In politics, nothing is ever set in stone. And one of the biggest uncertainties for most politicians is knowing their careers may be brought to an end. And this it was for former Fianna Fáil minister Mary O’Rourke in February 2011, when she became one of dozens of victims of the electoral meltdown of her party, which took the full brunt of public blame for the deep banking and economic crisis.
O’Rourke’s disappointment has been tempered by the fact that her last major political act on the national stage was a wholly positive one – successfully steering an all-party Oireachtas committee to find consensus on a wording for a referendum on children’s rights.
“What a fitting end to my Dáil life – having been through the storms and the ups and downs – that I ended up guiding a consensus wording on children,” she said.
The need for a constitutional amendment that would give specified rights to children had been identified as far back as the early 1990s when such a recommendation was made in the report of an inquiry chaired by Judge Catherine McGuinness into sexual abuse in Kilkenny. However, while all political parties had committed to giving effect to the recommendation it took well over a decade before those commitments were translated into action.
In 2007, shortly after a Fianna Fáil-led government was returned for a third term, then taoiseach Bertie Ahern approached O’Rourke and asked her to chair the all-party Joint Committee on the Constitutional Amendment on Children. Ahern had made a referendum an explicit promise in his ardfheis speech of November 2006. Indeed much of the groundwork had been done by O’Rourke’s late nephew Brian Lenihan, who, as minister of State for children in the previous government, had advanced the cause.
In her autobiography O’Rourke recalls how Ahern had told her shortly after the new coalition was formed: “You were a great success [as Minister for Education] Mary. And I know that you genuinely have children’s interests at heart.”
Looking back on it now, she agrees that the task was a necessary one although she knew it would be a challenge and there was a certain trepidation on her part.
"I thought the Constitution did need to be amended. It needed to have a focus on children and ensure that a child should be seen as a person in his or her own right. They were seen as appendages of others, their parents or guardians. But [the reality was] that actually each child is a person."
Seriousness
The seriousness with which each party viewed the committee could be seen by the quality of its membership. Fine Gael's delegation included Alan Shatter, Michael Noonan and Frances Fitzgerald; Labour's included Brendan Howlin and Alex White, with Sinn Féin's health spokesman Caoimhghín Ó Caoláin playing an integral part. Besides herself, the government's representatives included Thomas Byrne and Seán Ó Fearghail as well as the Green Party's Paul Gogarty.
The committee came together for the first time in November 2007 and held its first formal public meeting in January of 2008. It invited submissions from the interested parties – among the substantive ones that informed a lot of its decision-making, O’Rourke says, was one from the office of the Ombudsman for Children as well as from the Children’s Right Alliance, then headed by Jillian van Turnhout (now an Independent Senator).
There was evidence from a succession of cases (some harrowing) involving children that the relevant authorities and agencies charged with the welfare of children were reluctant to intervene at crucial junctures because they believed such an action might be deemed as unconstitutional.
“The unwillingness or inability to take decisive action, even when it was clear that something urgently needed to be done, was evident in many legal cases involving severe abuse, and in report after report. And yet still everyone dithered,” wrote O’Rourke in her autobiography.
As chair, she made a few key decisions. The first was that the majority of its hearings would be held in private. While there were some misgivings about this, it ensured that the committee could focus its work on finding a wording that would be broadly acceptable and avoid the bearpit atmosphere that can sometimes go with public political events.
And there was a very sensitive balance to be struck, ensuring the rights of parents and guardians were neither eclipsed nor made predominant in the process. O'Rourke said that committee quickly agreed that the best way forward was to ensure that the rights of parents were equated with the rights of children. "In other words we made both equal," she wrote. "Now perhaps that smacks of Charlie Haughey's long-ago law on contraception – an Irish solution to an Irish problem. But we were convinced it was the only way forward."
Arguments
One of the issues to which a lot of time was devoted was on whether the voice of the child be heard, and in what circumstances. There were arguments surrounding costs; which proceedings would be appropriate (custody disputes for example); as well as what age the child must be and whether or not a mentor should be available to advocate on their part.
In total, the committee produced three reports. The first surrounded reporting of “soft” information and the recommendation that proper vetting should be put in place that included the passing of all relevant information. The committee concluded that this could be done by means of legislation rather than an amendment. The second report, in 2009, was technical but important and allowed a legal basis for strict liability in relation to specified sexual offences against children.
The final report in early 2009 set out the committee’s proposed wording for a constitutional amendment. Each party had proposed a wording and the members came together to see if they could all be accommodated within a formula.
“The committee was disparate and there were some very opinionated people. I would have been radical enough, in my own mind, on this issue. At times I though we might have been too disparate in spirit.
“We reached a consensus that was hailed all around.”
