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JOINT COMMITTEE ON THE CONSTITUTIONAL AMENDMENT ON CHILDREN debate -
Thursday, 6 Dec 2007

Business of Joint Committee.

I welcome the officials who are with the Minister of State, Deputy Brendan Smith. I invite him to make his statement.

I thank the Chairman and members.

I am pleased to have an opportunity this afternoon to make a short contribution. I wish to emphasise the Government's commitment to the amendment of the Constitution to strengthen its protection of the rights of children. Our goal is to strive for what is best for all the children of this country. As is often said, society is judged on how it treats the most vulnerable in its midst and this Government is committed to ensuring that the vulnerability of the young people of Ireland is recognised and that they are given the full protection of the Constitution.

In the past ten years there have been many improvements in the policy and legal framework for the protection of children in Ireland. These improvements included: enacting the Protections for Persons Reporting Child Abuse Act 1998 and the Sex Offenders Act 2001, which provides for monitoring of convicted sex offenders; the establishment of the Garda central vetting unit in 2002 to ensure that those working with children are screened; the appointment of the first ever Minister of State with responsibility for children, with cross-departmental powers and a seat at the Cabinet table; the Child Trafficking and Pornography Act 1998; the appointment of an Ombudsman for Children; the Children Act 2001; the Protection of Children (Hague Convention) Act 2000; and the Children Act 1997.

The establishment of this committee to consider an amendment to the Constitution is another step towards ensuring that the Irish legal framework adequately values, respects and protects the rights of children. There have been calls from many quarters to strengthen children's rights in Ireland, including by seeking an amendment to the Constitution to reflect the rights of children. As all members are aware, the Taoiseach, in November 2006, asked the then Minister of State with responsibility for children, Deputy Brian Lenihan, to initiate a process of consultation and discussion with the other Dáil parties and with all relevant interest groups to prepare an amendment to the Constitution in regard to children. The purpose of the consultation was to achieve consensus on an appropriate wording. Those consulted then included political party representatives, the Ombudsman for Children, non-governmental organisations represented by the Children's Rights Alliance and faith-based groups. On the direction of the Government, proposals were brought to Cabinet by the Minister of State, Deputy Brian Lenihan, on a referendum to amend the Constitution in respect of children's rights and the Twenty-eighth Amendment of the Constitution Bill 2007 was published in February 2007.

The launch of this committee is the culmination of a great deal of deliberation, discussion and agreement, inside and outside the Oireachtas. The programme for Government highlighted the need to examine the proposed constitutional amendment with a view to deepening consensus on this matter. The need for consensus is emphasised in order that the Oireachtas can give the Irish public a considered and united approach on the proposed amendment to the Constitution.

In June of this year I had the honour of being appointed Minister of State with responsibility for children. From the outset, the Taoiseach and I agreed that one of my main priorities for this year in that role was the establishment of the Joint Committee on the Constitutional Amendment on Children, with a view to presenting proposals for a constitutional amendment to the people of Ireland during 2008.

In October, I brought a memorandum to Government proposing the establishment of a Joint Committee on the Constitutional Amendment on Children. My Government colleagues asked that I ensure that the terms of reference for this committee would have the general agreement of the Opposition parties. Therefore, I undertook a series of consultations with Opposition parties on the terms of reference. The views of the Opposition were at all times helpful, constructive and indeed reflective of the expertise that Opposition representatives bring to this committee. These views have been listened to and were reflected in the revised terms of reference that were considered by Government on 20 November and subsequently presented to the Dáil and Seanad for their consideration and approval.

The resultant terms of reference for the Joint Committee on the Constitutional Amendment on Children will afford all involved in the committee, both Oireachtas Members and those who may make oral and written submissions to this committee, the opportunity to contribute fully to the process of deepening consensus on amending the Constitution to the benefit of children. Terminology such as "bipartisan approach" and "consensus politics" are often used in the modern day political arena, but I cannot stress enough the importance of this modus operandi for this committee. I have no doubt that the Chair, Deputy O’Rourke, will have the full support of this committee as she strives to achieve a consensus position on the sensitive issues before us.

The terms of reference of the committee ask us to consider the text contained in Schedule 1 to the Twenty-eighth Amendment to the Constitution Bill 2007. The provisions of the Twenty-eighth Amendment to the Constitution Bill are not simple, because the issues involved are not simple. Our efforts in considering this text must concentrate on how best to protect the rights of children while maintaining a careful balance with other important principles already contained in the Constitution and which, we believe, are equally important in protecting and safeguarding children. These include the duties of parents and the regard in which the family is held by the Irish people. I understand that much of the deliberation in preparing an appropriate wording to date has involved seeking to ensure that there is no dilution of these equally important concepts.

In general, our Constitution strikes a balance between personal rights, the status of the family, the rights and duties of parents and the power of the State as guardian of the common good. The aim of the Government is simply to include children in this equation.

Put as simply as possible, the purpose of the text set out in the Twenty-eighth Amendment of the Constitution Bill 2007 is to ensure the following: that as a society, we make clear our regard for the natural rights of children, rights they already have but are only implicitly expressed in the Constitution; where families fail their children in a way that is truly detrimental to those children and that failure continues, such children can expect to be protected and have a second chance, a chance in respect of which all the options can be explored and regarding which courts can make decisions that are best for the children in the long run; we apply the same standard of care and protection to all children and offer them the same opportunities for a second chance; we can put in place systems that minimise risks for children posed by those who would prey on them; and we make law that underpins our abhorrence of the worst of crimes against children to act as a deterrent to potential offenders and protect children who are victims of those crimes from further victimisation in the prosecution of those crimes.

Some commentary on the text proposed in the Twenty-eighth Amendment of the Constitution Bill 2007 has varied between asserting the need for quick action and the need not to rush, given the complexity of the issues involved. The approach the Government has taken to date in regard to the establishment of this committee, including the degree to which a consensus approach has been taken to the development of the committee's terms of reference, underlines its desire to get it right while also working as speedily as possible to bring proposals for constitutional change to the people.

Our Constitution is held in high esteem not only by the Irish people but also by others across the world. It has been a model for many countries and the Irish have a strong attachment to it. I hope that, through the work of this committee, we will be able to present the people with an amendment that is clear and comprehensive and represents a real improvement in the legal position of children in the Constitution. This is an enormous task, as the Chairman has said, but it is also a great opportunity to make a difference for children and produce a constitutional amendment that properly reflects our commitment to value and protect all of our children.

I congratulate the Chairman on her unanimous election to the Chair of this committee. As Deputy Peter Power stated, I have no doubt she will lead the committee in an exemplary way. I congratulate Deputy Noonan on his election as Vice Chairman and wish him a speedy return to full health. I hope he will be with us at a meeting of the committee in the near future.

I thank the Minister of State. He is accompanied by Ms Sylvia Langford, director general of the Office of the Minister for Children, and her officials. They are all very welcome. I also welcome Mr. Peter Baldwin, assistant secretary at the Department of Education and Science.

I congratulate Deputy O'Rourke on assuming the Chair of this committee, which everyone will agree is an onerous task. I apologise because I must leave shortly.

This committee is very unusual among Oireachtas committees in that it has been given a very specific task to undertake within a specific period. Most committees shadow different Departments and have much discretion regarding the manner in which they carry out their work. Very little discretion is left to this committee in that its work to determine the wording of the proposed amendment to the Constitution is set out very clearly. Considering the wording and presenting a report within a specific timeframe will pose serious challenges to the Chairman, the committee as a whole, the secretariat and other support staff.

Few tasks in public life are more important than the protection of children. The decisions on statutory rape in 2006 brought into sharp focus the chord the issue struck in the Irish psyche. We saw spontaneous protests, not only outside the Dáil but also in many areas nationwide, when the interests of children in respect of one specific issue were affected so adversely by a decision of the courts. Therefore, it is important to set out a programme of work as soon as possible. The programme needs to be very much focused on our ultimate goal.

There is no reference of any weight to children in the Constitution. Reference is made to groups of individuals and citizens and specific rights attached to families are set out, but there are no specific rights attached to children. In this respect, introducing seven new provisions into the Constitution would represent an enormous shift in the constitutional balance in favour of children. This is very welcome.

Citizens would not thank us if we were not in a collective position to reach consensus on how to change the Constitution to the benefit of children. In this respect, the onus is on the committee to work together with this aim in mind. Some of the issues that arise relate to the treatment of children in the courts, be it in respect of strict liability offences, adoption or cases to determine the best interests of the child. It is very important to have somebody with experience and expertise in the courts to advise the committee on how the amendments would play out practically therein. We have such expertise on the committee in the person of Deputy Shatter, but it is very important to draw on the services of an independent advisor. I suggest a man who would be very independent and who has great expertise, namely, Mr. Shane Murphy, SC. He is an acknowledged expert in this area.

We will be discussing these matters but I thank the Deputy for his advice.

I congratulate Deputies O'Rourke and Noonan on their appointment to the positions of Chairman and Vice Chairman, respectively. I thank the Minister of State. He is correct that we had very constructive and co-operative discussions on the terms of reference of this committee. I hope we continue to work in a similarly constructive way to achieve our objectives.

Fine Gael favours the explicit recognition of children's rights in the Constitution in principle but it is important that constitutional change be real and truly child centred. The children's rights amendment must not be constitutional window dressing.

We must recognise and truly protect the substantive fundamental rights of children as well as properly recognising parental rights and responsibilities. We should ensure that both our Constitution and our domestic law are in accord with our international obligations pursuant to the United Nations Convention on the Rights of the Child and other relevant international conventions and treaties relating to children to which this State is a signatory. However, we do not believe that simply providing for explicit and greater recognition of children's rights is enough. The forum within which these rights are administered, interpreted and applied is as important as the rights themselves.

The current court structures which administer family and children's law are grossly inadequate and in need of radical reform. Fine Gael believes that there is not only a need for a referendum to incorporate a children's rights amendment into the Constitution but that there is also a need for a referendum to amend the Constitution to provide for the establishment of family courts. We need a separate distinct family court structure administered by judges with the necessary expertise, training and insight. They should be assisted by an in-court welfare and assessment service. There should also be attached to such court a mediation service to facilitate the resolution of family disputes and disputes relating to children, where possible, by agreement and without unnecessary contention. Such courts would reduce the legal costs incurred in contentious proceedings relating to children and other family law matters and treat family law and children's law as being different in character from other areas of civil law. While this committee does not have the remit to address the issue of court structures, Fine Gael seeks a commitment from the Government to the establishment of such family courts and to the holding of a referendum to provide a constitutional framework for the Oireachtas to enact the detailed legislation necessary to provide for such courts.

There are some important principles applicable to incorporating a children's rights amendment into the Constitution. There is need to take great care with the wording. We should not be carried away by a "political feel good factor" simply because we are doing "something" about children's rights. There is a need for a proper balance between the rights of the child and the rights and responsibilities of parents; between the rights of parents and the obligation of the State to intervene to protect the welfare and best interests of the child and to ensure that an amendment that should be child centred does not, intentionally or unintentionally, diminish the rights of children, and the existing legal protection available to them and reinforce parental rights in circumstances in which the right of the child to have his or her interests secured should prevail. To be meaningful the amendment should recognise that children have rights as individuals which are entitled to constitutional protection. The proposed wording of the amendment is a cause for concern in that its exact meaning and impact will remain uncertain until judicially interpreted and applied. Much of the work of this committee will be to examine in detail areas of concern, address those concerns and, if they prove unnecessary, to resolve them. If necessary we must come forward with alternative wording where appropriate and hopefully we will achieve a consensus on that.

I wish to put down a marker regarding some areas of concern so that people, including the Minister, will have an opportunity to reflect on them. The proposal contains a variety of provisions relating to children. Under the proposed Article 42(A).1 the "natural and imprescriptible" rights of all children are recognised. This is not entirely new. The rights of children in a marital family are already so recognised under the existing Article 42.5 and the rights of children born to unmarried parents have been held to similarly exist under Article 40.3 of the Constitution. These rights are unenumerated and it may not be practical or desirable to enumerate or attempt to enumerate them in full in a constitutional document. I appreciate that it is the Government's view that the courts must be given some flexibility in this area to take account of contemporary developments and social values as they evolve and this is not an unreasonable view. This, however, merits further discussion. We should be careful not to abdicate our role and continue to leave the detailed formulation of children's rights unhindered entirely in the hands of the Judiciary.

In several important judgments delivered in our courts children's rights have been subsumed within, and made inferior to, the rights of married parents. The rights of children born to unmarried parents have been treated differently. This remains a possibility under the new proposed wording in the context of its interaction with Article 41 of the Constitution. This is a serious issue that needs to be carefully considered. We should be careful in the work we intend doing to ensure we do not deal with the proposed children's rights amendment in isolation and ignore the impact of Article 41 of the Constitution on what is being proposed.

The proposed Article 42(A).2.1° provides that "in exceptional cases", where parents fail in their duty to children, the State can intervene. There are varied judicial approaches in case law to the concept of what is "exceptional". At present, the State can intervene to protect the welfare of children born to unmarried parents more easily than of children born to married parents. Moreover, the courts have articulated that State intervention is permitted for "compelling reasons", a phrase contained neither in the Constitution nor in the proposed amendment. How will this apply? Should the standard for intervention be something less than proof of circumstances that are "exceptional", together with proof of "failure of parental duty"? Should there not be such intervention where it is required in the interest of a child's welfare or where it is in the child's "best interests"?

The proposed Article 42(A).2.2° provides for the adoption of children where there is a failure of parental "duty" towards a child for a period of time to be specified and where the adoption of the child is consistent with its best interests. What is "failure of duty"? If a child in care is subject to a care order for many years, does that amount to "failure of parental duty"? If a child is voluntarily placed in care indefinitely by a parent or parents, is that such failure? If an inadequate parent places a child in care or fosterage permanently or indefinitely should such child not be adoptable? Under this proposal, however, the child may not be adoptable as the parent or parents may be regarded as having complied with their parental duty by so placing the child.

Under existing law if an unmarried parent places a child for adoption, then changes her mind, the required consent to an adoption order being made can be dispensed with by the High Court in the best interests of the child. This has happened in many instances over the past 30 years where children have been in the care of prospective adopters for two, three or more years without an adoption being completed. Where there is an agreed adoption placement by a parent there is no "failure of duty" as required by the proposed amendment on the basis of court interpretations. Consequently, under this new provision such an adoption could not be completed and the law under which many such adoptions have been effected and judged to be "in the best interests of the child" may cease to apply and be held to be unconstitutional. The law is designed to protect the child's best interests. Accordingly, protection afforded to some children could be diminished by what is proposed.

Article 42(A).3 allows for the voluntary placement of a child for adoption by married or unmarried parents. It makes no provision for dispensing with parental consent to adopt where a parent, or parents, change their mind after such voluntary placement and where the child has fully bonded with or is fully attached to the prospective adopters as his or her parents, due to the length of time the child has been in their care. In the case of children born to unmarried parents this provision, taken together with the proposed Article 42(A).2.2°, would effect a fundamental change in existing law to the detriment of some children.

The proposed Article 42(A).4 requires the courts to "endeavour to secure the best interests of the child" in proceedings concerning adoption, guardianship or custody of, or access to, a child. In some recent judgments the Supreme Court has given pre-eminence to the biological or blood link between parent and child as compared with the psychological link or bonds and attachments formed between a child and those parenting the child. The Supreme Court has attached limited importance to the real relationship that exists between a child and a couple or an individual with whom the child daily interacts and is attached to as his or her parent, as compared with the stranger with the biological link. The application of such a philosophy can render the "best interests" test a meaningless formula left to the vagaries of the Judiciary. There is a need to give detailed consideration to what is meant by the "best interests" obligation imposed on the courts and how it will interact in practice with the provision contained in the new Article 42(A).2.1°. There is also a need to give consideration to the extent to which the wording proposed for the constitutional amendment can ensure that the courts implement what is intended by the amendment.

A further concern is that imposing a constitutional obligation on the courts to "endeavour to secure the best interests of the child" waters down the Guardianship of Infants Act 1964, section 3, which requires courts to regard the welfare of the child as "the first and paramount consideration" in disputes concerning the child's guardianship, custody or upbringing. It may also render this section unconstitutional.

The proposed Article 42(A).5.1° provides for the collection and exchange of information relating to the endangerment, sexual exploitation or abuse of children or other persons. This is an important amendment intended to protect children and others who are vulnerable but does it give a constitutional carte blanche to maintain and exchange false information supplied by malicious people intent on destroying the reputation of an individual? Consideration needs to be given to ensure there is no constitutional impediment to providing protection against a person’s life and reputation being destroyed by a false allegation of child abuse maliciously made. The proposed Article, 42(A).5.2°, is uncontroversial and would provide a necessary constitutional mechanism to enable the enactment of essential legislation to protect children from sexual predators.

It is important we understand the complexities in the published Bill. There are real difficulties with the substance of application of the Bill to current law and achieving the aim of all sides to protect the rights of children in the Constitution in a balanced and sensible way. This committee has important work to do and Fine Gael looks forward to constructively participating in that work. We have an opportunity to reshape a part of the Constitution that is now out of step with our international obligations to protect children's rights and which has been the subject of public criticism and concern for some time. We should not underestimate the complexity of what is involved, nor should we regard that complexity as an excuse for inaction but rather as a challenge to be overcome.

Constitutional change to give explicit recognition to the rights of the child is long overdue. By taking a careful and considered approach the committee can ultimately propose a form of constitutional wording that would provide the essential legal protection in the Constitution to which children are entitled. The Bill published by the Minister provides a helpful starting point for the work to be undertaken but it does not get us across the finishing line.

I compliment Deputy O'Rourke on her election as Chairman and wish her well in what will be a difficult task. It is becoming more difficult by the minute. I also compliment Deputy Noonan on his election as Vice Chairman.

I welcome the appointment of Deputy Smith as Minister of State at the Department of Health and Children, with responsibility for children. He has engaged with the Opposition on the formulation of the terms of reference for the committee in an open and constructive way. It characterises the nature of the approach that he has taken to his brief.

I was privileged to work on the previous committee on child protection. It was the most constructive committee on which I have worked in the 20 years I have served in the House. It was engaged in an open way and part of its success was the attendance of and full participation of line Ministers. I welcome that this practice is to be replicated in this committee. We have a difficult task ahead of us, as we have a finite timeframe of four months to shape a constitutional amendment that must be multifaceted, as stated in Deputy Shatter's comprehensive analysis.

I pay tribute to the former Chairman, Deputy Peter Power. His openness and engagement were in no small way major contributory factors to the success of that committee. I hope its 62 recommendations will be monitored by some body. They are not included in our terms of reference but the protection of children is much broader than the narrow constitutional job we have been given. Presumably, it will fall to the Joint Committee on Health and Children but it may have much on its plate already. There should be a driving force examining implementation of those 62 recommendations, all of which are critical if we are to put the framework together that we want to protect children.

There is a degree of urgency about part of our work but others are less urgent. It is for that reason that my party, at my instigation, suggested we disaggregate two separate issues. Major concern was generated last year by the Supreme Court decision that struck down strict liability as a legal issue. Many were horrified that children would not have absolute protection and that those accused could use ignorance of the age of a child as a shield in court. Legislation to put that right is a stand-alone issue. I had hoped we could have an agreed Bill before the end of last year. I do not think it would have been controversial to shape that constitutional amendment. We could then have examined the child protection issues involved, which are more complicated, as Deputy Shatter indicated, than that stand-alone issue.

In order to shape a constitutional amendment - the Oireachtas has failed to do this - we need to shape a form of words that will in interpretation by the courts do what the Oireachtas intends. That is no small task. Second, we have to shape a complex, multifaceted amendment in a way that will be passed by popular vote of the people. When putting seven issues to the people in a referendum, sufficient opposition to different components can cause it not to be passed. For these reasons, I would have preferred the approach of leaving the issue of absolute liability aside and passing the legislation after the people had spoken on an amendment. Since the time ran out to do this, a draft cross-party statement on this matter was agreed but never published. It is a cause of concern to us as legislators that the actual number of prosecutions for child rape has declined since the Supreme Court decision of the summer of last year. That is a serious matter that needs to be addressed on a stand-alone basis.

Even since the Bill was published, it has generated debate which will cause concern for all members. The law on adoption for children in care is a matter on which we can work out a consensus. There are issues in respect of a constitutional amendment sitting with existing constitutional provisions and laws. We need a careful interlinking analysis of these issues. We were less than happy with the general provision for giving constitutional rights to children by grafting it onto existing constitutional provisions. We can deal with this issue in more detail when we have our legal advisers present.

Securing the best interests of the child in court proceedings is a complicated issue because in any readjustment of relative rights, someone else loses out. That will be a bone of contention. If we are to strengthen the rights of children versus those of the family, many will resist such a rebalancing. One category of rights cannot be strengthened in a neutral way because somebody else's absolute rights will be dislodged. These matters need to be examined carefully.

It will be very difficult to come to a formula on which we will all agree. I have given much personal consideration to this. I have met individuals subsequent to publication of the legislation to discuss how we should deal with soft information. In the Soham murder case, an individual was arrested and questioned on suspicion of child abuse, yet was later employed as a caretaker in a school. Subsequently, he committed atrocious crimes of murder against children. How can this be dealt with? There is the constitutional right of individuals to have their good name. None of us can imagine anything worse than it being recorded somewhere that one is suspected of being a child abuser. What level of suspicion is necessary, where is this information stored and who has access to it? All of these matters are very serious.

I had two personal testimonies from people who contacted me, subsequent to the publication of these proposals, horrified that allegations were made or rumours instigated against them, who proved to be entirely innocent but whose lives were ruined by the innuendo. Will every individual have the right to know what information is being held about him or her? These are extremely difficult and complicated issues. Wherever the line is drawn there is a danger of grievous harm being caused, either to an innocent individual against whom suspicions are recorded somewhere, or to guilty persons who may not have data recorded against them who are put in a place where they can harm children. These are among the matrix of issues that will face this committee. It might appear to be a narrow job of work to examine and fine tune a constitutional amendment in such a way as to confidently advocate its passage by the people and subsequently pass laws for its implementation. Having said all that, we are charged with an important job of work and I am looking forward to getting on with it.

My final comment is that I hope that new members of the committee will read with some care the report of the previous Joint Committee on Child Protection. I hope the consensus that was built on some of the issues there can be carried into this committee so that we do not have to re-open those questions. In other words, every question can potentially be reopened and may have new perspectives, no doubt. I trust we can speedily come to a position where we can put a referendum to the people. I should certainly welcome an indication from the Minister of State as regards whether it is the Government's firm view that these matters will have to be put together or if the issues can be separated. If we are to have a single referendum on child protection issues, are they to be put by way of a single question? Is the Government open on that or is the Minister of State coming with a Government view in that regard? Will this be a stand-alone referendum or will it be taken in tandem with the European reform treaty? In the event, this would complicate matters.

I thank Deputy Howlin and I shall ask the Minister of State to reply when members who have indicated have spoken.

I congratulate the Chairman on my own and my party's behalf on her appointment. I shall be as brief as possible, which usually means a lengthy contribution, although not in this case.

I take on board what Deputy Howlin said and believe the issue of strict liability should be dealt with separately. All members, including myself, should look at the previous work of the child protection committee, and I thank him for this advice. I believe a delicate balance must be struck between the family and the child. However, my perspective on this is that the rights of the individual supersede those of the family.

I take on board what Deputy Shatter said as regards family law courts. Obviously this committee cannot deal with that, but this sounds like an eminently sensible suggestion. My party's view on this is very much in line with the UN Convention on the Rights of the Child. We know the Constitution cannot take it fully on board, but it can make reference to it. We could insert a wording that mimics such a convention. Wherever we can we should be as rights-based as possible.

Deputy Shatter raised the question as to whether to enumerate in full or leave it to the vagaries of the Judiciary. If one is too prescriptive that does not allow for social change. At the same time the concession of too much in the way of interpretative powers has led to difficulties in the past. Perhaps someone with Deputy Shatter's background and abilities, in terms of being appointed rapporteur on such pitfalls, as happened in the past, could lead the way in this regard. In the short timeframe we have, we must find a wording to outline our case as clearly as possible without impeding the passage of any constitutional amendment. I am in favour of a lengthy prescriptive method whereby every "i" is dotted and every "t" crossed in so far as is possible - notwithstanding that it is possible to be over-prescriptive. We need to put down fully what we want so that the Judiciary does not have any negative leeway, as happened in the past. I am not lambasting the Judiciary but rather saying this is a fact of life.

On the other brief issue, depending on whether the initiation of the committee is today, with the election of the Chairman, or with the passing of the instruments, we have until mid-March or the beginning of April, which is very short time. Many bodies are proposing lists of invitees and we will shortly discuss a work programme. I suggest the invitees are given very strict terms of reference, possibly relating to the wording. When they make their presentations before the committee, lengthy preambles should be discouraged and replaced by brief presentations and questions, along with possible suggestions as to the wording. That might get through the business somewhat more speedily because the onus is on us to put all that information together and try to come up with something that the Government, hopefully, will acknowledge as an all-party non-partisan outcome which may be put before the people in due course.

I thank the Deputy and confirm that the committee has been set up since its inception, not just today. I agree with his advice.

At the outset I record my welcome of the establishment of the Joint Committee on the Constitutional Amendment on Children. I take the opportunity to congratulate the Chairman on her unanimous selection as Cathaoirleach for the course of the committee's work. I also extend congratulations and good wishes for a speedy return to active political life to Deputy Noonan. I also thank my constituency colleague, the Minister of State with responsibility for children, Deputy Brendan Smith, for facilitating direct engagement with him and his officials on the very important matter that has been entrusted to his. I wish to record that his predecessor, the then Minister of State with responsibility for children, Deputy Brian Lenihan, was very open, available and engaging in the course of the earlier deliberations and in evaluating the formulas of words subsequently placed before the previous committee.

We in Sinn Féin have submitted our proposals as regards the wording of the constitutional amendment. We have particular views as regards each of the five propositions contained in the proposed new Article 42.5 to be evaluated by this committee. The terms of reference are quite specific: to examine the Twenty-eighth Amendment of the Constitution Bill, consider the text set out in the Schedule to that Bill and make such recommendations, including proposed amendments, to the text in Schedule 1, as the committee deems appropriate. It is a major responsibility and I believe we have been entrusted with a mammoth task of great importance.

While many committees of the Oireachtas seek to reach consensus through a compromise of ideas, I believe that cannot be the approach in this situation. The objective must be to obtain the best possible formula of words that affirms the rights of children and the protections necessary for their wellbeing. It is not a question of arguing a proposition while believing we can do a trade-off in terms of our respective views and dispositions. This will be a challenging learning curve for all concerned. I hope we will arrive at an agreed recommendation or formula of words that can be put to the people in a referendum sooner rather than later. However, it may not be the best idea to rush things in order to coincide with the European treaty referendum next summer.

On proposition No. 1, we were of the view that the Constitution should include a list of express rights for children. It should be based on the UN Convention on the Rights of the Child, but that is not the approach that has been taken and the wording presented refers to natural and imprescriptible rights, which is weak. I have views on each of the respective propositions and look forward to sharing them with colleagues of all opinion.

I had a brief look at the proposed list of invitees, with the greater number of those listed from the island of Ireland. I ask that we look at international best practice in this regard. We could also learn from the formula of words adopted in other democracies, where the rights of children are reflected in the respective constitutions. I commend this as a further area for consideration by the committee. I wish it well in its deliberations.

I congratulate Deputy O'Rourke on her appointment as Chairman and Deputy Noonan on his appointment as as Vice Chairman. I know Deputy O'Rourke's determined spirit which I am sure she will use to very good effect.

The more I hear, the less determined I become.

As has been pointed out, this is obviously a complicated issue, but I hope we will reach consensus on the wording because it would be an important message to the public and in the interests of children. I congratulate the Minister of State on the way he has begun this process and dealt with the terms of reference by liaising with and listening to colleagues from this side of the House, particularly Deputies Shatter and Howlin. That is very important in terms of the approach to the committee. I was very interested to hear how the work of the previous committee had proceeded under Deputy Howlin and that consensus had emerged. This can be a very difficult issue when balancing children's rights with those of parents. People become unnecessarily worried about this because strengthening children's rights does not pose a threat to family life, rather it should enhance it. We need to send this message to the public. However, it can be misinterpreted easily.

Assuming and hoping we reach a consensus, I ask the Minister of State and the committee to consider the recommendation being made by Fine Gael to insert a constitutional amendment on this issue from the courts' perspective. There is much concern and for the amendment to be meaningful, we want the systems that deal with children to be responsive to them. Everybody who has contact with them knows that the courts are in great need of reform. I hope the Government will look at this issue carefully and will be flexible in considering it. It would enhance the work we are doing if we could also deal with this issue. There is also a need for all-party support if the amendment is to be carried.

Children have suffered because their rights are not in reflected in the Constitution. Bad decisions have been taken because such an amendment has not been made. It impacts on people's lives. We do not just want a theoretical amendment to be made to the Constitution. In its absence, some children have not been protected. Some children have not been adopted who should have been. There are implications.

If we reach agreement, it is equally important that the Government commits resources in the same way that they were committed to the second referendum on the Nice treaty to ensure it was carried. Resources are needed to make information available and inform the public.

I welcome the comments of individual committee members which show how complex the entire issue is. Senator Fitzgerald made a point about resources, which issue is governed by the McKenna judgment. The Government must provide funding for the referendum commission to provide both sides of the argument. Substantial funding has been allocated to the Vote for the Office of the Minister for Children for 2008 in respect of the referendum.

No decision has been made on whether the two referendums will be held on the one day. Deputies Kenny and Gilmore asked the Taoiseach about this in the Dáil and he said that while there would be a referendum on the EU reform treaty, which we hope to have during 2008, no decision had been made on whether the two would be held together. It depends on how much progress we make and on the political climate at the time.

Does the Minister of State have an opinion on the matter?

If it was possible and there was widespread support for both proposals, it would be practicable to have the two together. However, I can see difficulties in that regard. The Government has decided to put this body of work, as outlined in the 28th amendment to the Constitution, to the committee. The Taoiseach has been at pains to state we want to deepen consensus on the issue at the committee.

Does the Minister of State have an open mind on whether there should be a single or multiple questions?

The Government decided to ask the Oireachtas to establish this committee to deepen consensus on the amendment, as proposed by the then Minister of State, Deputy Brian Lenihan, last February. My personal opinion is an issue for the Government.

Is it something we can deal with as an issue?

Obviously, the Government is willing to listen to the committee, the purpose of which is to deepen consensus in its work on this issue. Deputy Gogarty used the word "prescriptive". The Government has not been prescriptive and demanded that the committee come back with a particular result, as that would defeat the purpose of its work. There is a large body of work for us to do, as outlined in the various views expressed and issues raised.

Deputy Howlin referred to the Soham case and the use of soft information. If the amendment is put to the people and passed, then we will have to legislate. That will also be a difficult task. As Deputies Shatter and Howlin noted, we do not want to be in a position where legislation would allow for vexatious rumours to ruin the lives and character of persons, and Deputy Howlin rightly outlined instances of people being unable to work with vulnerable people, young or elderly, in such situations. Complicated issues are involved. The purpose of the committee is to work towards reaching consensus on a wording we can put to the people that will strengthen and protect the interests of children in the Constitution.

I neglected to call Deputy Thomas Byrne.

I congratulate the Chairman on her election. I know she will drive the committee forward in the proper way. I thank the Minister of State's office and the clerk for the information given to us, including the briefing papers, which I have not read yet, although I will do so.

They are not brief.

They are important nonetheless. I intend to take Deputy Howlin's advice to read the other report. Perhaps I could be told where I can access it.

During the election campaign, I was surprised by the number of those who I might describe as religious conservatives expressing concerns to me about this referendum. The committee proposes to invite a number of religious bodies as well as a spokesperson for the church. I suggest we would invite a high profile bishop, such as Bishop Eamon Walsh, who dealt with some of these issues in Wexford. I am afraid of an unnecessary church-State clash or religious--

We will endeavour to keep an eye on that.

It was a point that struck me. I was surprised as I did not expect this issue to arise. The committee will have a short lifespan so we should all do the necessary reading and preparation.

If the committee agrees, I propose to go into private session.

The joint committee went into private session at 1.15 p.m. and adjourned at 1.40 p.m. until 5 p.m. on Wednesday, 12 December 2007.
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