I move that "Dáil Eireann;
Supports the need for a broad based amendment to the Constitution in relation to children and that, in accordance with the commitment given in the Programme for Government 2011, the wording will be along the lines of that proposed by the All Party Oireachtas Committee.
Endorses the actions taken by the present Government to progress the introduction of the amendment to the Constitution on Children.
Accepting that the Department of Children and Youth Affairs is currently, in co-operation with the Office of the Attorney General developing proposals for draft wording of an amendment to the Constitution which will build on the Joint Committee proposals.
Postpones the second reading of the 29th Amendment to the Constitution (no 3) Bill 2011 for 6 months."
Establishment of Department
As you are aware, my Department, the Department of Children and Youth Affairs was formally established earlier this month.
The decision of an Taoiseach and the government to establish a new full ministry and department for Children and Youth Affairs marks, I believe, a very important value statement about the position of children in our society.
Some commentators have asked why Ireland needs a department such as this. With 1.1 million children and young people aged under-18 in Ireland, I think the question really is why has it taken so long to establish a department committed to support, to safeguard and to cherish our nation’s children and their quality-of-life and opportunities. Our children are our future; they remain our country’s greatest asset.
I wish to take this opportunity to congratulate Deputy McConalogue, not only on your election to Dáil Éireann but also your appointment as party spokesman on Children. I look forward to your constructive engagement and indeed those of my opposition colleagues as I progress my department’s agenda to enhance the outcomes for all our nation’s children & young people.
Children’s Rights and the Constitution
As part of this ambitious work programme, I wish tonight to reaffirm the Government’s absolute commitment, as provided for in the Programme for Government, to bring before the people a proposed amendment of the Constitution to strengthen the protection of the rights of children, along the lines recommended by the All-Party Oireachtas Committee.
The current bill brought before the house tonight by Fianna Fáil limits itself to the adoption issues alone, and does not attempt to raise the broader and vitally important matters which were the subject of both the 2007 Bill and the proposed wording prepared by Joint Committee on the Constitutional Amendment on Children.
Parent-child relationships, with their deeply-woven balance of needs, rights and responsibilities, can be most complex, even within a stable and secure family setting. This is even more so in the case of families in crisis and children-at-risk.
How the state, through it laws and interventions (both at service-level and court-level) interface with the diverse experiences of families and children requires the utmost sensitivity and an appreciation that change in one area can often cause, or require change in others.
Our Constitution strikes a balance between personal rights, the status of the family, the rights and duties of parents and the power of the State as guardian of the common good.
My aim is simple: to bring forward a holistic and joined-up response to the long-identified need to strengthen our constitution to copper-fasten children’s rights and safeguard our children’s well-being while at same time supporting families.
I do not see the reasoning for bringing forward such a limited approach on just two of the sub-sections of the joint committee’s much more comprehensive proposal. I am not interested in any piecemeal approach to amending the constitution on this matter. I believe we in this House should focus our attention on the development of the composite amendment on children’s rights, which includes the provisions in relation to adoption. The principles of the Deputy’s Bill will be incorporated in that work, and it is for that reason that I don’t wish to reject the Deputy’s motion at this stage, but rather amalgamate the commonly shared principles into the broader amendment on children’s rights as had been done by the Oireachtas Committee, of which his party was a member.
The road to constitutional reform of any type can be protracted and cautious by nature. This is appropriate given the need to ensure that the Constitution, the cornerstone and basic law of the Irish State, reflects the needs, culture and ethos of the Irish people.
Background to Referendum on Children’s Rights
The suggestion of constitutional change in regard to children was first voiced by Mrs. Justice Catherine McGuinness almost 20 years ago in her capacity as chairwoman of the Kilkenny Incest Inquiry.
Subsequently, the Constitution Review Group in its 1996 Report recommended that the Constitution be amended to include the welfare principle and to provide an express guarantee of certain other rights for children deriving from the United Nations Convention on the Rights of the Child.
In 1998, the UN Committee on the Rights of the Child, examining Ireland’s first Report on the implementation of the Convention, found that Ireland’s ‘welfare practices and policies do not adequately reflect the child rights-based approach enshrined in the Convention’ and recommended in favour of the accelerated enactment of the Constitution Review Group’s recommended reforms.
Between 1997 and 2002 family rights and related issues were referred to an all-party Committee on the Constitution. That Committee reported in 2006 recommending an amendment to Article 41 to include a new section on the rights of children.
Following that recommendation the late Minister for Children, Mr. Brian Lenihan TD, undertook a review of the Constitution to examine the status of children. That review, which included wide consultation, resulted in the publication of the Twenty-Eighth Amendment to the Constitution Bill in February 2007. It sought to enshrine in the Constitution rights that would accrue to children as a distinct group and not simply as human beings and individuals or members of a family unit.
The Joint Committee on the Constitutional Amendment on Children reviewed the Twenty-Eighth Amendment Constitution Bill and recommended an alternative wording for an amendment to the Constitution.
The Third and Final Report of the Joint Committee published in February 2010 which deals with the rights of children under the Constitution, and the statute and case law concerning adoption, guardianship, care proceedings, custody and access to children.
The Committee’s final report came after five extensions to its time schedule, due to the extremely complex matters under consideration. As the house will know I served as a member of the Joint Committee. The Committee’s work was positive and focused on the need, where possible, to develop political consensus. For the main part that positive approach that led to the development of political consensus. I, in common with my ministerial predecessors, place a high value on the consensus outcome that was achieved and I will work in the same vain to ensure effective outcomes for Irish children. I would hope that introduction of the bill before us tonight does not mark or lead to a fragmenting in that all-important consensus
In developing their final report the Committee faced a challenge to balance the rights of families, children, marital and non marital parents.
Joint Committee’s Report and Draft Bill
The Committee’s report, which is extremely detailed, carefully and thoroughly examines the proposals contained in the Twenty-Eighth Amendment Bill. As an alternative to the wording contained in that Bill, the Joint Committees Report recommends inserting a new article 42 into the Constitution, restating most of the education provisions, but adding several new sections and renaming the section "Children" rather than "Education".
The proposed Article 42.1.2 provides specifically that children have specific human rights and that the State has a duty to vindicate the rights of children.
While the concept of the welfare of children is enshrined in some legislation, its use in the proposed Article 42.1 would ensure that children’s welfare would be a primary consideration in a range of areas affecting children.
The proposals in Article 42.2 would require the State to recognise and vindicate the rights of all children as individuals, as opposed to as children within the family. It also proposes that a child’s voice should be heard in any matter affecting the child, with due regard for the age of the child in accordance with the United Nations Convention on the Rights of the Child.
The proposed Article 42.4 deals with what is for many people the most complex part of the proposals. The primacy of the family is very important to Irish people, and there has been concern that by giving rights to children as individuals, rights are taken away from the family.
It should be emphasised that neither the 2007 Bill nor the Committee’s proposal are attempting to reduce family rights in any way. It is widely accepted that the best interests of the child are served by being part of a stable family unit. Indeed I would hope that through new constitutional provisions we can better protect children through supporting the family.
However in amending the constitution I want to ensure that the state’s child and family services have the power to intervene to support families in crisis at an earlier stage, so as to safeguard the well-being of children and to ultimately support the family, with the aim of keeping children from being taken into state care. Under this proposal, removal of children from their family home will continue to be a last resort.
But moving on to the proposals relating to adoption I wish to acknowledge the work of the joint committee in considering this matter in the widest possible context and in the context of legislation. Unfortunately as I have already stated the Deputy’s bill before us tonight, which is published in isolation, represents a limited approach of two of the sub-sections of the joint committee’s wording and does not achieve the government’s objective of strengthening children’s rights in the Constitution.
Furthermore, the proposal before us is phrased in a discretionary and permissive manner. It provides that laws may be enacted in accordance with the terms therein. As the Deputy is aware, there is a body of work to be done in preparing proposals to be published in conjunction with the bill to amend the Constitution in respect of adoption, to clarify the governments intended approach to the operation of this provision. The Deputy has not published any such proposal, not has he given an indication of the parameters within which his proposals would apply. The Government would like to ensure that draft adoption proposals are published before any referendum, so that the people will be clear about the circumstances in which this would apply, and where the best interests of the child would be served by it.
Article 42.5 of the existing constitution sets out the threshold for State intervention in family life on behalf of a child, where in exceptional circumstances the State may supply the position of parents. Until 1988, only the children of unmarried parents could be legally adopted. The view was taken that the irrevocable nature of an adoption order was incompatible with the inalienable nature of the family’s rights under Articles 41 and 42 of the Constitution.
The Adoption Act 2010 prescribes that adoption can only occur where the Court is satisfied that there has been parental failure in their duty towards the child for physical or moral reasons for the previous twelve months, that the failure is likely to continue without interruption until the child reaches eighteen years, and that the failure constitutes an abandonment of all constitutional rights on the part of the parents.
The result is that, to date, the availability of adoption to children of marriage has been severely circumscribed with the result that many children in care are deprived of a second chance for a stable and secure family life.
I appreciate that the proposal in the bill before us tonight appears to be formulated to allow the adoption of children where there has been a failure for such a period as prescribed by law of parents in their responsibility towards their child and where the best interests of the child so require. However the Deputy has not indicated the supporting proposals prescribing the period of time for which failure of parental responsibility has to occur. Will this be for a period of three, five or seven years? This uncertainty would be most unwelcome. As I said earlier, it is for this reason that the Bill needs to be accompanied by a supporting position paper to clarify these issues for the people.
In summary, therefore, the proposal as published in the bill before us fails to provide a coherent philosophy of children’s rights. It is unfortunately flawed in that it does not clarify the central question of how the rights of children and parents ought to be reconciled in cases where they come into some degree of conflict. If the proposed Articles were passed, the courts will have to decide these issues on the basis of conflicting constitutional criteria.
In terms of the specific issue of adoption and in the absence of legislation, the amendment could have a variety of consequences. It could require the introduction of an approach premised on the best interests of the child. It could change very little. Or, it could curtail the circumstances in which the children of unmarried parents may be adopted. To the extent that the drafting of the proposed Articles is relevant, the establishment of parental failure as a constitutional principle in all cases would suggest that the latter option is the most likely outcome. It is questionable whether the courts would, for policy reasons, adopt such a restrictive approach. However, this is a risk that cannot be discounted.
For all of these reasons I am not willing to consider at this stage, proposals which offer a piecemeal approach to amending the constitution, when a much more broader-based and well-rounded approach is, and has been the basis of cross-party consensus.
All of Irish society is governed by the Constitution. It is Government’s position that the rights of children have to be balanced with other important principles already contained in the Constitution and which, we believe, are important in protecting and safeguarding children from harm. This Government is committed to ensuring that there is no dilution of the equally important concepts of the duties of parents and the core position in Irish society of the family unit and any amendment developed will respect the constitutional position of the family .
Under the last government a draft wording was developed but in my view and that of the parties in the new Government it did not adequately reflect the good work done by the All Party Oireachtas Committee.
The Programme for Government 2011 states that the referendum on Children’s Rights is a priority, and that the wording will be along the lines of that proposed by the All Party Oireachtas Committee.
Since taking office as Minister for Children and Youth Affairs, officials from my new department have commenced discussions with the Attorney General, with a view to preparing a draft wording which will more closely reflect the outstanding work of the Joint Committee, than that which the previous government approved in draft form.
Following completion of these careful deliberations, I intend to bring the matter to Government for approval to draft a bill and hold a referendum. Recently the Taoiseach stated that the referendum will not take place on the same day as the presidential election. There is a concern that to do so may unnecessarily and unhelpfully politicise children’s rights, and that a separate referendum is more appropriate for this important and sensitive issue.
We will take our time over the next few months, although the time this government takes be a lot less than the years of delay by your party when in government.
We will take our time and we will get it right and I hope that early next year when we bring our comprehensive amendment before the people that we will have the support of all parties in this house.
In conclusion I remind the house that our Constitution is held in high esteem not only by the Irish people but also by others across the world. It has been a model for many countries and the Irish have a strong attachment to it.
I aim to present the people with an amendment that is clear and comprehensive, addressing the full range of matters identified by the Joint Committee.
This is an enormous task but it is also a great opportunity and I would invite all sides of this house to join with me over coming months and to help make a difference through progressing a constitutional amendment that properly reflects our shared commitment to support Irish families and to safeguard and cherish our nation’s children.