Brian Lenihan Jnr (Dublin West, Fianna Fail)

I am not sure whether it is in order for a mere Minister of State at the Department to join in the chorus but it is essential the HSE implements its obligations under the legislation and I am confident it will do so.

One of the advantages of the legislation is that a great deal of unnecessary work will be obviated for social workers, permitting them to focus on more important work relating to children's issues. It is ridiculous and foolish that a foster parent who has cared for a child for ten years must obtain a letter from a social worker to obtain a passport for the child. That stigmatises him or her because if he or she is going on a school tour or a holiday, permission is required and the foster parent must have recourse to HSE social workers. A more extreme example relates to medical treatment, which the foster parent will be permitted to make a decision on under this legislation. On occasion, social workers have felt impelled to have recourse to the courts to permit a medical operation for a foster child. Parents in a normal family do not have to go to court to approve an operation for one of their children. I hope the legislation will obviate this need in regard to foster children and permit such decisions to be made by the foster parent. This will save significant time for social workers and enable them to address many other matters than need attention and to support foster parents, when required.

Deputies Twomey and Durkan referred to the operation of the Children's Court. Deputy Twomey was concerned that the judges of the court should have sufficient expertise and understanding of the needs of children in these cases. My office has been engaged in discussions with the President of the District Court on this subject in recent months and I hope to bring forward proposals in this regard. Anything related to the courts is fraught with constitutional difficulties but, on receipt of the appropriate advices from the Attorney General, I hope to take action in this area.

Deputy Twomey also referred to child poverty. The Government has taken 100,000 children out of the consistent poverty net, yet an unacceptable number remain in it. The Deputy correctly stated the problem of child poverty in our affluent society increasingly relates to cultural rather than material factors, which must be addressed.

He also referred to the referendum on children's rights announced by the Taoiseach and questioned whether it would be possible to execute it in a few months. Mrs. Justice McGuinness raised this issue in her report on the Kilkenny incest investigation more than a decade ago while an all-party committee examined the issue at length before publishing a report last spring. I acknowledge the broad welcome extended by Deputy Kenny and Fine Gael for the proposal. I have written to Deputy Kenny in this regard and I look forward to his response because this issue must be addressed. I thank Deputy Twomey for his welcome for the legislation on behalf of the principal Opposition party.

Deputy Lynch took issue with Deputy Twomey regarding the five-year period. She is satisfied this period is correct but her concern related to what happened to children in the past in Ireland. Without singling out members of a church or a religious organisation, she stated everybody, including public representatives, teachers and parents, cannot have the attitude that there are untouchables in our society and we must be very careful when delegating responsibilities for children. For those reasons, she was anxious to stand on the five-year period and she agreed with my judgment, for which I thank her.

She also raised last week's Supreme Court decision in the adoption case and the fact that a request had been made after 11 months for the return of the child. The decision illustrates a particular context in which we must examine constitutional change. Much discussion has centred on where the principle of the best interests of the child should apply. I agree with Mr. Justice Hardiman's judgment that, in general, the best place for a child is in his or her family and that is how his or her rights can best be vindicated. However, the difficulty under the current constitutional arrangement is that when the family breaks down or the parents fail and the child enters the adoption or care system, it is not unequivocal in our constitutional order that those decisions must be taken in the best interest of the child. Nobody can propose that a child should be taken into the care system in his or her best interest but, once a need to intervene is demonstrated, whether that is due to abuse, neglect or abandonment or whether the parents voluntarily relinquish their child into the care or adoption system, our Constitution does not provide plainly and unequivocally that subsequent decisions about the child should be made in his or her best interest.

Upon examination, the Supreme Court had a difficult decision to make. Based on the facts, the Supreme Court's decision may have been in the best interests of the child, but there was a legal difficulty, namely, while the child had been placed in the adoption system, the subsequent marriage of the natural parents meant that the Supreme Court could not legally address the issue of what was in the child's best interests. The Supreme Court needed to mechanically apply an inflexible rule of law that required the return of the child to the natural parents.

That the Supreme Court did not address itself to the question of the child's best interests poses a difficulty. In the case in question, it might be difficult to argue with the conclusion on the facts because the period after which the return of the child was sought was short, but if a child was voluntarily placed in foster care for a period of eight, nine or ten years and the natural parent sought his or her return, the best interests of the child would not determine his or her future under our current constitutional arrangement.

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