Bernard Durkan (Kildare North, Fine Gael) | Oireachtas source

Like other speakers, I congratulate the Minister on the introduction of this Bill. I also commend her predecessor, Deputy Shatter, for his previous work on the compilation of this Bill. Colleagues on all sides of the House also need to be congratulated for their input and observations on this extremely complex and detailed legislation which attempts to cater for almost all of the eventualities of which we are aware, and many of which we are not aware. Regardless of what one does as a legislator something will always be missed.

I compliment Deputy Kelleher on his references to child abuse and the experiences we have had in this regard in this country over the past number of years. This Bill proposes to put in place protections for children in a way that heretofore has not been done. It also attempts to put in place a necessary back-up system in this regard. I hope this will happen. Deputy Kelleher posed the question, "When is the right time to intervene on behalf of the child?" Given that this legislation is built around the child and protection of the child it is important there is clarity around the right time for that intervention. I have previously posed questions such as: "When should one intervene?"; "How does one know if one is doing the right thing?"; "Is one interfering in another person's business?"; "Is one taking adequate precautions?", or whatever the case may be. Invariably, it is a matter of judgment. The professionals involved need to be able to make a judgment call. All of us have dealt down through the years with situations in respect of which judgment calls were not made in time and as a result there were consequences of an undesirable nature. Usually in this situation the child became the victim. That should not be the case. I am currently dealing with a case in respect of which it is clear serious abuse is taking place within a family. No action is being taken in this case, other than to victimise the mother and the children, because of a lack of unwillingness to become involved.

This Bill deals with a number of other issues, including assisted human reproduction. The issue of donors and the need for a register of same is hugely important. I note there are a number of exceptions in this regard. Lawyers are going to have the greatest time in the world in terms of the likelihood of their being called upon to determine which law is applicable in this area. I am aware of only one instance of the law being applied retrospectively in this country. In the case of a donation made ten years ago which becomes active at this point in time will the legislation enacted ten years ago apply or will this legislation, when enacted, apply? A case relating to this issue was before the courts a number of years ago. It is inevitable that case law in this area will be established over a period of time. The amount of case law required to set the basis for the interpretation of this legislation will be huge. The tendency in this country is to challenge.

Deputies Eoghan Murphy and Helen McEntee referenced the provision regarding the commitment of a father to a child in particular circumstances. It should not be sufficient for a father only to have resided with the child for a couple of weeks or months. There is need for a stronger commitment in this regard. It is not necessarily the case that the mother will object out of peevishness. It should not be forgotten that the maternal bond is very strong. It has been contested in court on numerous occasions that the maternal and paternal bonds are equal. I do not agree. I believe the maternal bond is the strongest. Any attempt to break this bond can have serious consequences for a family and the health of the mother and so on. We are all aware of court cases involving assertions to the effect that one or other parent is an unfit parent, particularly in the context of separation disputes between parents, whether cohabiting or married. I wonder whether address of this issue will be as simple as it now appears. Invariably, when a case reaches the courts it becomes a battle between two sets of legal advisers who will do everything in their power to win their case. Neither set of legal advisers is going to hold up their hands and, in the interests of fair play, concede the case. That never happens. I ask that the Minister bear in mind the likely process that will take place in those circumstances. Many speakers referenced single fathers being deprived of their rights. I believe that the rights of the mother of the child need to be borne in mind in a particular way until such time as men can give birth, which will be some time into the future.

The Bill also deals with guardianship. I note that responsibility for this legislation is divided between several Departments, including the Departments of Health and Social Protection. To what extent will social welfare law have to be amended accordingly? We have all dealt with cases involving a grandparent, relative or non-relative who is acting as guardian of a child in respect of whom no decision on guardianship has been made and the guardian gets no allowance. If they do, it is against the run of play. It some cases a mother may have abandoned her child to be maintained by, for example, her mother. In such cases, when the mother is interviewed by social services and asked if she is maintaining her child the mother will always say she is doing so, in which case the grandparent, relative or non-relative will never get a payment. We have all dealt with such cases. I ask that this too be borne in mind at the appropriate time. It should not be the case that when guardianship of a child is being determined the word of the mother or father in regard to whether he or she is maintaining the child is accepted. They should be required to prove that is the case. We have all dealt with cases in respect of which the natural parent has not seen his or her child for ten or 12 years. It is important that the guardian of a child in such cases is recognised.

I regret that it is not possible in the time available to me to speak to the many issues covered in this Bill. I hope I will have ample opportunity to address these issues on Committee Stage. This is complex legislation. I agree with those speakers who said that we need thoroughly to discuss, analyse and debate it at each Stage of its passage through the Houses to ensure as much as possible protection of the child and all relationships and to ensure that their responsibilities and entitlements are recognised.

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