Children’s Rights Referendum- 26th September

I congratulate the Minister, Deputy Fitzgerald, on introducing the wording for the referendum and the draft legislation, specifically, the legislation on adoption, and on the speed with which she achieved this, given the drafting issues involved. It is good that we are at this point and these measures should be supported. I welcome that there is support on all sides of the House for this worthy amendment to the Constitution, one that is pertinent and necessary. That should be acknowledged.
The amendment will create the new stand-alone article, Article 42A, which will achieve a number of objectives. First, it will establish the natural and imprescriptible rights of all children and facilitate a situation whereby the State, by proportionate means, can endeavour to supply the place of the parents, always with due regard to the natural and imprescriptible rights of the child. The parallel legislation will provide for the adoption of children whose parents have failed them over a period of time, and as prescribed by law. It will provide for the views of children to be taken into consideration, which is critically important. It is worth mentioning at the outset these salient points of the new proposed article.
In addition, it is worth noting that the wording in no way threatens the position and primacy of the family, as outlined in the Constitution. Rather it accepts that primacy and the special status of the family but, in parallel with that status, it equally gives imprescriptible, inalienable and unmovable rights to the child and puts them on a constitutional and statutory basis. That is a critical point to make – there is no conflict with the rights of the family which remains centre-stage and a centrepiece of the Constitution.
It is worth noting that the need for this referendum is underpinned by a number of reports and commissions down the years. It was first called for by Mrs. Justice Catherine McGuinness on foot of the Kilkenny incest case. The need for a referendum is very obvious arising from the Ryan report, the Kelly Fitzgerald case and the Cloyne report and, very obviously, from the Roscommon case. That case was very recent and was an appalling horror story. In that case it was possible for the parents of those unfortunate children, thus described by the Minister of State, Deputy Costello, to go to court and prevent the removal of the children from the family home by invoking the special status of the family. Although individual judges would look to individual rights and apply them to children, and there would be many cases of benign judgments by individual judges, and although the potential within the Constitution already exists for same, we must copperfasten the position of children to the extent there can be no case whereby, through human error or misinterpretation of the Constitution, the rights of children could be submerged, go into second place and have a secondary status.
The very eminent judge, Mr. Justice Hugh O’Flaherty, made the argument in a recent newspaper article that in its present form the Constitution allows judges to make rulings that would support children. Although that may be the case the possibility for alternative rulings, as demonstrated in the Roscommon case, is enough of a rationalisation, justification or reason for this constitutional amendment. If averting the horror, cruelty, pain and suffering endured by a few children – there are many more than a few – were to be the only outcome of our making this amendment it would be justified. That point merits making as does another interesting observation, namely, that this amendment will actually support the family to the extent that it will underpin family support services. In other words, there will be a constitutional imperative for positive interventions in support of the welfare of children within families because of the standing of children within the Constitution, whether such interventions are financial or offering professional assistance, etc.
I had the privilege recently of visiting the Extern service in my home area of County Cavan. It is a group under the auspices of the Health Service Executive which works with children from dysfunctional families who have particular social and emotional difficulties. They are children at great risk but Extern works very effectively with those children. There will now be a constitutional imperative on this Legislature to support people such as those in Extern, those in Youthreach and families in difficulty. Rather than undermining the family and taking children from the family home, the onus will be to support the family and create the ideal conditions in families. It is only when that effort breaks down and there is a clear threat to the well-being of the children that they would be removed.
It merits mentioning that this constitutional amendment will provide an opportunity for adoption of children from married couples. That is an important dimension. As the law stands, while there may be a theoretical possibility of adoption of children from married couples it would have to be established that the child is at risk until the age of 18 and that he or she would remain permanently at risk. It is well nigh impossible to adopt the child of a traditional married couple, even though that child is in continuous foster care. The legislation states that the children will have to be out of the home and in continuous care for a minimum of three years. It states also that they would have to be 18 months with the family which proposes to adopt them. All of those safeguards are built in but it will now allow children from marriages to be adopted. Also, apart from State intervention a married couple can offer their child for adoption if they know that is in the best interests of the child and that is established by all the relevant authorities. That is an important dimension of the amendment.
As the Minister of State, Deputy Costello, stated, all of the parties have publicly supported this measure, and that is to be applauded, which will ensure that for once the voices of children will be heard officially and that will be reflected in the Constitution but it is imperative to back that up with an effective campaign in the coming weeks and that we bring this to the people. It is significant legislation in the light of the many areas where we have failed children in the past. We have an enormous amount in terms of children’s issues but that is not what we are discussing today. We have failed significantly also and in light of those failures it is incumbent on us to redress those failures with an effective campaign beginning this afternoon.


Senator Joe O'Reilly representing Cavan & Monaghan 2010. | An ExSite website