JOINT COMMITTEE ON THE CONSTITUTIONAL AMENDMENT ON CHILDREN díospóireacht -
Wednesday, 28 Jan 2009

Business of Joint Committee.

Chairman

Before we commence, I wish everyone a happy new year. I hope we will make good progress on our work during 2009. Apologies have been received from Deputies Neville and Senator Feeney. We would like to sympathise with Deputy Neville on the sudden and sad death of his dear wife.

During the second part of our meeting in private session we will discuss the preparation of a report on the proposals on absolute and strict liability. I welcome the opportunity to talk briefly on the approach this committee will take to our work concerning the protection of children. I thank Deputy Ó Caoláin for the letter I received from him on Monday asking that the Roscommon matter be put on the agenda for today. That has been done. I circulated his letter to all of the members and that part of our meeting will be in public session as I expect many members would like to discuss the issue. The Roscommon case, which was highlighted in the media last week, concerned the abuse and neglect of children and underlines the important work this committee must do.

I thank all the members of the committee for their great commitment over the 33 meetings we have had over the past 12 months. They have all worked hard. We presented a first interim report to the Houses and the Government recommending that legislation be introduced to permit the exchange of soft information by the Garda Síochána and other statutory agencies, for the purposes of child protection. I am pleased to note that legislation to implement this is on the agenda of the Minister of State with responsibility for children, Deputy Barry Andrews.

We are currently concluding our deliberations on the proposals concerning sexual offences against children and are working towards bringing a second interim report to the Houses and the Government in the near future on that part of our programme.

With regard to our future programme, which I mentioned on 15 October 2008, we will address the proposals on the acknowledgment and protection of the rights of children in the Constitution. Following that, we will present a further report to the Houses and the Government setting out our recommendations on the matter. We will ask the committee secretariat to prepare a paper setting out a work programme for this phase of our work for consideration at our next meeting.

We will now deal with the issue raised by Deputy Ó Caoláin.

Deputy Caoimhghín Ó Caoláin

I do not propose we repeat the substance of the Private Members' debate that took place yesterday and which continues this evening in the Dáil. However, it is appropriate to record our absolute disgust at the situation that has presented and our abhorrence at the dreadful experience this family of young people have lived through. This case must underscore for each of us the importance and urgency of the work we have been entrusted to address. This is, critically, the emphasis I want to place in this committee. We must work on the sad assumption that somewhere, perhaps in more than one situation, children continue to suffer, as the Roscommon children suffered. It is therefore imperative that by every means possible the committee expedites our process in order to address the situation as early as possible.

To that end, while we have signalled through the extension application — now approved — that we are deferring the presentation of our final report to the month of April, I was looking for guidance from the Chair, from the legal opinion to the committee and the views of colleagues here of all opinion, as to what steps, if any, we can take to bring forward our process of work. I say this, understanding all too well that a constitutional amendment or legislation of whatever variety will, of themselves, not be the panacea for all of the tragic situations that have presented, continue to and, sadly, probably will present in the future. However, where we can, we have an onus and responsibility.

I express my appreciation to the Chair for allowing me a few moments to address the matter at the outset of today's meeting. The purpose in doing so is not to replicate another forum's address of this issue, but to seek the advice and guidance of the Chair, our legal advisers and colleagues as to what we can now do to show we are addressing in a real and substantive way the issues involved.

Deputy Brendan Howlin

As this is the first meeting of this committee since the appalling events in Roscommon were disclosed, it would be appropriate to share the sense of horror and outrage the nation feels. It underscores the urgency of the work we need to do. We have been concentrating on one very complicated division of our work. The other issue, which is the need to rebalance the rights of the child in the Constitution, is our next tranche of work.

From the contributions made in the House last night I feel there is consensus on us doing that and I believe we can do so relatively quickly. Aiming to have both elements of our work addressed in a comprehensive report by April would be as tight a timeframe as we could set ourselves. We need to try to ensure that any constitutional amendment we ask the people to endorse has the right balance and will be carried.

In the House last night I said that people in a sense are outraged at what has come to pass. There is nothing new in it inasmuch as unfortunately we have seen previous cases like this. As far back as the Kilkenny incest inquiry that I established when I was Minister for Health, the recommendation of the then senior counsel, Catherine McGuinness, and her team was to have a constitutional amendment rebalancing the rights of the child. While we need to do that, I am also mindful that there will be many elements that will resist any proposition we might put. We need to ensure we have the support of as much of this House and the other House as we can in carrying a proposal if we are minded to put such a proposal. I welcome the opportunity to mention the issue and then I hope to get on with our business as expeditiously as we can to put in place the best legal framework possible for the protection of children.

Chairman

I call Senator Corrigan who, with the full backing of the committee, proposed that we send the interim report on the exchange of information to the Houses and the Government. I am happy we did so. I hope the legislation can be moved along sharply.

Senator Maria Corrigan

I echo the expressions of horror, sadness and distress in respect of the Roscommon case that have been articulated by my colleagues. It is possible that many aspects of the case will not become fully clear until the inquiry has been completed. I am mindful of the fact that an inquiry will take place. It seems to me that the comments that have been made about one aspect of the case that has come to light are particularly relevant to the work of this committee and its previous discussions. I refer to the barrier that is set when State intervention is necessary to protect a child in the family home. I emphasise that this committee has struggled with this aspect of the issue. Varying perspectives have been expressed in the submissions that have been made to us in this regard. It has been strongly suggested by some parties that they perceive the bar to be too high to allow meaningful intervention when a child is at risk. Certain parties have told us that a change in legislation will be required. Other parties have strongly indicated that a constitutional referendum will be necessary. When we asked the committee's counsel whether the adoption of the proposed wording that was before the committee would have a meaningful effect in lowering the bar the State needs to reach before it can intervene, the opinion we were given was that the wording in question would not necessarily reduce the bar in a way that would allow the State to intervene meaningfully.

I am aware of all the submissions we have received. I am conscious that we are in danger of allowing the rights of the child to be pitched against the rights of the family. It is important that we do not go down that road. We have to try to remove the fear from this process. If we strengthen the rights of the child to ensure that children who are at risk are afforded the protection of the State, we need to make sure we do not allow for unnecessary intervention in the cases of families that offer a good and safe home to their children. Some of the submissions that were received by the committee expressed concern about the real danger that the work we are trying to do could be obstructed by those who might spread fear to be fed upon.

Chairman

Yes.

Senator Maria Corrigan

If we are to prepare a report and have it ready for April, we will have to try to grapple with this aspect of the matter and send out a strong message. I am conscious that the bar that is set for State intervention, when children need to be protected, has been a repeated theme in the commentary on this issue.

Senator Frances Fitzgerald

We should not assume that the introduction of legislation to provide for the constitutional protection of the rights of the child would have made a difference in this case. It may be a question of procedures, practices, resources and communication between agencies. Ten years ago, the Kelly Fitzgerald report pointed out that as a society, we are reluctant to take action in cases of neglect within families. Irish society seems to have quite a high level of tolerance for such neglect. The Kelly Fitzgerald report, which made it clear that this is a relevant issue, made the point that people are reluctant to intervene in families unless there is a suspicion of sexual abuse. It is important to emphasise that a range of other forms of serious neglect and abuse can cause children to suffer.

I would like to comment on a point made by Senator Corrigan. Families will benefit if the rights of the children of this country are strengthened. We need to cast the debate in that light. I believe this committee should and can meet that challenge throughout this debate. We need to challenge the old-fashioned view that protecting children's rights involves undermining the family. That is not the case.

The Roscommon case has been debated in the Dáil. As a member of the Joint Committee on the Constitutional Amendment on Children, I am strongly of the view that the HSE should not investigate itself. I suggest that a commission of inquiry, independent of the HSE, should be established as provided for in legislation. Things were different at the time of the Kelly Fitzgerald report. The health board in question was investigated by a different health board. It was a different part of the organisation. We now have a single organisation — the HSE. I would like to think the committee could agree that the group that has been appointed should be independent. I am not sure a mechanism is available to the committee to make such a recommendation to the Minister of State with responsibility for children at this point. He should review the manner in which the inquiry has been instituted. While I have no problem with the people who are leading the investigation, I believe it should be an independent commission of inquiry with wider terms of reference. We need to examine the role of the various agencies in this case. I am not sure that can be done under the current terms of reference. I thank the Chairman for allowing us to make some comments as part of this debate.

Chairman

I thank Deputy Ó Caoláin for proposing that this matter be placed on the agenda.

Senator Alex White

I do not disagree with anything my colleagues have said. I would like to strike a note of caution, however. I do not wish to delay this discussion in any way. We should deal with this issue as quickly as possible in the coming weeks and months. I agree with Senators Corrigan and Fitzgerald that the strengthening of children's rights would not, in itself, undermine the family. We should not fool ourselves into thinking we will not have a very difficult task in this regard. The family has a privileged position in the Constitution. It has been explained to the committee that at present, children's rights are essentially mediated through their membership of families. It is proposed to give children independent rights — rights other than those they automatically enjoy by virtue of their membership of their families. I will enthusiastically support any effort on the part of this committee to help achieve that important objective. I do not think we can fool ourselves into thinking we will not encounter difficulties as a consequence of the peculiarly strong position of the family in the Constitution. We will have to address it. We will be unable to recalibrate or rebalance children's rights without dealing with some fundamental constitutional issues. Our legal advisers have explained to us that we will not have a particularly easy task in this respect.

Deputy Thomas Byrne

I apologise for being late. I echo what other members have said about the respective strengths of the rights of the family and the rights of the child. The Constitution cannot be said to protect abusive or dysfunctional families in which children can be damaged. That should never be our goal. It is evident that we cannot protect the family at any cost. It is crucial to protect regular and irregular families that are working well to nourish and nurture children. At the same time, we need to assist children who are at risk in their families or are trapped in horrific abusive situations. In such cases, the rights of the child should trump the rights of the family. There is no question about it. In doing so, one promotes family life, which is about providing a good life for children as they are being reared by their parents.

I note from many of the submissions we have received that some fear that children's rights would trump family rights and that this would have an effect on tradition, religious values and so on. Our focus on the rights of the child began when the previous Taoiseach made an announcement before the previous general election. Our agenda should not be driven by moral panic arising from one case but by the need to do the right thing. The case in question is not the only one and others will occur. The joint committee should be driven by the belief that it is important to protect the rights of the child in the Constitution and that these rights could, in certain circumstances, trump the rights of families. In doing so, we would protect families and children.

Deputy Seán Ó Fearghaíl

The pertinent points have been made. One of the key points is to ensure we move ahead as quickly as possible to meet the April deadline. To turn adversity to advantage, the Roscommon case, in its appalling nature, will serve as a salutary warning to the electorate in the event of a referendum that families can fail, as one manifestly did in this case. This argument will trump the fear-mongers who will campaign against a referendum. Senator Corrigan made the key point that we must readjust the balance and lower the bar to create a culture in which the State can intervene to protect the rights and interests of the child.

Chairman

I thank members for their comments. The Child Care Act 2001 allowed State intervention to assist children in circumstances such as those described. It may well be the case, as Senator Fitzgerald stated, that a lack of interagency communication, incorrect use of resources or other reasons were pivotal in the case in Roscommon. None of us will know if that is true until the report on the matter is prepared.

While we are all outraged at the depravity about which we read, outrage does not last long and further awful events will occur in different areas. To keep fresh a sense of outrage about what happened to six children in a rural part of a rural county, the committee must proceed with haste. I do not know how we will be able to balance the rights of children with the rights of parents. It may well be the case that practical and technical reasons rather than the absence of a constitutional amendment resulted in the failure of the current provisions to help children. I note from a newspaper report that Ms Nora Gibbons, in whom I have great faith, has indicated she will, if necessary, seek a change of remit when she commences her work. I do not propose to discuss what the inquiry will do, as I do not know what it will do.

We will not be able to prevent the outrageous things which will be said and done as we proceed with our work. Sadly, there is no point in getting cosy about lovely families and children or saying we will all work together because things do not work out like that. Since last weekend I have received about five anonymous letters and four dreadful telephone calls. This is only a foretaste of what we can expect as we proceed. We will need to be stout of heart.

To pick up on one issue raised, while I accept a constitutional amendment may not have tipped the balance, if approved, it would provide a surety for those who seek to help children, as it would be written into the Constitution and provide certainty in the relevant circumstances.

I thank members for their considered opinions. We will ask the legal advisers to the joint committee to prepare a paper setting out a future work programme for this phase of our work. It will be considered at our next meeting.

The joint committee went into private session at 5.25 p.m. and adjourned at 5.55 p.m. sine die.