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

It might be helpful to the discussion to point out that section 45 of this Bill, which inserts a new section 6C into the 1964 Act, is linked to the points that have just been made. It gives the court the power to appoint a person other than the parent as a guardian. It spells out in detail the rights and responsibilities of the guardian. The proposed new section 6C(11) of the 1964 Act provides that those rights and responsibilities are to:

(a) decide on the child’s place of residence;

(b) make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing;

(c) decide with whom the child is to live;

(d) consent to medical, dental and other health related treatment for the child, in respect of which a guardian's consent is required;

(e) consent under section 14 of the Passports Act 2008 to the issue of a passport to the child;

(f) place the child for adoption.

These key rights are clearly spelled out in the legislation. We have dealt with the point that guardians must act jointly. That does not always mean consulting on all decisions, especially those which are urgent. If we were to draft the legislation in a different way - a stronger way - it could cast into doubt the right of the guardian to make any decision unilaterally. That was the legal advice I received about the way this could be dealt with in legislation. Of course I realise, not least from my own practice as a social worker over many years, that these decisions are extremely difficult and complicated. I am aware that a range of relationships and competing rights come into play. I have always acknowledged Deputy Shatter's major contribution to this legislation. I think it will give us further enhanced powers, not least because the definition of "best interest" is dealt with in much more detail than ever before in legislation. That will be very helpful because it will ensure the courts have further legislation on which to rely in order to make the best decisions for children in these very difficult family relationship situations.