Brian Lenihan Jnr (Dublin West, Fianna Fail)

I accept the spirit in which Senator Browne tabled this amendment, but the children in question are in the care of the State. The State has accepted responsibility for these children; the State, not the parents, has gone to the District Court to obtain an order. The children are in the care of the State, through the Health Service Executive, which we all know and love so well. We cannot lose sight of this in devising the appropriate balance in this legislation.

Senator Browne is correct from the point of view of convenience, but the State has assumed responsibility for these children. Therefore, it can only delegate its powers when there is a well-founded presumption that it is safe to do so. The State's point of view is that a substantial period of time must elapse for this to happen. A parent does not apply to have a child taken into care, though a relative carer may voluntarily surrender a child into care. Under this legislation the foster parent will have the right, for the first time, to go to court and obtain these rights over the child, notwithstanding the fact that the original parent does not agree. The original parent must be put on notice of the application unless untraceable.

Under this legislation foster parents will be able to obtain a court order giving rights in respect of a child taken into care. This is a fundamental change to the existing arrangement and this is how the period of five years was arrived at. The figure was not simply plucked from the air. I appreciate the practical problem outlined by Senator Browne but we cannot legislate only for that; if we did, we would give every foster parent the power to make these decisions all the time. We are going a step further by giving the foster parents real powers through delegation by the State. I have mentioned children taken into care, but in the case of those voluntarily surrendered into care the parent must have a veto.

Senator Henry raised the issues of medical treatment and ethics. We have been careful in this regard and if the Senator looks at section 2(8) she will see that the issue is addressed. Nothing in this legislation puts a foster child in a position different to any other child. Subsection (8) states:

Nothing in this section or section 18 shall be construed as making ineffective any consent that, by virtue of section 23 of the Non-Fatal Offences Against the Person Act 1997, would otherwise be an effective consent.

That section provides that in the case of a 16 or 17 year old, a medical practitioner can, of his or her own volition, treat the patient. That provision is also transposed to foster children, so nothing in this Bill will compromise the law as it applies. As Senator Henry knows, parental consent is always a difficult issue when it arises regarding children under 16 years of age and it will be addressed for these children as it would be for any other child.