "the cruelty man". Many people who grew up in that era will be familiar with that term. Much would have related to the inability of families to provide for their children in the way they would have liked because they did not have the financial resources. It was common in those days for people to borrow sugar, butter or whatever else before the end of the week. Those memories stay with one and I would hate to think that in the current climate where people are seriously financially challenged, this could in any way be interpreted as an issue on which the State might interfere when families may be going through difficult financial situations.
I would certainly be concerned if this could in any way be interpreted as an area in respect of which the State could interfere in circumstances where families might be experiencing financial difficulties. This is, therefore, a matter which could be teased out further.
There is a second and more general aspect relating to this issue. I refer to the provision of social services and to specific individuals who might be wedded to particular ideologies which might not be pro-family in nature. I could recount one or two instances where matters of this nature would have emerged as reasons specific actions followed certain interventions. I am concerned about this issue in general. What precautions will be put in place in respect of the type of eventuality to which I refer? Many people have spoken about the primacy of the family, about the right of a child to have both a father and a mother and about trying to keep that unit together in so far as is possible. I accept that in exceptional circumstances, and where all else fails, the best interests of the child must absolutely come into play. Nobody wants obstacles to be introduced which will prevent intervention in such circumstances. As a previous speaker indicated, however, we do not want to see busybodies becoming involved and making interventions which no reasonable person would make.
There is a particularly fine balance to be struck in respect of this matter. I have not been completely persuaded by Senator Mullen. Perhaps he might seek to provide such persuasion when he makes his next contribution. I am concerned, however, that, in the context of the wording, the threshold may have been dropped just a little.
While I do not agree with the amendment, I welcome the fact that we are engaging in such a good debate. Senator van Turnhout and I are members of the Joint Committee on Health and Children and I can inform Senator Walsh that the Minister keeps the committee up to date on her work on a regular basis. I have no doubt that when the referendum has been passed, the Minister will do whatever is necessary in the context of the provision of resources. There have been two positive developments in this area in recent times, namely, the appearance of the general scheme of the Children First Bill and the establishment of the child and family support agency, which will be fully operational in the new year. I know that the Minister will go into greater detail on this matter but it must be noted that after the referendum is passed, there will still be a great deal more work to be done. However, I have no doubt that the Minister is committed to doing that work and I have full faith in her.
I thank Senators for their contributions on the amendment. I am happy to give as much information as possible on this matter. I hope this information will be of assistance in the context of people understanding the approach we have taken to this article.
My first point relates to children being taken into care. It is important to lay down a marker to the effect that the State is not rushing into taking children into care. There was a 3% increase in the number of children coming into care last year but this was in line with the increase in the population. By international standards, Ireland is quite low on the league table in the context of the number of children coming into care. People are not rushing to put children into care. It is something that happens late and in circumstances where families have not been able to look after their children where there are questions of abuse, neglect, incapacity to cope, etc. I intend to comment in detail on the criteria currently used in respect of this matter. I am sure the lawyers present will agree that there is no evidence of the Supreme Court micromanaging parental duties or rights. We do not have such a tradition in this country, in fact the position here is quite the opposite. That is an important point to make in order to provide something of a backdrop to this debate.
Senator Walsh referred to the wording put forward by the Joint Committee on the Constitutional Amendment on Children, which was to the effect that "Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means ...". I examined that wording very carefully in order to establish how we might deal with the formulation. Some might argue, as did Senator Walsh, that the threshold in this regard is too low, while others might say that the threshold is correct and that it reflects the point at which we should intervene. I have chosen to take some of the best parts of the wording brought forward by the joint committee and, like the latter, I have chosen to leave Article 41 in place.
In the interests of providing a background to the discussion on this matter, I wish to make a number of points regarding our existing constitutional and statutory framework. That framework provides that the State may intervene in cases where children are not receiving adequate care and protection. Some people are approaching this debate on the basis that we do not already have legislation in place which deals very clearly with many of these issues. As Senator Bacik indicated, that legislation is being applied in the courts on a daily basis. For example, section 3 of the Child Care Act clearly delineates how the State may intervene. It also sets out the circumstances in which such interventions can take place and establishes that the welfare of the child is the paramount consideration. This is, however, qualified by the requirement to have regard to the rights and duties of parents, recognising that it is generally in the best interests of a child to be brought up in its own family. That is the starting position.
The amendment, in its totality and in the context of the other provisions in the Constitution, makes clear that there is a range of rights to be considered in these cases. No one set of rights trumps all others. At the core of our discussion is the question relating to what are the balances involved.
I reiterate that there will be no change to Article 41. The presumption will continue to be that the best interests of the child are best met within his or her family. That is an important point. The rights of the child are expressly recognised in the proposed new Article 42A. The constitutional recognition of the principle of best interests, contained in the proposed new Article 42A.1, will operate as a sort of counterbalance against other constitutional rights. We are not concerned here with a strict hierarchy of rights; we are, rather, concerned with the ability to balance those rights. When one thinks about it, that is precisely what one would want to see happen in the courts when key decisions relating to children's futures are being made. Such decisions relate to matters including where a child will live in the future and they also encompass issues such as parenting, adoption and access. These are absolutely key decisions, regardless of whether the child is five, ten or 15 years of age.
The provision relating to best interests is mandatory because the word "shall" is used. The provision sets out that the Oireachtas shall legislate to provide for the best interests of the child being of paramount consideration in determining certain proceedings. The courts will, when applying this principle, have regard to the constitutional framework and all of the rights contained therein, including those of the family. We are referring here, therefore, to the constitutional rights of parents. The overall impact will be to ensure that in the future the best interests of the child must be considered, having regard - but not being subject - to the constitutional rights of parents. This is a very careful counterbalance. I reiterate that the basis of the policy intent in framing this article was to ensure there will be a more child-centred approach to decision-making in these areas.
I am sure Senator Mullen will probably have comment to offer in this regard but I thought Archbishop Martin put it very well when he stated-----
-----that it was long past time we highlighted the rights of children . He also referred to the type of balancing we are seeking to bring about.
Senator Mullen referred to physical and moral considerations. As Senators are aware, the term "physical and moral reasons" is contained in the existing version of the Constitution. If we included reference to physical and moral considerations in the wording to be put to the people in the referendum, I am of the view that the ordinary - as opposed to the constitutional - meaning of that would be quite difficult to explain. What we have done is recast the article to reflect concerns which are more relevant and which really capture contemporary thinking with regard to children.
The aim is to highlight the impact on the child. The focus is not on the failure of the parents but rather the impact of that failure on the child. The joint committee report did not include the phrase, "physical and moral" either but I have included a section that looks at the impact on the child. This is very appropriate.
Under Article 42.5 the court is not only obliged to satisfy itself of the existence of parental failure but must attribute it to either a physical or moral failure. It could be that due to a physical disability the parent did not have the capacity to care for his or her child, whereas a parental failure that could not be attributed to a physical failing was a moral reason. I remember someone saying to me that in the court decisions where physical or moral failure was used, the headings of physical or moral were used to encompass many aspects. The proposed formulation is a more straightforward one which can take account of physical failure. It is a question of what is meant by "moral" in the contemporary context. This could have given rise to much debate that is not relevant to the key points.
I emphasise the key intent in order that people will understand the change. The key intent of the policy is to move to a more child-centred focus within the constitutional provision relating to State intervention in the place of parents. This demands a change in the orientation of the provision around the needs of the child and in that context the impact of the behaviour, whether blameworthy or not, on the child. Particular care is taken to retain the threshold for intervention. In that respect, "prejudicially affected" is seen to be very much in line with the provisions of the Child Care Act 1991. The focus of the policy rationale is to encourage judicial decision-making in which the focus for the judge is on the effect of the behaviour on the child rather than the culpability of the parents. I am satisfied that the focus on the nature of the impact of the failure is an important alternative qualifying aspect of the provision. An important point is that it is further qualified by "in exceptional cases" and "proportionate". One must consider the combination of words. For example, the words, "prejudicially affected" cannot be taken alone. Any court or judge will look at "proportionate" and "in exceptional" and "prejudicially affected". It is important, in my view, to look at the whole range of wording in that provision. It is not simply a question of removing one wording. The proposed wording carries forward the recognition of the constitutional status of the family while taking a child-centred approach. There will be a series of criteria. The failure of parental duty towards the child must exist, regardless of marital status. Any failure must involve the likelihood of harm or risk to the child's safety or welfare. I emphasise the word, "likelihood" and it is to such extent that the safety or welfare of the child is likely to be prejudicially affected. I refer to the term, "proportionate" which means that the actions of the State must be in balance with the harm or risk to the child that needs to be addressed. The actions which the State can take must be set out in law and there must always be due regard to the natural and imprescriptible rights of the child. These are a series of applications that will have to be taken into account and no one is taken on its own. This will be the case in the courts.
I will expand on this point in the interests of clarifying the policy. Under the proposed Article, as drafted, the State may only intervene in exceptional cases. This makes clear that the bar for intervention is high and that the State cannot intervene where the concern for the child's safety or welfare is not a significant one. In that regard, the inclusion of the word "likely" clearly indicates a well assessed and evidenced approach is needed to underpin action of the kind comprehended in the section. To further qualify this provision, inserting "and significantly" would lead to uncertainty in terms of its interaction with "in exceptional cases" and the relative nature of the term to be inserted.
In considering the proposal I have to bear in mind the core objective of protecting children and to ask myself if the addition of the words "and significantly" to the existing requirements for action under the provision, would best serve the attainment of that objective. The question I have to ask when I examine the Senator's amendment is whether it adds to that objective of protecting children.
I refer to the detailed process relating to the application for and the making of care orders for children, which I will summarise briefly for the information of the House. I reiterate that there is no rush to take a child into care; it is a last resort. It arises where social workers and others, including gardaí, doctors and teachers, are sufficiently concerned regarding a child's welfare and safety, and where efforts made by the HSE to support the parents - in the future this will be the role of the new child and family support agency, as mentioned by Senator Henry - in providing a safe environment for the child have been unsuccessful. That is the point at which an application can be made to the courts for a care order.
I reiterate the point that last year, 1,500 children who had been sexually and physically abused were brought into care. That is a significant number of children and those are the statistics from 2011. In such cases, the HSE, through the delegated authority of the social worker, must give evidence of the neglect or abuse that has been observed, the efforts made to support the parents and the risk that the situation will continue unless there is intervention by way of a court decision. I really wish that we could hear more in public about some of the family law cases because people forget that this legislation is in place and that these cases are being heard every day in our courts. The judge makes a determination based on the evidence presented. There were some questions yesterday as to how it can be assured that the views of the child can be represented and the guardian ad litemsystem is one way. Senator Norris has a particular interest in this matter. However, that system needs a more national approach and I will be working on that. It has been too ad hoc and it needs a further development. Legislation will be required.
For the information of the House, in 2010, 55% of children in care were subject to an emergency care order, an interim care order or a care order, and the remaining 45% were in care under a voluntary agreement. There are quite a number of families who voluntarily request support from the State and who are unable to continue to care for their children. It is very difficult for people to understand this. Senator Mullen made the point that the lens through which we discuss this provision is the lens through which we view the disadvantaged or vulnerable children and we have to remind ourselves that there have been dramatic changes in Irish childhoods and that the vast majority of Irish children have good childhoods. Our attitudes to physical punishment and to parenting have changed. I refer to the great care and love given by the vast majority of parents to their children. It is easy to forget this fact when discussing the more vulnerable group of children. The Senator is right to remind us of it.
The proposed amendment, as drafted, is measured and effective in the protection of children. I do not intend to accept Senator Mullen's amendment and I hope he understands the reasons I will not accept it.
I have tried to clarify the reasons the Government did not retain the wording proposed by the committee but instead sought to develop a formulation that would reflect the types of balance to which I referred. There is a balance there in the imperative to protect children's rights while recognising that children are brought into the care system only in exceptional circumstances. Of the 1.2 million children in the State, 6,000 are currently in care, with 2,000 of those being in the system for more than five years. In other words, taking children into State care is an exceptional course of action and the State's actions in this regard must always be proportionate.
The need to improve child protection services, as raised by Senator Averil Power, is a matter for debate in its own right. I accept there is a great deal of work to do in this regard, whether in legislative terms or in terms of the quality and consistency of services we would like to see, and it will not be done overnight. It is important to note that when children are taken into care in this country, they are brought into a family care setting. It is not really a question of whether one can trust the State. In fact, 92% of children who are taken into care are entrusted to foster families. I accept, nonetheless, that there is an ongoing standards issue in regard to foster care which must be addressed.
I hope I have given Members a clear view on how we arrived at the proposed wording and the balances we have sought to include. As I said, our focus moved more towards the impact on the child as opposed to the failure of the parent. In that context, the phrase "prejudicially affected" must be seen in the context of the clear statement in the proposed article that any action by the State will be "proportionate" and apply only in "exceptional" circumstances. I assure Members that there is no evidence in recent times of the State seeking to micro-manage families.
I thank the Minister for her comprehensive response and my colleagues for the points they raised. I am very grateful for the tone of the debate. With all that has happened in terms of the failure to protect children in our society - failures by the State, by religious institutions and within families - the topic can sometimes have a very toxic feel. That is a sad reality in our national life. The danger is that this can have a chilling effect, when what is needed is for us to interrogate what is proposed, having regard to the best interests of everybody in our society.
Everybody understands that we are all in the same boat in terms of ensuring the State is in a position to intervene when it is appropriate to do so. As the Minister rightly observes, while the State is the agent of intervention, that intervention takes place at many levels. Senator Ivana Bacik also spoke about this, and it tallies with my own experience during a period working in the family law courts where I saw the panoply of responses and engagements. There is sensitivity in any debate on these issues as to what is the appropriate approach to take and the correct language to use. One certainly does not want to give the impression of being in any way blasé about any situation in which a child's welfare might be affected. That said, we are all human beings. Good people sometimes fail and they sometimes do so in a way that should not attract the intervention of the State.
Like Senator Jillian van Turnhout, I am a great fan of that extremely important word, "proportionality". The inclusion of the reference to "proportionate means" indicates to me that even if it were the case that the State could intervene on the slightest pretext, it would then be circumscribed in terms of what it could actually do. That is very positive. However, we are talking here about two stages of intervention. Test one relates to when the State may intervene, while test two is concerned with how it may intervene. The latter is governed by the word "proportionate", but there is a separate and prior question related to the "when" - that is, the circumstances in which the State may intervene.
On the subject of proportionality, I understand that one of the formulations that was considered was a reference to the State "supplementing" the place of the parent. This, again, was an attempt to address those scenarios, as referred to by Senator Bacik and others, in which a full care order is not appropriate but there is a need for agents of the State to approach families in particular situations and offer assistance and support in various ways which we would all find desirable. I agree with Senator van Turnhout, as I have understood her, that the requirement for a State intervention that falls short of a full care order - an interim or intermediate level of intervention - is encompassed within the notion of proportionality.
The nub of the issue is the meaning of the word "prejudicial" and I remain of the view that there is a certain vagueness in the provision in this regard. The Minister rightly argued that the phrase "for physical and moral reasons" does not really resonate, as there is a difficulty in distinguishing between its constitutional and ordinary meaning. It is something of a head-scratcher and raises the question of whether there are other types of reason - perhaps accidental reasons - which are thereby excluded. I agree with the Minister that a recasting of the wording with a view to focusing on the impact on the child is the sensible approach to take.
The same test applies, however - I am attempting here to address the question raised by Senators David Cullinane, Averil Power and Jim Walsh - in the context of the notion of "prejudicial" effect. If one were to ask ordinary people in the street - although I have some legal background, I number myself among this group - what they understand by somebody's welfare being "prejudicially affected", many of them would be scratching their heads. Does the Minister understand the phrase "prejudicially affected" to mean negatively affected, or is it more or less than that? This is the crux of the matter. In response to Senator Cullinane's point about the effect of including the word "significantly" here, I can only say that there can never be certainty in terms of how words are interpreted. The courts will always have to interpret what is in front of them and apply the test of the reasonable person. My view in this instance is that the reasonable person would have a much clearer idea of what is meant by a person's welfare being "significantly affected" as opposed to "prejudicially affected". "Significantly" is a word that recommends itself to ordinary human understanding of situations in a way that "prejudicially" does not. I return now to the question I raised in my first intervention. Should the State be in a position to intervene in situations in which a parental failure is not likely to affect a child's welfare significantly? I expect that the ordinary person's answer to that question would be "No" - that if the effect is not significant then the State should not have a role, proportionate or otherwise. However, it is with greatly mixed views that I am thinking about these issues.
Colleagues will be aware of a recent advertisement relating to alcohol abuse. I am always beating the drum regarding the need to change our thinking completely on the issue of the abuse of alcohol and the impact it is having on families, on children's futures, on the health care budget and so on. All types of issue are tied up, fite fuaite, with the problem of alcohol abuse in our society. The advertisement to which I referred asks parents to consider the question "Is your drinking affecting their thinking?". In other words, it invites parents to reflect on the example they are giving. The misuse of alcohol is an issue that encompasses a huge number of parents in this country. It is fair to say that the safety and welfare of children, both present and future, is affected on an ongoing basis by attitudes to over-consumption of alcohol and the association of alcohol with significant events such as First Holy Communions.
There are all types of ways in which people who would describe themselves as good parents, and who would be considered as such by others, are nonetheless failing in their duty towards their children. The question I ask - I am not sure I know the answer - is whether this type of behaviour on the part of parents is something we would intend to be encompassed within the constitutional provision.
In this area, should we regard the State as considering itself to be constitutionally empowered or even mandated to "supply the place of the parents" to some proportionate extent? On balance, my answer is "No". While I am in favour of providing all sorts of education programmes and believe there is a significant need for civil society to engage in this area, I am not sure it is the State's role to see itself as interventionist in this constitutional manner when cases of this nature arise. It is the job of Members to think about these issues and the future application of these constitutional provisions.
Senator Power and others correctly noted the hard work that has been done, as is undoubtedly the case. All of us have kept an eye on this matter and responded at different stages. We have reached what may be described as the penultimate phase of the vetting of this constitutional proposal, the ultimate phase being that given by the people on referendum day. It is in that context that we must do our duty and re-examine the proposal.
Having regard to the fact that good parents sometimes fail in the way I described, many people would consider that failure which falls short of being significant should not be the basis for a constitutional empowerment of the State or its agents to intervene in any way. I will reduce the concerns I am expressing to a core question. What does the word "prejudicial" mean in this context? Does the notion that the safety and welfare of the child would be likely to be prejudicially affected have the effect of raising, lowering or maintaining the threshold that applies in the existing constitutional position?
It is always difficult when one tries to reduce debates to core questions. While I am grateful, as I stated, for the Minister's comprehensive answer, it would be helpful to hear a little more on what she considers to be the meaning of the word "prejudicial" and what will be its effect. We are all ad idem on the desirability of levelling the scope of the State to intervene as between marital families and children in other circumstances. The question that arises, however, is what is the threshold at which the State may intervene. The nub of the issue - the key to the riddle, as it were - is identifying what the phrase "prejudicially affected" means? Does it have the same meaning as the phrase "negatively affected" or does it have a greater or lesser meaning than that? Does the Minister believe that in introducing this phrase she is raising or lowering the threshold, in other words, making it more or less difficult for the State to intervene, or is she leaving the position pretty much as it is, as compared with the existing constitutional wording?
I am grateful to have an opportunity to contribute in this debate and strongly regret that I was not in a position to speak on Second Stage. With no disrespect to the House, the reason was that I had been invited to make a contribution to the annual conference of the International Bar Association. I considered it useful for practitioners of law to hear from someone who, even in a minor way, plays a role in the development of legislation, as Senators are doing today. As the Minister will know from her time in the House when she was leader of the Opposition for a time, the Seanad plays a useful role in the legislative process.
I am profoundly grateful, both as a Member of the Oireachtas and a citizen, that this Minister is in charge of the referendum. She gave a very good demonstration of precisely why she is the right person for this role in the answer she provided and to which I was privileged to listen. It was detailed, clear and coherent and was given without reference to notes. She is clearly in charge of her brief, knows what she is talking about and deals in a courteous and civilised way with what might very well have been a contentious matter in the past. I also pay tribute to Archbishop Diarmuid Martin. It was extremely helpful of him to speak in a manner that suggested that in his view and from the point of view of the Roman Catholic Church, there is nothing dangerous in the proposal. He does not appear to have any difficulty in giving the proposal his general support. In the past, this section and the type of amendments we are discussing could have been explosive.
It reads as follows: "In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents" This provision would have been intolerable in the past. Even during my time in this House, the Stay Safe programme was attacked on the basis that even protecting children against sexual abuse within the home amounted to an interference in the family. This provision is terribly important because there is a major gap in this area. The important aspect of the provision is the phrase "the best interests of the child shall be the paramount consideration". The welfare of the child must be paramount. While a family is wonderful when it is good, there are cases where children are defenceless against a dysfunctional family.
I was pleased to note the Minister's reference to the position as regards the guardian ad litem system given the role the House has played in this matter. I expected the system would have some role to play. In a shocking case in England, a young girl who was returned by a local authority to her family where she was being abused ended up meeting her death. There is, therefore, a role for the State. It is vital in these circumstances that whatever provision is made by the State is adequate and significantly better than the circumstances from which the child is removed.
This section grants the State the power to intervene. It is most regrettable, as we have learned, that institutions of the State have been defective historically and this has had serious consequences for children in their care. I hope and believe we have learned from that. The guardian ad litem system must be financed because it has not been properly funded. This is a terribly difficult period in which to seek additional finance for anything, even children who are often the most vulnerable in society. I add this important proviso.
We would all have a better understanding of the position, precisely as the Minister says, if a mechanism were in place whereby we would come to understand the types of cases that are explored or types of judgments made in the family court. Cases in the family court which involve children are heard in camera. I am not sure how to resolve this issue but it would be a good public service if we had access to this type of information because it would inform our discussion of this delicate matter.
I listened with great interest and respect to Senator Mullen. That Senator Mullen, who is probably closer to these matters than I am, referred to the role of alcohol in families, an issue with which I am familiar having spoken about it in the past, shows what a complicated society we live in. Alcohol can be a threat to children. The Senator stated that alcohol is associated in a significant way with First Holy Communion. It is a paradox that a spiritual event and religious ritual that should be a celebration has become corrupted to a certain extent and I am glad the church is addressing the issue.
The Minister is much more capable than I am of answering the question posed by Senator Mullen on the use of the word "prejudicially" as opposed to "significantly". The reason I am satisfied with the current wording is that it is surely a matter of significance if the safety or welfare of a child is prejudicially affected. It may not be necessary to include the word "significantly" because if the safety and welfare of a child are prejudicially affected, what could have greater significance? I am not persuaded that the inclusion of the word "significantly" is necessary. The current wording works because the word is included by implication.
I agree with the point the Minister made about the voice of the child, which is a significant issue. I welcome the insertion of the new provision that the views of the child will not only be ascertained during judicial proceedings but will be given due weight. Often the courts listen to what children have to say but there is little evidence their views are considered or given any real weight. In one of the leading cases on child abduction, the D and D case, Mr. Justice John MacMenamin stated once the child has been given the opportunity to be heard, then the court?s obligation is satisfied. Accordingly, it is significant the words ?due weight? have been inserted.
The Minister stressed the need and importance of listening to children. She also referred to the guardian ad litem process and it is important proper national procedures are put in place in this regard. In addition, proper national guidelines must be in place to ensure children are listened to. Standardised assessments have been recommended for ascertaining the weight given in individual circumstances. Is that a decision for a judge who is not a child psychologist? Will there be standardised methods to give guidance to the judge and other parties involved in a case? It is important to have education programmes for the Judiciary and lawyers regarding these issues.
It is also important to ensure when a court decides not to go with the wishes of the child ? it could be in a divorce case in which the child has been coached by a parent ? that the judge gives his or her reasons. It is essential to the success of the referendum to ensure we have effective procedures not just in law but in the courtroom to ensure children are listened to.
I do not have the legal background of some of my esteemed colleagues but I raised the issue yesterday of children in direct provision. The section asks whether the parents have failed in their duty towards children. There are quite a number of children in direct provision who do not have their parents with them and are left to their own means within the system. Will the Minister clarify where they would stand? For example, can the State step in and take guardianship of a child in such a position if it feels there is a danger to his or her welfare, be that from sexual predators, social issues, etc?
I welcome the Minister stating yesterday that she felt the Irish Refugee Council report on direct provision needed to be acted upon. Prejudicially, people would argue that because of the situation of the State, they are in a prejudiced situation and it might have a different legal meaning. It would be an opportune time for the Minister to clarify the position of children in direct provision. The Irish Refugee Council is seeking legal advice around the whole referendum. It is important we get as much support as possible from all groups.
The Minister has reasonably reassured some of my concerns. I was laying more emphasis on exceptional cases, however, as some sort of qualification in the failing in duties. I noted the debate concentrated considerably on the word ?proportionate?. As I read it, proportionate means as provided by law. Does that not qualify it?
It is because part of the reason the Minister gave was that all the words have to be taken in context. The word ?proportionate? was one the Judiciary would be taking into account when evaluating parents failing in their duties.
My second question has to do with the word ?duties?. The Minister?s predecessor, Barry Andrews, had done much preparatory work on the wording of the referendum. He used the word ?responsibility? as distinct from ?duty?.
It has all to do with the phrase ?failing their duty towards their children? to such an extent that the safety and the welfare of the child is likely to be prejudicially affected. It has all to do with that particular phrase that we are debating.
I do not see any significant difference between duty and responsibility. What was the reason for changing it?
Much of this goes to the heart of the welfare of children. In a paper I prepared recently, I pointed to research which showed children in a married family fare better in a whole range of areas than children in other different family units. Senator Norris reminded me the greatest risk for a child is where his or her mother cohabits with an non-biological father. Statistics from research in Britain shows children in such a unit are 33 times more likely to be abused and 73 times more likely to suffer fatal abuse. If we are really committed to children, we need to underpin the married family unit between a man and a woman as fundamental to the welfare of the children. This debate has focused on that considerably.
Senator Mullen in his response to the Minister on the net point referred to his view that "prejudicially affected" is not enough without the inclusion of the words ?and significantly?.
The important response to that is that the provision must be interpreted holistically, that "prejudicially affected" must be read in the context of the entire sentence, "where the parents ... fail in their duty ... to such extent that", in other words, that "prejudicially affected" refers to the extent to which "the safety or welfare of any of their children is likely to be prejudicially affected".
I was struck by Senator Norris's comment that "safety" is a critical word too, that the safety of a child is prejudicially affected. Prejudicial affect, to answer Senator Mullen's point, has a clear legal and ordinary meaning of harmful. If the safety or welfare of a child is likely to be harmfully affected or harmed and the parents have failed in their duty to that extent, only then, in exceptional cases, shall the State intervene by proportionate means.
The phrase "as provided by law" simply sets out how one would provide for the proportionate means. It does not qualify it.
I would say also that the term "duty" is a recognised phrase in the Constitution, for example, parental duty in the education Article, Article 42. "Duty" is a clear word to be used. I do not see the need to include "significantly" in order to achieve the effect we all wish to achieve.
I agree with Senator Mullen that it has been a constructive, thoughtful and reflective debate. I would say also that "prejudicially affected" also answers the particular concern Senator Mullen has that the State shall only intervene by proportionate means, and that fulfils the place he seeks to fill through the use of the word "significantly", which, with respect, is too blunt or too crude. The current more elegant wording fulfils the desired effect. If one looks at the proportionate means the State has available to it, it is not only the care orders and the Child Care Act, but the other provisions such as the supervision order in section 19 whereby a family is supported with regular visits and supports from the social services. It does not always mean the extreme of the final care order, as Senator Mullen acknowledged.
The insertion of "and significantly" is unnecessary. In fact, it may prejudicially affect the balance that is sought to be achieved in this provision. What we have here is a clear outline of the test which should be applied in cases where the safety or welfare of a child is at issue.
I will address myself specifically to the amendment.
The word "prejudicially" has a clear meaning, not only in constitutional law but in other branches of law. For example, the question, "Are my rights as a minority shareholder prejudiced by the actions of a company?", effectively means, "Are my interests harmed in any way by the actions?" By adding the words "and significantly" we would be raising the bar. I am not in favour of raising the bar. I think the word "prejudicially" is clear. I understand from where Senator Mullen is coming but "proportionate" is the key word in this section. It limits the powers of the State in taking specific action. In terms of the amendment, it is clear. "Prejudicially" is a clear legal word. Adding "significantly" would, first, cause legal confusion because "significantly" is not as legally understood as "prejudicially", and second, raise the bar, of which I would not be in favour.
I thank the Senators for their contributions.
I have stated that the policy intent is not to change the threshold but to create a focus on the child. It must be clear as well, of course, that the framework of the Constitution must be further defined by law, and it is.
I want to comment on this notion of intervention by the State as being something that, if one likes, happens in a way where the State jumps into action at a specific point. That is not the way to characterise this. It is much better to think of it as a continuum of risk for children whose welfare is being prejudicially affected, that is, being impaired or harmed in a detrimental or injurious way. The State, in intervening, has a range of options at the end of which is a court ordered care arrangement. The constitutional amendment allows that sort of breadth and flexibility which is required in these cases. Of course, we are absolutely assuming that it be proportionate and "to supply the place of the parents". It is absolutely clear from the phrase, as has been stated by quite a number of Senators, that the word "proportionate" allows the supervision order and the support to families proportionately as a first step. That kind of characterisation of the State suddenly moving in happens neither from a practice point of view nor legally. As I stated repeatedly, and on which case law including the major cases in this area would support me, the State does not want to micro-manage the kind of scenarios of which Senator Mullen spoke in relation to alcohol. With alcohol, the first intervention will always be about support around addiction. On the continuum of risk in relation to it which everybody would accept exists, where the safety and welfare of the child, because of alcohol, is impaired to the degree, the court would define in exceptional cases proportionate response bearing in mind that there are already the provisions in the Constitution that support the family. It is in all of those contexts that any intervention must be seen. Where the safety and welfare of the child is prejudicially affected, one is talking about proportionate response and one is talking about in exceptional cases.
I remind Senators about the kind of definitions already in law for interventions under the Child Care Act. We are talking about constitutional change. When one looks at the kind of law that has flowed from our thinking on children, on examination of the Child Care Act, in the case of a care order which is the more extreme example, one is talking about where, on the application of a health board with respect to a child who resides or is found in its area, the court is satisfied of the following: the child has been or is being assaulted, ill-treated, neglected or sexually abused; the child's health, development or welfare has been or is being avoidably impaired or neglected; or the child's health, development or welfare is likely to be avoidably impaired or neglected. These are the stringent requirements on which the court, under the care Acts, must find and it is relevant to look at those in responding to the debate.
It is implicit in this constitutional amendment - I want to make it absolutely clear - that the State will be far short of a care order in many situations. As I have stated, one third of the cases coming to the attention of the State are where parents voluntarily request support, and there is this continuum. The constitutional amendment reflects that continuum and that must be borne in mind.
Early intervention and the early opportunity to support parents must also be contemplated because all the evidence is that early intervention is crucial to effective outcomes. Those are the kinds of balances we are trying to capture. I have outlined how the constitutional amendment has been constructed to provide that careful balance with respect to the rights of the child and families contained within the Constitution, and those rights are respected.
As every Senator appreciates, the phraseology that we are using in this Article has been carefully considered. We have looked at and had to go through many alternative formulations. This is our very best thinking on how to capture the kind of essential balances of which we all have spoken today.
Crucial to the final formulation - I do not want to repeat myself but I must make the point - was the retention of the words "in exceptional cases". That was not in the committee's formulation. I felt it was important to bring it in and then to combine it with looking at the impact on the child and the proportionate response. The three together achieve the kind of balance that most reasonable people would believe is necessary to protect children.
I do not believe that the addition of a limiting criteria is required. In acknowledging that such cases are exceptions it is clear that these are cases where extremes of behaviour or failure have been reached.
I am concerned that the addition of another term would potentially be overly restrictive and not to the benefit of children which is our prime aim. I question whether the wording Senator Mullen proposes adds to the protection of children. I would answer "No". We have the kinds of balances that are necessary. I would be concerned about including it at this point. It could be overly restrictive and not to the benefit of children.
I also think it has potential for creating conflict with the thresholds I have outlined in the Child Care Act 1991, thereby casting doubt on that well established Act. I have elaborated in some detail the clear safeguards that are in place. I am satisfied that the balance should not be disturbed and, for this reason, I am not prepared to accept the amendment.
The Minister for Justice and Equality is studying the report on direct provision. Clearly these provisions apply to all children and will have to be examined down the line. He has expressed concern about some of the issues raised in the report and wants in particular to investigate the welfare of children in these circumstances. However, he believes that safeguards have been put in place notwithstanding what has emerged in the report. We have changed the way in which we deal with unaccompanied minors. They should not, for example, be subjected to direct provision. Unaccompanied minors should be cared for by foster families. I will follow up on the report and will liaise with the Minister for Justice and Equality on it.
Senator Power referred to the views and voice of the child and asked how this might be implemented. Yesterday Senator Healy Eames asked about judicial training in this regard. It is correct that due weight should be given to children's opinions in addition to hearing their views. However, while the views of the child will be considered by the courts, they are not determinative because the courts will be obliged to take account of the child's best interests as the paramount consideration. We will have to do more work on this area if the referendum is passed. Practices in this area are developing internationally and I have had interesting conversations about how the courts are organised. The lawyers in the Chamber will be more familiar than me with the questions of how friendly the courts are to children and how easy it is for judges to hear the views of children given the physical set-up of some of the courts. The courts will have to take appropriate measures to ensure this provision is effectively and fairly implemented. We will probably need to develop family courts if we want to ensure cases are heard in an atmosphere that is less adversarial. It is not necessarily to the benefit of children that so many cases are discussed in the current context and the Minister, Deputy Shatter, has indicated his intention to move to a system of family courts.
Constitutional change is just one aspect of change for children. We also have to consider the legislation that would arise from this referendum and the changes needed to the wider judicial system to make it a more child friendly and less adversarial place.
I do not intend to make an extended response. The Minister's response is very helpful and I note the comments of Senators Bacik and Hayden in particular as we attempt to put meat on the concept of prejudicially affecting the welfare and safety of children. This debate will be useful to people as they consider these delicate balances. We are speaking about impairing or harming children in a detrimental or injurious way. This is the likely outcome that triggers the State's intervention.
I continue to believe that the word "significantly" would help in introducing clarity on the appropriate level for intervention. The Minister is right to ask whether this would enhance the protection of children. It should be noted that getting the balance right in such a way that the agents of the State do not feel empowered to intervene in inappropriate ways would help to protect children. The presumption would be that a child should be reared by his or her parents but in certain cases the mechanisms of care have to kick in. The word "significantly" addresses any possible fears that there may be, whether well founded or groundless, that vexatious or ill-judged interventions could take place on the part of the State. While I do not want to do anything that would interfere with current legislation we have to think about all possible scenarios. It is a tight call and I take on board everything that has been said about the impact of the word "proportionate". People might be concerned if the State was to supply the role of parent even in circumstances where a child is likely to be slightly impaired or harmed. If a parent fails to pick up his or her own child from school on couple of occasions -----
We are trying to put real life scenarios into play and ask how it would meet the test. These are the scenarios people will consider. At what stage is the State entitled to intervene in people's lives when they fall down? The best answer that the Minister has given is that while it may be the case that the State can intervene even in the event of slight failures, its response must meet the test of proportionality. I would not laugh at introducing real-life scenarios because this is what people think. Their fears can be reasonable or unreasonable but we should always try to address them. People know about situations where the agents of the State have intervened inappropriately. The ordinary parents to whom I have spoken sometimes regard themselves as failing, even though they are good people who are doing very well. I thank the Minister and my colleagues for their thoughtful contributions.
Tairgim leasú a 3:
I move amendment No. 3:
I gCuid 1, leathanach 7, líne 16, ?Déanfar? a scriosadh agus ?Go sonrach, déanfar? a chur ina ionad,
I gCuid 2, leathanach 9, líne 15, ?Provision? a scriosadh agus ?In particular, provision? a chur ina ionad.
In Part 1, page 6, line 16, to delete ?Déanfar? and substitute ?Go sonrach, déanfar?This is my second and last proposed amendment and it addresses a simpler issue than the previous one. I seek to shore up the intended meaning of the provision on adoption. It is possible to interpret the test outlined in 42A.2.2° as differing in substance from that outlined in Article 42A.2.1°, which provides for the State to supply the place of parents in cases of parental failure. Article 42A.2.1° provides that in exceptional cases the State shall "by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child".
In Part 2, page 8, line 15, to delete ?Provision? and substitute ?In particular, provision?
Those conditions are set out clearly in Article 42A.2.1°. On the other hand, Article 42A.2.2° provides that where parents fail,simpliciter, for a prescribed period, the child shall be placed for adoption without the consent of the parents "where the best interests of the child so require". One reading is possible that sees the best interest test in Article 42A.2.2° as unconnected to or with all that is provided for in the prior Article 42A.2.1° and, therefore, not circumscribed by the requirements of, in exceptional cases, and proportionate means and a designated level of failure. I propose we remedy the situation where there might be a doubt by simply adding "in particular" to the beginning of Article 42A.2.2°, in order to indicate that it is a further specification of the contents of Article 42A.2.1°, which I think is the Minister's intent. This would clarify that the tests and the standards articulated in Article 42A.2.1° also apply to Article 42A.2.2°. I do not think the proposal is controversial. It seeks to address a possible misunderstanding or ambiguity that is not intended. It should be noted that the words "in particular" already introduce the substance of Articles 40.3.2°, 41.2.1° and 45.2. This proposal is a small simple measure that would dispel any doubts about the meaning of the relevant provision.
Article 42A.2.2° provides for making lawful the adoption of any child where the parents have failed for a period, as may be prescribed by law, in their duty towards the child or where the best interests of the child so require. Members will be aware that I have published the outline of the adoption legislation that will accompany the referendum. I did that because people would want to know that if they supported the referendum, what precisely we intend to do. When I came into office I said that I had to develop a policy and the legislation. Obviously adoption is a complex area and any changes have many implications for the current legislation. We have had to address those in the new Bill which I have published.
The reference "where the best interests of the child so require" restates the statutory requirement under the Adoption Act 2010, the difference being that under the proposed new amendment, "best interest" is given a constitutional recognition which will give a greater weight to the principle when counterbalanced against other rights when the court is considering adoption under this provision. The provision should facilitate the enabling of legislation which will allow for the adoption of children in certain well defined circumstances, that is, where there has been a failure by the parents in their duty towards the child in a prescribed period. That is spelt out in the legislation. It will permit adoption without the necessity of proving that the failure by the parents amounts to total abandonment of rights that is likely to last until the child reaches the age of 18 years. We have the situation where many 17 and a half year olds who have been living with foster families are going into court and requesting that adoption certificate because they have been with the family for such a long period but, rightly or wrongly, the Health Service Executive or those working with it did not consider they would be able to rise above the test of abandonment right up to the age of 18 years. It addresses that anomaly and gives children in that position the opportunity to be adopted at an earlier stage. Nevertheless, it is still an onerous process, involving three years in care and 18 months in the care of the family who want to adopt.
If the referendum is passed, a new adoption law will place an onus on the parents who have not had their child in their care for three consecutive years to satisfy the court as to there being a reasonable prospect of them resuming care of their child. It will provide for a shift in focus. One of the reasons is the failure of the parents to focus on the impact on the child and his or her best interests. I emphasise the constitutional rights of the parents have to be respected. Where parents say to the social workers, their child and the foster family that they want involvement, everything will be done to facilitate that involvement. Effectively, there has been a failure where parents are not involved, are not helping the child and where there is almost no contact.
I am not absolutely clear on what Senator Mullen hopes to achieve by adding the words "in particular". It does not add anything to the overall meaning and legal effect of the provision. There is a possibility that the Senator is linking Article 42A.2.2° with the preceding Article 42A.2.1° in a way that is not intended which concerns child protection and State intervention. The effect of accepting the amendment would be to create an impression that adoption is the natural next step to a child being taken into care, which is not correct and does not reflect well-established public policy in this area. Many children come into care for short periods and return home. There is a variety of ways in which children and families use the care system. For those reasons it would not be helpful to accept the amendment. However, the Senator makes the point that Article 42A.2.1° and Article 42A.2.2° are linked and that is the reason they are in the same section. Failure is a requirement in the case of adoption of children by foster parents or others where parents have not consented. That is the reason the two elements are contained within the one sub-article. It is not the policy intention where a child is in long-term care that adoption should automatically follow. There will be many situations where a child will remain in long-term foster care because although in contact with the family, the family is unable to care for the child. As Senator Power said, the views of the child may be given due weight, an older child may not want to be adopted. A court will not pursue an adoption if a child says he or she does not want to be adopted or it is not in the best interests of the child to be adopted. Adoption will continue to be an alternative, in particular circumstances, after an assessment has been made, after the case has gone to the adoption authority and after the case has gone to the High Court. It is still an onerous process. I have published all the processes that take place for adoptions and which will take place for those children whom we hope will be available for adoption, given the new provisions. An authorisation from the High Court is required before the adoption authority can made an order in such circumstances. That requirement arises from the provisions of Article 41 on the family and the requirement to recognise the rights and duties of parents.
Senator Walsh raised the issue of duty. The word "duty" was in the previous Article 42.5 and has been used consistently and in the other Article in regard to education.
The requirement to balance the rights of the family with the rights of the child, which under the proposed amendment will be given express recognition, is also reflected in the draft general scheme of the adoption Bill. As I have said, the criteria set out include that the child has been in care for three years and there is no reasonable prospect of the parents resuming care of their child. The test provided not only requires failure but also that the failure is effectively an abandonment of the parental rights established in Article 41. The test goes beyond the one established in Article 42A.2.
I want to be crystal clear about adoption. Fostering is not a permanent arrangement, though sometimes a child may require foster care for many years or until he or she becomes an adult. Increasingly, we are seeing children continuing in foster care beyond 18 years by being in after-care and staying with their foster families. Long-term and permanent fostering does not give the same legal security as adoption for either the child or the foster family but it may be appropriate. I do not want for one moment to compare fostering with adoption because both options have their place. There are many families who want to adopt and are interested in intercountry adoption. The provision will now say that there will be children in Ireland who for legal reasons before now were ineligible for adoption and who could now, potentially, be eligible for adoption. It is reasonable to assume that some of the children - and we have over 2,000 children in long-term care over five years - would be eligible for adoption. There would have to be a clear assessment of the child's situation and that of his or her natural parents. Adoption could be appropriate for some of those children depending on the child's relationship. Some children do not have any contact with their natural families. It will depend on the child's relationship with his or her birth parents.
The amendment, and in the proposed legislation that flows thereof, it is not intended to provide that a child who has contact with and a strong beneficial relationship with his or her birth parents and wider family may be adopted unless the child's parents have voluntarily placed him or her for adoption and consented to the adoption order being made. For that reason I ask that members consider linking the formula proposed with adoption as an automatic follow-on from the "supply of the place of the parents" in the context of care and that it is not the policy's intent. It would not be desirable. In truth, I do not believe that was the intent of the Senator's proposed amendment but I am advised that it is one of its potential effects. Therefore, I will not accept his amendment for those reasons.
I thank the Minister for her response. With regard to the previous amendment I said that there was a judgment call to be made. Frankly, the Minister and her advisers are very much mistaken in the answer and response that she has given. There is no sense in which the use of the words "in particular" could create, as she has said, the impression that adoption is being proposed, seen or implied to be the natural extension of taking a child into care. She has already clearly and correctly said, during our discussion of the previous amendment, that the State's duty to "supply the place of the parent" does not involve taking a child into care in lots of different contexts. She clearly stated that taking a child into care is one of a number of possible appropriate responses. For her to make an argument that linking the two sections would somehow impart the idea that adoption is the natural extension of taking a child into care implies that sub-article 2.1° is always about taking children into care. That is simply wrong, illogical and cannot stand as an argument.
She suggested that it is her intention that the provision that shall be made by law for involuntary adoption, such as is made in the proposed legislation accompanying the referendum or such as could be proposed in the future, should take place subject to the tests and the context set out in sub-article 2.1°. The reason she gave is that she numbered it as sub-articles 2.1° and 2.2° or Article 42A.1° and 42A.2° or whatever way we should describe it. That provision could be void due to its vagueness but nobody here has all of the knowledge. Perhaps the Minister or her advisers could give me instances of where sub-articles 2.1° and 2.2° have been interpreted by the courts to specifically subject the second section to the test and provisions of the first. It may prove helpful. Frankly, a constitutional way to do this is to use the words "in particular."
To be clear on what we are talking about, legislation can be made, amended and replaced in the future to allow for adoption of any child, including for involuntary situations. Voluntary placement is talked about in the subsequent part but we are talking about involuntary adoption. Should the latter happen "in exceptional cases"? I think the Minister's answer to that is "Yes". Should it only happen "where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected"? I think her answer to that is "Yes". Should such provision be made by law for the adoption of the child an expression of the State supplying "the place of the parent"? Is that what the State will do? That is not true care.
Is the provision of such adoption legislation one manifestation of how the State shall "supply the place of the parent" in certain defined circumstances? Is such provision in law for adoption in these cases an expression of the State's duty? I think her answer to that is "Yes". Should such provision in law for adoption be required to be a "proportionate means" in any given situation of parental failure? I think her answer to that is "Yes". Should such provision in law for the adoption of children, even involuntarily, in situations where there is parental failure always take place with due regard to the "natural and imprescriptible rights" of the child? I think her answer to my question must also be "Yes".
If the Minister answers all of my questions with a "Yes" - I think that is her intention - then the only logical thing for her to do is to bring subsections 1 and 2 together. If she does not then she will facilitate a possible interpretation by the courts that legislation providing for adoption in involuntary sessions is not necessarily subject to all of the tests and context set out in sub-article 2.1° and that it is a "best interest" question which needs a different test. I think what she intended was-----
Yes. The amendment is designed to link sub-article 2.2° with the test established in sub-article 2.1°. Members cannot understand the purpose of my amendment without clearly examining what sub-article 2.1° states. I cannot put it any other way than that. There is no way under heaven that one could create the impression, by linking these two sub-articles, that the intention is for adoption to somehow be the natural follow-on to taking a child into care. There is no way that can be proffered as a reason for rejecting my amendment because it is without logic.
With great respect and courtesy the Minister asked me to consider what she has said and I will. With the same earnestness I ask her to consider her reason for rejecting my amendment. It is illogical and I wish to emphasise that point. I would like to debate, in any forum, with any lawyer who would tell me that is a possible meaning for what I proposed.
I do not like red meat, but it would be an interesting debate. I would be very surprised if anybody could sustain that argument.
The Minister must do the best she can according to her advice, but without that phrase, "in particular", there is the possibility of a separate interpretation of that section on adoption taking free of what is set out in the earlier part.
---which concerns the best interests of the children. I echo what the Minister said in that regard.
Having listened to the debate on this amendment, I see it related to the first part of the proposed Article 42A.2.1°, but not in the manner suggested by the Minister, which probably reflects the views of her officials, that in some way adoption is a natural follow-on to what is there. I see it linked, as Senator Mullen has said, to the qualification of Article 42A.2.2°, which provides that children can be adopted - we are talking about involuntary adoption - "where the parents have failed for such a period of time as may be prescribed by law". There is no inclusion in this of the various qualifications we debated with regard to the first part of the section. The qualifications "in exceptional circumstances", "proportionate" and so on seem to be missing with regard to adoption. This is a lacuna and I share the concerns of Senator Mullen and find myself supporting the points he made with regard to the amendment.
With regard to "as may be prescribed by law", the Minister has, rightly, published a Bill relating to adoption. This sets out clearly that a child would have to be in care for three years before this would be triggered. This is an appropriate period of time in the case of children of a reasonably mature age. If a child is ten, 11, 12 or 13, three years is adequate because the views of that child can be clearly ascertained and that input would be of assistance in the decision being made. However, three years is far too short in the case of very young children. Children aged three, four or five are not sufficiently mature to exercise the decision themselves. Given our earlier debate on the connection between the natural family, the biological parents and their child, this consideration must be factored in. For that reason, the Minister should give careful consideration to the amendment.
The Minister should also consider taking another look at the draft adoption Bill she has published, although she may not be prepared to say this.
We are all here supporting the sentiments and the thrust of what is behind this constitutional amendment and want to see it passed. Some people will have strong reservations of the nature I outline. The purpose behind the Minister publishing the draft adoption Bill was to give some clarity to the public in advance of their adjudicating on the constitutional amendment. All I am doing is continuing that.
I ask the Minister to consider this issue. The Baby Ann case was also mentioned. There is an issue in that regard, with regard to the length of time it took our services to deal with that case. The child was two years old before the decision was made. There are issues surrounding this that are pertinent to the arguments made in the amendment and to our consideration and the Minister's assessment of it.
I apologise that I must now leave to attend a meeting, but I will try to get back to hear the Minister's response.
We are looking at proposed Articles 42A.2.1° and 42A.2.2°, which are part of the same section but are separate points. For that reason, Senator Mullen's argument does not add up. The proposed Article 42A.2.1° deals with where the State must take the child into care because of neglect, but the proposed Article 42A.2.2° deals specifically with the test of failure of the parent and in the best interests of the child when the child of the marital parent is being considered for adoption. Both provisions are distinct and separate, but they are part of the same section.
I would also like to comment on the three-year rule.
My point is that the three-year rule strikes a very good balance because in the case of a very young child, three years is significant. It is quite a long time in terms of the formative development of the child.
I thank Senators for their comments on this amendment. I am satisfied that it is not required and I do not agree with Senator Mullen's analysis. The net point is that failure is established and this is agreed. If we consider the two subsections, we can see that Article 42A.2.1°, concerns parents who fail in their duty whereas Article 42A.2.2° concerns making provision "by law for the adoption of any child where the parents have failed for such a period of time". It is quite clear that the provisions of Article 42A.2.1° apply, but that this goes much further.
If one looks, for example, at the provisions of the Bill I have published, one sees we are talking about parents having failed in their duty towards the child to such an extent that the safety or welfare of the child is likely to be prejudicially affected. We also see that there is no reasonable prospect that the parents will be able to care for the child in a manner that will not prejudicially affect his or her safety or welfare. The Bill also provides that the failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child and that by reason of the failure, the State, as guardian of the common good, shall supply the place of the parents and so on. Therefore, we have an even stricter and stronger definition of failure. This is spelled out clearly.
What we have, as we have in adoption and in law already, is a separate process where a parent is coming in to take the permanent place of a parent or coming in to adopt. This is spelled out in the legislation. I believe this satisfies the concerns. The Bill we have published is absolutely clear on all of those criteria around failure. It is clear the provisions in 42A.2.1° apply, because a child will not be adopted except, obviously, where there has been failure - a strict definition of failure will apply. We are talking here of non-consensual adoption and this will only be in exceptional cases. I expect the application of this provision will be quite rare. Obviously, we want to allow more children who were previously not available for adoption to be adopted, but under very strict criteria, which are spelled out carefully in the legislation.
I also reject the point being made that the courts might allow only a "best interests" question.
Obviously, the rights and duties of parents in Article 41 will come into the equation and I ask the Senator to consider this. Clearly, Article 41 and the constitutional rights of parents will apply in regard to the test that would apply in regard to non-consensual adoption. This is spelt out very strongly in the legislation and it is also spelled out very strongly that the period is three years. Senator Walsh makes the point that three years is not a long period but, in the life of a five year old, three years is a very long time. In any case, we are not just talking about three years as we are talking about 18 months with the adopted parent also.
If one looks at intercountry adoption, the vast majority of Irish parents who have adopted in the last ten years have adopted babies aged, say, three or six months because they want to give the child the best opportunity to bond with them, because that child is available and because there is consent and all of the criteria have been met. If one is talking about older children, to have three years and a further period of 15 months is a long period in the life of a child. Incidentally, the period currently is 12 months for children who are eligible for adoption and the failure has to have been for 12 months in the case of lone parents. We are now talking about marital and non-marital situations and we are suggesting three years as well as the 15-month provision. In the life of a child, that is certainly reasonable. One must also consider the time it takes to go to court and for orders to be made.
Some people would have argued the provision should be for a shorter period but I believe three years, with the 15-month provision, is reasonable and could be considered the most appropriate in terms of the best interests of a child and ensuring there is permanency planning. If there is one failure in our care system, it is the lack of permanency planning, which has been commented on time and again and was noted in the child death report. We have a real problem in terms of children moving in and out of care and moving between foster families. What we want to arrive at is a balance whereby the permanency planning takes into account and gives full respect to the natural parents, Article 41, the rights and duties of parents and the place of the family while, equally, considering the needs of the child. For those reasons, I am not in a position to accept Senator Mullen's amendment.
The Constitution has quite a number of areas where there is a main provision like this and there is then a sub-article outlined in the way I have outlined the sub-article in this regard. I consider that the formula is well established in the Constitution and also that the meaning is clear. In addition, there is very strong legislation accompanying this. For all of those reasons, the way we have approached it is satisfactory.
I thank the Minister for her response. I pay my own tribute to her. I enjoy listening to her and it is very clear she is more than in charge of the brief, which is very reassuring. Great credit is due to her, and I hope that does not sound patronising as I have listened with great interest to what she has been saying. However, I cannot buy what I am hearing about her reasons for not accepting the amendment. In passing, it was not my intention to ask whether there are other situations in the Constitution where one has successive sub-points. I was asking whether it was clear from the jurisprudence and from judicial reasoning that a second point would have to be read entirely in the context of and subject to the test laid out in the earlier section, because that is the reassurance the Minister is seeking to offer on this point. That is separate from the mere existence of succeeding subsections.
I note what the Minister has to say about Article 41 and consider that significant. I note also what she has to say about the legislation that is proposed and, again, I consider that the care that has been given to this is testament to her prudence and that it is a balanced approach. However, as I have already said more than once today, and as I know everybody here agrees, we have to look at the changes to the Constitution not just in the context of what the Minister, in her wisdom as the relevant Minister proposing legislation at this time, would deem to be good but also in the context of our having to think prospectively for the future. That is why this is significant.
While I am not sure I should read anything into this, I note the Minister did not repeat her caution about the possible misinterpretation of my proposed amendment, which I cannot accept as being in any way legally or logically grounded. Therefore, I put it to her there is no possible mischief in what I am proposing. What I believe we are doing is introducing a very helpful clarity. From everything the Minister has said, it is entirely her intention that such provision for adoption in involuntary adoption situations should only take place in the full context of what is provided for in sub-article 2.1°. However, it is very clear there is a potential for ambiguity because in sub-article 2.1°, the test is parental failure "to such extent that the safety or welfare of any of their children is likely to be prejudicially affected".