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."

Deputy Martin Ferris

My party welcomes the decision to call this referendum. My colleague, Deputy Ó Caoláin, was one of those who did tremendous work on the all-party committee on the proposed amendment and Deputy Adams is on record congratulating the Minister and everybody associated regarding the work that has been done on this proposed amendment.

The fact that there is almost universal support for the proposed wording is a tribute to the committee and, indeed, as with some other rare reports and issues, is testament to what can be achieved when all parties co-operate on issues that are not, or at least should not be, party political in nature. If there was ever an issue that is not party political in nature, it is the rights and entitlements of children, and fair play to everybody concerned.

We have noted publicly that the proposed text is not exactly that agreed by the committee and as a matter of course consulted our own legal advisers in regard to minor amendments which we and others feel may be necessary in order to come closer to the spirit of what was agreed at the committee. Deputy Ó Caoláin has tabled a number of amendments in that spirit which will be debated here. We are doing so in order to bring the wording closer to the wording favoured by the committee and to strengthen the protections that it is proposed to insert into the Constitution.

The amendment after line four is to restore the recognition of the need for equality between all the children of the State as was recognised by the original wording proposed by the committee two years ago. It also is in line with the republican ethos of equality for all citizens and the need to recognise children as full citizens, something which has not been the case over much of the history of the State. Tonight we continue last night's debate on the Magdelene Laundries and what happened the children who were put into institutions. They had no protection and no rights. We are cleaning up the mess where previous Governments, the political establishment and the State failed children so terribly in the past. That is what we are trying to do to ensure that there will be protection for children in the future.

The amendment to Part 2, to substitute the phrase "brought by the State" with "that the State is party to", is designed to tighten up the definition of cases involving children in which the State may be involved in any manner, and not just where the State might be the guardian where a child is in public care. The key concern must be to ensure that the State is clearly defined as the ultimate guarantor of the constitutional rights of children. That is essential to guard against any situation in which it might be argued in law that no one has any right to intervene where there is clear evidence of or a strong belief that children are being denied those rights.

Later this evening we will be return to the debate on my party's Private Members' motion on the Magdalene laundries and the horrors that led to underline the dangers of a situation in which citizens, many of them legally children, were denied basic human rights. That is a legacy of a hopefully receding past, but one the consequences of which still need to be addressed in order to ensure justice for the survivors.

Of course, it could also be argued that at the time of the Magdalen laundries and the industrial schools the State had abdicated its responsibilities in that regard and, in effect, privatised what was regarded to be a solution to a supposed problem of girls and women who were perceived to have offended against supposed social norms of morality. That underlines the importance of enshrining basic rights in the Constitution so that the protection of those rights are never subject to current prejudices or even political ideology, but are enshrined in law. That, indeed, is the purpose of a Constitution and the ability to amend that Constitution, as is proposed here, ensures that it can be brought into line with changing circumstances.

The ideological issue relates to the period in which Bunreacht na hÉireann was drafted. It contains many positive aspects and in the context of the time was not the uniformly reactionary document which some now see it as. There were genuine concerns about the role of the state in the 1930s when most of the peoples of Europe were under totalitarian rule of one form or another. Other European democracies did not have a constitution and that was seen as making them vulnerable to the erosion of rights.

Totalitarianism regards people not as free citizens of a state but as virtual state slaves, here only to do the bidding of the state. The concept of rights does not exist. However, the other extreme of claiming that the state ought to have no business in legislating in areas such as children rights, is equally flawed.

There are clearly circumstances where the rights of children need to be protected even against their own parents. We have seen in many instances where that was required and, unfortunately, will in the future require direct public intervention and in some instances the removal of children from dangerous family situations.

While most people appear on poll and other evidence to be satisfied with the proposed amendment to the Constitution, there are some dissenting voices. They deserve to be allowed state their case and their arguments need to be taken on.

One of the arguments in opposition is that the proposed amendment will give the State too much power and might even potentially lead to a situation in which the State would have tyrannical powers over parents and families. Examples have been given by opponents of children potentially being taken from their parents because a teacher, nurse or other person in contact with a child formed an opinion that the child was in actual or potential danger. There is a certain validity to that argument but it does not carry sufficient weight to counter the need for the provisions proposed. Professionals in contact with children need to be properly trained in the area of dangers to children and there ought to be safeguards against arbitrary and mistaken interventions. However, that is not a strong enough argument against what is proposed in this amendment. My party's advice also is that there is no danger, as argued by some of the more extreme opponents of the amendment, that the State will, in effect, become the ultimate legal guardian of all children.

Of course, we must also recognise that the State has a responsibility to improve its own dealings in the area of child protection. There is the historical legacy of the industrial schools and the Magdalen laundries, but also more recent and current shortcomings.

One of these is the situation of children in the care of the HSE. A worryingly large number of those children attempt or are successful in leaving HSE accommodation. At present, in the region of 200 children are officially under HSE care but are unaccounted for. That is not an acceptable situation. While there are clearly many factors involved, it is an area that needs to be further investigated to ensure that children are not disappearing into lives of great potential danger, including trafficking.

In conclusion, my party welcomes the decision to hold a referendum on children's right and sees it as a positive step for society. We look forward to debating our proposed amendments and to studying the provisions in the current wording. We are dealing with a terrible legacy and there are concerns regarding the State becoming the guardian of the child. The State must be the guardian of the rights of the child, not the guardian of the child, just as it must be the guardian of the rights of every citizen. If we as legislators can do anything towards improving the Constitution, what we do must concern protecting rights and ensuring the rights of children, senior citizens and everybody are protected. I look forward to the debate, but overall it is a welcome development.

An Ceann Comhairle

I call Deputy Penrose, who is sharing his time with Deputies Dara Murphy and Heather Humphreys.

Deputy Willie Penrose

I sincerely welcome the fact the Government has finally published the wording of the 31st amendment of the Constitution on children's rights. I compliment the Minister on doing so and on the publication of the Adoption (Amendment) Bill 2012, which facilitates the adoption of children born to a marital family but who are in long-term foster care, which I understand will be defined as being for a period of at least 36 months. This referendum will have a particularly significant impact in ensuring there are no inequalities between children when it comes to adoption. It is amazing the number of people I have met in the course of my professional life who were unable to recognise this distinction, but a number of articles that have appeared of late have been very useful in informing the public of this particular aspect of adoption.

The Minister has outlined a number of key objectives in the proposed constitutional amendment, including the protection of children and a focus on the "best interest" principle. The concept of "best interest" is already well known and illustrated in Irish law and was a core element of the Guardianship of Infants Act 1964 and the Adoption Act 2010. It is a well defined principle, but it is now being given the imprimatur of constitutional backing. Other core objectives are supporting families, the removal of inequalities in the area of adoption and the recognition of children in their own right. The voice of the child will now be heard, as circumscribed in the new Article 42A.4.2°. This is important, notwithstanding the fact that in family law proceedings the voice of the child could be heard. Now, however, this provision will part of the bedrock of the Constitution.

Our Constitution is now 75 years in existence. It is the origin of the fundamental or basic laws of the State and guarantees a wide range and spread of personal rights. We must acknowledge that many rights have, through judicial interpretation, been expounded upon as a result of proceeding through the High and Supreme Courts and we must be grateful for the level of judicial activism that put flesh on many rights through the interpretation of constitutional law, our bedrock or fundamental source of law.

Children have rights under the Constitution, under Articles 41, 42, 43 and 44, which are the same fundamental rights granted to all ordinary citizens of the State. These rights are implicit. However, the conundrum arises when we examine the express constitutional provisions for references to children. It is only in Article 42.4, which concerns the provision of free primary school education, we find direct reference to children. We will leave aside for now the notion of free primary school education, which has never been as expensive as it is now. Those who say children are virtually invisible within the Constitution are broadly correct in their analysis.

The primacy of the nuclear family is defined in the Constitution and the special protection afforded the family under Article 41 remains firmly preserved and is not impacted upon by the insertion of this new amendment. This is as it should be. As parents, we are acutely aware that the rights of parents and children are always inextricably linked. This fact can be garnered from the UN Convention on the Rights of the Child, introduced in 1989 and adopted and ratified by us in 1992. The family is recognised as the fundamental grouping in society and as the natural environment for the growth and well-being of children. Parents have, therefore, primary responsibility for the upbringing and development of their child.

Article 18 of the convention affirms that the family requires protection and assistance to fulfil its responsibilities and places a clear duty on the State to support parents in rearing their children. Of course, children have a right to be cared for by their families and this duty places an onus on parents to which they have not always adhered. As we have seen from recent HSE performance monitoring reports, there are 6,282 children in the care of the State and 5,724 of these are in foster care.

A number of rights interpreted in the Constitution and originating in the umbrella Article 40.3.1° are termed unenumerated rights, because they are not found directly in the wording. However, as stated previously, they have derived from judicial interpretation. In the absence of judicial activism, such rights might not have been found, and even when found, they are not absolute and can be limited or circumscribed by subsequent judicial decisions or by Government inspired legislation to restrict their application. I could mention 100 of these in the education area that I have come across in practice. Therefore, if a right is not expressed, it may not be found and if it is found, it can be subsequently circumscribed or restricted. That is the simple reason we need the amendment. There is no big hullabaloo about anybody interfering with a family or trying to rush in and take children away from parents.

We are all aware that children's rights are determined by the marital status of the child's parents. Therefore, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family. This is now a kind of stand alone provision. The new provision recognises explicitly that children have rights and that all children are equal. This, thereby, permits the balancing of constitutional rights where necessary. In other words, we are recalibrating the rights in a hierarchy. The principle of the paramountcy of the "best interests of the child" to guide court decisions when resolving disputes involving adoption, guardianship, custody or access and the acceptance of the principle of "hearing the voice of the child" in any judicial and administrative proceedings affecting the child will now have constitutional affirmation if this amendment is passed.

We are all aware of the background to the reasons this amendment is required. I will not recount these as they have been referred to by Deputies Ferris, Troy and the Minister. We are acutely aware of the failure of the State in numerous cases to intervene in a timely way, especially in cases of abuse and neglect. Therefore, it is vital it facilitates State intervention and thereby places an onus on the State to support families and adopt a proportionate State response to parental failure. The State must step up to the mark. We should acknowledge it has a chequered history with regard to where children are concerned. We cannot now just put down a marker and say that is the end of the matter.

The reformation of the adoption laws is an important step, with over 6,200 children in the care of the State and approximately one third of these children in long-term care for more than five years. Some of these have had little or no contact with their birth parents. The legislation that will be introduced once this amendment is passed will allow children in the care system who have been abandoned to be eligible for adoption if this is in the best interest of the child. Likewise, it will allow that children can be voluntarily placed for adoption, but with due safeguards to ensure that such a decision is not made under any coercion.

Recently, I read an excellent article in The Sunday Business Post by Dr. Aisling Parkes and Dr. Simone McCaughren, both lecturers and experts in their respective areas of law in UCC. This article expanded in a lucid and comprehensive way on what this referendum will mean to those in long-term foster care. It focused in particular on the fact that currently it is virtually impossible for children born to married parents who are placed in long-term foster care to be placed for adoption, despite obvious failures on the part of the parents in caring for the children. It also pointed out that unlike other children, such as those who grow up in their birth families or who have been adopted, these foster children are only afforded partial inclusion in family life and remain in a state of limbo.

Under the new adoption Bill, marital children will be eligible for adoption once they have been in foster care for a continuous period of 36 months preceding the date of application. The Bill provides as a protection that there must be no reasonable prospects that the child's birth parents will be able to care for the child properly so as not to impact negatively his or her safety and welfare. This provision will only apply in the exceptional circumstances outlined by the Minister.

Where children are capable of forming or expressing their own views, their voices will be heard and given weight in adoption cases.

That will depend on the age and maturity of the child. The evaluation will be predicated on what is in the child's best interests. I can do no better than to repeat the conclusion delivered by Dr. Parkes and Dr. McCaughren in their excellent article:

This referendum has the potential to change children's lives for the better by enshrining their rights in our Constitution. A constitutional provision that promotes the legal, emotional and social needs of all children who remain vulnerable in Irish society should be embraced.

All that remains for me to say is I hope the referendum will be passed and that the necessary resources will be provided to enable the Minister to achieve what is set out in the Bill and the constitutional provision it will introduce.

Deputy Dara Murphy

I welcome the presentation by the Minister of the wording of the forthcoming referendum on children's rights. As she is sitting in front of me, I take the opportunity to compliment her on the work she has done to date. This is the first truly all-party issue to have come before the House since I was elected, in the sense that we have put aside our political differences in the interests of children who unquestionably comprise our most important resource. While politics is an adversarial business, it has to be acknowledged that everybody has come together in this instance. The importance of the referendum cannot be understated in that context.

In the light of the Government's commitment to hold a number of referendums, it has been suggested some sort of league table should be drawn up to categorise them in order of importance. As someone who has three children, it should be beyond question that nothing is more important to Irish people than how our youngest and most vulnerable citizens are treated, protected and cared for. Our history as a people is by no means perfect in this regard. Much of what we have been reading in recent days should reinforce the ambition of the people to start the process of making a statement about ourselves and our intentions as a people, race and nation. Perhaps the most positive aspect of the referendum is that it gives us an opportunity to begin to effect real change for everybody in the country. I do not believe the referendum will affect the vast majority. I hope and pray it will not. It will serve to protect the important institution of the family.

The State's child protection agencies were required in 30,000 cases last year, some 16,000 of which involved children and some 1,500 involved suspected child sexual abuse. I remind the House that the Proclamation of the Republic states "the Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all of the children of the nation equally". Many believe that quotation comes from Bunreacht na hÉireann, a copy of which I can see on the Minister's desk, but that is not the case. In a newspaper article today an esteemed judge writes that he believes this reference should have been inserted in the Constitution when it was drawn up. I suggest it is not too late to place it in the Constitution.

It is important to remind the House that organisations such as the Irish Society for the Prevention of Cruelty to Children and Barnardos have been supporting the calls for the referendum to be arranged. In recent years many reports have called for this constitutional protection to be put in place. It is incumbent on all of us to encourage strong and vibrant debate and explain the four key areas covered in this proposal - protecting children, supporting families, removing the inequalities in the current adoption regime and truly recognising children in their own right for the first time. The last of these four areas is perhaps the most important because there is a need to take the constitutionally protected views of children into account. It is of paramount importance that we provide for this in the Constitution.

I again compliment the Minister. I encourage those of us who can influence people on the ground to talk to them in order that it cannot be said on 10 November next that the public is uninformed. It is part of our job as elected representatives to meet people and give them the information they want. I will certainly be doing this.

Deputy Heather Humphreys

I compliment the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, on introducing the proposed amendment to the Constitution which will protect children, support families and ensure all children are treated equally. The amendment represents a large amount of work. I know the Minister and her staff have worked extremely hard and consulted widely to produce a carefully worded change to the Constitution. Their hard work has paid off, as there appears to be broad agreement for the proposed amendment. Almost 20 years have passed since the retired Mrs. Justice Catherine McGuinness first called for constitutional change of this nature. That request was made on foot of a case in which a father had persistently raped and abused his daughter over a 15-year period. Successive Governments since have discussed the issue, made promises, examined options, established committees and prepared report after report on how best to protect the rights of children under the Constitution. It finally took a Fine Gael Minister - a woman at that - to do something about the matter.

From the outset, the Government has shown that it intends to be a Government of action with regard to children's rights. For the first time, a full Department was established to take responsibility for children and youth affairs. The Minister has worked tirelessly since she took office. I commend her for taking responsibility and dealing with this issue. The proposed change to the Constitution is just one part of a series of actions being taken to create a more child-friendly environment. One of the inequalities involves the different treatment of children under adoption law, depending on whether their parents are married. The referendum will address this matter in order that foster parents can adopt children who have been living with them for many years, in some cases.

We were all shocked by the findings of the Ryan report, in the Roscommon case and the independent report on child deaths. The circumstances and attitudes that allowed such abuses to continue have to be challenged and overcome. We need the referendum to protect the rights of children under the Constitution. It is important to point out that the amendment supports the family. Article 41 of the Constitution will continue to protect it. The referendum is about the safety and welfare of children; it is not about taking children from families. The State will be able to intervene only in exceptional circumstances, where there is a failure of parental duty. This is only right, as no child should be sacrificed to protect his or her parents or the institution of marriage.

The amendment to the Constitution is the starting block as we strive to protect the children of Ireland. It is critically important that the appropriate structures are in place to ensure children are protected. Earlier this year the Minister published the report of the task force on the child and family support agency, which is an essential part of our efforts to respond to the needs of children. The report is the foundation for a revolution in child protection and family services. The new agency will bring a dedicated focus to child protection and family support for the first time in the history of the State. Its establishment will mean that when a child comes to the attention of a social worker, an educational welfare officer or a garda, he or she will be brought into a single system and a single continuum of services, all of which will be focused on his or her well-being.

We are moving from a position where the provision of child and family welfare services was barely a priority to one where it will be the sole focus of a single dedicated State agency, overseen by a single dedicated Department. At the heart of the new agency will be a new service delivery framework which will differentiate between child welfare and protection cases in order that family and child welfare concerns can be responded to by way of new multi-agency, community-based models for early intervention and family support services.

The reference in the proposed constitutional amendment to proportionate responses will further underpin the development of these services. This is all about family support and early intervention. Family resource centres will also play an increased and very important role. I was delighted to hear the Minister state earlier that the legislation to set up the new agency will be introduced and enacted in the current Dáil session.

The children's referendum is very welcome. I believe it will mark a turning point in people's attitudes to the issue of children's rights. As citizens of this country, we all have a collective responsibility and obligation to ensure our children are protected. Horrific mistakes have been made in the past, there has been a lack of accountability and children have suffered as a result. It is up to us now to learn from those mistakes as we look to the future. After all, our children are our future. When good men and women fail to act, evil prevails.

Deputy Sean Fleming

I welcome the opportunity to speak on the Bill. I welcome its presentation by the Minister, Deputy Frances Fitzgerald, in her new Department and congratulate and thank her for completing the work that had been ongoing and bringing it to fruition as a meaningful and positive contribution for all of Irish society. For too long, children were to be seen and not heard, but now they will have a voice.

I want to deal with a number of issues and I will deal first with the wording to be put into the Constitution. I fully support the wording and I want to elaborate on a few areas in which some people may want to pick holes during the referendum campaign. The first sub-article of the amendment 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." People have already criticised the phrase "as far as practicable" but it is a fair and reasonable wording to include in the amendment because, if it were not there, there would be an absolute requirement on the State to provide a particular set of rights over and above everybody else's. In an ideal world we would not need this but, unfortunately, we live in the real world and people can only do what they can do. That is why I support the phrase "as far as practicable".

Sub-article 2.1° states: "In exceptional cases, where the parents, regardless of their marital status ..." This is very important as people are afraid there may be cases in which children will be taken from married parents. The word "exceptional" is proper. The Supreme Court is normally quite a conservative body and it will interpret that in a correct manner. People do not need to fear that anything negative will happen in this regard.

The sub-article continues: "the State ... shall, by proportionate means as provided by law, endeavour to supply the place of the parents ..." I support the use of the phrase "by proportionate means", which is important. I believe that phrase entered the political lexicon recently in regard to judge's pay in that judges were afraid they would be picked out and that this would be disproportionate. Using the word "proportionate" is correct because everything in society must be proportionate and this will ensure the State acts in a proportionate manner and does not go over the top or drag its feet. The inclusion of "proportionate" is sensible and, at the risk of sounding clichéd, it is a proportionate word to use in this circumstance. Again, this sub-article stresses "the natural and imprescriptible rights of the child."

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 ..." There is separate legislation in this regard, the general scheme of which has been published. If the referendum is passed, which we all hope it will be by an overwhelming majority, that legislation will then be introduced. It is important that people have sight of this legislation now in case they think there is something coming down the tracks that they do not know about. During the course of the debate in the weeks before 10 November, people will be looking at this in a little more detail and it is important that they be fully briefed on the legislation. Initially, we are talking about the referendum but the legislation that will flow from this - if it is passed, as we hope - is equally important in order to give effect to the good intentions we want to insert in the Constitution.

Deputy Penrose stated that the phrase "failed for such a period of time" refers to a period of three years, which is reasonable. Up to now, this could have been interpreted to suggest that while a person may have failed, it is not forever. This would almost abandon the child because of the need to satisfy some judges that a parent had failed in his or her duty if there is even a prospect that he or she might have a Pauline conversion in ten years' time and be willing to look after the child despite not having done so previously. That issue has now been dealt with.

Voluntary placement in regard to adoption will also be dealt with in this legislation, which is very important, and sub-article 2.2° also refers to the "best interests of the child" being a paramount consideration. The final provision, sub-article 4.2°, states: "Provision shall be made in law for securing, as far as practicable, in all proceedings ... in respect of any child who is capable of forming his or her own views, the views of the child ... shall be ascertained and given due weight, having regard to the age and maturity of the child." This is also important. We all know the views of infants will not be fully informed but a 12 or 14 year old child may be capable and know what is going on. When we talk about a child, I presume we are talking about minors up to 18 years of age. Although this might be spelled out during the debate, we need clarity on this issue of obtaining the views of the child.

I presume all of these cases will be held in the family law courts, as most such cases would have been up to now. In that situation, they would be held in camera, which is fine, as it is important that the privacy, personal integrity and family details of the people involved are protected from people with a prurient interest in some of these matters. However, given that we are now putting children's rights into the Constitution, and given that such cases have to be dealt with in camera - as it would be unfair to put children in open court in front of large numbers of people - it must be taken into account that while privacy must be respected and maintained at all stages of the proceedings, there must be some method of ensuring that the outcomes as decided by the various judges in particular family law courts are made available to ensure there is consistency. If everything is done in private, one judge in one part of the country could be following a particular line for years while another judge in a different part of the country is following quite a different line in similar cases. It is important that people should not be victims of geography or of the views of a particular judge. This is why it is important there is some way of monitoring the outcome of these cases while, I stress, respecting the privacy of the people involved.

Many questions could be asked about why we need the referendum, but that has been well established. We want to give children a voice because their voices must be heard. We also want to ensure they have a chance to be adopted and become part of a family, especially where they have been abandoned or are in long-term foster care, and to ensure the State will respond much more quickly than it perhaps has in the past in cases of abuse and neglect. We also want to ensure that in judicial settings, as I have outlined in regard to the wording, the child is at the centre of the case and is given paramount consideration. We want to ensure the abuse that happened in the past does not occur again in the future.

While preparing my notes for the debate, I was reminded of a case referred to by many speakers, the Kilkenny incest investigation carried out by Mrs. Justice Catherine McGuinness, which was presented to the Minister, Deputy Brendan Howlin, in 1993. The Minister has been quite right in pointing to a period of several decades during which we were aware of issues and all parties in government, while they did something, could have done more. To go back to 1993, the Minister, Deputy Howlin - who is now back in government - will, when he looks at that report, probably ask himself why it has taken so long to bring this to fruition. However, it is good that it is now happening 20 years on.

That location is only a few short miles from where I was born and reared. I remember when it came to light there was shock among the local community. We were living in an era where issues that went on within families were swept under the carpet and kept behind closed doors. Thankfully we have a much more open society now where those types of issues are not kept behind closed doors and people no longer believe that if it is a family matter, they should not butt in. That is a legacy of former times.

If memory serves me correctly it was 1979 when I first voted and it was in a referendum on adoption. On the same day there was a referendum about amalgamating the Seanad panels for the University of Ireland and Trinity College. I do not know what happened to that second referendum. It was passed by the people but someone must have made a drafting error and perhaps the wording did not stand up. The adoption referendum was passed overwhelmingly, with almost 100% support. In the referendum on whether Trinity College and the NUI should be amalgamated into one panel in the Seanad, around 6% or 7%, primarily made up of Trinity graduates, voted against. It seems the wording was flawed in some way because it never came to pass, despite the people voting in favour of it. I believe I am correct in saying that the purpose of the adoption referendum was to copperfasten the rights of adoptive families under the Constitution, which gave primacy to the natural family or marital family. A concern was raised about adoptive families having constitutional protection. I remember it well because it was the first time I voted and here we are again, in 2012, voting on a similar---

Deputy Frances Fitzgerald

The amendment was put in.

Deputy Sean Fleming

The one on Trinity College-----

Deputy Frances Fitzgerald

No, the amendment on adoption.

Deputy Sean Fleming

Yes, the adoption one was carried but on the same day there was a second referendum on Trinity College and the NUI combining their Seanad seats into one panel of six seats. That referendum was also passed but for some reason it never came to pass. There was some flaw found in the wording of that referendum. I often ask what happened to that provision.

Time is running short. Some people might believe that to speak for 20 minutes on an issue like this would be difficult but I could speak for twice as long if the time was available. While this is strictly a non-party-political issue, I wish to point out that previous Governments set up the Office of the Minister for Children and former Deputies Brian Lenihan, Mary Hanafin, Brendan Smith and Barry Andrews had special responsibility for children at various times. Some were what we would now call "super juniors" and sat at the Cabinet table. I welcome the decision to give full Cabinet rank and a full Ministry to Deputy Fitzgerald. There has been a continual evolution in terms of the opening up of Irish society, which has crystallised in the Minister's appointment.

I always felt that a Minister for Children was necessary. Nothing convinced me more of that need than when, in 2010, the Fine Gael spokesman on justice, Deputy Alan Shatter, issued a report, without proper protocol, on two children who died in care. On that particular day there was a meeting of the Committee of Public Accounts and I asked Professor Brendan Drumm how many children had died in the care of the HSE. He had no idea, not an iota. He had no clue. Professor Brendan Drumm was an excellent chief executive of the HSE and did outstanding work from a medical point of view, but there is only so much one person can do. The issue of child care did not rank up there with cancer treatment, orthopaedics, accident and emergency waiting times, waiting lists, discharge policies and so forth. It became clear to me then that nobody in the HSE was giving priority to children. I praised Deputy Shatter at the time, which was not a popular thing to do among my colleagues on the Government side because they felt he had broken the rules by publishing the report. He did the State some service by doing that because ultimately it forced the HSE to act and under Cathal Magee, Professor Drumm's successor, a report on the 196 children who died in care was published. That needed to be done because there was total neglect of this area. The child care services in the HSE were the poor relation and might have continued to be were it not for the reports that came into the public arena. Deputy Shatter has contributed to where we are today and while he may have broken some technical rules about issuing reports - some might even argue that legally he was wrong to do it - he was right in the general approach he took. He forced the HSE to examine its files and find out how many children died while in care or shortly after leaving care and then issue a full report.

It has already been said here that this referendum is not a panacea for problems related to children but is an important step. When the Minister gets the weight of the public behind her on 10 November, with an overwhelming vote in favour of this referendum, I hope that will translate into good financial resources to make the wishes of the people of Ireland, as expressed through the ballot box, come true. If the people go to the trouble to come out on a Saturday, taking time out of their family life, and vote overwhelmingly in favour but then find that budgets for children's services are cut, they will feel badly cheated. Given that the Government has decided to hold this referendum, it must follow through with the financial resources to back it up afterwards. We are seeing such cuts already. The services provided by the respite care centre for children in Mountrath, County Laois, for example, have been scaled back remarkably. That centre serves children with special needs, which would be in the Minister's own area, as well as Deputy Kathleen Lynch's at the Department of Health. Everyone praised the paralympians and people with special needs during the summer but once the event was over, people had seen the gold medals and the publicity died down, we were back to the harsh reality of limited resources for services.

There are two issues that I ask the Minister to address during the course of this debate, which are not specifically related to the referendum, but are in the realm of unintended consequences, to use the Civil Service speak. At the moment there are up to 6,000 children in care, the majority of whom are in foster care. The foster parents who are standing in for the natural parents who are not in a position to care for their children are doing all of us in society, the children themselves, as well as the natural parents, an enormous service. They are rightly being compensated for the cost involved in taking a child into their homes. It is important that if such families want to move on and adopt the foster child they are caring for, they will not find themselves at a financial loss by choosing to adopt rather than continue to foster. Some type of transition payment must be introduced to assist those people who have taken children in, with goodwill and a big heart. They would not have fostered children in the first place unless they had the heart, interest and fondness for children but they should not be financially disadvantaged. I ask the Minister to take that issue into account.

The second issue that I ask the Minister to address relates to the points raised by groups such as Fathers for Justice. In many one-parent families, the mother is rearing the child and the father is not on the scene. The mother may be living with somebody else and the father of the child is not welcome. The majority of these cases do not go to court because the father does not have legal guardianship. I am not sure if the Minister has considered this but let us take a situation where a parent who has a child is no longer capable of caring for him or her and the HSE takes the child into care. In due course, the HSE might decide that the foster family caring for the child should be allowed to adopt. What if the other parent who had not been given the opportunity to participate in the child's life then comes forward and wants to be part of the child's life? That parent might argue that he or she was essentially locked out by social and family circumstances. In most cases, the parent in question would be an unmarried father. Such fathers want to be assured that their child could not be adopted against their wishes. I understand there are issues in the proposed adoption legislation for non-voluntary adoption where the parent has failed in his or her duty.

Will the Minister clarify the position in a case where one parent has failed in his or her duty but the other parent is now willing to step into the breach? The voluntary placement for adoption of a child of marital parents is also being dealt with in the Bill.

Deputy Frances Fitzgerald

Guardianship is the best route.

Deputy Sean Fleming

Yes, there is also guardianship ad litem. I accept there is legislation governing guardianship ad litem but I understand the relevant section of the legislation has never been formally commenced. I tabled a parliamentary question to the Minister for Justice and Equality, Deputy Shatter, on the matter last year. I seek that the Minister’s officials would check out the matter. I was asked about the issue by a father. Courts were instructing fathers to contribute to the cost of a guardian ad litem report. The parliamentary question I tabled in the past year related to when the section relating to guardianship ad litem was commenced but I was informed that it was not commenced. I urge the Minister to check out the matter because it is possible that judges could be breaking the law on the Bench every day by referring to such matters if the relevant measures have not been commenced. We support the referendum and the greater emphasis on children. This step is part of a continuum as society grows up, moves on and becomes more open. It is a reflection of where we are as a society.

The big issue that will arise in the coming weeks is media coverage because the national broadcasters are required to provide a 50:50 balance. I do not know how that will work. Perhaps they will have to curtail their coverage and there will be a greater emphasis on us as political leaders and non-governmental organisations to campaign vigorously if the media is not in a position to do so. We do not want the situation to arise where it is necessary to deliberately manufacture a row on “The Frontline” for example to ensure an equal balance in coverage, if a valid editorial decision is taken that it is not the correct thing to do. In the event of media coverage being reduced then the rest of us must step into the breach and do as much as we can. In the previous referendum the Government spent a lot of money before the Referendum Commission was formally established and legislation was passed to allow the Government to put its case. It did not come into the reckoning under the terms of the McKenna judgment. There might be an opportunity to spend money before the formal writ for the referendum date is moved. Unfortunately, we might have to get around the strict ruling of the Supreme Court on the issue. I suspect that if a referendum such as this were in question the Supreme Court might have come to a different conclusion.

We look forward to a good turnout on Saturday, 10 November. We want people to come out and vote “Yes” and give their support for the referendum. We want that to be followed up by an announcement in the first week of December of a handsome increase in budget resources for children to back up the referendum result.

Minister of State at the Department of Foreign Affairs and Trade (Deputy Joe Costello)

I wish to share time with the Minister for Social Protection, Deputy Joan Burton.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Deputy Joe Costello

I wish to follow on from the final point made by Deputy Fleming, that there should be a good turnout on 10 November to show the priorities of the people and that they are fully supportive of what we propose.

I compliment the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, on the great work she has done in a short space of time to bring all of the elements of the legislation and the provisions for the referendum together. It is something on which others have toiled and striven over a considerable period. At this stage it is approximately 30 years since the first efforts were made to bring about the introduction of a provision relating to children’s rights and their protection under the Constitution. The Minister has managed to bring the provisions before us in rapid time -18 months - and a target date for the referendum to take place in the month of November. That is exemplary.

I also compliment the Minister on the good work she has done on adoption. Last Monday she signed an agreement with Vietnam to reopen and restart adoptions between the two countries. That is a tremendous achievement considering the amount of effort that was made in the past without any result being achieved. I compliment the Minister strongly on the active role she has taken since becoming Minister in delivering the commitment in the programme for Government, which was often promised in the past but was not delivered.

It is incredible that almost 100 years have elapsed since an emerging nation promised to "cherish the children of the nation equally". That is one of the most quoted parts of the 1916 Proclamation, yet only now are we giving recognition and protection to children in the Constitution. In the intervening period, child abuse was widespread in society, as various reports reveal, together with the testimonies of more than 13,000 children, now adults, who came before the Residential Institutions Redress Board. They reveal accounts of abuse - physical, sexual, emotional and mental in the various institutions that were in the control of the State, and others that were not in the State's control but should have been. That is one of the great failures of more than 90 years of Irish statehood and independence, which has totally undermined the commitment in the Proclamation.

As far back as 1979, when I was chairman of the Prisoners' Rights Organisation, an inquiry was established into the prison system chaired by Sean MacBride, SC, and Professor Louk Hulsman. The current President, Michael D. Higgins, and the previous President, Mary McAleese, were both members of the organisation. At the time we conducted a survey of 200 ex-prisoners living in Dublin for the public inquiry. We discovered that more than 80% of the survey cohort had spent much of their childhood in reformatories or industrial schools. The existing legislation often committed them to many years in industrial schools and they were often forgotten in those institutions. The ex-prisoners were damaged by the system in which they had spent their youth and they were further damaged subsequently and their adult lives ruined.

For the first time, the Bill and referendum give Irish children full rights as citizens in their own right in the Constitution. That is crucially important, that they are getting those rights by virtue of their own right as citizens not by proxy through anyone else. There is something incongruous, almost perverse, that in conducting a public debate over the next six weeks 50% of the time will be given to the small minority in the country who may argue against the proposed assertion of children's rights in the Constitution, as outlined in the referendum proposals. The media, and in particular RTE, should explore every mechanism for a balanced and fair debate within the constraints of the Supreme Court judgment so as to avoid creating a false polarisation dictated by a crude allocation of time on the basis of virtual opposition.

I welcome the fact that the long-awaited children's referendum is finally to be put to the Irish people. Too many years have passed since it was first suggested, and too often this issue has been put off for another day. The Minister, Deputy Fitzgerald, is to be congratulated on publishing the text of the proposed amendment to the Constitution and for ensuring that the proposed amendment has such broad support. It is important that we include in the Constitution a stand-alone article dedicated to children and we acknowledge that children's rights are not subordinated to the rights of parents but are recognised as being fundamental in themselves. The Supreme Court judge, Mrs. Justice Catherine McGuinness noted almost 20 years ago that the Constitution may be "interpreted as giving a higher value to the rights of parents, than to the rights of children". Since that time, successive Governments have examined the issue, but until now no action has been taken. While these matters were being examined, for example in the Roscommon incest case, the State was prevented from acting to defend abused and neglected children. The parents of those poor children brought a successful High Court challenge to prevent child protection services from acting, and the children continued to suffer. An anomaly exists in terms of the current interpretation of the constitutional provisions. That is something which must be eliminated.

For most children, the best place to be is with their families and the proposed amendment does not alter the assumption in law that this is the case. However, for a small number of children it is not always the case. The proposed amendment provides for when and how intervention by the State should occur. It will ensure that in exceptional cases where, due to parental failure, the safety and welfare of any child is at risk, the focus will be on addressing the impact of that failure on the child. For these children, this referendum will ensure that the State can provide early intervention and family support to protect them in their home, by providing constitutional recognition to the concept of "proportionate" responses to child protection concerns. Where such efforts are not successful the State can ultimately go further in ensuring the child's protection and, if required, make alternative arrangements.

The proposed rights and protections incorporated in the amendment are for the benefit of all children, irrespective of the marital status of their parents. The aim is that children of married and non-married parents will be treated equally when it comes to protecting their safety or welfare, their access to adoption and the consideration of their best interests and views in key proceedings. All these factors will be taken into consideration. In particular, the amendment provides for the making of legislation to allow for adoption where it is in the best interests of a child who is in foster care because of the serious and persistent failure of his or her parents, irrespective of the marital status of the parents. It also facilitates the making of legislation to allow for the voluntary placement of a child for adoption. The aim of these changes is to give children in foster care a better opportunity to experience the security of a loving, caring family.

I welcome that the Minister, Deputy Fitzgerald, has also published the draft Adoption (Amendment) Bill 2012 which the Government plans to bring before the Oireachtas on the passing of this referendum. The proposed amendment also requires that the best interests of the child should be the paramount consideration and that the voice of the child be given due weight in court proceedings taken by the State relating to child protection and in matters relating to adoption, guardianship, custody and access. It should be the case wherever possible that the voice of the child should be heard.

By voting "Yes" on 10 November, the Irish people will remove inequalities in adoption and will help ensure that vulnerable children are not denied the help and support they may require. This child-centred approach is present in both the legislation and the referendum proposals. Last year, approximately 1,500 children were identified as having been abused, sexually, physically or emotionally, and 30,000 children were dealt with in terms of protection and welfare. That is a very sizeable proportion of the children in the country. It is very important that we get the basic framework document right, namely, the determining body of rights in the Constitution. Up to the present we have denied the children of this country; on 10 November we propose to address this. I wish to ensure this outcome comes about with the highest possible percentage of the people voting "Yes". The obligation is on Members to ensure that all sides of this House in favour of this legislation - as all are - get good campaigns going on the ground to ensure that is the case.

An Leas-Cheann Comhairle

I call Deputy Joe O'Reilly, in the place of the Minister for Social Protection, Deputy Joan Burton. Is that agreed? Agreed.

Deputy Joe O'Reilly

I congratulate the Minister, Deputy Fitzgerald, on introducing the wording for the referendum and the draft legislation, specifically, the legislation on adoption, and on the speed with which she achieved this, given the drafting issues involved. It is good that we are at this point and these measures should be supported. I welcome that there is support on all sides of the House for this worthy amendment to the Constitution, one that is pertinent and necessary. That should be acknowledged.

The amendment will create the new stand-alone article, Article 42A, which will achieve a number of objectives. First, it will establish the natural and imprescriptible rights of all children and facilitate a situation whereby the State, by proportionate means, can endeavour to supply the place of the parents, always with due regard to the natural and imprescriptible rights of the child. The parallel legislation will provide for the adoption of children whose parents have failed them over a period of time, and as prescribed by law. It will provide for the views of children to be taken into consideration, which is critically important. It is worth mentioning at the outset these salient points of the new proposed article.

In addition, it is worth noting that the wording in no way threatens the position and primacy of the family, as outlined in the Constitution. Rather it accepts that primacy and the special status of the family but, in parallel with that status, it equally gives imprescriptible, inalienable and unmovable rights to the child and puts them on a constitutional and statutory basis. That is a critical point to make - there is no conflict with the rights of the family which remains centre-stage and a centrepiece of the Constitution.

It is worth noting that the need for this referendum is underpinned by a number of reports and commissions down the years. It was first called for by Mrs. Justice Catherine McGuinness on foot of the Kilkenny incest case. The need for a referendum is very obvious arising from the Ryan report, the Kelly Fitzgerald case and the Cloyne report and, very obviously, from the Roscommon case. That case was very recent and was an appalling horror story. In that case it was possible for the parents of those unfortunate children, thus described by the Minister of State, Deputy Costello, to go to court and prevent the removal of the children from the family home by invoking the special status of the family. Although individual judges would look to individual rights and apply them to children, and there would be many cases of benign judgments by individual judges, and although the potential within the Constitution already exists for same, we must copperfasten the position of children to the extent there can be no case whereby, through human error or misinterpretation of the Constitution, the rights of children could be submerged, go into second place and have a secondary status.

The very eminent judge, Mr. Justice Hugh O'Flaherty, made the argument in a recent newspaper article that in its present form the Constitution allows judges to make rulings that would support children. Although that may be the case the possibility for alternative rulings, as demonstrated in the Roscommon case, is enough of a rationalisation, justification or reason for this constitutional amendment. If averting the horror, cruelty, pain and suffering endured by a few children - there are many more than a few - were to be the only outcome of our making this amendment it would be justified. That point merits making as does another interesting observation, namely, that this amendment will actually support the family to the extent that it will underpin family support services. In other words, there will be a constitutional imperative for positive interventions in support of the welfare of children within families because of the standing of children within the Constitution, whether such interventions are financial or offering professional assistance, etc.

I had the privilege recently of visiting the Extern service in my home area of County Cavan. It is a group under the auspices of the Health Service Executive which works with children from dysfunctional families who have particular social and emotional difficulties. They are children at great risk but Extern works very effectively with those children. There will now be a constitutional imperative on this Legislature to support people such as those in Extern, those in Youthreach and families in difficulty. Rather than undermining the family and taking children from the family home, the onus will be to support the family and create the ideal conditions in families. It is only when that effort breaks down and there is a clear threat to the well-being of the children that they would be removed.

It merits mentioning that this constitutional amendment will provide an opportunity for adoption of children from married couples. That is an important dimension. As the law stands, while there may be a theoretical possibility of adoption of children from married couples it would have to be established that the child is at risk until the age of 18 and that he or she would remain permanently at risk. It is well nigh impossible to adopt the child of a traditional married couple, even though that child is in continuous foster care. The legislation states that the children will have to be out of the home and in continuous care for a minimum of three years. It states also that they would have to be 18 months with the family which proposes to adopt them. All of those safeguards are built in but it will now allow children from marriages to be adopted. Also, apart from State intervention a married couple can offer their child for adoption if they know that is in the best interests of the child and that is established by all the relevant authorities. That is an important dimension of the amendment.

As the Minister of State, Deputy Costello, stated, all of the parties have publicly supported this measure, and that is to be applauded, which will ensure that for once the voices of children will be heard officially and that will be reflected in the Constitution but it is imperative to back that up with an effective campaign in the coming weeks and that we bring this to the people. It is significant legislation in the light of the many areas where we have failed children in the past. We have an enormous amount in terms of children's issues but that is not what we are discussing today. We have failed significantly also and in light of those failures it is incumbent on us to redress those failures with an effective campaign beginning this afternoon.

An Leas-Cheann Comhairle

I call Deputy Luke 'Ming' Flanagan who I understand is sharing time with Deputies Shane Ross, John Halligan and Mick Wallace. The Deputies have five minutes each.

Deputy Luke 'Ming' Flanagan

I will be supporting the referendum. It is great progress. I have read a good deal on this in the past week but regardless of what I read, I had a meeting this morning with representatives of the Children's Rights Alliance and having listened to their argument and the information I got from them, I have to say I will not be able to sum it up any better than them. As they say, if you cannot beat it, why not repeat it?

The Children's Rights Alliance gives five key reasons for supporting the children's referendum. First, for the first time the Constitution will take a child-centred approach to the protection of all children and will allow for the State better to support families that are struggling rather than wait for a situation to reach crisis point. No one can have a problem with that. Obviously, that is a welcome development. Second, it will allow up to 2,000 children currently in long-term State care the opportunity to be adopted and given a second chance to have a loving, stable and permanent family. We have seen situations in the past where that was not possible and it created hell for some of those children. That is very welcome.

Third, it will base child care, adoption, guardianship, custody and access decisions on what is best for the interests of the child. Yet again, no one can argue with that. It is obvious. Unfortunately, for years the State was more focused on preserving the family regardless of the hell the family brought on the child. This is a welcome measure.

Fourth, it will ensure the judges listen to the views of children when making decisions in child care, adoption, guardianship, custody and access cases. I understand this is where the children are old enough or they have the mental capacity to do so. That makes sense. Obviously, we should listen to the child. The child will be able to tell us what is happening and what is best for them.

Fifth, it will set out how we as a country now view and value children and move beyond the damning history of child abuse in Ireland. Again, one could not disagree with that.

Obviously, this is good news but the cloud of resources hangs over everything. Without resources, how can we successfully achieve what we are trying to achieve? In recent days some organisations stated that we are facing a further six or eight tough budgets in a row, and that will affect resources.

I have spoken to people who work in this area and while they are delighted that something is finally being done and well done on that, they are worried that when this happens, if it does happen, the resources will not be in place to deal with the consequences. In some child care facilities children who have been sexually abused are housed with children who have sexually abused. We have situations where children have got over the mental torture of what happened to them only for another child, in some cases with serious mental difficulties, to be brought in with them. That is not on. As some people who worked in the service would say, and they will remain confidential because they educated me on it, at the current level of resources the Health Service Executive and the State are not a safe family. If we pass this measure we must make sure that the people we are trying to help are properly helped.

I am also told by people who work in this area that there are not enough resources for psychological help, counselling and so on. That must change.

Ideally, no one would end up in these facilities, which will never be ideal because they will never replace the family. To ensure that fewer people end up in this situation, we must provide support at a very young age. I hope the Family Support Agency will sort that out. In that way we will have more resources in the long term. It is cheaper and less expensive to do that at an early age which means we will have more resources for the hard cases.

I am aware from talking to many people who work in this area that it breaks their heart to have to say that they know that many of these children will end up in prison. There is no shortage of resources at that stage, when it is too late. The prison in my town spends over €100,000 a year trying to help people but if those people had been helped as a child it would have cost a fraction of that. Resources will be a problem. If we use resources well we might be able to hold our heads a little higher because at the moment, from what I know about what is going on, I am embarrassed to be a citizen of this country.

Deputy Shane Ross

A dedicated amendment to the Constitution on the children of this State is something no one can oppose in any rational way, not just for emotional reasons but for good, sensible, non-political reasons. To some extent I regard it as a type of cleansing of a shameful record which this State has in the protection of its children.

We are very keen to blame the churches - rightly so - for the clerical abuse which occurred and also other institutions for what happened to children in our shameful past. However, the State ignored what was happening, turned a blind eye to it or did not know - when the opposite should have been the case - what was being visited on the children of the nation. The constitutional amendment is a way of cleansing the conscience of the nation and absolving ourselves for our record in this regard. In that sense, it is not merely a case of taking an approach similar to that adopted by Pontius Pilate, it is also a way of remedying a situation which was unacceptable. We should all be ashamed of the culture of turning a blind eye with regard to the abuse of children. If the amendment has a tangible effect in resolving matters in this regard, then I welcome it. The debate that will ensue in the forthcoming referendum will assist in cleansing the polluted atmosphere that has surrounded the fate of the children of the nation.

I was taken by what Deputy Luke 'Ming' Flanagan said about children. We tend to be particularly patronising towards children and their inability to make up their minds and express their views. The constitutional amendment will also help to remedy matters in this regard. Children of a very young age can make intelligent decisions in their own interests. In many instances, they know - far better than adults - what is good for them. For example, children who are of an age where they can answer questions in an intelligent fashion and who go before the Adoption Board are regularly asked whether being adopted is their wish. Their reply in this regard is material. In that context, whether they say "Yes" or "No" is absolutely vital. If a child says he or she does not want to be adopted, his or her wish must be taken extraordinarily seriously and the matter must be investigated. Let us not be overly patronising towards children; rather let us say they should be consulted in a sophisticated way because they often know - better than adults who are, or who are supposed to be, striving to protect them - what is good for them, what they want and what will fulfil their emotional needs. The Bill makes a significant advance in that regard.

In view of the State's record in this area, I am somewhat uneasy about it being allowed to intervene, in certain circumstances and as a last resort, where children are under pressure. However, I do not see a solution to this problem. I hope a very broad-based, caring and humane body will be put in place to intervene on behalf of children in cases where they are being threatened by those who are looking after them or who are supposed to be doing so or by their protectors or guardians in difficult or controversial circumstances.

It is welcome that the inequalities in the adoption process are being remedied. I was unaware - I am sure this was the case with many other Members - that there were still such inequalities. During the years I have seen a raft of legislation in which the treatment of children has been equalised, regardless of the marital status of their parents. That is a matter which obviously should be remedied. If what is before us is the final remedy in removing an existing anomaly, I welcome it.

Deputy John Halligan

There is much that is good about this long overdue proposed amendment to the Constitution. I have always believed the absence of specific rights for children has weakened the law for far too long. I applaud the proposed rebalancing of parental and children's rights in order to ensure the problems of children in seriously dysfunctional families can be addressed and that the marital status of parents cannot be an obstacle in this regard. No child should be obliged to remain in a family which is dangerous, abusive and neglectful. The State must be able to intervene to protect such children from harm. However, I would prefer if the circumstances in which a child can be taken from his or her parents were more clearly defined. From my reading of it, the constitutional amendment does not appear to outline the position adequately in this regard. I am aware that a number of amendments on this matter have been tabled and perhaps the Government might give them consideration.

No one needs to be reminded of the horrors inflicted on generations of vulnerable children. I hope the legislation will do all that is necessary to prevent a recurrence of these horrors. Overall, the proposed constitutional amendment will help to protect children, which is an important point. I understand it will also enable the State to provide better support for vulnerable parents in circumstances where they are struggling to care for their children. Hence, we will be able to provide services to ensure fewer families reach crisis points which place children at considerable risk of harm. However, the proposed amendment is a half measure, particularly in view of the fact that the Government is continuing to cut supports for disadvantaged and vulnerable families and children. I need not remind the Government that in 1992 Ireland ratified the UN Convention on the Rights of the Child and pledged to make children's rights a reality and ensure every child would have the right to experience a childhood free of poverty and deprivation. There is nothing in the wording contained in the legislation which will hold the State to this promise. In the absence of real and practical action, the forthcoming referendum will be nothing more than a symbolic gesture to the many thousands of children at the lower end of the socioeconomic scale. Do the 10% of Irish children who live in consistent poverty not also deserve a modicum of justice?

Last week cuts to counselling services in schools were highlighted in the wake of an attempted suicide by a student at a second level school in Wexford. Teachers will affirm that children's lives are at stake as a result of the crisis affecting counselling services. No constitutional amendment is going to ameliorate the position in this regard. These are not good times for children who are reaching adult age. The Bill will be meaningless for the 75% of young people between the ages of 15 and 24 years whose futures are uncertain as a result of the fact that they are out of work.

It is highly commendable that the Government is to strive to refocus the child protection system and increase the obligation of the State to support families. The State has always had a moral obligation to support families. Any move to place this on a sound legal footing is to be applauded. In the absence of adequate investment in child supports, however, this will prove to be just another exercise in bureaucracy. I regularly come across child welfare cases in my constituency and have written to various Ministers about instances where there is no dedicated social worker available and a care plan is non-existent. Despite promises to the effect that there would be a nationwide system, out-of-hours social work services are still provided on a very ad hoc basis. Aftercare services are, on the whole, inconsistent and erratic. I have spoken to many social workers who have acknowledged this. They may not comment publicly, but they will make their views known to politicians.

The rights the constitutional amendment will afford to children such as the right to an education are all very well, but how will they impact on, for example, parents who are fighting their way through the system to obtain the services of an SNA for their autistic children? The amendment has the potential to do a great deal of good and I will be supporting it for that reason. However, the Government is presenting a very naive view if it attempts to suggest acceptance of the amendment will mean children will no longer be at risk or disadvantaged. The only way to protect children is by investing money and resources in the relevant services. To truly look after the welfare of children, we need to find the political will to put in place a multifaceted, joined-up approach.

Deputy Mick Wallace

I, too, will be supporting the Bill, which is welcome, and commend the Minister on the work she has done on it. What is being done is both positive and long overdue. Observations or comments I may make should not be taken as criticisms of the Bill.

I want to highlight the need for joined up thinking across Departments if the theory is to be put into practice. It is very good that the rights of children are being enshrined in the Constitution but it is also very important that the theory is matched with practice.

I refer to the Minister's contribution on Second Stage:

Constitutional change...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.

Without being smart, I wish to point out that research has shown that the people who suffered most from the last budget were less well-off women and children. I note the statistics that 90,000 children in Ireland live in consistent poverty and a further 200,000 are at risk of poverty. The Central Statistics Office published a special report on homeless persons in Census 2011 on 6 September 2012 in which it reported that one in eight homeless people is a child under 14 years of age. The report recorded 457 children under 14 years out of a total of 3,800 people homeless on a single night in 2011.

The Minister in her contribution stated: "We must hope that all children will have rights, will be protected and will be treated equally." The Minister has aspirations for the future and that is good. However, one important factor in determining how the future will be is the education system. I note that the playing field is not level in the Irish education system and this has a significant impact on the end result for children. In my view, people have every right to avail of private education for their children but the Government should make an effort to create a level playing field in so far as possible. With that in mind I do not think we should be giving State help to schools that are not open to everybody. This is an aspect of the education system that needs to be dealt with. I commend the statement in the Minister's contribution: "This is a referendum for all children but, in particular, for those children most vulnerable and most at risk."

The inclusion of children of asylum-seekers is an important provision. I refer to the recent report from the Irish Refugee Council which paints a grim picture of the State system for accommodating asylum-seekers, known as direct provision. It documents frequent instances of malnutrition among children and expectant mothers as well as diet-related illnesses among babies and young children. The study highlights cases of weight loss among children and regular complaints of hunger among adults as a result of strict family rationing. There are more than 1,700 children in the asylum system and they seem to spend on average approximately four years waiting for the processing of their claims for asylum. The report's author, Samantha Arnold, pointed out that the conditions in which the children live amounted to child abuse and neglect. This is very upsetting. She added that both Fine Gael and the Labour Party committed in July 2010 to a review of the system of direct provision but to date these commitments have not been met.

I wish to raise a technical issue which is not intended as a criticism. I note an observation by Carol Coulter in The Irish Times. She refers to Article 42A.4.1 which states:

Provision shall be made by law that in the resolution of all proceedings -

(i) 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

(ii) concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

She questioned what would happen in cases taken against the State and whether the best interests of the child would be considered. She stated that it might mean that the best interests of the child need not prevail in actions taken by Government Departments, for example, in the placing of an asylum-seeker's children in direct provision accommodation condemned as unsuitable by many NGOs or the widely criticised practice of placing children with mental health problems in adult psychiatric wards or the provision or lack of provision for the education of children with special needs.

I am not making a criticism of the Bill but rather an observation. I hope that the State puts the interest of children first in all aspects and that this will be taken into account in the next budget.

Minister for Social Protection (Deputy Joan Burton)

I wish to share my time with Deputies John O'Mahony and Peter Fitzpatrick. The journalist Olivia O'Leary wrote a very moving column the other day describing how as a young reporter she had once written a series on adoption for The Irish Times. She rang a nun, an admirable woman, who was in charge of an orphanage for girls in Dublin. She told Ms O'Leary how sometimes in the middle of the night, a youngster would wake up and cry out for her mother. Within minutes, she said, the whole dormitory would be awake, all crying out for their mothers, mothers they had never known and could have had no memory of.

It is an image which Olivia O'Leary says has always haunted her, of children crying out in the night for their dream of a mother. It is an image that haunts me too. It was a mother they would never have - in some cases because they were at an age when adoption was now unlikely to happen, but in many cases because they were the children of legally married parents and could not be adopted. I agree with Olivia O'Leary that it is extraordinary that we should have created a legal limbo in which children whose parents could not look after them because of drink or drugs or mental illness or other problems, should be forever denied the love of a mother and father and family. It seems extraordinary to me that this limbo still exists. The reason is that our Constitution protects the rights of legally married parents but makes no reference to the individual rights of a child.

As an adopted person myself, I can identify strongly with those children crying out for their mothers. I understand the longing that children feel to have a mother, a father, a family unit, whether by birth or by adoption. As Minister for Social Protection, I have committed to introducing legal measures that give children their rights under the UN Convention on the Rights of the Child which include the right to have information on their birth parents. I am planning to legislate to allow for the inclusion of the name of the father on a child's birth certificate.

I propose to seek Government approval to publish the heads of a civil registration Bill soon. This will provide further amendments to the Civil Registration Act 2004 relating to the registration of births and deaths; the validation of marriages at embassies and civil partnerships; to prevent marriages of convenience and to make a number of other amendments. The Bill will implement recommendations of the Law Reform Commission in its report on legal aspects of family relationships, in particular, that there should be compulsory registration of fathers of children in the case of non-marital births. This obligation will be modified by the right of the mother not to register the father's particulars where she fears for her safety or that of her child; a proposal to allow a mother to effect registration on foot of a statutory declaration that her legal spouse is not the father of her child, thereby making it easier to rebut the legal presumption of paternity where a woman's husband, who is not the father of her child, is unco-operative or cannot be contacted.

I have heard various radio discussions where parents expressed the fear of the knock on the door from the social worker who would wish to take their child away from them. That is emphatically not what the referendum is about. It is, however, a fear that I understand, given this country's complex history of the wielding of institutional power since the Famine. There is a collective long-term memory of the institutionalisation of children, and the fears arising out of that experience must be respected. As a person who had the good fortune to be adopted into a very loving family, I would wish that option to be made available to children in care whose birth parents are unable to fulfil that role. As I said, I understand the fears regarding social workers. As a child, I was rather thin and weak looking. My mother and her friends in the neighbourhood always had a fear that if I did not eat enough, I would be taken away. Looking at me now, colleagues may find that interesting. There was a genuine fear of the very powerful institutions and authority figures in Irish life, including the church, local people in authority, the "cruelty man", people from various charitable organisations and members of the judicial system who had the power to put children into institutions for long periods. That folk memory remains.

It is important, therefore, to reiterate, as the Minister has set out very clearly, that the proposed amendment encompasses an appropriate proportionality in regard to the powers of the State to intervene in family life. Everybody will agree that the best place for a child is with his or her parents. Where that is not possible, however, this proposal seeks to give children in institutional care a second chance to have a loving family. That is the issue on which we must focus. We are all aware of situations where it would be most desirable for a long-term fostering arrangement to progress to an adoption relationship, where that is the wish of both foster parents and foster child. Unfortunately, that is very difficult to achieve under the current legislative and constitutional position. Even where a child is with his or her foster parents from babyhood or very shortly after, the consent of a social worker is still required in respect of a range of common activities which other parents take for granted, including quite straightforward matters such as trips abroad. The constitutional amendment we are proposing has a very particular purpose in regard to the position of children in long-term foster care whose married parents are unavailable to care for them or who wish to allow them to go forward for adoption.

The referendum proposes a major and historic change to the Constitution which seeks to protect children, support families and ensure all children receive equal treatment. It is nearly 20 years since Mrs. Justice Catherine McGuinness, who has since retired, called for constitutional change of this kind. She made that call in the wake of a case where a father had persistently raped and abused his daughter over a 15-year period. Since then, we have had a range of reports - 17 in total - detailing abuses of Irish children within the family setting, the environment in which a child should be safest. In some cases, unfortunately, it was the place of greatest danger for the children concerned. Now, after all of those horrific reports on a series of child protection failings in Ireland, this Government is taking action.

The proposal before us today seeks to benefit all children but particularly those who are most vulnerable and most at risk. The vast majority of children live in loving, caring families and never require the assistance of the State's child protection and welfare services. Unfortunately, however, that is not universally the case. Some families require help and support in parenting their children. In some cases, this might involve addiction and mental health support and family and individual counselling. The provisions contained in the amendment will support that. It also provides that in the most serious cases, children may be moved from the family and cared for by people other than their parents. More than 85% of non-voluntary admissions of children to care in 2011 were due to abuse, neglect and serious family problems. In the case of children, love is key and comes far above material considerations. This constitutional amendment seeks to afford certain children a second chance to have that experience of love and cherishing. As such, I commend it to the House and to the electorate.

Deputy John O'Mahony

I welcome the opportunity to express my staunch support for the proposal which will be decided by the people by way of referendum on 10 November. It is a long awaited and much needed initiative and I commend the Minister, Deputy Frances Fitzgerald, the Taoiseach and the Cabinet on bringing it forward within 18 months of coming to office. I also welcome the cross-party support for the proposal in the House and the broader universal support from agencies working in the area of child welfare. Such a consensus is probably unique in the history of the State.

Having everybody on the same side is not, however, without its own difficulties and challenges. Above all, we must guard against any complacency in the lead-up to the referendum in terms of getting the information out to voters. Other speakers have referred to the implications of the McKenna judgment and the requirement that equal coverage be given to both sides in any referendum campaign. There is no room for complacency in this campaign and we must work to ensure a high turnout. In this regard, I welcome the decision to hold the vote on a Saturday, a practice I hope will be continued in other referenda and general and local elections. It will be particularly helpful to students who live away from home during the week, many of whom will have strong views on this issue. I urge everybody to exercise their right to vote on the proposal.

The objective of the proposed amendment is to ensure that children are visible, protected, listened to, cherished and valued in our society. In striving to meet that objective, it was important that the proposal should reaffirm the special protection afforded to the family in our society. In the vast majority of cases, the best place for children, as we all acknowledge, is within a loving and supportive family home. The proposal seeks to address the minority of cases where children are not protected, heard, valued and cherished, children who, in the past, were forced to suffer in silence. The amendment will afford children in that minority a second chance. It was also important that care was taken to ensure the rights and duties of parents are not adversely affected by the proposal. The Government is to be commended on getting the balance right in this regard.

The amendment seeks to protect the minority of children in our society whose plight has too often been ignored. People were outraged at the revelations in the Kilkenny case, Roscommon case, Kelly Fitzgerald case and many others. When the publicity died down after a few weeks, however, nothing was actually done.

I am glad the referendum will result in change by offering citizens an opportunity to insert in the Constitution certain rights and protections for children. Given that 30,000 child protection concerns were reported to the welfare services, including 1,600 child welfare concerns, this is clearly a major issue.

I am pleased to note an extensive information programme will be rolled out by the Government. We all have a responsibility to get our message across. Given that so many people are on one side of the debate, it is unlikely that all the issues will be teased out in full on television and radio. We must ensure sufficient information is available to ensure citizens are informed when they cast their vote on 10 November. I strongly support the proposed constitutional amendment.

Deputy Peter Fitzpatrick

I am grateful for the opportunity to discuss the Thirty-First Amendment of the Constitution (Children) Bill. This is vital and entirely worthy legislation. As other speakers - including the Minister - indicated, it constitutes a firm commitment by the Government to protect children, support families and treat all children equally. The Bill is the culmination of immense work by the offices of the Minister and the Attorney General. In producing the proposed constitutional amendment, the Minister and Attorney General are addressing and meeting the needs of those within our community who are most vulnerable and, sadly, often without a voice.

I encourage everyone to read the documentation in its entirety. I will take this opportunity to examine sub-article 2.2° and focus on a couple of words in particular. The sub-article 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." The two phrases which are worthy of further emphasis are "the safety or welfare of children" and the description of the State as "guardian of the common good". As a parent and citizen of the State, I, like everyone else, have been horrified by reports that have emerged in the recent past. The cases in question are all the more difficult to understand when I see the unbridled joy and innocence on the faces of children in schools throughout my constituency, including in Ballapousta, Tallanstown, Ballmackenny and the Bay Estate in Dundalk, where my children attended school. As recently as last week I visited Scoil Mhuire gan Smál in Kilsaran and again witnessed the sheer joy and endless capacity of children to give and impart love. I have focused on the words "safety", "welfare" and "the common good" because if Deputies witnessed what I and President Michael D. Higgins did last week in Kilsaran, they too would find it inconceivable that anyone could harm children. For the common good and the good of all children in the State now and in the future, I have no hesitation in supporting this amendment.

Deputy Brendan Smith

I welcome the Thirty-First Amendment of the Constitution (Children) Bill 2012. Immediately after its publication, the Fianna Fáil Party stated clearly that we fully support the referendum and will campaign strongly for a "Yes" vote. My colleague and party spokesperson on children, Deputy Robert Troy, has submitted three amendments which we believe will strengthen the proposed wording. Throughout this debate, my party will take a totally constructive approach to this important issue both inside and outside the Oireachtas. The amendments we have tabled have the capacity to strengthen the provision and afford greater protection to children.

I am particularly glad the referendum will be held on its own and will not coincide with other referendums or elections. As I outlined approximately one year ago in the House and in conversations with the Minister, it would not be advisable to put this important question before the people alongside any other referendum or election. The Taoiseach had suggested in early 2011 that the referendum could be held with the presidential election of October 2011 or alongside other referendums. I am pleased this has not occurred and that only one issue will be put to the people. This issue is of such importance that unrelated issues should not be brought into the debate.

We had plenty of commentary, not all of it accurate, both inside and outside the House about the delay in finalising the wording of the referendum and putting the proposal before the people. Regardless of which party or parties comprised the Government, I have always advocated the need to achieve the best and strongest possible wording to ensure the basic rule of law of the country - namely, the Constitution - can facilitate the necessary legislative measures to achieve the objectives of all Members of the Oireachtas.

Substantial work has been done over a number of years by many people in public life, non-governmental organisations and the public and Civil Service to prepare for a referendum. In noting the substantial improvements that have taken place in rolling out services for children, I do not underestimate the major deficiencies that remain in this area. The Minister for Social Protection, Deputy Joan Burton, referred to the unfortunately large number of cases involving abuse of children and a failure to protect their rights. All of us recall being shocked and horrified at these reports. I recall my late colleague, Mr. Brian Lenihan, stating that we should not underestimate the major responsibility that rests on all of us who seek to strengthen the position of the child in our Constitution. The burden of persuasion in any referendum is a heavy one and all the greater when the proposal relates to the delicate and intimate relationships that exist between child, parent, family and State.

The fundamental law of the land, Bunreacht na hÉireann, should reflect our commitment to value and protect childhood. Provision must be made in our Constitution for children to be protected from maltreatment, neglect or abuse. The Constitution must require that we protect the welfare of the child and enable us to implement the necessary legislative measures to achieve these objectives.

For many years, there have been justified calls from many quarters to strengthen children's rights, including calls for an amendment to the Constitution to reflect the rights of children. In 1996, it was recommended in the report of the Constitution Review Group that the Constitution be amended to include the welfare principle and provide an express guarantee of certain other children's rights deriving from the United Nations Convention on the Rights of the Child. In January 2006, the all-party Oireachtas Committee on the Constitution recommended in its review of the articles dealing with the family that a new section be inserted in Article 41 dealing with the rights of children.

In September 2006, the then Minister of State with responsibility for children, Deputy Brian Lenihan, led the Irish delegation at the United Nations committee hearing on Ireland's second report on the implementation of the United Nations Convention on the Rights of the Child. The committee expressed concern that some of the recommendations that had previously been made had not yet been fully addressed, particularly those relating to the status of the child as a holder of rights. The then Taoiseach stated later in 2006 - I believe it was in November - that a referendum on children's rights should take place. The Minister of State was asked to initiate a process of consultation and discussion with the other Dáil parties and all relevant interest groups with the aim of achieving consensus on the wording of an appropriate constitutional amendment. My understanding is that an extensive round of consultations was held, and the Twenty-Eighth Amendment of the Constitution Bill was published in February 2007. The Bill proposed a wording to amend the Constitution in respect of children's rights.

That particular Bill sought to repeal Article 42.5 of the Constitution and insert a new Article 42A. The proposed text incorporated several separate proposals covering areas such as the imprescriptible rights of the child, adoption, collection and exchange of information on persons who are a risk to children, and absolute and strict liability for offences against children.

The electoral cycle had moved on and the programme for Government agreed in June 2007 included a commitment to "establish an all-party committee to examine the proposed constitutional amendment with a view to deepening consensus on this matter". The power to change our Constitution rests with the people alone and sovereignty rests in the people. Time and again, the people of our State have demonstrated their strong attachment to the Constitution. Proposing an amendment to the Constitution puts an onus on all of us to ensure the appropriate wording is presented. It goes without saying we all want to see the best possible safeguards and protection for our children.

Substantial and long overdue legislation has been enacted, particularly since the late 1990s, including the Protections for Persons Reporting Child Abuse Act 1998, the Sex Offenders Act 2001, the establishment of the Garda central vetting unit in 2002, the Child Trafficking and Pornography Act 1998, the Children Act 2001, the Protection of Children (Hague Convention) Act 2000, the Children Act 1997, the Adoption Act 2010 and the publication of the revised Children First guidelines in December 2009. Those various legislative measures were brought before the Oireachtas by Ministers of different political parties over the years. It also showed the significant deficiency in the legislative base in this area. Another important development was the establishment of the Office of Ombudsman for Children. This officeholder is not appointed by the Minister or the Oireachtas but by Uachtarán na hÉireann, which denotes the status and the importance of the work this office and its officials do.

I served briefly as Minister with responsibility for children's affairs in 2007 and 2008. In October 2007, I advised Dáil Éireann that it was intended to establish a Joint Committee on the Constitutional Amendment on Children to further the proposal to amend the Constitution in respect of children's rights. I believe the establishment of this committee was another important step towards ensuring the legal framework adequately values, respects and protects the rights of children. The then Government was adamant that the terms of reference meet with the agreement of the Opposition parties. I worked with the then Fine Gael spokesperson on children's affairs, Deputy Shatter, the then Labour spokesperson on constitutional matters, Deputy Howlin, and Sinn Féin's spokesperson, Deputy Ó Caoláin, on agreed terms of reference. The launch of this committee was the culmination of a great deal of deliberation, discussion and agreement both inside and outside the Oireachtas. From the start, I emphasised very clearly the absolute need to deepen consensus on the matter. There was constructive dialogue, deliberation and work among all committee members. The committee had a very tight timeframe to report back to the Oireachtas, and it quite rightly sought extensions on several occasions to continue its work.

The terms of reference of the committee did not confine its deliberations to Oireachtas Members. Provision was made for both oral and written submissions to the committee to ensure an input from people working outside the Oireachtas. Current Ministers including Deputies Noonan, Fitzgerald, Shatter and Howlin were members of the committee, as well as other Members who are now retired. All contributed to an area of significant complexity, as was evident from those outside groups that presented to the committee. The Minister for Finance, Deputy Noonan, earlier paid tribute to the chairman of the joint committee, Ms Mary O'Rourke. I want to pay tribute to all committee members for their enthusiasm and diligence, as well as their commitment to ensuring the best possible protection for our children in this State.

I commend the Minister for Children and Youth Affairs, Deputy Fitzgerald, on her work. I welcome the publication of the Bill and the holding of the referendum in early November. Fianna Fáil will be strong advocates of this amendment. I also want to pay tribute to the Minister's predecessor, Barry Andrews, who did enormous and positive work in contributing to this proposed amendment.

Deputy Aodhán Ó Ríordáin

I wish to share time with Deputy Bannon.

Acting Chairman (Deputy Thomas P. Broughan)

Is that agreed? Agreed.

Deputy Aodhán Ó Ríordáin

I am pleased to have the opportunity to speak on this matter because I believe it to be of particular importance. I passionately believe that we as legislators have an obligation to protect that precious place that is childhood. In the past we failed collectively as a society. Now is our chance to rectify that and stand united in this effort.

I acknowledge the work of the late Ms Mary Rafferty who, in 1999, brought to our screens the horror of what so many of our children went through in industrial schools. Her programme, "States of Fear", led to widespread horror at the depth of abuse, both physical and emotional, that some of our citizens were put through. Last year, I had the honour of presenting Ms Christine Buckley, one such survivor of this abuse, with the Labour Party's Evelyn Owens award. Mary Rafferty's follow-up programme in 2002, "Cardinal Secrets", then documented how those in leadership roles failed to investigate or deal with complaints of abuse. However, what is equally distressing is how it also detailed the then political establishment's failure to protect those in the State's care.

Let us never be found guilty of such failings again. Let us work together in protecting children. Many issues will divide us in this House but this is not one of them. I include in that reference the children currently housed in direct provision centres as their parents await decisions on asylum applications. They too need protection and I hope the Minister will ensure adequate safeguards are in place so that in 15 years' time we do not see similar horrific scenes on our televisions about abuse.

The move by the Minister for Children and Youth Affairs to put in place legal requirements on mandatory reporting through the upcoming Children First legislation is most welcome, as is the imminent creation of a national children and family support agency. Alone, however, these moves are not enough. We need a cultural shift in which children are put at the heart of our social agenda. This referendum is the beginning in creating that dialogue as it sets down a legal minimum standard. The Constitution needs to be amended so that there is a general recognition and affirmation of the rights of the child. We need to ensure there is provision for the State to intervene in those very rare cases in which a child's parents have failed to protect him or her. We need the Constitution to treat all children equally regardless of whether their parents are married. We need to be certain that when proceedings affect children, their best interests are paramount in achieving a resolution.

Finally, we need to ensure that the views of children are sought and considered in any proceedings affecting them.

Last week I wrote a column for thejournal.ie about the long road this referendum has taken. Since 2007 there have been three different wordings proposed for a possible constitutional amendment. The wording before us tonight is the fourth such proposal. We have spent the last decade trying to make this amendment perfect. In using the term "we" I am referring to all of my colleagues in all political parties and those not in any party who have served the people during the past ten years.

In 2007 the then Minister of State with responsibility for children proposed that Article 42.5 of the Constitution be deleted and replaced with a new article that affirmed the "natural and imprescriptible rights of all children". Later that year the Joint Committee on the Constitutional Amendment on Children was established to agree an all-party consensus. This committee met 62 times over a period of 27 months and produced three reports. The final of these reports, in 2010, proposed different wording to strengthen children's constitutional rights. More recently, in 2011, a third wording was agreed but never formally published by the Minister, who had been appointed in 2008. However, with the arrival of the troika and the change of Government in 2011 this issue was sidetracked and the task to put this to bed fell to the new Government and the new Minister.

It is clear that before we set out to take on this challenge a significant amount of work had already been done on this issue and that should be acknowledged. Given the care that was shown by previous officeholders and the work that has been done by this Government and the last Government, we prioritised this measure as a stand-alone referendum to ensure that the debate could be clear and focused. It was also decided to hold the referendum on a Saturday to give maximum opportunity to all citizens to have their voices heard. It is crucial that those voting for the first time have the chance to help to bury the painful legacy of the past and to make history for our children.

I am honoured to serve on the Labour Party's campaign committee on this issue alongside my colleagues, Deputies White and Conway and the Minister of State at the Department of Health, Deputy Lynch. I look forward to working with those from all sides of the House to get this referendum passed. I hope that we will continue the debate on children's rights and child protection indefinitely in order that we ensure that we protect childhood for everyone. My long-term hope is that, as legislators, we can create a culture of listening and that children's views can to be taken into account in all aspects of their lives. This amendment empowers Members to draft and pass legislation to copper-fasten the rights of the child and mop up the anomalies in our law. I look forward to working with everyone here as well as the NGO sector to continue the advancement of children's rights in future. Childhood is precious and I am proud to be a part of the political system that has finally woken up to this fact.

Deputy James Bannon

I welcome the Bill and I acknowledge the work of the Minister for Children and Youth Affairs, Deputy Fitzgerald. Her work has introduced measures for the recognition of children, in particular the referendum on the 31st amendment of the Constitution. This was promised but not delivered by the last Government but has been accomplished by this Government and that is important. The rights and protection of children under our Constitution must be of paramount importance. I emphasise that I believe these rights extend to the unborn as well. I have made my position clear in respect of any attempt to introduce abortion to this country, a measure to which I am totally opposed. The recognition of children as individuals with individual rights is a significant step forward in the creation of a society based on equality for all. Although the amendment, which has been so carefully worded, will not be the cure-all sought at the most extreme level of expectation, it will go a long way towards it. We are now presented with a once-in-a-lifetime opportunity to make a difference in the lives of our children that will resonate for years to come. That we do so under the cloud of the revelations of terrible abuse, which has shocked our nation to the core, is a strong incentive, if one were needed, to ensure that childhood is protected in every possible way.

While idealistic aspirations are often at odds with reality, I am confident that the Government will do its utmost to ensure that the optimum protection and respect will be accorded to children in the State. The UN Convention on the Rights of the Child will direct and underpin the actions of the courts in interpreting the constitutional provision now under consideration which the electorate will have the right to accept or reject on 10 November.

Given the influences that children are subjected to in the 21st century, not the least of which are social networks, it is essential that any provision for their protection goes beyond the historical and somewhat narrow provisions. The issues faced by young people today could not possibly have been envisaged under the provision of the 1937 Constitution. Any amendment to the Constitution is likely to remain in place for a long time and, as such, must be far-sighted. While I am aware that the amendment does and must provide for the adoption of the children of married parents, this area is fraught with pitfalls. Like any other provision, there is a danger that bureaucracy and opportunity could lead in the long term to the unjust suffering of children and their parents, rather than providing the desired protection.

Let us consider the position in the United Kingdom. The system of so-called child protection there has led to accusations of secret family courts, reporting restrictions and child care scandals. The heart-breaking reality is that reported excessive zeal by social services is leading to children being removed from parental care in situations where no abuse or neglect has taken place. Parents are often afraid to take their children to hospital following an accident in case they are accused of deliberately harming a child. This situation arises in all socioeconomic groupings of people and money and educational or professional status are no protection in these areas. Last week the adoption of a baby boy, whose parents were accused of battering him leading to broken bones, was halted as evidence of congenital rickets and a vitamin D deficiency was presented. After a three year battle the parents of the child have finally been given the chance to get their son back. They are the lucky ones. Records in the UK show numerous cases of supposed child abuse leading to children being removed from their parents and put up for adoption. Even if the supposed abuse has been proven to be false, the children are not returned in many cases because adoptions have gone ahead and cannot be undone. In another case highlighted last year a mother lost her son and daughter, both under the age of 12 years. She was not prosecuted for any kind of abuse and had committed no crime. She does not smoke, drink or take drugs and does not suffer from mental illness. She was described as a kind and loving mother. However, because of psychological vulnerability during a time of stress the social services decided that the children were at risk of significant harm. These cases are only the tip of the iceberg. It is important at this juncture when legislation and constitutional amendment will make provision for our children's health, happiness and essential rights, that bureaucracy does not develop in a way that, in the long term, will work against the very ideals that we seek to achieve.

It is admirable that this Government has prioritised the protection of children and has, under the watch of the Minister, Deputy Fitzgerald, done more to advance this legislation and the setting of a date for the children's rights referendum than all the talk of the previous Government.

I am also confident that, in co-operation with her Cabinet colleagues, she can ensure that children are given special protection that will keep them safe, from both abuse and perceived abuse.

In tandem with children's rights, parents must have confidence that, in looking after their children to the best of their ability, they too will be protected. I never want to see headlines such as "Social Services took my Child" and "Child Care Scandals" in this country. The most basic right is that a child will, except in the most extreme cases, be entitled to know, love and be brought up by his or her own parents. We can say that this is obvious and that any provision will only be in respect of proven and threatening cases, yet if we look at the issue of the introduction of divorce in Ireland, the initial thinking of everyone was that it would only apply in the Irish context to the most extreme situations. However, since 2006, 90,000 divorces were obtained in this country. This is a considerable number. Abortion legislation in the UK and other countries was enacted initially with strict provisions. These have been watered down over years to the current position where abortion on demand, indeed, on the most flimsy of pretexts, is very much the norm, and we never want to see it introduced here in this country.

This brings me on to another important issue, which perhaps comes under the Minister for Justice and Equality's remit, that is, cyber-bullying. We must bring forward legislation to stop electronic bullying or intimidation through the Internet. This is an issue that needs to be addressed. It is a new phenomenon and a 21st century issue. Technology has now made it easier for bullies to get away with it and we must direct schools and IT literate persons to adopt policies prohibiting cyber-bullying. Children or young adults can go online to create a cyber-personality for themselves by posting messages, videos, their interests and likes and dislikes on sites, and it is cheaper than texting. Also, it is anonymous. Indeed, it can cast decent people in a poor light. This is also an issue that needs to be addressed and no doubt the Cabinet will do so during the term of this Government.

Our children are our future. It is up to us to ensure that they are protected and that they can enjoy the childhood they deserve with loving families around them. Good child care facilities are central pillars in our society. The Minister is committed to prioritising the delivery of quality community child care, paid parental leave and improved direct child care payments to families.

Community care facilities need to be supported. I had the pleasure of accompanying Deputy Fitzgerald when she visited the midlands - Longford, Athlone and Mullingar, and, indeed, many small villages in between - last year when she became Minister. It probably reminded her of the Seanad campaign she undertook with me a number of years ago. She got a great insight into how communities gel and how they look after and support community child care facilities. It is important that such child care facilities are supported 100%. No doubt we have the Minister in place who will battle extremely hard to ensure there are budgets for those facilities.

In a nutshell, this is an important piece of legislation. It will foster a new attitude to children and reform the adoption laws and, indeed, support families and protect children and make them visible, and ensure decisions for children in their best interests. I thank the Minister sincerely for bringing forward this legislation.

Deputy Seán Crowe

Like other Members, I welcome the publication of the proposed wording of this amendment to the Constitution. It has taken 20 years, 17 major reports into child-protection failings and repeated promises from successive Governments to get this far.

As the House will be aware, Irish society has fundamentally changed since the Constitution was first written and I welcome this proposed reform. Hopefully, it will ensure, for the first time ever, that the State will recognise the rights of children as individuals and not only as part of a family. It is extremely important that the child can be recognised as a full citizen of the State, within and separate from the family.

While the wording of the Government's proposed amendment is not exactly in line with what was agreed at the cross-party Oireachtas joint committee, I welcome that it goes a long way to achieve the committee's shared objectives.

The question facing us, as legislators, is whether the final wording of the amendment be strong enough to ensure that it will protect all the children in the State from official neglect and abuse. We all hope that it will become the keystone of one of the most important commitments laid out in the 1916 Proclamation of which other Members spoke, to "cherish all the children of the nation equally", and ensure that becomes a reality.

When I first came into this House a number of years ago, I took part in discussions on legislation on children with special needs. The aspiration of those of us who took part in that debate and all the different groups that came in was that the legislation would pave the way to improve matters for children with special needs and their parents. One of the most important points we made at the time was that they would only be aspirations unless the Government followed through with resources and supports for those families and, unfortunately, many families have been left in the situation where the child has been left without those supports. It is important that we have these rights written in the Constitution but unless they are written in stone and the supports are in place, we fail children once again.

Later we will discuss other children, those in the institutions etc., who we failed in the past and I welcome the fact that we will have another opportunity to reflect on that. We in this House would all accept that we failed many of those children in the past, we are failing children at present and the important point coming out of this is that we must not fail children in the future.

The amendment is designed to ensure that the interests of the child will be paramount in any court proceedings taken by the State relating to child protection, adoption, guardianship, custody and access. While it is a welcome development to enshrine this in the Constitution, the Government must place the welfare of children to the forefront of their minds and review their harsh cuts to social services and overall austerity measures, which are detrimental to the well-being of vast numbers of children across the State.

Recent figures from the CSO's "Survey on Income and Living Conditions" show that more than 200,000 children across the country are living in poverty. This is an increase of 30,000 from two years ago. This is happening under the Government's watch - 30,000 extra children in poverty. Conditions can be linked directly to the decision to turn private debt into sovereign debt. It is unacceptable that the Government is standing idly by while thousands of children live in poverty, and this report suggests that the number is rapidly increasing.

While the Government proposes to introduce more harsh austerity measures, including cutbacks on social welfare, education and health which impact on the well-being of children, one in four between the ages of 12 to 17 is living below the poverty line according to the CSO.

The CSO report also states that if social welfare allowances were excluded from the survey, 38% of households nationwide would be at risk of poverty. This clearly shows the importance of welfare schemes and transfers in protecting families from the poverty trap. I know at first-hand the number of families who are struggling to make ends meet at the end of the week in the current atmosphere of drastic cuts on social spending and tax increases which are affecting the most vulnerable.

People are already at breaking point trying to pay household charges, yet we see major residential energy price increases. This will inevitably see more families dragged further into fuel poverty where they will have to choose between paying for basic household items or living in a home that is heated. It was only the relatively mild winter we had last year that saved many people from the dangers of fuel poverty, but the concern is that fuel poverty will happen. While the Government is focusing on legislating to protect children, it must also ensure that its policies do not endanger the well-being of children by pushing their families further into poverty.

In the same week the wording to the amendment was published, the Irish Refugee Council published a report entitled: State Sanctioned Child Poverty and Exclusion. The report dealt with the shocking conditions and treatment that children of asylum seekers now face. It highlighted in shocking detail the major overcrowding issue in direct provision centres in which asylum seekers are accommodated and indicated that children staying in them are at serious risk of malnourishment. There are currently 5,098 people in State-provided direct provision centres and over one-third of these, 1,789, are children. Some were born in or have lived their whole lives in Ireland, as processing for asylum seekers takes anywhere from one to seven years. Due to overcrowding issues, these centres pose a risk to the well-being of children.

According to a report from the special rapporteur for children, Geoffrey Shannon, there is a "real risk" of child abuse in direct provision centres because single parents and their children sometimes have to share a room with strangers. In addition, sometimes the families of teenage children of opposite genders are required to share one room. Given the history of child abuse in State run institutions here, the Government should tackle this problem immediately to ensure that no child, no matter its nationality, is under threat while in State care. The State is also failing to provide many families with enough nutritious food. The report states:

Lack of appropriate food and the inability of parents to provide food for their children is a common theme in residents' lives in direct provision. The result of the inadequate provision of food has been: instances of malnutrition among children and expectant mothers, ill-health related to diet among babies and young children, weight loss among children, hunger among adults (as a result of family rationing) and chronic gastric illness among children of all ages.

This is unacceptable. It reads like a description of the conditions from which many of these families were trying to escape. I agree with the recommendations of the Irish Refugee Council's report, which call for an independent inquiry into the long list of complaints, grievances and child protection issues reported by residents and children of the State-run direct provision centres for asylum seekers.

Passing this referendum will not ensure that children are fully protected in our society. The Government also needs to protect children whose well-being is threatened by socioeconomic factors and those children in the care of the State. While the amendment to the Constitution is welcome, it will not change that fact that Government policies continue to place thousands of children at risk every day. Deputy Luke 'Ming' Flanagan spoke earlier about the Children's Rights Alliance and a child-centred approach that would allow the thousands of children in State care the opportunity of a loving and stable family home and about ensuring that judges listen to children when a decision is to be made in a court or family case. We have the opportunity now to move beyond child abuse.

I look forward to the referendum and to discussing the issues on the doorsteps with constituents. People should vote "Yes" on this. I do not agree with those in the "No" camp on this, although I accept the view that we could make stronger recommendations. Perhaps we should be moving towards not only poverty-proofing many policies but towards child-proofing them. I look forward to the Minister for Children and Youth Affairs being the champion of this and hope she will ensure that legislation coming before the House will be child-proofed so as to ensure we do not repeat the mistakes made by society, the State and the Government with regard to children in the past.

I welcome the opportunity to speak on this and I hope to speak later on tonight on the issue of the hurt still being created in people's lives due to our failure to legislate with regard to those hurt in the past. I hope and pray - not something I do very often - that we do not return to this in 20 years and find families and children in the same situation we have had in the past. This amendment is a genuine effort by the Minister, the Government and those who sat on the committee to deliver for children. Hopefully, we have it right this time.

Acting Chairman (Deputy Thomas P. Broughan)

I now call Deputy Mary Mitchell O'Connor, who is sharing her time with Deputies Anthony Lawlor and Regina Doherty.

Deputy Mary Mitchell O'Connor

Shakespeare wrote: "Defer no time, delays have dangerous consequences." Over past years, we have let down the children of Ireland and have allowed children's lives be ruined and destroyed. The delay in bringing forward a referendum on children's rights has resulted in many children facing danger, abuse and sometimes death. Our Tánaiste was right when he stated that some of the darkest moments in our past are a direct consequence of ignoring children's interests and their rights to be cared for and protected.

It is more than 20 years since Mrs. Justice Catherine McGuinness called for a referendum to enshrine the rights of children in our Constitution. Many academics and children advocates also pleaded with previous Governments for a referendum. This Government is listening and reacting and it seeks to protect our young and vulnerable. I am proud to be part of this Government, a Government which cares and which will listen to children and give a voice to them in our Constitution. This Government appointed the first Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, who has done Trojan work to bring this referendum to the people. The referendum proposes to put the child at the centre of Bunreacht na hÉireann. It is a statement of how we value and cherish the children of our State. The majority of parents look after their children. This referendum is not about them, but about the parents who do not nurture and protect their children.

During my years as a teacher and school principal, I attended many teacher conferences, meetings and staff meetings at which many teachers expressed concern for children in their care. Some arrived at school unwashed, some arrived hungry and some arrived as vacant, exhausted shells. Indeed, some arrived as all of these with all life and sparkle drained from them. This referendum will facilitate those cases where children are abused or neglected within their families. It will allow the State to step in more quickly to protect them. This is a very welcome development.

During my work in the education sector, I met children who were fostered and their foster parents. It was plain to see that these children were adored, cherished and loved. However, there was something missing, a piece of the jigsaw lost. They did not fully belong and there was an endless fear that the dream would end soon and that the child would have to leave. Often, the real heartbreak for the foster parents was the knowledge of the situation to which the child would return.

They had to watch the child they adored, cherished and loved return to parents who neglected, abused and dismissed the child. Some of these parents were incapable of looking after themselves due to problems with drink, drugs or mental illness. Forthcoming legislation will allow the children of married parents to be adopted. More than 1,600 children are currently living in institutions or with foster parents because of the value placed on the family in our Constitution. We need to make it clear that the new Article 42A of the Constitution still acknowledges that the best place for the child is in the family home. This is the case in the majority of instances. If this referendum is passed, children will have recognised rights and the safety and welfare of children will be at the centre of decision-making. The inclusion of the proposed Article 42A in the Constitution will mean that the family will have to share its pedestal with children. A balancing act will have to be performed. This is only right and proper. Hillary Clinton has said that "every child needs a champion". On 10 November next, we should all become champions for our sons and daughters and for those children who are seen by few and heard by even fewer.

Deputy Anthony Lawlor

Approximately six weeks ago, my staff made an appointment for a woman to come to visit me. I thought it was a routine case of someone looking for assistance with an application for disability allowance. When the woman sat down in front of me, I heard the horrific tale of how her daughter was abused approximately 25 years ago. As a result of this abuse, her daughter started to look inward and become depressed. She turned to alcohol and currently resides in the psychiatric ward in Naas hospital. As I listened to the details of what happened to this young girl, it struck me that the abuse, which was a physical and traumatic experience at the time, has affected her ever since. Her entire life has been destroyed as a result of half an hour's bad experience with someone she trusted. That is why I feel that the constitutional amendment we are putting before the people is so important. We have to protect people like this young woman, who trusted someone but was abused by that person. We can do something to alleviate the sorts of problems that might be encountered by children in the future. The woman in this case will suffer for the rest of her life, sadly, but many others can be saved if we agree to amend the Constitution as proposed in this legislation. The pain of abuse will be taken from them.

I emphasise that we are talking about a small number of people. Virtually all children live in loving and caring families. When I researched this issue, I learned that one third of young children in foster care are being looked after by relatives. During the summer, I heard that the sister of a woman who had ended up in psychiatric care took on the responsibility of looking after her four children. The problem I dealt with was in ensuring the State could give this family as much assistance as possible. The broader family unit stepped in to help the mother when she required such assistance. I hope the four children will be back with their mother shortly when she has herself sorted out. We have a duty to ensure that sort of care and feeling is reflected in our Constitution.

The Minister was right when she said that this amendment, although helpful now, will be of particular benefit to future generations. It will help us to prevent the small number of abusive people in society from abusing children. It will allow us to help children as much as possible. That is why I warmly welcome the Bill before the House, which has been in fermentation for a long period of time. One of the first committees to examine this issue and produce a report on it was established 20 years ago. I must say that great work was done by former colleagues of the Deputies on the other side of the House, including Mary O'Rourke and Barry Andrews. In 2007, a joint committee proposed many of the ideas that have been taken on board by the Minister in proposing this amendment to the Constitution. It is sad that it took so long, but by reading those reports and reflecting on their positive aspects, I think we have got it right.

When this proposal was being drawn up, great consideration was given to the central role the family plays in a child's life. We should try to keep every child in his or her family, where possible. I welcome the adoption Bill that is associated with this proposal. According to an information document on that Bill which I have read, the policies and practices of those who are working with children now, including HSE professionals like care workers and social workers, place a focus on keeping the child in the family to the greatest extent possible. Those professionals provide support to parents as well. It is important that the State gives as much assistance as possible to those who have difficulty with the skill of parenting. The last thing anyone wants to do is to remove a child from its family. I mentioned earlier that the broader family often comes to the help of young children.

I am glad that foster families are being recognised. Many children go into foster care for short periods of time - perhaps two or three months. It does not help children to be moved from one foster family to another. Stability, in its various forms, is the most important thing for a young person as he or she is growing up. Many couples who have children of their own are willing to foster another child. Some of them would love to be able to adopt that child if his or her biological family is not capable of looking after him or her. Therefore, I welcome the fact that the legislation will give a foster parent who has cared for a child for five, six or seven years an opportunity to adopt that child. I am also pleased that the voice of the child is being heard. The Minister mentioned that many of the adoptions taking place within foster families involve children of 15, 16 or 17 years of age. They are mature at that stage. They are able to make their own decisions and life choices. They are allowed to vote at 18 years. They are allowed to consent to have sex at 16 years. It is disappointing that these young people have not been heard before now when they have said they want their future to be with their foster families.

I congratulate the Minister on the work she has done so far to prepare for the referendum. I am delighted that there is cross-party support for the proposal. I look forward to canvassing for a "Yes" vote in the referendum on 10 November next.

Deputy Regina Doherty

This Bill will facilitate one of the most important referendums in the history of the State. I am always appreciative of speaking time in this House but I am particularly grateful to be able to speak today on an issue that is particularly close to my heart. The cornerstone of any democracy is its constitution. Equality should be the foundation of our democracy. As a result of this legislation, we will finally give our children the protection of our Constitution. I do not think anybody can object to that. More than 30 years have passed since the then Senator Mary Robinson first expressed the need for constitutional change for children. In the intervening period, a series of official reports have made the case for strengthening children's rights at constitutional level.

These include the Kilkenny incest report in 1993; the Constitutional Review Group in 1996; the Joint Oireachtas Committee on the Constitutional Amendment on Children in 2010; international authorities such as the UN Committee on the Rights of the Child in 1998 and again in 2006; and, the Council of Europe Commissioner for Human Rights in 2007 and more recently in 2011. As evidenced by the marches in support of victims of child abuse, the public appetite of the people for change is also clear.

It has taken this Government to have to courage to acknowledge the State's responsibility to children. Upon taking office, the Government immediately made significant inroads into improving Ireland's child welfare and protection systems with the appointment of a senior Minister for Children and Youth Affairs and the establishment of a Department of Children and Youth Affairs, which were big and important steps. We have already seen momentum, with child protection reforms taking place, with the child and family support agency and the legislation on Children First, the Criminal Justice (Withholding Information on Crimes Against Children and Vulnerable Adults) Bill and the National Vetting Bureau Bill. All mark significant progress in the direction of Ireland's commitment to improving child protection and welfare and set Ireland on course to meeting the recommendations set out by UN Committee on the Rights of the Child's in 2006.

We need laws that will protect children from harm and give them status as individuals. Now, with the insertion of explicit children's rights into the Constitution, which had been mooted for a long time, the Fine Gael-Labour Party Government is keeping the promise to hold such a referendum, a children's referendum. We will be voting to insert an article into the Constitution, as the Taoiseach said, "dedicated entirely to children as individuals, as citizens in their own right". For the first time in the history of the State, children will become more than just the property of their parents.

I compliment the Minister, Deputy Fitzgerald, and her Department on their work in getting this legislation ready. She took time to get it right and it has been noticeable that the response to the wording from all corners of the spectrum has been welcoming, including from the Opposition. We have had a plethora of reports highlighting the neglect, abuse and exploitation when children's voices were silenced and their best interests ignored. Those working with and for children agree that constitutional change is required to ensure that children are fully protected in society and that their rights are taken into account in decisions made about their lives.

Why do we need a constitutional amendment to strengthen the rights of children? At a minimum, the express and individual rights for children at constitutional level will reflect the value we place on our children in society and ensure that they are the focus in budgetary, political, administrative, legislative and other decisions affecting them. The lack of recognition of the individual rights of the child has led to some poor judicial decisions affecting children. Unlike cases involving children of unmarried parents, in cases involving children of marital families, due to the constitutional presumption in favour of the family under Article 41, no independent investigation can be undertaken as to the child's best interests in the court's decision making unless the exceptional circumstances outlined prevail. A key example of this is the "Baby Anne" case.

The Constitution allows discrimination to persist between children based on the marital status of their parents, with the strength of the rights afforded to children reliant on whether their parents are married or unmarried. The "Baby Anne" case is also a relevant example in this regard and shows how the rigid judicial interpretation of Articles 41 and 42 has impinged upon the effective operation of our child protection, care and adoption systems.

Children's rights are human rights, with particular attention to the rights of special protection and care afforded to the young. With this referendum, we are acknowledging the move towards viewing child protection through the lens of children's rights, indeed, through a human rights lens. The field of children's rights spans the fields of law, politics, religion, and morality. Children in Ireland, as in many other European countries, were historically sidelined in society. The State on its foundation in 1922 inherited a 1908 Act that was to be the main instrument for child protection for most of the 20th century until the enactment of the Child Care Act 1991. The failure to amend and overhaul that legislation for more than 80 years speaks eloquently of how children were viewed.

The 1937 Constitution largely saw children in the context of the family, which was interpreted to mean only the marital family. Children's rights were not considered. That their voices were not heard, that their family ties were not respected, is now well recognised. The lack of recognition and complete disregard for the human rights of children and young people inevitably led to a situation where policy focused on protecting the income of the institution, a State that did little or nothing to increase support to families in need.

Childhood is a precious time and does not last very long. Children must be protected and their rights promoted to ensure they are consistently treated with the respect and dignity they deserve. The wording to be inserted into the Constitution is crucial to its success as it balances the rights of children with those of their parents. Most significantly, the best interests of the child are to be the first and paramount consideration in the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child. Making children visible in the Constitution will help to foster a new legal landscape for children in Ireland.

Perhaps the greatest recent adjudication on the proposed amendment came from Ms Anne Rennison, who over 25 years has fostered six children long-term and 20 short-term. She said on "Morning Ireland" in recent days that the referendum will acknowledge the rights of children and hear the voice of children, the children who in the past and to this day are "no longer safe" in our society. This is a chilling and tragic indictment of the way we have approached matters in the past. In conclusion, if this amendment can prevent one more crime against a child, if it can make one child's life safe, if it can make one family more complete, then this House will have done a good day's work.

Deputy Thomas Pringle

I wish to share time with Deputies Seamus Healy and Tom Fleming.

Acting Chairman (Deputy Thomas P. Broughan)

Is that agreed? Agreed.

Deputy Thomas Pringle

I welcome the opportunity to contribute to the debate on the children's rights referendum. As was said, the amendment has been welcomed across the board and among the wider public, rightly so. This is a tribute to the work the Minister has done to put together wording that is acceptable to everybody, which is as it should be. There is no doubt the Irish people will on 10 November give the go-ahead to the amendment of the Constitution. I would imagine there will be virtually unanimous support across the country in regard to protecting the rights of children and enshrining this in our Constitution.

As the Minister said in her contribution yesterday, it has been a very long time coming, perhaps too long. On 11 November, the work will really begin for those in the Oireachtas because there is no doubt the amendment will be passed and, when it is, we will have a job to do. We need to make sure legislation reflects fully and builds on the amendment, and strengthens the protections for children and the rights of children into the future.

The wording of the amendment is the legal minimum standard. The Adoption (Amendment) Bill just published will go some way to enshrining those rights in regard to adoption and the rights of children but when we introduce other legislation, we need to go further. There are proposals to put child protection on a legislative basis and we need to make sure that progresses as quickly as possible. We also need a children Bill to be published that will fully enshrine and build further on the rights of children. Comprehensive legislation on that basis will be vital for us.

The wording of the amendment states that rights "shall" be enshrined, which is very important. I pay tribute to the Minister for ensuring the word "shall" is included because it means we cannot duck our responsibility in this House and we will have to ensure we bring forward the legislation to protect the rights of children. The fact the wording reflects the UN Convention on the Rights of the Child is also important and builds this into the Constitution. This can only strengthen the Constitution and make it better for all citizens, children in particular.

The legislation we introduce after the referendum must ensure the best interests of children are reflected in all proceedings in regard to children, whether administrative or judicial, so children are foremost in people's minds when they make these decisions. The views of children should be considered in any judicial proceedings. I know that in some jurisdictions children are given legal representation with regard to adoption and other matters concerning them. That is something we should put in place here.

Cuireadh an díospóireacht ar athló.

Debate adjourned.

Dáil Éireann debate - Wednesday, 26 Sep 2012

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

Dáil Éireann debate -
Wednesday, 26 Sep 2012