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

Article 42A.2.1^o seeks to effect a balance between the rights of children at risk, on the one hand, and those of their parents, on the other. The change will not alter the fact that it is the primary duty of parents to care for and protect their children. It is only in exceptional circumstances that the State will intervene. There must be a failure in parental duties towards the child before intervention by the State can take place. This failure must be to such extent that the safety and welfare of the child is likely to be prejudicially affected. The intervention of the State has been discussed a great deal during the course of this debate. It must be proportionate and is subject to regulation by law. This section makes clear that the State's protection should be afforded to all children, without distinction based on their parents' marital status.

The inclusion of "health" and "development" was considered by my Department as part of the work leading to the formulation of the proposed amendment. It was felt that the terms "safety" or "welfare", used in the proposed amendment wording, were sufficiently broad to cover all those circumstances where it may be necessary for the State to intervene to protect a child. The inclusion of "development", for example, could give rise to the argument that the State should intervene in circumstances where a child's academic potential was not being realised. The inclusion of "health" could give rise to the question of whether the State should intervene where parents refuse, for example, certain non-emergency or non-essentail health treatments for their children.

In the course of the Second Stage debate the Deputy noted that the suggested language is used in current legislation. I know it is used in a number of combinations in the Child Care Act 1991, and I note Part 2 of the Act, entitling promotion of welfare of children. I consider it preferable to retain the broadly permissive constitutional approach to the language in this instance and, as is the norm, leave the more prescriptive formulation to statute law. This is the basis on which the current provisions of the 1991 Act are grounded and have served well to date.

It may also assist for me to point out that the Joint Committee on the Constitutional Amendment on Children cited "welfare" as the primary consideration vis-à-vis the protection of children's rights. The word "welfare" appeared in three separate provisions of the JCCAC's suggested amendment wording.

I thank the Deputy for his proposed amendment but for the reasons I have outlined I do not propose to accept amendments Nos. 3 and 5.

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