Rónán Mullen (Independent) | Oireachtas source

I thank the Minister for her comprehensive response and my colleagues for the points they raised. I am very grateful for the tone of the debate. With all that has happened in terms of the failure to protect children in our society - failures by the State, by religious institutions and within families - the topic can sometimes have a very toxic feel. That is a sad reality in our national life. The danger is that this can have a chilling effect, when what is needed is for us to interrogate what is proposed, having regard to the best interests of everybody in our society.

Everybody understands that we are all in the same boat in terms of ensuring the State is in a position to intervene when it is appropriate to do so. As the Minister rightly observes, while the State is the agent of intervention, that intervention takes place at many levels. Senator Ivana Bacik also spoke about this, and it tallies with my own experience during a period working in the family law courts where I saw the panoply of responses and engagements. There is sensitivity in any debate on these issues as to what is the appropriate approach to take and the correct language to use. One certainly does not want to give the impression of being in any way blasé about any situation in which a child's welfare might be affected. That said, we are all human beings. Good people sometimes fail and they sometimes do so in a way that should not attract the intervention of the State.

Like Senator Jillian van Turnhout, I am a great fan of that extremely important word, "proportionality". The inclusion of the reference to "proportionate means" indicates to me that even if it were the case that the State could intervene on the slightest pretext, it would then be circumscribed in terms of what it could actually do. That is very positive. However, we are talking here about two stages of intervention. Test one relates to when the State may intervene, while test two is concerned with how it may intervene. The latter is governed by the word "proportionate", but there is a separate and prior question related to the "when" - that is, the circumstances in which the State may intervene.

On the subject of proportionality, I understand that one of the formulations that was considered was a reference to the State "supplementing" the place of the parent. This, again, was an attempt to address those scenarios, as referred to by Senator Bacik and others, in which a full care order is not appropriate but there is a need for agents of the State to approach families in particular situations and offer assistance and support in various ways which we would all find desirable. I agree with Senator van Turnhout, as I have understood her, that the requirement for a State intervention that falls short of a full care order - an interim or intermediate level of intervention - is encompassed within the notion of proportionality.

The nub of the issue is the meaning of the word "prejudicial" and I remain of the view that there is a certain vagueness in the provision in this regard. The Minister rightly argued that the phrase "for physical and moral reasons" does not really resonate, as there is a difficulty in distinguishing between its constitutional and ordinary meaning. It is something of a head-scratcher and raises the question of whether there are other types of reason - perhaps accidental reasons - which are thereby excluded. I agree with the Minister that a recasting of the wording with a view to focusing on the impact on the child is the sensible approach to take.

The same test applies, however - I am attempting here to address the question raised by Senators David Cullinane, Averil Power and Jim Walsh - in the context of the notion of "prejudicial" effect. If one were to ask ordinary people in the street - although I have some legal background, I number myself among this group - what they understand by somebody's welfare being "prejudicially affected", many of them would be scratching their heads. Does the Minister understand the phrase "prejudicially affected" to mean negatively affected, or is it more or less than that? This is the crux of the matter. In response to Senator Cullinane's point about the effect of including the word "significantly" here, I can only say that there can never be certainty in terms of how words are interpreted. The courts will always have to interpret what is in front of them and apply the test of the reasonable person. My view in this instance is that the reasonable person would have a much clearer idea of what is meant by a person's welfare being "significantly affected" as opposed to "prejudicially affected". "Significantly" is a word that recommends itself to ordinary human understanding of situations in a way that "prejudicially" does not. I return now to the question I raised in my first intervention. Should the State be in a position to intervene in situations in which a parental failure is not likely to affect a child's welfare significantly? I expect that the ordinary person's answer to that question would be "No" - that if the effect is not significant then the State should not have a role, proportionate or otherwise. However, it is with greatly mixed views that I am thinking about these issues.

Colleagues will be aware of a recent advertisement relating to alcohol abuse. I am always beating the drum regarding the need to change our thinking completely on the issue of the abuse of alcohol and the impact it is having on families, on children's futures, on the health care budget and so on. All types of issue are tied up, fite fuaite, with the problem of alcohol abuse in our society. The advertisement to which I referred asks parents to consider the question "Is your drinking affecting their thinking?". In other words, it invites parents to reflect on the example they are giving. The misuse of alcohol is an issue that encompasses a huge number of parents in this country. It is fair to say that the safety and welfare of children, both present and future, is affected on an ongoing basis by attitudes to over-consumption of alcohol and the association of alcohol with significant events such as First Holy Communions.

There are all types of ways in which people who would describe themselves as good parents, and who would be considered as such by others, are nonetheless failing in their duty towards their children. The question I ask - I am not sure I know the answer - is whether this type of behaviour on the part of parents is something we would intend to be encompassed within the constitutional provision.

In this area, should we regard the State as considering itself to be constitutionally empowered or even mandated to "supply the place of the parents" to some proportionate extent? On balance, my answer is "No". While I am in favour of providing all sorts of education programmes and believe there is a significant need for civil society to engage in this area, I am not sure it is the State's role to see itself as interventionist in this constitutional manner when cases of this nature arise. It is the job of Members to think about these issues and the future application of these constitutional provisions.

Senator Power and others correctly noted the hard work that has been done, as is undoubtedly the case. All of us have kept an eye on this matter and responded at different stages. We have reached what may be described as the penultimate phase of the vetting of this constitutional proposal, the ultimate phase being that given by the people on referendum day. It is in that context that we must do our duty and re-examine the proposal.

Having regard to the fact that good parents sometimes fail in the way I described, many people would consider that failure which falls short of being significant should not be the basis for a constitutional empowerment of the State or its agents to intervene in any way. I will reduce the concerns I am expressing to a core question. What does the word "prejudicial" mean in this context? Does the notion that the safety and welfare of the child would be likely to be prejudicially affected have the effect of raising, lowering or maintaining the threshold that applies in the existing constitutional position?

It is always difficult when one tries to reduce debates to core questions. While I am grateful, as I stated, for the Minister's comprehensive answer, it would be helpful to hear a little more on what she considers to be the meaning of the word "prejudicial" and what will be its effect. We are all ad idem on the desirability of levelling the scope of the State to intervene as between marital families and children in other circumstances. The question that arises, however, is what is the threshold at which the State may intervene. The nub of the issue - the key to the riddle, as it were - is identifying what the phrase "prejudicially affected" means? Does it have the same meaning as the phrase "negatively affected" or does it have a greater or lesser meaning than that? Does the Minister believe that in introducing this phrase she is raising or lowering the threshold, in other words, making it more or less difficult for the State to intervene, or is she leaving the position pretty much as it is, as compared with the existing constitutional wording?