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."

I welcome the opportunity to speak to the Bill and support the Government's decision to hold a referendum on children's rights on 10 November. I commend the Minister for the work she has done in the past 18 months to bring a constitutional amendment before the electorate. This issue has been on the agenda for a long time and while it is complicated, the ultimate objective of enshrining in the Constitution the rights of children and giving them a voice has been clear throughout.

I acknowledge the work of the Minister's predecessors, beginning with the late Brian Lenihan who, in 2006, drafted a wording for a referendum following the deliberations of the All-Party Committee on the Constitution and, subsequently, Deputy Brendan Smith and Barry Andrews. I also commend the work of the All-Party Oireachtas Committee on the Constitutional Amendment on Children, which was chaired by former Deputy Mary O'Rourke and whose members included the Minister.

It is appropriate, given the unfortunate manner in which the State has addressed the issue of protecting children during the decades, that the House will adopt this measure. Seventeen reports have been published showing negligence on the part of the church and institutions of the State in protecting children. While the referendum is important and appropriate, our failure to protect children has not been the fault of the Constitution but of the church, State and politics. The media also failed to identify or shine a light on what was taking place in society. We have a tradition in this country that children should be seen but not heard. Unfortunately, that culture led to a situation where many of our children were failed. I hope this referendum to be put before the people will ensure our children will be heard in the future.

There has been some discussion as to whether a referendum in this area is necessary. In a recent article, the former Supreme Court judge, Mr. Hugh O'Flaherty, stated many of the needs of children and adoption provisions could be catered for in law and the legislation then tested in the courts, if necessary. I agree with the Minister, however, that we need constitutional change. It goes back to the report of the Kilkenny incest investigation by Mrs. Justice Catherine McGuinness. In it she found the high emphasis on the rights of the family in the Constitution may consciously, or unconsciously, be interpreted as giving higher value to the rights of parents than to the rights of children. Last week a constitutional law lecturer in University College Cork, Dr. Conor O'Mahony, made a valid point on this too when he wrote:

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

These comments illustrate the need for ensuring we make it absolutely clear in the Constitution that children have a right to be heard in their own right, that they have independent rights and these should not be dependent on whether the child comes from a married family or unmarried parents.

One of the key changes this referendum will also bring about is in adoption and ensuring all children will have the opportunity to be adopted regardless of whether they come from married parents or not. Over the years, various court judgments have led to the point whereby the threshold by which children of married parents can go on to be adopted has been set unacceptably high. Accordingly, many children in long-term foster care can only be adopted once they reach their 18th birthday. It is welcome that of the 6,250 children in care, over 90% of them are in foster families. Many of them stay with their foster families for many years. Many of these families want to be able to adopt the child while the child also wants to be adopted by the family. Unfortunately until now, this constitutional impediment has meant it has been very difficult for people to come through the courts to achieve this. The Minister will recall when I was my party's spokesperson on children affairs, I brought forward a Bill to address this issue. Accordingly, this aspect of the amendment is welcome and overdue.

I find it heartening there has been a widespread welcome for the referendum among interest groups and the public. It is also welcome that people have recognised the importance of its provisions and it has not been used so far by people to put forward points which may not be directly relevant to the issue at hand. I hope this continues and the debate will be positive. However, as this is such a high-profile referendum we have to be careful we do not sell it as a panacea for dealing with the gaps in child protection and welfare. It can be very easy for politicians on all sides to put up headlines with the claim we are prioritising children because of this constitutional referendum. The Constitution, however, has not been the primary reason we have failed many of our children in the history of this State. In too many cases it was the State, politics, the church and various institutions.

While it is important the Constitution is amended appropriately, it is also critical we keep focused on ensuring all children get proper services which are most crucial. In that regard, it is not acceptable children have to wait a year to see a child psychologist or for speech therapy classes and that only 91% of children in the care of the State have an assigned social worker. These are real issues that impact every day on the lives of each child who may want to use those services. Children's formative years are key. Where the State fails to ensure the timely delivery of services as necessary, we do not get the chance to help children in those formative years and it is lost forever.

I welcome this referendum and fully support it. I commend the Minister for Children and Youth Affairs and her Department on their work behind the scenes on this referendum and the adoption legislation. I look forward to the referendum being adopted and campaigning for it. I wish the Minister well in her campaign. The Fianna Fáil Party will be fully with her on this. However, we must ensure we deliver the resources to ensure each child is treasured.

Cuireadh an díospóireacht ar athló.

Debate adjourned.