Bernard Durkan (Kildare North, Fine Gael)

The Minister of State's expertise in that area is well known. In such situations, parents approach public representatives because, as legislators, they would be expected to be able to inform parents. Public representatives can approach the Health Education Bureau, the Garda Síochána or the health services. The response of the health services is usually that the matter is confidential and they cannot talk to public representatives, which is crazy. The Garda Síochána tries to be helpful, although one might have to go back again and again. The Health Education Bureau is so understaffed that it would have to drop half its workload to devote attention to the issue. I am talking only about cases with which I have dealt and continue to deal. I presume this kind of situation is widespread throughout the country. In dealing with the legislation before us we must have due regard for what the rights of the child mean and also the long-term interest of the child. Whatever other influence may fall over the child regardless of his or her age may have a bearing on his or her life as a child, teenager and adult. From my initial examination of the Bill, we need to be careful. I hope we do not run into an area that will cause contention in the future.

As a former member of a health board, like many Members of this House, I needed to get involved in individual cases on behalf of people wishing to adopt. It can be heartbreaking for them if it does not work out. If the adoption procedure is not adhered to in the letter and spirit, it will be a cause of great concern afterwards. For example, if the adoptive parent is given the impression that all procedures have been complied with and it is now only a formality, we are into dangerous territory. I am sure the Minister of State from his legal practice will give chapter and verse to substantiate that. While we cannot anticipate every situation, we must lay down guidelines to ensure as far as possible the natural and adoptive parents do not come into conflict. The only people who can do that are those who process and apply the regulations on adoption.

It is difficult to be judgmental in such cases. However, one must recognise that we must think about the child's future and how he or she might want to know who his or her natural parents were and why he or she was adopted. Equally if a bond has been established with the adoptive parents the question can be asked of the bond that has developed. The area is fraught with pitfalls and future difficulties may arise, notwithstanding the purpose of the Bill. We have all come across confrontations between parents — married couples and partners — who for one reason or another find that the relationship has broken down and a battle for custody emerges. As the Minister of State knows this area is fraught with difficulty and has become very expensive.

In countless cases children have been removed from the jurisdiction to the east and the west and ultimately have been the subject of long, drawn out legal battles. I am not sure whether the rights of the child form part of the consideration. It would appear that while a judgment might contain references to the rights of the child, I do not know whether the child knows at that stage what is happening. I am not certain as to what should happen. One side will try to prove that the other side is unfit as a parent or guardian and unfit to have custody of children. A sad and sorry situation develops in such circumstances. Ultimately it comes down to the law deciding. The courts may decide rightly or wrongly — we have no way of knowing. When the situation degenerates to that extent it is far better to sit down and work out an amicable resolution rather than go down the route of confrontation which ultimately will fall to be decided by the courts.

In the definition of foster parent or guardian — I presume it will also apply to a guardian in the future — I wonder whether we are likely to see an exacerbation of confrontation between natural parents and foster parents or guardians. The Minister of State might dwell on the matter in his reply. While I do not wish to be critical of the health services, from my dealings with such situations the Garda responds as it is bound to do. However, if public representatives inquire on behalf of a person or persons into a situation of this nature, which we are entitled to do, there is a resentment that we are inquiring into a matter about which we are not qualified to talk. That impression is regularly created and is unacceptable. A public representative has duties, including statutory duties, one of which is to bring to the attention of the authorities issues which may be of concern to them and which in their opinion might lead to one or other party being at risk. It is the duty of a public representative to relay that information to the relevant authorities. It is the duty of the relevant authority to take whatever action needs to be taken within the law. It is not its duty to tell the public representative to push off, that it is a private matter and that it and nobody else is qualified to deal with it.

Such action would be beneficial to everybody, children and parents, including parents who do their best and may not be able to achieve their best. It is the duty of the relevant section in the Health Service Executive to respond. At times it may be difficult to explain the situation. If a public allegation is made it may be difficult — the public representative will obviously try not to do so in order not to create difficulties for families concerned. We have had cases of serious doubt as to whether the welfare of children was being adequately catered for — I do not intend going into them now. During my time in this House I have seen such situations. I have seen cases to which attention was drawn and they were being monitored. In most such cases everything went fine. However, whenever things went wrong in such cases, somebody always claimed that the law was inadequate and there was not sufficient law to deal with the situation. That is not true — the law is always there to deal with that kind of or any similar situation. It is necessary that people recognise that. Whenever such a situation arises people always call for a change in the law.

While this is not a political point, whenever we hear a request for a change in the law, I immediately look behind it to ascertain what happened and what should have happened and did not happen to protect the vulnerable child or adult. I would like these matters to be capable of resolution without the necessity to enter the courts every five minutes. In his reply the Minister of State may well say that if nothing else will resolve the problem, that is the natural order of things. I would like to feel that everything was being catered for.

Previous speakers referred to children being in the charge of foster parents for continuous periods. Will that be similar to some of the situations relating to the granting of naturalisation to people who are refugees? A specific period is set out after which they will be considered. Deducted from that, however, will be certain instances such as leaving the country for a period, for whatever purpose or reason, or having a particular difficulty, such as, for example, one of a financial nature. Will the Minister of State indicate whether provision is being made in this regard. If I had had more time to read the Bill this morning — unfortunately, I was otherwise engaged and could not devote more time to it — I would have more to say about it.

The new section 43A(3) provides that the conditions in respect of the notification or consent of the parent having custody or the person acting in loco parentis do not apply if the parent or person acting in loco parentis is missing or cannot be found by the Health Service Executive or the court so directs having regard to the child's best interests. Perhaps the Minister might elucidate further on that section in the context of what it will mean in practice. Will it mean that the respective legal teams will have a great opportunity to array themselves on opposite sides and engage in a long battle? Case law will build up over time and I presume that this will determine what will be the outcome. However, case law can change the position and can create situations where the original intention behind legislation may become somewhat obscure and, as a result, further changes may be required.

From my experience in the House, I am aware that attempts to legislate in respect of human relationships are fraught with difficulty. Regardless of how one goes about it and no matter what law is passed, situations will develop that were not and could not have been anticipated. If such situations were anticipated, by the time the case has been argued, it would be impossible to determine who was right and who was wrong.

I hope the legislation will prove helpful. I also hope that it will not be a stop-gap measure because I do not like such measures. Any such measures that have been introduced in the House in the past have been found to be flawed and faulty and have usually necessitated the introduction of further primary legislation to replace them.

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