Barry Andrews (Dún Laoghaire, Fianna Fail)

This is a very complex area. The measure has been on our Statute Book since 1988 and this is simply a transposition of those provisions into the current Bill. It has been through the Supreme Court and the circumstances as set out in section 54(2)(b) reflect that, being the Supreme Court judgment on the section.

I read all the arguments in respect of section 54(2)(b)( i)(I). The requirement is that there must be a continuous period of 12 months during which the parents have failed in their duty towards the child. The argument is that this should be a sufficiently high bar, together with paragraph (II) which states that the situation is likely to continue until the child reaches the age of 18. The third criterion is superfluous. That has been ventilated by a number of people. If parents failed in their duty and this failure were to continue until the child was 18 one cannot imagine the parents could satisfy the other test, namely, that they had not abandoned their parental rights. The language is important here. It is not an aspersion on them, implying that they abandoned their children, but rather that they abandoned their parental rights. It is unfortunate in a way.

The Senator anticipated what I was about to say. There is a constitutional provision and we must stay within such provisions, including the judgment of the Supreme Court, the Act and the Article 26 reference. We are bound by that. Senator Bacik and Senator Alex White know that we are going to the third phase of consideration in the Joint Committee on the Constitutional Amendment on Children. One of the proposals put down by the Government before the last election relates to the position of marital parents, children of marital parents and adoption. It is important that we await the outcome of the scoping out of those issues by that committee. I am told that what happens in practice is that when a foster child reaches the age of 16 or 17, the application is made and because that age is close to the 18 years to which stage the failure of duty must continue, those applications are successful at that point.

I said that foster parents have improved their position. We discussed consent to medical procedures and the ability to apply for passports on behalf of foster children. If the constitutional position does not change an alternative would be to look for a set of rights. I am not familiar with section 115 of the UK Act but if there is something there that might offer us a signpost to a direction we might take we should look at it.

I am aware that my predecessors in this post, the Ministers, Deputy Brian Lenihan and Deputy Brendan Smith, were favourable towards this and in 2005, as Minister of State, Deputy Lenihan, launched the consultation. In the meantime we are very close to finality in respect of the committee chaired by Deputy Mary O'Rourke and we should await the outcome.