Joanna Tuffy (Labour)

I wish to respond to a couple of points. The Child Care Act 1991 is wrong if in certain sections it does not involve the parent of the child who does not have custody. That is a mistake. There is an inherent bias as to which parent gets custody and why the other parent might not. I do not say we individually have that bias but it is evident in court decisions historically and that is why we are in this current situation. The safety net is present in the legislation, with the provision that the court has the final say and the reference to its decision being in the child's best interest. Looking for consent should not be a problem. It is not a case of looking for the consent of any relative, just that of the other parent. If the other parent cannot be found, the legislation provides a safety net. It is not just a question of notification — although that is provided as an option — consent is also involved. This is a mistake because of the way the system is designed and the legislation is framed. We may well be excluding possible options for the health board.

I am in favour of the legislation. We must provide for situations where the parent who does not have custody could play a bigger role but where the health board would not be aware of that. Given that we do not make the health board look for the other parent it does not need to inform itself of how beneficial the other parent might be in regard to the decision that may be taken or that he or she could have something worthwhile to contribute.

The Minister of State referred to the rules of the District Court. I do not know whether they are implemented. That raises the issue of whether the legislation could be challenged in terms of its constitutionality. I accept that applies to many different issues. The Minister of State also referred to the Constitution being an over-arching document and that the District Court must have regard to it. Perhaps if the Constitution were interpreted by a court it could conclude that the non-custodial parent should not be excluded. Specifically on amendment No. 22, I do not fully understand how that section will operate in terms of the new section 43B and how it relates to section 37.

The section I wish to amend mentions any condition or restriction attaching to that order. Therefore, conditions or restrictions can be involved. They may concern access or conditions relevant to the parent who does not have custody. In particular, amendment No. 22 provides that the parent without custody should be able to state he or she wants an order varied or discharged and have an opportunity to explain why. This should be the case not only regarding an order but also regarding conditions and restrictions attached to an order.

A parent without custody may have a contribution to make and should be able to go to court to state he or she wants an order or a condition varied because as a parent he or she is able to act in a particular way or has a particular opinion. This issue is raised not only in this Bill. It is a general problem in legislation which we must examine.