Committee’s proposals for a children’s rights amendment

Minister for Children Barry Andrews came to the Seanad chamber last night in order to discuss the Final Report of the Joint Committee on the Constitutional Amendment on Children.  This was my contribution to the debate.

I welcome the Minister of State on the occasion of the publication of this extremely important report which is founded on a high level of consensus across the political divide. I endorse the comments of my colleagues regarding the input of all parties into the report. In particular, I commend the Minister of State on his consistent engagement and regular attendance at committee meetings. The commitment shown by Senators in the committee’s deliberations was exemplary and undermines any argument that might be made for abolishing this Chamber.

This issue is characterised by complexity and, often, the presumption of disagreement even where it does not exist. People assumed on the basis of history that certain things cannot be changed but when we began to examine in detail what words actually mean, it was funny how quickly we were able to progress towards agreement. The Minister of State clearly outlined the achievements made in terms of the proposed wording. If this amendment is implemented, we would have a Constitution which protected children as the holders of autonomous rights. It would be a misnomer to say we are putting children’s rights into the Constitution for the first time but we want to ensure they have rights in and of themselves and not just mediated through their membership of families.

The Minister of State has regular dealings with all the organisations engaged with children’s rights and advocacy, including the Children’s Rights Alliance and Barnardos. These organisations offered significant support to the committee and in some cases made multiple submissions. Their universal welcome for the outcome of our deliberations is in itself a measure of the extent to which progress has been made in the course of our work.

In regard to Senator O’Toole’s remarks, it would be more accurate to say the committee proposes to revise Article 42 rather than insert a completely new article because some of the existing wording is retained. This may give rise to confusion in some quarters during the debate. The provisions dealing with primary, physical, moral and intellectual education which are already in the Constitution are simply lifted into this new proposal. The committee debated whether we should unpick the provisions on education or include a right to secondary education. Several colleagues even argued for the inclusion of a right to third level education. However, members did not feel the terms of reference of the committee extended that far and I believe we reached the correct conclusion. The Bill published in 2007 delineated to a considerable extent the work of the committee. A major debate remains to be had, not least in the context of the Constitution, regarding the right to education but it was not within our remit to make proposals in regard to the sections we lifted from Article 42. We have not dropped the word “physical” because the provision in question was simply left unchanged.

Senator Mullen made the rhetorical point that the State does not have the right to occupy the high ground all the time because it cannot always be relied upon to be the best agent for vindicating the rights of children. He makes a fair point when he puts it that way. Our proposal does nothing to change the basic presumption that a child’s welfare is best served within his or her family but we cannot ignore the fact that, unfortunately, the family is not always the safest place for children. We have seen terrible examples in recent years, culminating in the reports we all have read. The 1937 Constitution itself provides a basis for intervention on the part of the State, albeit in exceptional circumstances.

I doubt if Senator Mullen or anyone else would say that there ought never be a basis for the intervention of the State. That seems to me an absurd suggestion and one that could not be justified. The question is when, how and under what circumstances and controls this ought to be permitted to occur. That is simply what we were wrestling with.

I was not sure initially about the notion of proportionality and that it would be the basis upon which intervention would take place but I found myself convinced that it is a useful concept to consider. I cannot say what proportionality would mean to a court but to me it would mean that intervention would take place only when it is necessary and only in so far as is necessary. It is not something that happens very easily or automatically. It is something that is required to occur under particular circumstances. A test of proportionality is the appropriate one. I hope those who might have problems with this proposal would discover that they do not have as many problems when they read it and that they might agree that proportionate intervention is the right way to proceed.

I listened to what Senator Mullen had to say on the question of cherishing all the children of the State equally. We know that the phrase comes from the Proclamation and, as the Minister of State pointed out, the signatories and those who wrote it were not talking about children in the sense in which we are talking about them. They were talking about something much more political in the sense of people of different traditions and backgrounds and that irrespective of one’s background or religion one would still be cherished by the State. That was a declaration of intent and a hugely resonant and important one historically for Irish people. We are familiar with the phrase. There is no problem with that kind of phraseology being drawn on in this report. In a sense that proposal is a proclamation as well, that the State should cherish all the children of the State equally.

The legal content is open to debate but it seems to me that the rest of the proposal which deals with actual specific rights being accorded to children for the first time, such as the right to be heard, the right to have one’s welfare regarded as a paramount consideration, and all the specific rights set out in the amendment, are the terms the courts will be required to consider if there is a necessity to analyse what we are proposing if the people were to adopt it. That overarching proclamation of cherishing all the children of the State equally is an appropriate one. Even if it is just simply rhetorical in that kind of historical sense, it is one that will resonate with people. I see no reason we would not consider putting that into our Constitution in this particular context.

The Minister referred to Ursula Kilkelly’s response. It is the only academic response I have seen in the past week or ten days to this proposed amendment. It is fair to say it is a positive one on her part. She is someone who has a track record in analysing the performance of the Government and the State on the nature and appropriateness of laws relating to children. The way I read it, she has given a strong endorsement of the work that has been done by the committee. I find that gratifying, not because I am looking to academics to tell us whether we are performing well but because she is someone who has analysed this incredibly complex area and found that the wording comes up strongly from any analysis done on it.

She makes the point that the committee neatly sidestepped the issue of Article 41 by replacing the reference to the family in Article 42 with a reference to parents. Senator Mullen was critical of the wording on that basis also. However, he fairly acknowledged that he believed that the continuation in being of Article 41, untouched by the work of the committee, should give a considerable degree of comfort to those who, like him, take the view that there ought to be no change in that regard at all. We might be criticised in other quarters for not having addressed Article 41.

The test in regard to proportionality is an important advance. We have noted in the course of our work that a test of abandonment, which is essentially what is in place at the moment, has been interpreted by the courts in an onerous sense. By that I mean that abandonment has been interpreted as meaning, essentially, that the abandonment of the child is likely to continue up to the age of 18 and that it has no way of being repaired or temporarily abated. That test is too onerous. What we have done is navigated the complexities of the issue and come forward with a set of proposals that will win widespread agreement across the community. I certainly hope it will.

If the past ten days is anything to go by in terms of criticisms of what we have done, the arguments have not been particularly compelling. Senator Cannon referred to one such criticism by John Waters that the proposal could be reduced to a sense in which all parents of the State would now be equal in terms of the likelihood or possibility of their children being snatched from them. That is so absurd in the context of this debate as to be ignorant of the issues that are being dealt with here. I hope the debate does take place at a higher level than that. I think it will and that the contribution we have made in the committee in the past two years will go a long way towards leading that discussion and, I hope, bringing about a much better state of affairs constitutionally for the children of the State and of the nation.