Joanna Tuffy (Labour)

I move amendment No. 4:

In page 4, lines 8 to 10, to delete all words from and including "a" in line 8 down to and including "time" in line 10 and substitute "the parents of the child".

I moved this amendment on Committee Stage. I have great difficulty with the wording as it stands. I examined much of it on Committee Stage and I will discuss some of the problems it presents, including those which have become apparent since then. Certain people must give their consent in respect of orders that can be sought under this wording. At the moment, this right is limited to those parents who have custody of the child at the time. Alternatively, it allows for someone acting in loco parentis to play a role.

What would happen if neither parent had custody of the child at the time and someone in loco parentis had custody? What would happen if the parents in question were married? The legislation as it stands would essentially give more rights to someone who is a legal stranger to the child, namely, the person acting in loco parentis. I believe someone who acts in loco parentis should have a role in this legislation. On the other hand, the legislation does not give a say to two people who are legal guardians because they are married to each other but who do not have custody of the child at the time. This is one example where I see a problem with the way the legislation is worded.

What would happen if the parent who had custody of the child at the time was the unmarried father who, again, has no legal relationship with the child and is not the guardian, and the person without custody was the mother, who is the legal guardian? She is not given a say even though she is the child's legal guardian. The way in which the legislation is worded, which the Minister of State said goes back to previous legislation, is rooted in a bias against fathers, especially unmarried fathers. When one considers the case of a married father, one can see that the legislation is discriminating against someone who is the legal guardian of his children.

The wording must be re-examined. Even if it is not examined now, it should be examined in future. Possibly the way to re-examine the wording in this section is to introduce the type of amendment I will move later which would essentially include someone who has a bona fide interest.

The wording definitely presents problems and we must re-examine the way in which we define parenthood. The Children Act 1997 defines a parent as a mother or a father. We must re-examine this. Apart from the fact that the legislation as currently worded is biased against fathers, it also could be used against a mother who does not have custody of her child at the relevant time in that she would not have a say. The Minister of State needs to re-examine this section.

Amendment No. 5 is similar. There is another contradiction in this section. Paragraph (d)(ii), on page 4 of the Bill, states, "if the child is in its care under section 18, given notice of the application to a parent having custody of the child at the relevant time. . ." I could be misinterpreting that paragraph but it appears that account would be taken of a relevant time before the child was in the care of the Health Service Executive. My basic point is that parents, and possibly others, should not be excluded from this process. Therefore, the Minister of State should broaden the wording of this section. The legislation should not discriminate against a parent who does not have custody, as there may be many reasons for that. Perhaps that is the parent who should have custody.

A safety net is provided in the wording of subsection (3), on page 4 of the Bill, which states:

The requirement of subsection (2) (d) as to the consent or notification of a parent or other person does not apply if—

(a) the court is satisfied that he or she is missing and cannot be found by the Health Service Executive, or

(b) the court, having regard to the child's welfare, so directs.

The court has the final say and the child's welfare is given prominence in that subsection. Given a safety net is provided in terms of the court, why can the legislation not be broadened to ensure both parents, irrespective of their marital status, have a say? It is important the court has the final say and must have regard to the child's welfare.

Amendment No. 22 relates to variation of the order. The point I made about amendment No. 5 also applies in this case. The type of variation being provided for in regard to the new section 43B could apply to conditions, for example, access. Subsection (9) refers to section 37 and my reading of that is that an order could be issued that simultaneously covers section 37 of the Principal Act and relates to this new provision. It could apply to an element of access. Why is the non-custodial parent again being excluded? This is not appropriate particularly when foster parents, relatives or persons acting in loco parentis are allowed have a say.