I call on Deputy Mary O'Rourke, Chairman of the Joint Committee on the Constitutional Amendment on Children, to make a statement pursuant to today's order. The following arrangements applying pursuant to today's order of the Dáil: the statements of the Chairman of the Joint Committee on the Constitutional Amendment on Children and of the main spokesmen for Fine Gael, the Labour Party and Sinn Féin, who shall be called upon in that order, shall not exceed 15 minutes in each case; the statement of each other Member called upon shall not exceed ten minutes in each case; Members may share time; and a Minister or Minister of State shall be called upon to make a statement in reply that will not exceed ten minutes.
Report of Joint Committee on the Constitutional Amendment on Children: Statements.
I welcome this opportunity to speak. Little did I think in the early days that we would be able to give Dáil Éireann our final report on the job we were given to do.
When we were getting ready for this, I remembered the remarks of Ms Justice Catherine McGuinness, chairman of the Law Reform Commission, in 1993 in her capacity as chairman of the Kilkenny incest inquiry. She stated then that a constitutional amendment to protect the rights of children would change the atmosphere in which child care cases would be approached as it would create an atmosphere of putting the child's rights first rather than considering first the rights of parents and the family. The committee strongly agrees with this statement. It has taken 17 years for agreement to be reached, a long time in legislative and Dáil terms.
The constitutional question of the rights and protection of children, which was the central focus of the committee's work, has come very much to the fore in recent months. Children are our future, we say it all the time. When we go to cumann meetings or visit schools, we talk about children being our future. It sounds trite when it is overused but it is true. All children should have a right to live a childhood that protects them, provides for them and prepares them for adult life. Sadly, as we are all too well aware, this is not always the case. Our legal framework, therefore, must be tailored and applied to protect the unique interests, needs and vulnerabilities of children.
The committee, which I had the honour to chair, was established to consider and report to the Houses of the Oireachtas, and we are now fulfilling that part of our mandate, on the proposals for constitutional reform contained in the Twenty-eighth Amendment of the Constitution Bill 2007. Speaking on the publication of the Bill, the former Taoiseach, Deputy Bertie Ahern, said: "It appears increasingly clear that the inadequate recognition in our constitutional law of the rights of children as individuals has to be addressed. That is an essential first step in creating a new culture of respect for the rights of the child". This overarching principle was at the heart of the work of the committee.
The committee's final report considers the proposed constitutional amendment concerning the acknowledgement and protection of the rights of children, the best interests of the child, the power of the State to intervene in the family, and adoption. The committee's first, and most important, recommendation is that a proposal for an amendment to the Constitution to enshrine and enhance the protection of the rights of children is submitted by referendum to the decision of the people. The committee then presented a wording for this amendment. I am pleased that we were able to reach cross-party consensus on the proposed wording. While it is true that seeking full consensus can take some time, that time was well spent in getting a better decision for children. There were some rocky moments, it was not all sweetness and light because we were talking about children. However, they were the one totem around which we could gather when times got difficult. We were then able to readdress the issue.
I would like to take this opportunity to thank the Vice Chairman of the committee, Deputy Michael Noonan, and all members of the committee for their commitment and dedication to our work under the leadership of their spokesmen, Deputy Alan Shatter of Fine Gael, Deputy Brendan Howlin for the Labour Party, Deputy Caoimhghín Ó Caoláin of Sinn Féin and members of my own party, Fianna Fáil. I also thank the Minister of State, Deputy Barry Andrews, for participating and contributing to our deliberations throughout the two years that we sat. The current Minister for Agriculture, Fisheries and Food, Deputy Brendan Smith, also played a role for a short period in our early deliberations. The Minister of State, Deputy Anderws, attended all but one of our meetings. Attendance is a prerequisite, whether a person is a school teacher, a pupil or whatever. Those who turn up, deliberate and contribute are playing a full role.
I also wish to acknowledge the many individuals and organisations who took the time to contribute their views and expertise to the committee in the form of written submissions and briefings at meetings. These have been most helpful in informing our deliberations. In all, we had 62 meetings with 178 submissions, both written and oral. It was a vast amount of work and I pay tribute to our legal teams for preparing our interim and final reports. They are fine people who gave of their professionalism and expertise. It is routine to thank such people but they played a fine role in advising those of us who are not legal experts.
The committee's starting point was to endorse the principles identified by the UN Committee on the Rights of the Child. These are non-discrimination in enjoyment of convention rights; that the best interests of children are a primary consideration in all actions concerning children; the right of the child to life, survival and development; and the right of the child to be heard in all matters concerning him or her. Reading such principles out, they sound right but I remember meeting after meeting in which one line of one clause would take up all of our deliberations at the meeting.
To implement these principles, the committee recommends that a new Article 42, entitled "Children", be inserted in the Constitution to replace the current Article 42. The new article contains an express acknowledgement of the rights of children, as individuals, including the right to have their welfare regarded as a primary consideration, while also expressly recognising that the primary and natural carers, educators and protectors of the welfare of a child are the child's parents.
We know from case law that differences remain in the treatment of children based on the marital status of their parents. The amendment proposed by the committee addresses this by providing constitutional recognition of the principles of non-discrimination and equality between children, irrespective of the marital status of their parents.
The amendment also requires that the child's voice is heard in any judicial and administrative proceedings affecting him or her, having regard to his or her age and maturity. The committee goes on to recommend that where parents fail in their responsibilities, the State will either supply or supplement the place of the parents in a manner that is proportionate. In presenting this wording the committee was concerned that parents would be assured that their rightful authority and pivotal role in relation to their children would not be undermined. It is not intended that the role of parents would be lessened or diminished in any way. The continued existence of Article 41 concerning the family will provide this assurance. There was considerable debate on Article 41 and how we could resolve what appeared to be its overriding prescriptions with what we wanted to achieve for children. In addition, any intervention in the family must be proportionate with a preference at all times for the preservation of the family.
In regard to adoption, the amendment would allow for the adoption of any child from a marital or non-marital family where his or her parents have failed in their responsibility for such a period of time as may be prescribed by law and where the best interests of the child require this. This would be a most important development for those children of married parents who are in long-term foster care but cannot be placed for adoption under our current constitutional framework. Under this amendment, these children would be eligible for adoption.
The committee considers that the wording it has presented for a constitutional amendment will ensure that the rights of children are given the strongest protection in the Constitution as well as advancing their best interests. If this amendment is passed, any future cases affecting children will be determined within a judicial framework that expressly recognises the constitutional rights of all parties concerned, namely, parents, the family and children.
This is the committee's third report and it brings to a conclusion our deliberations on the Twenty-eighth Amendment of the Constitution Bill 2007, in the course of which we held 62 meetings, received over 177 written submissions and heard evidence from persons and bodies whose expertise included constitutional, criminal and family law, child protection, psychology, children's rights, child welfare and other fields of direct relevance to the matters under consideration. In September 2008 we presented our first interim report to the Houses of the Oireachtas. That report addressed the proposal to give legal authority for the collection and exchange of information on the sexual abuse of children. The committee recommended that legislation should be introduced to permit the exchange of soft information by the Garda Síochána and other statutory agencies for the purpose of child protection. I am pleased to note that the Minister for State, Deputy Barry Andrews, will publish the national vetting bureau Bill, which is a rather grand title, this year to implement our recommendations. When Archbishop Diarmuid Martin recently stated that he believes legislation is needed in this area, I felt like ringing him because I wrote to him previously to inform him that we had considered the issue and included a copy of our report. However, it appears that a lot of letters have been lost in recent times.
In May 2009 the committee presented a second interim report on the proposal to give legal authority to the creation of offences of absolute or strict liability in respect of sexual offences against children. I understand work is in progress on implementing the recommendations put forward in that report. I look forward to hearing the views of colleagues on the proposed amendment.
Having expressed my heartfelt thanks to all who have helped the committee in its deliberations, I feel deprived because I do not know what we will do at 5 p.m. on Wednesdays.
The Deputy can speak for herself.
Somebody told me to go to the bar but that would be very different to what we had been doing. The time used to fly by because our work was intense and consumed all our attention.
This report is leaving our hands, having been debated in the Seanad and now the Dáil. We have fulfilled our responsibility to report to both Houses of the Oireachtas. The report will now come before the members of the Cabinet, including the Taoiseach and the Attorney General, who is as omni-present, omni-wise and omni-cautious as one would expect. The Government would be in more difficult straits if that was not the case. There will never be a better opportunity for holding a referendum on a form of wording that has cross-party support and resonates with the people who deal with children in difficult circumstances. I advise the Government not to prevaricate or put the report on a shelf and cover it with a dust cloth until another eminent judge calls for a referendum on children.
An article in The Irish Times last week stated that the report is not a panacea but such was never our intention. The rights of and protection for children will never be addressed forever and a day just because we arrive at what we think is the correct wording. However, even though it is not a panacea, it nevertheless represents a way forward for children. Allowing the voice of children to be heard would be the most wonderful result we could hope for.
I ask Members' forgiveness for reverting to my days as a schoolteacher, when I taught Latin. It is terrible that nobody learns Latin anymore. I am reminded of the old adage by Horace, carpe diem, because the day should be seized. I fear that with all the pressing tribulations that Governments face, our proposals on the rights of the child will be allowed to slip. I am sure that the Minister of State, Deputy Barry Andrews, will keep it to the fore of the Cabinet’s agenda. I advise the Government not to delay but to move as quickly as possible. I commend these reports to the House.
I join Deputy O'Rourke in thanking all those who made presentations to the committee, both written and oral, and the committee's staff and legal advisers. The Deputy set out clearly the way in which we went about our deliberations. I welcomed the participation of the Minister for Agriculture, Fisheries and Food, Deputy Smith, during the brief period in which he was Minister of State at the Office of the Minister for Children. The current Minister of State, Deputy Barry Andrews, and I have had several heated exchanges during our sessions. However, it is only fair to say, as Deputy O'Rourke noted, that he came to the meetings, he participated, he was involved with us as we teased out the problems and as we brought about what we believe are cross-party solutions in the best interests of children, which is the primary focus of the committee.
I refer to someone that Deputy O'Rourke omitted, I am sure, by accident, that is, Deputy Brian Lenihan, now the Minister for Finance. When he was the Minister for Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform and the Minster of State with responsibility for children were ex officio members of the committee. Despite all the pressures he was under as Minister for Justice, Equality and Law Reform during this period, Deputy Lenihan participated actively in the work of the committee, he engaged in the exchanges and, as the Minister who originally launched the Bill in 2007, took a very genuine interest in what we were doing. I regret that the interest shown by Deputy Lenihan was not similarly reflected in the approach shown by the present Minster for Justice, Equality and Law Reform, Deputy Dermot Ahern. He popped into meetings on three or four occasions and I have no wish to do him down by suggesting it was too few meetings. Perhaps he was at two or three more than that, but the truth is he did not participate in a meaningful way in the discussions in the manner that Deputy Andrews has done, in fairness to him. I am not interested in scoring any silly political points. I agree with Deputy O’Rourke that this article is a unique opportunity to effect a major change in our Constitution on an agreed cross-party basis, which reflects today’s values and priorities.
With every new revelation of things that have detrimentally impacted on the lives of children, whether clerical sexual abuse, institutional abuse or the failings of our social services, on a daily not only a weekly basis, the need to reset our constitutional priorities and ethos in a manner that will impact on Government and its agencies and the approach taken by them, especially towards children in trouble or at risk families who have difficulties and need supports such that their children can have good lives within those families, is highlighted. That is very important.
My concern with regard to the report thus far is what I describe as the deafening silence from Government. We started this process from the Opposition side of the House on the basis that the committee sought to bring about an agreement between the Opposition parties and Government on an appropriate wording for a children's rights referendum and to change the Constitution. The committee evolved and this resulted in an agreement essentially between members of the committee. The Government is not yet committed to holding a referendum on the wording proposed by the committee.
I do not mean to put the Minister of State, Deputy Andrews, down and I realise he holds the super-duper position as Minister of State who attends Cabinet meetings, but he is not one of the 15 Ministers with constitutional recognition. Ultimately, he would acknowledge he is not the final decision maker in these things; rather, it is the Cabinet. There has been a deafening silence from all members of Cabinet to the production of this report. No Ministers, whether from the Green Party, the Fianna Fáil party or Deputy Harney, who is the Minister for Health and Children and represents no party now but who has been in Cabinet for many years, has stated they agree with this report, they accept the recommendations or that they favour holding a referendum this year. That is the commitment following the work undertaken by everyone on the committee including members of Fianna Fáil, the Labour Party, Sinn Féin and Fine Gael. We should get the required response not for our sake, but for the sake of the children. We must bring about a constitutional sea change. I call on the Cabinet to give to this issue the priority it deserves.
How many more scandals and problems must we have, with regard to the manner in which children have been badly treated, for us to give the same priority to the protection of children and children's rights as we have given to the disastrous economic issues that we have had to confront? I am not making a political point in the sense of trying to have a go at people for the sake of it, but this is also about politics. When people say to me that this is about children and that we should not politicise it, I do not buy it. The decisions we make, including whether to hold a referendum, to provide better children's services, to allow the HSE to continue to run dysfunctional child care and protection services or to take those away from the HSE, are political decisions. They are about making political judgments based on one's values and priorities, the way in which this society works and in which the State agencies function. These are all political decisions.
Having welcomed very much the involvement of Deputy Andrews in this committee, I deplore the conduct of the Green Party. Deputy Paul Gogarty's picture adorns the report but it came as a surprise to some members of the committee that he was a member at all. Deputy O'Rourke stated that we held 62 meetings. I understood we held 63, but I will certainly defer to her expertise on that matter.
It is written down.
Of the 62 meetings, I believe Deputy Gogarty appeared four times and not at all in the years 2009 or 2010. He is the Chairman of the Joint Committee on Education and Science. The article we propose should be included in the Constitution is new and it addresses children's rights, including the right of children to education, a matter of unique concern to a chairman of an education committee. It touches briefly on the education articles already in the Constitution. If education is about anything it is the future of our children. Essentially, Deputy Gogarty either boycotted the committee or simply did not regard it as sufficiently important to participate in. It is quite extraordinary and I cannot fathom it. It seems the Green Party is more obsessed about saving the corncrake than protecting our children. Perhaps its members are so consumed by rotating proposals that they cannot get their head around other issues of greater importance to the outside world.
I refer to the Minister, Deputy Gormley, who received great headlines in T he Irish Times calling for a children’s rights referendum at the time of the publication of the Murphy commission report or the Ryan commission report — I may have the dates confused. I could not fathom the difference between the public presentation and the private contribution of the Green Party on this issue. In addition to calling on the Cabinet to state where it stands on this proposal, I call on the Green Party, as a separate party in Government, to clarify if it has any interest in it. Does it support the report or does it disagree with it? If it disagrees, it should inform us.
Deputy O'Rourke may find it surprising or she may simply find it alarming but there is nothing she said today with which I disagree. No one should suggest this proposal is the panacea to all our problems. There is a great deal we can do to protect children by reforming the way our child care services work and by addressing issues to which we have referred in the House during the course of the past ten days. That can be done without constitutional change. If constitutional change were effected along the lines we propose without these other issues being addressed or reforms introduced, children would not get the care and protection now recognised as their right in this proposal, children's voices would not be heard and their welfare would not be protected.
We must radically change our approach. The Minister of State should not be sanguine in informing the House or people outside that the world has changed. I have no wish to revisit the tragic cases that we have heard about in recent days and which have been discussed at great length. All one need do is pick up today's Irish Examiner or Irish Daily Mail, two newspapers which highlight major deficiencies in our child care system. Both newspapers document the case of a young Chinese girl who came to this country at the beginning of this year but who has since disappeared. She was put in foster care for one day, then a bed and breakfast and there is concern now that she is being sexually trafficked. What has happened to this girl? She is one of more than 500 young people who have come to this country and who have disappeared. If they were Irish there would be a furore about it, but because they are not, this issue is not getting the attention it deserves. Shocking revelations about continuing failure in our foster care system are disclosed in the Irish Examiner, indicating quite clearly and confirming that assurances given by the HSE about the future vetting and assessment of foster parents were not implemented despite those undertakings being given to HIQA. The Minister of State, Deputy Barry Andrews, needs to take a more dramatic and direct involvement in this than he has to date. I do not want to come into this House to raise the case of more young people who have died because they have been failed by the child care services.
I draw the attention of the Minister of State to the case of a young man of 16 years who is currently the responsibility of Bridge House, Ballyfermot region — care area 5 within the HSE. He is a 16 year old child who has been going through the care system for approximately two and a half years. He is awaiting psychiatric assessment, but he has fallen into an age band where he is not considered either a child or an adult because he is between 16 and 18. He is no longer in the education system, he is becoming drug dependent and he is falling into a street life where he will be exposed to drug running and prostitution. On Tuesday night of this week this young man was left in an Internet café all night by the HSE because there was no suitable location to accommodate him. This young man could potentially be another Tracey Fay.
I ask the Minister of State to intervene to find out what is happening with regard to this young man, and how any 16 year old could be left overnight in an Internet café. This is a troubled young person who needs serious coherent co-ordinated intervention and who is being failed, and emergency social workers who are dealing with this young man are at their wits' end to get a response from management within the HSE.
I want to give the Minister of State a second example — I can give him in private the names of the individuals to whom I refer. A 17 year old child with severe mental health difficulties, he has been known in the emergency care services for four weeks. A psychiatric assessment took place in St. James's Hospital a couple of weeks ago but there has been no follow-up. Essentially, this young man is floating between two social work areas, Naas and Tralee, neither of which will take responsibility for dealing with him. There is no communication between the two areas that matters, which makes it impossible to co-ordinate the care response or even to access basic information. He comes from a background in which, it is believed, he has been seriously sexually abused and this young man is exhibiting behaviour that has been a cause of difficulty to social work personnel. Essentially, he is cut loose.
These are two young persons who are, perhaps tonight, still wandering our streets. There is also the case of Danny McAnaspie, a 16 year old boy with severe problems. This young boy, who has disappeared now for eight days, is also in care. This is in the newspapers this morning and I am not revealing any confidences in this House that I should not reveal.
We have a grossly dysfunctional unco-ordinated child protection service which continues up to today to fail our young people. Constitutional amendments are not required to address the tragic difficulties of these young persons. What is needed is to resolve actively the systemic failures and structural difficulties within the HSE that the Minister is struggling to resolve.
I want to see amending legislation brought into this House. I want to see the Health Act 2004, which created the HSE, amended. I want to see the HSE under a direct obligation to furnish information to the Minister of State with responsibility for children and youth affairs. I want the Minister of State with responsibility for children and youth affairs made a senior Cabinet post, not some sort of supernumerary who is sort of half-way in and half-way out. I want to ensure that policy directives from the Minister of State with responsibility for children and youth affairs are implemented by the HSE and that there is accountability where things go wrong.
Deputy Shatter's time has expired.
I want to ensure that there is accountability to the extent that persons in managerial positions while supposed to be running a service, co-ordinating a service and protecting our children, first, have the resources to carry out their duties and, second, have the expertise to do so, but where they fail to the extent that young persons lose their lives, or are left in circumstances in which they remain seriously at risk and, ultimately, are the victims of abuse, those persons who take the responsibility for managing the system must be accountable when the system fails.
I welcome the fact that this report has been complete. I thank Deputy O'Rourke for putting up with some of the vigorous debate and exchanges that took place. I thank Deputy Howlin, his colleague, my colleague in Dublin South, Senator Alex White, who was a member of the committee also, and indeed, Deputy Ó Caoláin. We all, I hope, have made some contribution to achieving what I believe to be a very important constitutional proposal, which is balanced and which seeks to ensure that the rights of children are protected while at the same time recognising that the most important people in the lives of any child are the child's parents, and the parents are the ones who have the primary duty to ensure children are properly cared for and looked after.
However, where there is a parental failure, this amendment ensures that there is proportionate intervention by the State to support families where required, to avoid taking children into care where it can be avoided and to try to ensure that where matters are going wrong they are rectified within the family. Nevertheless, it ultimately recognises that the State has a duty that where children are totally failed by parents and need to be protected, the State will intervene.
I await a response from the Cabinet to accept this proposal. I would hope, if there is not a referendum on this issue in June of this year, that by the very latest we have it in October next. I ask the Minister of State with responsibility for children and youth affairs, when he speaks on this debate, to advise this House where matters stand with the Government, and whether we can expect that the referendum will take place this year and whether it will take place with the wording proposed by the committee being put to the people.
I am pleased to have the opportunity to speak in this debate. No more than the committee's distinguished former Chair, sometimes my party doubted during our deliberations whether we would reach this point. I am glad we not only reached it but did so on the basis of a consensus.
Important work was done. The fact that we in the committee met every Wednesday almost always in private so there was no reporting of the work afforded us the opportunity to engage in a vigorous, open and realistic way. It did not afford us any credit for that in the press or anywhere else, but that does not matter if we have done our job well.
Before I address the background to the establishment of the committee that has now concluded its work, it is great for a committee to be established in the lifetime of a Dáil——
And be gone.
——and to fulfil its mandate to completion and have itself abolished. In and of itself, that is novel. The background dates back as far as, and probably much further than, the starting point instanced by the Chairman of the committee, Deputy O'Rourke, that is, the report on the Kilkenny incest case by Ms Justice Catherine McGuinness, then a senior counsel. I was Minister for Health at that time and I asked Catherine to take on the difficult job of looking into the aftermath of the Kilkenny incest case.
I forgot Deputy Howlin was Minister for Health.
She was part of a team that produced an effective and compelling report in a short period of time. That put the requirement for constitutional change on the agenda for the first time, and we have been debating it in some shape or form since. I hope we are now getting to the final stages of the debate so that we can get to a point of engaging with the people because their sovereign decision will determine whether our words become part of the Constitution. I hope we will shortly have that opportunity.
I want to mention briefly the two previous reports. The work of the committee had three milestones in its journey. The first was the report on the so-called soft information. I am heartened to hear, as reported by Deputy O'Rourke, that there will shortly be legislation on this matter. This also goes back a while. The recommendations were compelling in the Ferns Report which, unfortunately, I read with more than a degree of local interest in that it pertained to my constituency.
One of the real difficulties in protecting children is the lack of ability to alert people to significant suspicions that a sexual predator has access to children. Unless the person in question has a conviction, that information cannot be passed on. In the past few days we have heard of people, not on the sex offenders register because their convictions predate its establishment, who can set up home in neighbouring jurisdictions and no one is aware of it. That is not good enough. It will not be resolved by the proposals in the first report but it is a matter of which we should be mindful. I look forward to the publication of the legislation in this area. It has been a long time coming because one of the committee's decisions was to extract that early on as there was consensus on it.
The second, and probably much more difficult, issue the committee tackled in its second report was the issue of strict liability and a detailed examination of the aftermath of the CC case. I was a member of the first all-party committee that examined this issue and I must confess that I changed my views on it because of the debate the committee had on it. It is good that we listen to practitioners in the field and legal advice to assist us in shaping our attitudes and laws.
While not a consensus report, it was a good one. The majority recommended a legislative role in addressing the aftermath of the CC case. I did not hear Deputy O'Rourke say legislation was imminent in this area, so I hope the Minister of State will refer to it. I would not want that work to fall off the agenda or be left on the shelf in the interim.
The committee's third report deals with the need for a constitutional amendment to strengthen children's rights. The calls for an amendment go back some time. In 1996, the Constitution review group recommended the Constitution be amended to include the welfare principle and provide an express guarantee of certain other children's rights, deriving from the United Nations Convention on the Rights of the Child. The Committee on the Constitution published its report in January 2006. Its relevant recommendations concerned amending Article 41 which did not find great favour with many external commentators at the time.
Subsequent to that, in November 2006 the then Taoiseach, Deputy Bertie Ahern, said there would be a referendum on children's rights. At the time it was agreed there was a need to strike a balance between the rights of the family and the child. On the direction of the Government, proposals were brought to the Cabinet by the then Minister of State with responsibility for children, Deputy Brian Lenihan, for a referendum to amend the Constitution in respect of children's rights. In February 2007, the Twenty-eight Amendment of the Constitution Bill was published.
The committee was seized of this issue and asked to examine if the wording of the constitutional amendment was fit for purpose. A consensus emerged early on that it needed to be strengthened. It was going to be a tough task. I do not think I would be telling tales out of school if I said there was vigorous debate in the committee on whether this could be done by amending Article 41 or Article 42. The committee debated in some detail the interplay between the two articles as they stand and if they were amended.
It was a difficult balance to strike. The consensus in the committee was that the family is the bedrock of our society, the building block of our community. The committee did not want to dislodge the rights of the family in any way. At the same time, it wanted children's rights to be vindicated on their own rather than through the family provisions.
In the end it was decided a new Article 42, entitled "Children", would be recommended. That was one of 14 recommendations as contained in the report. I recommend all 14 are read because they are all interlinked and stand together. Recommendation No. 14, raised by a Fianna Fáil Member and supported by all others, states:
During its deliberations the committee noted that there is a lack of access to source information relating to cases under the Child Care Act 1991. These cases are heard in the District Court where judgments are rarely written and there is no facility for recording such judgments. The committee did not have access to any records that could assist in ascertaining how these cases are decided in normal situations. The committee therefore recommends that facilities are established to enable reporting of District Court cases on the same basis as is available in general family law cases.
It is an important issue that should not fall off the agenda.
The third report comes to 178 pages and is recommended reading for all Members and those others interested in children's welfare. Not only does it deal with its recommendations and the background history, but also with recent case law and real issues with which Members often have to grapple.
The committee proposed a new Article 42.1.1° that, "The State shall cherish all the children of the State equally". Many believe this, or something akin to it, is already in the Constitution which is wrong. Let us not gild the lily but some would argue that a provision with such wording may not have profound legal effect. However, it has a clear guiding principle for the Legislature and the Judiciary that all children have rights in and of themselves.
It was the committee's consideration to ensure any proposed amendment would establish the interests and welfare of the child as paramount, as a person in his or her own right, separate from the welfare of his or her natural or adoptive parents and other parties, including the State. It would also see, in so far as we could, a child having rights that are his or her own and could not be trampled on because of the welfare interests of a third party, even if that were the State itself.
The Guardianship of Infants Act 1964 established in law that a child's welfare is paramount. It was the objective of all committee members to take that legislative principle and turn it into a constitutional one. Various wordings were worked on to achieve this.
Under Article 40, the personal rights of all citizens, every child in the State enjoys constitutional rights that accrue to every citizen. Article 41 delineates the rights of the family and the child's rights are mediated through that. Article 42, which we seek to amend, sets out the child's rights in respect of education. Article 43 sets out the rights in respect of private property and Article 44 in respect of religion. There is a corpus of rights that exist and these have often been argued and vindicated in the courts. Our job was to go beyond that and see if we could give the principle in the Guardianship of Infants Act of the paramountcy of children's rights a constitutional status. It was a balancing act and whether we have got the balance right will be determined by the assent of the people in a referendum and by judicial case law when the exact meaning of the provision, should it become part of the Constitution, is tested in subsequent court cases. I am strongly of the view, shared by those who have spoken, that this will be a substantial step forward in a long journey to deal with the issue of the rights of children.
I thank the Chair of the committee, Deputy O'Rourke, for her tolerance of us and our vagaries. She steered us to a safe port, with a few storms en route, with her usual grace and charm. I thank the colleagues who worked in a very open way, all contributing to the best of our capacity, to achieve a common objective. This is not always the case in the way we do business here. I should also mention the staff of the committee and our legal advisers, to whom we are really grateful, but also the Minister of State at the Department of Health and Children, Deputy Barry Andrews, whose attention to the committee is to be applauded and welcomed. I am arguing in a different forum to re-establish the strength and authority of this House. It goes a long way when Ministers of State involve themselves in the committee work of the House. I hope this will bear fruit.
What now? Where do we go from here?
Quo vadis?
I can inform the House that the report has been fully debated by the Labour Party. It has been tabled, debated and endorsed by the parliamentary party. I can end my contribution by giving a commitment that if the Government brings forward this wording in a constitutional Bill, we will support the Bill and campaign for the enactment of these provisions in our Constitution. I sincerely hope that will be done as soon as possible.