Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

We have had a fairly long discussion on this, but I will summarise again the points I have already made today in this regard.

The provision as worded and the position outlined make a clear link between failure and any provision in law for the involuntary adoption of children. We are all agreed on the point that failure must be established. I am satisfied that the failure is as set out in Article 42A.2.1o. To suggest that the courts would conceptualise failure in some way other than provided in the Constitution and statute would be illogical. The fundamental difference is that I am clear that the question of the adoption of a child involuntarily goes beyond supplying the place of parents, as in Article 42A.2.1o. It is important to make this point that the failure test here goes beyond that. This must be remembered. Supplying implies, as I already made clear, support to parents, provision orders and is everything that falls short of a care order. What we are talking about goes beyond supplying the place of parents. The Senator should bear in mind also that the supply of the place of parents in Article 42A.2.1o does not extinguish the rights of parents, whereas adoption does. This is a fundamental difference.

I also draw the attention of the House to the fact that in the way we have formulated the provisions - this supports my point - the two provisions of adoption are not grouped under this Article. They are grouped quite differently. Therefore, it is quite clear that Articles 42A.2.1o and 42A.2.2o are grouped together, whereas the voluntary provision is in Article 42A.3: "Provision shall be made by law for the voluntary placement for adoption and the adoption of any child." Furthermore, the reference in Article 41 to the "inalienable and imprescriptible rights" of the parents obviously always applies when considering adoption. There must be balance in that regard and as we have outlined it in the legislation, there is a series of steps to ensure this occurs. I will not go into that again as the House is familiar with the range of steps that must be gone through in order to arrive at a point of there being failure. Therefore, in this section we are talking about involuntary adoption. The principle is important and I would not minimise it for one moment, but under Article 41, the natural rights of the parent would be very relevant, parents would be given every opportunity and the courts would want to hear everything the parents have to say in this regard. Parents would have full voice with regard to the issue. For these reasons, I will not accept the amendment.

With regard to Article 41.1.1o, and the "inalienable and imprescriptible rights" of the parents, this builds on the basic premise of failure. However, in providing that parents lose all parental rights and are freed from all parental duties under an adoption order, the requirement of the law must go beyond mere failure.

It must be satisfied that the failure constitutes an abandonment of rights established in Article 41. I am very satisfied that the point the Senator is making is dealt with in the amendment as we have drafted it.

I would go back to some points I made earlier in regard to language in the Constitution. Every word has to have a very precise meaning and we do not want to insert words that have unintended consequences. We are keeping the language spare and minimal but, at the same time, getting the kind of balances we have been talking about here all day. If I do not believe the words are required, I have to be mindful of the risks of a court attempting to attach some meaning to them; therefore, there is this problem, this risk, which I have outlined. While I know the Senator does not accept this, the unintended consequences are a very real issue in regard to adding this wording. I certainly do not want to contemplate it at this stage. While I understand the points the Senator is making, I believe that in my response I have shown we do not need this extra wording.