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Dáil Éireann debate -
Tuesday, 28 Jun 2011

Vol. 736 No. 4

Private Members’ Business

An Bille um an Naoú Leasú is Fiche ar an mBunreacht (Uimh. 3) 2011: An Dara Céim

Twenty-Ninth Amendment of the Constitution (No. 3) Bill 2011: Second Stage

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

I wish to share time. I will take 20 minutes and each of my colleagues will have ten minutes.

This is a Bill to amend the Constitution to insert a new Article 42(A) which would make provision in the Constitution for any Irish child to have the opportunity of adoption in cases where it is appropriate and in the child's best interests.

I extend my best wishes to the new Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, and congratulate her on her appointment as Minister. It is a great honour and privilege to assume the office of Minister and to carry executive responsibility on behalf of the public in a ministerial capacity. I wish her success in her new role.

I commend the Government on promoting the ministry to a full Cabinet position. That is a positive development and builds on progress in recent years. I hope it will lead to priority, protection and services for the country's children to assure they get the best possible start in life, as befitting the capacity of our Republic.

For a number of years Fianna Fáil has advocated a constitutional amendment on the rights of the child. The two adoption provisions being presented in the Bill were first included in the Twenty-Eighth Amendment to the Constitution Bill 2007 which was introduced by our late colleague, former deputy leader of the party, and Minister, Brian Lenihan. I pay tribute to his Trojan work and pioneering efforts in promoting the enshrinement of children's rights in the Constitution.

The strong position accorded to the family in the Constitution, in conjunction with the fact there is no provision in the Constitution for children to be adopted has resulted in thousands of children spending their entire childhood years in foster care without the right to be adopted by their new family. The purpose of the Twenty-Ninth Amendment of the Constitution (No. 3) Bill is to ensure that the best interests of a child should be the primary consideration to be weighed against the rights of marital parents and the provisions of Article 42.5, thus allowing some children the opportunity of a stable and secure family life which is currently not available to them.

The amendment forms part of the new Article 42(A). The Bill states that:

Provision may be made by law for the adoption of a child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child, and where the best interests of the child so require.

Provision may be made by law for the voluntary placement for adoption, and the adoption, of any child.

Adoption is currently dealt with by law, and is not referred to in the Constitution. The 1952 Act was intended to deal with the adoption of children born outside marriage. However, over the years a number of situations emerged where it could be in the best interests of children of marriage to be adopted. Examples of these situations include children, one of whose natural parents has died, and the other parent marries again. The new parent has no rights in terms of giving agreement to treatment in illness, signing a passport or other applications, or signing forms of a day-to-day nature, for example, for school purposes. Another category relates to children who have been in long-term foster care. Some children go into foster care at a very young age and grow up as part of their foster family, in some cases using the name of the foster family. There is no possibility of their return to the birth family, but they cannot become a legal part of their new family. Another category relates to where parents have failed to care for a child and they have been in the care of the State for a substantial period. A further category relates to children whose parent has a long-term illness or disability where the parent wishes the child to be placed for adoption. An additional category concerns children who have been placed for adoption but whose parents subsequently marry.

In view of the above types of case, the Adoption Act 1988, provided for the adoption of children including children of marriage. However, the Bill was referred to the Supreme Court by the President, in light of the place of the marital family in the Constitution. The Supreme Court found that the Bill was constitutional but set out very limited circumstances in which children of marriage could be adopted, including that it must be proved that the failure of duty by marital parents is likely to extend until the child is 18 and must amount to complete abandonment. Minimal contact from parents has been interpreted as showing that this has not taken place which makes it almost impossible for a child with married parents to be adopted.

The amendment to the Constitution would empower the Oireachtas to introduce legislation to allow for the adoption of children in long-term care if it is in their best interests. Before a referendum is put to the people a White Paper or legislation will be required. The Department must outline what exactly will be introduced should the referendum pass. It will be necessary to set out what the exact requirements will be and what threshold will have to be met before it is possible for a child in foster care to be adopted. Currently, in Britain the waiting period is one year, which is very short. Fianna Fáil suggests a period of five years before a child can go for adoption after being placed into care. I urge the Minister to prepare a Bill to cater for the possibility of adoption for children in care between now and the presidential election in October or November. There is adequate time for that to happen because this is the first of the referenda Bills which the Government plans to present to the electorate during the presidential election. By taking the Bill now there will be time for the Minister to bring forward a White Paper or legislation on the issue. Preparatory work was done by the previous Minister for children, former Deputy Barry Andrews. I have no doubt the Minister will be able to progress the issue.

The Bill affirms the right of all children to be adopted regardless of the marital status of their parents but, most importantly, it does so without interfering with the primacy of the family under the Constitution. At present, there are more than 6,000 children in care, 5,500 of whom are in foster care, which is approximately 90%, and one third of those children are in long-term foster care. In some cases, children are taken into care at birth and raised by foster parents and may only have sporadic contact with their parents. The possibility of adoption would represent a chance for a stable and secure family life, which is something every child deserves.

As the Chief Justice, Mr John Murray, outlined in his introduction to "Child Law — 2nd Edition" by Geoffrey Shannon, "Adoption into a family, where circumstances so warrant, has always been considered superior to other options such as care in State institutions". The fact that one third of children in foster care are in long-term care is way out of kilter with the situation in other countries. That statistic indicates the problem that exists for children moving from foster care into adoptive care. Given the high threshold that is required to be met in order for an adoption to proceed, children are opting to seek adoption when they are 17 years of age, just short of their 18th birthday, in order to get the rights afforded to them by adoption. The reason there are so many cases in that category is because it is nearly impossible for them to meet the criteria any younger than that.

This referendum Bill is very much needed. The reason we are taking the step of introducing a referendum Bill is in part due to the U-turn by the new Government on its commitment to run the proposed children's rights referendum at the same time as the presidential election. As recently as early February, just three weeks before election day, the new Taoiseach, Deputy Enda Kenny, promised to hold the children's rights referendum on the same day as the presidential election. However, he and the new Minister, Deputy Frances Fitzgerald, have now abandoned this promise, saying there will be no referendum until some time next year. The Government's position is that it now wishes to spend further time examining the wording for a referendum on children.

Fianna Fáil has supported, and continues to support, the need for a wider referendum to enshrine children's rights in the Constitution. However, the Government's delaying on this and its breach of election promises is not acceptable. Measures to improve the rights of children are not a political football that can be bounced in order to win votes during an election campaign only to be dropped as soon as a party gains power.

This referendum Bill deals only with the adoption aspects of the proposed children's rights referendum, on which there is widespread consensus. It is our position that hundreds of children cannot be asked to continue in foster care without the right to be adopted into families that are ready, willing and anxious to provide them with the loving and supportive environment they deserve. It is simply not acceptable that those children and families who are waiting for this change are forced to wait another year or longer because the Government has backed away from its election pledge. Both the new Taoiseach and the Minister, Deputy Frances Fitzgerald, have said that the children's referendum is a complex matter. Of that there is little doubt. One needs only to think about the abortion referendums of the early 1980s to see the problems that arise when amendments to the Constitution are not fully thought through and are poorly worded. All of this shows that the position of Fine Gael and the Labour Party in Opposition was purely political. On the very day that the Joint Committee on the Constitutional Amendment on Children issued its third and final report, the current Minister for Justice and Equality, Deputy Shatter, demanded that the then Government name a date for the referendum. This was before the Cabinet had even received a copy of the report, let alone had time to consider the proposed wording.

Since taking office, the current Taoiseach and Minister have placed great store in the advice of the Attorney General, as they are duty-bound to do. To do otherwise would be highly irresponsible. However, practically every day on the Order of Business in the last Dáil, the current Taoiseach and Tánaiste berated the last Government for its failure to name a date for the referendum. Little credence was given to replies that the Attorney General had to consider the wording, as did the various Departments. According to the current Taoiseach, Tánaiste and Minister for Justice and Equality, there was across-the-board political consensus on the wording proposed by the joint committee, and hence no need to consult with anyone; all that needed to be done was to name a date for a referendum. It was stated that every day the Government procrastinated, the children of the country were being denied their inalienable rights.

The former Government took the steps necessary to ensure that the wording to be put to the people would not give rise to consequences that were not envisaged by the joint committee. Various concerns were identified, such as the prospect of impinging on immigration policy and the issue of legal representation in administrative proceedings concerning children. Although I was not a member of the joint committee, I do not believe it was its intent to introduce a range of socio-economic rights into the Constitution.

The wording approved by the last Government was shared with Fine Gael, the Labour Party and Sinn Féin as well as the Ombudsman for Children and NGOs dealing with children. The former Minister of State with responsibility for children and youth affairs, Barry Andrews, proposed to hold the referendum on the day of the general election. As we know, the general election was called sooner than anticipated and that jettisoned any prospect of holding the referendum on the same day. Many inside and some outside the House suggested that the original timeframe was too tight and that the ideal time to hold the referendum was on the day of the presidential election. Little did anyone expect that the issue would be pushed out to 2012, at the earliest, by the new Government.

The new Minister said only last Thursday that she wishes to revert to the wording proposed by the joint committee. Although she has all the legal advice from the last Attorney General at her disposal, she wishes to discount it. I ask whether she has yet sought a view from the new Attorney General as to whether she concurs with her predecessor. Has she expressed any view on the matter? The House is entitled to know where it stands, well after the Government's first 100 days in office. Although I think it highly unlikely, should the Attorney General express the view that the wording proposed by the joint committee should be contained in a new referendum Bill, we as a party would be willing to consider such a proposal. The consensus built in the joint committee was hard-won and should not be dispensed with lightly. However, I cannot but think that the wording that is eventually proposed some time next year, to use the Minister's own words, will not greatly differ from the proposal that was put on the table by the then Minister of State last January.

It is the Government's right and prerogative to review all versions of the wording. I would expect nothing else. However, we are entitled to ask about the timeline and the process by which the Minister will examine the wording. Does she propose to share any new thinking with the Oireachtas?

Some may legitimately ask why we are proposing to put the adoption provisions contained in all previous forms of the wording in a separate referendum. The answer is straightforward. It is not fair to ask the thousand children who are currently in long-term foster care and do not have the option of proceeding to adoption with a new family to wait. There is absolute political consensus on the wording of the two adoption provisions. The matter took up relatively little time in the joint committee and there has been no straying from the original wording proposed by the late Brian Lenihan in 2007.

There is no doubt that the eventual children's rights referendum will be hard-fought, and despite cross-party agreement and support, there is no guarantee it will be passed by the people. Should a proposal be put to the people only to be rejected, all of the Bill will fall, including the adoption provisions. In that event, the children I have spoken about tonight, the children in long-term foster care who cannot be adopted, and possibly the next generation of children in care, will not be eligible for adoption. One thing is sure: if a children's referendum is defeated, it will be a long time before the matter will be revisited, regardless of the shape of future Governments. That is reason enough to seriously consider running this referendum on the same day as the presidential election. This is a Bill that is much needed and it makes eminent sense to run the referendum alongside the upcoming presidential election.

Fianna Fáil continues to support the need for a wider referendum to enshrine children's rights in the Constitution. We will work with the Minister and other parties on that. However, the issue of adoption rights is not contentious and enjoys widespread support. My question to the Government is this: why would we make a single child in need of a loving home wait another year, if not more? This anomaly can be fixed now. Our Bill can be accepted tonight without compromise of principle on anyone's behalf.

Tonight, the Dáil can send a strong and clear message to these children and the families that want to provide them with a supportive home. Some issues are too important to delay upon, and this is one of them. I commend the Bill to the House.

I commend my party colleague Deputy McConalogue on presenting this Bill to the House, as it affords us the opportunity to highlight the importance of adoption and the continuing need to make progress on the wider issue of children's rights. Last year, adoption was very much to the forefront in respect of the concerns of prospective parents wishing to adopt from Vietnam. I had many discussions with the then Minister responsible, Barry Andrews, because a significant number of families in Wexford were affected by the suspension of inter-country adoptions from Vietnam. This Bill focuses primarily on Irish children, many of whom are in long-term foster care. While the two avenues of adoption are distinct, there are inherent linkages.

Ireland has one of the highest rates of inter-country adoption in Europe. With our troubled history of sending children abroad for adoption in the 1950s and 1960s, it seems odd that prospective Irish adoptive parents now look to abroad to adopt. In many cases, they do so because there are so few Irish children available for domestic adoption. This in itself is a good development because Irish parents are now caring for their children rather than placing them for adoption. In the past, the stigma attached to unwanted pregnancies meant that children were born in secret and placed for adoption in very distressing circumstances. Only this week, the HSE crisis pregnancy programme, formerly the Crisis Pregnancy Agency, claimed one third of pregnancies were crisis pregnancies. Thankfully, few of these babies will end up being placed for adoption.

There is a cohort of Irish children, however, who would be eligible for adoption in other jurisdictions. Those are children in long-term foster care who, because of the legislative and constitutional threshold, cannot enjoy the security of a second family. Due to the constitutional position of the family, it is nigh impossible for children of married parents to be placed for adoption, regardless of obvious failings in their duty of care for the child. At a Legal Aid Board conference in Dublin last week, a leading expert in infant mental health, Mr. Robin Balbernie, clinical head of infant mental health services in Britain, stated vulnerable children should be taken into care in the first six months of life if the best outcome is to be achieved. Neglect of infants rather than physical abuse, he claimed, was more likely to lead them to be dysfunctional and violent adults. In Ireland, however, when these children are taken into care, they are often denied the opportunity to be adopted. Instead, they may face a childhood of long-term foster care.

Ireland is unique in this regard. In other jurisdictions, children do not spend years in long-term foster care. In the UK, for example, children are eligible for adoption after they have spent 12 months in care. Many believe this is too short a time. We suggest children should be placed with a foster family for five years before they could be considered eligible for adoption. A bizarre situation currently exists in which some children are only being placed for adoption at the age of 17 or 17 and a half years. Children should not have to spend 17 years in care or wait until six months before they reach 18 before an application for adoption is made. The reason behind this is that both birth parents must fail in their duty to the child until the child reaches the age of 18. For some, the only way this test can be passed is to make the application on the verge of the 18th birthday. Some foster parents will adopt the child, even at this late stage, to confer inheritance and other rights on the child. In some cases, it is so the child can use the foster parents' surname for the rest of their lives. This Bill provides that these children can be adopted as children, not as young people on the verge of adulthood.

Fianna Fáil has brought forward this Private Members' Bill to run a constitutional referendum on adoption alongside the forthcoming presidential election. The Bill will allow for the adoption of hundreds of children currently in long-term care and who cannot be adopted because of rules arising from the current position of the family in the Constitution. Fianna Fáil has taken the step of introducing this referendum Bill in response to the U-turn by the new Government on its commitment to run the proposed children's rights referendum alongside the presidential election. Will the Minister indicate when the Government intends to have this referendum? This Fianna Fáil Bill could be accepted by the Government without any compromise of any party's principles.

The Twenty-Ninth Amendment of the Constitution (No. 3) Bill 2011 deals with the adoption of children in cases of parental failure and adoption of children of marriage. The purpose of the amendment is to ensure the best interests of a child should be the primary consideration to be weighed against the rights of marital parents and the provisions of Article 42.5, thus allowing some children the opportunity of a stable and secure family life, currently not available to them. It states:

Provision may be made by law for the adoption of a child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child, and where the best interests of the child so require. Provision may also be made by law for the voluntary placement for adoption, and the adoption, of any child.

Adoption is dealt with by law and not referred to in the Constitution. The 1952 Adoption Act was intended to deal with adoption of children born outside marriage. Several situations have emerged over the years where it could be in the best interests of children of marriage to be adopted. This amendment to the Constitution will empower the Oireachtas to bring in legislation to allow for the adoption of children in long-term care if it is in the child's best interests. It affirms the right of all children to be adopted regardless of the marital status of their parents. Most importantly, it does so without interfering with the primacy of the family under the Constitution.

As Deputy Charlie McConalogue pointed out earlier, more than 6,000 children are in care, 5,500 of whom are in foster care and one third in long-term foster care. In some cases, children are taken into care at birth, raised by foster parents and may only have sporadic contact from their parents. The possibility of adoption would represent a chance for a stable and secure family life, something that every child deserves. The Chief Justice, Mr. Justice John Murray, has stated, "Adoption into a family, where circumstances so warrant, has always been considered superior to other options such as care in State institutions." This Bill has been brought forward because the Government parties have reneged on the commitments made in Opposition to proceed immediately with a referendum on children's rights if elected to office.

In January 2010 when negotiations with Vietnam on a new bilateral agreement were suspended in light of various concerns raised by international reports, the then Opposition parties called for a resumption of adoptions with Vietnam. It was always intended that adoptions would resume with Vietnam once both countries had ratified the Hague Convention. Ireland has done so by way of the Adoption Act 2010. Vietnam is expected to do so later this year.

A delegation from the Adoption Authority recently visited Vietnam and submitted a report to the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, on progress being made there. She, however, still has not briefed the House on the contents of that report, although she outlined some of its facts on "Today with Pat Kenny" recently. Will she give a more up-to-date outline of the report to the House?

I know several families in County Wexford who were hoping to adopt Vietnamese children because they saw how successful other Vietnamese adoptions were. Many of these adopted Vietnamese children have adapted well to their new homes in Wexford, even playing football and hurling locally. They may even improve the quality of Wexford hurling in the future. We must encourage the Vietnamese authorities to sign up to the Hague Convention as soon as possible.

I accept this is a complicated matter when considered in the overall issue of the children's referendum. When introducing constitutional referenda, we must ensure there are no unintended consequences. There was the famous case of the so-called abortion referendum — the right to life referendum — which led to unforeseen consequences. There was also a need for a follow-up referendum in respect of the Good Friday Agreement because what appeared to be a quite normal and amiable form of words gave rise to unforeseen difficulties.

When we were in government, we considered the issue of children's rights. Everyone wants to vindicate those rights. We examined the wording put forward by the Joint Committee on the Constitutional Amendment on Children. The then Attorney General, Mr. Paul Gallagher, was concerned about the possible effects this wording might have and that it might give rise to unintended consequences. This is a complicated matter and I am of the view that the Government should take time to consider the wider children's rights issue. If it is not disposed to accept the wording drawn up by the previous Attorney General, and if it is determined to adopt the original wording put forward, it should give careful consideration to whether the difficulties Mr. Gallagher identified in respect of the latter wording might come to pass. We should move forward in a steady manner and the matter to which I refer should be examined carefully on a stand-alone basis.

The position with regard to adoption is clear. It is not for me to state that their lordships in the Supreme Court got it wrong. When I read the Irish version of the Constitution, however, I find it difficult to understand how they ever reached the conclusion that it is only in extremely limited circumstances that the children of a marriage might be adopted. The Irish version of the Constitution refers to "do chearta nádúrtha dochloíte an linbh". In the English version this is translated as "the natural and imprescriptible rights of the child". Use of the term "dochloíte" means that these are rights which cannot be taken away. In my humble opinion this indicates that the child must always come first.

It is difficult to see how what is stated in the Constitution was perceived as being a vindication of the institution of marriage, which is a broad and sweeping concept. The premise is that marriage cannot be abolished and that the institution must be supported because of the nature of its effect on society. When the great jump is then made to a position where if a child's welfare is placed against the institution of marriage — particularly in the context of the exceptional cases to which the Constitution refers — I cannot understand how the 1988 legislation was ruled to be too generous in respect of this matter and that it was necessary to adopt a very confined interpretation.

I have always believed the Constitution to be a document written not only for lawyers but also for ordinary people. In other words, it is meant to be capable of being understood by the latter. It is strange, therefore, that under the interpretation handed down by the Supreme Court in respect of the Constitution — and regardless of how difficult or exceptional might be the circumstances involved — it is practically impossible to adopt children from a marital situation. I cannot understand how this can be reconciled with the "chearta nádúrtha dochloíte an linbh" or "natural and imprescriptible rights of the child" to which the Constitution refers. My attitude is that if this is the nature of the Supreme Court's ruling, then so be it. However, I do not believe that is what was envisioned by the ordinary people when they voted in favour of the Constitution. The simple answer is, therefore, that we should put matters right. There is a good argument to the effect that it should never have taken us this long to address this issue and that it should now be dealt with forthwith.

Not incorporating all the changes to the Constitution in one article gives rise to certain advantages. If, for example, arguments and difficulties arose in respect of the second proposed wording, not all would be lost if a particular question were rejected by the people. In other words, if one all-encompassing question were put in a referendum, there is a danger that everything would be lost. It makes sense, therefore, to move forward with this non-contentious item of legislation and put it before the people. I will be interested in hearing what the Minister has to say but I believe that, on a stand-alone basis, she will probably find no fault with the Bill.

Given that a referendum commission must be established and that it is not possible to run a referendum overnight — it is proper that there should be a good lead-in period to referenda — I ask the Government to reconsider whether it should accept the proposal contained in the Bill. I have no doubt that there would be all-party agreement in that regard. The Government could then return to tease out the more complex issues with which it is trying to deal. In light of the fact that this is a complex matter, I have no doubt that if it engages in such a process the Government will be presented with ample wordings and plenty of arguments from various lawyers. In such circumstances, the Minister's head will be "done in" as she tries to consider whether every angle has been examined in the context of the consequences to which a change to the Constitution might give rise.

The then Attorney General was of the opinion that the 1988 legislation was constitutional but the Supreme Court adopted a different view. That shows how it is possible for unintended consequences to arise. Even eminent lawyers can different on particular matters. In 1988 the then Attorney General must have been satisfied that the relevant legislation was constitutional.

We tend to discuss undoing the past a great deal. To a certain extent we can try to ameliorate the damage that was done but we cannot undo the past. On each occasion a debate on that matter is begun, I always ask the question "What about the present?" We can do something about what is happening today and what will happen tomorrow. We can cater for the interests of children now rather than in 20 or 30 years asking why we did not take action in order to give children in long-term foster care the type of stable homes they require. Is it not much better to do something rather than in the future being asked why one did not act? It is good to break large problems down into their constituent parts. If there is a part which might be easily tackled and which is stand alone in nature, I cannot understand why we cannot just proceed to tackle it. We could then tease out the more complex and difficult parts and take action once consideration has been given to every eventuality.

The other issue relating to children should be dealt with. There is a massive debate taking place about how far the Government might resile from the previous Attorney General's proposal to the proposal put forward by the joint committee, the point at which any wording should be included in the Constitution, whether the rights to be granted should be justiciable, etc. I am aware that, regardless of how quickly one might wish to proceed, careful consideration is required in respect of this matter.

Ba mhaith liom moladh a thabhairt do mo chomhghleacaí, an Teachta McConalogue, as ucht an mBille seo a thabhairt os comhair an Tí. Tá súil agam go smaoineoidh an Rialtas ar seo thar oíche agus go bhfeicfidh sé nach ceist pháirtí í ar chor ar bith. Is ceist í go bhféadfadh muid ar fad a aontú agus a rá, sa pholataíocht nua ar a bhfuil muid ar fad ag caint, go ndearna muid é seo sa bhliain 2011 agus go ndearna muid an t-athrú seo chun feabhais ghasúr óga na tíre seo. D'fhéadfaimis a rá go bhfuil muid ag déanamh saoil níos fearr agus níos foirfe dóibh agus go bhfuil muid ag déanamh cinnte go bhfuil cearta dochlóite an ghasúir tugtha chun cinn againn agus go bhfuil na cearta sin á chosaint againn agus go bhfuil brí dá thabhairt don Bhunreacht a mbeidh chuile duine sa sochaí ar a shon. Mar sin, tá súil agam, nuair a dhéanfaidh an tAire a macnamh ar an Bhille anocht, go bhfeicfidh sí nach bhfuil muid ag imirt polaitíochta leis seo — cinnte, níl mise.

Táim ag impí ar an Aire glacadh leis an Bhille mar is ar son ghasúr na tíre é. Ba cheart glacadh leis agus dul ar aghaidh leis. Nuair a bheidh an tAire réidh leis an chuid eile den obair atá le déanamh aici ar son páistí na tíre seo, ba cheart sin a dhéanamh in am tráth agus focail eile agus leasaithe eile a chur os ár gcomhair le déileáil leis an obair sin. Ach idir an dá linn, ní cheist chonspóideach í uchtú gasúr. Ní dóigh liom go bhfuil éinne in aghaidh gasúir a uchtú. Mholfainn don Aire agus iarraim uirthi glacadh leis an leasú bunreachta seo.

Molaim leasú Uimh. 1:

Go scriosfar na focail go léir i ndiaidh "Go" agus go gcuirfear an méid seo a leanas ina n-ionad:

"ndéanann Dáil Éireann

Tacú leis go bhfuil gá le leasú ar an mBunreacht maidir le leanaí a mbeidh bonn leathan faoi agus, de réir an ghealltanais a tugadh i gclár Rialtais 2011, go mbeidh an fhoclaíocht ar aon dul leis an bhfoclaíocht a mhol an Coiste Uile-Pháirtí Oireachtais,

Tacaíocht a thabhairt do na bearta atá déanta ag an Rialtas reatha chun dlús a chur leis an bpróiseas leasú ar an mBunreacht maidir le leanaí a thabhairt isteach,

Ag glacadh leis go bhfuil an Roinn Leanaí agus Gnóthaí Óige, i gcomhar le hOifig an Ard-Aighne, ag forbairt moltaí faoi láthair i ndáil le dréacht-fhoclaíocht do leasú ar an mBunreacht a chuirfidh leis na moltaí ón gComhchoiste um an Leasú Bunreachta maidir le Leanaí,

a bheartú go measfar an Bille um an Naoú Leasú is Fiche ar an mBunreacht (Uimh. 3), 2011 a bheith léite an Dara hUair sé mhí ó inniu.".

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann

Supports the need for a broad based amendment to the Constitution in relation to children and that, in accordance with the commitment given in the programme for Government 2011, the wording will be along the lines of that proposed by the all-party Oireachtas committee,

Endorses the actions taken by the current Government to progress the introduction of the amendment to the Constitution on children,

Accepting that the Department of Children and Youth Affairs is currently, in co-operation with the Office of the Attorney General, developing proposals for draft wording of an amendment to the Constitution which will build on the Joint Committee on the Constitutional Amendment on Children proposals,

resolves that the Twenty-Ninth Amendment of the Constitution (No. 3) Bill 2011 be deemed to be read a Second Time this day six months.".

I welcome the opportunity this Private Members' motion gives us to focus on this issue. I wish to comment on the sensitivity and concern that has been shown by the speakers who have already spoken on the motion regarding the position of those children in foster care who cannot be adopted. This is an issue that has been little understood over the years and I am delighted to see it get the kind of focus it is getting in this debate, because it raises serious issues about the care of children. As Deputy Ó Cuív said, for a long time — for 14 years of Fianna Fáil Government — the Government failed to enact the kind of protection in legislation and amendment to the Constitution that was needed to copperfasten children's rights.

As Members are aware, the Department of Children and Youth Affairs was formally established earlier this month. The decision of the Taoiseach and the Government to establish a new full Ministry and Department of Children and Youth Affairs marks, I believe, a very important value statement about the position of children in our society. Some commentators have asked why Ireland needs a Department such as this. With 1.1 million children and young people aged under 18 in Ireland, the real question is why it has taken so long to establish a Department with the commitment to support, safeguard and cherish our nation's children and their quality-of-life and opportunities. Our children are our future and remain our country's greatest asset. I see the Department also as very much an economic Department, because the future of our economy is dependent on the access to opportunities in education and health of our children. Our economy will be hugely determined by how our young people experience life.

I wish to take this opportunity to congratulate Deputy Charlie McConalogue not only on his election, but also his appointment as party spokesman on children. I look forward to his constructive engagement and that of my Opposition colleagues as I progress my Department's agenda to enhance the outcomes for all our nation's children and young people. I also wish to acknowledge the work done by Deputy Ó Caoláin and his party during the period when the various committees were considering the issues of children's rights. They played a strong role on the committee.

As part of my Department's ambitious work programme, I confirm and reaffirm the Government's absolute commitment, as provided for in the programme for Government, to bring before the people a proposed amendment of the Constitution to strengthen the protection of the rights of children, along the lines recommended by the all-party Oireachtas committee. The current Bill, brought before the House tonight by Fianna Fáil, limits itself to the adoption issues alone. We have heard some comment already as to whether we can have stand alone amendments such as this. They raise serious questions. Deputy Ó Cuív spoke about unintended consequences which can arise when one proposes amendments to the Constitution. I fear that tonight's proposal falls into that category because it does not attempt to raise the broader and vitally-important matters which were the subject of both the 2007 Bill and the proposed wording prepared by the Joint Committee on the Constitutional Amendment on Children.

Parent-child relationships, with their deeply-woven balance of needs, rights and responsibilities, can be most complex, even within a stable and secure family setting. This is even more so in the case of families in crisis and children at risk. How the State, through it laws and interventions, both at service and court level, interfaces with the diverse experiences of families and children requires the utmost sensitivity and an appreciation that change in one area can often cause or require change in others. Our Constitution strikes a balance between personal rights, the status of the family, the rights and duties of parents and the power of the State as guardian of the common good.

My aim is simple. It is to bring forward a holistic and joined-up response to the long-identified need to strengthen our Constitution, copperfasten children's rights and safeguard our children's well-being, while at same time supporting families. I do not see the reasoning behind bringing forward such a limited approach on just two of the sub-sections of the joint committee's much more comprehensive proposal. I am not interested in any piecemeal approach to amending the Constitution on this matter. I believe the way forward and where we should focus our attention is on the development of a composite amendment on children's rights, which will include provisions with regard to adoption. The principles of the Deputy's Bill will be incorporated in that work. It is for that reason I do not wish to reject the Deputy's motion at this stage, but rather to amalgamate the commonly shared principles into the broader amendment on children's rights, as was done by the Oireachtas committee of which the Fianna Fáil Party was a member. The road to constitutional reform of any type can be protracted and cautious by nature. This is appropriate given the need to ensure that the Constitution, the cornerstone and basic law of the State, reflects the needs, culture and ethos of the people.

Before considering the proposal in detail, I would like to provide the background to the referendum on children's rights. The suggestion of constitutional change in regard to children was first voiced by Mrs. Justice Catherine McGuinness, almost 20 years ago, in her capacity as chairwoman of the Kilkenny incest inquiry. Subsequently, the Constitution review group, in its 1996 report, recommended that the Constitution be amended to include the welfare principle and to provide an express guarantee of certain other rights for children, deriving from the United Nations Convention on the Rights of the Child. In 1998, the UN Committee on the Rights of the Child, examining Ireland's first report on the implementation of the convention, found that Ireland's welfare practices and policies did not adequately reflect the child rights-based approach enshrined in the convention and recommended in favour of the accelerated enactment of the Constitution review group's recommended reforms.

Between 1997 and 2002, family rights and related issues were 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. Following that recommendation, the late Minister of State with responsibility for children, Mr. Brian Lenihan, to whose work I pay tribute, undertook a 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. The Joint Committee on the Constitutional Amendment on Children reviewed the Twenty-Eighth Amendment to the Constitution Bill and recommended an alternative wording for an amendment to the Constitution.

The third and final report of the joint committee, published in 2010, deals with the rights of children under the Constitution and the statute and case law concerning adoption, guardianship, care proceedings, custody and access to children. The committee's final report came after five extensions to its time schedule, due to the extremely complex matters under consideration. As the House will know, I, along with Deputy Ó Caoláin, served as a member of the joint committee. The committee's work was positive and focused on the need, where possible, to deliver and develop political consensus. For the main part that positive approach that led to the development of political consensus. I, in common with my ministerial predecessors, place a high value on the consensus outcome that was achieved and will work in the same vein to ensure effective outcomes for Irish children. I hope the introduction of the Bill does not mark or lead to a fragmentation of that all-important consensus. In developing its report, the committee faced a challenge to balance the rights of families, children and marital and non-marital parents.

The committee's report, which is very detailed, carefully and thoroughly examines the proposals contained in the Twenty-Eighth Amendment of the Constitution Bill. As an alternative to the wording contained in that Bill, the joint committee's 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 entitled "Education" as "Children".

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. 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 a primary consideration in a range of areas affecting children.

The proposals in Article 42.2 would require the State to recognise and vindicate the rights of all children as individuals, as opposed to as children within the family. It also proposes that a child's voice be heard in any matter affecting the child, with due regard for the age of the child in accordance with the United Nations Convention on the Rights of the Child.

The proposed Article 42.4 deals with what is for many people the most complex 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. It should be emphasised, however, that neither the 2007 Bill nor the committee's proposal is 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. I hope that, through new constitutional provisions, we can better protect children through supporting the family.

However, in amending the Constitution, I want to ensure the State's child and family services have the power to intervene to support families in crisis at an earlier stage and make the sorts of decisions Deputies referred to in the best interests of the child. I refer to children in foster care, for example, who could be adopted. We need to safeguard the well-being of children and ultimately support the family with the aim of keeping children from being taken into State care wherever possible. Under this proposal, the removal of children from their family home will continue to be a last resort.

On the proposals relating to adoption, I acknowledge the work of the joint committee in considering this matter in the widest possible context and in the context of legislation. Unfortunately, as I have stated, the Deputy's Bill, which is published in isolation, represents a limited approach involving two of the subsections of the joint committee's wording and does not achieve the Government's objective of strengthening children's rights in the Constitution. Furthermore, the proposal is phrased in a discretionary and permissive manner. It provides that laws may be enacted in accordance with the terms therein.

As the Deputy is aware, there is a body of work to be done in preparing proposals to be published in conjunction with the Bill to amend the Constitution in respect of adoption, to clarify the Government's intended approach to the operation of this provision. The Deputy has not published any such proposal, nor has he given an indication of the parameters within which his proposal would apply. The Government would like to ensure that draft adoption proposals are published before any referendum so the people will be clear about the circumstances in which this would apply and where the best interests of the child would be served by it. It is critical that people understand what they are voting for.

Article 42.5 of the Constitution sets out the threshold for State intervention in family life on behalf of a child, where in exceptional circumstances the State may supply the position of parents. Until 1988, only the children of unmarried parents 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 Adoption Act 2010 prescribes that adoption can only occur where the court is satisfied there has been parental failure in the parents' 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, with the result that many children in care are deprived of a second chance for a stable and secure family life.

I appreciate that the proposal in the Bill before us appears to be formulated to allow the adoption of children where there has been a failure for such a period as prescribed by law of parents in their responsibility towards their child and where the best interests of the child so require. However, the Deputy has not indicated the supporting proposals prescribing the period for which failure of parental responsibility must occur. Would it be for a period of three, five or seven years? This uncertainty would be most unwelcome. As I stated, it is for this reason that the Bill needs to be accompanied by a supporting position paper to clarify these issues for the people.

The proposal, as published in the Bill, fails to provide a coherent philosophy of children's rights. It is unfortunately flawed in that it does not clarify the central question of how the rights of children and parents ought to be reconciled in cases where they come into some degree of conflict. If the proposed articles were passed, the courts would have to decide these issues on the basis of conflicting constitutional criteria.

With regard to the specific issue of adoption and in the absence of legislation, the amendment could have a variety of consequences. It could require the introduction of an approach premised on the best interests of the child. It could change very little or it could curtail the circumstances in which the children of unmarried parents may be adopted. To the extent that the drafting of the proposed articles is relevant, the establishment of parental failure as a constitutional principle in all cases would suggest the latter option is the most likely outcome. It is questionable whether the courts would, for policy reasons, adopt such a restrictive approach. However, this is a risk that cannot be discounted.

For all of these reasons, I am not willing to consider at this stage proposals that offer a piecemeal approach to amending the Constitution when a much more broad and well-rounded approach is and has been the basis of cross-party consensus. All of society is governed by the Constitution. It is the Government's position that the rights of children must be balanced with other important principles already contained in the Constitution and which, we believe, are important in protecting and safeguarding children from harm. The Government is committed to ensuring that there is no dilution of the equally important concepts of the duties of parents and the core position in Irish society of the family unit, and any amendment developed will respect the constitutional position of the family. These issues were teased out very carefully in work of the committee.

Under the last Government, draft wording was developed but, in my view and that of the parties in the new Government, it did not adequately reflect the good work done by the all-Party Oireachtas committee. The programme for Government for 2011 states the referendum on children's rights is a priority and that the wording will be along the lines of that proposed by the all-party Oireachtas committee.

Since taking office as Minister for Children and Youth Affairs, officials from my new Department have commenced discussions with the Attorney General with a view to preparing draft wording that will more closely reflect the outstanding work of the joint committee than that approved by the previous Government in draft form. Following completion of these careful deliberations, I intend to bring the matter to the Government for approval to draft a Bill and hold a referendum.

Recently, the Taoiseach stated that the referendum will not take place on the same day as the presidential election. There is concern that to do so would unnecessarily and unhelpfully politicise children's rights, and that a separate referendum would be more appropriate for this important and sensitive issue.

We will take our time over the coming months, although the time the Government takes will be much less than the years of delay by Deputy McConalogue's party when it was in government. We will take our time and we will get it right and I hope that early next year, when we bring our comprehensive amendment before the people that we will have the support of all parties in the House.

I remind the House that our Constitution is held in high esteem not only by the Irish people but also by others throughout the world. It has been a model for many countries and the Irish have a strong attachment to it. I aim to present the people with an amendment that is clear and comprehensive, addressing the full range of matters identified by the joint Oireachtas committee. This is an enormous task but it is also a great opportunity and I invite all sides of the House to join with me over coming months and to help make a difference through progressing a constitutional amendment that properly reflects our shared commitment to support Irish families and to safeguard and cherish our nation's children.

I wish to share time with Deputy Ferris.

Is that agreed? Agreed.

Sinn Féin supports the intent of the Bill. The current legal framework and the discriminatory constitutional definition of "the family" has led to a situation whereby children of marital relationships cannot be adopted even where clearly it would be in their best interests to be so. Under current legislation, children can live in foster care for all of their childhood and never be allowed to be adopted into a family. They can be removed on the whim of a social worker or shifted elsewhere when another more needy child is chosen to be placed in that particular foster family's care.

This situation has arisen out of an archaic set of laws regarding children and the family which are quite obviously unfit for modern Ireland. Approximately 2,000 children in foster care, who have grown up with little or no regular contact with their birth parents, are ineligible for adoption. These children are being denied the opportunity to receive full legal recognition of their real families as distinct from their married birth parents. Foster parents are the only family they have ever known; they are the people who have reared and sustained them and shown them the real love and support they have needed. They are denied the stability and sense of permanency offered by adoption.

Article 2 of the UN Convention on the Rights of the Child outlines the right of all children to enjoy all the rights in the convention without discrimination of any kind. The current restriction on the adoption of Irish children of marriage discriminates against them on the basis of the marital status of their parents. At present, the courts require a very high threshold proving that marital parents are failing in their duty and will continue to fail in this duty. The same standard is not required of unmarried families as the Constitution, the courts and State do not view them as a recognised family. Marital parents may have reason to voluntarily place their children for adoption but cannot do so. This too must be rectified.

As I stated, we welcome the Bill but with some considered reluctance. It would be remiss of me not to place on record our firm opposition to the manner in which Fianna Fáil has chosen to approach this. It has chosen to isolate one aspect of what was contained in the recommendations of the final report of the Joint Oireachtas Committee on the Constitutional Amendment on Children. The wording of its proposed article 42(A) is lifted directly from the text of the agreed wording produced in that committee's report in our proposed articles 42.5 and 42.6 with a one line omission. Interestingly, that line states "and any such law shall respect the child's right to continuity in its care and upbringing". This same omission is made in the document provided to me by the then Minister of State, Deputy Barry Andrews, at 6.45 p.m. on 13 January 2011.

The proposers of the Bill have focused on adoption and neglected to include anything else that would make a meaningful difference in the lives of children in Ireland. I am at a loss as to why Fianna Fáil would — and I give some thought to stating this — play politics with an important issue such as this. Any of us could have taken this course but we have chosen not to. Fianna Fáil committed to holding a referendum on children's rights and its party members on the Oireachtas committee endorsed the final report. We had cross-party consensus on the issue and I stress that in my view this was and remains an essential if we are to have a successful referendum campaign. Given this belief, I must ask whether Fianna Fáil has fully thought through the potential consequences of sequestering the adoption elements of the report. Everybody agreed there needs to be a constitutional provision to allow children of marital families to be adopted but we also agreed there needs to be a referendum with a broader remit that would strengthen children's rights under the Constitution and we remain committed to this.

The proposed wording contained a provision to ensure the right of the child to have his or her best interests considered paramount in all cases concerning guardianship, adoption and care. It would expressly enshrine a child's right to protection in care, to an education and, very importantly, to be heard. It balanced this with the rights of parents to be the natural carers, educators and protectors of the child while acknowledging there are sometimes unfortunate and tragic cases where parents cannot or should not be the primary carers of their children. I ask somebody on the Fianna Fáil benches to let us know whether it has abandoned the idea of a comprehensive children's rights amendment.

In 2007, the then Fianna Fáil Government tabled a referendum Bill on children's rights with which nobody was happy. After the most recent cross-party Oireachtas committee produced its agreed wording, in January this year — and I referenced the text of the Minister of State — the Fianna Fáil and Green Party Government produced yet another formula of words that significantly weakened what the committee had agreed and was seeking to achieve. That wording went out of its way to ensure that children were not guaranteed rights; the rights were merely acknowledged. However, it did ensure the children of marital families may be adopted but this was about the sum total of it. I must ask whether it was the intent of Fianna Fáil all along that this would be the only subject dealt with. This is still my concern.

I wish to refresh the memories of the Members of the Government parties that the Labour Party and Fine Gael representatives endorsed the wording set out in that same Oireachtas committee report. Now they are happily ensconced in government and have had time to settle down, I hope they have revealed their true feelings on the subject. As an opposition voice, I am pleased to state I am a staunch supporter of the new Department and the Minister's appointment. No one in the House wishes the Minister a fairer wind than this Deputy.

The manifestos of the Labour Party and Fine Gael contained commitments to hold a referendum on children's rights, as did the programme for Government, which referred to a referendum along the lines of the wording of the report of the Joint Committee on the Constitutional Amendment on Children. The Minister for Justice and Equality, Deputy Alan Shatter, who played a significant role in the committee's work, asked the following question in the House on 12 May last year: "Will the Taoiseach acknowledge that the delay in even acknowledging that a referendum on children's rights will take place this year absolutely confirms that the Government is doing nothing other than paying lip service and is prepared to sacrifice the welfare of children to cheap headlines and sound-bites in the daily newspapers?" I put the same question to the Taoiseach. Does he acknowledge that his Government is doing nothing other than paying lip service to children's rights? Prevarication, the absence of product and the failure to give an indication of real progress being made begs the question as to what has happened to the Fine Gael Party's position since it entered government? It was an ardent proponent of a referendum on children's rights and strongly of the view that there should not be any delay in holding it.

In May 2010, the Labour Party supported a Dáil motion tabled jointly with Sinn Féin calling for a children's rights referendum. What has changed the minds of Labour Party Deputies? Where is the urgency on this issue expressed in the party's manifesto. The Government parties have an obligation to live up to the promises they made to the electorate by holding a referendum at the earliest opportunity.

While Sinn Féin does not agree with the Fianna Fáil Party's decision to separate this issue, there is no doubt that, if passed, the amendment proposed in the Bill would be a measure of progress. This must be acknowledged. There are children who spend large parts of their lives with the same foster parents but cannot be adopted. While there is a provision in the 1988 Adoption Act which provides for the adoption of a marital child, the constitutional right of the marital family remains in place. In one case of which I am aware, which is referenced in the final report of the joint committee — Western Health Board H.B. and N.B. v. An Bord Uchtála of 1995 — a child was born to a married woman who had separated from her husband. She believed the child to be that of a man with whom she had been in a relationship. It transpired, however, that the child was of her former husband who had raped her. The child was placed with foster parents who wished to adopt it. After some time, the husband sought custody. A court held that the mere actions of the husband seeking custody were sufficient to establish he had not abandoned his parental rights and, accordingly, the child could not be adopted. The best interests of the child were nowhere to be seen in the consideration of this case.

It is up to Fine Gael and the Labour Party to live up to their obligations and commitments to hold a referendum on children's rights with appropriate urgency. The Government must also show appropriate urgency regarding the all-party agreed recommendations contained in the first report of the most recent joint committee published in September 2008, which addressed the need for legislation on soft information. We are weeks from the summer recess and on the return of the House, a full three years will have passed without legislation being published, not to speak of being passed.

For the purposes of the proposition before the House, Sinn Féin will support the Private Members' Bill with all the reservations I have placed on record. However, the legislation must not be viewed as a substitute for a comprehensive constitutional amendment which will give children the rights they deserve. I place my trust in that regard in the Minister and her new Department. From time to time I will urge her and egg her on as best I can. I call on the Government, as a matter of urgency, to fulfil its promises and to hold a referendum based on the wording set out in the final report of the Joint Committee on the Constitutional Amendment on Children.

I echo the sentiments expressed by my colleague, Deputy Caoimhghín Ó Caoláin, on this Fianna Fáil Private Members' Bill. Sinn Féin supports the Bill, which addresses an important issue, albeit with some reservations.

Thousands of children have been left in residential care over the years or shuttled from foster parent to foster parent with infrequent visits from social workers. However, they are sometimes left in the care of foster parents who will be the only family they ever know. If they are children of marital families, the foster parent will be unable to adopt them as natural parents continue to retain all their rights over the child and have access to them. If the child has been placed in voluntary care, parents can reclaim the child at any time, a position endorsed by the Supreme Court in what is known as the Baby Ann case.

As it is not legally necessary for a foster parent to be married, fostering involves greater flexibility than adoption. Many people, including older people, gay couples and single women and men, find fostering an easier route to pursue than the restrictive and difficult nature of adoption rules. This should not be the case and the issue is not addressed in the Bill. The adoption system needs substantial overhaul and reform.

Fostering is less secure than adoption because foster parents have a number of duties and few rights. Should a foster parent attempt to adopt a child in his or her care without securing the approval of the Health Service Executive, he or she risks being held liable for the costs of a case being brought against him or her. This imposes a major financial risk on people. While Sinn Féin supports the Bill on a referendum on children's rights, unless a referendum is followed by legislation to rectify the anomalies I have outlined, it will be of little use.

Foster parents are caught in a bind. Children in foster families do not have the same stability found in adoptive families. Save through court proceedings, they are not independently represented and orders can and have been made which have resulted in children being taken from parents with whom they have lived for years and given to virtual strangers without cognisance of their welfare. Article 12 of the UN Convention on the Rights of the Child and Article 6 of the European Convention on Human Rights require separate representation for children in such a scenario. The State has failed to implement this requirement as it is much more concerned with what it would cost to pay a guardian ad litem than listening to what a child wants.

The proposed constitutional amendment contained in the final report of the Joint Oireachtas Committee on the Constitutional Amendment on Children provided for children's voices to be heard in judicial and administrative matters which concern themselves. It is disappointing that the Fianna Fáil Party has chosen to disregard everything else the joint committee stated and focus on adoption alone.

While it is a welcome gesture on the part of the Government to introduce a full Department for Children and Youth Affairs, it is disgraceful that this Fine Gael-Labour Party coalition is to further delay the long promised and long overdue constitutional referendum on the rights of children. Both parties played a key role in the joint committee which agreed a wording to strengthen the rights and protections of children in the Constitution. My colleague, Deputy Ó Caoláin, paid tribute to everyone involved in the proceedings of the joint committee. Unfortunately, its report remains on a shelf. Notwithstanding the commitments given by both Government parties in their manifestos to hold a referendum on children's rights, the Taoiseach has stated the three referendums to be held in the autumn will not include a referendum on affording protection to children. The coalition failed on children's rights before it even reached 100 days in office. This regressive decision must be overturned.

This Bill should not be used as a substitute for holding a referendum that will enshrine children's rights. While it is a welcome move, it was unfortunate that details of the Roscommon abuse case has to emerge for people to wake up to the reality that legal difficulties arise when dealing with marital families. The proposed amendment would not do much to help children in such scenarios. If a referendum were held and passed tomorrow, it would make little difference to the children who reside within the confines of dysfunctional child services. It would not alter the fact that the recommendations of Tracey Fay and Ryan reports and the Monageer Inquiry have not been implemented. It will not magically provide 24 hour, on-call social workers, resource underfunded services with overworked staff or provide an avenue for children to be heard and their best interests made paramount in all matters concerning them.

While I support this Bill, it is a lost opportunity and I call upon the Government parties to put their commitment on the record that they will hold a children's rights referendum immediately and implement the outstanding recommendations of the relevant reports. They owe it to the children of Ireland to do so.

I am delighted to have the opportunity to speak on this Bill and I thank and compliment Fianna Fáil for putting it before the House. Fianna Fáil is calling on the Government to arrange for a referendum on adoption to be held at the same time as the presidential election. Most Opposition Deputies want that to happen. This Bill would give rights to children currently in foster care and ineligible for adoption because of constitutional restrictions arising from the special position of the family in Irish law. I support it. The proposed changes in the Constitution would provide more robust rights for children. They are long overdue.

This is not a new issue, as previous speakers have mentioned. The late Deputy Brian Lenihan drew attention to this issue at a consultation conference on adoption and fostering which he organised in 2003. The referendum on the proposals contained in this Bill should not and cannot be delayed. I am disappointed the Government parties, who worked on this issue in committees when they were in the Opposition, are not bringing forward a referendum to be held at the same time as the presidential election. I am aware it is proposed to hold a number of other referenda, but surely this issue is of immense importance. The well-being and care of our children must be a priority for us all. A number of related issues were raised at the consultation conference held by the late Deputy Brian Lenihan which are not addressed in this Bill. The motion has not received attention so far.

There are still no adopted people sitting on the Adoption Authority of Ireland alongside adoptive parents. That is a big failure. They must be included there as of right. Who better to be part of that authority than people who were adopted and have experienced the situation? Adopted people still do not have the right to get their birth certificates. That is a huge difficulty which causes great trauma and strife for families.

In recent years, adoptions in Ireland have become increasingly rare and many prospective parents go abroad to adopt a child. We are aware of the saga with foreign adoptions and how the previous Minister, the former Deputy Barry Andrews, tried hard to resolve the situation. We met many deputations and families. Every Deputy in the House has met couples who are desperate to adopt from foreign countries and who are extremely frustrated by the slow pace of such adoptions. I accept there must be due process and the legal issues must be resolved, but it is very frustrating for these couples. They are getting older and have put much effort into the process. In many cases, they have travelled abroad. They have examined all the issues and prepared for it in this country. They have adapted their homes and looked forward to the adoption, so it is very disappointing to be let down again.

There are serious issues in Ireland relating to children in foster care. The majority of foster parents do an excellent job and are a valuable resource. That said, there are deep concerns about the vetting of foster families and the supports being provided for those families and children in care. I compliment the newly appointed Minister and wish her well in her brief. Cases that are very scary are brought to my attention occasionally. They involve the vetting of people and the type of people — they are a minority — who are allowed to be foster parents. They continue to act as foster parents despite concerns being raised by the community with public representatives and the public authorities. Nothing seems to happen.

There must be a review and reform of the child welfare and protection system. There are currently 6,000 children and young people in care, either with relatives, in residential care or in care in high support residential placements. I am not enamoured of the Health Information and Quality Authority, HIQA, but, in fairness, on this issue it has developed standards for and carried out reviews of the foster care system. One report was produced in July 2010 and there was a report on a special care unit in December 2010. Both reports provide important recommendations for the future.

Last year, 90% of young people in care had been allocated a social worker and 80% had dedicated care plans. While this represents ongoing improvement, we must bring these figures up to 100%. The State has a duty of care to these children. I believe this constitutional amendment, which would permit adoption in such cases, would be beneficial for the children involved. However, it is part of a larger children's rights agenda that must include a referendum on children's rights. It is a pity this opportunity will pass without it being put to the people. It is a vital area. I accept that the Minister and her party are committed to this but I worry about the delays. Each hour, day or week of delay is too long. I hope it will not be a year. It is a traumatic area and there must be action on it in line with the commitments given by the Government parties when they were the Opposition. I look forward to supporting the Bill.

Cuireadh an díospóireacht ar athló.

Debate adjourned.