Brian Lenihan Jnr (Dublin West, Fianna Fail)

Senator Browne has raised an interesting question. It is normal in legislation not to address this issue. Whether a person is missing is a matter for the courts, not for primary legislation. If the proceedings are served on the relevant parties and they are missing, they will not show up at the court. We must give some guidance to the courts because it is a fact that quite a few foster parents are missing and it will put a huge burden on applicants if the court insists on the full rigours of the law in tracing a missing person for every application. That is the reason the word "missing" has been included.

The courts are used to dealing with these matters and it is best left to them at that stage. Section 43A provides that the court will have to be satisfied that the parent or other person is missing and cannot be found by the Health Service Executive. It will then be a matter for the court to decide, based on the information provided to it by the executive on the efforts made to contact the person, whether it is satisfied that the parent or other person is missing and cannot be found. We have relaxed the system somewhat for the applicant under this legislation. However, it would reduce the power of the court too much to provide for the specificity Senator Browne suggests. That would be telling the court that the person is missing. It is better for the court to be empowered to conduct a complete review of the HSE file because the court might have a reservation about this.

We are dealing with the rights of parents. Senator Tuffy pointed out this earlier and it is a matter I will return to in terms of rights. It is important the courts be left with discretion to decide whether somebody is missing and not simply be told the HSE has not heard from the person for a year or two and, therefore, he or she is missing. We must be a little more protective of the rights of the parties. That is the thinking behind the provision. I welcome the amendment because it highlights an issue that caused difficulty during the drafting.