Rónán Mullen (Independent) | Oireachtas source

I have just said I will not go back over the ground in regard to the likelihood of that interpretation being placed by the courts, which is completely fanciful. However, what the Minister has said about adoption going beyond the supplying of the place of the parent is an interesting argument. Again, but in a similar way, what is clear from Article 42A.2.1° is that there are different ways in which the State shall supply the place of the parent, in some cases through care orders, in some cases through interventions falling short of that, but always in a proportionate way. It seems that what was logically intended was that fitting within the concept of the State's ability to supply the place of the parent, is the constitutional ability of the State to make law to provide for the adoption of children in certain circumstances. For that reason, I do not agree with the analysis that adoption somehow goes beyond the State supplying the place of the parents.

The State supplies the place of the parents in some cases by making an intervention that falls short of a care order, which is what this constitutional provision envisages. In other cases, the State shall supply the place of the parents in more serious situations where care orders and so on will be required. In some cases, legislation providing for adoption falls within that family of possible responses. On the basis that this is so, there is a problem in the fact we apparently have two tests. The first talks about failure, but failure defined as being failure to such extent that safety and welfare is likely to be prejudicially affected. The second just makes a reference to failure.

As I said, I have confidence in the Minister's ability in her efforts to provide for very prudent legislation but we have to make constitutional changes with all sorts of future scenarios in mind. Only in the last couple of days, I received an e-mail from a person on this very point, drawing my attention to the fact Article 42A.2.2° did not contain the words "in exceptional cases". That person, who is only one person and not a legal expert, interpreted this in a certain way. In the context of reassuring people that there is some kind of harmony here, it seems one secures the issue and avoids any possible confusion of the issues by the use of the words ?in particular".

That is all I have to say on the matter. I have made my point. The wording of this amendment would be the better with the inclusion of those words. I have heard the Minister's arguments and know they are made in good faith, but I do not accept the logic of them.