JOINT COMMITTEE ON THE CONSTITUTIONAL AMENDMENT ON CHILDREN debate -
Wednesday, 23 Sep 2009

Orders of Reference of the Joint Committee: Discussion.

Chairman

I welcome our guests. We appreciate the joint submission from the six groups — Barnardos, CARI, Dublin Rape Crisis Centre, ISPCC, One in Four and the Rape Crisis Network of Ireland — which have vast experience of dealing with young people in different walks of life and different circumstances. Given that what was put forward represented a combined effort by the groups and that the groups had consulted widely, we were keen to hear what they had to say.

I invite Ms Maeve Lewis, chief executive officer of One in Four, to begin.

Ms Maeve Lewis

I thank the committee for accepting our submission and inviting us to discuss it. We propose that Mr. Fergus Finlay and I make a brief presentation before a discussion and questions from the members of the committee. I will begin by introducing our group. Ms Fiona Neary is from the Rape Crisis Network of Ireland, Ms Mary Flaherty is from CARI, Mr. Ashley Balbirnie is from the ISPCC, Ms Ellen O'Malley-Dunlop is from the Dublin Rape Crisis Centre and Mr. Fergus Finlay is from Barnardos. Each one of us represents an organisation that works hard every day to support and strengthen families so they can provide a loving and safe environment in which to bring up children. However, for many Irish children the home is singularly the most dangerous place to be.

We know that one in five Irish girls and one in six Irish boys experience contact sexual abuse during childhood and we know that 50% of these children are abused in the family. In our work, every second person we meet who has been sexually abused has been sexually abused by a family member. Happily, most Irish children grow up in families where they are loved and cared for. This is clearly the best situation for children, and everybody would support that. However, for the minority for whom home is a dangerous place, we believe strongly that society has an obligation and responsibility to intervene if necessary to protect vulnerable children.

Statistics and facts can hide the real suffering children endure daily in families where they are not safe. Let us bring some of those children into the room. Consider Mark, for example. He is eight years old and has been sexually abused by his father. Due to the difficulties in getting a conviction in a criminal court, Mark's father, even though he is separated from his mother, has unsupervised access to Mark on a weekly basis. Mark's mother and the social workers involved must stand helplessly by while Mark goes every week into what they consider to be a very dangerous situation. Let us consider Mary, who is five and has just started school. She comes to school every day filthy, bruised and often clearly very hungry. As her parents are refusing the support that is being offered by social services, the teachers and social services personnel must again stand by and watch Mary have the worst possible start to her school career.

Let us also consider Childline, which is run by the ISPCC. Each Christmas Day it receives 1,000 calls from children who are seeking and reaching out for help. We can only imagine the child at home within their family on what should be the happiest day of the child's life, perhaps using the telephone they got as a Christmas present, hiding in a bedroom or bathroom and ringing a stranger out of loneliness and desperation in search of help. That is the reality of the children we work with. They are the real children behind the statistics.

Historically, Ireland is a very traumatised society. We swing between brief periods of remembering the reality of the society we live in and long periods of forgetting who it is we are. Who now remembers the Kilkenny incest case, Kelly Fitzgerald, the McColgans or the children in Monageer? The Ryan report has truly shocked Irish people and we have been shamed before the world. Every person sitting here has done interviews for media organisations from places as far apart as al-Jazeera and Japanese television, all wanting to know how this could have happened. Is this really the Ireland we want to live in?

We might like to think the abuse chronicled in the Ryan report is a thing of the past, but we know day to day it is not. Inevitably we will enter another process of forgetting as the shocking revelations of the Ryan report move into the back of our memories. However, we believe the committee has an opportunity to offer hope to all those children who are frightened and in danger. A referendum and a constitutional amendment would make a powerful statement that Ireland is going to be a different place where all children, regardless of their backgrounds or vulnerabilities, will be protected and cherished by the State.

Chairman

I forgot to say that members of this committee have absolute privilege, but that privilege does not apply to witnesses appearing before the committee. That is not a reflection on what Ms Lewis said. I now call on the chief executive of Barnados, Mr. Fergus Finlay, to address the committee.

Mr. Fergus Finlay

I do not have a huge amount to add. When the Ryan report was published, the Government undertook not just intensive work but also intensive consultation led by the Minister of State with responsibility for children, Deputy Barry Andrews, who is with us. We first came together as a group of organisations to try to make a contribution to the work the Minister of State was doing on that occasion when he was preparing an implementation plan in respect of the recommendations that the Ryan report made. We congratulated him then and do so now on the production of that plan, which has brought forward a wide range of resource measures, legislative measures and other changes that will in many ways make life better for children. Assuming the plan is implemented in these trying times, it will provide more resources and support. The Minister of State has acknowledged that the unfinished business is what to do about the Constitution. We came together again as a group and have done as much consultation as we could internally. We have got as much advice as we could and we have put in front of the committee a suggestion which we believe is a robust and strong set of words capable of being inserted into the Constitution. They are capable both of protecting families and children and of enhancing children's rights. As a group of organisations, we have no interest in weakening the position of the family. Our only interest is in promoting the welfare of children and their rights and in protecting them from harm and danger.

Having said that — and we are more than willing to answer any questions the committee might have — we are not claiming a monopoly of wisdom. We would welcome the opportunity to engage with other ideas, suggestions and proposals. However, when we came together we believed it was important to offer the committee the best and strongest wording we could come up with. We have tried to do that. I am not going to go through the wording. I simply want to conclude by quoting the very first line of the wording we have put forward. In the wake of dozens of reports, we think this committee has a real opportunity now and can make history in this matter. We have been motivated, as we think this committee is motivated, by one thing, which is the conviction that society and humanity owes to its children the best that it can give. It is on that basis we have put forward this proposition.

Chairman

Does any other member of the delegation wish to speak before I open it up to the members of the committee?

Ms Mary Flaherty

No.

Chairman

The questions will come, however. I am sure members have all read what was submitted some time ago and it was circulated. It is over to the members of the committee now if they wish to question the delegation. We appreciate the work the delegation has put into this matter and the fact its members have come together here today.

Deputy Alan Shatter

It is only fair to the organisations present that they should know where the committee is at the moment with regard to the work we are doing. Everyone here in one guise or another has made previous submissions to this committee which has been at this work for a very long time. It would be fair to say there is a unanimous view among the members of the committee that there should be a constitutional amendment, which is the basis on which the committee was created. I am sure the Minister of State will correct me if I am wrong in this but I think there is also a unanimous view that the original wording published in 2007 was defective.

Minister of State at the Department of Health and Children (Deputy Barry Andrews)

I will have to correct the Deputy on that point but I will let him finish his comments.

Deputy Alan Shatter

These are all issues we have been discussing in private so I can only say what I understood to be our position. I think it is time they came out in the open. There has been extensive discussion about the adequacy of the wording in the 2007 Bill. Up to a moment ago, it was my understanding there was a general view within the committee — on all sides, not on a party political basis — that the wording was defective and that a better wording was required. The committee has engaged in internal private discussions on the nature of the new alternative wording that might be brought forward. Arising from those discussions, we were waiting for the Minister of State to come back to us with proposals based on the discussions we had. That is essentially where the committee stands. The wording the delegation has presented to us is interesting. I do not think I should go into it in detail now. It addresses some of the problems that need to be addressed. It is problematical in some areas and it would be useful to tease it out.

There is a reality in this committee, however, which it is only fair to point out to the delegation's members, all of whom are committed to the issue of children and children's rights. I am saying this as someone who has been involved in this area of many years. This committee will make progress and there will be a constitutional amendment provided a consensus occurs. That consensus will be dependent on the approach taken by the Government to the particular wording it is prepared to agree should be put before the people. I do not think any political games should be played concerning this. This committee's remit runs out in a few weeks' time. While the Chairman may correct me, I think it is around 16 or 17 October, but I may be wrong. At this moment I am not optimistic as to where we are going. What the delegation has presented us with is constructive and will refocus on some issues on which I thought we were reaching some form of consensus without the technical draft wording we need. That is all I can say to the delegation.

I was interested in what Ms Lewis said in her presentation. I was somewhat disturbed by what I heard as someone who has some knowledge in that area. In circumstances where there is a genuine concern that a father has sexually abused a child, where social work intervention is available, and where a mother does not believe a father should have access to a child at all or certainly without supervision, there are legal mechanisms to enable that outcome to be achieved, those being under the Guardianship of Infants Act 1964 by proceedings taken by the mother or under the Child Care Act 1991, with which all the witnesses present will be familiar, by proceedings taken by the HSE. There are legal mechanisms which would enable that outcome to be achieved, namely, under the Guardianship of Infants Act 1964, by proceedings taken by the mother, or under the Child Care Act 1991, with which everyone will be familiar, by proceedings taken by the HSE. Regardless of a constitutional amendment, I do not understand why any family should be practically in that position. I do not say that to correct Ms Lewis; I am just concerned about the example she gave. If there is a family in that position, whether we amend our Constitution or not, under the law, there is the facility for intervention and protection of that child by the courts.

There are other areas in which Ms Lewis is correct in saying that there are circumstances in which perhaps the bar is too high and where the necessary intervention should occur to protect children. If a child comes to school in the circumstances she describes, under the Child Care Act 1991, a well-informed child care team working within the HSE should have available to it the legal army it needs to intervene. I do not understand why there would not be appropriate intervention.

I say this because too frequently over the years, I have seen families in difficulties because intervention, which could take place under existing law, does not take place. I hope Ms Lewis does not see this as me trying to, in any way, correct the examples she gave. They are examples of circumstances in which there can be intervention under current law. However, nothing she said undermines the need for a constitutional rights amendment.

This committee has had many private meetings and I have a genuine concern as to where it is heading on this issue. We have sat too long. We have produced two reports. The first report reached the conclusion that on the issue of soft information, a constitutional referendum was not required and that legislation should be urgently published. The report published in September 2008 requested that the Government publish legislation by way of a Bill before Christmas 2008. That Bill is has not been published and is not on the Government's recently published programme to indicate there is any prospect of it being published this side of 2010.

We dealt with the issue of statutory rape and there has been a difference of opinion on this committee. I am not revealing any secrets in that regard. The committee published a report and Fine Gael published a report stating that we should amend the Constitution in that area. Everyone had valid and sincere views on this issue. Whichever report is accepted, although I assume the committee report is likely to be accepted by the Government, we recognised there was an urgent need to tighten up the law in that regard in so far as we can without constitutional change. There is no sign of that legislation and no prospect of it being seen before 2010 or, I suspect, before 2011.

I am concerned this committee has become a talking shop about children's rights and concerns. I was interested in Mr. Finlay's comments on the Minster of State's response to the Ryan commission report. I hope the promises contained in it are implemented. Much of what is in it should have been implemented many years ago and should not have required the Ryan commission report.

I deplore the fact that a child care system operates in which there is no real time information on which the Minister of State, his office and the HSE can rely to know how many children have been reported to be at risk on a particular day or in the preceding months, how many cases have not been investigated and how many children remain at risk. I deplore the fact that it took until the Ryan commission report was published for the Minister of State to acknowledge that to be the case and the need for change in this area.

I am concerned we are still too sanguine about promises made. The issue of children's rights is hugely important. This committee has been adjourned since July on the understanding that specific proposals would be presented by Government and the Minister of State, with or without the help of the Attorney General, to allow us to advance those discussions. I arrived at this committee meeting to see a letter from the Attorney General's office indicating that will not happen. I do not know to where that will lead us and suspect it is something we will have to discuss in private.

It is not fair to the people at this meeting who have gone to the trouble of presenting this submission and of coming back to the committee today to pretend this committee is on the verge of presenting an agreed report with a proposed children's rights amendment to improve on, and replace, the original suggestion produced in 2007. I hope the work they have done might constructively contribute to the further discussion we need to have but I am not optimistic that will be the case. I do not want to play games with the people here.

Chairman

I thank the Deputy for his contribution. If this has become a talking shop, we have all contributed to it — some more and some less than others. The Minister of State wishes to correct a point.

Deputy Barry Andrews

What I said at the July meeting was that I was anxious to achieve a couple of policy goals, namely, that we recalibrate the weight in the balance of the rights of children more heavily in their favour and that we achieve equality in the Constitution in regard to all children, whether marital or non-marital children, and all types of families to which they might belong.

I said at that time I was afraid — I was advised largely by the advisers to the committee — the proposal from the Government was inadequate and that it did not achieve those goals. I undertook at that time to seek advice as to whether we could make improvements to the wording.

I have advice that clarifies the thinking that went into the proposal. The key point is that I have now been informed on a much better level of the thinking that went into the formulation of the wording as presented by the Government, the substantive rights issue. Broadly speaking, it achieves the two policy goals to which I referred in the July meeting.

I agree with Deputy Shatter that those policy goals are shared by everybody on this committee — in other words, we want the courts to weigh more heavily in favour of the rights of children where their best interests should be considered and that all children should be treated equally under the Constitution.

It has been said time and again — I believe Ms Lewis said it — that a powerful statement would be achieved by virtue of putting children's rights in the Constitution. Mrs. Justice Catherine McGuinness made that point many years ago. It continues to be a relevant issue.

I have read the Barnardos submission on behalf of the organisations and the legal adviser's critique of the submission and the wording, in particular. It underlines the difficulty achieving wording which achieves that recalibration without creating an internal contradiction in the Constitution.

It also underlines the fact that if we all wish to have a constitutional referendum recognising children's rights, we must achieve consensus and ensure that it succeeds because we will put the case back a decade if it fails and at least four or five years if it does not come out of this committee with a degree of consensus.

Deputy Brendan Howlin

I am glad the Chairman called the Minister of State before me because I had intended to be optimistic in what I wanted to say.

The work of the committee has been hard. There has been much talk — I say this by way of brief preamble — but the two reports the committee has published are very substantial bodies of work that capture real difference of views, which are sincerely held and were trenchantly debated here. It took time, and I hope they both will be acted upon by whatever decision the Government makes, particularly in the case of the second report of the committee.

On the final phase of our work which looks at "recalibrating" and strengthening the rights of children in the Constitution, I understood that there was a consensus that the published Twenty-Eighth Amendment of the Constitution Bill, which had attached a new draft of Article 42(A), was not fit for purpose, and that was the view of our legal opinion, namely, that it did not measure up to the recalibration that we wanted to achieve.

It goes back to the final point Ms Lewis made, that a constitutional amendment would be a powerful statement. The committee must make up its mind if it is a powerful statement we want to make or a shift in the legislative balances within the Constitution. It is a difficult and fraught issue to achieve the latter. It is much easier to achieve the former, which would be achieved by the Twenty-Eighth Amendment of the Constitution Bill, which would certainly do no harm to children, is a reference point for the courts to act, may well do some degree of good but which does not bring about that recalibration that I understood there was a consensus to achieve.

I wanted to put some questions about the submission from the group. The problem is that the net issue with which we are faced is that the "inalienable and imprescriptible rights" of the family set out in Articles 41 and 42 are not altered and, from the point of view of each of our individual legal advisers, one cannot state that here is a new constitutional provision that will change that without altering the first of these Articles because one cannot set conflict into the Constitution. That is the advice the committee received, that if one shifts, for example, the threshold of intervention into Article 41, which sets out the family defined already as the marital family, in fact, one might be lessening the intervention potential because one might be circumscribing it to the marital family alone.

These are issues with which we have been trying to grapple, but the first issue is one on which I am interested in the Minister of State's view, and on which I seek even further clarity. Is there a Government decision? Is there a view now that such recalibration is not to be attempted but that we will have — to borrow Ms Lewis's powerful statement phrase — this aspirational clause in the Constitution? From the Labour Party's perspective, as we made clear, we want to make a shift. We want, as this proposal does, the UN declared rights of children to be reflected in the Constitution too and that will be what we will try to achieve.

I thought we were close to consensus. After the Minister of State's intervention I am more fearful that such is not the case. We need to bring matters to a head. Perhaps it is as well to do this in a public rather than a private forum.

Deputy Caoimhghín Ó Caoláin

I join with colleagues and the Chair in welcoming the delegation here this afternoon. It had been decided in the July meeting — a point not already shared — that we would defer further meetings until such time as the Minister of State would present his proposals. That was where we hit a wall.

It has been the case in each of the earlier discussions that it is the Government which has come last after each of the other component parts of this committee have laid out their position in paper and repeatedly, and it leaves us all in an impossible position. Out of the earlier experiences we had indicated to the Chair that to have any further useful engagement we needed the Minister of State to spell out exactly where he and his Department stood and, indeed, where Government was looking at present, and that we would have the opportunity then to engage with something particular rather than our respective party propositions. We do not have that yet and the clock continues to tick. It is clear that this committee will not have a remit in the aftermath of the further extended date that has already been referred to.

Nevertheless, I am glad we have had the opportunity to come back today to meet with the group at its request. On the contribution the group has made in terms of the joint submission, I am not privy to what exposure it has had on the interpretation of its presentation by the legal advisers to the committee, that is, on the net effect of the proposition. This is something we have which is of interest.

We, in Sinn Féin, made a set of proposals dating back to 2006 on a constitutional change and I very much see the core elements of that reflected in what the group presented here for the committee's consideration at this point, and I welcome it. I am comfortable with the arguments the group has presented.

I have a couple of questions to tease out the matter a little. As I indicated, the committee has an assessment by the legal advisers to the committee of the joint proposals presented. On the group's propositions, has the group itself received a legal interpretation of the net effect of such changes on what are clearly, as others have already articulated, conflicting sections of the Constitution where undoubtedly there will be, if not an uncertainty, likely elements that will be overshadowed or outweighed by other elements of the Constitution already in situ? Is it possible to bring about the change for which the group argues while not addressing, for instance, the reality of the family in Irish society today, which is markedly changed from that reflected in Article 41.3.1°? Is it possible to bring about a situation where children in all of the various family situations that exist in Irish society today will truly have equal status, equal respect and equal regard guaranteed in the Constitution while at the same time one particular family entity is given greater weight over the many other different family situations that are very much a part of Irish society at this time?

Reference was made to the bar or threshold. On the engagement the group has had, can it give us a sense of the threshold for State intervention in the case of children of a non-marital family? How would the group interpret its propositions in that regard? Does it raise the threshold in respect of State intervention in certain circumstances and situations in respect of the children of a non-marital family or does it lower that threshold where there is concern regarding the children of a marital family? The latter familial model is strongly supported by the Constitution, as it currently stands.

I thank our guests and the various organisations they represent, not only for this most recent intervention but also in respect of their very much appreciated input during the entire process. I wish to acknowledge that said input has assisted me and my colleagues in formulating our own ideas. Go raibh maith agaibh.

Deputy Alan Shatter

I read through the draft with which we have been presented when it was forwarded to us by the organisations. The legal advice that has been circulated to members may well have been distributed at an earlier date but the first time I saw it was during this meeting.

Chairman

It was circulated yesterday.

Deputy Alan Shatter

That is fine. I have only just had an opportunity to read it. I do not expect our guests to be obliged to sit down and pore over what is an extremely technical document. However, in fairness to them and the work they have done, it might be a good idea to release the legal advice we received to them. There is nothing confidential about it and it would——

Chairman

We will do so later but not right now.

Deputy Alan Shatter

——provide an understanding of some of the difficulties that have been raised by members with regard to the submission.

Chairman

Obviously we will be obliged to ask our legal advisers whether it is possible to publish the advice.

Deputy Caoimhghín Ó Caoláin

Having exposed the fact that we have the legal advice — by doing so I was hoping to whet the appetite of our visitors to secure copies — I support Deputy Shatter's proposal.

Chairman

We cannot make copies available during the meeting.

Ms Ellen O’Malley-Dunlop

I commend the committee on its two previous reports. I look forward to their being implemented. I am confident that they will be implemented, particularly in view of the fact that members invested so much effort in compiling them. The committee provided us with a lead in that the various organisations we represent have come together and placed their separate agendas to one side in the interests of drawing up the document with which members have been presented. I thank the committee for that.

Deputy Shatter initially stated that the committee is going to recommend a constitutional change but as his contribution progressed I became less sure as to whether that is the case. I also was not sure, on foot of Deputy Howlin's contribution, whether the committee will recommend such a change. Is the committee going to recommend a constitutional change?

Deputy Brendan Howlin

There is a published Bill with a constitutional amendment attached. The committee was established to examine whether that amendment or an alternative should be put to the people. We were charged with deciding whether the published wording is fit for purpose or whether a different or better form of words should be used.

Ms Ellen O’Malley-Dunlop

Is it correct that the committee is recommending a constitutional change in principle?

Deputy Alan Shatter

As Deputy Howlin stated, the committee was formed because there was not a political consensus with regard to the wording contained in the 2007 Bill. A number of members are on record — as are many of the groups, organisations and individuals who made presentations to the committee — as expressing concerns about the published wording and suggesting that amendments be made. Our guests have placed before us a very elaborate alternative proposal.

On foot of all the discussions that have taken place, I think it is fair to say — I am subject to correction on this — that there would be a general view among members that the current constitutional position is unsatisfactory. Until the Minister of State's intervention today, I had thought we had reached a consensus view. That view was reached in July and is to the effect that the wording contained in the draft Bill is equally unsatisfactory and, to appropriate Deputy Howlin's description, not fit for purpose. My understanding was that, as Deputy Ó Caoláin stated, the Minister of State would, in light of our discussions, come forward with an alternative wording.

I am loth to take advantage of the Minister of State who is not feeling well. However, it seems that despite all the discussions in which we have engaged and the submissions we have received, there has been some possible evolution from where we thought matters stood at the end of July and in early September to a position where the Government is saying that its view on what should be included in the Constitution is contained in the 2007 Bill. That development is as new to me as it is to our guests and a degree of clarity is necessary in respect of it. If that is the Government's position, I must state that I regard what is contained in the 2007 Bill as not only being unfit for purpose but also as being dangerous. The wording to which I refer could actually undermine some existing protections in our statute law in respect of children. That is my perception of how matters stand.

Deputy Barry Andrews

This is obviously a deliberative process. The committee has mostly dealt with the matter in private session. There have been two meetings since July. Matters have evolved very quickly. I outlined, as frankly as possible, the policy position. In view of the deadline towards which we are working, I did not want to wait until later than this meeting to make people aware that the advice I received was that the proposal was given serious consideration by the Office of the Attorney General in 2006 and 2007. It had tried to achieve the policy goals on which I think we agree. The view is that if the people decide to adopt this proposal as part of the Constitution, the Supreme Court cannot ignore it and cannot hold the people to have acted in vain. If the people vote in favour of the proposal, then it must have some legal effect. That is the way the Supreme Court must interpret the Constitution.

We cannot anticipate the circumstances or outcome of any given case. In that context, I refer to the Baby Ann and PKU cases. However, we can for the first time make a positive statement for children and allow for an equality of children as outlined in the proposal.

In light of the timeframe involved, I have tried to deal with this matter as quickly as possible. I have not come before the committee with a written proposal because I am conscious of the fact that we are not meeting next week and that by the following week the deadline will be too close to allow a proper deliberation on the existing wording. In reality, there has been no deliberation on that wording. We received some advice from the legal advisers but matters have gone no further than that. I am of the view that we should take advantage of the opportunity afforded by this meeting and ask our guests to indicate the shortfalls they perceive in respect of the existing wording.

That is the position as I see it. I can only spell out the policy. I have sought advice on whether the goals relating to that policy can be achieved with the existing wording. I would like to try to achieve a consensus on that.

Chairman

During the committee's private discussions, members were of the opinion that the rights of the child had to be strengthened and that the proposed wording contained in the original Bill was not sufficient in this regard. We reached an impasse — this was also reached by our guests — with regard to the fact that it is not possible to write conflict into the Constitution. That is the difficulty and if we are to recalibrate the rights of the child vis-à-vis the rights of the family, marital or non-marital, that is the first question. The Minister of State was very clear on this in the policy position he put forward. All children should be equal, whether they are from a marital or non-marital family; therefore, we have to have a wording to get that in, if we believe in it, the Constitution. While the document put forward by the six groups presented the opportunity for the recalibration, it also imposed a conflict; one cannot set conflict in the Constitution. That is what we found difficult. I recall Senator Corrigan asking early in these discussions whether there was any way the rights of the family could be balanced accurately against the rights of the child but it does not appear from this submission that that could happen without conflict being imposed. The Minister of State in his frank policy paper told the committee that his wish was that the rights of children in marital or non-marital families should be equal. There should not be differentiation but the family is recognised in the Constitution as being based on marriage. How do we address the marital and non-marital groups without coming into conflict with the original article? Have the groups come to that conclusion?

Mr. Fergus Finlay

We are at a slight disadvantage in that we have not seen the legal critique of our proposal that the committee has seen.

Chairman

I am just putting this point to the delegation.

Mr. Fergus Finlay

No more than anybody else, none of us wants to plough through what Deputy Shatter described as "a long and technical analysis" of our document, although I am sure our legal advisers would love to have a go at it. That is the way it was described but I have not seen it.

I am sure the committee has discovered that if one talks to 17 lawyers about this problem, one can easily get 17 solutions, whether they are lawyers, solicitors, junior or senior counsel. However, in all our consultations we emphasised that we were not anxious to amend the Constitution when it came to families. It is not what we are about. We are anxious to amend the Constitution when it comes to children and our first objective is to ensure all children are equal within the Constitution and that there is no dispute about this.

Chairman

There is no a dispute on that point, whether they come from marital or non-marital families.

Mr. Fergus Finlay

Our wording says: "All children are equal regardless of their family background or status". That is the first thing we want in the Constitution. The second thing we want is an enumeration of rights. I do not have the previous Bill in front of me but, in my recollection, there was no specific enumeration of rights. The legislation also dealt with a number of issues which have been disposed of by the committee since; therefore, it is redundant to some extent. We examined two possibilities. The first was to set out in specific terms a number of rights children should have and the other was to refer specifically to the United Nations Convention on the Rights of the Child. I presume the Minister of State knows his father lodged the instrument of ratification relating to the convention, which is something to be proud of. The third issue is conflict where the rights of parents and children are concerned but only in so far as it creates a situation where children cannot be protected.

All of us, as individuals and organisations, believe that in the vast majority of cases where the welfare of children is at stake, their families will have the right answers and we are only interested in situations where children are at risk and their families do not have the right answer or where they are the problem. In our view, one cannot give effect to this in the Constitution without deleting Article 42.5 and replacing it with something else, which is what we have done. It is not entirely accurate to say we did not touch Article 41 or Article 42. We did not touch Article 41 but proposed to change Article 42 in that key respect because that is where the barrier is.

I take Deputy Ó Caoláin's point that, as things stand, children from marital families are in a different position from the children from non-marital families. That is what the Constitution states.

Chairman

We wanted to change that.

Mr. Fergus Finlay

In making all children equal one would, therefore, be changing the position. We do not want to make it easy for the State to intervene in families. We all have enough experience in this room to suggest that is not a good idea. We only want the State to intervene in families in exceptional circumstances and in a proportionate and appropriate way. We do not advocate that it should be easy for the State to intervene in families but we do advocate that in situations where children are at risk, the State must have the right to intervene. That is what we propose.

Chairman

I did not refer to that issue of conflict. I referred to where conflict was apparent. The Constitution recognises the family as being based on marriage, whereas we are of the opinion that a child is a child whether he or she comes from a marital or non-marital family. That is the conflict. How will we recognise this in the Constitution without causing a conflict in the wording which the Constitution cannot tolerate by superimposing an article on an article already in place?

Mr. Fergus Finlay

It would be helpful to us to receive the legal critique the committee has and perhaps have an opportunity to critique the critique.

Chairman

My comments are based on what is in my head, not on legal advice.

Mr. Fergus Finlay

It would be delightful to think the Chairman had legal advice in front of her which indicated we had not gone far enough in our proposal.

Senator Alex White

I have read the document to which we keep referring. It does no more than point to difficulties and potential conflict between what has helpfully been proposed and what will still be in the Constitution. I do not speak as a lawyer. It is not a question of lawyers and different views and advice. It is advice in the sense that it is an analysis but not in the sense that this is a better or different way to do this. However, that is not what our legal advisers have been asked to do.

I share the frustration of Deputies Shatter and Howlin regarding what the Minister of State said because I understood for many months that the committee had a view which may not have been expressed by every member and that we had reached a consensus that the original wording was not fit for purpose. That was the basis on which I was operating. The burden of what was said to us in terms of legal analysis was, ultimately, it would not achieve very much of substance because a number of overarching constitutional principles would still be in place that would risk rendering the original proposal not particularly powerful. It would not be the powerful statement we discussed and would be close to meaningless. I am not paraphrasing the lawyers but it did not take us along the road we all want to go and it certainly did not take us too far down that road. Like others, I am now very frustrated that it now appears to be signalled that we are going back to that — or the Government is of the view that this is the answer. I do not want to be overly critical but there is no use in this committee saying after two years that we put something into the Constitution on the basis — I do not wish to be unfair to the Minister or to play with words when dealing with such a serious topic — that the courts would have to have some regard to it. In my view that would be an abuse of our position as a committee. We could not in conscience argue that to the public, that we would change our Constitution on the basis that it would be, as it were, some contribution down the road that we want to go. In my view we have reached a very serious situation but one that might actually be a good turning point for us because we have a basis for dialogue. I wish to make the point as strongly as I can that most of the prominent organisations that have taken an interest in this topic are in this room now and one or two others have been here previously. We should have a dialogue that is not simply just coming with a set piece and presenting a document to the committee and sending our advice in the post and so on. If we really want to do something by the end of October there should be a weekly if not daily dialogue——

Chairman

Interchange.

Senator Alex White

The Chairman asked whether this can be achieved in the context of this awesome provision in the Constitution regarding the family which is really over-arching. Article 41.1.1° states:

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

It is very difficult to find words that could be more superlative, that one could set rights that would be higher than those rights described there. On the question of whether it can be done——

Chairman

Within the Irish context.

Senator Alex White

The question is whether we want to do it. As a broader community do we want to do it? Do we want to face up to the fact that — I hate the cliché of the elephant in the room — that elephant in Article 41.1.1° is still going to be there, unless it is addressed in a serious way? Otherwise it will just be the one-liner that the Supreme Court, hopefully, will have some regard to and that ultimately it will not bring about change. There is an important moment here. Do we want to have real change or do we simply want to have one line proclaiming that children are important and are valued in the Constitution? I do not want to sound like I am saying that this would not be an important statement to make because I do not wish to trivialise it in any sense. However, as Deputy Howlin said, the question is whether one wants to go further or whether one wants it to have a practical effect. That is the question and that is the point we have arrived at.

Chairman

Before I call Deputy Enright, it was noted when we were speaking informally that in matters to do with local authorities and education, children were regarded as equal, whether they came from a marital or a non-marital home. That is a fact of life now, thankfully. Local authorities were very quick, 30 or 40 years ago, to deal with that in their treatment of families looking for housing.

Deputy Alan Shatter

I wish to ask a brief question, Chairman.

Chairman

Sorry, Deputy Enright will have to give way to the Deputy in that case.

Deputy Olwyn Enright

I am happy to give way.

Deputy Alan Shatter

I am confused at this stage as I am sure is everyone else. This committee was set up in December 2007 and its remit was to see if a consensus could be reached on wording for a constitutional amendment regarding children's rights. It would be important for the Minister of State to clarify what he is saying today. Is he saying that the wording contained in the Bill based on his discussions in recent weeks are now set in tablets of stone and there is no possibility from the Government, Fianna Fáil, Green Party side of any amendments to that wording? If that is the case, we are all genuinely just engaging in some form of mutual psychotherapy. If that is the case, let us acknowledge it. The very start of this process was based on an assumption that we were travelling down a road to produce a better proposal.

Deputy Olwyn Enright

It is almost like we are having two meetings here. We invited in these six groups to discuss their proposed wording——

Chairman

We asked everyone if they wished to meet them.

Deputy Olwyn Enright

Yes, we are perfectly happy to meet them but we did not realise when we agreed to these groups coming here that a bombshell was going to be dropped to tell us that the political reality is that there will be a return to what was published in 2007. We are trying to have a discussion about the wording and at the same time trying to have a discussion with these people about their views on a better model when we had our own views on what we could be doing as a better model and now we do not know whether we are all wasting our time. Senator Alex White wants to have a dialogue and I agree with him but there is no point having a dialogue with anybody if we are not going to be able to make changes. That is the first point which needs to be clarified for the committee.

Everyone here wants to ensure that it is enshrined in the Constitution that all children are created equal but what was published in 2007 does not achieve that, in my view. With regard to the legal advice to which the people opposite are not privy — there may be reasons for that——

Chairman

It is not advice; it is an analysis.

Deputy Olwyn Enright

Fair enough, an analysis.

Deputy Alan Shatter

It is an analysis which they should be getting, it is as simple as that.

Deputy Olwyn Enright

We nearly need a special meeting so that we can go through these points one by one with them because if they are not able to read them and actually engage with us on them, we are wasting our time in a sense.

Chairman

We are not wasting our time because I think Senator Fitzgerald has identified — as I had identified earlier — the elephant in the room which is the clause in the Constitution relating to the family.

Deputy Alan Shatter

That elephant has been in the room from day one; it is not a surprise visitor. The conversation we are now having is bordering on Alice in Wonderland because we have a group here and the committee is discussing a document which the group members have not seen and we have a Minister here telling us that although this committee was formed with a particular purpose, the provisions contained in this proposal which were published in 2007 may be cast in stone. I think we should clarify where we stand.

Ms Mary Flaherty

It has been a very interesting meeting and not what we expected. We have all been on journeys for the past year. What has been really helpful is that to a degree what remains on the table is the net issue. I know that the committee's work was not all done by consensus but in public terms and in terms of achieving something, it is down to the net issue and this is really helpful.

On the question of journeys, when CARI submitted its response as an individual organisation I said that in my view a simply-worded statement, even along the lines of what the Government had proposed, would be helpful. However, consistently since then, as we have researched and taken advice, I have come to accept that in fact it could actually worsen the situation unless there are some amendments to the other areas such as the areas of the family.

CARI has made its own limited proposal. Like the committee, CARI was a bit hesitant in putting forward a very serious and complex set of amendments to all the articles that could be amended. There are very real issues but if we just have a statement and the articles relating to the family remain as over-arching, it could make for a worse and certainly not improved situation in all critical issues. If the family is still over-arching it could still be interpreted in that way.

It would be helpful for the committee to hear our analysis. I believe there is a unique opportunity still and it looks like all of us in this room would like to see this opportunity taken. If the dialogue can continue and deepen that would be very helpful and we would be very happy to contribute what we can.

Chairman

I remind members it is unhelpful to have side meetings.

Mr. Fergus Finlay

I wish to make a point in support of what Ms Flaherty has said. To say we would welcome dialogue would be an understatement. We would be very keen to be involved in dialogue. We have approached this as outsiders looking into this process. We have been very conscious that a number of phases are involved. Presumably the committee wants to make a recommendation. The Government will need to consider that recommendation and decide whether to draft a Bill, and at the end the people will need to decide. I presume it is in all our interests to put together the strongest possible amendment that the people would carry.

Ms Fiona Neary

I am poised waiting to hear the Minister of State clarify whether there is a wording that will now be reverted to. Regardless of individual examples that might be given here today, all of us as agencies meet hundreds of thousands of people who are victimised in their families every year. Therefore we would seek the insertion in the Constitution of the strongest possible wording of children's rights. As Mr. Finlay said, perhaps we did not go far enough. Even though we have not been able to see the analysis as the committee has clearly explained, we also came up against some of the difficulties the committee has in that if we leave the overarching principle in there we run the possibility of ending back almost at square one because there will be an ongoing contradiction. Obviously we would go away again and, like the committee, continue to engage constructively in it. However, it may be that the nettle now needs to be grasped given what we all know about the family being so unsafe for some children. It does not sound like the proposed wording delivers that.

Senator Frances Fitzgerald

I apologise that I did not hear the Minister of State the first time he spoke on this. Is it now the Government's view that the original article gives the strongest protection it believes is legally possible at the moment? Is that the Government's legal advice? That is different from what the committee had understood. Is this a Government decision or is it just legal advice it has at this stage? What is the status of the statement the Minister of State has made that the original article is what the Government will now propose, if that is what he has said?

Chairman

The Senator is putting that question through me to the Minister of State.

Deputy Barry Andrews

I cannot speak anymore.

Chairman

Is the Minister of State saying Senator Corrigan will speak for him? Your moment of glory has come, surely.

Deputy Barry Andrews

It is not a Government decision. It is up to the committee to decide what it wants to submit to the Government and then the Government will make a decision.

Deputy Alan Shatter

Now we are descending to the level of farce and deferral for three years.

Chairman

It is not a Government decision. I call Senator Corrigan.

Deputy Alan Shatter

This is outrageous.

Chairman

Senator Corrigan wishes to speak. Everyone else listened to the other contributions and I would like Deputy Shatter to listen to her.

Senator Maria Corrigan

The first few points I need to make are on behalf of the Minister of State who is finding it difficult to speak at the moment. I am sure if I misrepresent him he will let me know very quickly in some way.

Deputy Alan Shatter

As there is no possibility of swine flu, we do not need to be immunised or anything.

Chairman

We have had enough of that carry on. I ask Senator Corrigan to continue.

Senator Maria Corrigan

The Minister of State was keen to emphasise that a large degree of commonality has been reached as a result of the work of the committee. For the information of the committee, further to the first interim report of the committee on soft information, legislation is being prepared at present.

Chairman

That was put forward by Deputy Shatter.

Senator Maria Corrigan

With regard to the second interim report——

Deputy Alan Shatter

On a point of information, it is not on the programme of Bills to come before the House this side of Christmas. The formula is being prepared as applied to——

Senator Maria Corrigan

May I finish?

Deputy Alan Shatter

——the genetic fingerprinting Bill for the past ten years.

Chairman

Deputy Shatter, Senator Corrigan is just as entitled to be heard as you are.

Deputy Alan Shatter

Absolutely.

Chairman

I ask Senator Corrigan to continue.

Senator Maria Corrigan

With regard to the second interim report being produced by the committee on absolute liability, it is expected that a Bill will be before Government by the end of this year.

Deputy Barry Andrews

The heads of a Bill.

Senator Maria Corrigan

The heads of a Bill will be before the Government by the end of the year. There does not appear to be any dispute concerning the provisions on adoption and there seems to be consensus. The outstanding issue is the recalibration of children's rights. It still remains within the remit of the committee to make a recommendation regarding the proposed wording that will then go before Government for its consideration.

Deputy Brendan Howlin

Will the Government make a submission to the committee as we understood it would, as all the other parties did and as it did on all the other modules we have considered or is the Twenty-Eighth Amendment of the Constitution Bill as published the Government's submission?

Deputy Barry Andrews

Yes. However, I would like to give some clarity as to the thinking behind it and why the Government is of the view that it should advance matters along the policy lines we outlined previously in order to help people to recognise it is an opportunity to improve children's rights in the way they are interpreted in the courts. I know there is negativity towards it. As has been said, if one asks 17 lawyers one will get 17 views, with respect. Therefore, we need to do our best within Article 41 in terms of it holding a major gravitational pull on the entire area and progress as much as we can with the strongest possible statement. We have a window of opportunity to do this here. We need to recognise that if it is going to succeed——

Deputy Brendan Howlin

The Government should submit a paper to us.

Deputy Barry Andrews

I wanted to bring it to the committee's attention today. I got the advice only yesterday and have not had an opportunity to put together an explanation as to where this all came from in 2007, which might be helpful. Because of the timeframe, I wanted to put it in people's minds as early as possible so that we could work on it in the same spirit as we have achieved in the matters outlined by Senator Corrigan. We have achieved 80% agreement on so many issues and progress on all those issues. There is now a net issue about substantive rights. As Senator Corrigan said, adoption is fine. Perhaps we can make that progress in coming weeks.

Deputy Caoimhghín Ó Caoláin

With no disrespect to the Minister of State, it has been like trying to pull teeth to get to this point. We have been here for an hour and 20 minutes. At last the Minister of State has shared information that comes as a significant shock to me and I expect to other members of the committee. We have been waiting for the Government's position given that we all understood that what had been there, which was the basis on which we were given a brief for improvement, was not going to do the business. We still do not have it. The Minister of State has indicated to us that this has been advised only as of yesterday. The letter of the Attorney General clearly indicates that he gives advice to the Government and not to the committee. I presume there is some linkage between that and this.

Chairman

We got that a week ago.

Deputy Caoimhghín Ó Caoláin

I see that it is dated 11 September. However, there may be some linkage between that and what is now being exposed by the Minister of State.

Friday, 16 October is the deadline. Given that there is no sitting and the import of what is being addressed, we need to set our next meeting such that in the interim the Minister of State circulates the precise Government proposal. We do not want to wait until the week after next. It should be prepared preferably before the end of this week and circulated so that we have it for consideration individually next week. We should come back here properly informed and properly prepared to go through that in some considerable detail. The greater number of us have brought forward our proposals on this issue. It is painful to come to this point at the 11th hour plus and be presented with this situation. We thought we had moved away from it and were moving progressively to a better place.

The joint committee could continue self-flagellating for another hour. We need to set down the steps that must be taken. First, the Minister must commit to circulate to members the Government position and the explanation to which he referred setting out the reasons the Government takes its current view based on whatever advice it has received. The committee should have an opportunity, either on this day fortnight or in accordance with the wishes of members, to get down to work in a serious way.

In addition, the advice we have been given on the document presented by the visiting groups represented by the delegations before us should be shared with them to give them an opportunity to consider it and take further advice. They, too, may then wish to give the joint committee their view of such advice or further legal opinion, as sought in the coming week. We should have this further information to hand when the committee next meets.

Chairman

What we have received from our legal advisers is not advice but an analysis of the joint proposal. This analysis is now our property, having been given to us by the legal advisers, and will be furnished to everyone.

Ms Ellen O’Malley-Dunlop

I seek clarification of a matter. I presume the Minister's proposal is being brought before the joint committee for discussion. We have come before the committee to discuss our proposal. Is that not correct? We have not yet done so. As Ms Neary stated, the difficult issue to grasp is the family.

Chairman

Yes.

Ms Ellen O’Malley-Dunlop

To take the outpouring in response to the Ryan report, the Sexual Abuse and Violence in Ireland Study states only 3.2% of people who were abused were abused by the clergy. As Ms Lewis stated, every second person who comes into our centre has been a victim of childhood sexual abuse. In 64% of these cases the perpetrators were family members. We must, therefore, look at the family, which is the issue we are avoiding here.

Chairman

We are not avoiding the issue of the family. Senator Alex White and I put it clearly to our guests and not in an accusatory way. One cannot say one wishes to treat all the children of the nation equally and then suggest one will deal only with children born into a family context. One cannot do this because it would create a conflict as regards children from, as it were, non-marital homes. We wish to treat all children equally.

Ms Ellen O’Malley-Dunlop

When we worked on this, we knew it was not written in stone. Our proposal is our best current thinking.

Chairman

Yes.

Ms Ellen O’Malley-Dunlop

We do not expect it to be the finished product. We believe it is something we must put to the people who will be very sensitive around the whole issue of the family.

Chairman

Yes, they will.

Ms Fiona Neary

I believe Senator White is asking whether our group recognises the conflict that must be addressed and where we might fall on that issue and stating this dialogue might usefully continue. Without having had a full opportunity to consult the group——

Chairman

We recognise that.

Ms Fiona Neary

We will engage in full consultation. However, given our experience, most of us will return to the joint committee to argue that in terms of the rights of children, more rather than less is needed. However, it continues to sound as if the current proposal, if that is what is being reverted to, is a case of less rather than more. We would welcome an opportunity to continue to engage constructively as it progresses.

Senator Maria Corrigan

I would like to speak on my own behalf. I thank the delegation for its very interesting presentation. I am aware the meeting will have been an unusual experience for our guests. However, the proposal and their individual contributions have been thought provoking.

It is necessary to refer to what has emerged from the Minister's comments. The joint committee appears to be faced with doing the same work it was established to do. We have been asked to consider the proposed wording of the amendment, aspects of which relate to soft information and absolute liability. We have done this and reported back. Other aspects on which we have not yet reported back remain to be addressed. These include the substantive issue of children's rights. We have invested a considerable effort in considering the issue and the Minister of State has indicated that, irrespective of the contents of the report we produce, it is desirable from the Government's point of view that the committee reach a degree of consensus on it. This is the work the committee will do in the next three to four weeks. At that point, it will a matter for the Houses and the Government to consider the report we submit.

It has been helpful to hear the comments of our guests on the family. The issue of family was first flagged at an earlier meeting of the joint committee when we invited submissions from groups on the proposed wording. Some of the submissions received reflected a polarised position. At that point, members indicated that we were keen to try to ensure this did not become a debate in which the rights of the family were set against the rights of children——

Chairman

That is what the debate about.

Senator Maria Corrigan

——as that would be destructive for everyone.

Chairman

We cannot avoid it.

Senator Maria Corrigan

For this reason, issues regarding the family became a focus.

The delegation has made an informative contribution. Rather than having a destructive debate, members believed that, as the referendum related to the rights of the child, it would be of benefit to the family. In the vast majority of cases, the most powerful advocate on behalf of the child will be the family. A substantive vindication of children's rights arms the family much more in ensuring these rights are implemented. I thank the delegation for its presentation which will inform our work.

Deputy Alan Shatter

As a joint committee, we should apologise to our guests because this has been a rather odd meeting. I listened with interest to Senator Corrigan, for whom I have a great deal of respect, but we must be realistic about this issue. The context for the manner in which decisions are made in this committee is that the different political groupings put forward their views and proposals. We developed a consensus on the soft information issue because the legal advice was that it did not require constitutional change. However, when I tabled parliamentary questions about the reason for the Government delay in producing legislation, I was told it was a complex area concerning balancing rights. That issue appears to be going around in ever-decreasing circles.

For the benefit of the media, we should tell them to not take seriously the comment that the heads of a Bill will be available before Christmas for the reform of legislation and to provide greater protection for children against sexual attack or sexual predators. I am sure somebody will write tomorrow morning that we will see legislation before Christmas. The heads of a Bill entail somebody writing headlines of what might be in a Bill that might be published in 2010 or 2011. I suspect there is no chance of legislation being enacted this side of autumn 2010 at the earliest.

God knows when we will have the legislation on soft information. On that issue and the need for dialogue, it is unfair to give groups work to do unless something is going to come of it. I say that at this stage more in regret than in anger and probably in a state of mental exhaustion with this process.

To come back to where we started, the committee was set up to see whether we could agree a consensus on a children's rights amendment to the Constitution. In a sense, we have disposed of two particular issues. We have the remnants of the proposal put forward initially. It does not appear to be controversial in dealing with adoption matters but from the first meeting of the committee when it came to children's rights, I and others made presentations on the inadequacy of those provisions. That inadequacy is happily incorporated in one sentence in the first proposed new provision where it is stated, "We should simply say the State acknowledges and affirms the natural and prescriptable rights of all children." It was noted that unlike other personal rights in the Constitution, that would not require the State to defend and vindicate those rights. That was a classic flaw in the provision.

Without in any way insulting or distressing our senior and junior counsel, large sums of public money have been spent on them being compelled to give this committee multiple papers and advice about how including such a provision in the Constitution is largely a complete and utter waste of time and will not do anything for children's rights. I am exhausted with the game playing that goes on if the Minister of State is saying that the Government's view is that we are back where we started approximately two years ago.

In order for the committee to reach a consensus, the Fine Gael Party could produce a presentation on behalf of the members of the Fine Gael Parliamentary Party in the committee as to what we would like to see in the Constitution. I have no doubt the Labour Party and the Fianna Fáil Party groups could do the same. Then no doubt the Fianna Fáil group would present us with the 2007 Bill. It will not produce an amendment that is different because of the internal discipline of the Fianna Fáil Party. The Minister for children is now saying he suddenly realised after all that that is the amendment that should be made.

This may sound rough but the Minister of State has had special responsibility for children and young people since May 2008. I would have thought that he would have discovered before yesterday what was his view and that of his party, and what was the basis for the original amendment proposed. His immediate predecessor the Minister, Deputy Brendan Smith, and before that the Minister, Deputy Brian Lenihan, seemed to know the basis for it. I understood that we were travelling a new route but it is clear that we are not. I do not know whether this is Fianna Fáil policy or Government policy but it is Government policy to say that despite all the work we have done, the view is that the original Bill is where the matter stands on children's rights.

If that is so, the other members of the committee on this side of the House — I would not deign to speak for colleagues in the Labour Party, Sinn Féin or Fine Gael as we need to all discuss the matter — need to determine whither now this committee and what is its purpose because there is no point in meeting continuously to make no progress of any description and there is absolutely no point in putting a totally flawed, possibly dangerous amendment to the people on children's rights to create the perception that we are doing something to protect children when in reality we are not.

The mystery to me is not the elephant in the room but the elephant that is missing from the room. We should probably have a birthday cake as I understand this is the 50th meeting of the committee, albeit some were held in private and many in public. If we were getting somewhere that would be a cause of celebration. The elephant not in the room is the other partner in government, namely, the Green Party. I recall that when the committee started, Deputy Gogarty showed up three or four times. I presume he is a member. I have not seen him attend for at least 18 months. I do not know to what extent the Green Party is contributing to any of the discussions.

I have a vague recollection that subsequent to the publication of the Ryan commission report — it was possibly the day after both the Minister for the Environment, Heritage and Local Government, Deputy Gormley, and I had spoken on the report in the Dáil, he got good headlines in The Irish Times and possibly a praiseworthy editorial for his call on his colleagues for a constitutional referendum on children’s rights and laudatory comment. I persuaded myself at the time not to react to it because I found his interest in children’s rights something of a mystery considering Deputy Gogarty’s continuous absence from all deliberations of the committee and the total failure of the Green Party to feed into anything that was decided on soft information, statutory rape and children’s constitutional rights.

Chairman

No member of the Green Party is present so I do not wish to have this discussion.

Deputy Alan Shatter

There has not been for some time but apparently a Green Party member is on the committee.

Chairman

I would like to hear from Mr. Balbirnie.

Deputy Alan Shatter

I do not know whether the Green Party has any interest in this issue at all or takes the matter of children's rights any more seriously than seeking headlines on a bad news day in The Irish Times. Subject to anything that our guests wish to say, we should probably adjourn to allow members of the committee an opportunity to reflect on where the committee is going. I do not know what new paper the Minister of State can present us with to persuade us that the flawed provisions in the Bill published in 2007 should be adopted by the committee when the counsel to the committee has with great rigour and care explained to us over almost a two-year period the inadequacies in those provisions.

Chairman

I thank the Deputy. Before I invite Mr. Balbirnie to make his input, I do not intend to apologise to any one of the six members but to thank them for attending and for the work they put into the submission and the way the meeting has blossomed — that might be too euphoric a word – but the way it has opened up. I appreciate that, as I know do the other members of the committee. We appreciate very much not just the work Deputy Shatter has done today but the ongoing and everlasting work he does for children.

Second, while the Minister for children has given us some viewpoints, albeit with a fractured throat, I do not agree with everything I have heard. I would recommend a hot whiskey. I have not fully absorbed what he has said. It is up to us as a committee to come up with out point of view. That is what I wish to do. To my mind and from the Fianna Fáil point of view, this is not the original Bill. I do not agree that it improves the rights of children. That is my opinion and I am entitled to say it. As a Deputy and as a member of Fianna Fáil I do not agree that the Bill makes the rights of children any better.

I propose that we, as a committee, having absorbed what the six participants have told us and they, in turn, having absorbed the analysis from the committee's legal experts, engage in another fruitful meeting with the witnesses. Perhaps it was Deputy Howlin who asked that we engage in that manner. The views I expressed are my views and I am fully entitled to do so. They are borne out of wisdom and dealing with constituent's difficulties and problems. One does not have to be a legal person to understand what is happening in the real world. We were put on this committee because we have knowledge of life as it is lived or, as in many cases, badly lived to the detriment of children. If the net result of all we are to say today is that we do not agree that the wording of the 2007 amendment better serves children, I will make that point and state the committee found it very difficult to come to grips with reconciling how to keep the article on the family in the Constitution while still saying it wants to treat all children equally. I want that resolved somehow. One cannot say one wants an equal balance because there is not an equal balance while that provision is in place. That is certainly my conclusion, not from a legal perspective but from common sense.

I regret I took Mr. Balbirnie's place and we are very glad he is here. His organisation has many years of experience dealing with children.

Mr. Ashley Balbirnie

I realise the committee wants to wrap up and I do not want to delay proceedings; suffice it to say the words used about the meeting were "strange" and "unusual". It has been a little strange for us also. We probably feel like we have been invited to somebody's house and have arrived in the middle of a family row.

Chairman

All the best families have them.

Mr. Ashley Balbirnie

In that situation, one tries to get towards the door and come back at a better time. We would like to come back at a better time but would like to stress before going that we believe significant change is required in this area. That does not need underlining at this stage. I hope our presence today and the document we presented show we want to play an active and positive part in effecting that change. Organisations such as ours do not want to be described as absolutist, as is sometimes the case, such that no matter what comes forward they want something different or better. A very conscious decision was made on our part to put something into the mix. We have been at pains to say we do not believe it to be absolutely perfect, by any means. However, we hope it will be a useful contribution to the process. The process is important and needs to move faster. We would like to play a positive part in that regard.

If we have arrived at a bad time, we apologise, but we would like to visit your house again when the timing is better.

Chairman

I thank Mr. Balbirnie.

Deputy Alan Shatter

The middle of a family row.

Chairman

Put away the sherry bottle.

Deputy Tom Kitt

I was chairing a meeting of the Joint Committee on Arts, Sport, Tourism, Community, Rural and Gaeltacht Affairs next door and apologise for my late arrival at this meeting. I have been reading the delegates' submission and thank them for it. I will be working with them and I like what the Chairman has just said. This meeting has obviously been of some benefit.

Deputy Olwyn Enright

I am conscious of the procedure. This committee will be in existence for another three weeks and it is assumed that we will not return to this matter next week. I do not know whether that is agreed.

Chairman

The Dáil and the Seanad are not sitting.

Deputy Olwyn Enright

If that is the case we have two weeks left to work on this issue. The delegates have proposed substantial changes and we will have to discuss them, bearing in mind that we have not agreed on a position ourselves.

I welcome what was said and that members of the Chairman's party are open to having a different view from the Government on this, but the committee should meet before the participants return. I do not want to produce a report if I know the Government will not accept it in any case. In such circumstances, there would be no referendum at all. This committee cannot publish its report and have a referendum because the Government must actually approve it. We need more clarity from the Minister of State on the position of the Government.

Chairman

I understand that.

Deputy Olwyn Enright

Could we set a definite time to meet before the delegates return?

Deputy Caoimhghín Ó Caoláin

I would not like the meeting to conclude without knowing for certain that the Minister of State will circulate at the earliest opportunity, preferably this week and, failing that, as early next week as is possible, the Government's position and the advices it is receiving. He should not wait until the week after next. What does he believe to be the Government's thinking on this subject? Can he outline the explanations he indicated he would have liked to offer today but which he was unable to offer because of his difficulties? Could we have confirmation that the information will be circulated as early as possible such that we will have ample time to consider it in detail and will be able to come here prepared for the meeting the following week, at which time we can address the matter in the context of everything else?

Chairman

Before we meet the six participants.

Deputy Caoimhghín Ó Caoláin

It would be desirable if on their return they could avail of the same space and time and outline to us any other opinion they have or views gleaned from legal opinion. That would be very helpful because there will be closure, one way or another, very soon.

Chairman

I thank all the members for their very interesting contributions. I thank the deputations for their record on working with and for children. I thank the members for their equal record in this regard.

The joint committee adjourned at 6.45 p.m. sine die.