Speech on the Thirty-First Amendment of the Constitution (Children) Bill

This Bill will facilitate one of the most important referendums in the history of the State. I am always appreciative of speaking time in this House but I am particularly grateful to be able to speak today on an issue that is particularly close to my heart. The cornerstone of any democracy is its constitution. Equality should be the foundation of our democracy. As a result of this legislation, we will finally give our children the protection of our Constitution. I do not think anybody can object to that. Over 30 years have passed since the then Senator Mary Robinson first expressed the need for constitutional change for children. In the intervening period, a series of official reports have made the case for strengthening children’s rights at constitutional level.

These include the Kilkenny incest report in 1993; the Constitutional Review Group in 1996; the Joint Oireachtas Committee on the Constitutional Amendment on Children in 2010; international authorities such as the UN Committee on the Rights of the Child in 1998 and again in 2006; and, the Council of Europe Commissioner for Human Rights in 2007 and more recently in 2011. As evidenced by the marches in support of victims of child abuse, the public appetite of the people for change is also clear.

It has taken this Government to have to courage to acknowledge the State’s responsibility to children. Upon taking office, the Government immediately made significant inroads into improving Ireland’s child welfare and protection systems with the appointment of a senior Minister for Children and Youth Affairs and the establishment of a Department of Children and Youth Affairs, which were big and important steps. We have already seen momentum, with child protection reforms taking place, with the Child and Family Support Agency and the legislation on Children First, the Criminal Justice (Withholding Information on Crimes Against Children and Vulnerable Adults) Bill and the National Vetting Bureau Bill. All mark significant progress in the direction of Ireland’s commitment to improving child protection and welfare and set Ireland on course to meeting the recommendations set out by UN Committee on the Rights of the Child’s in 2006.

We need laws that will protect children from harm and give them status as individuals. Now, with the insertion of explicit children’s rights into the Constitution, which had been mooted for a long time, the Fine Gael-Labour Government is keeping the promise to hold such a referendum, a children’s referendum. We will be voting to insert an article into the Constitution, as the Taoiseach said, “dedicated entirely to children as individuals, as citizens in their own right”. For the first time in the history of the State, children will become more than just the property of their parents.

I would like to compliment the Minister, Deputy Fitzgerald, and her Department on their work in getting this legislation ready. She took time to get it right and it has been noticeable that the response to the wording from all corners of the spectrum has been welcoming, including from the Opposition. We have had a plethora of reports highlighting the neglect, abuse and exploitation when children’s voices were silenced and their best interests ignored. Those working with and for children agree that constitutional change is required to ensure that children are fully protected in society and that their rights are taken into account in decisions made about their lives.

Why do we need a constitutional amendment to strengthen the rights of children? At a minimum, the express and individual rights for children at constitutional level will reflect the value we place on our children in society and ensure that they are the focus in budgetary, political, administrative, legislative and other decisions affecting them. The lack of recognition of the individual rights of the child has led to some poor judicial decisions affecting children. Unlike cases involving children of unmarried parents, in cases involving children of marital families, due to the constitutional presumption in favour of the family under Article 41, no independent investigation can be undertaken as to the child’s best interests in the court’s decision making unless the exceptional circumstances outlined prevail. A key example of this is the “Baby Anne” case.

The Constitution allows discrimination to persist between children based on the marital status of their parents, with the strength of the rights afforded to children reliant on whether their parents are married or unmarried. The “Baby Anne” case is also a relevant example in this regard and shows how the rigid judicial interpretation of Articles 41 and 42 has impinged upon the effective operation of our child protection, care and adoption systems.

Children’s rights are human rights, with particular attention to the rights of special protection and care afforded to the young. With this referendum, we are acknowledging the move towards viewing child protection through the lens of children’s rights, indeed, through a human rights lens. The field of children’s rights spans the fields of law, politics, religion, and morality. Children in Ireland, as in many other European countries, were historically sidelined in society. The State on its foundation in 1922 inherited a 1908 Act that was to be the main instrument for child protection for most of the 20th century until the enactment of the Child Care Act 1991. The failure to amend and overhaul that legislation for more than 80 years speaks eloquently of how children were viewed.

The 1937 Constitution largely saw children in the context of the family, which was interpreted to mean only the marital family. Children’s rights were not considered. That their voices were not heard, that their family ties were not respected, is now well recognised. The lack of recognition and complete disregard for the human rights of children and young people inevitably led to a situation where policy focused on protecting the income of the institution, a State that did little or nothing to increase support to families in need.

Childhood is a precious time and does not last very long. Children must be protected and their rights promoted to ensure they are consistently treated with the respect and dignity they deserve. The wording to be inserted into the Constitution is crucial to its success as it balances the rights of children with those of their parents. Most significantly, the best interests of the child are to be the first and paramount consideration in the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child. Making children visible in the Constitution will help to foster a new legal landscape for children in Ireland.

Perhaps the greatest recent adjudication on the proposed amendment came from Ms Anne Rennison, who over 25 years has fostered six children long-term and 20 short-term. She said on “Morning Ireland” in recent days that the referendum will acknowledge the rights of children and hear the voice of children, the children who in the past and to this day are “no longer safe” in our society. This is a chilling and tragic indictment of the way we have approached matters in the past. In conclusion, if this amendment can prevent one more crime against a child, if it can make one child’s life safe, if it can make one family more complete, then this House will have done a good day’s work.