Ivana Bacik (Independent)

I oppose this amendment which is not helpful. Section 19, as drafted, very importantly regards the welfare of the child as the first and paramount consideration, which is in keeping with our international obligations in terms of the rights of the child. To start to qualify or dilute that by creating presumptions would be unhelpful. Senator Alex White already referred to the baby Ann case. Unfortunately the constitutional presumption already requires that the marital family has certain rights over the child, which is not always conducive to the best interests of the child. There is a difficulty with that, which is why we have the current debate on the need to insert a constitutional amendment on the rights of the child. The judge with perhaps the most experience of child and family law, Ms Justice McGuinness, has made various comments that are pertinent. She supports the idea that the welfare of the child should be of first and paramount consideration, as we all should do.

Section 19 frames that correctly without any qualification or presumption. How can we say that the welfare of the child is best promoted in the society of either or both of the child's natural parents as a presumption? Certainly that would be the case for many children and, one would hope, for the majority of children. However, we need to be realistic. Children are not placed for adoption unless the natural mother, in particular, believes it is in the interests of the child that the child not be brought up with his or her natural mother and indeed sometimes with his or her natural father as well. For the courts trying to adjudicate on these matters and for the Health Service Executive trying to run the adoption procedure as best it can, it is vital to include the phrase "the welfare of the child as the first and paramount consideration" without qualification. Clearly welfare encompasses an entire range of different aspects. They are not just economic and financial but also emotional, psychological, spiritual and so on. We would certainly hope that most children would be brought up by their natural parents and that is not a problem. However, the Bill is not dealing with that majority of children but with children who are offered for adoption, which is a very different context. In that context it is vital the welfare of the child be the first and paramount consideration and that we do not dilute it with presumptions.