Jillian van Turnhout (Independent) | Oireachtas source

I move amendment No. 6:

In page 13, to delete lines 30 to 32 and substitute the following:
“9. (1) The Agency shall, when making decisions in relation to the performance of its functions under section 8(1)(a), (b) or (c), in respect of an individual child or family, regard the best interests of the child as a primary consideration.”.

This is my most substantive amendment. The "best interests of the child in all matters" versus "the best interests of the child as the primary consideration" is what we are discussing here. The enumeration of the best interests of the child requirement in respect of the new agency's decision making processes and in the performance of its various functions is a major and welcome development in implementing a children's rights approach to public sector reform. However, I believe the current manifestation of the best interests of the child principle, in section 9(1), as "the best interests of the child in all matters" falls short of the standards set in Article 3.1 of the UN Convention on the Rights of the Child which states: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

I was interested in the Minister's response when this amendment was tabled by Deputy Ó Caoláin on Committee Stage in the Dáil. I understand the point she made about scenarios where a specific child might not be the subject of a service provided or where the work of the agency is not directly child related, despite there being a child involved. She gave the examples of domestic or sexual violence and marriage guidance counselling. I would be inclined to agree with the Minister's interpretation were the disputed wording "the best interests of the child shall be the paramount consideration", which is, correctly, the standard applied in Irish legislation governing adoption, custody, access and guardianship, section 9(2) of this Bill and Article 21 of the UN Convention on the Rights of the Child, since children are at the centre of these cases. That is why it is the paramount consideration.

The formulation I have put forward is "a primary consideration". I respectfully disagree with the Minister's interpretation that it could narrow the breadth or scope of the provision. I believe it fully captures the scenarios she outlined to Deputy Ó Caoláin and the essence of the best interests of the child principle, as intended by the UN Convention on the Rights of the Child in Article 3. The best interests of the child principle is interpretative in character, but we are not without guidance. In 2013, prompted by a considerable degree of inconsistency in the interpretation and application of the best interests of the child principle by the state parties to the convention, the UN Committee on the Rights of the Child issued general comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration. The committee elaborated a threefold meaning which I ask the Minister to consider in the context of the scenarios and examples which she outlined to Deputy Ó Caoláin.

The best interests principle, and I thank the Children's Rights Alliance for synopsising the general comment for me so adeptly, is, first, a substantive right. It is the right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake and guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3.1 creates an intrinsic obligation for states and is directly applicable, self executing and can be invoked before a court.

Second, it is a fundamental interpretative legal principle. If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child's best interests should be chosen. The rights enshrined in the convention and its protocols provide this framework for interpretation. Third, it is a rule of procedure. Whenever a decision is to be made that will affect a specific child, an individual child, an individual group of children or children in general, the decision making process must include an evaluation of the possible impact, positive or negative, of the decision on the child or children concerned. Assessing and determining the best interests of the child requires procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, state parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child's best interests, what criteria it is based on and how the child's interests have been weighed against other considerations, be they broad issues of policy or individual cases.

In conclusion, there is the same intention in the respective wording of the proposals put forward here. In both cases, the obligation is that the best interests of the child must explicitly be taken into account, considered and balanced, in as far as the child is affected and impacted by the situation in question. However, the advantage of my proposal is that the language is consistent with our obligations as a state party to the UN Convention on the Rights of the Child. As it has had the benefit of interpretative guidance by the UN Committee on the Rights of the Child, it would offer greater clarity to agency staff on how the principle should be interpreted in practice, thus leading to better outcomes for children. That is the reason I propose that we use the words "a primary consideration".