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."

One of the most important issues following the passing of the referendum and the subsequent legislation is to ensure resources are made available for the proper implementation and vindication of children's rights and I have no doubt that the Minister is fully committed to that. However, I wonder whether the Government is as committed to that, particularly considering that in the past week we had the National Vetting Bureau (Children and Vulnerable Persons) Bill. The proposal in that regard was to defer revetting because of the lack of resources. This is a worrying trend and I hope it is something that will not continue when the children's referendum is passed.

Funding needs to be made available in the immediate aftermath of the referendum for the Judiciary and for the Judicial Studies Institute to ensure the Judiciary is fully up to speed on what is intended and what we want to see happen with regard to the courts' interpretations of the amendment so as to ensure children's rights are vindicated as we want them to be. It is also vital that the child and family support agency is fully and properly funded. We must ensure this happens. Placing children's rights in the Constitution is only half the battle. We must ensure funding is there to ensure agencies can work to vindicate the rights of children.

In conclusion, as the Minister pointed out, we have failed miserably in the past. When we look at the legacy of child abuse, the children affected by the Magdalene laundries and at what went on in the Bethany homes, we see a record of failure. This amendment shows that can and will change. However, the amendment is only the halfway stage and we must ensure the legislation and resources are put in place to sure it is enacted properly. The amendment is a good start and it shows we have some commitment to children. We need to demonstrate we are fully committed to making it work for all the children in the country.

I welcome the proposed thirty-first amendment of the Constitution which expressly recognises children in their own right within the Constitution and enshrines and gives firmer recognition to their protection. It is important that the Oireachtas, in its deliberations, gets the strongest and most robust formula and wording possible in the Bill. The wording must be based on clarity and facts in order to ensure the public fully understands it is first and foremost about children and that it affirms at all stages the protection and empowerment of these children, who are in many cases incapable of speaking for themselves.

I will refer to a parliamentary question I put to the Minister last January asking about her plans to address the significant increase in calls to the Childline helpline on Christmas Day and asking her to make a statement on the matter. Her response was as follows:

Childline is a confidential listening service for children and young people operated by the Irish Society for the Prevention of Cruelty to Children, ISPCC. The service is available by telephone, online and mobile texting and is operated by professionally trained ISPCC staff and volunteers. The ISPCC reported that Childline received 1,387 calls and messages on Christmas day and that 85 ISPCC volunteers gave freely of their time to listen and support children who needed to talk to someone.

The Minister went on to state:

I have no precise information regarding the breakdown of the nature of the calls received by Childline on Christmas day. It is difficult therefore to make any assessment of the issues raised. However, I have asked the Health Service Executive, as the body charged with statutory responsibility for child welfare and protection matters and which has an established relationship with the ISPCC, to liaise directly with the ISPCC on this issue with a view to identifying any particular areas of concern arising from the level of contact made with Childline on Christmas day.

To be honest, this response is a sad reflection on society. It exemplifies in micro fashion how on this particular day of festivity some 1,387 children felt they had to pick up the telephone and voice their concerns to the 85 volunteers who, fortunately, were accepting calls. I compliment the ISPCC on its Childline service and on the work it carries out to protect and support the many vulnerable children it encounters in its role.

The Minister also mentioned the HSE. There should be more contact and greater liaison and co-operation between Childline and the HSE to ensure maximum intervention protocols and the necessary monitoring systems are put in place. I compliment support groups such as Barnardos and the Jack and Jill Children's Foundation which have restricted budgets and rely on voluntary efforts to carry out their vital roles in improving the quality of life of thousands of children.

The need for constitutional reform has been accepted for many years. It was discussed intermittently, if not at length, in the Oireachtas in the early 1980s. A number of official reports that called for constitutional change to strengthen the rights of children were left on the shelf to gather dust. The many court cases concerning child welfare in recent years have served to highlight the inadequacy of the current constitutional recognition afforded to the rights of children. The Office of the Ombudsman for Children has been calling for stringent protection for children's rights in the Constitution since the establishment of that office over eight years ago. The ombudsman, Ms Emily Logan, first called for an amendment to the Constitution in January 2005 to enhance children's rights. She has demonstrated since, especially through her office’s complaints work, that there is an urgent need for children’s rights to be enhanced in the Constitution. Many of the complaints with which she deals highlight a lack of awareness about the impact of civil and public administrative decision-making on the lives and rights of children and their families. In her submissions to the Oireachtas she has called for a number of key elements to be included in the Constitution. These include an express statement of the rights of the child, the best interests principle, a State duty to support families while responding in a proportionate manner and a provision to enable the sharing of soft information. I am glad that many of her recommendations are contained in this proposal. I hope the democratic exercise on 10 November will endorse the referendum proposal and enshrine key children’s rights principles in the Constitution in order to underpin a fundamental shift in our law, practice and policy on children.

I congratulate the Minister on the compilation of the Bill. I wish her well in her efforts to bring it through the Houses and have it endorsed.

I welcome the opportunity to speak on and support the Bill. I compliment the Minister on the introduction of such a balanced wording. I acknowledge the broad support for the amendment proposed in this legislation in the Houses of the Oireachtas and the country generally. That bodes well for the referendum on 10 November when I hope there will be a positive outcome, as I am sure there will be.

I would like to set out the background to the forthcoming referendum. During the years we were all rightly shocked by the findings of various reports such as the Roscommon, Kilkenny, Ryan and Cloyne reports. The attitudes that allowed such abuses to continue had to be challenged and overcome. The Bill which sets out the wording of the amendment to be put to the people in the proposed referendum is an important part of that process. Obviously, it has to be read alongside other legislation, including the Children First Bill, the vetting Bill and the forthcoming legislation to establish the child and family support agency.

The referendum has been a long time coming. The first recommendations for constitutional reform in this area were made by the task force on child care in the 1980s. Various committees have produced reports since. At international level, in 1998 and 2006 the United Nations Committee on the Rights of the Child added its voice to the calls for the constitutional position of children to be strengthened. A number of High Court and Supreme Court cases have also raised concerns in this area. There have been many indications that the current constitutional position presents a difficulty when particular cases have to be dealt with. Thankfully, the Minister has introduced this legislation, which means a referendum will take place on 10 November.

There is no doubt that the constitutional amendment will make children more visible and ensure decisions are made in the best interests of children. It recognises that children have rights and that all children are equal. It allows the rights of children to be balanced against other competing constitutional rights. It introduces the best interests principle, to be used as a guide when decisions are being made to resolve disputes in areas such as adoption, guardianship, custody and access. It also includes the principle of hearing the voice of the child in judicial and administrative proceedings and is active in the area of supporting families and protecting children. It applies the same standards to all children and places an onus on the State to support families and adopt a proportionate response to parental failure.

The language used in the wording of the amendment is balanced. It refers, in the first instance, to "all children". It sets out what the State has to do "as far as practicable". It makes it clear that these provisions will apply to parents who "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". It provides that the response of the State must be "proportionate" and in line with "the best interests of the child". I do not doubt that a great deal of thought and preparation went into such a balanced wording.

The question of adoption is dealt with in the Bill. At present, it is virtually impossible for a child to be adopted if his or her parents are married. Approximately 6,000 children are in care, approximately one third of whom have been in long-term care for more than five years. Many of them have little or no contact with their parents. If the amendment is passed and the subsequent adoption legislation enacted, children in care will be eligible for adoption. That will clear the way for the Oireachtas to introduce legislation that will allow any child to be voluntarily placed for adoption, which will be a welcome development also.

I would like to refer to the question of resources which has been mentioned by a number of speakers. It is fine to introduce a constitutional provision of this nature, but we need to ensure the actions of the State correspond to the provision in question. We need to focus on poverty-proofing future budgets, for example. Educational services in certain areas are not adequate and, unfortunately, have disimproved in recent years. Larger class sizes and the lack of special needs assistants are having an impact on vulnerable children. There are long waiting lists in the health area. I am contacted on a daily basis by parents who are waiting for ear, nose and throat services for their children. Urgent cases can now wait for 18 months, while less urgent cases can wait for as long as four years.

These are areas that need to be addressed and improved by the State. Approximately 200,000 children in this State live in either consistent or relative poverty, which is an area that also needs to be addressed by the State. Resources need to be made available to ensure what we have in the Constitution actually corresponds to what we are doing in practice on the ground, particularly for vulnerable children.

I wish to share time with Deputies O'Donovan, Conlan and Donohoe.

Is that agreed? Agreed.

I welcome the opportunity to put on the record my support for this Bill and the forthcoming referendum on children's rights. The Government has placed children's interests at the top of its priority list since its inception and, for the first time, a senior Cabinet Minister, Deputy Frances Fitzgerald, was appointed with responsibility for children's affairs. This is the fourth referendum the Government will have held in 18 months, which proves it is a reforming Government and wants to see real change in Irish society. I commend the Minister and the Cabinet for bringing this Bill and the amendment to the Constitution to the Oireachtas and to the people in the coming weeks.

It is not only this Bill as there is other legislation which will impact on children who might be vulnerable. There is the vetting legislation which was referred to in the House earlier in the week and which will introduce statutory legislative requirements for those who work with or come in contact with children on a regular basis. There is also the proposed adoption legislation and, of course, the establishment of the child and family support agency, which will have the responsibility for child welfare and protection services, for which the HSE will no longer be responsible.

I recognise the Minister's commitment to this area and her track record. It is no surprise to me because of her dedication, work and commitment that she has managed to bring what has been a complex and difficult issue to the people to decide. I would also like to commend the joint committee that sat over many meetings and deliberated on the wording of any proposed referendum. The former parliamentarians of all parties who were involved should be recognised as we pass this legislation through the House. I believe the cross-party support for the Bill reflects the maturity of this democracy and this Parliament. However, we need to caution against complacency and ensure the people are fully informed of this debate and the implications it will have for the system of protection for children who might be at risk. This has been going on for the past 20 years and, at last, we are seeing progress.

I am a parent of three small children and believe it is important to acknowledge the many thousands of parents who look after their children, day in, day out and at night as well, because it is not easy to rear children in the current climate. It has never been easy. However, parents do what they do best, and they put their best foot forward to rear their children and give them the best chance in society. We need to publicly acknowledge this but while we do, we also acknowledge there are difficulties in some families and there are children at risk. This is where the weaknesses have been, although it has taken until now to acknowledge this. We are finally giving the people of Ireland the opportunity to put that right. This is an important point in regard to the referendum and the legislation. It will not only be for children who are citizens of this country but for all children who reside in the country. They will all be protected under this new legislation and the changes to the Constitution.

I am the chairperson of a board of management of a mid-size, 250-pupil primary school in County Waterford. I am acutely aware of the obligations on boards of management and people in positions of trust given the protection policies and school policies that have to be in place to ensure full protection. It is only right that in the most important policy statement of all, namely, the Constitution, children's rights are put first and foremost and that the best interests of children are protected.

We should also recognise the NGOs and advocacy groups who have always been a voice for children despite the fact the Constitution and the courts may not have heard the important voice of a small child in difficult cases. I am happy to support a Bill that will give the opportunity for the Irish people to let that child be heard in all proceedings relating to those cases. I commend the Bill and commend the Minister on her work.

I acknowledge the presence of the Minister for Children and Youth Affairs in the Chamber and compliment her on being present for almost all, if not all, of the debate, which shows her and her Department's seriousness on this issue. I also acknowledge as a very welcome move the Government's decision to hold the referendum on a Saturday, which is particularly important for first-time voters and those who are away from home. If the Minister takes anything from my contribution, I would urge the Government to put Saturday polling on a legislative footing. Going forward, this is something the State should do, at a minimum, to allow people to exercise their franchise.

Before I came into the Dáil, I worked as a teacher. Having listened to more experienced and more seasoned campaigners than myself in the teaching profession, I was struck by the fact experienced teachers could identify with a sense of accuracy when a child presented himself or herself in junior infants how that child was going to progress. More often than not, they got it right down through the years.

This referendum, if it protects one child, will be worth it, given the litany of scandals that have surrounded this whole area since the State was founded. It definitely has been the pall of shame over Ireland since independence. Successive Administrations down through the years, for one reason or another, whether for fear of outside institutions and pressure groups or just out of sheer ignorance, decided that the mantra that the child should be seen and not heard was the most important thing. I want to acknowledge the fact children are being given a constitutional voice in this, the 75th anniversary year of the Constitution, which, by and large, has been a very robust and good document. For the first time since the foundation of the State, children will be recognised legally as equal citizens with the rest of us. The Minister and the Government should be complimented for this.

Reference was made to the dozens of reports and the 20 year lapse since Mrs. Justice Catherine McGuinness first enunciated the need for a referendum. We are forgetting the fact there were children behind all of those reports. One of the images I constantly have in my mind from the Roscommon report is how the children presented themselves with lice climbing down their faces. There was a litany of failure from the State, its institutions and people working in this area. It is one thing to amend the Constitution but another to ensure the structures are put in place to allow the primary teacher, the social worker, the swimming coach or the librarian who might have a concern for a child to, in a very safe and responsible fashion, enunciate that concern.

As I and previous speakers have said, it is one thing to amend the Constitution but a totally different thing to roll out all the ensuing provisions on a day-to-day basis. This is why the Department of Children and Youth Affairs will make a difference. For the first time, children are not just shoved under the Department of Health or seen as an add-on to the Department of Education and Skills but are seen as equal citizens in this democracy, with a Minister whose sole responsibility is to them and them alone. One of the issues that has become relevant is that the collapse of the family and the cycle of abuse and neglect is not a modern phenomenon but is something that reports in the media have forced on us as legislators, both in this and previous generations. In fairness, legislators in some cases have been dragged kicking and screaming, as has society, into modernising the institutions that are there to protect children and to ensure children are given the protection of the State they deserve.

Deputy Seamus Healy referred to the issue of adoption. As a new Deputy, I was totally unaware of the hurdles that face families. I have since spoken to the Minister several times in regard to inter-country adoption.

I was totally ignorant of the fact that over 2,000 children are in long-term foster care, for whatever reason, but their foster parents are unlikely to be able to adopt them under the current regime. This referendum may give them the chance of a normal family life.

All of us in this Chamber were probably lucky enough, like myself, to have good parents who brought us up in the best way that they knew, putting their children first always. This referendum and the legislation we are debating may only affect a small number of children, but if it protects one and if it prevents another Roscommon or prevents another child from having lice running down his face, then it is a good day's work. I compliment the Minister on bringing this Bill forward.

I am pleased to be a member of a Government which is actively pursuing a suite of legislation aimed at addressing an issue which has been at the forefront of moral, social, religious and political discourse in this country since the child abuse issue broke the surface of the idyllic society of our parents and forced us as a people to confront the demons embedded within and to accept that all is not well when a modern democracy fails to afford constitutional protection, so cherished by our citizens, to almost 20% of our population. It reflects badly on us when those denied protection are the most innocent and vulnerable among us and are wholly incapable of protecting themselves. I am speaking of our most treasured asset, our future, those who will carry the mantle of this nation in the future.

The suite of legislation undertaken by this Government, the enactment of which is being expedited by our specifically designated Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, is aimed at addressing the protection of children in a real and meaningful way. The jewel in the crown of the process is the introduction of the Thirty-First Amendment of the Constitution (Children) Bill 2012, which will amend the Constitution and insert a new article, Article 42A, which will have the effect of enshrining the protection of children and expressly recognising them in their own right within the Constitution.

In passing this Bill we are galvanizing the protection of children and ensuring the right of every child to be afforded constitutional protection in their own right. In doing so, we are displaying a maturity and establishing ourselves as a nation where every citizen is truly cherished equally and entitled to enjoy all the rights conferred on us by our Constitution. We are truly implementing change. We are no longer paying lip service to the abhorrent revelations that came dripping slowly from a hidden Ireland, where abusers and predators were at best ignored and at worst, protected. I am not referring to any particular sector of society in saying this, as child abuse spans every socioeconomic, cultural, religious and political boundary and is to be found anywhere the light fails to shine.

As a Government we are succeeding where others have failed. We are ceasing the practice of displaying shock and horror, practised by previous Administrations, at the horror stories and cases bursting on to the media, only to be forgotten about when the next big issue arose. The Taoiseach, Deputy Enda Kenny, elevated the children's portfolio to a Front Bench position as far back as 2007 and was the first to give recognition to the important position children should be afforded in Government. He followed through on this important process by creating a new Cabinet position of Minister for Children and Youth Affairs, which has been eminently filled by my party colleague, Deputy Frances Fitzgerald, who deserves great credit for tackling this gaping absence in our legislation and Constitution, whereby children and the most vulnerable among us were denied the protection available to other citizens.

The need for this protection has been highlighted by successive reports including the Kilkenny incest case and subsequent investigations, the Constitutional Review Group report of 1996, the Oireachtas All-Party Committee on the Constitution report of 2006, the Roscommon incest and rape case and the subsequent report of 2010, the report of the Joint Committee on the Constitutional Amendment on Children in 2010, as well as various clerical abuse tribunals. Almost 20 years have passed, when we had money for everything, without this gaping hole in our society being addressed. It was not as if there were few incidences of abuse. Last year alone, of the 30,000 child protection and welfare concerns reported, 1,500 were confirmed cases of sexual, physical or emotional abuse and that does not include the vastly more numerous welfare issues.

The Taoiseach, the Minister for Children and Youth Affairs and this Government do this nation a great service and deserve the support of this House in forging ahead with these various instruments of legislation, which will finally afford protection to our children who hold the hopes and aspirations of a struggling but proud nation in the palms of their hands.

It is entirely appropriate that as the Minister sits here and listens to the debate, she has a copy of the Constitution in front of her. Perhaps she carries it with her all of the time but it is particularly appropriate that she has it here tonight because, of course, it is the Constitution itself that we are seeking to change. As we do this, it is appropriate to reflect on where the Constitution came from and the good that it has done the State to date.

As we acknowledge the 75th anniversary of this document, which Deputy O'Donovan did earlier, it is very easy to forget what a brave and progressive document it was in the context of where Ireland stood then. It stood as a small country on the edge of a very fraught and uncertain Europe. There were many recognitions and systems put into that document that have served our country very well and have stood the test of time. However, as many other speakers have commented, the one group that was not referenced at all was children. One factor that distinguishes them is that, unlike other groups that were referenced in that document, children do not have the ability to organise themselves or to come together collectively and articulate what they are looking for in the way that many other groups, that were rightfully enumerated in the document, do. Children do not choose their parents or the families into which they arrive. The environment is something that is a given for them and they have to choose how to respond to it. With that in mind, it is an omission in the document that has not served our country well and that has had terrible consequences for children over different generations.

When we talk about children within the amendment we are putting forward to the country, we are not just talking about children at risk. We are actually talking about all children. We are talking about making sure that they, as a group and as individuals, are explicitly recognised within our Constitution and that their rights are clearly called out. This will have many consequences in the future which, in truth, few of us can foretell. We do not know how they will develop and crystallise. That can only be a good thing for the group that has not been recognised to date.

The number of children we are talking about, notwithstanding what I have just said, who might be affected by this constitutional amendment in a material way is, thankfully, tiny. However, these are children to whom we have not given the right protection or support over the years.

One aspect of the amendment that I particularly welcome is that the threshold for intervention it sets is high enough to ensure that it will only be called in or triggered in exceptional cases, where children are not just being let down by their families but are being afforded no form of protection at all and are in desperate need of support. At the same time, the threshold is not so low as to augment the fears of those who have concerns regarding an expansionist State or are worried about the State trying to take the place of parents. If such people actually read the wording of the amendment, I hope they will see that such fears are groundless and will not be materialised.

The best way I can finish my short contribution is to quote from the amendment itself. Members have all studied the wording and I hope the people do as they contemplate how they will vote. One particular phrase is worth emphasising, "...the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents...". We are talking here about the common good. A philosopher once said that the way to judge the maturity and success of a democracy is by how it treats its most vulnerable. We are dealing here with an articulation of the common good that recognises the young people who need our help the most, who offer the clearest vision possible of what the common good looks like. The phrase "endeavour to supply the place of parents" is important. The State is not looking to take the place of parents. It has no such ambition and is not seeking to do so. It is simply saying that in the case of those children who need our help the most, we will realise the common good by giving them all the help that we can. Changing these words in the Constitution will allow us to do that better in the future.

Cuireadh an díospóireacht ar athló.
Debate adjourned.
The Dáil adjourned at 10 p.m. until 10.30 a.m. on Thursday, 27 September 2012.