Thirty-First Amendment of the Constitution (Children) Bill 2012: Second Stage

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

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

The Bill I have brought to the House will allow for one of the most important referendums in the history of the State. I would like to begin by thanking Members on both sides of the political divide in this House who have given so much time and effort to the development of the amendment I am now proposing. I thank those in every party who have expressed support for the recommended change. Few changes matter as much as this. Most of what we do in this House is about legislation. By its nature, legislation has to be about delivering for the needs and problems of today. Constitutional change goes way beyond that. It gives us a rare opportunity to look at ourselves as a nation and ask if we are truly espousing the correct values. It gives us an opportunity to assess what we stand for. Ultimately, constitutional change allows us to consider future generations and ask what Ireland they should live in.

We are rightly proud of Bunreacht na hÉireann. We are rightly proud to live in a State that is defined by a document which enshrines personal liberty, protects rights and guarantees religious freedom. Over the decades, the society defined by such ideals has become taken for granted. We assume our rights and we rarely question the freedoms or guarantees provided to us in the Constitution. The average citizen does not wake each morning with gratitude for the protections provided to him or her by a document that is nearly 80 years old. Few people think of the Constitution every day. In one way, that proves the effect of Bunreacht na hÉireann. The values it espouses and rights it provides are so intrinsically connected with being a citizen of this nation that we rarely question from where those rights and values come. The only time the average person really needs to pay direct attention to the Constitution is when it is discovered to be lacking or when he or she needs to rely on it to protect his or her rights. In the case of the children of the State, it is lacking. Since Mrs. Justice Catherine McGuinness's call in the report on the Kilkenny incest case, successive Governments have received report after report, and evidence upon evidence, that the Constitution is failing our children. We have had reports such as that on Kelly Fitzgerald and the west of Ireland farmer case, reports such as the Ryan commission report and the Cloyne report, and reports in between, such as Roscommon - in all, at least 17 major reports on gross child protection failings.

Those reports are added to by the achingly sad personal evidence of those adults whose childhoods were poisoned by violence, neglect, abuse and loneliness, those who suffered at the hands of family members, State institutions and religious institutions. Every person in this House knows now that, for decades, Irish children suffered in their own personal hells, while the system was unable, unwilling or simply unmotivated to do anything.

That knowledge leaves us facing a simple question. Constitutional law can be complex. The question facing us is not. Constitutional language can be subtle and nuanced. The question facing us is not. Constitutional change can be contentious. The question facing us is not. The question facing us is simple. Do we believe that the way children were treated in this State represents what we believe to be the values, morals, and ethics of the Irish people? The answer is pretty simple too. It is a "No". None of us should be proud of what happened to thousands of Irish children since the foundation of the State. None of us should think that brutality, ignorance and neglect are the attributes that characterise us.

We, as a nation, are fair, decent and honourable. If one attends any of the citizenship ceremonies which welcome the new Irish to our national family, one will see people proud to be joining a nation that they know stands for something, a nation that has, at its core, a belief that people are equal, that they deserve fairness and that they must be protected from harm. Until now, we have failed to make sure that those beliefs are adequately expressed and enacted in regard to children. This referendum is our opportunity to change that. This referendum is the chance to create fundamental change in how we treat children. In 50 years, we must hope that no one will pay much attention to Article 42A of the Constitution. We must hope that it will be assumed. We must hope that all children will have rights, will be protected and will be treated equally. We must hope that Article 42A just becomes one more strand in the fabric of Irish life, defining directly and indirectly our belief that children deserve to be enveloped by the characteristics that make us proud to be Irish. We must hope that, some day, the rights accruing to Irish children will be implicit. Until then, we must make them explicit.

Some 64 dedicated meetings of the Joint Oireachtas Committee on the Constitutional Amendment on Children, chaired by the former Deputy and Minister, Ms Mary O'Rourke, and including many Members of this House, including Deputy Ó Caoláin and others, including myself, proposed changes to protect children, to give them legal clarity, to name children's rights at constitutional level and to achieve the right balance with other aspects of Bunreacht na hÉireann.

Since taking office, my Department and I have been working on this amendment, together with the Office of the Attorney General, to make the transition from an Oireachtas committee proposal to a robust constitutional wording and to achieve the right balance, one which will have the desired effect for children. I pay tribute to the Attorney General and her staff as well as the staff of my Department for the work, commitment, time and effort they have put into the planning and work on the Bill.

The Bill proposes a new stand-alone article, Article 42A, titled "Children", which will contain a series of provisions and will be put to the people as one, single question for their approval. I want to emphasise that the Constitution must, of course, be read as a whole. Changes to the Constitution and the formulation of appropriate wording to achieve the desired change is a complex and challenging task. The aim of the Government in this case has been to present a coherent proposed wording which will interact, in the manner intended, with the Constitution as a whole. It has been very carefully balanced in the final draft before us today because the balance to be struck is critical.

The Bill does not remove or diminish the recognition given to the family under the Constitution, nor does it remove or alter the rights and duties of parents under the Constitution to provide, in accordance with their means, for the education and care of their children. However, it identifies and brings the greatest possible clarity to a number of key areas - for the Oireachtas in future law-making relating to children, for the Judiciary in future decision-making relating to children, but, most important, for all of us as a nation and as a State.

This is an essential amendment for our Constitution which, I hope, following Oireachtas consideration, will be supported by the people on 10 November. It is a statement about the rights of our children and about our views of Irish childhood now. This referendum will strengthen the protection of all children from abuse and neglect by putting their safety and welfare at the centre of decision-making; it will support families by reaffirming and underpinning the State's continuing development of early intervention and family support services to protect children in their homes; it will treat all children equally when it comes to issues such as adoption, regardless of the marital status of their parents; and, it will recognise children in their own right by providing, for the first time, an express statement of their rights and giving constitutional standing to the best interests and the views of the child in child care and family law proceedings.

This is a referendum for all children but, in particular, for those children most vulnerable and most at risk. Childhood does not stand still. Childhood can be a very vulnerable time and effective and timely decision making for vulnerable children is critical. We know that the vast majority of children live in loving, caring families and never require the assistance of the State's child protection and welfare services, but this is not always the case. Some families do need help and support in parenting their children. This can involve providing help and support to parents by means of family support, including addiction and mental health support and family and individual counselling. In the more serious cases, however, children may be moved from the family and cared for by people other than their parents.

Over 85% of non-voluntary admissions to care in 2011 were due to abuse, neglect and serious family problems. In total, at present there are approximately 6,250 children in care placements. We are very fortunate in this county that over 91% of all children in care are living with a foster family. Therefore, already in this country, the focus is very much on family care, and more than 2,000 children have been living with the same foster family for over five years. This amendment is about ensuring the safety and welfare of children, it is about ensuring that those children who need it can have the second chance of a family life and it is about ensuring that, when questions on such issues arise, the best interests of the child come to the fore and their own views on their future are given consideration.

I will now focus my comments on the intent of the different elements set out in the Bill which it is proposed to put to the people on 10 November next for incorporation in the Constitution. Sub-article 1 states: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." The Constitution sets out rights for all citizens. This sub-article will provide, for the first time, a strong affirmation of the rights and protections to be enjoyed by children as children. It provides that the rights and protections enjoyed by children are to be enjoyed by all children, irrespective of their parent's marital status, while continuing to respect and preserve the rights of the family as set out in the existing Article 41.

The rights referred to are the "natural" rights, which means rights that belong automatically to a person. They are "imprescriptible" rights - they cannot be lost, they cannot be abandoned. They include the entire range of rights that all human beings enjoy, in particular, children in their formative years. Under this provision, the State is required to protect and vindicate those rights "as far as practicable". There has been some discussion about the phrase "as far as practicable". I want to remind the House that this phrase is standard constitutional drafting and is used in respect of the provision of other fundamental rights in the Constitution, most notably in respect of the personal rights of all citizens under Article 40.3.1°. Sub-article 2.1° states:

In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

This provision will replace the current Article 42.5 under the heading of "Education" in the Constitution. This is the sub-article in the Constitution that underpins the Child Care Act 1991 and many of the actions of the child and family support services to secure the protection and welfare of children. Such actions include applying to the courts for the making of care orders whereby children are placed in foster care, or the making of supervision orders in which the courts can order home visits by social workers or other professionals to monitor a child's care. Removing this sub-article from the education provisions fits well with having a new article relating to children. However, while the existing and new wordings have similar content, there are essential differences. It will continue to be the case that the power given by the Constitution in this area can only be used by the State in very well defined circumstances. The State can only make use of the power in exceptional circumstances, as under the existing constitutional provisions. There must be a failure of parental duty towards the child and any failure must involve harm or risk to the child's safety or welfare "to such extent that the safety or welfare of any of their children is likely to be prejudicially affected...". This represents a move away from focusing solely on the reasons for the failure of the parents to the impact of the failure on the child. The Constitution currently provides that where parents fail in their duty to their children "for physical and moral reasons", the State should intervene. The proposed wording puts the focus directly on the impact of parental failure on children and their welfare. This represents a more modern and child-centred approach to this provision.

The actions of the State must be "proportionate" to the harm or risk to the child that needs to be addressed. This means that a child will only be removed from the care of his or her parents when there is no alternative option which can protect his or her safety and welfare. The protections apply to all children equally, as explicitly provided for in the use of the phrase "where the parents, regardless of their marital status, fail in their duty towards their child". The cumulative affect of this new wording is to place the protection of children at the centre of decision-making, regardless of their parents' marital status.

The presence of failure in parental duties towards the child remains a condition of the State getting involved. The State cannot intervene where such a failure has not taken place. The new wording focuses on the effect of such a failure on the child. The wording will not change the assumption in law which is shared in Irish society that the best place for children is with their families. As I have often said, protecting children and supporting families are simply two sides of the same coin.

The referendum explicitly acknowledges the range of responses the State has to consider in protecting a child, including early intervention and family support services, which play a vital role in responding to child welfare concerns, thereby preventing more serious problems arising, with the objective of protecting children in the home and preventing children being taken into care at a later stage. This amendment is about protecting children and supporting families.

Under sub-article 2.2°, "provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require". The Constitution does not currently refer to the circumstances where adoption may be provided for in law. This has created uncertainty in the development of laws dealing with this very important area. The normal way a child is adopted involves the agreement of his or her parents or guardian, as required by law. This is to remain the position.

The great majority of children are fortunate to grow up in loving, caring families. In a small minority of exceptional cases, however, this is not so. For example, following parental failure and harm to a child's safety and welfare, it may be necessary to place him or her in foster care. I have referred to the large number of children in foster care, many of whom have been living with the same foster family for over five years, yet only 16 children in foster care were adopted in each of the years 2010 and 2011. We must ask why this is so. Currently, the High Court cannot authorise the Adoption Authority to make an adoption order unless it is satisfied that there has been a failure of duty by the parents towards their child, that this failure is likely to continue until the child is 18 years old and that the failure amounts to the parents giving up all rights towards him or her. Therefore, while it is already the case that a child in care may be adopted by his or her foster parents, in practice - as the figure I mentioned demonstrates - this happens to a very limited extent, in the most extreme of cases, as the test set out in existing law is difficult to meet. The proposed wording provides for the making of legislation to allow for adoption where it is in the best interests of a child in foster care owing to the serious and persistent failure of his or her parents, irrespective of their marital status. This change is about giving children in foster care a better opportunity of achieving the certainty and permanency which comes from living in a loving, caring family.

Last week I published the draft adoption legislation which the Government plans to bring before the Oireachtas on the passing of the referendum. This legislation has been the subject of much discussion and sets out, in detail, the conditions which will apply. The draft Bill requires that for foster carers to be in a position to adopt a child, the child's parents will have to have failed in their duty towards him or her for three years and have no reasonable prospect of resuming the care of the child. Furthermore, the child will have to be at least 18 months in the care of the foster parents who are applying to adopt. The draft Bill will outline the role of the High Court which must be satisfied that the parental failure constitutes an abandonment of parental rights. It must also be satisfied that adoption is the most appropriate way in which to provide for the parenting of the child. It must consider the constitutional rights of all parties, including the natural parents where they wish to be heard, but, ultimately, in the resolution of these proceedings the best interests of the child must be the paramount consideration for the court.

Sub-article 2.3° allows for the voluntary placement for adoption and the adoption of any child. This important change will bring to an end the current constitutional situation where children are treated differently on the basis of their parents' marital status. Under the current law, the only route to adoption for a child whose parents are married is for them to totally fail in their duties towards him or her. Even if married parents, for good reasons and with the best interests of their child at heart, decide on adoption as the most suitable means for the future care of their child, they cannot achieve this end by giving their consent.

Under sub-article 4.1° provision shall be made by law that in the resolution of all proceedings brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or concerning the adoption, guardianship or custody of or access to any child, the best interests of the child shall be the paramount consideration. This wording requires the best interests of the child to be the paramount consideration in critical court proceedings relating to a child, including proceedings taken by the State under the Child Care Act relating to child protection, as well as proceedings on adoption, guardianship, custody and access. The best interests principle is already well established in Irish statute law, including in the Guardianship of Infants Act 1964, the Child Care Act 1991 and the Adoption Act 2010. The referendum gives constitutional recognition to this principle. By so recognising it, it is strengthened when counterbalanced against other constitutional rights and principles that might arise in such proceedings. This provision will also ensure no future Government can repeal or dilute the existing legislation that makes the best interests of the child the paramount consideration in such proceedings.

Sub-article 4.2° is complementary and reads as follows:

Provision shall be made in law for securing, as far as practicable, in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child which shall be ascertained and given due weight, having regard to the age and maturity of the child.

Similar to sub-article 1°, the aim is to give recognition at constitutional level to the rights of children to have their views heard and given due weight in critical court proceedings in the areas of child welfare and protection, guardianship, custody and access.

While the amendment refers solely to critical court proceedings, my Department and I are equally committed to working with others in the development of legislation, policies or procedures to extend this "voice of the child" approach to other spheres of decision-making. Similar to "best interests", this principle is already recognised in existing child care and family law and will be included in further legislation in areas affecting children. These two provisions together will provide for real visibility of children in the Constitution and the decision-making framework of our judges.

The dark stain of child abuse and the failure of those in positions of power to protect children must propel us to listen to children and act in their best interests. On that day in the High Court, when the judge read the Constitution and made his decision in the Roscommon case, the only persons whose best interests could not be taken into account sufficiently were the children.

The constitutional change we propose will address the imbalance. This week coincidentally marks the 20th anniversary of Ireland's ratification of the United Nations Convention on the Rights of the Child, UNCRC. The UNCRC has been ratified by more countries than any other human rights convention, with only two countries not having ratified it. The principles of the UNCRC are clearly important and we have done much to act on those principles. Later this year I hope to submit Ireland's update report on the implementation of the convention to the UN. The change we are discussing today also forms part of the Government's ambitious programme of reform in child protection. We are reforming child protection laws through the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act, brought to this House by the Minister for Justice and Equality, Deputy Shatter, and the publication of Children First and National Vetting Bureau legislation and we are significantly reforming child protection services through establishing the new Child and Family Support Agency independent of the HSE. Each of the reforms is important but none can have the wide-ranging and permanent effect of constitutional change. That is why this referendum is so important. In essence, the referendum will help protect children from abuse and neglect, support families, treat all children equally and recognise children in their own right. I look forward to a positive debate on this important legislation and I commend the Bill to the House.

Deputies

Hear, hear.

I thank the Minister. Last Wednesday was an important day in the history of the State, a day which finally saw the publication of the wording for the children's referendum - the 31st amendment to the Constitution. I warmly welcome the fact this day has finally come. The people of this country now have an opportunity for a national debate on enshrining the rights of children in the Constitution. As we begin this debate it is important to question and to seek clarification on certain issues in order to satisfy ourselves that we are inserting the best possible wording into the Constitution. In light of that, we have tabled a number of amendments which we feel will enhance and strengthen the wording. I will outline my rationale for the amendments later in the debate. We hope the Government will give them due consideration.

I acknowledge the work that has been done in publishing the wording and securing a date for a referendum. I commend the work carried out by the Minister, Deputy Fitzgerald, and her Department in the past 18 months, which has continued the good work initiated by her predecessors. The development of child welfare and protection is not something that has only begun in the past 18 months, as some would have one believe. In that context I wish to place on the record of this House some of the good work that was carried out in the past decade and prior to that. The Child Care Act 1991 sets out the responsibility and duties of the Health Service Executive, HSE, towards children. It places a legal obligation on the HSE to promote the welfare of children who are not receiving adequate child care or protection and requires that "the best interest of the child" be considered in all matters affecting their welfare. It places the emphasis on prevention, early intervention and family and community support, with the removal of the child being a last resort. The Children Act 2001 is the main piece of legislation governing children within the criminal justice system. It focuses on preventing criminal behaviour, diversion from the criminal justice system and rehabilitation. The Ombudsman for Children Act 2002 provided for the establishment of the Office of the Ombudsman for Children. The Ombudsman for Children must promote the welfare and the rights of children, including advising the Minister on the development and co-ordination of policy relating to children. Information systems and accountability within the HSE have been improved through the national child care information system. The Ryan report implementation plan was developed and €15 million was allocated to it. A total of 256 additional social workers were provided as part of the plan. Their recruitment was exempt from the moratorium on public service recruitment.

The original commitment to hold a referendum on children's rights was given more than five years ago. It is disappointing that it has taken this long to come to fruition. The former Minister, the late Brian Lenihan, introduced an amendment in 2007 but at that time it was decided to refer it to an all-party Oireachtas committee chaired by my former colleague, Mary O'Rourke. No one knows better than the Minister the sterling work carried out by the committee to ensure consensus on an all-party basis. In fact, many of her Cabinet colleagues know that to be the case as they were also members of the committee. In her speech the Minister, Deputy Fitzgerald, alluded to the fact that the committee of which she was a member had met on 64 separate occasions. My colleague on my right, Deputy Caoimhghín Ó Caoláin, the Sinn Féin spokesperson on children, was also a member of the committee. Extensive work was done by the committee which culminated in an all-party agreement with the final report being brought before the Houses of the Oireachtas in February 2010. At the time the former Minister of State with responsibility for children, Barry Andrews, worked on putting forward wording for a referendum. The wording was finalised by the Cabinet in January 2011 but, as we are all aware, the Government fell and it was unable to hold a referendum.

It is wrong to say that no work was done, but it would also be wrong not to recognise that much more work remains to be done. That is borne out when one considers the publication of the 17 horrific reports that were published detailing the failure of the State to protect the children of the State from abuse by families and religious congregations. A constitutional change will bring many benefits but it is not panacea, and without appropriate funding it is mere window dressing. I was pleased to hear the Minister's colleague, the Fine Gael director of elections outline on "The Week in Politics" on Sunday night that this constitutional and legislative change alone will not guarantee child welfare and protection. He correctly stated, as I have done on numerous occasions, that the changes must be matched by a commitment to additional funding. Prior to the referendum campaign getting into full swing we must be informed that the Government is prepared to underpin the new rights it is seeking to establish for children in the Constitution with the necessary resources. The Minister must outline the requirements for additional resources. She must come into this House and itemise provision by provision where additional resources are required and commit to delivering them. Could she advise how many additional social care workers will be provided? In addition, could she outline whether it is her intention to maintain the foster care allowance for foster carers who adopt the children in their care? Funding is crucial. That is apparent from a reply I received last week detailing that the percentage of children in foster care and institutional care without a social worker has increased in the past 18 months. Therefore, it is imperative that a commitment on resources is forthcoming. I accept that we are in difficult economic times. However, on the implementation of the Ryan report the previous Administration sanctioned 256 additional social care workers at a time when there was an embargo on recruitment in the public service. When one talks to front line staff they express the wish to see the aspirations of the referendum matched by the required resources.

The question has been asked as to whether there is a need for a referendum. We agree with the Government, and have always agreed, with the need for such a referendum. This is a constitutional provision that will protect the legal, emotional and social needs of all children in this country. The need for this constitutional change was first voiced by Mrs. Justice Catherine McGuinness in 1993. Her report in the Kilkenny incest investigation found that the strong emphasis on the rights of the family in the Constitution may, consciously or unconsciously, be interpreted as giving higher value to the rights of parents than to those of children. Mrs. Justice McGuinesss presented her report to the then Minister, Deputy Brendan Howlin, in 1993. This matter has been ongoing for a long period and although many changes have been made through legislation this referendum was long promised and is long overdue. I welcome it today.

In July, the Government's special rapporteur on child protection stated there is no current provision in the Constitution to protect children as autonomous individuals, that their rights are an after-thought and, as such, invisible. Article 41 of our Constitution recognises the family as the natural, primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. I welcome that this referendum does not seek to diminish the role of the family. By inserting Article 42A, thereby enshrining the rights of children, we would recognise the importance of the family and, at the same time, balance that importance with the importance of our children. The courts will now have to balance the rights of the individual and the rights of the family, as both sets of rights are constitutionally guaranteed.

The new Article 42A.1.1° states: "That the State recognises and affirms the natural and imprescriptible rights of all children and shall as far as practicable, by its laws, protect and vindicate those rights." This is a very specific statement which recognises that all children have natural and imprescriptible rights. The amendment leaves it to the courts to determine those rights. The article applies to all children who live in Ireland, irrespective of whether they are citizens. It also applies a set of distinct rights that will apply only to children.

My party's amendment seeks to replace the word "shall" with "guarantees" as we believe this will strengthen the article. The amendment proposed in the draft Article 42A.1 should be amended so that it is consistent with the constitutional protection given to citizens under Article 40.3.1°. That article provides that the State guarantees, as far as practicable, by its laws, to protect and vindicate the personal rights of the citizen. Fianna Fáil believes a similar level of protection should be afforded in a new article in regard to children which would state: "That the State recognises and confirms the natural and imprescriptible rights of all children and guarantees as far as practicable, by its laws, to defend and vindicate those rights." These amendments will ensure that the same protection is afforded to children as is referred to in Article 40.3.1°. We believe this is necessary and appropriate because it is likely that the courts will interpret children's personal rights as being protected by Article 42A rather than by Article 40.3.1°.

The proposed Article 42A.2.1° states that in exceptional cases where the parents, regardless of their marital status, fail in their duty towards their children to such an extent that their safety or welfare is likely to be prejudicially affected, "The State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard to the natural and imprescriptable rights of the child". This would replace the existing Article 42.5 and insert the phrase, "regardless of marital status", thereby removing the current discriminatory distinction between children of married and non-marital families.

We propose another small amendment and again do so to try to strengthen the wording. The amendment is to the effect that intervention in exceptional cases, as provided for in Article 42A.2.1°, should be clarified to correspond to the statutory protection afforded to the child under the Guardianship of Infants Act 1964 and the Child Care Act 1991, which refer to the health, development and welfare of the child. Our proposal is that this be mirrored in the constitutional protection and that it merely be broadened in order to correspond with the Guardianship of Infants Act 1964 and the Child Care Act 1991.

The proposed Article 42A.2.1° is largely similar to Article 42.5 in that it emphasises that intervention may only take place in exceptional cases, which is the case under the current Article 42.5. Unfortunately, in a minority of instances the best interest of the child is not served by remaining with his or her natural family and in those cases we are duty bound and the State has a moral obligation to replace the family and provide the care needed. The State must ensure that all possible supports and resources have been made available to the family prior to removal of the child and that this action is undertaken only as a last resort. The former governor of Mountjoy Prison, John Lonergan, was quoted in a newspaper at the weekend as stating that if the State is serious about vindicating children's rights it must be serious about resourcing and supporting children to ensure their lives do not fall into crisis. I acknowledge that the establishment of the Child and Family Support Agency is a move in the right direction in this regard.

According to the proposed Articles 42.A.2.2° and 42.A 2.3°, respectively: "Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require..." and "Provision shall be made by law for the voluntary placement for adoption and the adoption of any child." This wording introduces adoption into the Constitution for the first time. The article is an enabling provision and provides for the adoption of children who have been failed or abandoned by their natural parents. It also provides for the voluntary placement of children for adoption regardless of their parents' marital status.

I am glad the Minister followed my advice and published the draft legislation in conjunction with the wording for the referendum. Will she clarify that the draft we see before us is what will discussed if the referendum is passed? On previous occasions draft legislation, as published, has changed by the time it comes for debate before the Oireachtas. It is important that the Minister gives a clear commitment that what we see today is what we will see if the referendum is passed. Perhaps she might give an indicative timeline for the passage of the legislation through the Oireachtas.

This is an extremely important element of the referendum and the accompanying legislation should receive priority as it will afford very many children the opportunity of a second chance in life. I understand that at present there are approximately 1,600 children of married parents in foster or institutional care. They are living in limbo. According to current provisions, the child must have been abandoned for 12 months and must prove continued abandonment extending to the age of 18. This is virtually impossible. As a result, children are being left in long-term foster care with the prospect of spending all their childhood in this situation. Foster carers are not legal guardians and many simple decisions, even one as small as taking a family holiday, cannot be made without the consent of the HSE. The child who is welcomed into the family unit and brought up by a foster family has a different surname. This is far from ideal.

The wording in the draft Bill as proposed under the new adoption legislation states that marital children will be eligible for adoption once they have been in foster care for a continuous period of 36 months preceding the time of the application, and have been living with the prospective adoptive parents for at least 18 months . The Bill also states there is to be no reasonable prospect that the child's birth parent will be able to provide for the child. It is important to point out that involuntary adoption will affect a very small number of children in our country and only in exceptional circumstances. It will have to be proved that the parents in question have failed in their duty towards their children to such an extent as to constitute abandonment of the children's rights. Heading six states that children, in all adoption cases where they are capable of forming views, will have their views heard in accordance with the age and maturity of the child. How will that be done? It is vague, and the issue of resources will apply.

Legislation on adoption is an extremely important aspect of the referendum. An article by Olivia O'Leary in last Sunday's edition of the Sunday Independent gave a harrowing account of many young children crying out in the night for their mothers, in need of a loving home and a second chance, when many couples who cannot have a child of their own would sacrifice so much to offer a child a warm, loving, affectionate stable home. We must see far greater detail on adoption legislation and when it comes before the Oireachtas we will have a greater opportunity to debate it at length. I have some questions in regard to it. What level of counselling will be available for parents who wish to place their children for adoption? Will the adoption board be given additional resources to deal with these new situations? When will the Minister detail the way the new proposals will operate? How many foster care children qualify for adoptions? Will parents who adopt maintain the foster care allowance?

In referring to adoptions, the Minister gave a commitment previously to bring forward legislation on information and tracing. When will that legislation be forthcoming as we are one of the few countries in the western world not to have such legislation in place?

I will not read the new Articles 42A.4.1 and 42A.4.2 into the record as my time is limited but both articles are enabling provisions where we will have to bring forward legislation. When will that legislation be brought forward? Has it been drafted yet? Will the Minister indicate a timeframe for it to come before the Oireachtas?

In recent days the Minister will have heard two voices expressing concern about these articles. On "Morning Ireland" last Friday, David Kenny, an assistant professor of law in Trinity College, said that some clarification should be made in the language used to enshrine the consideration of the best interests of the child in Article 42A.4. He is worried that the Bill does not go far enough to protect the interests of the child, in particular in cases of where guardianship is contested between adoptive and natural parents.

I am sure the Government wishes the child's interests to be the paramount consideration in matters of adoption, custody, guardianship etc., and the amendment commands that this be placed in law where appropriate. It seems clear that while family interests may be regarded in such determinations, what the Government wishes to achieve is a situation where the best interests of the child, assessed independently of other interests, are the primary concern. Family and other interests would then be considered separately.

The problem is that the phrase "best interests" is not new to Irish law. For instance, section 3 of the Guardianship of Infants Act 1964 states that the best interests of the child shall be the "first and paramount consideration" in matters of guardianship. However, the courts have interpreted this phrase in a way that does not necessarily put the independent interests of the child first. The courts have ruled that, in light of the Constitution's very strong protection of the marital family, the best interests of the child presumptively lie with the marital parents.

The leading cases on this point, interpreting best interests in the 1964 Act, are Re J [1966] IR 295; Re JH [1985] IR 375; North Western Health Boardv HW & CW [2001] 3 IR 622, which are the most well-known, certainly to me; and N v Health Service Executive & Other [2006] 4 IR 374, otherwise known as the baby Anne case. I seek clarification that this may lead to a situation where even though the best interests of the child are nominally the central consideration, in reality these are rendered subservient to the interests of the marital parent. One has to show very strong evidence that the child is not best served by its marital parents before this presumption can be shifted.

I believe the Government hopes that this judicial reasoning would be reconsidered in light of the new constitutional language. That may happen, but I do not believe it is guaranteed. The protection of the family in Article 41 will remain after this amendment has been passed, and it would be open to the courts to retain this interpretation of best interests in light of that. If a presumption operates in this way, the best interest of the child are not being independently considered, as I believe the Government would like to see happen. This is not a certain result and the Government's intended outcome could come about. I am simply not certain that this will be the case and I ask the Minister to clarify it. This is particularly the case given that the proposed amendment will not alter Articles 41 and 42 of the Constitution except in so far as it repeals Article 42.5 and inserts a new Article 42A.2.1.

In yesterday'sThe Examiner, Dr. Conor O’Mahony, a lecturer in constitutional law at UCC, raises a similar point. He states:

One of the reasons that this amendment is being put forward is that existing legislation, which already provides for the best interests principle and the right to be heard, has been found to be ineffective due to the overarching influence of the constitutional protection provided to the family in Article 41. In the hierarchy of laws, the Constitution takes precedence over legislation, and legislation falls to be interpreted in light of the Constitution.

I quote those two independent experts to reaffirm some of my own doubts.

I seek clarification also regarding cases not brought by the State for the safety and welfare of the child where the voice of the child should be heard. I do not know if the Minister read it but a case was brought to my attention this morning involving an article in yesterday's edition ofThe Irish Times which suggests that such cases would not be automatically entitled to the fourth proposal because the parents, and not the State, are bringing forward the case. Is that the Government’s intention and, if so, what is the reason?

I appreciate the Minister will not answer this question today but it concerns a judgment delivered on 3 July 2010, KAv Health Service Executive and Others. In that judgment it appears that where the State is not bringing forward the case, cases are not automatically entitled to the fourth proposal. That is worrying. I am sure the Minister will clarify if that is the Government’s intention and, if so, give the reason.

At the outset I said we will support this referendum. I look forward to working with the Minister, all Members of the Oireachtas, the members of the Children's Rights Alliance and the various children's rights groups in a positive manner to ensure that we convey the true message about this referendum but we must be honest and up-front with the people. It is not a panacea. It will not fix everything. I hope the Minister responds to the issues I raised.

The issue of resources is critically important. I accept that what is proposed is a constitutional change but legislative changes were made in the past and reports detailing horrific events have continued to emerge. Without adequate resources and staff being put in place, what is proposed will be mere window dressing.

I have already referred to the adoption legislation, what is in the best interests of children and also children's right to be heard. In addition, I spoke about cases not being brought by the State. The most important aspect of the referendum will relate to eventual implementation. I look forward to working with Members on all sides in order to ensure that every child in this State will get what he or she deserves, namely, a loving and meaningful childhood.

I wish to share time with Deputy McLellan.

The term is often used but I am happy to say that, for me and, I am sure, for everyone else who is interested in the subject which lies at the core of this debate and that which will occur in the Seanad next week, this is an historic occasion. It is one that the children of Ireland have awaited far too long. I commend the Minister, Deputy Fitzgerald, on bringing forward a formula of words which, if passed, will provide a constitutional amendment acknowledging children's rights, as individuals in their own right.

We in Sinn Féin have called for children's rights to be enshrined in the Constitution for many years. It is our view that the minimum standard for children's rights within any state or legal system is the United Nations Convention on the Rights of the Child, UNCRC. This was the view we set out when the discussions around the enshrining of children's rights resumed in 2008. It was the view we held when the then Minister of State, the late Brian Lenihan, produced a formula of words. It was the view to which we adhered during the deliberations of the Joint Oireachtas Committee on the Constitutional Amendment on Children, chaired by former Deputy Mary O'Rourke. It it was the view we retained when former Minister of State with responsibility for children and youth affairs, Barry Andrews, produced a formula of words. The UNCRC must be the document which underpins all of our laws concerning children. As contributors to the wording that eventually received cross-party endorsement at the joint Oireachtas committee, we were pleased that although it did not directly incorporate the UNCRC into domestic Irish law, it did go some way towards including some of the core elements within it. I refer, in this regard, to the principle of equality between all children and that the best interests of all children be paramount in matters concerning them. While the words contained in the final report of the committee, which was published in February 2010, received cross-party support, it is regrettable - it would be a mistake on my part not to say so - that it did not find favour with all who have addressed this matter since.

The Thirty-first Amendment of the Constitution (Children) Bill 2012 does not mirror that wording. However, I acknowledge that it addresses some important issues for children in Ireland. If passed, the constitutional amendment will mean that the "natural and imprescriptible" rights of all children will be protected and vindicated. The precise constitutional meaning of those natural and imprescriptible rights is not clear, however. There is no accompanying legislation which sets out said rights but it is quite clear to anyone familiar with the Irish legal system and establishment that the Supreme Court will not interpret this to mean that the UNCRC will suddenly be part of domestic Irish law. The Bill does acknowledge that children do have rights and this is important. In my view this is a significant step on the road towards ensuring that children's rights, as set out in the UNCRC, will be incorporated into Bunreacht na hÉireann and will become binding upon the State. We in Sinn Féin do not view this amendment as being a panacea to rectify the myriad ways in which the State has failed to cherish all children of the nation equally. It is my opinion that the Minister also shares this view. Sinn Féin sees the amendment as the first step on the road towards incorporating the UNCRC into Irish law. We hope this will be achieved in due course.

This amendment does not do everything we would like it to but it does have the potential to rectify some of the legal barriers that have prevented the State from intervening in marital families where there is child is at risk or is being abused. The amendment will readjust the threshold for State intervention and place an onus on the State to support children and adopt a proportionate response to parental failure in order that cases such as the notorious Roscommon abuse case will not be allowed to happen again. It will also ensure that children who have, in very exceptional circumstances, been totally and utterly failed by their birth families and have been placed in the care of foster families and have formed loving family connections with their foster parents may be adopted by and become the legal children of the latter. It will further ensure that such children will be entitled to all of the rights and privileges which accompany that status. There are 6,000 children in the care of the State. Some of them have been in care for more than five years and have no contact with their birth parents.

The amendment will also accommodate those parents who are married and who, as a result of whatever unfortunate circumstances, may wish to place their children for adoption. While the State must do everything within its power to help keep families together and ensure that they are adequately supported, there will be those exceptional cases where this will simply not be possible. In such instances, the child or children must be given a second chance to experience a loving family relationship. This amendment will have no impact on the definition of the "family" under the Constitution. It will, however, permit the Oireachtas to legislate to allow abandoned marital children to be adopted if this is in their best interests. Under this constitutional amendment those children's best interests would be the paramount consideration for the courts. We cannot underestimate the power of this.

Our only criticism is that this particular constitutional provision means that the courts will not be required to view the best interests of the child as the paramount consideration in cases where there is not a guardianship, or custody or access issue in question. The provision is specifically drafted to exclude the courts from being required to consider the best interests of the child as paramount where the State is merely a party to a case. The provision is drafted so that the wording means that if, for example, a parent of a child with a disability takes a case against the State because she or he feels the latter has breached its duties under the Education for Persons with Special Educational Needs Act as a result of a lack of special needs assistant hours, the courts will not be required to examine what are said child's best interests. I would have argued strongly for a much stronger affirmation of the rights of the child through the process of the all-party committee but I acknowledge that what we arrived at was, of course, a compromise of our respective positions and discussions over that long engagement. Further, outside of those guardianship and custody cases, the child will have no constitutional right to ensure that his or her own views are taken into account by the deciding court. It is restrictive in that it is quite particular, specific, in the areas in which this particular right will be provided for.

If this amendment is passed either in its current form or as amended in our debates over this and next week in the Houses of the Oireachtas, it is important that the Government gives a commitment that the necessary resources will be provided so that the rights provided to children will then actually be realised. It will be essential that the legal profession and Judiciary receive appropriate training on the new constitutional and legislative provisions.

I am happy to note that some of the principles of the UN Convention on the Rights of the Child, UNCRC, have been encapsulated in the Minister's text although Sinn Féin was disappointed with how narrowly they were drawn. This constitutional amendment will not directly affect most children. It will resolve the outstanding child protection issues and adoption issues for children in marital families, but for the child who is living in poverty, or who has had his or her special needs supports cut, or who is in need of additional educational supports to help them through the school year, this constitutional amendment will not address, let alone resolve, their situation. We must be clear about what this amendment does and does not do. Some will be disappointed that it does not go far enough and I would be one of those. Some will think it goes too far and I would like to address that view. I believe the vast majority of people will support this constitutional amendment and see it as a real progress and a strengthening of the foundations of our society. I wish to record that this is how I see it. It is the reason that I and my party will campaign in support of this constitutional change at the conclusion of the debate.

I have referred to other opinion. I have read some of the commentary of those who oppose this proposed constitutional change. As I said earlier, this amendment will have no impact on the definition of the family in the Constitution. I understand that there are people who will be concerned that this amendment will mean that there will be unnecessary levels of State intervention or that the parent will not be the rightful automatic carer of their children. I wish to state categorically that these arguments are false and potentially misleading. While I would like to see a constitutional amendment to change the definition of family in order to more accurately reflect the diverse nature of modern families, this particular proposition will not do so. It will neither alter nor weaken the constitutional family unit. The special protection afforded to the traditional family construct in Article 41, will not be damaged.

I call on the Government to ensure that it invests the required resources to inform people as to the reason for this referendum. It is of the utmost importance that false arguments are shown to be so because what is at stake are children's lives, end of story. Childhood does not last forever, and for far too long in our society we have seen generations of children grow up without their needs being met. If this constitutional provision is passed it will mean that the Irish people will have acknowledged that children have legal rights as individuals. It will be a constitutional acknowledgement that children have the right to be seen and heard, something they did not have in 1937 or since. It will be another important step forward to a new and enlightened attitude towards children. For several years and with what has seemed an almost six-monthly regularity, new reports have been published. Some are historical investigations while others are current and interim. I refer to the Ryan report, the Roscommon case, the independent child death review group reports, the inspections of the special care homes and the investigations into church dioceses. It has been a long and sorry litany. They have made for harrowing reading and we must all have felt ashamed. We have read the details of who knew of child abuse and when they found out and their failures to act. People have cried out: "Why did no one say stop?"

This constitutional amendment gives all voting citizens the opportunity to say "Stop". It is also about starting anew. This amendment is not perfect but it is a major step forward. We in Sinn Féin commend to the Government and to all Members our amendments to the proposed wording. We have tabled them to help make the wording as strong and comprehensive as possible. This referendum is a very real opportunity to make further tangible changes to children's lives in Ireland and it is an opportunity that may not present itself again for some considerable time. I appeal to the Government to look favourably and sympathetically at the proposals being made and to seize the moment and to make this proposed constitutional change the very best and most worthwhile possible. Whatever the outcome of our debate and deliberations over these couple of weeks, I am happy to confirm now that it is my party's intention to proactively participate in the commendation to the electorate of the 31st amendment of the Constitution.

I welcome the opportunity to speak on this issue. Sinn Féin welcomes the proposed referendum on children's rights. As a State and a society, we are all too aware of our abysmal record in terms of the protection of children. Therefore, any measures and particularly legislative measures which safeguard and protect the rights of children, are significant and important. Since the foundation of the State and particularly since the enactment of Bunreacht na hÉireann, children and their accompanying rights were essentially subsumed within the rights of the family. Indeed, specifically child-centred rights are most notable in the 1937 Constitution by their almost total absence. The imposed invisibility, which is enshrined in law, has had major ramifications for the well-being of successive generations of Irish children.

In 1993, speaking during the Kilkenny incest investigation, Mrs. Justice Catherine McGuinness noted that "the very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the right of parents than to the rights of children". The current lack of rights for children in the Constitution places significant restrictions on the legislation that may be enacted and on judicial decisions. Moreover, in many instances, children's rights arise merely as a consequence of their membership of a family, defined in constitutional case law as the marital family. The proposed legislation, should it pass by way of referendum, will essentially give rights to children in their own right for the first time since the foundation of the State.

We welcome this proposal to acknowledge the rights of children as individuals under the Constitution. Nevertheless, Sinn Féin has several concerns in regard to specific provisions. Our first concern relates to language, particularly the vague and abstract nature of sections of the Bill. The proposed Article 42A, for example, begins thus: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." While the reference to "natural and imprescriptible rights" already appears in Article 42.5.5, there is no legislative or constitutional precedent defining exactly what these rights entail. In other words, it will be left to the Supreme Court to define what is meant by such rights. The lack of clarity in this regard is worrying. Moreover, while the Bill makes provision for the best interests of the child to be given paramount consideration, this applies only in instances where the State itself has taken a case regarding the child's safety, welfare, guardianship, custody and so on. Conversely, the courts are not obliged to consider the best interests of the child in cases where the State is a respondent or defendant.

The bottom line is that rights, be they economic, educational, to do with health care, the arts, sports or whatever, cost money. Unfortunately, as we in this House know only too well, when it comes to cutting spending in crucial areas of social provision which directly impact the lives of children, this Government has no qualms about slashing budgets. Lone parent households remain at risk of experiencing persistent poverty. Children of asylum seekers are still subjected to all the negative and destructive aspects of life in direct provision. Traveller children who benefited little from the boom years remain among the most excluded in Irish society. Moreover, not only has the State failed to address this appalling situation, it has actively engaged in the reproduction of Traveller inequality and disadvantage through the various educational reforms which eliminated resource teachers for Traveller children. One in ten children under 17 years of age in this country now lives in consistent poverty. An additional 20%, or 250,000 children, are at risk of poverty, as are children living in households headed by an unemployed person.

For these reasons, while Sinn Féin welcomes and supports the proposed constitutional amendment, we will continue to oppose the cruel and vicious measures which plunge so many ordinary families, including large numbers of children, into poverty. It was recently brought to my attention in my constituency that Youghal Town Council has taken upon itself, with the permission of the Department of the Environment, Community and Local Government, to include the foster carer's allowance as part of household income when determining the weekly rent allocation for a council house. As a result, a constituent of mine who is fostering four and a half year old twin girls has seen her weekly rent go from €32 to €120. When I contacted the Health Service Executive to inquire about this hike, the staff member to whom I spoke was adamant that it could not be the case. Likewise, the official at the Department of Children and Youth Affairs with whom I spoke was appalled by what she heard and said it should not have been done. It seems, however, that such matters can indeed be determined by each local authority and, as such, it is a matter for the Minister for the Environment, Community and Local Government. It is appalling that local authorities are taking so much money from the children for whom this particular allowance is intended.

Child poverty damages children's lives in many ways. While a lack of adequate income is at the core of the problem, it is the knock-on effects such as exclusion from adequate education and play, poor quality housing and inadequate and delayed access to health care, which make a real difference to a child's welfare and fundamentally determine his or her life chances. Sinn Féin supports the proposed constitutional amendment and welcomes any measure that enshrines the rights of children in the Constitution. We remain, however, firmly opposed to Government cuts which negatively impact the life chances of children and their families.

I propose to share time with Deputy Maureen O'Sullivan.

We are very fortunate in this country to have a written Constitution. That is not to say I am satisfied with every provision therein or that I do not wish to see it modernised. However, it does serve to frame the higher principles from which laws are enacted and society is organised. The inclusion of a section in the Constitution dedicated to the rights of children is essential, particularly in view of the failures by the State over many decades to protect them. The wording of the proposed amendment has taken time to produce but is well considered and offers a fair balance. In short, it achieves what it is intended to achieve. It is, however, merely a starting point and must be seen as such. If we are to remedy the many failures involving the welfare of children and draw a line in the sand that will not be washed away by yet another scandal, we must construct integrated institutions that are capable of responding to changing needs and risks. We must resource key services and seek to ensure, in so far as it can be guaranteed, that the children of today and of the future will have better stories to tell than the many tragic stories of the past. Many of those children were not only robbed of their childhood but suffered serious consequences in their adult lives in terms of opportunities lost.

I commend the Minister on her work thus far and on her open-door approach in regard to consultation. This referendum must be about one issue only, namely, the welfare of children. The Minister's approach has reflected that imperative. I take this opportunity to express my support for the proposal and to encourage support for it. As others have observed, the passing of this referendum will lead to no immediate changes in practical terms. It will, however, afford rights the State must assume responsibility for delivering. I was a member of the Commission on the Family which was established following the second referendum on divorce. It was a major initiative which took some three years to complete its deliberations. Some of us found our eyesight was impacted by the volume of material we had to read. The intention was to consider how families could best be supported in the case of divorce and how the problems arising from marital break-up could be minimised. Divorce was intended as a second chance for those who wished and needed to avail of that chance. It was not intended to undermine families, despite some of the scaremongering claims that were a dominant feature of both divorce referendum campaigns.

In accordance with a recommendation of the Commission on the Family, the Department of Social Welfare was renamed the Department of Social and Family Affairs. This was one of a range of useful recommendations by the commission that were subsequently delivered, including the proposal that a Ministry dedicated to the welfare of children and young people be established. The Minister might consider whether there is an opportunity in the aftermath of the referendum to consider in a more complete way, by means of a consultation forum akin to the commission, how best to ensure children and young people can be supported. It is particularly important that such issues remain in focus during these difficult economic times. It will be necessary to examine how to make best use of resources and integrate services. I ask the Minister to consider adopting a similar approach to that taken by the Commission on the Family following the passing of the referendum on divorce.

Cuireadh an díospóireacht ar athló.

Debate adjourned.