Rónán Mullen (Independent) | Oireachtas source

I thank the Minister for her response. With regard to the previous amendment I said that there was a judgment call to be made. Frankly, the Minister and her advisers are very much mistaken in the answer and response that she has given. There is no sense in which the use of the words "in particular" could create, as she has said, the impression that adoption is being proposed, seen or implied to be the natural extension of taking a child into care. She has already clearly and correctly said, during our discussion of the previous amendment, that the State's duty to "supply the place of the parent" does not involve taking a child into care in lots of different contexts. She clearly stated that taking a child into care is one of a number of possible appropriate responses. For her to make an argument that linking the two sections would somehow impart the idea that adoption is the natural extension of taking a child into care implies that sub-article 2.1° is always about taking children into care. That is simply wrong, illogical and cannot stand as an argument.

She suggested that it is her intention that the provision that shall be made by law for involuntary adoption, such as is made in the proposed legislation accompanying the referendum or such as could be proposed in the future, should take place subject to the tests and the context set out in sub-article 2.1°. The reason she gave is that she numbered it as sub-articles 2.1° and 2.2° or Article 42A.1° and 42A.2° or whatever way we should describe it. That provision could be void due to its vagueness but nobody here has all of the knowledge. Perhaps the Minister or her advisers could give me instances of where sub-articles 2.1° and 2.2° have been interpreted by the courts to specifically subject the second section to the test and provisions of the first. It may prove helpful. Frankly, a constitutional way to do this is to use the words "in particular."

To be clear on what we are talking about, legislation can be made, amended and replaced in the future to allow for adoption of any child, including for involuntary situations. Voluntary placement is talked about in the subsequent part but we are talking about involuntary adoption. Should the latter happen "in exceptional cases"? I think the Minister's answer to that is "Yes". Should it only happen "where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected"? I think her answer to that is "Yes". Should such provision be made by law for the adoption of the child an expression of the State supplying "the place of the parent"? Is that what the State will do? That is not true care.

Is the provision of such adoption legislation one manifestation of how the State shall "supply the place of the parent" in certain defined circumstances? Is such provision in law for adoption in these cases an expression of the State's duty? I think her answer to that is "Yes". Should such provision in law for adoption be required to be a "proportionate means" in any given situation of parental failure? I think her answer to that is "Yes". Should such provision in law for the adoption of children, even involuntarily, in situations where there is parental failure always take place with due regard to the "natural and imprescriptible rights" of the child? I think her answer to my question must also be "Yes".
If the Minister answers all of my questions with a "Yes" - I think that is her intention - then the only logical thing for her to do is to bring subsections 1 and 2 together. If she does not then she will facilitate a possible interpretation by the courts that legislation providing for adoption in involuntary sessions is not necessarily subject to all of the tests and context set out in sub-article 2.1° and that it is a "best interest" question which needs a different test. I think what she intended was-----