Alan Shatter (Dublin South, Fine Gael)

I move amendment No. 10:

In page 17, between lines 18 and 19, to insert the following:

""welfare" means the physical, emotional, social, intellectual, moral and religious welfare of the child.".

There is a strange anomaly in the Bill. We discussed this amendment on Committee Stage, but the Minister opposed it, although I cannot understand why. There is reference to the welfare of the child in various parts of the legislation. In the Guardianship of Infants Act 1964 there is also a reference to the welfare of the child as being the first and paramount consideration in dealing with issues relating to children. Section 3 of the Guardianship of Infants Act 1964 imposes an obligation on the courts to regard the welfare of the child as the first and paramount consideration in resolving various issues relating to the guardianship and custody of children and the definition section of that Act contains a definition of the concept of welfare. That definition is just applicable to the Guardianship of Infants Act 1964.

This Adoption Bill refers to "welfare" but does not define it.

The only change that has occurred since 1964 came about during the debate on what became the Child Care Act 1991, when I proposed that the definition of welfare should include a reference to emotional welfare. In the 1964 Act, welfare is said to mean physical, social, intellectual, moral and religious welfare. I recall that I proposed the amendment of the 1991 legislation to include the word "emotional". My recollection is that my proposal was accepted. If it was not included in the 1991 Act, then it was accepted in the context of the Committee Stage debate on some later item of children's legislation in which I was involved.

Amendment No. 10 proposes that we should define welfare, in the definitions section of the Bill before the House, as referring to the physical, emotional, social, intellectual, moral and religious welfare of the child. When one is referring to the concept of welfare in legislation, one must define what one means by that concept. We cannot leave it to the courts to state that the legislation before us, which will become the Adoption Act 2010, does not define the concept. At some point, a judge may state that the concept of child welfare is not defined in this legislation and that, therefore, the definition contained in the 1964 Act should be assumed to apply. Alternatively, he or she might decide to take the definition as being contained in the corpus of child care legislation at the point where the word "emotional" is used.

I do not understand why the Minister of State opposed this amendment on Committee Stage. If I am wrong in my recollection that emotional welfare is not yet referred to in statute, that is fine. However, it should be so referred to. In 1964, people tended to regard the religious welfare of children as being somewhat more important than their emotional welfare. It has now been established that a failure to protect a child's emotional welfare is likely to cause greater damage than a failure to ensure his or her religious observance.

I propose that the amendment be accepted. I would have thought that out of all the amendments tabled in respect of the Bill, the Minister of State would have acceded to this one. I cannot understand why he would oppose it. I hope the matter has been given further consideration since Committee Stage.

See this speech in context