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Second Stage Speech on Thirty First Amendment of the Constitution (Children) Bill 2012

25 September, 2012 - by Caoimhghín Ó Caoláin TD

Speech of Caoimhghín Ó Caoláin, Sinn Féin Spokesperson on Children
Second Stage Speech on Thirty First Amendment of the Constitution (Children) Bill 2012

A Cheann Comhairle,
This is an historic day. It is one that the children of Ireland have awaited for far too long.
I must commend Minister Fitzgerald for bringing forward a formula of words that if passed, would provide a constitutional amendment acknowledging children’s rights, as individuals, in their own right.
We in Sinn Féin have called for children’s rights to be enshrined in the Constitution for many years. It is our view that the minimum standard for children’s rights within any State, within any legal system, is the United Nations Convention on the Rights of the Child (UNCRC).
This was the view that we set out when the discussions around the enshrining of children’s rights resumed in 2008. It was the view we held when Minister Brian Lenihan produced a formula of words. It was the view we stuck to during the deliberations of the Joint Oireachtas Committee on the Constitutional Amendment on Children chaired by the former Deputy Mary O’Rourke. And it was the view we retained when former children’s Minister Barry Andrews produced a formula of words.
The UNCRC must be the document that underpins all of our laws concerning children. As contributors to the wording that eventually received cross-party endorsement in the Joint Oireachtas Committee, we were pleased that although it did not directly incorporate the UNCRC into domestic Irish law, it did go some way to including some of the core elements within it, such as the principle of equality between all children and that the best interests of all children would be paramount in matters concerning them.
While the words contained in the Final Report of the Committee received cross-party support, it is regrettable that it did not find favour with all who have addressed it since. The Thirty First Amendment of the Constitution (Children) Bill 2012 does not mirror that wording; however it does address some important issues for children in Ireland.
This constitutional amendment, if passed, will mean the “natural and imprescriptible” rights of all children will be protected and vindicated. It is not clear what the precise constitutional meaning of those “natural and imprescriptible” rights is, however. There is no accompanying legislation to set out what they are, but it is quite clear to anyone familiar with the Irish legal system and establishment, that the Supreme Court will not interpret this to mean that the UN Convention on the Rights of the Child is suddenly a part of domestic Irish law.
However, it does acknowledge that there are rights that children have.
And this is important.
It is a significant step on the road towards ensuring that children’s rights as set out in the UNCRC are incorporated into Bunreacht na hÉireann and become binding upon the State.
We in Sinn Féin do not view this amendment as being a panacea to rectify the myriad of ways in which the State has failed to cherish all children of the nation equally – we view it as the first step on a road towards incorporating the UNCRC into Irish law.
This amendment does not do everything we would like it to do but it does have the potential to rectify some of the legal barriers that have prevented the State from intervening in marital families where there is a child at risk or being abused. The amendment will readjust the threshold for State intervention and place an onus on the State to support children and to adopt a ‘proportionate’ response to parental failure so that cases such as the notorious Roscommon abuse case are not allowed to happen again.
It will ensure that children, in those very exceptional circumstances where children have been totally and utterly failed by their birth families, and have been placed in the care of foster families and have formed loving family connections with their foster parents, may be adopted and become their legal children and be entitled to all of the rights and privileges that accompany that status.
There are some 6,000 children in the care of the State, some of whom have been in care for more than five years and have no contact with their birth parents.
The amendment will also accommodate those parents who are married and in whatever unfortunate circumstances who may wish to place their children for adoption.
While the State must do everything within its power to help keep families together and do all in its power to ensure that families are adequately supported, there will be those exceptional cases where this is simply not possible. In such cases, the child or children concerned must be given a second chance to experience a loving family relationship. This amendment will have no impact on the definition of the ‘family’ under the Constitution. But it will allow the Oireachtas to legislate to allow ‘abandoned’ marital children to be adopted if that is in their best interests.
Under this constitutional amendment those children’s best interests would be the paramount consideration for the Court. We cannot underestimate the power of this. Our only criticism is that this particular constitutional provision means that the Courts are not required to view the best interests of the child as the paramount consideration in cases where there is not a guardianship, or custody or access issue in question.
The provision is specifically drafted to exclude the Courts from being required to consider the best interests of the child as paramount where the State is merely a party to a case.
That is to say, the provision is drafted so that the wording means that if, for example, a parent of a child with a learning disability took a case against the State because she or he felt the State had breached their duties under the Education for Persons with Special Educational Needs Act (EPSEN Act) due to a lack of special needs assistant hours, the Courts are not required to examine what the child’s best interests are in that case.
Further to this, outside of those guardianship and custody cases, the child will have no constitutional right to ensure that his or her own views are taken in to account by the deciding Court.
Of course, if this constitutional amendment is passed either in its current form, or as amended in our further debates this or next week, it is important that the Government gives a commitment that the necessary resources will be provided so that the rights that children will then have can actually be realised. It will be essential, I would think, that the legal profession and judiciary receive appropriate training on the new constitutional and legislative provisions.
Some of the principles of the UNCRC have been encapsulated in this text. However, we were disappointed with how narrowly they were drawn. Let us make no mistake about this constitutional amendment. It will not directly affect most children. It will resolve the outstanding child protection issues and adoption issues for children in marital families, but for the child who is living in poverty, or who has had their special needs supports cut, or who is in need of additional educational supports to get them through the school year – it will not address let alone resolve their situation.
We must be clear about what this amendment does and does not do.
Some will be disappointed that it does not go far enough. Some will think it goes too far.
The vast, vast majority of people will, I believe, support it and see it as real progress and a strengthening of the foundations of our society. That is as I see it and that is why I and my party will campaign for this constitutional change.
I have read some of the commentary of those who oppose this referendum. As I said earlier and I restate again - this amendment will have no impact on the definition of the ‘family’ under the constitution. I understand that there are people out there who will be concerned that this amendment will mean that there will be unnecessary levels of state intervention, or that the parent will not be the rightful automatic carer of their children. These arguments are false and potentially misleading.
While I would like to see a constitutional amendment to change the definition of family in order to more accurately reflect the diverse nature of families today, this particular proposition will not do that. This will neither alter nor weaken the constitutional family unit. The special protection received by the traditional family construct in Article 41 will not be damaged.
I am calling upon the Government to ensure that they invest the required resources to inform people as to what this referendum will do. It is of the utmost importance that false arguments shown to be so. What is at stake are children’s lives.
Childhood does not last forever, and for far too long in our society we have seen generations of children grow up and not have their needs met.
Passing this constitutional provision means that the Irish people will have acknowledged that children have legal rights as individuals.
It will be a constitutional acknowledgement that children have rights to be seen and heard that they did not have in 1937 when the Constitution was enacted or since. It will be another important step forward to a new and enlightened attitude towards children.
For several years now and with what has seemed an almost six-monthly regularity new reports have come out. Some are historical investigations, some are current and interim. The Ryan Report, the Roscommon Case, the Independent Child Death Review Group Reports, the inspections of the special care homes, the investigations into Church dioceses. It has been a long and sorry litany. It has been harrowing reading and we must all have felt ashamed. Details of who knew of child abuse and when they found out and their failures to act. People have cried out - “Why did no one say stop?”
This constitutional amendment gives all voting citizens the opportunity to say ‘stop.’ It is also about starting anew.
This amendment is not perfect – but it is a major step forward. We in Sinn Féin commend to the government and to all members in this house, our amendments to the proposed wording. We have tabled them to help make the wording as strong and comprehensive as we possibly can.
There is a very real opportunity here to make further tangible changes to children’s lives in Ireland and I would appeal to the Government to seize the moment and make this proposed constitutional change the very best and most worthwhile we can.

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