Seanad Éireann
31st Amendment of the Constitution (Children) Bill 2012
Second Stage
Minister for Children and Youth Affairs Frances Fitzgerald TD
Tuesday 2 October 2012
Successive Governments have made promises to strengthen children’s rights in the Constitution and with this in mind I heartily congratulate this Government, and in particular the Minister for Children and Youth Affairs, Frances Fitzgerald TD, for publishing the wording and for setting the date for the Children’s Referendum.
Acknowledgement of the need for this change is not new. It was first raised in the Oireachtas over thirty five years ago by former Senator, and later President of Ireland, Mary Robinson during the 1976 debate on the powers of the Adoption Board.
In recent years the Oireachtas has spent significant time discussing horrific reports concerning the abuse of children.
When the Child Death Review Group Report (Shannon, Gibbons) was published in June, I expressed my profound sadness and a sense of the responsibility and shame I bear as a member of a society that has systematically failed to protect our most vulnerable children.
The opportunity of this Referendum brings us closer to securing constitutional change that will make a real and positive difference to all children in Ireland.
For several years I have campaigned for children’s rights. Along with others we moved the need to strengthen children’s rights in the Constitution up the political agenda and I would like to take a brief moment to pay tribute to others whose steadfast commitment and dedication to children’s rights has helped bring us to this vitally important juncture:
• Firstly, thank you Minister and I would like to commend this Government for prioritising this Referendum.
• Former Minister for Children, 2002-2007, the late Brian Lenihan TD. Brian Lenihan was the first Minister for Children to secure a seat at Cabinet, was instrumental in securing significant advances for children during his tenure. He recognised the need to bring about constitutional change for children and threw his energies into examining the issue.
• Former Deputy Mary O’Rourke, who in her role as Chair of the Joint Committee on the Constitutional Amendment on Children worked to secure all party agreement on this issue. She was aided by all members of the committee but I would like to pay particular tribute to now Minister Alan Shatter TD and Deputy Caoimhghín Ó Caoláin TD who in their respective roles as opposition spokespersons showed great leadership.
• I would like to pay tribute to the NGOs and civil society organisations who have been convinced of the need to strengthen children’s rights in the Irish Constitution for a long time and have campaigned relentlessly to spur us onto this point. In particular I should highlight the role of the Children’s Rights Alliance, Barnardos and ISPCC along with over 100 members organisations of the Children’s Rights Alliance.
• And last, but most certainly not least, Dr Geoffrey Shannon, whose expertise on child and family law is renowned. And I believe his work as Special Rapporteur on Child Protection has heightened public awareness.
Balance
Now to move to the Amendment before us that will shortly go before the people of Ireland for their considered opinion. I don’t think it will be a surprise to you that I would have preferred if it had gone further in a number of areas particularly in stating certain rights, such as the right to identity.
I am keenly aware that more than 50,000 adopted people have no automatic legal right to their birth certificate, no legal right to their medical information or history, or any legal right to trace information about their identity.
I believe that we will be able to partly address this issue through legislation but that aspects may need to be addressed at constitutional level. And so I note here today that this is an issue I will continue to advocate for legislative and constitutional change on.
I did consider tabling some amendments Minister but felt, after considerable reflection, that the wording of this proposal strikes an appropriate balance.
However, I believe it necessary that certain points, and indeed concerns, are put on the record. Furthermore, I will be asking you Minister to confirm your commitment to resolving outstanding issues and I am reserving my right to bring forward amendments at Report Stage.
No Panacea
While I have long-awaited this referendum, I know that even a successful referendum will not be a panacea to solve all ills and there are many issues facing children and families today that I will continue to advocate strongly for, both inside and outside the Seanad.
I believe it is our role as legislators to be ambitious on behalf of the people of Ireland and in this case on behalf of children and their families.
I am convinced that a constitutional Amendment on children’s rights is absolutely necessary.
It is needed to overcome legal roadblocks that are preventing us from fully protecting children and supporting families; that is hampering us from making decisions that are child-centred; and is preventing us from reforming our adoption laws.
Referendum Campaign
And to turn my attention briefly to the campaign period that we are about to commence.
In years gone by, children were seen but not heard. I hope we won’t have a campaign where we see but don’t hear – you see the posters on the lamp-posts but the airwaves are practically silent, and decisions are made in a void.
I believe that the media will have a critical role to play. From speaking to groups over the last few days I believe that there is a real appetite to know exactly what they are being asked to vote on.
People don’t want to hear generalities about children’s rights. They want to understand what this amendment means.
I have also heard parents say that this amendment ‘won’t affect my child’.
And yes, maybe it won’t affect your child but it is every parent’s safety net, which I hope they will never need to use, but if there is a family bereavement or breakup for example– you’ll want there to be a legal safety net already in place.
I believe that we should not underestimate the power of the people of Ireland having an opportunity on 10 November to say YES – children have rights.
So I call on all the journalists to take the time to understand what this referendum means and use their platform to inform the public.
I call on all of the political parties, groups and representatives to use their voices and indeed their feet to inform as many people as possible. I know that several NGOs and civil society organisations have campaign plans in place.
It is equally fitting that the Referendum will take place on Saturday 10 November, the birthday of Pádraig Pearse who when reading out the Proclamation in 1916 urged us to cherish “all the children of the nation equally”. And yes, I know that he didn’t literally mean children but the concept of ‘cherishing children and childhood’ is something that I believe is close to many of our hearts.
I also very much welcome the decision by Government to hold the Referendum on a Saturday, thereby allowing young people to go back to their constituencies to vote and ensures that schools do not have to close unnecessarily.
I strongly advocated for Saturday voting when I was the President of the National Youth Council of Ireland back in 1999 and maintain that this should be the case for all referenda and elections.
Let me take the Amendment point by point and I propose where time does not permit today I will come back to address any remaining points that I would like to raise at Committee Stage.
Article 42A, point 1
1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
The potential of this provision is huge. Its interpretation will be very important as it is the bedrock of the entire amendment. I trust that the Courts will be informing their interpretation of the provisions against the UN Convention on the Rights of the Child.
Minister, should the Courts be looking to establish “the intention of the framers” in guiding their interpretation, will you confirm on the record of this House that this Amendment has been drafted to be in keeping with Ireland’s international treaty obligations as contained in the UN Convention on the Rights of the Child and as has been recommended by the Committee on the Rights of the Child on two separate occasions (1998 and 2006)?
I believe that this provision should guide and potentially strengthen the protection of children in other areas if read with other laws. It provides signposts to the courts, to policy makers and decisions makers that children are independent rights holders.
Much has been made of the term ‘as far as practicable’ but this is standard constitutional drafting. It will be our role as legislators to articulate and express these rights appropriately in legislation
Article 42A, point 2,1
2. 1° 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.
Moving to Article 42, 2, 1, I have stated on several occasions that I hoped the proposed Amendment would enumerate the word “proportionate” and so I very much welcome its inclusion.
I also welcome the removal of the specification of failure for ‘physical or moral’ reasons, and in its place the insertion of the phrase ‘to such extent that the safety or welfare of any of their children is likely to be prejudicially affected’. I believe it reframes how we view child protection – instead of looking to why the parents fail we are instead looking at the impact of their failure on their child.
All too often I have heard of cases, which start by someone, a teacher or health professional reporting a concern about a child. The social worker will arrive at the family’s home to investigate the concern and because of the current constitutional framework instead of first looking at the child, their family and the surrounding environment the social worker will have to ascertain the marital status of the parents because the threshold for intervening in a married and unmarried family differs so substantially.
I believe in the current situation we have, the focus is all wrong. It seems intervention is more about building a case against a family. Obviously in the exceptional cases where a child is in danger an immediate intervention should take place to protect that child. But in the majority of cases there is an on-going concern for the welfare of the child. In these cases we should be empowering both the State and the family to work together to remedy the situation. We should be working to keep families together. And, if after a defined period, remedy cannot be found then I think the emphasis should move to the best interests of the child.
I would like to note, for the record, the proportionality test as set out in law in Heaney-v-Ireland. The test is: The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:—
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible, and
(c) be such that their effects on rights are proportional to the objective
Currently the majority of care planning does not include thinking of a permanent care solution for children. Children can drift in the care system indefinitely. This provision will be a significant shift in how we approach taking children into care. It will reframe how and when the State should intervene. It has important safeguards built in to protect against unwarranted interventions by using ‘exceptional cases’ and ‘proportionate’.
Minister I did consider amending the Irish language translation of ‘exceptional’, to which some have attributed the literal translation “uncommon”, but I am now satisfied that there is sufficient judicial precedent around ‘exceptional’ to allay any concerns I had in this regard.
This provision also holds that the State will ‘supply the role of the parents’. I think there is some confusion and concern about what this means. To supply, in the context of State intervention, will not mean in all cases that the State will replace or take over from parents.
The term supply also means ‘to make available for use; to provide; to furnish or equip; to make up for a deficiency; to compensate for or to serve temporarily as a substitute. And so in the majority of cases it means the State will support the role of parents and families.
Article 42A, point 2,2
2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
Article 42A, point 3
3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
Now to consider Provisions 42A, 2,2 and 3, in relation to adoption. Firstly, I very much welcome the publication of the Ministers intentions in relation to the Adoption Bill. This is an intricate area that will need some thoughtful and careful consideration. There are currently about 2000 children who, if this legislation is passed, may become eligible for adoption: that is children that have been in foster care for five plus years. And I should add, not every child wishes to be adopted, nor does every foster parent wish to adopt.
We need to ensure that there are options available to suit each circumstance. I would encourage you Minister to introduce the Bill to the Seanad first.
I welcome the use of the term ‘shall be made by law’ although I feel its power has been overstated in some statements. Effectively it means that these provisions will be dependent, and in fact puts an obligation, on the Oireachtas to legislate.
This is the first of four places where a commitment is being made which must be provided for in law.
I welcome the publication of the Adoption Bill but there are other parts of this amendment to the Constitution that we need to legislate for at the earliest opportunity if the amendment is successfully passed by the people. I think it is very important the Minister outlines the timetable for legislation in all aspects of this amendment.
These provisions will remove inequality in adoption – ending the different treatment of children of married and unmarried families in the area of adoption. It upholds the spirit of Article 2 of the UN Convention on the Rights of the Child. “All rights apply to all children without exception. It is the State’s obligation to protect children from any form of discrimination and to take positive action to promote their rights.”
I believe it will also extend the number of care options for children. It will necessitate a change in how we think about care and allow for us to consider the full continuum of care at a much earlier stage.
Another important question is how judges will balance these provisions against Article 41?
When discussing the N v HSE [2006] more commonly known as the Baby Ann case – I have always stated that strengthening children’s rights may not necessarily have changed the outcome of this case. However I do believe this amendment would have changed the way it was handled.
In effect the case could be summed up by saying: “You have my property – I am entitled to it and so give me my property back”
The judgment in this case follows a long line of jurisprudence in the adoption field particularly two, dating from 1966 and 1985. These judgments are Re: J [1966] I.R. and Re: J.H. [1985] I.R. In both of those cases the courts concluded that the child should be returned to its natural parents.
This amendment would have allowed for baby Ann to be viewed as an autonomous being with constitutional rights – the same as any other citizen – not greater or lesser but equal.
This is not just a question about making married children available for adoption but it is also about increasing the care options for all children – providing a second chance regardless of the marital status of their parents. This is about giving some children a ‘second chance’ for a stable, secure and permanent family life.
Article 42A, point 4
4. 1° Provision shall be made by law that in the resolution of all proceedings-
i. brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii. concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
Minister, when considering Article 42A, point 4, 1, I recognise that you wished to exclude cases taken against the state by using the term ‘brought by the state’ but this has unintended consequences. Which, I would ask you to commit to addressing through legislation.
Will this provision has the potential to undermine the ability of the courts to take into account the voice of the child in relation to the Child Abduction and Enforcement of Custody Orders Act, 1991?
During the debates in the Dáil last week {indeed today} I have heard the Kilkenny, Roscommon and indeed Child Death Review Group reports cited. This provision does not remedy the failure of the State to act on the concerns of family and extended family members, which were features of these reports and this concerns me.
When ‘provision is been made by law’ we will need to also address these types of cases. Whilst I acknowledge there will not be a constitutional bar we do need to ensure that the principles intended are upheld.
We also know that the majority of children who come into care are outside of the court orders of the Child Care Act 1991 as they are in care on a voluntary arrangement. In addition, I worry that homeless children will not be covered by this constitutional provision if they are being provided with accommodation under Section 5 of the Child Care Act 1991. Will the Minister confirm her commitment to bring legislation covering these categories of children into line with these constitutional provisions?
The Provision does not deal with the best interests of the child in administrative proceedings. I know everyone thinks of education but for me what sprung to mind (given my work in Europe) is the EU Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters parts of which were brought in by Statutory Instrument last year thorough S.I. No. 209/2011 — European Communities (Mediation) Regulations 2011. I know that Minister Shatter earlier this year advised that he is working on a Mediation Bill to encourage and facilitate the use of mediation to resolve civil, commercial and family disputes. I would ask Minister Fitzgerald to give a commitment that she will work to ensure that this legislation will reflect the principles of the UN Convention on the Rights of the Child and this proposed constitutional amendment, in particular in relation to the best interests of the child and their voice in administration hearings such as mediation.
The Oireachtas shall be obliged to pass legislation in the areas I have outlined. It will be a duty on this House. The clock will start ticking if the people of Ireland say Yes on 10 November.
The second part of Article 42A, point 4, 2 goes to the heart of the role that children will play in proceedings that come within the scope of the constitutional amendment. The amendment undertakes two key activities:
• Ascertaining the views of a child, who is capable of forming said views;
• Giving due to weight to those views having regard to the age and maturity of the child.
International standards and guidelines recognise the importance of engaging with and listening to the child in order to fully guarantee their right to participate in the court process. Full and effective implementation of the right of the child to be heard also serves to enhance young people’s comprehension of the consequences of proceedings for themselves, their family and other key stakeholders relevant to the proceedings in question.
I see this as an enabling provision, in which the Oireachtas is constitutionally obliged to make provision for it in law.
Ending
Let me end with a question that I have constantly asked since the publication of the wording – Will this make a positive difference?
My answer is an unequivocal YES
Reforming the Constitution is a fundamental step towards making Ireland the best place in the world to be a child. A constitutional amendment is only one step – albeit a critical one.
As part of my current and previous role I have met many survivors of abuse who have shared their experiences, their hurt, and their nightmare. In every case these individuals of such integrity have encouraged me to advocate strongly to strengthen children’s rights in our Constitution. So in part I see this amendment as a way of atoning for our past whilst ensuring the children of today will be better protected and cherished.
Anyone who knows me knows that I am very pragmatic person who is working to bring about positive change to people’s lives. I try not to get caught up in the theory but prefer to focus on areas that will make a difference.
If the people of Ireland say Yes on 10 November I believe our work will only be just beginning and I hope that I have outlined some of the challenges which I believe lie ahead.
I believe that the wording is tightly and well drafted. I think the clear message to the people of Ireland is that this is setting us in a new direction. It is not a minimum but more of a starting point.
Once again, may I thank you wholeheartedly Minister for all of your work and commitment to date. I think we are already seen some of the fruits of your work.