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.