Constitutional Amendment on Children: Motion

I move:

That Dáil Éireann:

welcomes the final report of the Joint Committee on the Constitutional Amendment on Children published on 16 February, 2010;

commends the members of the committee for the manner in which they discharged their duties and the fact that cross-party consensus was achieved on this issue;

accepts the need for a constitutional amendment to enshrine and enhance the protection of the rights of children;

endorses the draft wording for a proposed constitutional amendment, contained in the report of the Committee; and

calls on the Government to bring forward the necessary constitutional amendment Bill and to set a date in this year for the holding of a referendum.

I propose to share five minutes of my time with Deputy Liz McManus and 20 minutes with Deputy Caoimhghín Ó Caoláin. I move this motion tonight in my name and that of my Labour and Sinn Féin colleagues, in the shadow of yet another tragic death, this time a murder of a child in the care of the HSE. We do not know the full story of the life and death of Daniel McAnaspie but what we know is disquieting and a cause of real concern. As we have done already today and will do collectively tonight, I send our heartfelt and real condolences to Daniel's family. We must also resolve to do more.

In February 2007, more than three years ago, the then Government presented the Twenty-eighth Amendment of the Constitution Bill to this House. After many years of debate and consideration, there was consensus that we needed to change the Constitution to give greater rights to children.

Children's rights organisations, some of which are represented here tonight, had long argued for change but the vulnerability of children, their lack of unique constitutional presence and the consequences of this position had become a matter of real and urgent concern. Going back to the conclusions of the Kilkenny incest case of 1993, Deputy Shatter and I would remember well how a committee of investigation was set up, with a then senior counsel, Catherine McGuinness, now Ms Justice Catherine McGuiness, asked to head the investigation. Among the important recommendations of the group was that "a specific and overt declaration of the rights of born children" be included in the Constitution.

Since 1993, a number of other reports or court cases involving individual children and their families have continued to raise the question of the apparent conflict between the best interests of children and the rights and duties of married parents. In too many cases, professionals or courts involved in decisions relating to children made decisions on the basis of our current constitutional balance and failed to act in the interests of the child. Children met with harm, sometimes unimaginable harm, because of this approach.

This House has debated many of these cases and reports over the past 15 years. In 2007 it was decided that we needed to act to bring about real and substantial change and the Government published a constitutional amendment Bill. The 2007 Bill, which proposed the insertion of a new Article 42(A) in the Constitution, was referred to an all-party committee for detailed consideration. The committee met weekly and examined in very minute detail, as the Minister of State will remember, the law relating to children.

In September 2008 the committee presented its first interim report, dealing with a proposal to give legal authority for the collection and limited exchange of information concerning the risk of the endangerment, sexual exploitation or sexual abuse of children. It was our unanimous view that the gathering and limited exchange of so-called "soft information" could be achieved by legislation without the need for a constitutional change. Since this was a prime recommendation in the Ferns inquiry report and featured in other horrific cases such as the Soham murder case, where Holly Wells and Jessica Chapman were murdered by local school caretaker, Ian Huntley, the committee believed urgent legislation was required. We made the recommendation in September 2008. Unfortunately, one year and eight months later we still await the publication of this important Bill.

The committee then set to work on the difficult and complicated proposal to give legal authority to create offences of absolute or strict liability in respect of sexual offences against or in connection with children. That work was completed and a detailed second interim report was presented to Dáil Éireann in May 2009. The majority of the committee recommended the creation of offences by legislative means. We again await the response of Government to this very detailed report; here too urgently required legislation that mobilised thousands of people outside this House has been long promised yet undelivered.

The third and final phase of the committee's work deals with the remaining issues of required constitutional change. Specifically, these are the issues of children's rights, the best interest of the child, the power of the State to intervene in the family and adoption. Again, an extraordinary amount of work, research, hearing of evidence and consideration of submissions informed the detailed debate that shaped the ultimate recommendations of the committee.

It was our shared view from an early stage that the published 2007 Bill did not go far enough to achieve the aim of enhancing children's rights. From an early stage of our deliberations, all members of the committee from all shades of opinion and all parties, grappled to see if we could shape a wording that could be agreed and which would advance children's rights in a groundbreaking fashion. It is a remarkable achievement to have produced in February of this year, some three months ago, an all-party agreed set of proposals, including an agreed wording for constitutional change. Many times during the committee deliberations I did not think we would reach that momentous moment but we did.

This report followed what was probably the most comprehensive examination of the truly complex issues involved in trying to enshrine and enhance the protection of the rights of children. I pay tribute, as I did on its publication, to all members of the committee who worked under the able chairmanship of Deputy Mary O'Rourke in a non-partisan way to address the complicated and delicate issues. The final report enjoyed the support of all members, representing every Oireachtas party. We also benefited from the participation of the Government through the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and the Minister of State with responsibility for children, Deputy Barry Andrews. For that reason, one could hope and expect a speedy response to the committee's groundbreaking proposals. Clearly, we are all agreed that few issues better demand our attention and action. Unlike most committee work, nothing new was presented to the Government three months ago. It has been fully engaged with the arguments, genesis and conclusions. The parties that constitute the Government signed up to those proposals.

This motion, sponsored by the Labour Party and Sinn Féin Deputies, seeks to move the process along. It needs to be moved along urgently. We have waited long enough for this change. Dáil Éireann must again unite on this issue and remain united, endorse the draft wording for constitutional change recommended unanimously by the committee and announce our determination to bring this proposal to the people this year.

It is said by some that the Government will not agree to a referendum this year for fear of needing to hold the by-elections that are due. That cannot be tolerated as an excuse for inaction on this issue. The welfare of children and the failure of State, church and society to give them adequate protection have convulsed this House and the nation. Our words of determination to do better, which followed every report and debate in the House, and to act decisively in the interest of children will ring hollow indeed if we long-finger this much needed change. This proposal will require detailed explanation, debate and engagement with the people. That will require time. The sooner we complete the legislative phase of the constitutional amendment Bill, the sooner we can start the process of real engagement and dialogue with the electorate we must persuade to pass it.

There have been a few voices of concern. Any change gives rise to proper questioning. We need to know the Government's intention now so that fears are not fanned by the vacuum of inaction. In short, we need to start a detailed process of communication with the electorate.

What is recommended in the words proposed? We recommend a new Article 42 to be entitled, "Children". This new article sets out the recognition of equality between all children, with no inequalities before the law between the children of married parents and the children of unmarried parents, the recognition of children's natural and imprescriptible rights vested in themselves, their right to have their welfare regarded as either a primary or paramount consideration, their right to protection and care and the right of the child's voice to be heard. It acknowledges parents as the primary and natural carers, educators and protectors of the welfare of their children and guarantees to respect these rights and responsibilities. It would allow the State, where parents fail in their responsibilities, to supply or supplement the place of the parents by proportionate means. It would provide for adoption of children where their best interests so require. It re-enacts the existing provisions dealing with the rights of parents to provide for the education of their children.

These and the other recommendations in the 117 pages of the report can make a real and historic difference, but only if they are acted upon. Too many sad, depressing, horrific reports on the abuse of children have been laid before the House. Just as we united in expressions of outrage when we read of the abuse of children, let us unite in our determination to make things better in a concrete fashion. The committee did not divide on party political lines, so let us not divide now. The proof of our sincerity on these issues will be provided in our deeds, not our words.

I am profoundly disappointed to read the amendment proposed by the Government. I believe in the goodwill and determination of the Minister of State with responsibility for children to bring about real change, but he must be supported by the House and he must demand the action of the Cabinet. Pass this motion tomorrow evening and let us show a common determination to act on this issue for the common good of all, particularly the children of this country.

I extend my condolences to the family of Daniel McAnaspie. Like others, I met his family members on the street outside Leinster House when they were exhausted from searching for him. We should all be conscious that he was one of 20 children who died in the care of the HSE. This makes our meaning clear when we discuss protecting children under the Constitution.

It is appropriate, if not poignant, that the Deputy presenting the motion is Deputy Howlin, who was the Minister for Health in 1993 when Mrs Justice Catherine McGuinness presented her groundbreaking report, which proposed a constitutional amendment. It is worth reminding the House that, before and after 1993, there have been three referendums on the rights of the unborn child. This country has been convulsed by debates on zygotes, the morning after pill and the pregnancies of poor, young, tragic girls. We have had that debate three times, but we have never had a constitutional referendum on the rights of born children, children who are a part of our community and are at risk from whatever quarter. That is negligence.

I urge the Minister of State to step outside the box and consider what is occurring tonight. We have an opportunity to live up to the recommendations and words of his predecessor, the Minister for Finance, Deputy Brian Lenihan, who stated in 2007 that the time for oratory was over and that we needed to present the people with a constitutional amendment on which they could vote.

I compliment the committee, which invested superhuman effort to deliver for the Oireachtas and the people an amendment that captured all of the complex issues relating to the protection of children. Its members have done the country a great service. Across the Chamber, it is our turn. We cannot do it solely as members of the Opposition and I welcome that this is a joint Private Members' motion. We should not make a political football out of the matter and no one wants to, but is it the case that the Government is so sclerosed or scared that it cannot agree? Consider the prize. If the motion was agreed across all parties, consider the strength it would give to the commitment to protect children in 2010. We could go to the people and convince them of how important it is that we have all come together to ensure the committee's work is not put away for another day and is, instead, acted upon.

We must take the initiative and ensure a debate on the rights of children in our communities who are at risk as we speak, often within their families. There is much discussion on church and State involvement in brutality and barbarism, but the greatest area of danger for many children is within their families. This is our chance to help them and I urge the Government to move beyond party political point-scoring. It should take on board the genuine intent of presenting the people with an amendment that could make a significant difference to the safety of our children.

I begin by extending my deepest sympathy and that of my party to the family of Daniel McAnaspie. The family endured a terrible ordeal during the weeks Daniel was missing and has now been visited by the worst ordeal of all as they prepare to lay to rest this boy whose life was destroyed before he had the opportunity to begin that life. We will never know the terrible ordeal suffered by Daniel. What we do know is that he fell into the hands of murderers when he was supposed to be in the care of the State.

Daniel McAnaspie was under the care of the Health Service Executive. His death brings to 24 the official number of children in State care who have died in recent years. It is impossible to say how many of these deaths were avoidable had the State cared better for the children under its direct responsibility. We need to know as much as possible about every such tragedy. Therefore, the reports on each should be published so that the facts can be made clear, lessons can be learned and the systems and practises can be put in place to try to prevent any more avoidable tragedies.

I support of the call of the McAnaspie family for a public inquiry. The Garda Síochána must pursue Daniel McAnaspie's murderers with determination. I urge anyone with information to bring it to the Garda without delay. Parallel with this must be a full and public investigation of how the State and all its agencies dealt with Daniel, the results of which must be published in full. The death of Daniel McAnaspie overshadows and adds poignancy to this debate this evening on the rights of children in the Constitution. It reminds us that this is not an abstract debate of interest only to legislators and lawyers; it is a life and death issue today. It is about the protection of children in Ireland today, tomorrow and into the future. That protection and their rights need to be fully vindicated in the Constitution, in legislation and in the provision of services.

It should not have been necessary to bring forward this Private Members' motion at this time. Sinn Féin and the Labour Party have done so out of concern at the failure of the Government to give a firm commitment to hold a referendum to strengthen the rights of children in the Constitution. We have in recent weeks repeatedly asked the Taoiseach and Tánaiste if and when a referendum Bill will be published; if and when the Government will agree the wording of the amendment and if and when the Cabinet will fully discuss the matter. Their answers have been evasive and minimalist and give rise to concern that this vital issue is being sidelined for reasons of political expediency.

I regret to say that the self-congratulatory amendment tabled by the Government only adds to our serious concern. Incredibly, it recognises the work of the Government in the first and second interim reports of the Joint Oireachtas Committee on the Constitutional Amendment on Children, which committee was an all-party committee that reached all-party agreement on a range of difficult and complex issues, including the referendum wording. The Government amendment was either hastily and sloppily drafted or is a calculated snub to the other party representatives on the committee. Either way it is a bad piece of work. This is underscored by the fact that the Government has been forced to substitute the original wording by now congratulating itself on its progress in implementing the recommendations in the first and second reports. The changed wording is just as incredible as was the first because we have yet to even see sight of the proposed legislation to give effect to the recommendations in the first report of the committee.

The final report of the Joint Oireachtas Committee on the Constitutional Amendment on Children was published and given to Government in February, some three months ago. There has been more than enough time for the Government to consult with all the relevant Departments and the Attorney General and to bring forward a Bill to hold a constitutional referendum on this matter. All that is lacking is the political will from Government to do so. The parties represented on the Joint Oireachtas Committee on the Constitutional Amendment on Children came to a consensus on the wording after 62 long and often difficult meetings. The Government has on repeated occasions acknowledged the need for a referendum. This Private Members' business is not about why we need a referendum. The Members of the Dáil have discussed this on many occasions and have all accepted this. This debate is about why this referendum needs to be held as a matter of urgency, which is clearly the gulf between Government and the Opposition Members tabling this motion this evening. This is in our opinion a matter of urgency.

The onus is now on the Government to publish without delay a Bill to provide for the necessary constitutional amendment Bill and to set the date for the holding of this referendum in 2010. This Private Members' motion is timely following the publication by Ms Emily Logan, the Ombudsman for Children, of the report on the implementation of the Children First guidelines, a source of serious concern. The Ombudsman for Children identified major gaps in the implementation of the Children First guidelines which are in theory designed to help protect children by ensuring vigilance and competence on the part of the State bodies, including the Department of Health and Children, the Health Service Executive and Garda Síochána. It is clear from the report of the Ombudsman for Children that since its establishment in 2005 the HSE has failed to make sufficient efforts to drive forward the implementation of Children First. The most basic of child protection procedures have not been adhered to. For example, the HSE has completely failed to ensure, across the HSE, consistent definitions of abuse and has failed to provide clarity and consistency regarding the reporting of child abuse concerns.

The Office of the Minister of State with responsibility for children and youth affairs is found by the Ombudsman for Children to have played down the impact on implementation of Children First of ongoing industrial relations problems. This is a serious charge that the Minister and trade unions need to address. It is clear that Government cannot afford to put off this matter any longer. The legislation and current legal framework does not adequately protect children. Many Members on the Government side have acknowledged this and so questions such as why we are still waiting for a referendum Bill to be published must be asked.

The HSE is rife with problems in regard to how it manages children in its care. We recently learned that lying on shelves in the HSE are 20 reports on the deaths of children in State care which are awaiting publication. No valid excuse has been given by the HSE for the delay. These should have been forwarded to the Ombudsman for Children, the Health Information and Quality Authority and the Garda Síochána. It is possible that some people involved were criminally negligent in carrying out their duties to the children in their care. I would not be surprised, were we ever to see sight of the content of these reports, if the Garda did not believe there were grounds for investigation in regard to at least one of them.

The State has failed in its obligations to its children. This is a long-term problem that is evident in the systemic failure testified in the Ryan report and in other inquiries into residential care institutions throughout the years, as well as in more recent damning reports that have scandalised residential centres, such as the Ballydowd centre in west Dublin, which was closed on foot of a Health Information and Quality Authority report, after having had €13 million put into it by the State.

There is a systemic failure in the child protection sector. Children are placed in inappropriate accommodation and are fostered out with no sign of a social worker for years on end. In some cases, children are exported to residential centres overseas at the cost of millions because the State refuses to invest in the facilities necessary to treat children who have severe behavioural difficulties or who have suffered major trauma or abuse in their lives. This constitutes a further example of the State washing its hands. It once did so in respect of the religious institutions and now it is in respect of every other mess into which the State can place children for whom it is not prepared to provide the necessary supports, resources, backup or care. This is a damning indictment of successive governments and such practices must end this year. How many times have Members asked about the position regarding the vetting of those who work with children? While a national vetting Bill and a new criminal justice (sexual offences) Bill have been promised, there is no sign of either. Moreover, there are insufficient social workers, other front-line workers and support systems. Children are left in grave danger. Cutbacks and under-resourcing have meant there are insufficient staff members to cover the number of children they must protect.

The Minister of State with responsibility for children has given no adequate explanation as to the reason the next State report on the Government's progress in implementing the UN Convention on the Rights of the Child is now a year late. This simply is another example of tardiness with regard to children's rights and another reason this referendum must be held as a matter of urgency. The Minister for Health and Children, Deputy Harney, who has the ultimate responsibility and who of course once again is absent, and the Minister of State with responsibility for children, Deputy Barry Andrews, who has direct responsibility, have never explained in detail the reason children so often have been and continue to be let down by the State. The Taoiseach has not told Members the reason that even though the final report of the Oireachtas Joint Committee on the Constitutional Amendment on Children has been laid before the Dáil, the Government has not published a constitutional amendment Bill, although he has been pressed on this matter repeatedly in recent weeks.

The absence of legislation to place the Children First guidelines on a statutory footing continues to leave children vulnerable to abuse and neglect. This point has been upheld by the recent reports from the Ombudsman for Children, Ms Emily Logan, and the special rapporteur on children's rights, Mr. Geoffrey Shannon. Holding a referendum will not on its own be the complete answer for children's rights on this island. As I noted earlier, the Children First guidelines must be placed on a statutory footing and child protection services must be resourced, in addition to adequate provision of resources in the education and health systems.

The lack of robust constitutional rights for children has left a position in which successive Governments have been able to wash their hands of their responsibilities. The existing legislation in place is not enough to hold the Government to account. There is no general obligation to carry out child proofing of laws concerning children and nor is there a requirement on the Government to ensure there are adequate administrative and political structures or laws and policies to uphold children's rights. This referendum is needed this year both because children deserve to have their rights as individuals acknowledged and because governments cannot be trusted to uphold children's rights without a stronger constitutional obligation.

Enshrining children's rights in the Constitution will not be the magical cure for the ills of the child protection system but it will put a great deal of pressure on the Government and on all State agencies to honour their commitments and obligations to the children of Ireland. Consequently, together with my colleagues on the Sinn Féin benches, with the Labour Party Members and with Deputy Howlin, who also was a member of the Joint Committee on the Constitutional Amendment on Children, I call on the Minister of State to withdraw his amendment or to confirm that the Government will hold this referendum this year. The Minister of State should either withdraw his amendment and accept the motion tabled by Sinn Féin and the Labour Party or should make it crystal clear for all to understand that the Government will proceed with the referendum on children's rights in the year 2010.

This is what Members have been asking for all along. There are no other side issues or distractions. It is critically focused, and places children first and foremost in one's concerns. Moreover, Members' bona fides in this regard are as long and well-established as are those of the Minister of State and his predecessors as Ministers of State with responsibility for children in their respective roles and contributions to the long deliberations of the Joint Committee on the Constitutional Amendment on Children, which was chaired by the former Minister, Deputy O'Rourke. I call on the Minister of State to not disappoint the House and to not disappoint the many people who are anxious and concerned to have clarity on the Government's intent this evening.

I call on the Minister of State, Deputy Barry Andrews, who I understand will be sharing time.

Yes.

I move amendment No. 1:

To delete all words after "children;" in the third paragraph and substitute the following:

"—acknowledges the commitment in the renewed programme for Government 2009 to proceed, subject to appropriate Oireachtas approval, with proposals to hold a constitutional referendum to consider children's rights, based on the work of the Joint Committee on the Constitutional Amendment on Children;

recognises the progress made by Government in implementing the recommendations contained in the first and second interim reports of the Joint Committee on the Constitutional Amendment on Children;

commends the Government for prioritising the promotion and protection of the welfare and rights of children; and

acknowledges the need to undertake a comprehensive examination of the policy implications of draft wording for a proposed constitutional amendment, contained in the report of the Committee."

I am pleased to have this opportunity to discuss the work of the Joint Committee on the Constitutional Amendment on Children. The aim of the proposed amendment of the Constitution is to improve the underpinning of children's rights in Ireland. During the debate on the joint committee's third and final report in the House some weeks ago, there were plaudits for the Chair and members of the committee for the work completed. I join with previous speakers in once again putting on the record of the Dáil my appreciation for the work of the committee. In dealing specifically with the issue of children's rights, the committee met 62 times and spent eight months before February deliberating on the matters at hand this evening. The committee's final report came after five extensions to its time schedule. I point to the extensions not as a veiled criticism but as evidence of the complexity of the subject being examined.

The text of Bunreacht na hÉireann makes very few references to the child as a specific constitutional actor. Children can, however, rely on the general protective provisions of the Constitution, such as, for example those contained in Article 40 and those identified by judicial interpretation. The Supreme Court held in re Article 26 and the Adoption (No. 2) Bill 1987, that a child is entitled, where appropriate, to invoke Articles 40 to 44. It stated:

The rights of a child who is a member of a family are not confined to those identified in Articles 41 and 42 but are also rights referred to in Articles 40, 43 and 44.

Furthermore, the courts have, in some cases, defined the personal rights guarantee in Article 40.3 in ways that arguably are specific to the child. For example, the then Chief Justice O'Higgins in G. v. An Bord Uchtála found that Article 40.3 provided that:

The child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being.

However, for more than 20 years, eminent legal and child protection experts have argued for the need to amend the Constitution to incorporate a specific provision in respect of children's rights. It is worth recalling that this argument has been under way for 20 years and not merely since February 2010. It has been stated that the Constitution should incorporate a list of expressed rights for children to remove the element of uncertainty which may currently exist.

International bodies, including the United Nations Committee on the Rights of the Child, echoed the calls for constitutional change. In September 2006, the UN Committee on the Rights of the Child, in its concluding observations on Ireland's second report on the convention, raised again the need for reform in this area. It should be noted that Article 5 of the UN Convention on the Rights of the Child provides that:

State Parties shall respect the responsibilities, rights and duties of parents... to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.

The 2002-07 programme for Government contained a commitment that family rights and related issues would be referred to an all-party committee on the Constitution. That committee reported in 2006, recommending an amendment to Article 41 to include a new section on the rights of children. In 1996, the Constitution review group made a recommendation for changed wording in respect of children.

Following that recommendation, my predecessor as Minister of State with responsibility for children, Deputy Brian Lenihan, undertook an article by article review of the Constitution to examine the status of children. That review, which included wide consultation, resulted in the publication of the Twenty-Eighth Amendment to the Constitution Bill in February 2007. It sought to enshrine in the Constitution rights that would accrue to children as a distinct group and not simply as human beings and individuals or members of a family unit.

In publishing that Bill, the Government aimed to provide a clear statement of the rights of children, while continuing the constitutional presumption that the best interests of children are served within the family. The proposals in the Bill also dealt with the issue of intervention of the State in the family under Article 42.5 and with adoption of marital children and of children in care.

The issues that the Bill dealt with are complex and were recognised as potentially contentious. It was recognised that if a referendum was to be passed, political consensus would be key. For that reason in November, 2007 the joint committee was established, with the task of examining the proposals contained in the Bill with a view to deepening consensus on this matter. By doing so, the Government acknowledged the February 2007 wording needed to be improved.

In its work over the past two years, the committee adopted a very constructive approach to the very complicated and sensitive issues under consideration. Great weight was given to the expert opinion presented to the committee and the legal advice that was on hand to guide its work.

The committee first examined the issue of "soft information" and subsequently the consequences of the CC case in the context of "strict" versus "absolute liability". There was unanimous agreement that "soft information" could be provided for by legislation. A majority of the committee decided that "absolute liability" should not be reinstated in respect of defilement-statutory rape cases and that therefore a referendum was not necessary on this issue.

Although the legislation has not yet been presented in respect of the two previous reports, considerable progress has been made in developing Bills. The national vetting bureau Bill will provide for the establishment of a national vetting bureau for the collection and exchange of both "hard" and "soft" information for vetting purposes. This legislation has been given Government priority and my office, in conjunction with the Department of Justice, Equality and Law Reform, is drafting the heads of the Bill for submission to Government at the earliest possible date. I reject the contention that we have been tardy in bringing forward this; it is complex legislation and significant progress has been made to ensure different Departments are in agreement about how to proceed with it. It is some time since the unanimous agreement on the "soft" information recommendation by the committee but substantial progress has been made and I hope to have published legislation in due course.

As regards the recommendations in the committee's second report, including recommendations relating to age of consent and defences available to defendants, the heads of a Bill are being prepared in the Department of Justice, Equality and Law reform. The Bill will also provide for reform of the laws on incest. A general scheme of the Bill has been presented to Government and has been approved.

The committee faced a challenge to balance the rights of families, children, marital and non marital parents. It became obvious through members' contributions and the expert opinion provided to the committee that the original 2007 Bill did not contain the potential to effect the desired level of change. The committee's report, which is extremely detailed, carefully and thoroughly examines the proposals contained in the original Bill. As an alternative to the wording contained in that Bill, the report recommends inserting a new Article 42 into the Constitution, restating most of the education provisions, but adding several new sections and renaming the section "Children" rather than "Education".

The new section begins with the phrase that "the State shall cherish all the children of the State equally". In this case, the phrase is being used to refer to children, although as Mr. Justice Adrian Hardiman recently pointed out, that was not the case in the 1916 Proclamation, from which it is a quotation. Mr. Justice Hardiman stated that the reference to children in the Proclamation related to minority groups and not the literal understanding of children as we may read it.

The proposed Article 42.1.2 provides specifically that children have specific human rights and that the State has a duty to vindicate the rights of children. The provision reads:

The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.

While the concept of the welfare of children is enshrined in some legislation, its use in the proposed Article 42.1 would ensure that children's welfare would be the paramount consideration in a range of areas affecting children. This will strengthen a more child-centred approach in family law decision making, including in areas such as guardianship, adoption, custody, care or the upbringing of a child. This proposal is not limited to judicial proceedings but extends to "the resolution of all disputes".

The proposals in Article 42.2 would require the State to recognise and vindicate the rights of all children as individuals, as opposed to children within the family. It also proposes that a child's voice should be heard in any matter affecting the child, with due regard for the age of the child. The rights in this part of the proposal are from the United Nations Convention on the Rights of the Child. The committee made a specific decision not to recommend incorporating the full text of the convention in the Constitution.

The proposed Article 42.4 deals with what is for many people the most contentious part of the proposals. The primacy of the family is very important to Irish people, and there has been concern that by giving rights to children as individuals, rights are taken away from the family. However, it should be emphasised that neither the 2007 Bill nor the committee's proposal are attempting to reduce family rights in any way. It is widely accepted that the best interests of the child are served by being part of a stable family unit. As I said, the proposal will not challenge or amend the concept of the family founded in marriage as the "natural, primary and fundamental unit group of Society", as outlined in Article 41.1.1. It is important to highlight this in the context of any referendum campaign that will follow.

The proposals would promote early intervention and support for families in difficulties, thus reducing the possibility of children being taken into the care of the State. Some parents for a range of reasons cannot care for a child properly and intervention by the State, up to and including removal of the child from their home, can be necessary. However, under this proposal, removal of children from their family home will continue to be a last resort.

A strong feature of the debate in the committee focused on the principle of proportionality and there was recognition that any intervention in the family must be proportionate. As a general principle of law, proportionality involves establishing a balance between competing claims. It requires that any action undertaken must be proportionate to its objectives and must not infringe a basic right to a greater extent than is necessary. The principle of proportionality is now generally assumed to be implicit in Irish constitutional interpretation and there is a developing jurisprudence on the subject. However, the insertion of proportionality provides assurances that intervention will only occur as a measure of last resort.

In this particular context, the principle of proportionality demands that the action taken will constitute the minimum intervention to secure the child's welfare and safety and one that will interfere least with the right to family life. It must represent a balanced response to the need to safeguard the child and the State must endeavour to prevent the separation of children from their families unless remaining in the family would endanger the child's development and well-being. This means that all alternatives should be fully considered and the courts must be satisfied that no less radical measure will achieve the necessary end of protecting the child. Hence, the principle of proportionality should ensure that pursuing a care order is a measure of last resort and it is unlikely to result in greater numbers of children being taken into care; rather it should help to establish a more uniform standard of care.

The object of the adoption clause is to address the position of children who have been in care under court order for a significant period of their lives. This wording, along with the underpinning legislation, will permit children to be adopted if it is in their best interests. For such children, where a return to their birth families is not an option, the possibility of adoption represents a second chance for a stable and secure family life.

Until 1988, only the children of unmarried parents who, by virtue of their parents' non-marital status, fell outside the scope of Articles 41 and 42 of the Constitution, could be legally adopted. The view was taken that the irrevocable nature of an adoption order was incompatible with the inalienable nature of the family's rights under Articles 41 and 42 of the Constitution. The 1988 Act dictates that adoption can occur only where the court is satisfied that there has been parental failure in their duty towards the child for physical or moral reasons for the previous 12 months, that the failure is likely to continue without interruption until the child reaches 18 years, and that the failure constitutes an abandonment of all constitutional rights on the part of the parents. The result is that, to date, the availability of adoption to children of marriage has been severely circumscribed. In some cases, children are taken into care at birth and raised by foster parents, with their birth parents contacting them or expressing an interest in contacting them only sporadically. Applications to adopt such children have failed based on the current interpretation of Article 42.5 because the best interests of the child cannot be considered since abandonment is not judged to constitute failure unless it continues without interruption until the child is 18.

The requirement that a failure constitutes abandonment creates the possibility that even in situations where a total failure of parental duty has been established, the requirement of abandonment might not be satisfied. The absence of a definition of abandonment has resulted in a situation in which there is a strong possibility that individual children will find themselves trapped in a legal limbo between intervention and adoption and in which the State will be able to remove them from their parents in the interests of their welfare, but are unable to have them adopted by another appropriate family.

The intention of this proposal is to allow the adoption of children where there has been a failure of duty for such a period as prescribed by law and where the best interests of the child so require. A legislative provision would have to be introduced to provide for a definition of the term "abandonment", and to provide a definition for the specified period of time.

This provision should not significantly alter the threshold for State intervention as outlined in Article 42.4. However, it does recalibrate the test for parental failure with regard to adoption. This provision will not result in more children entering State care. However, it will result in an increase in the number of children in long-term care being adopted. The Government will ensure that legislation on this issue will be published before any referendum, so that people will be clear about the scope and intent of the proposal, as recommended by the committee.

In coming to its conclusions, the committee forensically examined the proposals contained in the Twenty-eighth Amendment of the Constitution Bill 2007 and a range of other suggestions that emerged during its deliberations. Given the far-reaching and important nature of the proposals, the Government will have to give at least the same level of attention to a forensic parsing of the wording. It is the Government's responsibility to ensure that the wording does not have unintended and unwanted consequences. These proposals represent a sizeable change to the Constitution. They relate to eight sub-articles, some of which are restatements of existing provisions, but many introduce new concepts and new wording.

All of the comments made have been on child protection, yet the provisions proposed by the committee would deal with matters to do with education, juvenile justice, every aspect of health care, immigration policy and adoption. I understand the focus of the House on child protection and I share very much in the expressions of sorrow and regret about the tragedy that befell Daniel McAnaspie. I extend my regrets to his family and friends.

However, there is a much wider context and we must have that wider debate. While the committee considered all of these matters in some detail, it is quite different for an Oireachtas committee to consider a matter than for 15 Departments and the Office of the Attorney General to consider it. I believe we are much closer to having a referendum on children's rights than we have been at any time in the past 20 years. I stated that in the House three weeks ago and I repeat it today.

These proposals represent a sizeable change to the Constitution. The committee took legal advice and the Government will, of course, also have to consult with its legal advisers and will have to act based on that legal advice. Clearly, in a matter as important as the Constitution, the Government cannot simply accept the wording — the potential consequences have to be considered. The Government accords considerable importance to the consensus reached by the committee and will not set out to unpick the proposed wording. If any changes are made to the wording, it will be to avoid unwanted and unintended consequences or to ensure that the wording achieves its aim.

It is not a criticism but a statement of fact that the committee took two years and three months to reach its conclusions. The Government is not asking, nor suggesting, that such time is required to come to a conclusion. However, it is important to complete our work in a thorough fashion. The Government does not want to recommend amending the Constitution by way of a Bill that is flawed or may have unintended consequences. Deputy Howlin mentioned that I was a member of the committee. I contributed as much as I could to the committee but the wording was not finalised until towards the end of the committee's deliberations and due diligence requires that each Department which could be affected by the proposed wording gives it due consideration. When one considers that proposals have been coming forward since 1993, the time allowed since February is quite short.

Having urged caution, I am not suggesting that this be put on the long finger — far from it. When the report was brought to the Government in March, the Cabinet decided that in view of the complex nature of the issues involved, all Ministers and Departments should consider the report and examine the implications of the proposed wording for their individual areas of responsibility. Departments are also to consider what legislation would need to be put in place in advance of any referendum. The matter was therefore referred to the Cabinet sub-committee on social inclusion to carry out this work and report back to the Government. A senior officials group working to the Cabinet sub-committee on social inclusion has been reconvened to guide the interaction and co-ordinate the responses of all Departments. This group has met once, and will meet again before the end of the month. I spoke to the first meeting of this group and emphasised the importance of moving ahead quickly.

The Attorney General has also been considering the legal and constitutional ramifications of the report. His input will be critical in terms of deciding on future action. I can assure the House that I will continue to work to bring forward a new referendum Bill, which will be based on the consensus achieved by the committee, and to do so as soon as possible. The intention is that in early summer the report will be brought back to Government with an analysis of what needs to be done and how long it will take. As I have said, it took the committee more than two years to get to this point. Any proposed amendment to the Constitution must be done properly and given the particularly complex nature of the issues in this proposal, thorough consideration of all of the details is the least that one should expect of the Government before it can be put to the people.

I am pleased to be given the opportunity to speak on the extremely important issue of the constitutional referendum on children. The Government is committed to continuing to improve child welfare and protection in Ireland and sees a constitutional amendment as a key part of that improvement.

I emphasise that the provision of appropriate robust and responsive child welfare and protection services remains a key priority for the Government. Child welfare and protection services have come a long way, although there is still considerable progress to be made. There is a strong legislative and policy framework, which needs to be implemented in a co-ordinated way for the benefit of all vulnerable children. The Office of the Minister for Children and Youth Affairs has provided a cross-cutting structure that helps to promote a shared emphasis on improving children's lives in this country. I have no doubt that the Minister of State, Deputy Barry Andrews, will continue to ensure that the various agencies and Departments work together in a co-ordinated way to improve outcomes for children in Ireland.

Moving on to the referendum proposals, I congratulate the committee for its work. The fact that the committee recommended legislative solutions to two of the issues under consideration, namely, soft information and absolute and strict liability, was a very significant achievement, allowing us to deal with these difficult issues effectively. The Office of the Minister for Children and Youth Affairs and the Department of Justice, Equality and Law Reform are in the process of bringing forward legislation in respect of the first two reports of the committee, which dealt with these two issues. This legislation is being given priority by the Government.

With regard to the third and final report of the committee, the fact that the committee took eight months to produce its report, met on more than 62 occasions and received and dealt with 175 submissions gives some sense of the complexity of the issues being considered. I again express my admiration for the work done in this regard. Of particular importance, as the Minister of State, Deputy Barry Andrews, has already said, is the fact that the committee achieved cross-party consensus on such a complex range of issues. Many of the difficulties being addressed are contentious, which makes reaching consensus an even more impressive achievement of the committee.

The Minister of State, Deputy Barry Andrews, has dealt in some detail with the committee's proposals. I will refer to just some of the key points. The committee considered that the present constitutional framework in certain cases creates a difference in treatment between children of marital and non-marital families.

The committee was also concerned that where a family was found to be experiencing difficulties in the care and upbringing of their children there should be proportionate intervention by way of assistance and support; that only in cases where there is a genuine threat to a child's safety or welfare should the courts or the State be entitled to intervene; and that such intervention should be proportionate.

The committee considered that there should be specific rights attributed to children in the Constitution including the right to such protection and care as is necessary for his or her safety and welfare; the right to an education; and the right to have his or her voice heard in any judicial and administrative proceedings affecting the child having regard to his or her maturity.

With regard to adoption, the committee took the view that the proposals set out in the Twenty-eighth Amendment of the Constitution Bill were helpful. It voiced its concern that children who are currently in long-term foster care may be precluded from adoption by their foster family where it would be in the best interest of the child to be adopted.

The Minister for Health and Children, Deputy Mary Harney, presented a copy of the committee's third report to the Cabinet in March. Ministers were asked to consider the content of the report and revert with opinions and comments on the various recommendations. The Attorney General has been asked to examine the constitutional ramifications arising from the proposals contained in the report. There have been calls to commit immediately to a timeframe for a referendum. I remind all interested parties that the committee took over two years to get to its current position. The Government will need some time to consider the full import of the proposal before committing to any timeframe.

The Minister of State, Deputy Barry Andrews, referred to the issue of potential unintended consequences arising from the wording of the referendum proposal. The Government, in putting forward a referendum to the people, needs to be absolutely clear on what are the implications of the proposal. The committee examined the issues forensically and over time, and the Government will give the proposals equally thorough consideration.

Much work is still required before this referendum will be ready to present to the people. Elements of the referendum, for example, those related to adoption, require legislation to be drafted prior to the holding of a referendum and to be available well in advance in order that people can clearly understand the implications of the proposals. Other aspects of the proposed wording may also require draft legislation and the Attorney General will be advising in this regard. The issues are complex and it is the Government's intention to ensure that clear and intelligible information is provided to the public in a timely manner.

All of these elements of the staging of a referendum will require time and planning. Any amendment to the Constitution is a major endeavour. In this case, where the issues are so complex, it is essential that the Government take the time to get it right. Until it is clear what, if any, issues need to be addressed, it would be foolhardy and premature to announce a date for a referendum. The Government is taking this seriously and will not pick a date for the sake of it. When this referendum is brought to the people, it will have been properly considered and all the issues dealt with.

Does Deputy Shatter wish to share time?

Yes, I will be sharing my time with my colleagues, Deputy Olwyn Enright and Deputy Joe Carey.

Ten minutes, five minutes and five minutes.

We might be longer than that because everyone seems to have finished early. I think we have 30 minutes altogether so we will share our time appropriately. Perhaps the Ceann Comhairle will tell me when I have got to the ten minutes.

Is that agreed? Agreed.

I want to start off this debate, like other speakers, by extending my condolences to the family of Daniel McAnaspie. I met his family some weeks ago. They were terribly concerned about what had happened to him and dreadfully distressed about the manner in which they believed he had been failed and the family had been failed by the HSE. It is particularly sad and poignant that this motion is being taken this evening at a time when his remains have been found, essentially in a ditch on farmland in County Meath, and before he is buried.

I also think it is particularly inappropriate and obscene that in the Government amendment tabled tonight the Government congratulates itself on the manner in which it has essentially implemented our child care provisions. I quote from the Government amendment, which states that it "commends the Government for prioritising the promotion and protection of the welfare and the rights of children". I believe, in the context of everything we have learned following the publication of the reports into the tragic lives of Tracey Fay and David Foley and the large number of young people who have died in care about whom reports have not yet been published, the numbers of whom I now believe to be greater than the 23 numbered by the Minister some weeks ago in this House, that it is an obscenity that the Government felt the need to commend itself in this way.

Not only is it an obscenity, it is politically indefensible in the context not only of the tragic death of Daniel McAnaspie, but in the context of the damning report of the Ombudsman for Children which made two findings of maladministration or unsound administration against the Office of the Minister for Health and Children and nine such findings against the HSE with regard to the utter failure to ensure that the 1999 child protection guidelines be uniformly applied throughout the State. At the very least, I would have expected the Government and the Minister to have sufficient insight not to include that in their motion.

I do welcome the fact that we have this motion, in the sense that it yet again brings the need for a children's referendum before the House. I regret that it has been necessary for it to be tabled. Indeed, I would say that I expected, following the work we did in our all-party committee, that within a short period of time the Government would have named a date for the holding of the referendum for the simple reason that this committee was formed to facilitate an accommodation being reached between Government and Opposition parties. Both the Minister for Justice, Equality and Law Reform and the Minister for Health and Children, and their predecessors, were members of the committee so that they could liaise with Government, with Cabinet and with the Attorney General concerning the deliberations of the committee, the progress being made and the nature of agreements being reached.

Indeed, I can well recall the Minister of State, Deputy Andrews, coming back to the committee and it affording him extra time because, during the course of our deliberations on the form of constitutional amendment to propose, he was consulting with and obtaining advices from the Attorney General, so I take less than seriously what we are now being told about the complexities of it.

I want to say one other thing about the motion that is before the House for fear there is any misunderstanding outside the House. It may not generally be understood outside the House that the entitlement of parties in this House to propose motions rotates. Fine Gael has an entitlement to propose Private Members' motions. The Labour Party, on a separate occasion, proposes motions. On other occasions, the Labour Party and Sinn Féin join together to propose motions. Tonight happens to be one of those nights. I want to say, on behalf of Fine Gael, had we been invited to sign tonight's motion by the Labour Party and Sinn Féin, we would have done so. I regret the fact that we were not asked to do so. I am assuming that was simply an oversight by the coincidence of the rotation of these things, but we would have been very happy to sign the motion that is before the House. This motion has the full support of Fine Gael.

For many years I campaigned, both inside and outside this House, for a constitutional referendum in relation to children. I believe that the form of wording we now have which was proposed by the committee, in respect of which I burned the midnight oil many evenings to try to see could I contribute in a constructive manner, together with my Fine Gael colleagues, to bring about a form of wording on which we were all agreed, is the best possible wording. Not only have we achieved a political consensus, we have achieved a form of wording which reflects our obligations under the United Nations convention on the rights of the child and which extends to children far greater constitutional protection than they have at present.

It does something which we have not done appropriately yet in our Constitution. It recognises the primacy and the importance of the family and, indeed, of parents with regard to their children while recognising the importance, where families are in difficulties, of the State proportionately intervening within the family. In a constitutional sense, at the moment the State has two choices. One either stands aside and allows a child at risk essentially to remain at risk or take what I describe as a "nuclear option" and move to have a child taken into care. There are provisions within our child care legislation at present, for example, for the making of supervision orders, which in the constitution of the marital family may have some questionable constitutional content.

What this proposal does is seek to ensure that we protect the rights of parents while also protecting the best interest of children and ensuring that where children are at risk, there is a proportionate intervention permitted and allowed for and mandated by our fundamental constitutional law. I believe there is an urgent need to prioritise this reform.

I do not take seriously what the Minister of State, Deputy Barry Andrews, tells us about all of the deliberations that need to take place and the length of time that this is all going to take. I am a Member of this House who watched within a space of a short few months the Government managing to create and pass through this House the NAMA legislation — one of the most detailed, complex pieces of legislation I have ever seen in my parliamentary life. Legislation which has profound consequences in the financial area was given priority. No such priority is being afforded to the protection of children, despite all the scandals, the failings of the church and the failings of the State, as clearly documented over the past decade. I find it extraordinary that priority is not yet being extended. The Government pays lip service to the protection of children and the rights of children but fails to deliver when delivery is required.

I was most interested in listening to the Minister of State, Deputy Andrews and to the Minister of State, Deputy White, to whom I will revert in a moment, address us on the first and second interim reports. Deputy Andrews told us, misleadingly, that the Government is prioritising legislation on using soft information for vetting purposes. The first report of the Joint Oireachtas Committee on the Constitutional Amendment on Children published in September 2008 asked the Government, across party lines, to publish that legislation by December 2008. That legislation is not being prioritised.

It is not in the programme for Government for legislation to be published this side of the summer vacation, nor is it in the programme that guarantees legislation will be published the far side of the summer vacation. For those who understand the documents published by the Government Chief Whip, it is in part 3 of the legislative programme, namely, "Heads of the Bill not yet prepared". There is no question of it having priority. The same applies to the legislation——

I will interrupt Deputy Shatter for a moment. As he rightly pointed out at the beginning of his contribution we have six extra minutes. I suggest we come to an arrangement whereby he and Deputies Enright and Carey would take two minutes each.

You can keep me in line, a Cheann Comhairle.

In terms of dealing with issues of sexual offences and strict liability, on which Fine Gael disagreed with other members of the committee, we produced a proposal to reinstate the concept of strict liability to protect young people from sexual predators and sought constitutional change. The other members of the committee recommended some legislative reform which fell short of constitutional change. That report was published over a year ago. The legislation for that is not prioritised either in the Government's legislative programme. I have no idea why the Minister of State, Deputy Andrews pretends otherwise.

What is interesting, Sir, is that tonight we are having what is the second debate on the joint Oireachtas committee's report that recommends a referendum. We had the initial debate when the report was made before the House and various people spoke from all sides of the House. I noted in that debate not a single senior Cabinet Minister representing the Green Party, the Fianna Fáil Party or the now Independent, Deputy Harney, saw fit to contribute to that debate on children's rights and constitutional change. It is unprecedented that on a proposal for constitutional change that came from an all-party committee where consensus was achieved, not a single senior Cabinet Minister went on the record to say either they support the holding of a referendum in 2010 or they agree with the wording. Tonight, we have had a repeat of that with two Ministers of State speaking on behalf of the Government. The Minister of State, Deputy Andrews, delivered a similar set-piece speech to the one we heard previously.

I welcome the novelty of the Minister of State, Deputy White, contributing to the debate. I was very taken with her apparent understanding of the complexities of the issue. The reason I was taken with that is because the committee met on 62 occasions and Deputy Gogarty, who was a member of the committee, is by coincidence Chairman of the Oireachtas Joint Committee on Education and Skills, which is supposed to have some interest in children and children's rights. Deputy Gogarty managed to attend four out of the 62 meetings of the Oireachtas Joint Committee on the Constitutional Amendment on Children. He participated in not a single meeting that discussed in any detail or addressed the issue of constitutional change. On behalf of the Green Party he made no contribution of any nature whatsoever to the framing of the wording. I welcome the green shoot that has arrived in the Dáil Chamber this evening to explain the complexities of it all to us. I congratulate the Minister of State, Deputy White. She is the first elected Member of the Green Party to contribute at all to a debate on this proposal because——

I am very happy to do so.

——on the previous occasion when we addressed the issue there was not a Green Party Minister, neither a Minister of State nor a Minister, in the House. All we heard on the issue was the Minister for the Environment, Heritage and Local Government, Deputy Gormley, on the publication of the Murphy commission report, feeling the need to get his name in The Irish Times, announcing some sort of commitment to an inchoate, unspecified constitutional amendment on children’s rights. The Minister of State, Deputy White did not add any substance to our knowledge of where the Greens stand on the issue. At least the Minister of State, Deputy Andrews, contributed in the committee. I do not wish to be unfairly hard on him. He made a constructive contribution to the debate that took place in the committee, unlike any contribution that came from the Greens.

I am very conscious, Sir, that I have two colleagues who wish to contribute to the debate. I conclude by saying that I deeply regret that it seems that this House is tomorrow evening going to divide on this issue. I find it extraordinary that the Government cannot even commit itself to saying it will hold a children's rights referendum in 2010. Any consultative process that needs to be undertaken at governmental level could well be completed if we were told the referendum would happen at the end of October 2010. There is more than enough time. It only took from March of last year to September of last year for the NAMA legislation to be published and debated in this House. This issue has been teased out to a far greater extent in committee than that legislation ever was teased out.

I am not impressed, and I do not believe people outside this House are impressed, by the lip service being paid to this issue by the Government and to the damning report of the Ombudsman for Children, which replicated a report kept secret by the HSE. I suspect it was not fully brought to the attention of the Minister by PA Consulting in October 2009. It was commissioned by the HSE and it equally set out the dysfunctional nature of the child care and protection service.

We have a Government that talks about the issue. The Government should hang its head in shame. As children are dying under the care of the State, the Government is revaricating on the holding of a very basic referendum to extend constitutional protection to children and to change the ethos that would apply both within Departments and State agencies in taking the action necessary to provide to children the protection to which they are entitled.

I was struck by the point Deputy Shatter made about the emphasis there has been in this House on NAMA and on how we could bring forward such complex legislation so quickly. Understandably, there has been a huge concentration in this House in the past year and a half on economic matters. That is the climate we were in. However, we need to spend a lot more time looking not just at how we want the country to run economically but how we want the country to be and how we want society to behave. The biggest measure of any civil society is how we treat our most vulnerable and by any standard our children are the most vulnerable people in society. The Government is failing them by not holding the referendum.

I welcome the motion tabled by the Labour Party and Sinn Féin. It is simply seeking a date for a referendum. That is not a lot to ask. I appreciate that there is a level of complexity involved. I was a member of the committee. With Deputy Howlin, I was also a member of the previous committee that reported in 2007. Sometimes I am amused at how Government operates. The Minister of State, Deputy Andrews, was on the committee. His predecessor, the then Minister of State, Deputy Smith, was on the committee and his predecessor, the then Minister of State, Deputy Brian Lenihan, was on the previous committee. The then Minister for Justice, Equality and Law Reform, Michael McDowell, was on the previous committee and the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, sometimes attended the most recent committee. They were involved. They knew what was going on. Following meetings where it was decided complex areas would be discussed Fine Gael Party members met as a group, as did members of the Labour Party and Sinn Féin. I am not sure what the Green Party did but Fianna Fáil Party members met as a group. Discussions were held and parties formulated their positions prior to us arriving at our conclusion. The third report had all-party agreement. On several occasions, the Minister of State, Deputy Barry Andrews, went back to the Attorney General for clarification, which means the latter also knew what was going on. It is not as if a report suddenly landed on a desk in February without anyone's knowledge or that Departments are being asked to deal with a new issue. I am surprised that it was the Minister for Health and Children who presented a copy of the committee's report to the Cabinet in March because I would have assumed the Minister of State has more expertise from being on the committee.

This referendum is part of a process of reforming our law and enforcing the legislation that is already in place to protect children. As a member of the committee, I can understand to an extent the Minister of State's comment that the emphasis of tonight's debate is on child protection when many other issues are set out in the report. However, it is difficult for us to refrain from emphasising child protection when the system is so appalling and lets children down so badly. The other issues are also extremely important but do not call for the same degree of urgency.

The Government's approach, however, reveals a worrying lack of urgency. We respond to tragedies with debates but then there is silence until another tragedy occurs. Today's tragedy, unfortunately, involved Daniel McAnaspie. In three months' time there will be another sad case involving a child or young adult and we will have another discussion. When are we going to see action?

In his third report, the Government's rapporteur, Geoffrey Shannon, identified a number of significant problems. We still do not have independent oversight of child protection services, a system of inquiring into fundamental failings or consistent application of the Children First guidelines. Mr. Shannon also recommended a review of our current child protection system. Why is that work not being done?

We have spoken about a system that is bursting at the seams. The system is not working. A child was murdered today and another 20 died in care over the past decade. A HSE representative stated on radio this morning that 5,600 children are in care. Twenty out of 5,600 children is a significant proportion. How many are missing and why is a distinction being drawn between Irish children who go missing in State care and the other children who come into this country to be exploited? Are the latter regarded as less important?

When something happens, we call it a systemic failure as if it was a computer glitch or human error. A systemic failure means the system is broken and needs to be changed. I will outline an example of how parts of the system do not communicate with each other. A family in my area fostered an extremely troubled child and wanted to stick by him even though he became a danger to the family. His social worker did a lot to help, despite the lack of an out-of-hours service, but the child needed a place in a special school. The school would not take the child unless the National Educational Psychological Service would agree to provide the necessary services but the latter would not agree to provide the services unless he was placed in the school. He ended up back in full-time care at enormous cost to the State when he would have been better off in a family environment.

The Minister of State argued that it is unfair to accuse the Government of tardiness on vetting. Fine Gael first raised the issue of vetting in this House in 2003. The Government was toing and froing on whether we needed a referendum until committees were established to investigate the issue. It is far too late to be announcing legislation seven years later. Furthermore, as Deputy Shatter noted, this legislation continues to languish on section C of the legislative programme after being transferred between three Departments since 2003. The church has asked experts from the North, such as Mr. Elliott, to advise it. When will legislation in this area be published? Every day we wait, we put more children at risk.

Since the publication of the recommendations of the Joint Committee on the Constitutional Amendment on Children last February, it has become glaringly obvious that the Government is not prioritising the needs of our children. I commend the Labour Party and Sinn Féin on their attempt to move the process forward by bringing this motion to the floor of the House.

Far too often in this State, the best interests of our children have been ignored. Tragically for some Irish children, the State's reaction was far too little, too late with the result that young lives have been ended prematurely. It is clear from the manner in which it went about its work that the proposals from the Oireachtas committee have the potential to result in greater respect for children's rights in practice and in law. We signed up to the United Nations Convention on the Rights of the Child almost 20 years ago. This should have been the catalyst to bring Irish law and practice into line with the principles of children's rights. The issue of children's rights straddles many aspects of our daily lives in terms of our families and our education, welfare and justice systems.

I acknowledge in particular the work done to date on children's interaction with the justice system. It is progressive that the Children Act 2001 established an independent juvenile justice system under the stewardship of Ms Michelle Shannon. Excellent work has been carried out in this field over the past several years and the results are becoming clear. However, having committed to this system the Government must renew its commitment to the process.

A case management system is being piloted in Dublin's north inner city under Chief Superintendent Pat Leahy to deal with youth crime. An individual garda is assigned to co-ordinate all aspects of a young person's case. This system is child centred, effective and efficient and every effort should be made to roll it out nationally. I would not like to see an initiative such as this suffer from cutbacks. There is no doubt from the pilot results that the scheme offers children who are in conflict with the law a better chance of a positive outcome.

The fact that St. Patrick's Institution continues to hold juveniles as young as 16 as well as young men of 21 flies in the face of the UN convention and the best interests of children. I have no doubt this contributes to the recent statement by the retiring governor of Mountjoy, Mr. John Lonergan, regarding the research published in 2008 which illustrated that up to 72% of individuals in Mountjoy spent time in St. Patrick's during their youth. We need to break the link between children's detention and young men's detention. The provision of a new specific national child detention facility at Oberstown, near Lusk in County Dublin, is an initiative that must not be put on the long finger. It is all very well to have concept designs and detailed models but the replies to parliamentary questions I have submitted on the matter indicate that the timeline for delivery of the project has been extended. It started with a commitment that phase one would be completed by 2012, a deadline that now stands at mid-2013. I appeal to the Minister for Justice, Equality and Law Reform, as he prepares his submission to the Department of Finance on next year's budget, not to stall on this vital project.

I have made the point on many occasions that gangland criminals exploit our decision to raise progressively the age of criminal intent to 12 years. Children under this age cannot be prosecuted under law and there is evidence that criminal gangs are using this as a loophole. While we will have to deal with this issue through specific legislation, a constitutional amendment on children's rights will help.

Debate adjourned.