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

This is a particularly important part of the legislation which I also made reference to during the Second Stage debate. All Deputies in this House will have had different experiences of how the law applies and will know of instances where flaws in the law became apparent later. This is an extremely complicated area. I am not a legal professional but would like to be one in the future, given the scope for such professionals afforded by this legislation. The theory and practicality can be argued ad infinitum, as they will be. They will be appealed to the higher courts and not always with the result that either the child or the parent might anticipate or want.

The concept of the rights and entitlements of parents must be set against their responsibilities and those responsibilities should be borne in mind at all times. I would be inclined to favour the view of the mother and to weigh my thinking, on balance, in her favour unless there are very serious issues presenting, such as an addiction, for example, which might impact on her ability to be a good mother. As we all know, when cases go to court there is generally an argument as to whether either parent is a fit parent and generally discussion revolves around the basis upon which such a conclusion is reached. In some cases, situations can be constructed so as to make it appear that one parent is not a good parent and to be fair, the length of time that the courts have to deal with cases is not always sufficient to come to a sound judgment on that, although those involved will try to do the best they can. We have all come across cases which seem clear cut on the face of it and about which a conclusion is reached. However, if one were to investigate those cases more deeply, one would find variations and nuances that were not obvious at first sight and which would have impacted quite significantly on any judgment or evaluation made.

Reference has already been made to guardianship and the wider implications for same. We have all had countless experiences of situations where guardians, particularly in respect of social welfare legislation, have to go to the ends of the earth to prove that the other party is no longer willing to, or capable of, honouring their responsibilities. As a result, some guardians may find themselves without adequate resources to sustain themselves and the child who is the subject of the guardianship. I would hope that this will be borne in mind in the future and that we do not see pitfalls emerging which could mean that the welfare of the child, which is supposed to be paramount in all of these discussions, is at risk because of a lack of resources on the part of his or her guardian.

We have all dealt with situations which are relevant here. If a parent is absent without contact for a number of years, then regardless of previous living arrangements, it is very difficult to sustain an argument that he or she is seriously concerned about the welfare and well being of the child involved. We have all come across situations in which one parent decides to absent himself or herself from the family home and disappear into thin air, as it were.

3 o’clock

They could then leave that partner, come back to the first partner after ten or 15 years and say ,"hello, I'm back", with them deemed to be the returning prodigal son and that all is well. If a reconciliation can be reached, I am all in favour of it but I would not like to see the rights and entitlements of the parent who took responsibility during those years, went through all the hardship it involved, stood up to their responsibilities and reared that child or children on their own ignored in that kind of situation. I would not like to see their situation weighed against them in a court.

My last point relates to who determines what the child wants. The legislation proposes that an expert such as a child psychologist would carry out this work. We all claim to be experts in our own right, some of us to a greater extent than others in this particular business. I fail to see how, in the space of an hour or two or even less, an expert can look into the eyes of a child aged five, four or three and work out what they think the child requires and what he or she favours. I do not accept it at all. It is unfair to the expert as well to ask him or her to come to the conclusion he or she has been asked to come to, namely, to tell the court what he or she believes the child wants because the child has hinted at this. We should remember that even a very young child may feel intimidated by one or either party and may wish not to offend one parent or the other. There are many nuances here that the Minister is aware of because of her own knowledge of the subject. It is particularly important that we as legislators take cognisance of those very complicated issues that will emerge because like Murphy's law, if it can happen, it will happen.

See this speech in context