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

Atairgeadh an cheist: "Go léifear an Bille an Dara hUair anois."
Question again proposed: "That the Bill be now read a Second Time."

Abuse takes many forms and poverty is one of the forms that rarely gets the kind of attention it deserves. Poverty takes power away from people. It was the children of poor families who often ended up in industrial schools or orphanages. Many of them suffered horrific abuse and were scarred for life. That was at a time when little children were supposed to be seen but not heard. Ironically, it was at a time when we had a greater number of families based on marriage. Often, they could not fight back because it was a time when religious institutions were at their most powerful. Some of that power led to horrific abuse, with successive reports detailing how a powerful institution such as the Roman Catholic Church abused its power by protecting itself at the expense of countless children. It is important to qualify that by saying that I refer to the institution of the church, because some members did not take any hand, act or part in the abuse. Sometimes, that is not said. We must learn from history or else we risk repeating it. That is the intention underlying what we do, namely, the commencement of a process by first putting a referendum to the people.

The commitment to be given in the Constitution, that "the best interests of the child shall be the paramount consideration" is one that must relate to all facets of a child's life. The Ryan report, for example, sought for a culture of respecting and implementing rules and regulations and observing codes of conduct to be developed. That can only be achieved if the institutions are in place and are properly resourced. If all services for children are to be subject to regular inspections, as the Ryan report demands, there must be a sufficient number of inspectors who must be independent and capable of talking and listening to children. I frequently say that in this country we do not have experience of building good institutional architecture. Reform must include such an element of change. Too often we find that one arm of the State is not talking to the other and measures fail the very people they seek to protect. A great deal of attention must be paid to those failures at institutional level. In the context of reform, we currently talk about only one issue, namely, cutbacks. We must go beyond that to bring about serious institutional reform. We have a habit of throwing money at issues without going to the core of an issue to resolve it or building an integrated and workable solution.

While the referendum extends the prospect that many more children might be adopted, that happy outcome will not be available for all children in care. The Ryan report highlights the need for aftercare services. Serious work must be done in this area. Most families would not contemplate dumping out a child once he or she reached the age of 18, yet current guidelines indicate that the State "may" provide aftercare. It does not say it shall provide it. That approach is currently causing great distress for some young people and is in need of urgent change. It seems to me there are two sets of standards, one for services delivered by the HSE and another for 16 to 18 year olds in particular who are in the care of a service that is contracted out. I am concerned that the latter service is about looking after those aged 16 for whom one is paid and getting them out as quickly as one can when they reach 18. We must pay attention to the issue now to avoid talking about it in the future as a form of failure.

One of the major concerns that followed the failure of the economy in recent years was the damage to our reputation.

Our international reputation was further damaged after the publication of the Ryan report, which made international headlines in the UK, Australia, the Middle East, the United States and in other European countries. What the report had found was described as "appalling reading", a shocking scale of sexual and physical abuse in the Irish education systems. "Ireland's shameful tragedy" was the headline in theNew York Times. We will rebuild our reputation if we do not repeat these mistakes and are seen to learn from and respond to them but it is not only about our national reputation, which can be repaired. What cannot be repaired are the children who were damaged. We must anticipate problems and ensure they are not repeated. To do that we cannot merely pass a referendum. If it is to mean something further we will need a world-class child protection system. We cannot use the excuse that the state of the economy will not allow this. We need to make the best use of resources available to us but we also need a vision and a blueprint for the kind of service to which we aspire. We must begin to build and resource that system.

Too often, one institution of the State does not know what another arm of the State is doing. That must stop. Children are often not seen in the delivery of vital services. The Oireachtas Library & Information Service Bills digest draws attention to the family support model, describing the strong legislative framework and leadership that is especially needed to underpin services at levels 3 and 4. These levels are where one really comes across children at risk, where there may be violence and all kinds of abuse. I will offer one example from County Kildare, from the south of the county which is not my constituency. County Kildare has a population of 210,000 which makes it the fourth most populated county in the country. I say this to underline that it is a fairly large centre of population. The HSE built a refuge for victims of domestic violence but there is no money to open it although it is there and available. What is there at present is an information and support service which is really vital. I have referred people to it on several occasions and have been really impressed by the service provided, albeit very limited. When the centre opens the service will need a child protection worker to work in the refuge but it appears this is an afterthought for the HSE although there will be more children accommodated in that refuge, if it ever opens, than there will be women. It must be seen as an essential part of the service. There is also a suggestion that the centre will be run by volunteers. That would not meet the HIQA standards this State demands of such a service. The refuge might be opened, therefore, without meeting the very basic minimum standards expected of it. At present there are people staying in violent situations because there is no place for them to go. That is the kind of service in which one will see children at what are described as levels 3 and 4. We must put this situation right.

We also need to have detox beds for adults with a drug addiction. We often see such adults and can see their children being used and pushed around in situations where drug dealing may be going on, very openly. Those children very often end up in care. If we are serious about keeping children with their families we must deal with the origin of the problem. Having sufficient remedial action for people with a drug addiction is vital.

Increasingly, our focus is exclusively on the cost of everything, and what can be cut further. A greater reliance is being placed on any person or organisation that will assume responsibility for those with problems. In the absence of a blueprint we basically hope for the best. It is interesting to note that some of the most radical notions such as, for example, a welfare state, was conceived by the social reformer, William Beveridge, in 1942, in the middle years of one of the most tragic world events, the Second World War. He was capable of thinking beyond the present and constructing something worth aspiring to although his idea obviously played out differently depending on the country.

Let us aspire to something really world class for children. We need to look beyond what now seems certain and must aim for something bigger in the future. The kind of society we aspire to, how we share limited resources in a more equal way, how we can get more with less, how we protect our children, are all central issues for a good society. This referendum is a beginning but it must be followed by the means to deliver the aspiration it contains. I support the referendum but it must be seen as a beginning and I believe this is something the Minister also accepts.

Deputy Maureen O'Sullivan has 15 minutes.

The very frequently quoted line from our Proclamation mentions cherishing the children of the nation equally. That certainly has not happened in our history but this is an opportunity finally to get it right. The Minister and her Department have done amazing work to ensure the wording is as near perfect as is possible in the circumstances. It goes a long way. I take on board the support from the various reputable organisations involved in children's rights, which is an affirmation of the Minister's work. Those organisations have been calling for stronger protection for children's rights for a long time.

The Ombudsman for Children gave the bottom line as the need to enshrine key children's rights and principles in the Constitution in order to underpin a fundamental shift in our law, policy and practice regarding children. Of course, the irony cannot be lost on us in the Chamber tonight. We are now actively promoting children's rights and seeking to include them in the Constitution but only five or six minutes ago I was speaking on the tragedy and horrors of what went on the Magdalene laundries, when children and young girls were confined, deprived of their rights, stripped of their identity and dignity and subject to humiliating and degrading treatment at the hands of adults. We know about the direct adult involvement, whether it was of members of religious orders or the different involvement of people in State organisations and Departments, or the gardaí who facilitated that abuse and allowed it to continue. For those few individuals who managed to escape there was the horror of being brought back by gardaí.

I am struck by another irony associated with the laundries and industrial schools. The family is central to our Constitution yet many families put their children into those institutions and allowed them to stay there for indeterminate times - one turned the key and forgot about it. That is not to take from those families who cared and visited, as is so powerfully conveyed in much of the work the Justice for Magdalenes group has done. That was not the end of it, of course, because we cannot say there was abuse only in the laundries and industrial schools. It went on in families, sports clubs and organisations and in residential care homes. The two reports, HIQA's national standards for the protection and welfare of children in July and the independent review report on the deaths of children in care, show a litany of failures of instances of how children were so badly treated. This Bill, along with the National Vetting Bureau Bill, the Criminal Justice (Withholding of Information on Offences against Children) Bill, the Criminal Justice (Spent Convictions) Bill and the Mental Capacity Bill, will go a long way. The hope is that the measures will ensure not only adequate but thorough protection for all children. It all comes back to resources and the need for them to be in place to match what is intended.

I refer to the terms of the Bill, the "imprescriptible rights", or rights that will not diminish over time. The Minister has mentioned "all" children. Will this term apply to those children living in the State who are not citizens of the State, in particular, to unaccompanied minors? We know from the Irish Refugee Council that the rights of these children are not being respected. The council's recent report detailed children in our State asylum process who are living in extreme poverty in overcrowded accommodation and with inadequate food. These are the children in the direct provision centres. The report reviewed the conditions over a ten-year period. One of the points that struck me was that children were described as "alienated", as a result of enforced poverty and social exclusion. There was a real risk of child abuse because of the overcrowding in the centres. A myriad issues arise in that regard.

There have been improvements in the asylum process, but the process can take four years, if not longer. Some of the children born here have lived here all their lives. I am aware of the improvements, but these children are suffering in the meantime. I hope the Bill will cover them and also include those children whom we know have been trafficked.

Some reservations have been expressed about the possibility of high handed interference and intrusion in family life. We are aware of cases in which this has happened. There were some horrific cases in the United Kingdom where families were torn apart and children taken from their families. There was an abuse both of the rights of the children and those of their families. Some parents and individuals have a real fear in that regard. I hope the terms "to such extent", "proportionate means" and "due regard" take this into account. I hope they are sufficiently adequate to ensure no family will feel threatened by what the Bill proposes to do.

People can be vicious. I was a teacher and the Minister was a social worker. We know about the making of allegations and the way in which situations can be misused and abused by young people. Care must be taken to ensure balance in order that no family is broken up or a child taken from a family needlessly and that no child is left in a position in which he or she should never be left in. We know there are such examples. We always presume that a child's best interests are served in the family, but that is not always the case and the Bill is doing something to address this.

I am very interested in the adoption issue and aware that work in that area will accompany the Bill. It is welcome that married parents will be able to decide to have their children adopted and that children who have been in foster care for many years can now see light at the end of the tunnel. It is important also to acknowledge the work of foster carers. There are people who foster who do not want to go any further in the process, but there are also those who are fostering with a view to adoption. The reference in the Bill to a considerable period is welcome because a child can be in care for a number of years, there is a process to be followed and then a further process where the child is with the prospective adoptive parents. I am glad there will always be provision for children to maintain contact with their birth parents, but it is welcome that there will be a greater possibility for giving a second chance to these children. We know there are parents who will not parent and parents who cannot do so for a variety of reasons. Such parents need support. I hope the legislation will help parents with particular difficulties such as addiction who need support for a particular period, but it does not mean they are giving up on their children or do not want anything to do with them. Support is needed to ensure they can fulfil their duties. Sometimes there is too much emphasis on rights rather than responsibilities and this is one area where we can see this.

I am also conscious of the father where a couple is unmarried. There are various men's organisations who cater for unmarried fathers who have been done a terrible injustice by the State. Their rights, responsibilities and interest in their child have often been disregarded. I hope they will be covered by the legislation and that they, too, will be eligible to participate in the fostering and adoption process.

I have mentioned the extent of addiction in the north inner city and the number of grandparents and extended family members who take on the responsibility of caring for children. I would hate to think this work would be undermined in any way and hope it can be supported by the Bill.

The Bill states the best interests of the child shall be the paramount consideration. I like the reference that where a child is capable of forming his or her own views, his or her views shall be ascertained and given due weight. There is a balance to be struck in that regard. There is a song with the line, "You say it best when you say nothing at all". Social workers are trained professionals who can read situations and sometimes words do not reveal much; a child's silence can reveal more. If we want to protect children and vulnerable persons, they must be covered in the Constitution. The Minister is trying to do this in the Bill which reflects what we value in society. The Minister is including such provisions in the Bill because we did not value children in the past. I hope we have got it right this time.

This morning I was handing out certificates in a local primary school in the North Strand. The children received a blue flag and a green flag. I looked at all of them, some of whom had just started school. I am always struck by the line in Yeats' poem about the childish day being turned to tragedy. One hopes none of their days will ever be turned to the tragedy that comes with being abused and left in a situation they should not be in. I acknowledge all of the Minister's work on this legislation which goes a long way and I will support.

I call Deputy Jerry Buttimer who will be followed by Deputies Tom Hayes and Tim Daly.

In welcoming the Thirty-First Amendment of the Constitution (Children) Bill 2012 I compliment the Minister for Child and Youth Affairs, her staff and her officials on their tenacity, commitment and resolve in adopting a bipartisan, cross-party approach to bring the legislation before the House. The Minister is to be commended for reaching out, listening and engaging. She was correct when she stated:

We must hope that some day the rights accruing to Irish citizens will be implicit. Until then we must make them explicit.

I hope the legislation will represent not just a new beginning but also the creation of a new Ireland which allows us to learn from what we have done wrong and protects and embraces the welfare of all our children.

This debate is critical. It is taking place at a time when our economic sovereignty is being questioned and our economic recovery is in its infancy. We are saying to families, children and the people that we value each other and that we want to live in a society that cherishes children. On an evening when we have debated the issue of the Magdalene laundries we are saying we have learned from the past and that we want to embrace the future through the medium of this constitutional amendment.

I had the pleasure and the privilege of chairing the Joint Committee on Health and Children which dealt with the Children First legislation. I have been fascinated by people's sense of expectation and excitement in looking forward to the referendum, but I have also been struck by the tremendous work, insight and ability of so many to reach out and make this a better society. The Bill is not just about children; it is also about building the family, supporting communities and stating children at risk must not just be a headline in a newspaper or a statistic in a report. It cannot be a catch-phrase. It states the State will act and work with parents to ensure the dark evil days will be no more.

The House debated the Magdalene laundries in Private Members' time. Seanad Éireann debated Private Members' motions on the issue of homophobic bullying and tonight in this Chamber we are dealing with a Bill to hold a children's rights referendum. It is about putting people first. After the bringing forward of 17 reports, it is very much welcome that we will have a referendum which I hope the people will resoundly pass. Those who question the need for a referendum should do so, but they should also cast their minds back to the reports we have seen. Seventeen reports were written, independent of Governments of all hues; they outlined a catalogue of errors and a failure to act on behalf of children. We have a Government which has reached across the floor and stated we can no longer continue in the way we have been. The journey must not conclude with the referendum. We must continue to work with and provide for families which require the State to intervene and work for and with them. Mrs. Hillary Clinton famously wrote that it took a village to raise a child. I agree with her and, as the Minister stated at the press conference, that the best place for the child is at home with his or her family, but if the family cannot rear him or her, the State has a duty and right to intervene in exceptional circumstances. That is the reason the referendum is vital. It is about protecting children and supporting families. As Deputy Maureen O'Sullivan stated, the amendment is also concerned with addressing the issue of adoption in order to ensure that children who wish to be adopted will be adopted and that families which want to adopt will be able to do so.

The task of arriving at a formula of words may have taken a long time to complete and many may have believed that we would never reach this point. However, we have done what we set out to do. As Chairman of the Joint Committee on Health and Children, I compliment its Opposition members, Deputies Ó Caoláin, McConalogue, Troy and Seamus Healy, and Senator van Turnhout and those on the Government side on the work they have done to ensure that we put children first.

Lest people forget, it must be stated that the forthcoming referendum will reassert the view that the best place for a child is within his or her family. However, I cannot overemphasise the fact that this is not always the case and that there will be instances when intervention will be necessary. The Government has seen to it that for the first time in the history of the State a senior Minister with responsibility for children and youth affairs has a seat at the Cabinet table. It is also in the process of establishing a child and family support agency and has put in place the Children First legislation and drawn up the National Vetting Bureau (Children and Vulnerable Persons) Bill 2012. These comprise a suite of legislative and administrative procedures and policies designed to ensure that the referendum will be another part of the jigsaw relating to Irish society.

I welcome the new Article 42A, which deals with children. This is an important point. It is incumbent on everyone in this House, irrespective of his or her political affiliations or views, to ensure that children are protected. The forthcoming referendum is necessary not just as a result of the failure on the part of the State but also that of the church to act and intervene on behalf of children. The proposed new article declares 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." That is what we are about, namely, ensuring that we allow our society to flourish and blossom. We must, as Deputy Catherine Murphy indicated, send a message to the outside world that this is a new and modern Ireland which has values and a sense of itself going forward.

If one considers our journey from the report compiled by former Supreme Court Justice Catherine McGuinness on the Kilkenny incest case to the point at which we find ourselves today, one can see that this referendum is necessary. The Bill does not merely relate to amending the Constitution, it is also relates to people. If we are to cherish all of our children equally, then the referendum must be passed. If we fail to pass the referendum, it will not necessarily be a regressive step. It will, however, be a statement to the effect that the work done in the past 18 months on a cross-party basis has been worthless. That work is not worthless, it is worthwhile.

In the context of adoption, the Minister for Children and Youth Affairs has in recent days reached out to the authorities in Vietnam and re-established our connection with that country. This shows that there is new thinking and a new approach within the Government in respect of the issues involved.

The forthcoming referendum is important and I encourage everyone to take the opportunity to vote. In particular, I wish to take this opportunity to reach out to the young people in our third level institutions to take advantage of the fact that the referendum is being held on a Saturday. I urge them to go home to vote or to register in the new constituencies in which they are living in order that they may do so. Everybody has a duty to vote "Yes" in the referendum. What is being done here is not about today, rather it relates to the Ireland of tomorrow.

I am pleased to contribute to the debate on this Bill, which is hugely important to many people throughout the country. Amending the Constitution is a serious matter which always requires serious debate. This has never been more true than in the case of the proposed thirty-first amendment to the Constitution. The aim of the amendment is clear, namely, to enshrine children's rights in the Constitution - a document which dictates how our Government operates and that for which our country stands - for the first time. This amendment was not drawn up overnight, it is the result of five years of formal deliberation and almost 12 years of public and private debate.

I compliment the Minister, Deputy Fitzgerald, on arriving at a wording that is acceptable to everybody in the House. Earlier this evening I listened with interest to the contributions of Opposition Members who also praised the Minister. It is a welcome, if not unique, development that we are discussing children in this House and that there is agreement on the matter. I again compliment the Minister in that regard. I also compliment those opposite on being fair and open. What is happening here bodes well for the Houses of the Oireachtas for the future and we must seek to learn from it.

Ireland has been obliged to learn the importance of children's rights the hard way. Members do not need to be reminded of that fact. Since 1993 there have seen 17 reports in which the failures of our child protection system have been outlined in detail. Arguably, one of the most shocking reports relates to the Roscommon child care case. This report laid much of the blame at the feet of the State. It also detailed how it took the relevant health board eight years to react appropriately to horrific levels of child abuse. We watched in amazement as the details relating to that case emerged.

While most of us in this Chamber are in broad agreement on the need for the rights of children to be enshrined in our Constitution, some outside do not see matters in that way. Some opponents say that the forthcoming referendum is not necessary and that legislation alone would be sufficient. I disagree. While it was never the intention of those who framed it, the Constitution, as it currently stands, is vague on this issue. The Constitution can often be manipulated and interpreted as a document which places greater value on the rights of parents than on those of children. In some cases, this has allowed abuse to continue even when that should not have been the case. There are too many examples of instances when the State could have intervened but did not do so simply because it felt vulnerable from a legal standpoint. I contend that this will no longer be the case.

The thirty-first amendment to the Constitution will put the rights of the child front and centre in our legal system. It will give children, having regard for their young age and potential vulnerability, special protection by virtue of formally recognising their importance within our Constitution. The amendment will also remove obstacles for married parents to the voluntary placement of children for adoption. In the absence of this change some children would remain in short-term care for the entire duration of their childhoods, without the possibility of being party to the security that adoption brings. The amendment will also end the current practice of treating children differently on foot of their parents' marital status. It will ensure that the rights of the family, as set out in Article 41 of the Constitution, will be respected and preserved in exactly the way they were meant to be. It must be remembered that our Constitution expresses our priorities as a country, shapes all of our discussions in this House and provides certainty as to that for which we stand.

I wish to conclude by recognising the work already done by the many families throughout the country that have devoted their lives to children in need. I refer to those who have taken in children and helped them through difficult periods in their own lives.

Go raibh maith agat a Leas-Cheann Comhairle. Táim buíoch as ucht an deis labhairt san díospóireact tabhachtach seo.In the words of Herbert Hoover, the 31st President of the United States of America, children are our most valuable natural resource. In the 80 years since those words were uttered the value of that statement has not changed and, if anything, society has a stronger realisation of its truth.

Yesterday I had occasion to visit a residential centre offering treatment for substance misuse to teenagers. I spoke with many of the professional staff who deal with the teenagers and I also spoke with the teenagers themselves. The message I took from my visit is the same as the Minister's, which is the importance and need to suport families. The best way to protect children and to enshrine their rights is by supporting families because the family is the natural home for children and teenagers.

My own family, for all its function and dysfunction, has the privilege of welcoming and taking care of children who are in the care of the State. The experience of fostering children has highlighted many of the wonderful elements associated with caring for children but it has also highlighted for me the very necessary changes required to ensure the well-being of children.

A cursory glance at case law will show there is a need for serious reform at judicial level. The constitutional amendment, which it is hoped will be passed, will make it easier for the Judiciary to recognise the rights of the child. It will ensure that for the first time - ashamedly - the welfare and the well-being of the child will be paramount in all judicial proceedings.

The decisions of the Judiciary which often seem to be cold and clinical, fail to recognise the importance of the needs of the child. I look forward to the day when cases of children being put into care will be decided not in the courts but by a committee of competent persons qualified in the necessary welfare of children.

I refer to other worrying trends that have developed in the child care area. In my past experience as a teacher and currently as a parent and foster parent, I have noted a worrying development in some cases where there is a tendency to over-compensate for a lack of parenting skills by diagnosing and labelling our children. This is detrimental to our society and it will be harmful to our children in the future.

The best support to offer children is to support the family. Society needs to recognise the needs of parents. Not every parent possesses the parenting skills necessary to rear children and many of us lack the necessary resources and wherewithal to do so. If the State is to genuinely put the needs of children first the first step must be to support families. I look forward to us developing those strengths and the necessary parenting skills.

Like many other speakers I congratulate the Minister, Deputy Fitzgerald and her staff on this momentous occasion. She has brought forward a wording which has been deliberated upon for many years by her predecessors and by Oireachtas joint committees. I welcome the wording of the amendment and the decision to hold the referendum on a Saturday which ensures that everyone in the State will have an opportunity to participate in the vote. I hope there will be full participation in the debate over the coming weeks.

The wording is similar to that proposed by Barry Andrews and agreed by the previous Government in January 2011. Significant progress has been made, despite many contentions to the opposite, in recent years. The rights of children have been enhanced through legislation such as the Children Act 2001 and the Child Care Act 2007.

I wish to acknowledge the work of former Ministers with responsibility for children, Barry Andrews and Brian Lenihan. That this proposed wording has achieved cross-party consensus is a tribute not only to the Minister but to all those across the political divide who were members of the previous Oireachtas joint committee chaired by Mary O'Rourke. There is universal approval for the measure before the House, which will be put to the people. It is right, however, to examine the failings of the State in the past and more important, seek to rectify the wording in the Constitution to ensure the many failings recognised in such damning reports are not repeated in the future.

A few points keep re-emerging and which were to the forefront of the minds of everyone who, in the past, sat down with a view to rectifying this situation in the Constitution. The aim is that all children, both from marital or non-marital relationships, are treated the same. The voice of the child must be recognised in the Constitution. A welcome provision is that children are to be treated equally with regard to adoption. This is a very welcome development in addition to the wording and it is vital that it is dealt with alongside the amendment to the Constitution.

Having witnessed these damning reports we have a duty as legislators and parliamentarians to give the electorate the opportunity to make this amendment, based on the best expert advice and opinion that has been used, through the leadership of the Minister. The amendment must ensure that the State takes responsibility and responds in a timely fashion to protect children who are being abused or neglected. It must ensure that the State takes responsibility and will never again stand idly by and allow troubled children to fall through the net and end up in prison and on the streets. It must ensure that children are never discriminated against again. It must ensure that in any legal or judicial setting where the future welfare of a child is at stake, the best interests of that child are paramount.

We accept that the children's rights referendum is not necessarily a panacea for all child protection issues but there are some immediate and substantial differences which it will bring about. It will allow for hundreds of children in long-term foster care to be adopted by their foster parents, something that until now has not been possible. I commend Deputy Jim Daly and I acknowledge his commitment in his capacity as a foster parent. I pay tribute, as did both he and the Minister, to all those who take it upon themselves to nurture and develop the minds of children who have not had the same opportunities as many of us. That is a most commendable trait in any person. Expending effort in so many ways, financially and emotionally, for someone else's child, is a significant service to the State which must be recognised. I am pleased that the proposed amendment contains the options for this service to be formalised in an adoptive nature in the future.

The Children's Rights Alliance notes that currently more than 2,000 children in long-term foster care will be affected by this proposal. As Mr. Geoffrey Shannon, the Government's special rapporteur on child protection, said this week, this amendment will help to prevent a situation where children are drifting rudderless in the welfare system and will allow hundreds of children in long-term foster care to be adopted. We hope the referendum will end the legal limbo in which hundreds of child find themselves and which hundreds more will face in the future unless the Constitution is changed to allow for the adoption of marital children. These are points we hope to reiterate at every given opportunity to ensure the public understands absolutely that these amendments to our Constitution can only improve the lot of the children we seek to protect.

Under the proposed amendment, married parents will be allowed to place their children for adoption. This is about giving all children equal rights regardless of the marital status of their parents. It is not about removing children from their families and putting them into care. The objective is to ensure that children in the care system are no longer left to drift but are instead given a second chance. Mr. Shannon has articulated his view that this will not lead to a situation where larger numbers of children go into the care system. Instead, it will ensure the right children are brought into the system, which is precisely what matters most.

One only has to consider the work of the Office of the Ombudsman for Children to see how children's rights are absent from decision making across a wide range of public bodies. In a report published by that office in April 2011, entitled A Children's Rights Analysis of Investigations, ten investigations by the office in recent years were reviewed from a children's rights perspective. These cases concerned school transport, local authority housing provision, special needs provision, Health Service Executive provision for alternative care and the handling of a child protection complaint. Several common themes emerged in these investigations, with all of them showing that children appear to be largely invisible in decision-making processes which affect their lives and that decision making by public bodies often was not informed by the impact on children or what was in their best interests. In short, decisions taken and how the decision-making process was handled were not informed by children's rights principles. It is amazing in this day and age, despite all the warning signs and all the damning reports, that arms of this State can make decisions without taking into consideration the basic rights of children. The report stressed the need for an amendment to the Constitution based on the principles of the United Nations Convention on the Rights of the Child.

Fianna Fáil considers the proposed amendment to the Constitution as a welcome addition to the legislation already in place to protect the welfare of children. Various items of legislation introduced in the Dáil in recent years were welcome in so far as they went, but they did not complete the package as this proposal will do. As such, we congratulate those involved in bringing the proposal to this stage. Our decision to submit amendments is based purely on a desire to strengthen the proposed wording as much as possible. It is not an attempt to take from what is before us or to deflect from the effort and commitment attached to the achievement of having brought the proposal before the House. It would be commendable of the Minister to assess our proposals on their merits. To reiterate, we fully support the Government proposal and will campaign for a "Yes" vote. Nevertheless, we are of the view that the proposed wording could be amended slightly to afford even greater protection for children.

Specifically, our proposal is that the draft Article 42A.1 be amended to make it consistent with the constitutional protection afforded citizens under Article 40.3.1. The latter provides that, "The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen." A similar level of protection could be afforded in the new article concerning children by amending the proposed wording to read as follows:

The State recognises and affirms the natural and imprescriptible rights of all children and guarantees, as far as practicable, by its laws to defend and vindicate those rights.

This configuration would ensure the same protection for children as is provided to the citizen in Article 40.3.1. This is necessary and appropriate since it is likely that the courts will interpret children's rights as being protected by the new Article 42A.1 rather than Article 40.3.1.

Our second amendment proposes that the exceptional cases intervention provided for in Article 42A.2.1 be clarified to correspond with the statutory protection afforded to the child under the Child Care Act 1991, which refers to the "health, development or welfare" of the child. It is proposed that this be mirrored in the wording of the constitutional protection. For the same reason, Fianna Fáil proposes, in its third amendment, that Article 42A. 4.1(i) be amended by replacing the reference to the "safety and welfare of any child" with a reference to the "health, safety, development or welfare of any child".

I ask the Minister to give careful consideration to our amendments. I conclude by commending her once again on the work she has done to bring this proposal to the House. I hope she will be rewarded by way of a resounding "Yes" vote by the electorate. I thank other speakers for the insight and personal experience they brought to bear in their contributions. If this Dáil were to achieve nothing other than the successful passage of this proposal to include specific rights for children in the Constitution, it will have been a good Dáil.

I propose to share time with Deputy Tony McLoughlin.

I congratulate the Minister, Deputy Frances Fitzgerald, on her handling of this very sensitive issue. It has been recognised for years that a constitutional amendment was required to guarantee that children's interests are foremost when the State is dealing with their rights. I take this opportunity to thank Deputy Barry Cowen for his contribution. It is heartening to see a Government proposal receiving such a resoundingly positive response from the Opposition. It goes to show that when we get it right, everybody is an agreement.

The family plays a very important role in Irish society, but the concept of "family" has changed over the years. We must seek to recognise these changes while always ensuring that the welfare of the child is protected. The balance between the rights of parents and children was always a sensitive issue and the Constitution has strong provisions protecting parents' and family rights. The inclusion of the exceptional circumstances proviso seeks to maintain this balance by ensuring the State will intervene only where parents are totally incapable of looking after the best interests of their children. Unfortunately, several recent cases have shown the need for such intervention by the State.

It has been argued that this type of intervention is already possibly through the application of existing laws. The reality, however, is that the current position sets up a conflict between the rights of parents and the rights of children, a lack of clarity which inevitably leaves matters open to interpretation by the courts. This constitutional amendment, along with the accompanying legislation, clarifies the whole area by putting the rights of children to the forefront. In future, all legislation will have to be proofed against its provisions.

I particularly welcome the provision that children in foster care may, in certain circumstances, be adopted. Again, the wording is well balanced:

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 interest of the child so requires.

The practice in Ireland up to now is that children in long-term foster care placements were being adopted just before their 18th birthday. Long-term foster parents have adopted this approach so that the child they have fostered for many years can avail of all the legal rights offered to adopted children.

Given that the Constitution promises to cherish all the children of the nation equally, it is astonishing that the unjust circumstances pertaining to adoption have been allowed to continue for so long. Even in Britain, which does not have a constitution enshrining a promise to cherish the country's children, the adoption of children who have been in foster care for 12 months is permitted.

Under the proposed adoption legislation, children of married parents will be eligible for adoption once they have been fostered for 36 months. The key element in this proposal is that the time envisaged will ensure a child's parents have every opportunity to prove they have the capability of caring for their child should they wish to do so. The proposed law will also mean a child must spend 18 months in the foster care of his or her proposed adoptive parents. As a result, the adoptive parents and child will have sufficient time to ensure adoption is the desired option.

The new legislation recognises the right of children to be heard. Where children are capable of having a voice, their voice must be taken into account. The views of the child will be taken into consideration and given due weight in accordance with his or her age and maturity. For the first time, input about a child's welfare will not be made solely by adults because the opinions of the child in question must be taken into consideration.

This referendum has the potential to change children's lives for the better by enshrining their rights in the Constitution. I am pleased this major step forward in promoting the legal, emotional and social needs of all our children who remain vulnerable is being fully supported by all political parties and organisations dealing with child welfare. I believe that on polling day a large majority will vote in favour of this amendment to the Constitution. I concur with Deputy Cowen's point that if nothing else is achieved in this Dáil, the children's referendum will at least be remembered.

I congratulate the Minister on recently finalising agreement with the Vietnamese Government on the adoption issue that has been ongoing between Ireland and Vietnam. I understand Vietnam has signed up to the Hague Convention, which has allowed the Minister to sign an agreement that will resolve many of the difficulties experienced by Irish couples seeking to adopt Vietnamese children.

Protecting the rights of children and giving them a better life must always be at the heart of society. For this reason, I am very pleased the Bill is before the House and that, on 10 November, people will be given a chance to vote on an important and necessary change to our Constitution. I am, therefore, pleased to commend this Bill to the House.

I am grateful for an opportunity to speak on this important Bill. I was elected to the House in 2011 when, for the first time in our history, the Taoiseach appointed a full Cabinet Minister with responsibility for children. It is important to pay tribute to him and the Tánaiste for recognising the importance of placing our children at the heart of government. The establishment of a full Department of Children and Youth Affairs is significant as it signals the intent of Fine Gael and the Labour Party in government to address children's rights.

Over the next seven weeks, children will be at the heart of political debate. This fact alone is to be welcomed. To date, opposition to the referendum is small and focused, which tells us much about the weight of opinion behind the "No" side of the debate. Nevertheless, it is important we examine the points of opposition to the Bill and referendum. The former Supreme Court judge, Hugh O'Flaherty, has argued that the referendum is unnecessary and in a recent eloquent article in theIrish Independent referred to the skill of President de Valera in drafting the 1937 Constitution. While I am not a lawyer or constitutional expert, it is clear from the Roscommon child abuse case that our Constitution proved inadequate when challenged to provide for the care of children. The shocking case to which I refer, involving the abuse and neglect of children at the hands of their parents, was well documented and highlighted in the media. Social workers who sought to intervene to protect the children in question were met by a High Court challenge taken by the parents of the children in question. Their action was successful and the children continued to suffer for some time afterwards.

Unacceptable as it was, the judge's decision in the case was based on a reading of Bunreacht na hÉireann. The children's interest makes the case for change. The new Article 42A provides that: "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."

Of approximately 30,000 child protection and welfare concerns reported to the welfare services last year, the majority were addressed by way of support to the parents and families in question. More than 16,000 of them related to child welfare, including 1,500 confirmed cases of sexual, physical or emotional abuse. This referendum seeks to ensure children at risk are protected from harm and sets out when and how intervention should occur. Intervention is an issue for the small number of people who oppose the referendum who argue that personnel from the Health Service Executive and social services will havecarte blanche to remove children from their parents and homes. However, the key proposal sets out when and how intervention should occur and provides for a focus on the child in that it refers to the impact of parent failure on the child’s safety and welfare rather than solely on such failure and the reasons for it. Overall, Article 42A focuses on affording protection to children under the Constitution, while respecting and preserving the rights of parents and families.

I welcome developments in adoption reform. I listened recently to a radio interview with a lady who detailed how she and her family had fostered a child for 12 years beginning at the age of three. It was obvious the child in question was in a loving home where it was cherished and loved. When the child sought to be adopted by the foster family, with its wholehearted endorsement, this provided impossible. The legislation and proposed constitutional amendment, if passed, will change the position for children and foster families in such circumstances and is, therefore, warmly welcome.

For many years, some children were taken into care and institutionalised and it is well documented that the State did not protect them. However, many people have provided magnificent support and care in their homes for children who had to be taken from their parents as a result of abuse. Many of the children in question were fantastic individuals who were able to progress to adulthood and lead lives free from social and mental deprivation. The real heroes are the foster families and the women and men who lead them. The referendum proposal and associated legislation to be published at the same time will provide greater possibilities than are currently provided for children to have a second chance by means of adoption by a loving family. In addition, it is intended to allow for the first time for the voluntary placement for adoption of a child of married parents who voluntarily decide they are not in a position to care for it. Such voluntary placements are currently only possible in the case of children of unmarried parents.

I share the belief held by many other Deputies that the family is at the centre of society and life. This is a Christian philosophy. I sometimes worry what the future will hold if the family model breaks down. Social breakdown, crime, drugs, sexual abuse and underage alcohol consumption have all resulted from family breakdown. When one parent leaves a relationship, the other partner may not be in a position to manage the children on his or her own and matters spin out of control. While this may be a debate for another day, it is a concern for society when family units break down because children in such broken partnerships often lose their way.

I welcome the proposal in the Bill to give firmer recognition to the protection of the rights of children under the Constitution while continuing to respect and preserve the rights of the family, as set out in the existing Article 41 of the Constitution. Many other proposals in the Bill are also worthy of mention but time does not permit me to discuss them. My final words are for the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, and her team in the Department who worked hard over the summer to prepare the legislation. They have got the wording and timing of the referendum right. The criticism levelled at the Minister that she should have moved more quickly and announced a date for the referendum earlier is not valid. Time is needed to prepare any proposed wording to change the Constitution.

Cuireadh an díospóireacht ar athló.

Debate adjourned.
The Dáil adjourned at 10 p.m. until 10.30 a.m. on Wednesday, 26 September 2012.