Thirty-First Amendment of the Constitution (Children) Bill 2012: Committee Stage (Resumed) and Remaining Stages

Atógadh an díospóireacht ar leasú a 3:
I gCuid 1, leathanach 7, líne 16, “Déanfar” a scriosadh agus “Go sonrach, déanfar” a chur ina ionad,
agus
I gCuid 2, leathanach 9, líne 15, “Provision” a scriosadh agus “In particular, provision” a chur ina ionad.
- (Deputy Rónán Mullen)
Debate resumed on amendment No. 3:
In Part 1, page 6, line 16, to delete “Déanfar” and substitute “Go sonrach, déanfar”
and
In Part 2, page 8, line 15, to delete “Provision” and substitute “In particular, provision”
- (Deputy Rónán Mullen)

We are resuming on amendment No. 3, with Senator Mullen responding to the Minister's response.

I forget exactly where we left off. However, I recall noting to the Minister that I had not heard a strong reason not to accept my proposal, namely, the insertion of the words "in particular". This removes a potential area of ambiguity with regard to how the constitutional amendment could be interpreted. It is clear that the insertion of the words "in particular" would in no sense import the notion that what was envisaged in adoption legislation in an involuntary adoption context was some kind of a natural progression from the taking of children into care under the proposed Article 42A.2.1o.

If the amendment I propose is not accepted, this leaves open the possibility of interpretation of the possibility of legal provisions around adoption in some way that is free of the provisions of Article 42A.2.1o. For these reasons, I would have been happy to hear the Minister say she would take this issue into account and consider bringing forward a suitable amendment or, at least, consider thinking about it further, either before Report Stage here - which is today - or before the matter is before the Dáil.

We have had a fairly long discussion on this, but I will summarise again the points I have already made today in this regard.

The provision as worded and the position outlined make a clear link between failure and any provision in law for the involuntary adoption of children. We are all agreed on the point that failure must be established. I am satisfied that the failure is as set out in Article 42A.2.1o. To suggest that the courts would conceptualise failure in some way other than provided in the Constitution and statute would be illogical. The fundamental difference is that I am clear that the question of the adoption of a child involuntarily goes beyond supplying the place of parents, as in Article 42A.2.1o. It is important to make this point that the failure test here goes beyond that. This must be remembered. Supplying implies, as I already made clear, support to parents, provision orders and is everything that falls short of a care order. What we are talking about goes beyond supplying the place of parents. The Senator should bear in mind also that the supply of the place of parents in Article 42A.2.1o does not extinguish the rights of parents, whereas adoption does. This is a fundamental difference.

I also draw the attention of the House to the fact that in the way we have formulated the provisions - this supports my point - the two provisions of adoption are not grouped under this Article. They are grouped quite differently. Therefore, it is quite clear that Articles 42A.2.1o and 42A.2.2o are grouped together, whereas the voluntary provision is in Article 42A.3: "Provision shall be made by law for the voluntary placement for adoption and the adoption of any child." Furthermore, the reference in Article 41 to the "inalienable and imprescriptible rights" of the parents obviously always applies when considering adoption. There must be balance in that regard and as we have outlined it in the legislation, there is a series of steps to ensure this occurs. I will not go into that again as the House is familiar with the range of steps that must be gone through in order to arrive at a point of there being failure. Therefore, in this section we are talking about involuntary adoption. The principle is important and I would not minimise it for one moment, but under Article 41, the natural rights of the parent would be very relevant, parents would be given every opportunity and the courts would want to hear everything the parents have to say in this regard. Parents would have full voice with regard to the issue. For these reasons, I will not accept the amendment.

With regard to Article 41.1.1o, and the "inalienable and imprescriptible rights" of the parents, this builds on the basic premise of failure. However, in providing that parents lose all parental rights and are freed from all parental duties under an adoption order, the requirement of the law must go beyond mere failure.

It must be satisfied that the failure constitutes an abandonment of rights established in Article 41. I am very satisfied that the point the Senator is making is dealt with in the amendment as we have drafted it.

I would go back to some points I made earlier in regard to language in the Constitution. Every word has to have a very precise meaning and we do not want to insert words that have unintended consequences. We are keeping the language spare and minimal but, at the same time, getting the kind of balances we have been talking about here all day. If I do not believe the words are required, I have to be mindful of the risks of a court attempting to attach some meaning to them; therefore, there is this problem, this risk, which I have outlined. While I know the Senator does not accept this, the unintended consequences are a very real issue in regard to adding this wording. I certainly do not want to contemplate it at this stage. While I understand the points the Senator is making, I believe that in my response I have shown we do not need this extra wording.

I will not go back over the ground on which we do not agree-----

The Senator will not be allowed to go back over that ground. He must stick to the amendment.

I have just said I will not go back over the ground in regard to the likelihood of that interpretation being placed by the courts, which is completely fanciful. However, what the Minister has said about adoption going beyond the supplying of the place of the parent is an interesting argument. Again, but in a similar way, what is clear from Article 42A.2.1° is that there are different ways in which the State shall supply the place of the parent, in some cases through care orders, in some cases through interventions falling short of that, but always in a proportionate way. It seems that what was logically intended was that fitting within the concept of the State's ability to supply the place of the parent, is the constitutional ability of the State to make law to provide for the adoption of children in certain circumstances. For that reason, I do not agree with the analysis that adoption somehow goes beyond the State supplying the place of the parents.

The State supplies the place of the parents in some cases by making an intervention that falls short of a care order, which is what this constitutional provision envisages. In other cases, the State shall supply the place of the parents in more serious situations where care orders and so on will be required. In some cases, legislation providing for adoption falls within that family of possible responses. On the basis that this is so, there is a problem in the fact we apparently have two tests. The first talks about failure, but failure defined as being failure to such extent that safety and welfare is likely to be prejudicially affected. The second just makes a reference to failure.

As I said, I have confidence in the Minister's ability in her efforts to provide for very prudent legislation but we have to make constitutional changes with all sorts of future scenarios in mind. Only in the last couple of days, I received an e-mail from a person on this very point, drawing my attention to the fact Article 42A.2.2° did not contain the words "in exceptional cases". That person, who is only one person and not a legal expert, interpreted this in a certain way. In the context of reassuring people that there is some kind of harmony here, it seems one secures the issue and avoids any possible confusion of the issues by the use of the words “in particular".

That is all I have to say on the matter. I have made my point. The wording of this amendment would be the better with the inclusion of those words. I have heard the Minister's arguments and know they are made in good faith, but I do not accept the logic of them.

Amendment declared lost.

Cuireadh an cheist, "Go bhfanfaidh na focail a thairgtear a scriosadh," agus faisnéiseadh go rabhthas tar éis glacadh leis.
Question, "That the words proposed to be deleted stand," put and declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.

Amendments Nos. 4 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Tairgim leasú a 4:

I gCuid 1, leathanach 7, líne 23, “a thabharfaidh an Stát” a scriosadh agus “ar páirtí iontu an Stát” a chur ina ionad,

agus

I gCuid 2, leathanach 9, líne 23, “brought by the State” a scriosadh agus “that the State is party to” a chur ina ionad.

I move amendment No. 4:

In Part 1, page 6, line 23, to delete “a thabharfaidh an Stát” and substitute “ar páirtí iontu an Stát”,

and

In Part 2, page 8, line 23, to delete “brought by the State” and substitute “that the State is party to”.

Amendment No. 4 seeks in Part 2, page 8, line 23, to delete “brought by the State” and substitute “that the State is party to”. Amendment No. 5 seeks in Part 2, page 8, line 27, after “access to,” to insert “or any other judicial matter concerning,”. Amendments Nos. 4 and 5 seek to change the wording in order that cases the State is party to, rather than just cases the State takes, can be affected by the constitutional amendment. This is a very important gap in the legislation and one that our amendment, if accepted, would remedy. The current wording could be construed as leaving a loophole through which the State could evade responsibility in some cases. Our amendment would compel the State to place the interests of the child as the paramount interest in any case it is party to.

I hope colleagues will support these amendments and close this potential gap. It is very important that many of the cases that have been cited on Second Stage and again today have related to State provision in cases of neglect and where the State has been remiss. It is important that we take cognisance of this fact in the wording and I look forward to the Minister's thoughts on this.

As I said yesterday and it is important to repeat, we want to as much as possible support for the legislation. One of the potential sources of unhappiness with the wording might be among those who have or feel they have suffered at the hands of the State and who might be very vocal against the legislation. This is one of the reasons we would have proposed, and we support, the notion of the 50:50 split in the time given to debate in the media. I applaud the Minister for the way she is handling this debate because I feel she is dealing with any of the issues that arise in a very categoric and detailed manner. There is nothing to be afraid of in debate around this constitutional amendment. Therefore, it is important to take on board the thoughts of those who may be naysayers in a 50:50 way in order that we can address them fully and tackle them head on. This might be an area where this will rear its head, which is why we put forward these amendments.

I again use the example of direct provision. I note again what Mrs. Justice McGuinness has said and we have acknowledged her a number of times for her pioneering role in having this legislation and the amendment brought before us. As she stated in the Irish Refugee Council report:

Poverty and Exclusion paints a convincing picture of the damage done to children by years of living in institutional accommodation which is so far removed from the atmosphere of a normal family home. This is rendered even more damaging by the income poverty of their parents.

The author of the report also states there is a danger that the direct provision system is tantamount to child abuse. In future years, will we be looking back at this report and saying they were correct? If so, will people be taking cases against the State and using the basis of the Constitution to do that? What is the State's role in this?

The direct provision model, for example, is an arm's-length model in that the direct provision is provided through private operators who are working on behalf of the RIA and the Department of Justice and Equality. I use that to suggest a possibility of the State being a party to an abuse against a child. The issue will perhaps arise in these types of specific cases, and any of the cases we have seen over the years have always been very specific and there are certain circumstances surrounding them. I welcome the Minister's thoughts around the whole area of direct provision. It certainly needs to be looked at and the report needs to be acted upon. This is why we say the State, if it is remiss in its provision for children in any sense, should surely be party and be included in the way the referendum is being worded in order that people have redress if the State has failed in its duties.

Having looked at the amendment, and being very conscious that the Cathaoirleach is keeping us to the amendments, if we consider the Dáil debates last week and the debate yesterday, speakers cited the Kilkenny, Roscommon and child death review group reports.

The provision in the current wording and, equally, in the Sinn Féin amendment will not remedy the failure of the State to act on the concerns of family members or extended family members. That is an area on which we need to work. We are told that “provision shall be made in law”; I hope this will be in the legislation that is introduced. The provision tells us we need to introduce legislation, but it does not limit us in what we do in the legislation. It says it must be done.

The other areas on which I have concern and on which we need to legislate that will not be covered are the Child Abduction and Enforcement of Custody Orders Act 1991 and the ability of the courts to take the voice of the child into account. The majority of children who come into care are outside of the court orders of the Child Care Act 1991. As they are in care under a voluntary arrangement, they will not necessarily be covered by the wording of the Constitution. Is it the case that they will be covered?

They will, under care proceedings.

Okay. Will the Minister confirm that homeless children who are being provided with accommodation under section 5 of the Child Care Act will be covered?

On Second Stage I raised the importance of mediation. It is clear from the debate we are having that we hope we do not end up in the courts in many family cases. The hope is that we can solve the cases prior to their going to court. I cited Directive 2008/52/EC, which deals with certain aspects of mediation in civil and commercial matters.

The Senator is moving away from the amendments.

I know. I am slightly, but I am talking about a case being brought by the State or the State being a party to it.

We have had Second Stage and Committee Stage, and we are dealing with two specific amendments now.

I know. I was trying to circumvent it. I appreciate and understand what the Sinn Féin amendment is trying to do. It will not necessarily address the issue. The current wording does not limit us in legislation. On the issues raised by my colleague Senator Ó Clochartaigh, there is a significant onus on us to introduce legislation to address the shortfalls mentioned.

I have listened to much of the debate. I am sorry I could not be present for all of it but I had to attend a committee meeting. The Minister has given factual information on all of the amendments today. I wish to discuss amendment No. 4 and will stick to it. It relates to the State being a party to a case taken in connection with a child or family. Under Article 27 of the Constitution, the President, if requested by a majority of Members of the Seanad and one third of the Members of the Dáil by joint petition, can decline to sign any Bill. The Minister has responded eloquently. I welcome the debate we have had today on the various amendments because it has clarified many of the issues. In her response, the Minister outlined various procedures that will be introduced by legislation. It is important that what she has said today will be publicised before the referendum because it is informative. When people are asked to vote in a referendum it is important that they have all the information. Not only is the Minister on top of her brief, but she has answered every question that has been put to her eloquently and factually. That is what the people want to see.

I commend Senator Jillian van Turnhout for her input. I listened to her on the monitor as she referred to research she had done. The Minister’s responses should be well publicised. Sometimes in the Seanad we do not recognise the power we have on Bills. We have the option of signing a joint petition with one third of Dáil Members to prevent a Bill from being signed into law. The Minister is conscious of that. We should all be conscious of it. We are getting answers to the questions we pose. They are well put and I welcome them. The Seanad does the State a service by ensuring that the legislative process is fleshed out in detail. One might say Senator Mullen was dancing on the head of a pin when he suggested that we should have provisions excluded-----

The Senator is moving away completely from the amendment.

I know, but I am making a point.

That was relevant to the previous debate.

No. It is relevant to this one as well because one could say Senator Ó Clochartaigh is dancing on the head of a pin by putting in two words instead of one. It is relevant. I am fleshing out the point. When one reads it in context it is only two words, but when it is debated and one hears the Minister’s response, it is worthwhile. That is what I am saying. This House is worthwhile. One might not hear the debate-----

That has nothing to do with the amendment.

One might say it has nothing to do with it, but it does.

The amendments are specific. I call Senator Hayden.

One might say to people that if one does not know enough about the issue then one should vote “No”. I say to people that if they do not know, they should read the responses of the Minister, Deputy Fitzgerald, in the Seanad and they will get a lot of answers.

I would like to hear the Minister’s response to the amendment. It seems that Article 42A.4.1°(i) and (ii) are limiting in terms of the extent of the obligation that the best interests of the child should be of paramount consideration. Senator van Turnhout has mentioned a couple of instances, as did Senator Ó Clochartaigh, with regard to proceedings that are not so much brought by the State but to which the State is a party. I wonder why it would not be a good idea to include that. I am sure there is a good answer to this.

It also seems, with regard to Article 42A.4.1°(ii), that the inclusion of any other judicial matter concerning the child would be a wide extension of what is in the current article. Effectively, this provision limits the issues to adoption, guardianship, custody or access to a child. By accepting the amendment we would be extending it to any judicial matter concerning a child. Again, my first instinct is to say “Why not?” Surely in any judicial matter relating to a child the paramount interests of the child should be the primary consideration. I am certain the Minister will have a very good response to the question but I can see what Senator Ó Clochartaigh is trying to achieve, which is to significantly broaden the remit of the amendment. I am sure Senator Mullen would take issue with such an approach, but coming at it from a different perspective, I can see where the amendment is going and I would very much like to hear the Minister’s views on it.

I call Senator Mullen. I knew he would put up his hand.

It is not only because Senator Hayden referred to me in the past few seconds that I chose to intervene, but it brought home to me how little she understands my motivation. When I met the former Minister of State, Barry Andrews, to tease out some of the issues, get answers and make certain proposals, I said I was not a fan of the proposed wording that the State shall cherish all the children of the State equally, for reasons I have already gone into, and that it imported the concept of the State as parent in a way that was likely to be unpredictable in terms of its meaning. I recall saying to him as well that instead of the word “concerning”, with regard to the adoption, guardianship, custody or access to any child, I would have preferred the word “affecting”, because I was conscious at the time that there might be other kinds of proceeding in which children are affected and it seemed to me to be right and proper that the best interests of the child would be taken into account as the paramount consideration in those situations. One thinks of divorce and separation proceedings, for example. There are many other types of proceeding which involve an impact on children. For that reason I am inclined to support a widening such as that intended by Senator Ó Clochartaigh. I see that as being in no way contradictory to what I said previously because it has never been the intention to narrow down the issues in which children's best interests should be taken into account as the paramount consideration.

For me, the issue has always been the point at which the State is under a duty to intervene, at what point it is in the best interests of children that it do so. With that preface, I support what Senator Ó Clochartaigh proposed.

This amendment proposes that the best interests of the child should be the paramount consideration. This intention of "best interests" was also contained in the proposal from the Oireachtas Joint Committee. In Article 42A.4.1° we have outlined in a very specific way where proceedings can be brought by the State as the guardian of the common good. I have outlined this in such detail in order to capture all care proceedings because there had been some doubt as to whether the formulation of the Oireachtas joint committee, which simply mentioned "welfare", would suffice. It captured this area by mentioning "care or upbringing" but we did not consider that was clear enough and so we spelt out in more detail in this Article precisely what would be the proceedings brought by the State. I bring Senators' attention to the fact that in Article 42A.4.1°(i.), concerning the adoption, guardianship, custody or access to the child, the wording does not refer to "brought by the State". That is a different provision and Senators might wish to note that.

There are some general principles regarding what is intended. An obligation is put on the State to enact legislation to provide that in proceedings of the kind identified the best interests of a child will be the paramount consideration. I already spoke about the balance with parental rights and do not believe I need to repeat it. Instead, "having regard to the constitutional rights of the family" is included whereas previously the phrase was "subject to the rights of the family". That is a recalibration of the rights of the child, to have his or her interest advanced as against other constitutional rights, for example, the right of the family. This is a significant balancing of the best interests of the child and is very important. It will, of course, apply to all children.

I refer to the amendments. These are linked and relate to the scope of the provision and aim to comprehend in the provision all legal proceedings that could be taken by a child or a member of a child's family against the State, the outcome of which concerns the child. Senator Hayden looked at both sides, on the one hand noting that if the provision is extended it could be very wide and could cast a wide net over all kinds of judicial proceedings, to car accidents or all kinds of criminal proceedings. She wondered about that but on the other hand asked why we should not make the provision that wide. Obviously, we considered doing so, and so did the committee, which restricted the provision to key disputes, cases or decisions that affect a child's life when the State intervenes. It decided to focus on the areas under the Child Care Act - we made that specific - but also the other key areas identified, which were adoption, custody, access and guardianship. If provision is broadened it could have implications where the State has to decide, for example, an issue on the basis of the common good, rather than on the interests of the child. That could apply to a variety of situations, as Senators can imagine. It could also interfere with the State's capability to balance and reconcile the rights of different parties. We must keep in mind the overall approach and the objective intended in the article.

I have a number of other points. This amendment to the Constitution asserts the rights of children in robust language. For the first time, children are recognised in the Constitution and rights are to be conferred on them in an acknowledgment of their vulnerability. We have talked about this a number of times today. I refer the Senator back to the overarching provision in Article 42A as he considers his amendment. We must remind ourselves about the express reference made there to "the natural and imprescriptible rights", which powerful and compelling language is now proposed for the first time for the Constitution. I went into some detail as to why this was considered stronger than the formulation to cherish all the children equally, as I believe it to be. We should not overlook that. That article frames the best interest of the child and, I repeat, must be looked at again in the context of both that article and other articles in the Constitution. It is intended to comprehend family law proceedings and proceedings under child care legislation.

To answer the points raised by Senator van Turnhout about what comes under this provision, a voluntary care order still falls under child care proceedings and would be covered. I refer to another point the Senator made. She has a particular interest in the direct provision issue. I just read what the Minister for Justice and Equality, Deputy Shatter, had to say about that when it was discussed in the Dáil. He is very clear about examining what is contained in the report mentioned and about asking the RIA to examine it. As to the question of the welfare of children in direct provision, the Minister used very strong language to describe how outraged he would be if some of what has been reported is true, in terms of the basic requirements these children should have. We need to examine that issue and must take that report very seriously. I assure the Senator that work is underway to examine it and its implications and to arrive at the facts in question.

The approach of identifying specific key proceedings relating to children is consistent with the approach of the committee as regards best interests. It is somewhat different when it comes to the views of the child and I will make separate comments on that because the two amendments have been linked to both provisions. This is about the resolution of all disputes concerning the key areas and for that reason, I will not accept the amendment.

I do not know if we are going to address the issue of the views of the child separately. Are these amendments linked?

We are discussing the two amendments together.

Yes. The question of the views of the child being taken into account was noted a number of times. The proposed obligation to give due weight to the views of the child is a new obligation at constitutional level and "due weight" is an important part of that, meaning not only hearing the child's views but giving them due weight. A number of Senators, including Senators van Turnhout and Hayden, spoke about the potential of legislation in this area. It is a practice issue and we are leading the way in terms of ensuring the views of children are taken into account. I refer to Comhairle na nÓg, student councils and a series of ways in which this is the practice in this country. Considered internationally, we are doing very well in this regard and although we have a way to go there is much good practice. We need to build on that. From now on it should be feasible to build this in as a principle in the legislation that comes before us in a variety of areas, particularly when constitutional weight is included. There is a lot of scope there, there is much participation by young people and we are currently funding youth work throughout the country to the tune of approximately €65 million. Given the projects young people are involved in - I am sure Senators are familiar with them - there is enormous participation in dealing with homophobic attitudes, mental health issues and general citizenship. There has been an explosion of interest by young people in all those issues and they are very actively involved in every county, as far as I can see. Although we are limiting the rights of the child's voice to be heard in judicial areas, at a practical, administrative and day to day level that is something that can be developed easily without the need for the constitutional provision. Nevertheless it is there and can be developed further in legislation.

I thank the Minister for her comprehensive answer and appreciate what she said. However, this issue will be a very important part of the debate around the referendum in that this provision could be read as stating the State is being precluded in a sense from taking into account the best interests of the child and therefore if cases are taken against the State in the future the State's best interests will be put first as opposed to those of the child being paramount. The logic of our amendment is to close off that loophole, or make it very clear that in such a scenario the child will be paramount in all those cases, even if the State is also a party. If the State has been remiss it is important that the rights of the child, or the best interests of the child, should be paramount.

I would welcome also clarification from the Minister on a very important point. We are teasing out these issues today but they also need to be teased out in all fora and in the media in the run-up to the referendum.

Our colleagues in Fianna Fáil have stated that they are opposed to the idea of a 50:50 debate. Is the Government in favour of equal time being given to those on both sides of the argument? These are the types of issues that are going to arise and it is important that logical arguments be put forward by those on both sides of the debate. If people have concerns with regard to what is proposed, then these should be the subject of full, frank and open discussion and the Minister should be in a position to give as categorical an explanation as possible of the Government's stance. This is an area in respect of which people might suspect that something is afoot or that an attempt is being made to protect the State against the rights of children being asserted. Questions might also arise as to whether there is a fear with regard to the State being sued in the future. These are the types of issues which could be brought up during the debate and that is why we would like the loophole to be closed off by insertion of a reference to proceedings that "the State is party to". This could relate to numerous kinds of cases which could be brought in the future on foot of the State's intrinsic role in the context of intervening in child care.

I previously spoke in the House on the issue of a 50:50 debate in respect of a different matter. When the judgment was handed down in respect of the issue to which I refer, there was a 50:50 split throughout the country. I am not being critical of that or any other judgment, I am merely making my views known in the Seanad as I am entitled to do. I have no wish to criticise the Judiciary or judgments handed down by its members but I must point out that society informs debate. In that context, both society and judges in this country are informed by the views of the entire populace. As far as I am aware, all of the parties that are represented in this House are in favour of the referendum. I also understand that all of the Independent Senators are in favour of it. All of the Members of the Seanad were democratically elected by people in this state. One could, therefore, say that, in theory, if proportional representation and democracy work, then everybody - those who voted for Sinn Féin, the Independents or whomever - in the State is represented by a voice in this House.

In light of what I have said, I am at a loss to know who is going to make the decision with regard to what will constitute a 50:50 debate in the context of the referendum campaign.

This has nothing to do with the amendment.

In the context of the amendment, a question was asked regarding what the Government is going to do with regard to a 50:50 debate. I am part of the Government. The McKenna, or 50:50, judgment was handed down solely by means of a 25-page ruling. This matter requires a great deal of discussion and I am going to ask the Leader to facilitate a debate on it in the House at another time. Who is going to give the opposing view in a 50:50 debate relating to the referendum? It will just be people talking for the sake of doing so and all we will get will be a lot of hot air.

I am very satisfied with the Minister's response, for which I thank her. When debating issues relating to children and child protection, we must not forget the need to consider the Constitution in its entirety. I had forgotten the State's role as guardian of the common good. Tempting as it is to focus our complete attention on the issue of children's interests, we must remember that this matter falls within a wider context. The State has a duty in respect of the rights and obligations of all citizens, including those who may be involved in litigation concerning children, who may, for the sake of argument, have a disability and who also need and deserve the State's protection.

Another point I would make in respect of these two provisions, which relate to the best interests and the views of the child, is that in framing them we used the term "shall". This may not seem that significant but when one considers the Constitution in general - I accept that we could be criticised in this regard - using that word creates a strong imperative in the context of the best interests and views of the child. Very often in the Constitution the word "may" is used. What we are doing is granting authority to the Oireachtas and giving it a mandatory direction to re-examine the relevant legislation if the referendum is passed in order to ensure that it meets the requirements outlined in the Bill in respect of the best interests and views of the child.

I look forward to a good public debate on the wording. I am sure the broadcasters, subject to their own imperatives, will make decisions on how to deal with this matter. The point that has continually been made by Senators is that we must ensure that people are informed. I have been struck by the range of the debate on this legislation in both this and the Lower House. I have also been impressed by the detailed knowledge possessed by Deputies and Senators in respect of this matter. The debate in which we are engaging is very different from the type of debate in which we might have engaged even five or ten years ago. There is huge interest in and knowledge and awareness of the relevant issues. In addition and in recognising past failings, there is no doubt that we want to do the very best we can in this area. I hope Senator Ó Clochartaigh will understand when I state that I am not in a position to accept the amendments.

Cuireadh an cheist, "Go bhfanfaidh na focail a thairgtear a scriosadh," agus faisnéiseadh go rabhthas tar éis glacadh leis.
Question, "That the words proposed to be deleted stand," put and declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

Tairgim leasú a 5:

I gCuid 1, leathanach 7, líne 27, “nó aon ábhar breithiúnach eile maidir le haon leanbh” a chur isteach i ndiaidh “rochtain ar aon leanbh”,

agus

I gCuid 2, leathanach 9, líne 27, “or any other judicial matter concerning,” a chur isteach i ndiaidh “access to,”.

I move amendment No. 5:

In Part 1, page 6, line 27, after "rochtain ar aon leanbh" to insert "nó aon ábhar breithiúnach eile maidir le haon leanbh",

and

In Part 2, page 8, line 27, after "access to," to insert "or any other judicial matter concerning,".

Aontaíodh an Sceideal.

Schedule agreed to.

Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis diúltú dó.
Amendment put and declared lost.
Aontaíodh ailt 1 agus 2.
Sections 1 and 2 agreed to.
Aontaíodh an Réamhrá.
Preamble agreed to.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasú chun an breithniú deiridh a dhéanamh air.
Bill reported without amendment and received for final consideration.
Tairgeadh an cheist: "Go rithfear an Bille anois."
Question proposed: "That the Bill do now pass."

I thank Senators for their contributions. Everyone engaged so positively in the debate on the amendments. I thank those Senators who tabled amendments. As a number of speakers noted, discussing the matters relating to those amendments will assist people in understanding the proposed constitutional amendment during the referendum campaign.

I thank the members of the various political parties in the House and the Independent Senators for their support and positive engagement in respect of the Bill. We must ensure that the vision we have shared with each other today is communicated to the public in the coming weeks and that we engage in the kind of debate that is necessary. We are aware from previous referenda that people must be informed. It is critical that they are informed and that they understand what is being asked of them, otherwise ambivalence arises in the context of what is intended. We do not want the latter to happen.

I take the opportunity to thank the officials from my Department who have worked extraordinarily hard in the past year in putting together the constitutional amendment. Given that the Department is new and that we were trying to establish it while also drawing up the amendment, they have done great work. I pay tribute to those members of my staff who spent many hours, weeks and months working on the amendment with me.

I also pay tribute to the Attorney General and her staff for the work they did. The Attorney General displayed significant commitment and dedication in respect of preparing the Bill. We engaged in many detailed discussions together. As stated earlier, we considered quite a range of formulations before choosing the particular wording contained in the legislation.

The staff have devoted significant amounts of their time and we considered a large volume of legal opinion on a variety of formulations and wordings because every word has implications and must be treated very seriously.

I pay tribute to the vital engagement of the wider civic society in the preparation of the proposed amendment. The role of the wider civic society has been significant in the work of allowing children a more central role and in ensuring we do the right thing for the protection of children, whether by way of legislation or a constitutional amendment or in the provision of resources. Civic organisations have worked to ensure the children of our nation are given a more central place and are given greater recognition and protection. They will undertake a nationwide campaign in favour of the amendment of the Constitution and I hope the public will hear what they have to say.

This is also the time to reflect on the courage of particular individuals who have spoken out about their own personal experiences as children, which in some cases have been very difficult. It requires an extraordinary act of bravery to stand up to talk about one's personal experience when that is an experience of abuse and difficulty. I am thinking of many of them as I say this. We owe them a debt of gratitude because they have been so courageous in facing up to their own internal demons in many cases and sharing them with us. Their actions have helped in the future protection of children.

This amendment will recognise children in their own right in our most fundamental law, the Constitution. It is regarded as merely symbolic by some but it is clear from the discussion in the House today that it is not merely symbolic but it is also practical. Its practical implications will be visible in decisions affecting children. It will impact on judicial decisions and also in case law. It will provide an opportunity and a challenge to the Supreme Court and the Judiciary to interpret the provision. As Senator Rónán Mullen has said this will be interpreted by the Supreme Court although it is not easy to predict in what circumstances this will arise.

The proposed Article 42A.1 refers to the natural and imprescriptible rights of all children. This is a strong message from the Legislature about this central issue. It will provide rights and protections for all children regardless of the marital status of parents. Many people are surprised to realise that children are not treated equally with regard to the marital status of their parents. They cannot quite believe that in 2012 this is still the constitutional position but this proposed amendment will change it.

Constitutional change is but one aspect of the change and it is not a panacea. This point has been made by many speakers in the debate. I acknowledge that the issue of resources and legislation need to be dealt with and these will be challenges. When this referendum is passed, I will do my best to prioritise the adoption and tracing legislation that will be required and the establishment of the new agency and the legislation to allow for best interests of the child and for the views of the child to be taken into account.

This proposed amendment is a first step but it gives the child a central place in our Constitution and it will have an impact in other areas. The Constitution currently does not adequately differentiate between the needs of children and adults and this amendment will do so. I thank all Senators for grasping the opportunity by supporting this amendment. I thank everyone who has worked with me over recent years and those who have contributed to this work over a long period. I refer in particular to former Deputy Mary O'Rourke and the members of the joint committee; the Minister for Justice and Equality, Deputy Alan Shatter, who has played a key role in highlighting these issues; many named Senators; non-governmental organisations; previous Ministers who have worked to bring this to the point where I am fortunate to present the wording to the people on 10 November. I hope the choice of a Saturday for voting will allow more people to vote. This has been called for and here is the opportunity to prove that the electorate will use the opportunity. I hope students, young people and families will vote. I hope the choice of a Saturday will result in more people voting and it means that schools will not need to close. I thank all Senators for their contributions to the debate which has been helpful in outlining the key issues.

I thank the Minister and her staff for their hard work. The debate was excellent. The proposal has cross-party support and the referendum will be held on Saturday, 10 November. It is our job as public representatives to ensure that the people are informed about the referendum and to encourage them to vote, which may be the biggest difficulty. This proposal is to ensure that all the children of the country are safe.

Many years ago a political leader in this country said that the issue of contraception would be dealt with when a united Ireland had been achieved. It is always easy in tough economic times in particular to put issues such as this on the back burner with the reasonable excuse that the country is in crisis and more important things need to be dealt with. It is a mark of the commitment of the Government and the Minister, Deputy Fitzgerald, that we have arrived at a symbolic moment when we begin to regard and treat children in a new way. We all agree it is high time we drew a line in the sand over the shameful history of how we have treated children and in particular those children who have looked to the State for support.

This debate on the amendment has demonstrated that even in periods of economic distress, change is possible. I hope this will be the first in a series of measures which the Government will take to bring about fundamental change in Irish society. I thank the Minister and her staff. I have dealt with members of her staff in the past year and I know of the effort and energy they have expended on this process and on the entire agenda dealing with children. I refer to the role of the NGOs and Senator van Turnhout and the role of other Members of the Oireachtas over many years. I refer in particular to my colleague, Senator Bacik, for her role.

I have two issues which I hope the Minister will consider. I raised the issue of the Magdalene women and those who endured Bethany Home. To really draw a line in the sand under our shameful past, we must offer a genuine apology to those people who suffered, with real compensation and a recognition of their suffering. My final point was alluded to by the Minister in the course of the debate in response to one of Senator Rónán Mullen's amendments.

It relates to our treatment of the children of marital and non-marital families and the provision in the draft adoption legislation to extend the period for consideration of the adoption of all children. I have a grave concern in this regard, namely, that while we were prepared to accept a timeframe of 12 months in respect of the children of non-marital families, it is now proposed, because we are considering the position of marital families, to extend that time limit to three years. I do not know whether there is scope at this stage for the Minister to reflect on this anomaly. There is an onus on us to ensure there is no continuation of the shameful treatment to which non-marital families were sometimes exposed in the past.

I congratulate the Minister, Deputy Frances Fitzgerald, on her achievement in bringing this proposal through the Oireachtas. Many have promised, but it is she who has delivered. The word "historic" is overused, but, like Senator Cáit Keane, I am minded to clap as the legislation completes its passage through the Houses, ready to go before the people on 10 November. The Minister took the time to consider all of the expertise at her disposal and the work already done by Members of the Oireachtas, members of civil society and various non-governmental organisations. It is no small achievement to have found a balance in what is proposed such that we all find ourselves not merely supporting the amendment but heartily supporting it. In the midst of an unprecedented economic recession, there is something powerful to behold in a proposal that unites people across a range of views and positions in the endeavour to confirm the rights of children, atone for the failures of the past and draw a strong line in the sand in terms of what is required to protect our children's future. It is difficult to overestimate the significance of what has been achieved and I am immensely proud of our collective efforts.

The debate in the House yesterday and today and the debate in the Dáil last week have shown that Oireachtas Members are very well informed on the issue of children's rights. Our job now is to get the message across to the electorate. Just as children were in the past expected to be seen and not heard, we must ensure the forthcoming referendum campaign is not merely about posters but also about engaging the public in a meaningful debate on the proposal before them. People want to be informed. All the groups to which I have spoken want to know what the amendment means. We have heard expert input from Senators in this Chamber; the challenge now is to ensure people come out and vote. The decision to hold the referendum on a Saturday, something for which many of us have called in past ballots, presents an interesting variable. We all have a role to play in encouraging a good turnout.

I hope the people say "Yes" to this constitutional amendment on 10 November. Our work will begin in earnest if and when the referendum is passed. The provisions set out in the amendment place a huge onus on the Oireachtas to legislate for the changes that we all agree are required in order to protect the children of the country.

Ba mhaith liom tréaslú leis an Aire as ucht an reachtaíocht seo a thabhairt tríd na Tithe. Is lá stairiúil é seo. Is lá an-tábhachtach é do leanaí na tíre. Tá áthas orm go bhfuilimid in ann tacú leis an Aire san obair seo. Ba mhaith liom tréaslú freisin le comhghleacaithe an Aire sa Roinn, mo chomh-Sheanadóirí agus Teachtaí Dála agus na daoine ar fad a d'oibrigh ar bealach ar bith leis an mBille thar a bheith tábhachtach seo a thabhairt os ár gcomhair. Caithfear an reachtaíocht a leanúint le gníomh chomh maith céanna.

I commend and congratulate the Minister on her efforts in bringing forward this proposal and her handling of the debate thereon. This is a fantastic day. It is vital, however, that the Government follow through with action. In that regard, I welcome the Minister's reference to the legislation that will be introduced in due course. It is incumbent on us to bring forward the ethos and philosophy underpinning the amendment in the work we do here. That will involve child-proofing and poverty-proofing every Bill that is brought before the House, as well as considering the impact on children of all budgetary decisions, particularly in the area of social welfare and education.

I agree with Senator Aideen Hayden that one of our priorities must be securing redress for the former residents of the Magdalene laundries and Bethany Home and the women subjected to symphysiotomy in the past. We must ensure our shameful past is not continued into the present. I have referred to the direct provision model for asylum seekers on several occasions. I hope we will not discover at some future time that abuses equal to those which took place in our shameful past are happening in the country in the present day.

I offer the Minister a word of caution in respect of the forthcoming referendum campaign. There was great surprise last year when the Government's proposal on increased powers for Oireachtas inquiries was rejected by the electorate. Members have surmised in the course of this debate as to who might emerge in the coming weeks to oppose this constitutional amendment. The answer is that we simply do not know. What is certain, however, is that we have no reason to fear any of the arguments that might be put forward in opposition to the proposal. No matter how many hours of coverage are afforded to any "No" side which might emerge, we on the "Yes" side have the qualifications, rationale and moral authority to debate in an open and positive way. As such, I urge the Government not to attempt to override the 50:50 requirement in regard to discussion and awareness-raising in the campaign. It is a fundamental democratic principle which should and must be upheld by the Government.

Ba mhaith liom bheith dearfach ar an lá iontach seo, atá tábhachtach do leanaí na tíre agus clann ár gclainne amach anseo. Déanaim comhghairdeas arís leis an Aire. Déanfaidh muid i Sinn Féin ár gcuid chun daoine a tharraingt amach ag vótáil agus a chinntiú go dtabharfar tacaíocht don reifreann seo. Ba cheart go mbainfeadh na Billí a bheidh á phlé againn amach anseo le brí agus éiteas an méid atá déanta againn sa reachtaíocht seo, agus go mbeidís ar son leanaí na tíre.

Ba bhreá liom freisin tréaslú leis an Aire as an obair mhór atá ar siúl agus déanta aici agus ag a comhghleacaithe. Before making my concluding remarks on the proposed constitutional amendment, I thank and congratulate Senator Aideen Hayden on her very impressive and impassioned intervention. I was particularly admiring of her knowledge of Dáil and Seanad history. I presume it was in the Oireachtas that the comment was made that we could not deal with contraception until we had a united Ireland. I was tempted to intervene in order to point out that this person at least understood the unitive as well as the procreative dimension of the issue.

The Minister and her team have done well in bringing this proposal successfully through the Houses. I have acknowledged that the wording strikes a balance between the competing rights at issue. I remain of the view, however, that it could be improved by the resolution of certain ambiguities, as set out in my amendments. I accept that the Minister had to do what she had to do and thank her for considering the amendments and giving her response. I am a great fan of the natural law basis of the Constitution and, in that regard, welcome the reference to the natural and imprescriptible rights of all children. It will be a very good day when these words are inserted into the Constitution. I am a person who views proposed constitutional change with a sceptical eye, as it is the duty of all of us to do. We have already seen in the lifetime of the Government that those who looked at proposed constitutional change with a sceptical eye were vindicated when the matter was put to the people. I refer, of course, to the proposal on increased powers for Oireachtas inquiries. It is right and proper that we should be very cagey about any proposed constitutional change. I approach the issue from the perspective of one who believes passionately that we must attempt to secure the best interests of children in society. The presumption that the best interests of children are secured within the family remains intact, as the Minister said. Sadly, however, there are situations where the State must endeavour to supply the place of the parent.

What struck me in some colleagues' contributions was the longing for a consistency of approach on the part of the Government. Senator Aideen Hayden, for example, referred to the former residents of Bethany Home, one of whom had his short and cogent letter published in The Irish Times yesterday. The Sinn Féin amendments sought to widen the context in which the best interests of children would be the paramount consideration in proceedings to which the State was a party.

This again indicated a desire to ensure people who find themselves in certain situations are not left behind.

I return to the issue of the unborn, about which I spoke yesterday. Society must be loving and welcoming towards children from the moment of their conception. We must approach all of these matters with a profound reverence for life, pre-born and post-birth, and a desire to vindicate the dignity and welfare of children in all circumstances. We must not lose the goodwill towards this referendum, which is evident not only in the Houses but across society, as it should inspire and motivate us and speak to our consciences.

I fully endorse the words of my colleagues on the issue of having a 50:50 debate. It need not be a great problem that a large number of people are on one side and a small number of people on the other side of a proposal. The real issue about how the media do their work is whether journalists are willing to put hard, forensic questions of the kind that we, in the Houses, have tried to put. When journalists are forensic one does not end up with biased debates because those who make proposals have their mettle tested, must provide answers and cannot get away with spin or inadequate responses. It will matter less what is the division of opinion on the referendum if the media do their job, scrutinise the proposal and ask hard questions, including those I and others have asked on whether other interpretations are possible and if the wording could have unforeseen consequences. This task is one for the media and if they fulfil it, the requirement to have a 50:50 debate will not be a problem. I was pleased the day the court handed down its judgment in the McKenna case, although it was unfortunate that it came too late in the context of the referendum proposal to which it pertained. The ruling marked a good day for democracy and I would not like if attempts were made to undermine it.

With those words, I wish the Minister well. When people ask what is my view on this proposal, I will acknowledge the comments of those who argued that that which the proposal is intended to facilitate could be achieved by legislation, although there is still a debate to be had about that issue. I will also stress the sheer appropriateness of enshrining in our Constitution the natural and imprescriptable rights of children as a special category of persons in society. I will also state that I have concerns about some matters and wish certain specific words had been included. However, I will also point out that the use of the phrase "proportionate means" is key. I made this comment on the day the referendum wording was announced. The use of this phrase is welcome and important and it has great centrality in the wording of the proposal.

On that basis, I wish the Minister and all of those who will speak on the issue the best in the coming weeks as we seek to do our job to facilitate a decision by the electorate. I hope members of the public will seek information about the proposed constitutional amendment as I do not admire the approach that if one does not know, one should vote "No". People should seek to acquire the truth and an in-depth understanding of what is proposed. The Houses have helped that process by asking questions, placing issues on the record and taking the opportunity to comment on the perspectives of others.

On behalf of the Fianna Fáil Party, I welcome the passing of the Bill. My party in this House and the Lower House will work hard to ensure the referendum is passed on 10 November. I hope it will be passed because, as the Minister noted, it will trigger a suite of legislation that will afford protection to children.

It has been a privilege to listen to the contributions from Senators from all sides who agreed that we have a dark past in which children were abused. I hope that period has come to an end and we will be able to draw a line under it.

The Minister acknowledged the contribution of her officials, legal advisers, the various political parties and a number of former Ministers from this side of the House. I, too, pay tribute to the late Brian Lenihan, Deputy Brendan Smith and especially Mr. Barry Andrews, all of whom contributed to the legislation in their ministerial roles. However, the Minister left out one important person, namely, herself. She is the right woman at the right time. While I, as a member of the Fianna Fáil Party, would like to see an end to this shabby Government as soon as possible, if there is one reason to keep it in place, it is the Minister.

Cuireadh agus aontaíodh an cheist.
Question put and agreed to.