Referendum will give children full rights as Irish citizens

26 September 2012

by Cllr Joe Costello

Speech to Dáil Éireann on the Children's Referendum

It is incredible that almost 100 years have elapsed since an emerging Nation promised to "cherish the children of the nation equally" in the 1916 Proclamation that only now are we giving recognition and protection to our children in our Constitution. In the intervening period, child abuse was widespread in our society, as various reports, together with the testimonies of some 13,000 children (now adults) who came before the Residential Institutions Redress Board reveal. This is one of the great failures of 90 years of Irish Statehood and independence.

Indeed, I remember that as far back as 1979, I and other members of the Prisoners' Rights Organisation conducted a survey of 200 ex-prisoners living in Dublin for the Public Inquiry into the Irish Prison System chaired by Sean McBride SC. We discovered that 80 percent of the survey cohort had spent much of their childhood in Reformatories or in Industrial Schools. They were already damaged by the system, and their youth and adult lives were ruined.

For the first time, this Bill and Referendum gives Irish children full rights as Irish citizens in their own right in our Constitution. That is crucially important.

There is something incongruous, almost perverse, in conducting a public debate over the next six weeks where 50 percent of the time will be given to the small minority in our country who may argue against the proposed assertion of children's rights in our constitution as outlined in the Referendum proposals. The media, and in particular RTE, should explore every mechanism for a balanced and fair debate within the constraints of the McKenna judgement so as to avoid creating a false polarisation dictated by a crude allocation of time on the basis of virtual opposition.

I welcome the fact that the long-awaited Children's Referendum is finally to be put to the Irish people. Too many years have passed since it was first suggested, and too often this issue has been put off to another day. Minister Fitzgerald is to be congratulated for publishing the text of the proposed amendment to the constitution and for ensuring that the proposed amendment has such broad support.

It is important that we include in the constitution a standalone article dedicated to children and that we acknowledge that children's rights are not subordinated to the rights of parents but are recognised as being fundamental in and of themselves.

Supreme Court Judge Catherine McGuinness noted almost 20 years ago that the Constitution may be "interpreted as giving a higher value to the rights of parents, than to the rights of children". Since that time, successive Governments have examined the issue, but, until now, no action has been taken. While these matters were being examined, in the Roscommon incest case, the state was prevented from acting to defend abused and neglected children. The parents of these poor children brought a successful High Court challenge to prevent child protection services from acting, and the children continued to suffer.

For most children, the best place to be is with their families, and the proposed amendment does not alter the assumption in law that this is the case. However, for a small number of children, this is not always the case.

The proposed amendment provides for when and how intervention by the State should occur. It will ensure that in exceptional cases, where due to parental failure, the safety and welfare of any child is at risk, the focus will be on addressing the impact of that failure on the child.

For these children, this Referendum will ensure that the State can provide early intervention and family support to protect them 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 can then ultimately go further in ensuring the child's protection and, if required, make alternative arrangements such as foster care.

The proposed rights and protections incorporated in the amendment are for the benefit of all children, irrespective of the marital status of their parents. The aim is that children of married and non-married parents will be treated equally when it comes to protecting their safety or welfare, their access to adoption and consideration of their best interests and views in key proceedings.

In particular, the amendment 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.

The aim of these changes is to give children in foster care a better opportunity to experience the security of a loving, caring family.

I welcome that Minister Fitzgerald has also published the Draft Adoption (Amendment) Bill 2012, which the Government plans to bring before the Oireachtas on the passing of this Referendum.

The proposed amendment also 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.

By voting YES on the 10th of November, the Irish people will remove inequalities in adoption and help ensure that vulnerable children are not denied the help and support that they may require.