David Cullinane (Sinn Fein) | Oireachtas source

I second the amendment. Section 9(1) of the Bill specifies that the agency when making decisions in performing its functions under sections 8(1)(a), (b) or (c) shall "have regard to the best interests of the child in all matters". In practice, this means that when the Agency is performing its functions, which are being transferred from the Family Support Agency, the Education Welfare Board and the Health Service Executive, it will have to pay due regard to the best interests of the child. The principle also applies to its functions in supporting and promoting the development, welfare and protection of children and supporting and encouraging the effective functioning of families.

This is a very welcome development and represents a major evolution in adopting a children's rights approach in public sector reform. However, questions arise as to how this principle will operate in practice, as there is nothing specific in the legislation on this. The best interests principle is interpretative in character and decision-makers need guidance on how to interpret it in practice. The provision falls short of 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."

The Committee on the Rights of the Child, CRC, issued a general comment to clarify the meaning of this principle in 2013. It stated that it has a three-fold meaning. First, the best interests principle is a substantive right, 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 the 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, is directly applicable 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 optional protocols provide the framework for interpretation.

Third, it is a rule of procedure. Whenever a decision is to be made that will affect a specific child, an identified 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 require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, states 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 and the criteria on which it is based.

I hope the Minister will take on board the views of organisations that have lobbied Members on this issue, if not the concerns of the Opposition. NGOs and other organisations have concerns and they believe the wording in the amendment would add value to the Bill.