Thursday, 11 April 2019
An Bille um an Ochtú Leasú is Tríocha ar an mBunreacht (Scaoileadh ar Phósadh) 2016: Céim an Choiste agus na Céimeanna a bheidh Fágtha - Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016: Committee and Remaining Stages
I welcome the Minister to the House.
Before Committee Stage commences, I would like to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment which is contained in the schedule to the Bill. The sections of the Bill are merely technical and, therefore, in accordance with long-standing practice, the sections are postponed until consideration of the Schedule has been completed. I ask the Acting Leader to formally move, in accordance with the precedent and Standing Order 152, that consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.
Tairgim leasú a 2:
I leathanach 7, idir línte 1 agus 2, an méid seo a leanas a chur isteach:"CUID 12º Féadfar socrú a dhéanamh le dlí chun scaoileadh ar phósadh a rialáil.CUID 22º Provision may be made by law for the regulation of dissolution of marriage.".
I move amendment No. 2:
In page 6, between lines 1 and 2, to insert the following:"PART 12º Féadfar socrú a dhéanamh le dlí chun scaoileadh ar phósadh a rialáil.PART 22º Provision may be made by law for the regulation of dissolution of marriage.".
I thank the Minister for being in the Seanad this afternoon.
I am moving my amendments to the Bill to amend the Constitution on the dissolution of marriage. This continues from our discussion on Second Stage where Senator Bacik and I expressed concerns about the scope of the proposed referendum as it currently stands.
As we discussed on Tuesday, the current provision of Article 41.3.2° reads that three main conditions have to be satisfied before a court can grant a divorce: that the spouses have lived apart for four out of five years; that there is no prospect of reconciliation between the spouses; and that proper financial provision has been made for spouses, children and dependants.
I welcome that the Bill and the proposed constitutional amendments will remove the provisions on time limits from the Constitution. However, it leaves the rest of Article 41.3.2° intact, ensuring these relatively complex and detailed provisions will remain in the Constitution to further govern how dissolutions of marriage will be granted after the referendum would be, hopefully and presumably, successful.
There is concern regarding this decision to leave these provisions in the Constitution as while the time limits will be gone, they may pose unnecessary barriers, delay, and distress to those seeking dissolution of marriage. While these provisions remain in the Constitution our ability to legislate on these ambiguous terms is limited and will always be open to judicial interpretation and reinterpretation. Without the possibility of stability and continuity in this area, the State risks posing additional and unnecessary distress on former spouses and their children as it will not be able to guarantee with confidence how dissolutions of marriage will proceed through the courts.
This is the concern, and one which I believe is valid under the current proposals. These provisions were originally inserted in the Constitution with the expressed intention of making access to divorce more restrictive and it is not comprehensive to fail to touch the remainder of the article in question.
My proposed amendment, therefore, would delete the entirety of the current Article 41.3.2° and replace it with the language drawn from the empowering provision on the termination of pregnancy inserted into Article 40.3 by last year's successful referendum repealing the eighth amendment, and states: "Provision may be made ... for the regulation of dissolution of marriage." This would ensure that reference to the dissolution of marriage would be retained in the Constitution and would be in line with the advice given by the Attorney General on similar concerns relating to the termination of pregnancy provision. It would ensure the Oireachtas would be free to legislate for these exact same issues, that is, time limits, the prospect of reconciliation, and proper provision in the ordinary primary legislation and outside of any constitutional restrictions. It is a legally robust proposal that draws from established legal and constitutional precedents and would withstand the high levels of scrutiny required for any proposed change to the Constitution.
If this change were accepted, we would then be able to provide a clear legal route in legislation for how a marriage would be dissolved with straightforward provisions that would be clear to the public and the Judiciary and would allow for a divorce case to proceed along a clear, transparent and reliable process in the courts. It would be a superior way to conclusively deal with this long debated issue in Irish politics and to avoid the prospect of a fourth referendum on divorce which, I am sure, fills everyone with dread.
I hope that the Minister could clarify a couple of issues as a result. Have there been discussions in the Department as to how these constitutional provisions might play out with the accompanying time limits in the courts? Was he planning to account for these issues in the primary legislation that he will bring forward if the referendum is successful? Has the Attorney General been consulted on how much space there will be to regulate these provisions legislatively?
I welcome that the Law Reform Commission, LRC, will include an examination of the proper provision requirement as part of its next programme of work, but will the Department monitor how, for example, the prospect of reconciliation provision is interpreted? As I mentioned on Tuesday, concerns were raised by Dr. David Kenny of Trinity College that the time limit provided some form of cover for the reconciliation provision and we want to ensure that the prominence of the reconciliation provision after the referendum does not ensure that Ireland moves away from its system of no-fault divorce. Concerns have been raised that judges may feel obliged to make substantive inquiries and investigations of the factors causing a marital breakdown to be fully satisfied that there is no prospect of reconciliation. Judges would, of course, just be fulfilling their duties under the Constitution by doing so but would greatly increase the distress to the individuals involved as their private romantic lives were opened up and analysed in court. With the provision remaining in the Constitution, this remains a possibility.
It is Dr. Kenny's view that there would be space to set out guidance in the primary legislation for the criteria and factors that the courts may have regard to when considering whether to grant a dissolution of marriage - nothing that would be binding on the courts but merely some form of indiction of the view of the Oireachtas on how these issues could be dealt with and managed fairly by the Judiciary. Is this an approach that the Minister is considering in the legislative changes that will come if the referendum is successful? If we are assured that he was aware of these issues and looking to see how they play out in the courts, perhaps these concerns could be tracked and responded to as needs be. However, that would seem to be an inferior approach to removing the provisions altogether.
These are complex issues, and that is why I table the amendment. If the amendments were to be accepted, we would be going to the people confidently saying that the issue of divorce will never be on the ballot paper again. Without the change I propose, I do not believe we could do so with that same confidence.
We are close to the date planned for the referendum. None of us wants any undue delay to this important change but these issues are worth debating and teasing out further. I look forward to the Minister's response.
I welcome the Minister to the House. I welcome this important Bill of which, as I have said, the Labour group, and, indeed, my colleagues in the Dáil, are supportive. We will campaign strongly for a Yes vote.
We recognise that the referendum, if passed, will significantly reduce the current legal delays, and, indeed, financial burdens placed in front of couples who are suffering the trauma of marriage breakdown. I spoke, on Second Stage, about the unnecessary barriers for couples that the current position represents with the requirement of four out of the previous five years living apart being unduly onerous. Certainly, we neither wish to see any delay to the holding of the referendum or wish to see the process disrupted.
As a veteran of many referendum campaigns, I understand why Governments and those campaigning for a Yes vote tend to be cautious about referendum proposals. Nonetheless, as I stated on Second Stage, we could be somewhat more radical at times. Certainly, on the blasphemy referendum in November last, we should have gone further and not only removed blasphemy from the Constitution but removed the other offences in the same article. It is unfortunate we did not take that opportunity. I note the Minister's expression. Caution was probably advised in that regard. On the other hand, the Constitution is neither the place to be providing for criminal offences or for providing for complex detail of issues of family law, marital breakdown or reproductive health law.
I appreciate Senator Ruane's approach in these amendments. It builds on the approach taken in the 2018 referendum where we simply inserted into the Constitution a facilitative provision enabling the Oireachtas to legislate without setting down the parameters or criteria on which it would have to legislate.That is generally preferable. It is generally preferable that we do not seek to be too prescriptive in the Constitution as to the detail of family law. On the other hand, I very much welcome the fact that the Minister has published the general scheme and that he has indicated in advance what the legislation will look like if the referendum is passed. As I said, I will seek a comprehensive debate on the shape of that legislation on Second Stage. I will debate whether it is necessary to go for the current proposal of people having to have been separated for two out of the previous three years and whether we should instead look to reduce the requirement to one year out of the previous two, which would deal with the issues around proving irreconcilable breakdown. It would also be more in keeping with EU norms in respect of requirements for time spent living apart. If the referendum passes, we will have the opportunity to deal with other means of tackling the legal resolution of marriage breakdown and divorce proceedings through the legislation. We can have this debate at that time. I thank Senator Ruane for giving us the opportunity to debate the concept of this amendment to the Constitution. While I accept the need for caution, very much welcome the current proposal, and will campaign strongly for a Yes vote in the referendum, the point the Senator made is worth considering.
I welcome the Bill to the House and I support of my colleague, Senator Ruane's, amendment. She referred to the fourth referendum. I remember the first referendum on divorce. It was probably the scariest public speaking I have done in my life as I was studying in the Gaeltacht at the time - I was nine or ten - and was the only child in the class to speak in favour of the concept of divorce, in quite poor Irish I remember. Of course that referendum did not pass. Much later, as a student in UCD, I joined staff and other students in campaigning for the right to divorce. In the intervening period the debate had evolved and the divorce referendum passed. In the years since, there has been massive change and evolution. The understanding of equality issues within families has changed. Ireland did not experience the great wave of divorces that was feared at the time, rather we gained a greater openness and transparency around issues of equality in the family. Since then we have had changes to rights in different areas.
The reason I support Senator Ruane's amendment is that it provides space for the Legislature to respond to the evolving landscape. Even in the past few years there has been a greater understanding of issues like coercion and control, which may not previously have been reflected in efforts to understand whether reconciliation was authentic. The Istanbul convention has been ratified, which again looks to legislation and protection in respect of issues of violence, which can be a contributory factor. We have, at last, introduced a very strong provision on the rights of the child to our Constitution. This may alleviate the necessity for the current provision on the welfare of children. It is a wider constitutional provision to which the Judiciary can give consideration rather than the more detailed and directive content that also exists. I understand that the legislation is coming and that there is scope to set the tone of how it might be interpreted. I understand that this will be addressed in the guidelines to be provided to the Judiciary, which will be non-binding.
This is often a difficult decision for people to make. Marital breakdown is often very sad. This is an opportunity to move on this issue and to have a Legislature responding appropriately to the evolving national and international understanding of these issues rather than having to come back to the issue in another decade to amend the Constitution again. If we have to come back in a decade, we will. That will happen at that time. I would love it if the Minister could share his views on the proposals and valid concerns of Senator Ruane. I will support the Bill and the referendum to implement a more humane and practical understanding of martial breakdown in Ireland.
I will check to see who was in the Chair because I am sure that eminent chairperson will, like Senator Higgins, have a recollection of the first time this issue was put to the people back in 1986. Senator Higgins says she was nine.
The Senator was 11, to be accurate for the record of the House. I remember that campaign quite well and, in particular, an extraordinary incident during its course. I do not wish to digress but I was a keynote speaker on behalf of the newly-formed Divorce Action Group in my constituency of Laois-Offaly on a date between April and June. I believe the referendum was held on 23 or 24 June. I was a guest speaker but, in the same hotel, my father was a keynote speaker at a meeting organised by the Traditional Values anti-divorce group. Indeed, he was supported by many of his colleagues in the Dáil. When I was on my feet in the course of my address to a room of approximately 15 people I could clearly hear the thunderous voice of my father addressing a meeting of approximately 550 at the same time in the same hotel. We met on the stairs on the way down and he asked me how my meeting went. He did so in a way that could be described-----
-----as tongue-in-cheek. I recall however - and I say this in the context of all referendums - opinion polls in April and May 1986, which showed that in excess of 60% of the Irish people were in favour of change. When the preferences were counted in June, the percentage in favour had fallen from 61% to 36%. A total of 63% of the electorate rejected the proposition at that time. When we, as politicians, put questions to the people, we need to exercise the type of caution mentioned by Senator Bacik. My concern about the amendments before us is that, through them, Senator Ruane proposes to remove from the Constitution a requirement for proper provision and the requirement that a decree of divorce must be granted by a court. The requirement that there be no reasonable prospect of reconciliation between the spouses would also be removed. I heard the reasons put forward. In the context of this issue, I was keen that we would achieve consensus on the question that would be put to the people with a view towards gaining their approval on 24 May. In looking at the Dáil debates of some weeks ago, it was clear that many contributors favoured the retention of the requirement for proper provision. This was also reflected in the outcome of consultations I have had with other Oireachtas Members over recent months and in my consultations with party groupings.I am of the view that proposing an amendment that would remove the proper provision requirement would have the potential to complicate matters and add a degree of complication to the question to be put to the people in the referendum. I am also firmly of the view that it would open up a wider sphere of debate on what might be described as a clean-break divorce and on the matter of prenuptial agreements. While there may certainly be merit in having these debates, my concern is that they would divert public attention from the immediate primary purpose of the minimum living apart period and the issue of the recognition of foreign divorces. As I mentioned on Second Stage, the Law Reform Commission has included in its fifth programme of law reform an examination of the proper provision requirement for divorce. The outcome will inform future proposals for any legislative reform in this area. I would, however, be reluctant - I will go further and say it would not be prudent - to propose an amendment to the proper provision requirement in advance of an examination of the issue by the Law Reform Commission of the substantive debate on the issue involved, both in the Seanad and the Lower House and in the wider public sphere. I am very keen that we now act in such a way that the focus will be on reducing complexity and mitigating the vexed issue of financial exposure, which is an important factor in current family law proceedings.
Regarding the requirement that there be no reasonable prospect of reconciliation, I would defer to Senator Bacik and other Senators, but my understanding is that this requirement does not often prove to be a difficulty in the matter of a practical application for a divorce. I have not been in practice in this area for some years, but my understanding, as someone who engaged in the practice of family law, is that the requirement that there be no reasonable prospect of reconciliation is viewed as a formal proof which must be satisfied. Because of this, I believe the retention of this requirement is unlikely to impede any significant number of persons in bringing applications for divorce in any event. I am also conscious of a not insignificant degree of hardship now faced by couples in the context of the current delay imposed by the constitutional reference to four out of the preceding five years. I am keen, however, that we put a question to the people that is reasonably straightforward, answers to a legitimate public demand and can be approached with a fair wind from these Houses. This is why I will conclude by suggesting to the Senators, or Senator Ruane specifically, that the introduction of a greater level of complexity at this stage is not consistent with the fair wind we received in the Dáil and which I was pleased to note on Second Stage in the Seanad. I am anxious to proceed, insofar as I can, on the basis of consensus.
Agreed. That is what I was about to say. I will not go beyond what is addressed by the amendments but will respond to one or two things the Minister said, and I welcome him to the House.
I was on my way into the Chamber on Tuesday with a half-polished Second Stage speech to deliver when I met Senator Norris on the way out, and he said, "You are too late." It strikes me that the Bill did not just get a fair wind on Second Stage; it was an almighty gust of wind. The Second Stage debate was over within a very short period.
It was not well over an hour because I was coming up to the Chamber at 6.50 p.m. or 6.55 p.m. and the debate was over. I do not think it started until about 6.05 p.m. or 6.10 p.m., so unless Senator Bacik thinks there are 50 minutes in the hour-----
Two things the Minister said prompted a reflection on my part. Regarding the requirement that there be no reasonable prospect of reconciliation between the spouses, it is extremely important that provision be made in this regard as a condition of providing for the dissolution of marriage. Those of us who come from a rural background know that this issue keeps coming up. Without casting any judgments on any of the individuals or perspectives involved, there are people in possession of land who think twice about getting married and choose to cohabit, and I hear from time to time people calling for the recognition of prenuptial agreements and all kinds of things. I do not know whether one would describe it as an intended or an unintended consequence, but the very necessary requirement that provision be made shows, in the context of divorce and laws providing for the dissolution of marriage, that this can, unfortunately, have a chilling effect on people getting married at all. For reasons that I will touch on at a later point in this debate, this is very regrettable. Regarding the business of there being no reasonable prospect of reconciliation between the spouses, the Minister has effectively just said he is not aware that it is ever invoked or ever critical. I do not wish to put words in his mouth but I have never heard of a situation in which a divorce was delayed in this regard. I may be wrong, however. I do not practice law now, I do not practice in the family courts and hardly ever did, and I would be happy to be contradicted on this if there were evidence to the effect that this requirement is ever even a factor in delaying a process or-----
Yes, and has the requirement ever been the cause of an outright refusal of divorce? I would be interested to know. I am a big fan of evidence-based political debate. I talked about this in recent days. This is another area where I would be glad to be better informed, and the House, while contemplating and considering these issues, should inform and re-inform itself. It seems to me that if the requirement that there be no reasonable prospect of reconciliation between the spouses is in the Constitution, it is always a strange thing if something that is expressed in the Constitution has no real effect in practice. At most the requirement should be in the "Directive Principles of Social Policy" section of the Constitution, but it does lead one to ask the question as to why things are aspired to in the Constitution but not delivered on. If there is a lack of evidence - and I say "if" in case I am wrong and there are mountains of evidence - to the effect that the requirement that there be no reasonable possibility of a reconciliation does affect decision-making in this area, although I do not think there exists such evidence to any significant degree, if the requirement is not having any effect in reality and if divorce is in fact seen as a right and this condition is being given lip service but not being followed through on in any way, it should make us reflect why it is considered desirable to mention that a divorce will only be granted where there is no real prospect of reconciliation. Of course, there are people here who say that this should not be a requirement, that it should be completely a matter of personal choice. If the requirement is there, however, how come it has not - if it has not - found any real expression in support of promoting marriage?Is it a bit like the clause supporting a woman giving care in the home? We all agree the clause needs to be changed to be less gender specific but, to judge by our economic policy in recent years, it has had absolutely no effect on public policy and I regard this as deeply regrettable. The Minister's points have caused me to reflect on this. It is appropriate, as we consider the referendum legislation, that we say a word or two about it, if things are as I have described.
The importance of having this discussion is to ensure the previous case law carries through after the referendum so there would not be undue stress or delay caused by the reconciliation provision as a result of removing the time limit from the Constitution. Will we begin to interpret the Constitution differently? Will there be scope to set out guidance, which the Judiciary can take on board or not, whereby previous case law would still be the normal way forward in terms of the dissolution of marriage?
In 1986, I was two years old and I am glad to say I do not remember the referendum. I am sure my parents remember it, and if it had passed at the time, perhaps my family and I would not have had to go to court to change our names to our father's name and he would have been able to get a divorce and marry my mother. That is my great regret from 1986. If the referendum had passed, I would not have had to ask for his name to be carried on in mine by changing it through the courts. I want to put that on the record.
I acknowledged the points raised by Senator Ruane. I have taken careful note of the points raised. I am confident we will have an opportunity to debate them in further detail on a future occasion. I acknowledge Senator Ruane's actions in the spirit of consensus I spoke of. I greatly appreciate the manner in which Senators Ruane and Higgins have approached this. I am grateful for it and I believe it will be important in the context of the public interaction on this issue.
To respond to Senator Mullen very briefly, it is important that anything said is not unduly misinterpreted. I make clear that any application brought to the courts seeking a decree of divorce is done having regard to the constitutional provisions and having regard to the legal advice on these provisions that is given to both parties. The requirement that we have a process is time honoured and I want to make it clear, in case there is any misinterpretation or misunderstanding, that the removal of the minimum living apart period in the Constitution will not open the door to what has been described as a form of quickie divorce, automatic divorce or divorce without process. It will still be possible for the Oireachtas to prescribe a minimum period in legislation in any event. If the referendum is passed, I intend to introduce the family law (divorce) (amendment) Bill 2019. I have published the draft scheme of the Bill, which proposes to amend section 5 of the 1996 Act. This will specify a minimum living apart period of two years out of the previous three. We will have the opportunity to revisit that in the course of the debate. I am making clear that this is my proposal, as Minister for Justice and Equality, and it is the proposal that has been accepted by the Government and in a vote of the other House.
I would like to take a couple of minutes, if I may. I want to make a few quick remarks. I probably would have covered them on Second Stage. It is appropriate, given that we are speaking about important legislation.
We live in a culture that seems dismissive of long-term commitment. To say that marriage is a social good or that it should be for life has become almost taboo. There are various reasons for this. For a long time, the idea that the State should recognise an institution such as marriage has been viewed by some as restrictive of their freedom and judgmental of their choices. This might be called the libertarian critique of marriage. Then came feminism with all that is legitimate and necessary in its analysis and all that was reactive and destructive in elements of it. The perception of marriage as an institution that in the past was restrictive of women's choices, well-being and economic independence caused many to desire its overthrow. Then came what we might call the affirming culture, one in which it is seen as necessary to affirm all choices equally.
I promise I will do that.
In certain areas of human life, to stress the benefits of one way of doing things is seen as tantamount to causing a negative judgment of those who do not do things in a particular way. All of this is unfortunate because it is hard to deny that most credible evidence suggests that marriage has always been, for the most part, a social good and that it still is a social good. In the past, it provided women in particular with stability and protection at a time when women's equal dignity was not recognised and their equal rights denied or at least only taken into account when men's aspirations were fulfilled.Marriage is a good thing for couples. It provides them and their children with the basis for a stable family unit. It improves their lot in life, socially and economically, and this, in turn, is a good thing for the State and society as a whole. That is why it is enshrined in our law in the first place. To state these facts should not be seen as stigmatising single parents or unmarried couples with children. I have talked in recent days about evidence-based legislation. Marriage and the family is another area in which State policy is not evidence-based. It would be difficult for the Minister to deny this if he heard his predecessor, Deputy Frances Fitzgerald, say during the debate on the Children and Family Relationships Act 2015 that there should be no hierarchy of families in denial of the argument that public policy should encourage a situation in which each child is brought up by a father and mother and, where possible, his or her own father and mother. Without judging others, it should be a cornerstone of public policy to encourage marriage and assist those whose marriages have broken down to reconcile to the greatest extent possible while acknowledging that this will sometimes be impossible.
I hope the debate we have when the legislation comes in will be very different to the debate we have had on the referendum proposal. This referendum proposal merely gives the Legislature the power to change the situation. During the debate which has taken place so far, there has been no discussion of children's welfare and no discussion about whether we should have public information campaigns on the importance of marriage and greater Government investment in pre-marriage courses. I will finish very shortly but I compare it to-----
Indeed, albeit "fulsome" is not a word I like as it actually has a pejorative meaning which the Leas-Chathaoirleach does not intend in this instance. We need to discuss why the first significant Government policy since the redefinition of marriage in 2015 is about making it easier to bring a marriage to an end. When are we going to discuss what we can to proactively as a society to promote not just marriage but life-long marriage and to promote as a specific social good the long-term union of men and women for the upbringing of children?
That would be an evidence-based situation. In conclusion, I look forward to a debate when we can consider how marriage has been impacted since the last divorce referendum, for example. Reference was made earlier to the idea that people said the floodgates would open. That was not a significant part of the debate in 1995. People were talking then about the impact of divorce on children and the connection between divorce and financial status, poverty and other such challenges. Those questions have not gone away and we should not be afraid to discuss them. I hope that at a later point, if the referendum passes-----
I understand and the Chair has to do that. I hope, in conclusion, that if the referendum passes, which I suspect it will, although I will certainly not campaign against the proposal, of which I am sceptical, all the more so since I have not seen the energy around promoting stable marriage, we will have a sincere discussion-----
-----about what we can do as a society to promote marriage, not just as one choice among many, but as a social good that serves the welfare and well-being of children. It is something this Government and other Governments have ignored for far too long.
I thank the Minister and his officials for their work thus far on the Bill and I thank the House for its co-operation today and on previous days. I welcome the Bill very much. I remember the 1980s also, although I was not two years old. As with the Minister and his father, there was a split in my family. My father campaigned with Paddy Cooney on one side while my aunt campaigned on the other. One does not know anything about a situation until it visits one's own home. When my sister went through a marriage break-up in the early 1990s, through no fault of hers, my father changed his opinion very quickly. Until it visits one's own family, one cannot really say. Marriage is not about stability for women or anything like that. Marriage is a partnership and if it breaks down and cannot be reconciled, no one should have to go through four years of living in a bad situation. I thank the Minister and his officials and welcome the Bill.
I say one thing to Senator Mullen, who is going to interrupt me. He based the entirety of his criticism of the proposal on the matter of children. For the benefit of the House, I note, as I did on Second Stage, that children will not be rendered more vulnerable if the minimum living apart period is removed from the Constitution because the courts will still be required to consider whether proper provision has been, is being or will be made for spouses and children. That is in accordance with the Constitution and it is not being changed. That is why I seek the consensus which is desirable in the circumstances. I welcome Senator Mullen's statement that he will not campaign against the proposal.
The Minister will be generous enough to acknowledge a distinction. I do not play procedural games to draw debates out. I never do. What causes me regret is the fact that there is not enough seriousness in this place sometimes to have a full debate on important issues. The Minister then digressed into contradicting a point I never made. I did not make any claim about the content of the legislation. I lamented the lack of attention to children's welfare generally by way of evidence-based policies in all of these areas in which political correctness now dominates to the exclusion of what the evidence might tell us is in children's best interests, most particularly where children are actually killed with the support of the law.