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

When the UN committee reports on the next occasion it will also cite the referendum on children, the Adoption Act 2010 which included the paramountcy principle and a number of other initiatives, including this Bill. This Bill contains, for the first time, a novel and wide-ranging commitment, which is not featured in any other way in Irish statute law, regarding the best interests of the child in the way it is formulated here.

The paramountcy principle is also articulated in the Bill.

I will now turn to the detail of the Bill. Section 9(1) provides: "The Agency shall, when making decisions in relation to the performance of its functions under section 8(1)(a), (b) or (c), have regard to the best interests of the child in all matters." The use of the term "the best interests of the child in all matters" is ground-breaking and I shall explain why in terms of the Irish situation and the Constitution. Many of these issues arose when we debated the children's rights referendum last year. There must be a balance, as in the Constitution, between the rights of the individual child and the rights of the family and parents. Both rights are held in the Constitution so both must be balanced and the Bill has been drafted to reflect the situation. There are good constitutional reasons for drafting the best interest principle in the way that we have in the legislation. I shall explain how Irish law took account of the UN convention and the particular issues that must be dealt with due to the Constitution and its various wording.

Section 9(1), as worded, is a broad encompassing provision that will ensure that the best interests of the child are key to the agency's decision-making processes when the agency is exercising functions related to the following: the Education (Welfare) Act 2000; child and family services under specific enactments as set out in Schedule 1; supporting and promoting the development, welfare and protection of children; and supporting and encouraging the effective functioning of families.

Section 9(1) is an overarching provision in terms of the delivery of services by the agency. It imposes a duty on the agency, when making decisions on the delivery of its services under section 8(1)(a), (b) and (c), to have regard to the best interests of the child in all matters.

Reference has been made to general comment No. 14, issued by the Committee on the Rights of the Child, on the right of the child to have his or her best interests taken as a primary consideration. Senators van Turnhout and Leyden commented on No. 14 so let me also comment on the matter. The CRC's general comment also stated that "since article 3, paragraph 1, covers a wide range of situations, the Committee recognizes the need for a degree of flexibility in its application". That means that the UN accepts that every country must have a degree of flexibility in the application of its principles which includes taking account of a constitution in a country. The CRC continued: "The best interests of the child – once assessed and determined – might conflict with other interests or rights (e.g. of other children, the public, parents, etc.)." When we considers individual cases, it is often possible to harmonise individual rights but if that is not possible the rights of the child must be taken as a primary consideration and we allow for that in the drafting of this legislation.

The convention entered into force in Ireland in 1992. Similar to many other common law countries, Ireland has a dualist system under which international agreements to which Ireland becomes a party are not automatically incorporated into domestic law. The challenge is providing a legislative commitment to best interests as a primary consideration which must be considered in the context of the Irish constitutional and statutory framework.

I am satisfied that in the great majority of situations the best interests of the child will be the primary consideration. As we saw during the debate on the children's referendum last year, there may be a small number of situations where there is a need to balance other constitutional considerations. The approach adopted has been considered carefully by the Office of the Attorney General and my Department's legal personnel and the way it is captured in the Bill is the best approach to the legal framework.

Today's debate should focus on a commitment to ensuring, as a general procedure in the performance of its duties, that the State body must evaluate the possible impact of any decision it makes on a child or children. This is a novel and wide-ranging commitment that has not featured in Irish statute law. It is in addition to the paramountcy principle that is strongly reiterated in respect of specific situations where decisions are taken on an individual child.

Section 9, subsections (2) and (4) imposes certain obligations on the agency where the agency is performing its functions in respect of individual children. I am satisfied with section 9 in terms of the balance it establishes in cases where the agency exercises its functions in respect of children generally or individual children. It is reasonable and possible to ensure the best interests are considered and that the agency's decision-making is clearly underpinned statutorily to ensure that they are child-centred.

During the Committee Stage debate I made a point about the agency's work and confirmed that it would be a judicial interpretation but to expect, in the normal course of events, front-line staff to be involved in a broad range of the agency's functions would not be the best way to go forward. I told Senator van Turnhout, and other Senators who raised the matter, that I would examine the UN commitment and its interpretation in Irish law. I hope that I have explained that the balance in section 9 deals very effectively with the situation that where individual children's issues are concerned there is the paramountcy principle and that in the broader terms of functions that the language is worded to reflect the balance. It also reflects our approach to the children's referendum and it is the de factoposition once the referendum is fully incorporated. We have achieve a balance between a child's rights and other constitutional provisions that must be considered. That is the best legal advice that I have and I hope that I have clarified the matter.