Ivana Bacik (Independent) | Oireachtas source

This is a valuable debate to have. I thank Senator Mullen for tabling the amendment because it enables us to tease out, as Senator van Turnhout has done, the entire wording of the provision, just to reassure ourselves that the appropriate balance we all seek to make is met. I am reminded of Mrs. Justice Denham?s words in the PKU case, where the authority of the parents was recognised by the Supreme Court. She said she had a fear of stepping towards the brave new world in which the State always knows best. Clearly, we want to ensure that the State will only intervene in exceptional cases and then only by proportionate means. The inclusion of those two phrases "exceptional cases" and "proportionate means" should address any concern that the test is set too low by the use of the words ?prejudicially affect the safety and welfare of children?. I do not see the need to include Senator Mullen?s proposed extra words. Significantly, I share the concern of Senators Burke and van Turnhout that it might in fact set the bar too high.

From my own experience in Dolphin House and in the District Court in Dublin in these cases, the State?s intervention is not limited, as is often assumed, to the full care order. The Minister referred to the State?s increased investment in family supports to ensure that a full care order is the last resort and the exceptional case. Even in cases in which children are admitted to care, on which the Minister gave the figures, in many cases interim care orders are granted. They may be renewed for periods of weeks, but the child may well be returned to the parents. There are many cases, even when genuine concerns are raised about the safety and welfare of children, in which the approach taken is to support the parents, provide parenting classes and counselling, and in some cases provide residential placements for parents and children together to ensure that the family will be kept together and that the full intervention or care order will not be necessary. There is a greater understanding now of the need to support parents and to ensure the child can stay in the family as far as possible, rather than having the State replace the parent, as is the norm in the case of a full care order.

When we read the provision we should not assume the State's intervention consists of the child's entry into care. We should instead note that the phrase ?by proportionate means? refers to the wide range of measures available to the courts in trying to support children and parents to ensure that the welfare and safety of children will not be prejudicially affected. The Human Rights Commission?s helpful observations state that the wording should also ensure families are properly supported to allow them to effectively nurture, care for and bring up their children with the full support of the State. That is correct. The State intervenes to support parents; as Senator van Turnhout has pointed out, the word ?supply? includes family supports. It does not necessarily mean only care orders.

Yesterday in the House we spoke about the Baby Ann case, which is an important case in this context, and I mentioned that Vincent Browne had misread the judgment. I am pleased to see he commented on that in his article today and referred in particular to some of the more significant judgments, such as that of Mrs. Justice McGuinness in which she referred to her difficulty with the decision she felt she had to come to. In this carefully crafted wording we are reaching a better balance than is currently the case. Looking again at the judgment in the Baby Ann case, we are reminded of the need to strike a balance and to ensure the State?s intervention is proportionate and limited to exceptional cases. That balance is achieved in this wording.