Brian Lenihan Jnr (Dublin West, Fianna Fail)

I will revert to that matter. Section 37 of the Act is the primary legislation governing this amending Bill. The position of the grandparent is safeguarded — I will confine myself to that narrow point at this stage — under section 37.

Deputy Lynch turned to the question of the constitutional amendment and raised the issue of the best interests of children. When children are taken into care or are in the adoption process, decisions made about them should be made in their best interests, but to extend that principle to other areas will require considerable elucidation and discussion. The Deputy referred to the need for specialised sittings for family law matters, an issue on which I touched when I indicated the importance of a fresh examination of how the courts approach the question of children. I thank the Deputy for welcoming the Bill on behalf of the Labour Party.

Deputy Gormley welcomed the Bill and raised the question of the sense of belonging between a foster child and a foster parent. I agree that this sense is important, but, as Deputy Durkan pointed out, it is possible for two different sets of individuals to have this sense of belonging. The best interests of the child must come into play in this respect. Regarding the discussion on children in the adoption and care processes, particularly vulnerable children, people should realise that children must have rights and cannot be objects or commodities for others. In some of the more lurid debates, sight of this aspect can be lost.

The Deputy asked when the Hague Convention will be transposed into legislation. The drafting of the legislation is at a final stage and I hope to publish it early next year. He also referred to the signalling of my intention to incorporate on Committee Stage further amendments in respect of the Ferns Report. He wanted further information on what is envisaged.

The Ferns Report made a number of recommendations concerning legal changes. One recommendation was to create an offence of reckless endangerment where a person wilfully fails to have regard to the risks to which a child is exposed and to attempt to address in criminal legislation the problem of a failure to report, namely, the issue of mandatory reporting. The offence in question has been legislated for in the Criminal Justice Act 2006.

The report raised a doubt about the powers of the Health Service Executive to investigate a third party abuse of children. I sought the opinion of the Attorney General, who reassured me that there were no difficulties in that regard. Nevertheless, the report recommended an in-depth study of the matter, which we have practically completed. If necessary, we will clarify those powers.

The report also recommended that some form of injunction or restraining order should be available and that it should be possible to apply for such an order against a person who poses a grave risk to children and has unsupervised access to them. Under current child care legislation, the HSE can supervise children or remove them from persons who have care or custody of them, but it will have no power to seek restraining orders against third parties under this Bill. Empowering the HSE in this regard would not be done without difficulty and the report requested that we consider this issue. The HSE cannot be transformed into some type of police authority — a balance must be struck.

Organisations with employees or volunteers who have substantial dealings with children must address their own responsibilities. While the HSE has such responsibilities in regard to its large number of employees, to task it with dealing with the responsibilities of other organisations raises significant questions. However, I am prepared to address the matter and determine whether a formula can be devised to examine it.

Another of the report's recommendations was the establishment of interagency groups to pool information between the HSE, local diocesan authorities and the Garda Síochána. Everyone co-operated in the Ferns context, but the sharing of information of that character poses substantial legal difficulties in terms of freedom of information and data protection legislation and civil law relating to the protection of the reputations of individuals. Legal protection must be provided to persons who engage in information-sharing exercises of this type. If we are to legislate in this regard, the legislation cannot address a particular denomination or religious denominations in general. It must extend to the convening of such information-sharing exercises in a wide variety of contexts. This and other matters stemming from the Ferns Report are under examination and I thank Deputy Gormley for his request for information.

Deputy Catherine Murphy welcomed the legislation and was concerned by the assumption that adults always act in the interests of child. This was not always the case and the State did not always act in the interests of children. I agree with the Deputy that support networks are necessary, for which reason the legislation is important. For many years, it has been requested and advocated by the Irish Foster Care Association and it will free up time spent on social work. Deputy Catherine Murphy referred to the position of grandparents and that is addressed in section 37 of the primary legislation. She also said it was important to effect constitutional change to put children on an equal footing and I welcome her support in that connection. She also asked wider questions, as did Deputy Durkan, about recognition for mothers and fathers. If, in this referendum, we can confine ourselves to how we can, as far as is practicable, secure the best interests of children we will have achieved something. If we enter the realm of the wide variety of other relationships which we all know exist in modern Ireland we will embark on a very difficult task.

Deputy Catherine Murphy concluded by questioning whether there was a legal and cultural difficulty relating to fostering in general, and whether a certain mindset existed in that regard. In some ways she reminded me of the episode in the Gilbert and Sullivan operetta about baby farming, in somehow suggesting that fostering was not valued highly enough. In recent years the State has gone a long way towards valuing fostering, not just in the material sense but in the legal sense by means of legislation such as this. We are very anxious to promote fostering in every possible way. It is important that people consider the option of fostering and those who undertake it do not do so on exclusively financial grounds but make a substantial altruistic commitment, which is very welcome.

Deputy Ó Caoláin was concerned about the proposed constitutional referendum and undertook to discuss the matter with me, in which I am happy to oblige. He was also concerned about the five-year period, which he thought too long. As I explained to the House, a careful balance must be struck between the rights of parents and the State, the child and the foster parents. The State has taken the children in question into care. If a child is surrendered into care the parents can always revoke their decision but where the State has obtained an order in the District Court and taken a child into care that child is then in the direct care of the State. We propose to delegate potentially all our responsibilities towards that child to another person and must proceed with great caution, which the five-year term reflects.

Deputy Ó Caoláin also raised the question of informal arrangements. All in this House are aware of a grandparent, uncle, aunt or other relative who minds a child because the child has lost his or her parents or because the parents are unwilling or lack the capacity to look after him or her. It is a common phenomenon but the position of the Department of Health and Children is that the State only intervenes when the child needs care and protection. If the informal arrangement is working the State does not intervene. There may be issues about income support but they are a matter for the social welfare system in terms of the amounts of money transferred to the persons caring for the children and the adequacy of the supports they receive. Legitimate questions can be raised in that issue but, as far as the care and protection system is concerned, we intervene only when necessary. Care and protection can be provided within or outside a marriage, in a formal or informal relationship.

This legislation relates to children who are in care and protection. It is desirable where possible that such children be fostered with relatives, although that is not always possible. Nevertheless, we in this jurisdiction have a better record than most in managing to place children with relatives when they need foster care.

I join with Deputy Ó Fearghaíl in paying tribute to the Irish Foster Care Association because it does tremendous work in this area. He touched on the merits of the legislation and said it was important to cement the bonds in a foster care family and enable the natural development of family bonds, on which I agree with him. However, that is a reason for being very careful about the period of time we choose, which also touches on what Deputy Durkan said to the effect that prescribing too short a period can foment litigation. Deputy Ó Fearghaíl also said it was important to help those who wanted to foster, on which I also agree with him. He also raised the question of inheritance rights but this legislation has nothing to do with inheritance rights. For inheritance rights to apply it is necessary to adopt a foster child. As I explained on opening this debate, it is proposed under adoption legislation that a foster child who has reached the age of 18 and has lived for five years with foster parents can be adopted at that stage with the agreement of all the parties concerned.

Deputy Durkan raised a number of points. I hope that my reply so far will persuade him that this is not a stopgap measure and is an attempt to strike a balance in this area. He rightly raised the danger of litigation, drawing on his own experience as a member of a health board to outline the disputes that can arise among a wide variety of persons about a particular child. All I can do is reassure him that this legislation has been drawn up with great care. The application cannot be made to the court without the sanction of the Health Service Executive so a unilateralist approach is not possible. Once the application is taken to court, parties must be notified but we have written into the legislation the principle that the court must have regard to the best interests of the child in making its decision. Beyond that I am not sure that, as legislators, we can go very far, but I wish to highlight those two safeguards which were introduced to address the entirely legitimate concerns Deputy Durkan has expressed.

I hope this legislation can be progressive social legislation, which I believe it will be, and not a happy hunting ground for the legal profession.

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