Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

Sections 9(1) and (2) must be read together. It is very clear in section 9(2) that, when we are talking about the welfare of children, their care and safety or anything to do with the Adoption Act, the best interests of the child are the paramount consideration. That is an important separation, whereby it is very clear that, in any of those issues to do with the welfare, care or protection of the child, the best interests of the child are paramount - it is actually stated as "paramount consideration".

When one is talking about the function of the agency, this amendment suggests that, from section 8(1) down, the best interests of the child should be the "primary consideration". I would have some concerns about this, and I will outline the reasons for this, bearing in mind that sections 9(1) and (2) need to be read together.

Section 9(1) of the Bill refers to the agency "making decisions about the performance of its functions". This provision relates to the decisions the agency must make in terms of how it delivers services in accordance with priorities laid down in the performance framework set out by the Minister. That provision is not only about decisions related to individual children in cases that involve them, but decisions on policy and strategy, for example, all of which must "have regard to the best interests of the child". Section 8(1)(f) states that one of the functions of the agency is to "undertake or commission research into matters related to the functions". Therefore, the Deputy is suggesting that, in that situation, the best interests of the child should be a primary consideration. I believe that "having regard to the best interests of the child" is strong and makes sense in terms of those provisions, while having it as a "paramount consideration" in regard to child care or adoption decisions is the right thing to do. There is a separation where "paramount" is the guiding principle and where "having regard to the best interests" is the important thing.

There is another point I would make for the Deputies' consideration. The work of the agency may not be directly child-related in some instances, for example, in regard to marriage guidance counselling, bereavement counselling or domestic and sexual violence where a child may not be involved. As we debated during the children's rights referendum, there is a question of the balance to be struck between these rights and the rights of others, including those deriving from the Constitution. Obviously, "primary" gives a particular weighting in favour of the best interests of one individual child. As I said, I believe the inclusion of "paramount", where I have it in the legislation, is very important.

I believe it is reasonable to ensure the "best interests" are considered and that decision making within the agency has a statutory underpinning for a child-centred approach. As Deputy Troy rightly pointed out, there is a child-centred approach to the functions of the agency, which is expressed in various ways, depending on which functions we are talking about. This seems to me the appropriate way to do it, for the reasons I have outlined.