25 September 2012

31st Amendment of the Constitution (Children) Bill 2012- Second Stage Speech


A Cheann Comhairle,

I come before the house to move a bill that will allow for one of the most important referenda in the history of the state.

And I would like to begin with thanks.

I would like to thank the members of this house on both sides of the political divide who gave so much time and effort to the development of the amendment we are now proposing.

And I would like to thank those, in every party who have expressed support for the recommended change.

Few changes matter as much as this. Most of what we do in this house is about legislation. And legislation, by its nature has to be about delivering for the needs and problems of today.

Constitutional change goes beyond that.

Way beyond that.

It gives us the rare opportunity to look at ourselves as a nation and ask if we are truly espousing the correct values. It gives us the opportunity to assess what we stand for. Ultimately, constitutional change allows us to consider future generations and ask ‘what Ireland should they live in?’

We are rightly proud of Bunreacht na hEireann. We are rightly proud to live in a state defined by a document which enshrines personal liberty, protects rights and guarantees religious freedom.

Over the decades, the society defined by ideals like those has become taken for granted. We assume our rights. We rarely question the freedoms or guarantees provided to us in our constitution. The average citizen doesn’t wake each morning, grateful for the protections provided to them by a document nearly eighty years old.

Few  think of the constitution every day.

In one way that proves the effect of Bunreacht na hEireann, the values it espouses and rights it provides are so intrinsically connected with being a citizen of this nation that we rarely question from whence those rights and values come.

In reality, the only time the average person really needs to pay direct attention to the constitution is when it is discovered to be lacking or when they need to rely on it to protect their rights.

And in relation to the state’s children. It is lacking.



Since Catherine McGuinness’s call in the report on the  Kilkenny incest case,  successive governments have received report after report - and evidence upon evidence - that the constitution is failing our  children.

Reports such as that on Kelly Fitzgerald and the West of Ireland Farmer Case,
Reports such as the Ryan Commission Report and the Cloyne Report.
And reports in between, such as Roscommon.

In all 17 major reports on gross child protection failings.

Those reports are added to by the achingly sad personal evidence of those adults whose childhoods were poisoned with violence, neglect, abuse and loneliness. Those who suffered at the hands of family members, state institutions and religious institutions.

Every person in this house knows now that for decades, Irish children suffered in their own personal hells, while the system was unable, unwilling or  simply un-motivated to do anything.

That knowledge leaves us facing a simple question.

Constitutional law can be complex.

The question facing us is not.

Constitutional language can be subtle and nuanced.

The question facing us is not.

Constitutional change can be contentious.

The question facing us is not.

The question facing us is simple. “Do we believe that the way children were treated in this state represents what we believe to be the values, morals, and ethics of the Irish people?”

The answer is pretty simple too.

It’s a no.

None of us are proud of what happened to thousands of Irish children since the foundation of the state. None of us believe or  think that brutality, ignorance and neglect are the attributes that characterise us.

We as a nation are fair, decent and honourable. If you attend any of the citizenship ceremonies which welcome the new Irish to our national family, you will see people proud to be joining a nation that they know stands for something. A nation that has at its core a belief that people are equal,  that they deserve fairness and that  they must be protected from harm.

Up until now we have failed to make sure that those beliefs are adequately expressed and enacted in relation to children.

This referendum is our opportunity change that.

This referendum is our opportunity to create fundamental change in how we treat children.

In fifty years, we must hope that no-one will pay much attention to Article 42A of the Constitution.

We must hope that it will be assumed. We must hope that all children will have rights, will be protected and will be treated equally.

We must hope that Article 42A just  becomes one more strand in the fabric  of Irish life, defining directly and indirectly our belief that children deserve to be enveloped by the characteristics that make us proud to be Irish.

We must hope that someday the rights accruing to Irish children will be implicit.

Until then we must make them explicit.

64 dedicated meetings of the Joint Oireachtas Committee on the Constitution Amendment on Children, of which I was a member, proposed changes to protect children, to give them legal clarity, to name children’s rights at Constitutional level and achieve the right balance with other aspects of Bunreacht  na hEireann.

Since taking office, my Department and I have been working on this Amendment together with the Office of the Attorney General to make the transition from an Oireachtas Committee proposal, to a robust Constitutional wording; and to achieve the right balance; one which will have the desired effect for children.

This  Referendum Bill  proposes a new standalone article, 42A, titled ‘Children’, which will contain a series of provisions and will be put to the people as one, single, question for their approval.

I want to emphasise that the Constitution must of course be read as a whole. Changes to the Constitution and the formulation of appropriate wording to achieve the desired change, is a complex and challenging task.

The aim of the Government, in this case, has been to present a coherent proposed wording which will interact in the manner intended  with the Constitution as a whole.

It has been very carefully balanced in the final draft before us today. The balance to be struck is critical.

This Referendum Bill does not remove or diminish the recognition given to the family under the Constitution. Nor does it remove or alter the rights and duties of parents, under the Constitution to provide, in accordance with their means, for the education and care of their children.

However, it identifies and brings the greatest possible clarity to a number of key areas:
For the Oireachtas in future law-making relating to children;
For the Judiciary in future decision-making relating to children;
But most importantly for all of us, as a nation, as a state.

This is an essential Amendment for our Constitution, which I hope, following Oireachtas consideration,  will be supported by the people on November 10th.

It is a statement about the rights of our children,
It is a statement about our views of Irish childhood now.

This referendum will:

Strengthen the protection of all children from abuse and neglect by putting their safety and welfare at the centre of decision-making;

it will support families by re-affirming and underpinning the States continuing development of early intervention and family support services to protect children in their homes;

it will treat all children equally when it comes to issues such as adoption, regardless of the marital status of their parents; and

it will recognise children in their own right by providing, for the first time, an express statement of their rights and giving Constitutional standing to the best interests and the views of the child in child care and family law proceedings.

Who is it for?

This is a Referendum for all children, but in particular for those children most vulnerable and most at-risk.

Childhood does not stand still, childhood can be a very vulnerable time and effective and timely decision-making for vulnerable children is critical

We know that the vast majority of children live in loving, caring families and never require the assistance of the State’s child protection and welfare services.
But we also know that this is not always the case.

Some families do need help and support in parenting their children. This can involve providing help and support to parents by means of family support including addiction and mental health support and family and individual counselling.

But in the more serious cases, children may be moved from the family and cared for by people other than their parents.

Over 85% of non-voluntary admissions to care in 2011 were due to abuse, neglect and very serious family problems.

In total, at present, there are around 6,250 children in care placements.

We are very fortunate in this county that over 91% of all children in care are living with a foster family. So already, in this country, the focus is very much on family care… and over 2,000 children have been living with the same foster family for over 5 years!

This Amendment is about ensuring the safety and welfare of all children.
And it’s about ensuring that those children who need it, can have the second chance of a family life.

And it’s about ensuring that when questions on such issues arise, the best interests of the child come to the fore and their own views on their future are given consideration.


Wording of the New Article

I will now focus my comments on the intent of the different elements set out in the Bill which it is proposed to put to the people on the  10th November next for incorporation in the Constitution.

 Sub-article 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 Constitution sets out rights for all citizens.  This sub-article will provide, for the first time, a strong affirmation of the rights and protections to be enjoyed by children as children.

It provides that the rights and protections enjoyed by children are to be enjoyed by all children, irrespective of their parent’s marital status, while continuing to respect and preserve the rights of the family as set out in the existing Article 41.

This Sub-article is for the benefit of all children.

The rights referred to are the “natural” rights – this means rights that belong automatically to a person; they are “imprescriptible” rights - they cannot be lost, they cannot be abandoned. They include the entire range of rights that any human beings – and in particular children in their formative years – enjoy.  Under this provision the state is required to protect and vindicate those rights as far as practicable.  I want to remind the house that the phrase “as far as practicable” is standard constitutional drafting and is used in respect of the provision of other fundamental rights in the constitution, most notably in respect of the personal rights of all citizens under Article 40.3.1.

Sub-article 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.

This provision will replace the current Article 42.5 under ‘Education’ in the Constitution.

It is this Sub-Article of the Constitution that underpins the Child Care Act 1991 and many of the actions of the Child & Family Support Services,  to secure the protection and welfare of children. Such actions include applying to the courts for the making of care orders whereby children are placed in foster care, or the making of  supervision orders in which the courts can order home visits by social workers or other professionals to monitor a child’s care.

Moving this Article from under the ‘Education’ provisions fits well with having a new article relating to ‘Children’.  However, while the existing and new wordings have similar content, there are essential differences.

It will continue to be the case that the power given by the Constitution in this area can only be used by the State in very well defined circumstances.  Key requirements will continue to be as follows:

· the State can only make use of the power - “in exceptional circumstances” – as under the existing constitutional provisions;

· a failure of parental duty towards the child must exist.
· any failure must involve harm or risk to the child’s safety or welfare – “to such extent that the safety or welfare of any of their children is likely to be prejudicially affected” – moving away from solely focusing on the  reasons for the failure of the parents  to the impact of the failure on the child.  The Constitution currently provides that where parents fail in their duty to their children “for physical and moral reasons”, the state should intervene.  The proposed wording puts the focus directly on the impact of parental failure on children and their welfare.   I believe this represents a more modern and child centred approach to this provision.
· the actions of the State must be ‘proportionate’  to  the harm or risk to the child that needs to  be addressed. This means that a child will only be removed from the care of his/her parents when there is no alternative option which can protect the child’s safety and welfare.
· the protections apply to all children equally and explicitly provided for in the use of the phrase “where the parents, regardless of their marital status, fail in their duty towards their child”.

The cumulative affect of this new wording is to place the protection of children at the centre of decision-making, regardless of their parent’s marital status.

The presence of failure in parental duties towards the child remains a condition of the State getting involved.  The  State cannot intervene where such failure has not taken place.  The new wording focuses on the effect of such failure on the child.

This wording will not change the assumption in law, which is shared in Irish society, that the best place for children is with their families.

As I’ve often said, protecting children and supporting families are simply two sides of the same coin.

This Referendum explicitly acknowledges the range of responses that the State has to consider in protecting  a child including  early-intervention and family support services which play a vital role in responding to child welfare concerns, thereby preventing more serious problems arising, and with the objective of protecting children in the home and preventing children being taken into care at a later stage.

As I have often said, protecting children and supporting families are simply two sides of the same coin.

The proposed Amendment  is about protecting children and supporting families.

Sub-article 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.
The Constitution does not currently refer to the circumstances where adoption may be provided for in law.  This has created some uncertainty in the development of laws dealing with this very important area. The normal way a child is adopted involves the agreement of his or her parent(s) or guardian, as required by law.  This is to remain the position.

The great majority of children are fortunate to grow up in loving, caring families.  In a small minority of exceptional cases this is not so.  For example, following parental failure and harm to a child’s safety and welfare it may be necessary to place the child in foster care.

As I’ve stated, we are extremely lucky in this country that 91% of children in care are cared for by foster families with over 2,000 children living with the same foster family for over 5 years.

Not all of these would want to be adopted. Yet only 16 children in foster care were adopted  in each of the years  2011 & 2010.

Why is this?

Currently, the High Court cannot authorise the Adoption Authority to make an adoption order unless it is satisfied that there has been a failure of duty by the parents towards their child and that this failure is likely to continue until the child is 18 years old and that the failure amounts to the parents giving up all rights towards the child.   Therefore, while it is already the case that a child who is in care may be adopted by his or her foster parents, in practice, (as the figure I mentioned demonstrates) this happens to a very limited extent in the most extreme of cases as the test set out in existing law is difficult to meet.

This propsed wording provides for the making of legislation to allow for adoption where it is in the best interests of a child who is in foster care due to the serious and persistent failure of their parents, irrespective of their parent’s marital status.

This change is about giving children in foster care a better opportunity of the certainty and permanency which comes from living in a loving, caring family.

This change is about promoting family care.
It’s about removing inequalities in adoption.
It’s about treating children on an equal footing.

Last week I also published the Draft Adoption (Amendment) Bill 2012, which the Government plans to bring before the Oireachtas on the passing of this Referendum.

This legislation has been the subject of considerable discussion between my Department and the Office of the Attorney General. It sets out in detail how we propose to address issues such as the adoption of children in foster care as a result of serious and persistent parental failure.

For example, the draft bill requires that for foster carers to be in a position to adopt a child, that child’s parents will have to have failed in their duty towards the child for 3 years and have no reasonable prospect of resuming the care of the child, and the child will have to be at least 18 months in the care of the foster parents who are applying to adopt.

This draft will outline the role of the High Court which must be satisfied that  the parental failure constitutes an abandonment of the parental rights. The Court must also be satisfied that adoption is the most appropriate way in which to provide for the parenting of the child.

It must consider the Constitutional Rights of all of the parties, including the natural parents where they wish to be heard, but ultimately, in the resolution of these proceedings, the best interests of the child must be the paramount consideration for the Court.
Sub-article 3
Provision shall be made by law for the voluntary placement for adoption
and the adoption of any child.

The aim of the change is to make it possible for married parents to place their child for adoption and to consent to an adoption in the same way as a parent or parents who are not married.

This important change will bring to an end the current Constitutional situation where children are treated differently on the basis of their parent’s marital status.

Under present law, the only route to adoption for a child whose parents are married is for the parents to totally fail in their duties towards the child.  Even if married parents for good reasons, and with the best interests of their child at heart, decide on adoption as the most suitable means for the future care of their child they cannot achieve this end by giving their consent.

The placement of children for adoption will continue to be closely regulated under the Adoption Act 2010, including the regulation of accredited bodies who can make arrangements for adoptions.  Existing law also ensures that parents who are seeking to place their child for adoption must be counselled and given information so that their decisions are fully-informed.  The Adoption Legislation I published last week will continue to ensure that fully informed consent continues to govern the process of voluntary adoption.

Sub-article 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.

This wording requires that the best interests of the child should be the paramount consideration in critical court proceedings relating to a child, including proceedings taken by the state, under the Child Care Act.  relating to child protection; as well as proceedings on adoption , guardianship, custody and access.

This ‘best interest’ principle is already well-established in Irish statute law: in the Guardianship of Infants Act 1964, the Child Care Act 1991 and the Adoption Act 2010. This Referendum will  give constitutional recognition to this principle. By so recognising this principle, it is strengthened when counter balanced against other Constitutional Rights and principles that might arise in such proceedings. This provision will also ensure that no future government can repeal or dilute the existing legislation that makes the best interests of the child the paramount consideration in such proceedings.


Sub-article 4-2 is complimentary.

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.
Similar to sub-article 1, the aim here is to give recognition at the Constitutional level to the rights of children to have their views heard and given due weight in critical court proceedings in the areas of child welfare and protection, guardianship, custody and access.

While this amendment refers solely to these critical court proceedings, my Department and I are equally committed to working with others in the development of legislation, policies or procedures to  extend this ‘voice of the child’ approach  to other spheres of decision-making.  Similar to ‘best interests’ this principle is already recognised in existing child care and family  law and will be included in further legislation in these areas affecting children.


I believe that the dark stain of child abuse; and the failure of those in positions of power to protect children; must propel us to listen to children and act in their best interests.
On that day in the High Court, when the Judge read his Constitution and made his decision on the Roscommon case, the only persons whose best interests could not be taken into account sufficiently, were the children.

The constitutional change we are proposing will address that imbalance.

This week coincidentally marks the 20th anniversary of Ireland’s ratification of the United Nations Convention on the Rights of the Child.

The UNCRC has been ratified by more countries than any other human rights convention, with only 2 countries not having ratified it.

The principles of the UNCRC are clearly important and we have done so much to act on these principles.

Later this year I hope to submit Ireland’s update report on implementation of the Convention to the UN.

The change also forms part of this Government’s ambitious programme of reform in child protection.

We are reforming child protection laws through the Withholding of Information Act and the publication of Children First and National Vetting Bureau legislation.
And we are significantly reforming child protection services through establishing the new Child and Family Support Agency, independent of the HSE.

Each of those reforms is important. But none can have the wide-ranging and permanent effect of constitutional change. That is why this referendum is so important.

In essence, this referendum will help

protect children from abuse and neglect

support families

treat all children equally

and

recognise children in their own right

I look forward to a positive debate on this important legislation and I commend the Bill to the House.

Thank You.