Ivana Bacik (Independent)

I move amendment No. 5:

In page 17, between lines 25 and 26, to insert the following:

"(4) In this Act, "special guardianship order" means an order appointing one or more individuals to be a child's "special guardian" (or special guardians). The Minister may prescribe procedures for the court to follow in making a "special guardianship order", in accordance with the following principles:

(a) A special guardian—

(i) must be aged eighteen or over; and

(ii) must not be a parent of the child in question.

(b) The court may make a special guardianship order with respect to any child on the application of an individual who—

(i) is entitled to make such an application with respect to the child; or

(ii) has obtained the leave of the court to make the application,

or on the joint application of more than one such individual.

(c) The individuals who are entitled to apply for a special guardianship order with respect to a child are—

(i) any guardian of the child;

(ii) a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.

(d) The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—

(i) an application for the order has been made by an individual entitled to do so (or more than one such individual jointly); or

(ii) the court considers that a special guardianship order should be made even though no such application has been made.

(e) The effect of a special guardianship order is that while the order remains

in force—

(i) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(ii) subject to any other order in force with respect to the child under this or any other Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

(f) Paragraph (e) does not affect—

(i) the operation of any enactment or rule of law which requires the consent of more than one person with parental responsibility in a matter affecting the child; or

(ii) any rights which a parent of the child has in relation to the child's adoption or placement for adoption.

(g) While a special guardianship order is in force with respect to a child, no person may—

(i) cause the child to be known by a new surname; or

(ii) remove him from the jurisdiction,

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(h) Paragraph (g) does not prevent the removal of a child, for a period of less than three months, by a special guardian of his or hers.".

I did not table this amendment on Committee Stage. However, I indicated my intention to table it and I raised the arguments in favour of it at that point. It is based on a provision in section 115 of the UK's Adoption and Children Act 2002, which creates a special guardianship order by inserting a new provision, section 14A, into the UK's 1989 Act. On Committee Stage I outlined the effect special guardianship orders would have in Ireland. The introduction of such orders has been recommended by two expert groups, one of which was chaired by the late Dr. Joe Robbins. There are, therefore, already expert recommendations in existence in this country which advocate the introduction of special guardianship.

A special guardianship order provides permanence for children for whom adoption is not appropriate. It is, therefore, a halfway house which goes further than foster care but which is not as permanent or final as adoption. In jurisdictions where provision is made for such orders, courts may make them in respect of a child on the application, in particular, a foster parent with whom the child has lived for at least one year prior to the application. The idea is to provide for situations where children have been living with foster parents for some time where the latter are, in all but name, acting as their parents but where these children do not, for particular reasons, want to break all ties with their birth parents or where it is not appropriate that they should break those ties but where they wish to be in a more permanent relationship with their foster parents. Such foster parents may be a relative of some form.

A special guardian takes on parental responsibility for the child, including all responsibility for day-to-day decisions relating to his or her care and upbringing in law. Under the special guardianship model, the natural or birth parent retains some limited rights, including whether to consent to the child's placement for adoption. A special guardianship order gives certain rights to the child and his or her guardian, for example that they may leave the country on holiday together. It also provides for retaining a link with the birth parents. Special guardianship is appropriate in cases where fostering does not provide adequate permanence for a child but where an adoption order would also not be appropriate. The Minister of State indicated some interest in this idea on Committee Stage. I am putting forward this model, very much based on the UK's, as one he may wish to adopt.