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

In section 9(2) the issue of paramountcy is acknowledged and restated. It provides that in the performance of its functions in respect of an individual child under the Child Care Act 1991 or the Adoption Act 2010 the agency shall regard the best interests of the child as the paramount consideration. It takes what is already in the Child Care Act, builds on it and includes it in this legislation. The Senators will agree that the provision could not be stronger. It reiterates the child-centred approach in matters of welfare and protection where there is a distinction to be made. Those provisions are appropriate, proportional and can be given real effect in the agency. It is important to include them here.

The Senator picked up on the point about where there might be almost a conflict of interest or if there was a situation where children were not involved but somehow the agency was involved in delivering services to a family where there were no children. We are anxious to keep a very broad scope for the best interests principle, but in terms of the breadth of scope of services, the Senator has given one approach on the legal interpretation but my understanding of the likely legal interpretation of "primary" is a heavy weighting in favour of the best interests of an individual child. I do not accept that the agency, in making decisions relating to the breadth of its functions, could or should be given a mandate which would require a degree of interpretation, without guidance in statute law, as to what other primary interests there might be and how they might be balanced.

I do not accept that the agency, in making decisions relating to the breadth of its functions, could or should be given a mandate which would require a degree of interpretation without guidance in statute law as to what other primary interests there might be and how they might be balanced. Such interpretations are within the scope of judicial function and could not reasonably be expected to be balanced and assessed by every front-line worker. They might be particularly fraught in specific areas where parental rights and other fundamental rights contained in the Constitution might be relevant.

When we were discussing the wording of the children's rights referendum, I pointed out that when new section becomes fully legal, it will be interpreted in the context of the Constitution as a whole. In other words, the rights of the child will have to be balanced with other rights provided for in the Constitution, such as the rights of families and parents. In the same way, this legislation provides that the agency must "have regard to the best interests of the child". I refer the Senator to sections 9(1), 9(2) and 9(4) of the Bill. Section 9(4) is about hearing the views of the child "where that child is capable of forming and expressing his or her own view". I suggest that sections 9(1), 9(2) and 9(4) give a statutory underpinning to the belief that a very strong weight should apply to ascertaining the best interests and views of the child. This section is quite strongly worded. It will protect the best interests of the child. I accept the Senator's point about a particular formulation. As she knows, the UN guarantee concerns the best interests of the child as a primary consideration. I think I am right to say that relates primarily to legal proceedings. Perhaps it is broader than that.