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

I am grateful for an opportunity to speak on this important Bill. I was elected to the House in 2011 when, for the first time in our history, the Taoiseach appointed a full Cabinet Minister with responsibility for children. It is important to pay tribute to him and the Tánaiste for recognising the importance of placing our children at the heart of government. The establishment of a full Department of Children and Youth Affairs is significant as it signals the intent of Fine Gael and the Labour Party in government to address children’s rights.

Over the next seven weeks, children will be at the heart of political debate. This fact alone is to be welcomed. To date, opposition to the referendum is small and focused, which tells us much about the weight of opinion behind the “No” side of the debate. Nevertheless, it is important we examine the points of opposition to the Bill and referendum. The former Supreme Court judge, Hugh O’Flaherty, has argued that the referendum is unnecessary and in a recent eloquent article in the Irish Independent referred to the skill of President de Valera in drafting the 1937 Constitution. While I am not a lawyer or constitutional expert, it is clear from the Roscommon child abuse case that our Constitution proved inadequate when challenged to provide for the care of children. The shocking case to which I refer, involving the abuse and neglect of children at the hands of their parents, was well documented and highlighted in the media. Social workers who sought to intervene to protect the children in question were met by a High Court challenge taken by the parents of the children in question. Their action was successful and the children continued to suffer for some time afterwards.

Unacceptable as it was, the judge’s decision in the case was based on a reading of Bunreacht na hÉireann. The children’s interest makes the case for change. The new Article 42A provides that: “In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

Of approximately 30,000 child protection and welfare concerns reported to the welfare services last year, the majority were addressed by way of support to the parents and families in question. More than 16,000 of them related to child welfare, including 1,500 confirmed cases of sexual, physical or emotional abuse. This referendum seeks to ensure children at risk are protected from harm and sets out when and how intervention should occur. Intervention is an issue for the small number of people who oppose the referendum who argue that personnel from the Health Service Executive and social services will have carte blanche to remove children from their parents and homes. However, the key proposal sets out when and how intervention should occur and provides for a focus on the child in that it refers to the impact of parent failure on the child’s safety and welfare rather than solely on such failure and the reasons for it. Overall, Article 42A focuses on affording protection to children under the Constitution, while respecting and preserving the rights of parents and families.

I welcome developments in adoption reform. I listened recently to a radio interview with a lady who detailed how she and her family had fostered a child for 12 years beginning at the age of three. It was obvious the child in question was in a loving home where it was cherished and loved. When the child sought to be adopted by the foster family, with its wholehearted endorsement, this provided impossible. The legislation and proposed constitutional amendment, if passed, will change the position for children and foster families in such circumstances and is, therefore, warmly welcome.

For many years, some children were taken into care and institutionalised and it is well documented that the State did not protect them. However, many people have provided magnificent support and care in their homes for children who had to be taken from their parents as a result of abuse. Many of the children in question were fantastic individuals who were able to progress to adulthood and lead lives free from social and mental deprivation. The real heroes are the foster families and the women and men who lead them. The referendum proposal and associated legislation to be published at the same time will provide greater possibilities than are currently provided for children to have a second chance by means of adoption by a loving family. In addition, it is intended to allow for the first time for the voluntary placement for adoption of a child of married parents who voluntarily decide they are not in a position to care for it. Such voluntary placements are currently only possible in the case of children of unmarried parents.

I share the belief held by many other Deputies that the family is at the centre of society and life. This is a Christian philosophy. I sometimes worry what the future will hold if the family model breaks down. Social breakdown, crime, drugs, sexual abuse and underage alcohol consumption have all resulted from family breakdown. When one parent leaves a relationship, the other partner may not be in a position to manage the children on his or her own and matters spin out of control. While this may be a debate for another day, it is a concern for society when family units break down because children in such broken partnerships often lose their way.

I welcome the proposal in the Bill to give firmer recognition to the protection of the rights of children under the Constitution while continuing to respect and preserve the rights of the family, as set out in the existing Article 41 of the Constitution. Many other proposals in the Bill are also worthy of mention but time does not permit me to discuss them. My final words are for the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, and her team in the Department who worked hard over the summer to prepare the legislation. They have got the wording and timing of the referendum right. The criticism levelled at the Minister that she should have moved more quickly and announced a date for the referendum earlier is not valid. Time is needed to prepare any proposed wording to change the Constitution.