19 September 2012

Speech by Minister Frances Fitzgerald at the publication of the wording of the Children's Referendum

Today I am publishing a Bill to underpin an historic referendum.

For decades we have had a legacy of failing our country’s children.

For decades we have had a legacy of neglect, abuse and inequality.

This referendum is the clearest statement the nation can make that that legacy is being left behind.

This referendum will change the Constitution so it:

• Protects children

• Supports families

• And treats all children equally

Fundamentally - to quote the first lines of the proposed new article - this referendum will ensure “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”.

It is nearly twenty years since retired Supreme Court Judge Catherine McGuinness first called for constitutional change of this nature.

She made the call in the wake of a case where a father persistently raped and abused his daughter over a fifteen year period.

She said that “the very high emphasis on the rights of the family in the Constitution may consciously, or unconsciously, be interpreted as giving a higher value to the rights of parents, than to the rights of children”.

As a balance to this, and in order to ensure better protection for a child against an abusive parent, she recommended that there be “a specific and overt declaration” of the rights of children.

Since then, successive governments have discussed the issue, made promises, examined options, set up committees.

And in that period we have had more reports.

Reports such as Roscommon.

This was the shocking case of the abuse and chronic neglect of children at the hands of their parents.

This was also the case where the efforts of social workers, seeking to intervene to protect these children, was met by a High Court challenge. A challenge taken by the parents, to stop the child protection services from acting.

The challenge was successful; and the children suffered.

On that day in the High Court, when the Judge read his Constitution and made his decision, 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. Sub-article 2 begins by making clear that and I quote “in exceptional cases, where the parents, regardless of their marital status, fail in their duty to 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 imprescribtible rights of the child.”

Now after 17 reports detailing child protection failings in Ireland a government is acting.

This Government is acting.

Today I am publishing the 31st Amendment to the Constitution Bill.

On Saturday the 10th of November, we will hold one of the most significant referenda in the history of the state. We will put forward a proposed amendment which would represent a major and historic change.

This Amendment proposes to include a new standalone article in our Constitution.

A new article, 42A.

A new article titled ‘Children’.

A new article which will greatly inform the Courts consideration of the legal framework for decision-making regarding children;

And which will require the Oireachtas to legislate in respect of all children, on the basis that children will be treated on an equal footing on issues such as adoption.

The extension of equality particularly applies to adoption, where the deserted children of parents who are married, can find themselves denied the opportunity to be adoption by a new family.

This amendment will fix that by stating clearly and unequivocally

“Provision shall be made by law for the adoption of any child with 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.”


“provision shall be made by law for the voluntary placement for adoption and the adoption of any child”

This Referendum is 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.

This referendum will support that programme of major reforms.

It is a referendum to protect children from abuse and neglect by putting their safety and welfare at the centre of decision making.

A Referendum to support families by re-affirming and underpinning the States’ continuing development of early-intervention and family support services to protect children in their home.

A Referendum to treat all children equally on key issues such as adoption, regardless of the marital status of their parents.

A Referendum to recognise children in their own right by providing an express statement of each individual child’s inherent rights and giving Constitutional recognition to the best interests and views of the child, in court cases affecting their life.

This change we are proposing reflects the United Nations Convention on the Rights of the Child, which Ireland ratified in 1992 and delivers on the recommendations of the Constitution Review Group in 1996.

It was the subject of 64 dedicated meetings of the Joint Oireachtas Committee on the Constitution Amendment on Children, which produced a proposal which received All-Party Support.

Since taking office my Department and I have been working with the Attorney General to make the transition from an Oireachtas Committee proposal, to a robust Constitutional wording.

This will include four Sub-articles;

Sub-article 1 will provide, for the first time, a strong affirmation of each individual child’s inherent rights. 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.

Sub-article 2 replaces the existing Article 42.5 and provides for when and how intervention by the State should occur.

It will place the protection of children at the centre of decision-making, regardless of their parent’s marital status. It will ensure that in exceptional cases, where due to parental failure, the safety and welfare of any child is at risk (prejudicially affected), the focus will be on addressing the impact of the failure - the impact on the child.

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

But for a small number of children, this is not always the case.

For them, this Referendum will copper-fasten the State’s capacity to provide early intervention and family support to protect these children in their home, by providing Constitutional recognition to the concept of “proportionate” responses to child protection concerns. Where such efforts are not successful the State, on behalf of the common good, can ultimately go further in ensuring the child’s protection; if necessary, through the provision of alternative arrangements such as foster care.

This change is about protecting children and supporting families, concepts which I have always said are simply two sides of the same coin.

The remainder of Sub-article 2 and Sub-article 3 deal with adoption. It provides for the making of legislation to allow for adoption where it is in the best interests of a child in foster care due to the serious and persistent failure of their parents, irrespective of their parent’s marital status. It also facilitates the making of legislation to allow for the voluntary placement of a child for adoption.

These important changes will bring to an end the current Constitutional situation, where children are treated differently on the basis 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 removing inequalities in adoption.

This change is about treating children on an equal footing.

Today I am also publishing 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 the issues of voluntary placement, the adoption of children in foster care as a result of serious and persistent parental failure, and the role of the High Court in deciding on such matters.

Finally, Sub-article 4 requires that the best interests of the child should be the paramount consideration; and the voice of the child given due weight, in Court proceedings taken by the State, relating to child protection and in relation to adoption, guardianship, custody and access. Such proceedings clearly have enormous significance for children and this has already been recognised through the introduction of similar requirements in existing statute law.

But the debate on this Referendum must not belong solely to constitutional lawyers or politicians. This is a debate for all of us.

That is why this Government will be running a major information campaign, as we did for the Stability Treaty Referendum earlier this year.

We will have a website; childrensreferendum.ie.

We will send an information booklet to every home.

We will explain why this Referendum is needed;

What it will change and;

How it will improve the lives of Ireland’s children, in particular our most vulnerable.

We are asking the people to decide how our Constitution should treat children.

We are asking the people to give a Constitutional mandate for the very best decisions to be made for our most vulnerable children.

We are asking the people to change our Constitution:
To protect children;

To support families;

To treat all children equally
As the proposed Article 42A puts it we are asking people to ensure the state recognises and affirms the natural and imprescriptible rights of all children and protects and vindicates those rights.

Thank you.

Amendment Wording

31st Amendment of the Constitution (Children) Bill 2012

General Scheme of Adoption (Amendment) Bill 2012

Draft Adoption (Amendment) Bill 2012- Explanatory and Information Note