The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment which is contained in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with the long-standing practice, the sections are postponed until consideration of the Schedule has been completed. In accordance with precedent and Standing Order 128, consideration of sections 1 and 2 of the Bill will be postponed until the Schedule has been disposed of. Is that agreed? Agreed.
Thirty-First Amendment of the Constitution (Children) Bill 2012: Committee and Remaining Stages
Amendment No. 2 is an alternative to amendment No. 1 so amendments Nos. 1 and 2 will be discussed together.
Tairgim leasú a 1:
I gCuid 1, leathanach 7, línte 5 go 7 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
“1 Admhaíonn agus deimhníonn an Stát cearta nádúrtha dochloíte na leanaí uile agus ráthaíonn sé na cearta sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.”,
I gCuid 2, leathanach 9, línte 4 go 6 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
“1 The State recognises and affirms the natural and imprescriptible rights of all children and guarantees, as far as practicable, by its laws to defend and vindicate those rights.”.
I move amendment No. 1:
In Part 1, page 6, to delete lines 5 to 7 and substitute the following:
“1 Admhaíonn agus deimhníonn an Stát cearta nádúrtha dochloíte na leanaí uile agus ráthaíonn sé na cearta sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.”,
In Part 2, page 8, to delete lines 4 to 6 and substitute the following:
“1 The State recognises and affirms the natural and imprescriptible rights of all children and guarantees, as far as practicable, by its laws to defend and vindicate those rights.”.
I ask that the Minister and Government would consider accepting the amendment. Sub-article 1 is very strongly worded and is very similar to the wording that was prepared by the former Minister of State, Mr. Barry Andrews, who referred to recognising all children having natural and imprescriptible rights, and the Minister, Deputy Fitzgerald, has clearly outlined in her wrap-up speech just exactly what those rights mean. This, if passed, will allow the courts to identify these rights on a case-by-case basis. We propose the amendment because we believe it strengthens the Bill and provides greater protection to the child.
The amendment proposes that draft Article 42A be amended so that it is consistent with the constitutional protection given to citizens under Article 40.3.1°, which provides that: "The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen." Fianna Fáil believes a similar level of protection should be afforded in the article concerning children and that it should, therefore, read: "The State recognises and affirms the natural and imprescriptible rights of all children and guarantees, as far as practicable, by its laws to defend and vindicate those rights." This amendment will ensure the same protection for children as is provided to the citizen referred to in Article 40.3.1°. We feel this is necessary and appropriate since it is likely that the courts will interpret children's personal rights as being protected by the new Article 42A.1, not Article 40.3.1°.
I formally propose amendment No. 2, which seeks to insert after the word “children” in line 5, page 8, Part 2, the word “equally”. I do so because I think it is important the word “equally” is included in the wording. We are not convinced that merely using the phrase "all children" is sufficient. I believe including the word “equally” restores the equality principle
When we refer to the original agreed wording from February 2010, the proposed Article 42.1.1° very clearly commended an all-party decision that: "The State shall cherish all the children of the State equally." The word “equally” does not appear anywhere in the Minister's proposed new wording. I believe it is a matter of some not inconsiderable importance. The word “equally” does, indeed, address the inequalities that are already inherent in so much that young people have to face in Irish society today and historically. We need to make it patently clear for all who will have to adhere to and interpret the wording of the constitutional change that there is one and clear intent on the part of this House, these Houses and the Government when this proposition goes before the people, namely, that children will treated equally. I believe this is a cornerstone in any republic. The equality principle is most certainly a cornerstone of the core values of the party I am proud to represent here. I commend it to the Minister. It in no way takes from, and I believe it adds to, strengthens and clarifies, not only the intent of the all-party committee in its long deliberations but it is also meritorious of the Government's favourable acceptance and inclusion in this Article 42A.1 redraft.
I would hope the case I have put is self-evident. I am accepting of the rest of the wording because we did speak of "protect and vindicate those rights" in the all-party committee's wording.
In fact, the wording of Article 42A.2.2° is the formula that we arrived at, just over two and a half years ago, in our concluding report. Again, I commend to the Minister acceptance of the inclusion of the word "equally". I believe it is important that it appears within the text to go before the people and I appeal for her favourable consideration.
I thank the Deputies. I wish to make a few general comments regarding the amendments. It is widely acknowledged that what we are doing in asking the people to vote on a constitutional amendment relating to children is long overdue, much needed and historic. It represents a hugely symbolic and enduring practical measure centred on the welfare of children, to be entrusted by this generation to succeeding generations. The Government and I are clear that the amendment to the Constitution, effected by way of the new article, would greatly inform the courts' consideration of the legal framework for decision-making regarding children. The test of "best interests", for example, will now carry the weight of constitutional expression and give a greater counterbalance than currently exists as regards other expressed rights in the Constitution. The new article would also be a powerful tool in the hands of the Oireachtas to legislate for children's best interests and to balance the rights of the child appropriately with the rights of families under Article 41 and those of birth parents under Article 43.
The wording I have proposed is a careful crafting of constitutional language. I know the Deputies opposite would not underestimate for a moment the challenge of introducing new words or unnecessary words or new concepts at this stage. I must assess the direct implications of any potential change as well as its indirect implications in terms of the effect on other elements of the proposed wording, on the constitutional provisions that already exist and on statute law. The Constitution is a finely crafted legal document which is worded to allow for flexibility. It has avoided - this is relevant to Deputy Ó Caoláin's point - creating a rigid hierarchy of rights, so that the constitutional rights of one group can be balanced against competing rights depending on the circumstances of each case. Care needs to be exercised that any amendment does not limit the power of the State, the Executive and the Oireachtas to determine how State resources are applied, which is a basic function of the State in any democracy. It must be remembered that the child's "natural and imprescriptible rights" is a broad concept. Article 42A, as it is drafted, expressly affirms those rights but does so in a way that will recognise that in vindicating and protecting those rights, the State must be mindful of and balance those rights against the rights and demands of the common good.
As I have said on a number of occasions, we are looking at a calibration of competing rights within our Constitution. I have reflected very carefully on the best approach to optimise child protection and welfare and believe we have arrived at a workable consensus, as has been seen here in the past few days. The legal and constitutional implications have been considered at some length, as Deputy Ó Caoláin will know because he did this himself as a member of the all-party committee. The construction of the new article is finely balanced and highly integrated. It must be viewed as a package of provisions and not a menu. The elements of the package are numerous and include the overarching statement of the State's recognition of, and commitment to, the rights of children, which are described as natural and imprescriptible. Following on from this, the article allows that the State should be in a position to intervene on behalf of children in exceptional cases. It has been made clear that the State must act proportionately and in accordance with the law. Looking beyond such exceptional circumstances, on parental failure, the article provides a clear constitutional basis for children whose parents have failed them for a considerable period - which will be set down in law - to be adopted. With regard to adoption law, it provides a basis for addressing major shortcomings by providing legal certainty for the voluntary placement of children. The final element of the package, which is designed to secure the care of children, is the recognition of the principle that the child's best interests should be a paramount consideration and that the views of children are necessary in determining proceedings that are fundamental to future arrangements for their parenting and care. Obviously, that refers to proceedings taken under the Child Care Act 1991, adoption proceedings or those concerning guardianship, custody and so forth.
This perspective on the interlocking nature of the article should assist in further understanding what it sets out to achieve for children. The provisions are intended to focus on a specific body of proceedings - namely, those proceedings which will determine a child's future parenting or future care in circumstances in which the State is obliged to become involved to protect the child's safety and welfare. In common with the direction taken by the joint committee, it allows for a rebalancing of rights so that there can be a greater focus on the welfare of the child.
Article 42A.1, which we are discussing in respect of the first group of amendments - that is, amendments Nos. 1 and 2 - recognises and affirms the natural and imprescriptible rights of all children and requires the State, as far as practicable, to protect and vindicate those rights. It is intended that by expressly recognising the natural rights of the child, the Constitution will be singling out children as a discrete group possessing rights and this will give a greater weight to these rights when counterbalanced against other rights such as the rights of the family. It is important not to lose sight of what we are trying to achieve in this amendment. It is fully focused on achieving a greater balance of rights for children in specific areas relating to their future care and upbringing. Deputies are already familiar with the areas that are involved.
Obviously, there are a number of issues with regard to this amendment, but the Constitution must be read as a whole. That is extremely important. All of these articles must be considered in relation to the other articles we are bringing in and, indeed, in relation to the Constitution as a whole. I thank the Deputies for tabling these amendments and assure them that I very much appreciate the tone they have taken in this entire debate. I also appreciate the constructive objectives behind their tabling of these amendments.
Regarding amendment No. 1, Deputy Troy expressed a concern that the courts may look at children's rights as being covered under the proposed new Article 42A.1 and not by the current Article 40.3.1°, under which the State guarantees in its laws to respect and, as far as practicable by its laws, to defend and vindicate the personal rights of the citizen. Given that the Constitution must be read and interpreted as a whole, the Deputy's concern in this regard is misplaced. There is nothing in the amendment to preclude a child from invoking the protections afforded to him or her as a citizen under Article 40.3.1°. The beauty of the proposed Article 42A is that it specifies certain rights that relate to children, having regard to their age and potential vulnerability. However, I must stress that it is in addition to, not instead of, existing constitutional provision. The use of the word "shall" in the proposed Article 42A represents an obligation imposed on the State, as far as practicable, to protect and vindicate those rights through its laws. The term "guarantees", as proposed by Deputy Troy, suggests that the State itself promises to, or gives a formal assurance that it will, as far as practicable, in its laws, protect and vindicate the rights of the child. Replacing "shall" with "guarantees" will not augment the legal effect of the provision. Also, as I have said already with regard to the care of children, the provisions in Article 42A would now be incremental to those provisions already under Article 40.3.1°.
The Deputy also suggests that we use the words "defend and vindicate" as opposed to "protect and vindicate". I am advised that the duty to defend arises only when the rights in question are under threat, while the duty to protect is ongoing and, as such, is likely to impose a higher duty on the State. The phrase "protect and defend", which we have in Article 42A, is in fact stronger than the suggestion made by Deputy Troy. The requirement to protect places a higher duty on the State to fulfil its obligations.
On amendment No. 2, Article 40.1 of the Constitution provides a general guarantee of equality under the law, which applies to children. Accordingly, it is difficult to predict what additional protections or rights it is intended to provide for under the formulation suggested by Deputy Ó Caoláin in the amendment. The question could arise as to whether it could preclude, for example, any assistance by the State to positively discriminate in favour of those who are disadvantaged. To accept the wording would be to establish a potential conflict between the new Article 42A and Article 40.1. The latter article states:
All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
I do not propose to accept amendments Nos. 1 and 2 but I hope Deputy Ó Caoláin will understand from the description I have given that when one examines the detail of the proposed amendment in conjunction with the Constitution as a whole, the point the Deputy makes is addressed. In response to Deputy Troy, in fact what we are doing in the amendment is a stronger measure than that outlined in the amendment he suggests we replace it with.
It is not our opinion that the Minister's wording is stronger. If that were the case we would not have tabled an amendment. We did so in an effort to be constructive.
I understand that.
That is the opinion we were given. I am not a legal professional but it is the view of an eminent senior counsel. The Minister referred in her reply to considering the Constitution as a whole rather than article by article. It was for that reason we put forward the amendment - to ensure consistency with the constitutional protection in Article 40.3.1°. The Minister has outlined the legal opinion she received, which is fair enough. We wish to put on record that we felt the amendment offered a stronger wording which would strengthen the provision. We have not tabled any outlandish amendments. Anything we have done has been in an effort to be constructive. I am sorry the Minister will not accept the amendment, but that is the difference between being on this side of the House and being on that side of the House.
Again, it comes back to the principle of equality. The fact that we in the committee had placed such weight on it, as I clearly recall, and then that there was no reference in the new Article 42A is what alerted me to this particular omission. This was the appropriate place to reflect the value of equality and provide that the State, in recognising and affirming the natural and imprescriptible rights of all children, would do so equally. I do not think it is the case that we are going to see positive discrimination in favour of those in greater need as an outworking of what is involved in terms of the constitutional change, but I have always believed that affirming the equality principle should be a core objective and central tenet of any republic.
I again ask the Minister to reconsider, but certainly it will not divert me or my party from our attempt. We understand what the Minister has said but we believe that what we propose not only strengthens the position but clarifies it, given that this will all be interpreted in time in court settings. It best informs those who will have that task and responsibility in the future. Therefore, once again, I commend the inclusion of the word "equally", knowing all too sadly that whatever natural and imprescriptible rights the State has affirmed on behalf of children in the past, it has not done so equally. Sadly, we live in a very unequal society, and I believe this is not only an important marker but an important statement of intent and a signal with regard to interpretation. I will leave it with the Minister.
Deputy Ó Caoláin will remember that one of the key issues of equality with which the committee was concerned - of which I reminded myself - was that the present constitutional framework in certain cases creates a difference in treatment between children of marital and non-marital families, for example. Deputy Ó Caoláin will accept that it is clear in the amendment that those equality issues are dealt with.
Throughout the provisions we refer to "all children" and "any children". I previously indicated why we had moved from the phrase "cherish all of the children" and chosen a particular formulation. The phrase "cherish" does not have as strong a legal meaning as the wording I have chosen, on which I was advised, which is "recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable ...". I stress that the reference is to "all children". "As far as practicable" is a phrase that is used throughout the Constitution. There has been some concern about it but it is a standard part of constitutional drafting. The wording does deal with the point made by Deputy Ó Caoláin, as well as the provisions in which we make it clear the provisions apply to all children whether of marital or non-marital parents. That does deal with the issue, in addition to Article 40. I am satisfied that when one reads the Constitution as a whole, that is apparent in the new Article 42A but also in Article 40, which must be read in conjunction with the new article.
I bow to people who have a lot more education from the point of view of law and how to phrase amendments. I am sure that the wording "as far as practicable" will do the right thing.
The UN convention lists further measures such as rights to health care and housing. The insertion of the word "equally" would have the benefit of strengthening the article. We have one opportunity to do this - I am sure the Minister shares this view - and to do so as equally as possible. The Minister has said that the phrase "all children" includes the sense of "equally". It is important that the children of working-class people and those of wealthy people are treated equally in society, are equally respected and have equal access to education, health care and so on. The amendment is a genuine attempt to ensure that is the case.
Deputy Joan Collins referred to the UN Convention on the Rights of the Child. The State has signed and ratified the convention, as have all but two countries in the world. We ratified it some time ago. That has been an influence in terms of the best approach to understanding children’s rights.
It has been that way internationally. In the provisions we are making we are not incorporating the United Nations Convention into Irish law because if we were to do so we would need the explicit permission of the people. Clearly, these principles are important and have influenced not only national but international thinking in regard to children. It is very important to point out that Article 7 of the convention mentions the child's links to his or her family, and is very strong in the same way that, in our Constitution, Article 41 protects the rights of the family. We took the key principles as examined by the committee, and the wording it proposed - and I reiterate had to work from that committee wording, which I accept was the end result of an enormous amount of work - and move it into what I and my Department and all those who worked on this consider to be a robust constitutional wording.
In regard to the Deputy's point I offer a reassurance. What is stated in Article 41 is that "all citizens shall, as human persons, be held equal before the law". I pointed out that the provisions we are inserting and the additional protections that apply to children are an addition to what is in the Constitution. Children do not lose the protection of the other articles because we are including a specific reference and specific article in their regard. There is that very strong statement, "all citizens shall, as human persons, be held equal before the law", which continues to apply. In addition, alongside it is the provision about which I stated I would be concerned if it were included in the way that was suggested, whereby the question could arise as to whether the State could positively discriminate in favour of those who are disadvantaged. Alongside that provision is the provision which states, "this shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function".
How stands the amendment?
We will not press it to a vote.
Is it being withdrawn?
We will leave it.
Either I put the question or the Deputy withdraws it if he does not want it to go to a vote. He could choose a voice vote.
I call a voice vote.
Amendment No. 1a is out of order because it involves a potential charge on the Revenue.
Amendment No. 2 cannot be moved because it was discussed with amendment No. 1.
It cannot be moved.
No. According to Standing Orders the reason is that a vote was taken on amendment No. 1.
Amendments Nos. 3 and 5 are related and will be discussed together.
Tairgim leasú a 3:
I gCuid 1, leathanach 7, línte 10 agus 11, “do shábháilteacht nó do leas” a scriosadh agus “do shláinte, do shábháilteacht, d’fhorbairt nó do leas” a chur
I gCuid 2, leathanach 9, líne 9, “ the safety or welfare” a scriosadh agus “the health, safety, development or welfare” a chur ina ionad.
I move amendment No.3:
In Part 1, page 6, lines 10 and 11, to delete “do shábháilteacht nó do leas” and substitute “do shláinte, do shábháilteacht, d’fhorbairt nó do leas”,
In Part 2, page 8, line 9, to delete “the safety or welfare” and substitute “the health, safety, development or welfare”.
Again, we propose this amendment in the interest of being constructive and helpful. I do not suppose it will be accepted but our rationale for proposing it is that in exceptional cases the intervention provided for in Article 42A.2.1o should be clarified to correspond with the statutory protection afforded to the child under the Child Care Act 1991, where it refers to the health, safety, development or welfare of the child. It therefore expands the wording and provisions stipulated in the article the Minister has introduced, which mentions only safety and welfare. We include health, development, safety and welfare, expanding the terms to give a wider range of protection to young people in our State, the children of our nation. This is already used in the wording of the Child Care Act 1991 and it is in the interest of being consistent that we seek to have it mirrored in the Constitution.
Article 42A.2.1o seeks to effect a balance between the rights of children at risk, on the one hand, and those of their parents, on the other. The change will not alter the fact that it is the primary duty of parents to care for and protect their children. It is only in exceptional circumstances that the State will intervene. There must be a failure in parental duties towards the child before intervention by the State can take place. This failure must be to such extent that the safety and welfare of the child is likely to be prejudicially affected. The intervention of the State has been discussed a great deal during the course of this debate. It must be proportionate and is subject to regulation by law. This section makes clear that the State's protection should be afforded to all children, without distinction based on their parents' marital status.
The inclusion of "health" and "development" was considered by my Department as part of the work leading to the formulation of the proposed amendment. It was felt that the terms "safety" or "welfare", used in the proposed amendment wording, were sufficiently broad to cover all those circumstances where it may be necessary for the State to intervene to protect a child. The inclusion of "development", for example, could give rise to the argument that the State should intervene in circumstances where a child's academic potential was not being realised. The inclusion of "health" could give rise to the question of whether the State should intervene where parents refuse, for example, certain non-emergency or non-essentail health treatments for their children.
In the course of the Second Stage debate the Deputy noted that the suggested language is used in current legislation. I know it is used in a number of combinations in the Child Care Act 1991, and I note Part 2 of the Act, entitling promotion of welfare of children. I consider it preferable to retain the broadly permissive constitutional approach to the language in this instance and, as is the norm, leave the more prescriptive formulation to statute law. This is the basis on which the current provisions of the 1991 Act are grounded and have served well to date.
It may also assist for me to point out that the Joint Committee on the Constitutional Amendment on Children cited "welfare" as the primary consideration vis-à-vis the protection of children's rights. The word "welfare" appeared in three separate provisions of the JCCAC's suggested amendment wording.
I thank the Deputy for his proposed amendment but for the reasons I have outlined I do not propose to accept amendments Nos. 3 and 5.
How stands the amendment?
Amendment No. 4a is an alternative to amendment No. 4, and amendment No. 6 is related so these three amendments will be discussed together.
Tairgim leasú a 4:
I gCuid 1, leathanach 7, líne 23, “a thabharfaidh an Stát” a scriosadh agus “ar páirtí iontu an Stát” a chur ina ionad,
I gCuid 2, leathanach 9, líne 23, “brought by the State” a scriosadh agus “that the State is party to” a chur ina ionad.
I move amendment No. 4:
In Part 1, page 6, line 23, to delete “a thabharfaidh an Stát” and substitute “ar páirtí iontu an Stát”,
In Part 2, page 8, line 23, to delete “brought by the State” and substitute “that the State is party to”.
This amendment seeks, in Part 2, page 8, line 23, to delete the words "brought by the State" and substitute "that the State is party to". Amendment No. 6, in part 2, page 8, line 27 seeks to insert after "access to" the words "or any other judicial matter concerning".
It states: "In part 2, page 8, line 27, after "access to," to insert "or any other judicial matter concerning,". The net effect of that would be that Article 42.A.4.1o.i would begin "that the State is party to as guardian of the common good etc". It is very important because we are limiting the potential good that can come from this constitutional amendment to only those cases that are brought by the State rather than the State being a party to specific cases. That could present itself in a variety of situations, not only situations that might refer to some of the issues mentioned by colleagues earlier in both cases. There is a common thread in terms of where we would liked to have seen all of this go but situations could also arise where the State, in regard to its failures, is party to non-compliance or whatever might be the case regarding what is affirmed in the section, that is, guardianship of the common good for the purpose of preventing the safety and welfare of any child from being prejudicially affected. It narrows it down only to the point that the State is the initiator and the only entity that can have its role affirmed from this constitutional amendment. Provision should be made in law that in the resolution of all proceedings to which the State is party in those roles, acting in the best interests of the child shall be the paramount consideration.
I urge the Minister to favourably consider this amendment. In regard to Article 42.A.4.1o.ii on the adoption, guardianship, custody of, access to or any judicial matter concerning any child - and there are endless possibilities - it is too limiting. While I acknowledge that my role as a member of the all-party committee demonstrated that we would like to see the position on the rights of the child affirmed in Irish law in reflection of the United Nations Convention on the Rights of the Child - that would be our objective - we know well that this was a compromise position among all parties. I was happy to be a party to that, ultimately, because we were almost working off a blank sheet and what was presented from the all-party position was something that would be a mighty start that we would view not as an end result but a beginning. It would be something to be built on in the future. I am indicating that there is much more that can and should be done. If it is the case that it is not to be accepted on this occasion we are putting down the marker that we believe it should be done if not in our time, Minister, by others who will follow in the years ahead as legislators who will have the wherewithal and be brave enough and bold enough to do so.
Ensuring that the best interests of the child must be the paramount consideration in all cases to which the State is party is our hope and intent, not just guardianship and not merely where the State is the initiator. What of the situation where the State is the respondent, the defendant? The changes I commend would allow far more scope in terms of examining how far the best interest principle could be brought and it would also allow for children's voices to be heard in all judicial matters concerning them. At this point in time children's voices, that is, views, as the amendment suggests, will only be heard in regard to particular instances that will present. Unquestionably, a variety of other cases will present in the future where children's views will not be heard and where the current seen but not heard approach will be maintained. I would like to see that changed in all instances in the best interests of all children.
I support the Sinn Féin amendment. I raised this point in my contribution on Tuesday night and stated that "Provision shall be made by the law that in the resolution of all proceedings brought by the State..." is too narrow. It excludes situations where the State has failed or is failing a child and a concerned grandparent or other relative wants to bring a case. Unfortunately, the voice of the child will not be heard in that regard and that is a regrettable step. I referred also to an article in last Monday's law section of The Irish Times which gave the example of the KA v the Health Service Executive and Others judgment in which the same issue raised its head. If we want to improve our system, and that is what everybody wants, why is this being restricted to cases brought by the State? It is restrictive because the best interests of the child will only be considered in cases of adoption, guardianship, custody, access etc. The best interests of the child should be of paramount consideration in all matters of concern to the child and not restricted to those areas.
It is welcome that for the first time the voice of the child is being brought into this arena because that has been lacking in the past. Following the train of thought of my two colleagues present, the words "brought by the State" appears restrictive. Is there a particular legal reason or any other reason the Minister believes it should refer only to cases brought by the State? I raised this with the Minister earlier when I asked if an incident occurred while a child was in foster care and a father or mother felt there was a need to bring the foster parents to court, whether the child's voice would be heard in that instance by somebody else taking the case? It is not just the State that could be in that situation. The amendment is trying to address that and remove the "brought by the State" reference from the Bill.
This provision in the new amendment places an obligation on the State to enact legislation to provide that in the proceedings of the kind identified the best interests of the child will be the paramount consideration. That in itself is extremely important. Giving constitutional recognition to the principle that the best interests of the child should be the paramount consideration in these proceedings means that this principle should now be a determinative factor in the resolution of such proceedings, having regard to the constitutional rights of the family, whereas prior to this the best interests of the child could only be a determinative factor subject to the constitutional rights of the parents.
This is a significant recalibration of the rights of a child to have his or her interests advanced as against other constitutional rights. The requirement applies to any child, thereby ensuring it will apply to all children without distinction.
The amendments relate to the scope of the provision and aim to comprehend within it all legal proceedings that could be taken by a child or a member of his or her family against the State, the outcome of which concerns the child. The best interests of the child could, therefore, become the paramount consideration in judicial review proceedings in respect of decisions taken right across the spectrum of State activity. The potential implications for the State are open-ended and undefined. In practical terms, what is proposed would effectively remove or, at least, diminish the prerogative of the Government and the Oireachtas as regards priorities relating to services and funding allocations. It could also have implications in circumstances where they State might be obliged to decide on an issue on the basis of the common good rather than the interests of the child. I refer, for example, to a case involving suspension or expulsion from a school. What is proposed could also interfere with the State's capability to balance and reconcile the rights of different parties.
We need to bear in mind the overall approach and objective intended in the article. This amendment to the Constitution asserts the rights of children in robust language. For the first time children are to be recognised in the Constitution and rights are to be conferred on them in acknowledgement of their potential vulnerability. I remind Deputies that the overarching provision contained in the new Article 42A.1 makes express reference to affirming the natural and imprescriptible rights of all children. It is important not to overlook the compelling and powerful language used in respect of children in this stand-alone article.
We must consider how the new article, as a whole, frames the best interests of children. We must, therefore, view it in the context of the new Article 42A.4.1o, which is intended to include family law and other proceedings relating to child care legislation. As Members can see, I have made specific reference to the child care proceedings in the provision. There was some concern that the language contained in the formulation produced by the joint Oireachtas committee and previous formulations did not capture child care proceedings. We have been very careful to ensure all of the key proceedings that affect children's lives are captured within the provision to which I refer. That is why we have used the formulation contained in the Bill. The proceedings to which I refer are the focus of child welfare and protection and really are pertinent in the context of this article.
The Deputies will understand the points I have made about extending it more broadly and the implications this could have for the legal system. The proceedings to which I refer have been intentionally identified as the object of this provision. I am sure Deputy Caoimhghín Ó Caoláin will agree that the approach of identifying specific, key proceedings relating to children is entirely consistent with that adopted by the joint Oireachtas committee. The proposed wording put forward by the latter was, "In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration". I hope the Deputies will understand the reasons I cannot accept their amendments.
I acknowledge that the wording brought forward by the all-party committee was the result of long and intense debate to which the Minister was a party. As outlined, it represents a compromise on the part of all the participants at the committee. Of course, the proposed Article 42.1.3o of the all-party committee states, "In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration". I would have thought this was open to a wider interpretation than that which is contained in the wording presented to us in the Bill. I wish to confirm that the wording presented to us in the context of affirming the best interests of children in the specific areas addressed is absolutely momentous and wholly capable of support in its own right. The Minister will appreciate that I come from a position where I want this to be built on. I understand that is the view other colleagues in the House also hold. We do not want to lose what is before us. However, this is the appropriate opportunity to address the matter.
I did not seek to amend either the new Article 42A.2 or 42A.3. My focus is on the new Articles 42A.1 and 42A.4. The former are everything I would have expected them to be and hope they will stand the test of time. I can understand from where the Minister is coming in respect of the argument relating to equality and the limitation brought by the State. I also understand why this argument is being presented. However, there are other jurisdictions in which there are listed rights. South Africa is a case in point and there are both older and new and emerging democracies that have taken the brave and bold step of affirming listed rights. In that context, the all-party committee's formulation in this regard states:
The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii the right of the child to an education;
I understand the existing Article 42 is being retained in the Constitution and that the proposed new Article 42A is not a substitute for it. As a result, the affirmation in respect of education is already in situ.
The all-party's formulation also refers to "the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity". This is where there is a significant difference. The all-party committee's proposed Article 42.2.iii makes very clear the right of the child's voice to be heard in any judicial and administrative proceedings affecting the child. The new Article 42A contemplates a more restrictive provision. While the new Article 42A.4.2o includes the words, "in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight", use of the term "referred to in subsection 1o" restricts matters to specific areas and only in cases taken by the State.
There is a marked difference between the all-party committee's agreed position and that with which we have been presented in the Bill. That is unfortunate because in every respect we want the child's voice to be heard and his or her best interests to be taken into account in all cases affecting him or her. This is my position on the matter, which is why I tabled the amendments in my name.
I apologise for my late arrival. I was delayed in traffic.
I did not hear all of the debate on the amendments, but Deputy Joan Collins has informed me what has been said. If I understand it correctly, the Minister's point is that what we have been presented with in the Bill is a step forward in that the State will be able to take proceedings to vindicate the rights of the child and because provision is made for the voice of the child to be heard in such proceedings.
That is a positive step forward but the point of our amendment - it was proposed to us by the Children's Rights Alliance and by the Irish Council for Civil Liberties - was that others should be in a position to take proceedings if they are of the view that the rights of the child are not being fully vindicated and the right of the child to be heard is not being fully vindicated. Why would we assume that the State will in all circumstances be the guardian of the common good? Others could be the guardian of the common good - representatives of the child, parents of the child - other people who are concerned for the rights of the child. Our amendment proposes that by removing that deletion it leaves it open - the State and others would be in a position to take proceedings to vindicate the rights of the child and ensure that the voice of the child is heard as far as practicable in any proceedings. I do not see why the Government or the Minister would have any difficulty with that. She may have said more in her earlier responses but to my mind it seems like this is very sensible amendment that strengthens the objectives of the amendment of the Constitution overall. I ask the Minister to consider accepting this amendment.
I refer to a number of points made and to the report of the Oireachtas joint committee. Deputy Ó Caoláin made a point about the rights of the child. We have been discussing the current formulation of the wording which states the rights differently to the way the series of rights were named in the report of the joint committee. We are not dealing with education and that right remains under the education provisions. However, the other rights are captured in the varying provisions we are putting forward, for example, the right of the child to the protection and care as is necessary for his or her safety and welfare. The best interests provision was always in those areas which were outlined in the report of the joint committee, such as, guardianship, custody and access. It also included a provision for care or upbringing. I have captured the care proceedings thus: "(ii) concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.” . The principle of the best interests of the child was always with regard to judicial proceedings in those areas concerning children and it has been replicated in our amendment. On the right of the child to have his or her voice heard, I take the point made by Deputy Ó Caoláin that he is looking for a broader application of this right. I spoke about this earlier on Second Stage and I have spoken about it elsewhere. It is my view that the administrative proceedings piece can be captured in legislation. We can certainly develop that, either by way of regulation or legislation. The provision for the child's voice in the Constitution makes that even more feasible, I believe. At a practical level, it is happening more frequently that the views of the child are being heard administratively, so to speak. It is a practice which needs to be used and developed more, whether in schools or by local authorities or with regard to decisions on housing. I refer to the work of Comhairle na nÓg and the increasing involvement of young people at county level where they are linking in with the children's services committees or with local authorities in a more formal way. I accept there is a long way to go. However, the proposed amendment of the Constitution, by placing young people in a more central position, supports that kind of development which has been sadly lacking in a number of areas.
In reply to Deputy Boyd Barrett, I outlined earlier some of my concerns about accepting his amendment on decisions to be taken across the spectrum of State activity. I have spoken about the complications when the State has to decide an issue on the basis of the common good rather than on the interests of the child. There would be problems as a result of accepting the Deputy's amendment and I have outlined those.
If I may respond briefly. I will conclude with this point. I will preface my remarks by saying that I acknowledge that this proposal is an important affirmation of the rights of the child to have his or her views taken into account and for the child's voice to be heard, depending on age, maturity and capacity. However, it will only be so in a specific number of circumstances.
A wider position was taken in February 2010 when, after long debate, the joint committee arrived at a formula.
This is Article 42.2.30, prefaced by Article 42.2:
Article 42.2 of the Committee's proposed wording enjoins the State to guarantee in its laws to recognise the rights of all children as individuals....The provision also gives constitutional weight to the right of the child's voice to be heard, in any judicial and administrative proceedings affecting the child having regard to his or her age and maturity.
I have tried in my amendment to amend Article 42A. 4.10.i and Article 42A. 4.10.ii because I believe that both were required in order to give effect to what I had hoped would be a mirror reflection of our position in February 2010 in Article 42A.4.20. I will have to start in reverse. The Minister's proposed wording states in Article 42A.4.20:
Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
This is where the limitations apply. This is why I and other voices have sought to not limit it solely to proceedings brought by the State. I refer to Article 42A.4.10 concerning the adoption, guardianship or custody of, or access to, any child, but also to include, "or any other judicial matter concerning the child".
The Minister's wording of Article 42A.4.20 states:
Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
There is no question that this is very important in its own right but it is a reverse from the position we had arrived at after long and mature debate. I believe it is absolutely defensible for us to argue that the child's voice or views should be heard - as is now the preferred wording - in any judicial and administrative proceedings affecting the child. I think it is a very worthy position to affirm. This is a very important opportunity for us to see that included. If it is not to happen, this is but a beginning and it is not an end in itself, but I earnestly appeal to the Minister in my closing remarks to reconsider the restrictions now involved in this particular subsection of the Minister's Article 42A. I believe a better position existed in February 2010 and I would commend its re-introduction.
My amendment is coming at exactly the same issue as Deputy Ó Caoláin's but with a slightly different approach. The substantial point is the same.
The Government's proposal serves to limit the conditions in respect of which the voice of the child must be heard in proceedings. By prescribing the applicability of Article 42A.1 in this manner, the Minister is limiting its applicability to the State and excluding other proceedings that might be taken in the interests of vindicating the rights of the child and ensuring, in any such proceedings, that the voice of the child is heard. Our amendment proposes to remove this limitation by deleting the words "brought by the State, as guardian of the common good" from Article 42A.4.1 (ii). Article 42A.4.1 would thus read as follows:
Provision shall be made by law that in the resolution of all proceedings—
i 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.
As I said, I do not understand why the limitation imposed by the reference to "brought by the State, as guardian of the common good" is required. As I understand it, its effect is to assume that the State is the only party which might take proceedings in the best interests of the child and the only party that might be concerned to ensure the voice of the child is heard. That is not the case. In fact, there could be situations where the State is the offending party. My amendment would ensure the imperative that the voice of the child is heard would also apply in the case of proceedings taken by other parties. I urge the Minister to take on board the substantial point Deputy Ó Caoláin and I are making in these amendments. I do not see any argument against our proposals.
Article 42A.4.1 is effectively an enabling provision for the State. The use of the word "shall" means the State must legislate in these areas. It is a very strong provision. The areas that are covered are the critical ones for the children who will be affected by the amendment, concerning the critical aspects of their day-to-day life. We have selected, in common with the all-party committee, issues relating to child care proceedings, adoption, custody and access decisions - in other words, the key judicial areas that affect children. The strength of the provision, by virtue of the inclusion of the word "shall", means the State is obliged to introduce legislation in these areas. That sends a very important signal.
There is nothing, moreover, to preclude legislation on some of the areas to which the Deputy referred. To reiterate, the proceedings covered in the amendment relate to the critical aspects of children's day-to-day lives. In common with the all-party committee, we chose to focus on those areas in terms of introducing a requirement on the State and the Oireachtas that was never previously there. The provision captures the key areas wherein key decisions are made about children. As I said, to move beyond that would have some very broad consequences for our legal system. At this point, I am focusing entirely on the key areas that affect children, where decisions are made that are of huge import for their lives. The same areas were chosen by the all-party committee. For these reasons, I cannot accept the amendments.
The all-party committee did, of course, discuss guardianship, adoption, custody care and so on. However, we envisaged a much broader Article 42A.2 which was not preconditioned on anything in Article 42A.1. It was a standalone provision which affirmed the right of the child to protection and care, to an education - we know why that was no longer necessary - and to have his or her voice heard in any judicial and administrative proceedings.
In any other situation, given the import of what we are discussing, I would consider myself to have no option other than to press the amendment. I will not do so, however, in view of the fact that we - Members on all sides of both Houses - have spent so many years working towards this new beginning in regard to children's rights and child protection in Irish society. It is very important that we depart at the conclusion of this debate united in our intent and without having divided on the floor of the House. Thus, while I do propose to press the amendments to a voice vote, I will not force a division. However, I feel just as strongly about this issue as I do about the equality argument I put forward in regard to Article 42A.1. I am obliged to balance my absolute belief that however imperfect the Government provision, however less than what I would wish it to be, against my acceptance that it is this wording that will prevail. The strength of the Government benches means that in any event, irrespective of the Opposition's case, its position will be carried at the end of the day.
As I said, this proposal offers a new beginning. While it is unfortunate that the Minister will not accept any of our amendments, there will be another day to revisit all of these issues. I hope there will be a willingness on the part of the Minister, as she has indicated - I may be grasping at straws here - to bring forward further legislation to reflect our concerns. I hope the case we have put is of sufficient strength to impress on her and her colleagues in government the significance of the ways in which what was agreed by the all-party committee in February 2010 is not matched by this wording in respect of the right of the child to be heard. While that absolute principle will clearly not be reflected in all circumstances under the Government formula, I do acknowledge that it will be reflected in regard to the particular cohort of situations set out in the amendment. As such, it is a start. I hereby affirm my support for that start but also my intent to continue to work and campaign, in co-operation with other voices, towards the realisation of the appropriate and best position for us to adopt in the interest of all children.
On a point of order, are we coming to the conclusion of the Bill in its entirety or just of Committee Stage? Will there be an opportunity to summarise our positions on the Bill as a whole?
Deputies will have an opportunity to do so before the conclusion of the debate.
I will not reiterate my substantial points in regard to these amendments. I would be inclined to press them to a division because I have heard no convincing argument as to why we should not do so. Unfortunately, however, we do not have the numbers to proceed to a vote. It is for this reason that I am not pressing the matter to a vote. Any sensible person will support the proposed amendment and call for a "Yes" vote, because it is a positive step forward. However, I do not see why the Minister will not accept our proposals in order to ensure the imperative regarding the best interests of the child apply in respect of all parties and not just the State.
While I do not wish to labour the point, I would press the amendment to a division if we had the numbers required. In that context, I will record my views by means of a voice vote.
I alert Deputies again to the importance of what is being done and the strong language used in the article, which is a direction to the Oireachtas to introduce legislation. This is the first time the word "shall" has been used. As Deputy Caoimhghín Ó Caoláin is aware from the work of the joint committee, the proceedings being covered are the critical ones in the day-to-day lives of children. It is extremely important, therefore, that they have been captured in this provision.
On the rights outlined at the joint committee, I accept the points made by Deputy Caoimhghín Ó Caoláin, whom I thank for the approach he has taken to the entire debate. The protections set out in Article 42.2.1o, as drawn up by the joint committee, have been captured in the amendment the Government has proposed. The rights of the child to an education are addressed elsewhere, while the right of a child to have his or her voice heard is provided for in the key areas I have outlined.
While I do not wish to labour the point, we have begun to change. Practice is much improved in respect of listening to the views of the child and it will continue to improve. In the coming months we can explore, in legislation and cross-departmentally, how it can be strengthened. It does, however, apply particularly to the areas I have outlined.
Amendment No. 4a cannot be moved as it is an alternative to amendment No. 4.
Tairgim leasú a 5:
I gCuid 1, leathanach 7, línte 24 agus 25, “do shábháilteacht ná do leas” a scriosadh agus “do shláinte, do shábháilteacht, d’fhorbairt nó do leas” a chur ina ionad,
I gCuid 2, leathanach 9, líne 24, “ the safety and welfare” a scriosadh agus “the health, safety, development or welfare” a chur ina ionad.
I move amendment No. 5:
In Part 1, page 6, lines 24 and 25, to delete “do shábháilteacht ná do leas” and substitute “do shláinte, do shábháilteacht, d’fhorbairt nó do leas”,
In Part 2, page 8, line 24, to delete “the safety and welfare” and substitute “the health, safety, development or welfare”.
Tairgim leasú a 6:
I gCuid 1, leathanach 7, líne 27, “nó aon ábhar breithiúnach eile maidir le haon leanbh” a chur isteach i ndiaidh “rochtain ar aon leanbh”,
I gCuid 2, leathanach 9, líne 27, “or any other judicial matter concerning,” a chur isteach i ndiaidh “access to,”.
I move amendment No. 6:
In Part 1, page 6, line 27, after “rochtain ar aon leanbh” to insert “nó aon ábhar breithiúnach eile maidir le haon leanbh”,
In Part 2, page 8, line 27, after “access to,” to insert “or any other judicial matter concerning,”.
Amendment No. 7 is out of order as it involves a potential charge on Revenue.
May the Deputies present now make closing remarks?
Would the Minister like to hear what Deputies have to say before making her concluding remarks? Perhaps Deputy Robert Troy might like to commence.
I thank my colleague, Deputy Caoimhghín Ó Caoláin, for informing me of the position on closing remarks. I am on a learning curve as this is the first time I have dealt with legislation of this nature as an Opposition spokesperson.
Having been present in the Chamber for 90% of the contributions made in the past three days, I found it interesting to listen to the different views of Deputies from across the political divide. There is no doubt that Deputies are fully committed to ensuring the referendum is passed. This is welcome because the proposals relate to an extremely important issue. We are enshrining children's rights in the Constitution, Bunreacht na hÉireann, and from that perspective, it is welcome to note such unanimous support for the proposal. I hope all those Deputies who stated they would knock on doors and explain in detail to people the reasons we need to pass the referendum were not engaging in rhetoric. It is important that we inform the electorate of the benefits of supporting the referendum and educate them as to the importance of securing a "Yes" vote. I do not know how the national broadcaster will handle the referendum and in that respect Deputies must use their positions in their respective communities to ensure people fully understand what will be the effects of the referendum. As I indicated when I spoke in the House on Tuesday night, the referendum does not offer a panacea and will not fix everything. It is, however, a move in the right direction.
I acknowledge again the commitment shown by the Minister and the hard work done by the all-party committee established in 2007 to address this issue. Many speakers referred to the numerous meetings held on the proposed constitutional amendment, many of which were held out of the glare of the media in committee where more productive work can sometimes be done. Great efforts were made to achieve consensus on the referendum and it is, therefore, right and proper to acknowledge the work done by current and former Members. The House will have an opportunity to debate the enabling provisions and the legislation that will emerge if and when the referendum is passed. I look forward to participating in such debates.
One of the critical elements of this referendum concerns the provisions for adoption. Again, I welcome the publication of the adoption legislation in conjunction with the referendum, as it is very important.
However, I was somewhat disappointed the Minister did not address some of my serious concerns about issues surrounding the provision of resources. It is critically important the Minister outlines to the House, provision by provision, how the referendum will affect the various strands of resources for child protection. Legislation in this area has been enhanced down through the years but, unfortunately, failings by the State, families and religious orders have still occurred. Legislation alone will not ensure we have a robust child welfare and protection system; resources are needed too.
I was disappointed with the wording “Provision shall be made by law that in the resolution of all proceedings brought by the State…”. My colleague, Deputy Ó Caoláin, tabled an amendment on this. I believe this wording is too narrow and would have hoped for some scope in this area to allow for genuine concerns to be brought by people other than the State. The State has failed children heretofore, so there are instances where it might be necessary for somebody other than the State to bring forward proceedings. This is not the end of the debate on legislation in this area. We will have an opportunity to examine this area in time to make advances and improvements in the provisions, however. This is a welcome start to reforming the law in this area.
I look forward to working with every Member in educating the electorate to ensure they know what this referendum is about. As it happens, in two hours I will address a public meeting in County Meath on the referendum. I will take my responsibility as a party spokesperson seriously in this regard. As I said the other evening, all we want to do is ensure every child has their entitlement of a loving and meaningful childhood.
I again confirm that Sinn Féin will proactively commend this constitutional amendment to the electorate. I call on all parties and all Members of the Houses of the Oireachtas to join in a united campaign urging a “Yes” vote on 10 November. This proposed constitutional change represents an important step forward, affirming for the first time in our Constitution that children have rights and in their own right. We in Sinn Féin, of course, see this as a beginning, not an end in itself. This wording will afford children specific rights to care and well-being, as well as the right to be heard in certain matters concerning them.
The State will have both the duty and the power to intervene on behalf of all children at risk, regardless of their parents' marital status. The State, of course, must also step up to the plate. The record of past neglect and failures quite understandably leaves a confidence deficit in the minds of many good citizens who would wish to support this referendum proposal. Accordingly, it is the duty of the Minister of Children and Youth Affairs, and of her colleagues in government, to give not only the strongest guarantees of her intention to resource not just adequately but generously the respective agencies and services that will be entrusted to give effect to the letter and spirit of this constitutional change but to spell out in detail the human and other resources that she will provide on its successful passage. The last speaker also raised this point. I hope the Government will come forward with firm and clear commitments. The resourcing of all the elements of this constitutional change will be critical to the real measure of its success. As I said early, if we as citizens are to entrust the care of those children whose families can no longer care for them to the State, then the State's care regimes must be accountable and transparent, as well as fit for purpose.
Enshrining children's rights, as this wording proposes, will ensure the best interests of the child will be paramount in matters concerning their safety, welfare and guardianship. It will be up to us, and to legislators in the coming years, to build on this valuable platform as we strive to ensure the best interests of the child become paramount in all matters concerning the child, a cornerstone of the UN Convention on the Rights of the Child. I look forward to the day - hopefully in the not-too-distant future - when much of what we have argued for becomes the shared intent of proposals and measures in this area presented to this House.
I am proud of the role Sinn Féin played in the all-party engagement that led to the publication of our agreed report in February 2010. I am also proud of our consistent and balanced engagement with the Minister for Children and Youth Affairs, Deputy Fitzgerald, and with her predecessor Ministers of State with responsibility for children. I commend the Minister for her undoubted commitment to all we are addressing here, as well as her tenacity in this regard. Much has been achieved in a short time, for which I commend the Minister, and look forward to continue working with her towards the realisation of so much in children’s interests.
The need to assert and to confirm the rights of children in our Constitution is above party political considerations. Accordingly, we now go before the electorate together in common cause and with our shared commitment to cherishing all the children of the nation equally. Let us look forward to the campaigning ahead and, hopefully, an overwhelming endorsement of these proposals.
I note the Minister’s voice has been deteriorating as the day has gone on. I am sure she will be glad to have this Bill passed shortly. While issues have been raised about strengthening the detail of the legislation, every side of the House is agreed in principle with it, a unique situation.
It shows that we have all kept our focus and that focus has been on the rights of children. This is very much a starting point and if there is a job for the Opposition to do, it is to hold the Government to account. This is what we will do should the referendum be passed in terms of ensuring that the practical delivery of the referendum is played out in the way that we all intend it to be. There will be better stories told by children in future should this be the case.
It will be interesting to see how the media handles the referendum. Often the issues that tend to get reams of coverage - something we would like in this case - are those of dissent rather than points of unity. Sometimes there is a desire not among people in this House but among the general public to see things that people can agree on. It would be nice to see this reflected in how the referendum is played out up to 10 November, and there is work for the media to do in this regard. There is also work for those of us in the House with regard to any influence we can bring. Door knocking, speaking at public meetings and so on will all play a part. I thank the Minister for her open-door policy. It is a lesson to others in how to get to this point. I also thank her officials, with whom I have had some engagement in recent months. I hope the constitutional amendment will be passed when it is put to the people on 10 November.
There is no doubt that the Minister for Children and Youth Affairs, her team and many of those who worked on bringing the Bill forward and getting it to the point where a referendum will be passed to enshrine the rights of children in the Constitution deserve congratulations and credit. I am happy to say as much not only here but during the course of the campaign. We should give credit where credit is due. In so far as we will be campaigning for a "Yes" vote in the referendum, we will say it is a positive development that the rights of the child are specifically and explicitly enshrined in the Constitution and that they will be prioritised in the consideration of difficult situations and in areas in which there might be a conflict between family rights, also enshrined in the Constitution, and the rights of the child. The removal of the impediment to married couples voluntarily giving their children up for adoption is sensible and overdue. All of these are positive changes.
The fact that children's rights will be explicitly enshrined in the Constitution raises the bar generally for us and for society. They will feature in any matters that we are dealing with in terms of our society as a whole and the issues we confront, including economic and social issues. The question of children's rights and the welfare and protection of children will now feature more highly and the recognition of these rights will be an imperative for all of us when we try to deal with the difficult challenges that we face in our society.
I have no difficulty in being positive about the Bill and the constitutional amendment and I do not imagine there will be any great difficulty getting it passed. However, we should not be too self-congratulatory. In so far as there will be a concern among the public, let us be honest about what that concern will be. The concern, which I share, is that it is all very well giving legal rights to children and having an aspiration to protect and vindicate the rights of children, but where are the resources to back this up? People will maintain that many of the resources that would protect children and prevent them and their families from getting into difficult circumstances in the first place are currently being taken away. No one will have to make this point to people because it will occur to them anyway. When special needs provision is being capped, when care allowances are being more tightly distributed or held back, when there are cuts in education, when there is a failure to deal with the housing crisis, when the incomes of the less well off are being further cut and when we fail to deal with unemployment, the rights of children - whatever we may say in the Constitution or in law - are in fact and in reality being undermined. This is what the people will say and this is what they believe. Deputy Buttimer can shake his head all he wishes, but the fact is that, although not exclusively, the vast majority of children who have suffered abuse, neglect, exploitation and whatever other misfortunes have been visited upon children over many decades in this State have been children of the less well off in society. That is a fact and it will continue to be a fact. We must deal with this fact and with the underlying causes, including neglect and abuse and the things that contribute to these - mental illness among parents, family breakdown and so on. Significant social and economic factors contribute to these things. These are not the only factors but they are the greatest contributing factors to such situations.
While we are moving in a positive direction in a legislative sense and constitutionally with this Bill and with the amendment, in terms of practical policy we are moving in the opposite direction. We are undermining the supports and taking away the resources that would truly guarantee and vindicate the rights of children and their families, and instead, we are creating conditions which could lead more children and more families into trouble and difficulty.
I am unsure whether the Minister has ever seen a brilliant and shocking film by Ken Loach called "Ladybird, Ladybird", which contains harrowing scenes in which social services take children away from a very poor and troubled woman. If parents are left in poverty and destitute and if they are not provided with the support they need, they and their children can get in trouble. Consequently, the State can come in and take their children away because they have failed in their duty. However, this is not because they wanted to fail or were destined to fail but because the resources were not available to allow them to do what they wanted to do or to act as the parents they wanted to be.
Deputy, we must stick to what is in the Bill.
This is what is in the Bill. My amendments were ruled out of order-----
That is because they were out of order.
-----as a potential charge on the Exchequer. Anyway, the substantial point remains that the UN Convention on the Rights of the Child includes social and economic rights.
It is a disappointment that we could not have been more explicit in the Bill by including these rights in order that there was a legal and constitutional imperative to provide such things as housing, education at all levels-----
That is not in the Bill.
-----health care and the resources that would truly vindicate the rights of children.
It is a mistake that the Government did not accept the amendments on the question of proceedings surrounding children.
That has already been decided.
In some of the most terrible cases, such as the Roscommon case or the Kilkenny case, there were many civilians who knew what was going on and that something should have been done, and such persons should have the right to take cases if the rights of a child are not being vindicated and in those cases where the best interests of the child and the voice of the child should be paramount and guaranteed. It is unfortunate that the Government has not strengthened this Bill, and the amendment, to ensure that anybody could take such proceedings if the rights of the child are not fully being protected and vindicated.
I welcome the Bill. We will support the constitutional amendment. However, the Government could have gone further and in its policies over the coming months, it must do a great deal better in terms of providing the resources that can ensure the rights and protection of children.
I call Deputy Durkan. I remind Deputies that the motion we are debating is, "That the Bill do now pass.", and the debate is confined to what is, not what we hope to be, in the Bill.
At this time of night, I do not propose to delay the House.
We must yet deal with Topical Issues and Question Time.
I congratulate the Minister for having the commitment, determination and resolution to pursue this much sought-after and required objective, something which was heralded and flagged many years ago, and I congratulate all those members of the all-party committee who participated for recognising the need.
I do not accept the notion that all abuse of children took place amongst poor and deprived families. There have been many poor families in this country who strived valiantly to rear and protect their children and they did so with distinction and honour. This time should not be allowed to pass without recognising that in many cases where there was willful abuse and neglect of children, it did not always happen in the poorer families. It is wrong and unfair to select in that fashion and to identify that all of this reprehensible behaviour took place amongst poorer families and by poorer families.
There were very few rich people in the industrial schools.
I know as much about the subject as you know, and maybe much more.
Through the Chair, thank you.
Were there many rich people in industrial schools?
There are many rich people everywhere else as well, including a few of them in this House.
It is important that society has now recognised the need for this legislation. Whether we like it or not, and regardless of whether other interest bodies should take issue and interfere in families' and children's lives, this legislation obliges the State to assert its responsibilities and authority in ensuring that the children are protected in all kinds of situations, be they rich or poor, well-off or not so well-off, educated or not so well-educated. That is an important milestone for us to recognise in accordance with the Constitution and I strongly support the sentiments behind it.
As chairperson of the Oireachtas Committee on Health and Children, I pay tribute to the Minister, her officials and her team for bringing this Bill to the House to have a constitutional referendum to go before the people.
I wholeheartedly commend Deputies Ó Caoláin and Troy and indeed Deputy McConalogue who, in the committee and in their work here in this House, have shown the ability of cross-party support to ensure that we put a referendum to the people which enjoys the support of the House. It is to their credit that they have come on board as well.
This Minister has shown that, after 17 reports and 20 years, we now have a referendum to go to the people. It is incumbent on all of us that we campaign to ensure that we never have to revisit where we are today, that we put the rights of children first and that Deputy Boyd Barrett put his sword back in his scabbard so we can have support for this referendum. There is an issue to be addressed here. It behoves all of us to ensure that, in the political crossfire, children never again get lost because for too long they have been lost.
We have a Minister who, with her colleagues in this House, I hope united, is going to the people to ensure that there is never a generation of children such as those who are now adults who have been forced to be in the situation they are in. That is our task for the next seven weeks, to ensure that we get this referendum passed so we need never come back here again.
I thank all Members of the House who have engaged so energetically in the debate on the amendment I am proposing. Right across the political divide, there has been enthusiastic support for this amendment and it is obvious that much thought and analysis has been given to the amendment by Members.
I value the cross-party and Independent support that has been shown in this House for the amendment. That will be important in the weeks ahead leading up to the vote. It is important that we all work together to ensure that the people have the information and understand precisely what is and is not in this amendment, and there is quite a job to be done on that.
A number of points have been made about the media. Certainly, many of the speeches made here were deserving of attention, through the media, to the public. There was a wide variation in what Members said. They brought their political and personal experience to bear on their speeches here and there were significant insights shared by Members who had personal experience of adoption, fostering and complex child care cases, and all of that is important in informing public opinion.
I thank everybody who has been involved in the debate, particularly the spokespersons. The spokesperson for Sinn Féin, Deputy Ó Caoláin played a significant role in the cross-party committee and has been very involved in all of the detail of this over a number of years. We already talked about the wide range of people who have been involved in the development of this work, and ensuring that this becomes centre stage, and I repeat my thanks to that group. I also want to mention the Attorney General and her staff for the significant commitment, dedication and time which they have given in the preparation of the Bill, in the analysis of how we could manage the various aspects of it that we wanted to highlight, and in the interaction between those and other parts of the Constitution. There was a considerable amount of work involved in getting to this point, and I pay tribute to them. I also pay tribute to the tireless commitment from the staff of my Department. They placed a significant focus on this in addition to the wide range of other work that they have done and the tasks involved, in the first instance in setting up the Department over the past year and a half.
We all are conscious in this House of the many NGOs who have been involved in this, such as the Campaign for Children, Barnardos, ISPCC, and the many individuals who, by their personal testimony of their own experiences in Ireland, highlighted the need to put children more central and to have a better response from the State than there has been over the past 20 years.
People have also recognised that the Bill is in no way a threat to the family. It neither lessens the recognition given to the family under the Constitution nor alters the rights or duties of parents to care for or educate their children as is enshrined in the Constitution. It is about recognising children in their own right, protecting them from abuse and neglect and providing that the rights and protections set out in the amendment apply equally to all children regardless of the marital status of their parents.
I hope that children, and this amendment, will be at the heart of the political debate over the next number of weeks. I encourage a full and frank debate on enshrining the rights of the nation's children in the Constitution. I am sure that with the support of Members in this House any fears that citizens might have will be allayed in the course of the debate.
I am very grateful for the commitment voiced by so many in this House that they intend to ensure people understand this amendment and its provisions and to play their part in ensuring it is understood. We have a collective responsibility to ensure the children of this country are cared for and protected and to ensure they are at the heart of the Constitution and at the heart of all the other decisions we take.
I accept the point made by many Deputies that the Constitution is just one aspect of our care for children. Clearly, the legislation we pass and the resources we allocate tell us a lot about the values we hold as a society and about how we want to treat children and families. This is challenging, especially given the economic situation. Even when we had far more resources, many of the changes which should have been introduced were not. Many of the national policies that should have been developed and delivered were not. This is an ongoing task and constitutional reform is just one aspect of it. If we can say and do the right thing in our Constitution, this will have an important and critical impact on other areas. If we can place children centrally in the Constitution, this puts an onus on us as Deputies to analyse and debate the range of issues mentioned during the course of this debate. The issue of resources is part of that.
Under the Constitution as it stands, children enjoy the same rights as all citizens of the State. However, the needs of children are different from those of adults. The 31st amendment recognises these differences. This referendum is a chance to create fundamental change in how we treat children. I thank everyone who has contributed over the years to us arriving at this point and everyone who has contributed to this debate in the Dáil.