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

This is particularly sensitive and important legislation. It is long overdue to be updated. It needs to be carefully weighted, as has been done, to take into account the views and protection of the child, who may have hidden special needs. A serious problem has arisen in the past where decisions have been made by people who claimed to have the best interests of the child at heart, although it was not necessarily so. We have to wait to see what happens with the operation of the legislation to ensure that this is to the fore.

Deputy Catherine Murphy mentioned some situations where a clash of interests may occur. The family, a family friend, a carer or a particular person may have views that clash with the interests of a child. Care needs to be taken to ensure that the situation is carefully examined to be certain that the person chosen by the child, particularly in the case of an older child, is the appropriate person. We have all dealt with situations in the past where people pretending to be the appropriate person put themselves forward and went into court to challenge the parent, in some cases, on the basis that they were the suitable person for the care of the child in a situation where the child was deemed to be vulnerable. That is not necessarily always the case. The interests of the child have to be borne in mind but they have to be tested carefully to ensure that the interests of the child are really being borne in mind and it is not being done for a variety of other reasons.

We have seen horrendous cases all over the country in recent years where appalling things have happened to children. There have been no means whereby an intervention could take place. My constituency colleague, Deputy Catherine Murphy, referred to the caseload of social workers. The caseload and experience of social workers has to be borne in mind. If there is an exceptionally heavy caseload and the social worker or social workers concerned are overwhelmed with work, they will not and cannot give it their best. It is important that the number of social workers and anybody else involved or referred to in the course of the application of the law is in a position to be able to devote sufficient time to deal with the situation, to fully examine it and come to a judgment.

We have all, in following up cases from time to time, found reason to ask why more was not done more quickly and why care was left to an individual, including in one or two cases where we, as laypersons, would not give the individual in question any control over anybody whatsoever. We have to be careful that the legislation which we are passing is sufficiently robust to be able to ensure that whatever is necessary in its application in the future is available to the courts, Judiciary and the person in charge, where there could, for example, be a conflict of opinion between separating couples. Things can and do go awfully wrong in those situations. The legislation is important to update. It needs to be monitored carefully in its application as time goes by. There is no way that we can ever walk away from any situation where we have passed the legislation and say that we have done all that can be done and that it will do the intended job. There will be times when it has to be revisited. That can only be done following strict monitoring of the legislation and how it deals with the situation it was intended to deal with.

This is a significant improvement. I hope it is sufficiently strong in its application to work in the interests of the vulnerable and of children of all ages. There have been some appalling cases in this jurisdiction and in the adjoining jurisdiction which are frightening when one thinks about the degree to which small children have been neglected and ultimately have ended up in court. We must put ourselves in the shoes of the child, who might be vulnerable by virtue of age or disposition. The child might feel alone or frightened, may not know what to expect, and may not know what is or is not normal. The child may not know who the perpetrators might be, who he or she should be defended from and who he or she should trust. The child does not have enough experience of that. We need to look carefully at the way the legislation is operated. Hopefully, it will do the intended job.

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