Ivana Bacik (Independent) | Oireachtas source

Senator Mullen in his response to the Minister on the net point referred to his view that "prejudicially affected" is not enough without the inclusion of the words ?and significantly?.

The important response to that is that the provision must be interpreted holistically, that "prejudicially affected" must be read in the context of the entire sentence, "where the parents ... fail in their duty ... to such extent that", in other words, that "prejudicially affected" refers to the extent to which "the safety or welfare of any of their children is likely to be prejudicially affected".

I was struck by Senator Norris's comment that "safety" is a critical word too, that the safety of a child is prejudicially affected. Prejudicial affect, to answer Senator Mullen's point, has a clear legal and ordinary meaning of harmful. If the safety or welfare of a child is likely to be harmfully affected or harmed and the parents have failed in their duty to that extent, only then, in exceptional cases, shall the State intervene by proportionate means.

The phrase "as provided by law" simply sets out how one would provide for the proportionate means. It does not qualify it.

I would say also that the term "duty" is a recognised phrase in the Constitution, for example, parental duty in the education Article, Article 42. "Duty" is a clear word to be used. I do not see the need to include "significantly" in order to achieve the effect we all wish to achieve.

I agree with Senator Mullen that it has been a constructive, thoughtful and reflective debate. I would say also that "prejudicially affected" also answers the particular concern Senator Mullen has that the State shall only intervene by proportionate means, and that fulfils the place he seeks to fill through the use of the word "significantly", which, with respect, is too blunt or too crude. The current more elegant wording fulfils the desired effect. If one looks at the proportionate means the State has available to it, it is not only the care orders and the Child Care Act, but the other provisions such as the supervision order in section 19 whereby a family is supported with regular visits and supports from the social services. It does not always mean the extreme of the final care order, as Senator Mullen acknowledged.

The insertion of "and significantly" is unnecessary. In fact, it may prejudicially affect the balance that is sought to be achieved in this provision. What we have here is a clear outline of the test which should be applied in cases where the safety or welfare of a child is at issue.