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

The Deputy referred previously to the recommendations of the Joint Committee on the Constitutional Amendment on Children and their rights. These have been given substantial legal scrutiny since February 2010 and in as far as we could, the recommendations were contained in the Thirty-First Amendment of the Constitution (Children) Bill 2012 passed by the House. The amendment on the rights of the child, while substantial in effect, recognised the need to identify clearly situations where a child's interests must be paramount. That is reflected in section 9(2) of this Bill.

My concerns about moving beyond the current text of the Bill are as follows. The section as drafted is not limited to the performance of functions in respect of an individual child. It is broader and seeks to ensure that at every level of decision making, the best interests lens must be applied. I want to and believe it is important to retain that breadth in the legislation. The scope of the proposed amendment includes a range of services where a specific child might not be the primary subject of the service provided. The effects of the application of the best interest principle in such a scenario is not clear. For example, some of the work of the agency may not be directly child related. It may relate to domestic or sexual violence, although there could be a child involved. Other work, such as marriage guidance counselling, may not involve a child. Therefore, to insert the proposed amendment would not accord with the balance to be struck between these rights and the rights of others, including those deriving from the Constitution.

In terms of the breadth and scope of services, my understanding of the likely legal interpretation of a "primary" consideration is a heavy weighting in favour of the best interest of one individual child. I do not accept that the agency, in making decisions relating to the breadth of its functions, could or should be given such a mandate, which would require a degree of interpretation without guidance in statute law as to what other primary interests there might be and how they would be balanced. Such interpretations are within the scope of judicial function and could not reasonably be expected to be balanced and assessed by every front line worker in every situation. However, what we have done in the Bill is to make clear that the best interests of the child as the paramount consideration should guide every front line worker.

I am satisfied with the section as published and believe it is reasonable and possible to ensure that the best interests are considered and that the decision making within the agency has a statutory underpinning for a child centred approach. In section 9(2) of the Bill, for example, the issue of paramountcy is acknowledged and restated. It provides that in the performance of its function in respect of an individual child under the Child Care Act 1991 or the Adoption Act 2010, the agency shall regard the best interests of the child as the paramount consideration. This could not be stronger and it reiterates the child centred approach in matters of welfare and protection where there is a distinction to be made. It is appropriate that where a child's welfare or protection is being considered, the best interests of the child would be the paramount consideration. This is an appropriate and proportional provision that can be given real effect in the new agency.

With regard to amendment No. 11, both the Child Care Act 1991 and the Adoption Act 2010 already require the best interest principle to be upheld by the agency. Section 3 of the Child Care Act is explicit in this regard, with respect to the application of "best interests". It covers any action of the agency in the context of fulfilling its functions under the Act. This includes arrangements in respect of the adoption of a child, in section 6. The consideration of best interest in court related proceedings is a matter for the relevant court or relevant decision making body. Section 24 of the Child Care Act states that in any proceedings before a court under the Act in regard to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall (a) regard the welfare of the child as the first and paramount consideration.

Section 19 of the Adoption Act states:

In any matter, application or proceedings before—(a) the Authority, or

(b) any court,relating to the question of the arrangements for the adoption of a child, for the making of an adoption order or for the recognition of an intercountry adoption outside the State, the Authority or the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration.

I am satisfied the provision I have made in section 9 will have the intended effect of creating a child-centred approach to decision making, while restating the specific requirements for paramountcy in certain specified processes. These are all with regard to the welfare and protection of the child. Where there is any question about a child's welfare, we have the paramountcy principle. It is included in existing legislation and it is very clear that it applies. It is not necessary to restate in the Bill the provisions on proceedings before a court or the Adoption Authority. I will not accept amendments Nos. 9 to 11, inclusive.

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