Maria Byrne (Fine Gael)
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Amendments Nos. 1, 3 to 5, inclusive, 7, and 16 to 19, inclusive, are related. Amendment No. 17 is a physical alternative to amendment No. 16. Amendments Nos. 1, 3 to 5, inclusive, 7, and 16 to 19, inclusive, may be discussed together by agreement of the House. Is that agreed? Agreed.

Sharon Keogan (Independent)
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I move amendment No. 1:

In page 4, between lines 16 and 17, to insert the following: “Provision for notification of relatives in guardianship proceedings

12BA. (1) Where—

(a) an application is made to the court under this Act for the restriction or removal of the guardianship of any person, or

(b) it becomes apparent that a child is to be left without any guardian, or with guardians who are unwilling or unable to act,

the applicant in the case of paragraph (a), or the Child and Family Agency in the case of paragraph (b), shall, in so far as is reasonably practicable, take active steps to identify and notify relatives of the child concerned.

(2) For the purposes of this section, and sections 12C, 12D, and 12DA, ‘relative’ means a person related to the child by blood, adoption, or affinity and includes—

(a) an adult sibling of the child,

(b) a grandparent of the child,

(c) an aunt or uncle of the child,

(d) a great-aunt or great-uncle of the child,

(e) an adult first cousin of the child,

and includes any other person who, in the opinion of the court, has a significant and ongoing familial relationship with the child.

(3) An applicant or the Child and Family Agency may request the assistance of An Garda Síochána, the General Register Office, or any other relevant public body to confirm the identity or contact details of relatives identified under subsection (2). Notwithstanding any enactment relating to the non-disclosure of information, such bodies may provide to the court, or to the Child and Family Agency, such limited and proportionate information as is strictly necessary to facilitate notification under this section, ensuring that any data processing complies with the principles of data protection law.

(4) Any relative notified under this section, or any relative who otherwise becomes aware of the situation or proceedings, shall have the right to apply to the court to be joined as a notice party and to make submissions in relation to the welfare, custody, or guardianship of the child.

(5) Before making a final order restricting or removing guardianship, or making alternative long-term care arrangements for a child under subsection (1)(b), the court must be satisfied that all reasonable steps have been taken to comply with the notification requirements of this section.”.

I rise today to find myself with the task of speaking on all my amendments at once; whether that is good or bad fortune I will allow the House to decide. It is certainly more efficient in a sense, and certainly appropriate as all my amendments are linked by common aims, namely, to check the role of the family and care agency, or Tusla, as we commonly know it, as the effective gatekeeper in the legislation, and to strengthen the role of other voices, particularly of the family and kin. Before I go any further, if the Leas-Chathaoirleach will permit, I would like to take a moment to recognise and praise the Trojan work done by David French and his family, again here today, and that of the Minister in bringing this legislation before us today. We should count ourselves lucky if, God forbid, we were to fall victim to such horrific circumstances as his sister Valerie and her children, that we should have siblings so dedicated to set things right. He has truly honoured his late sister's legacy and set an example of strength and power of familial love.

My first amendment seeks to create a system for notification of relatives in guardianship proceedings. This amendment seeks to change the principal guardianship Act of 1964 directly.While I had initially considered a system for the notification of relatives only in the cases outlined in the Bill, I believe it is better to add in a broader umbrella amendment that would cover the cases outlined in the Bill because cases such as murder of one spouse by another will not be the only cases in which a child will be left without a guardian. Only adding a family notification requirement for cases outlined under Valerie's law would create an inequality between cases. I recognise the 1964 Act contains numerous provisions to allow for a family to apply for guardianship.

The aim of this amendment is to make a relatively simple, but I believe quite fundamental, shift to an overall structure of guardianship law, which is to shift from passive to active family rights. This is because, put simply, it is all very well that an aunt or sibling of a child who finds themselves without a guardian can apply for guardianship according to the letter of the law. It is another matter to ensure the family member knows he or she can apply for guardianship. The simple fact is that a substantial number of people in this country never take advantage of their rights because they are simply not aware of them. This amendment seeks to rectify that. It is very easy to imagine a man or woman who is aware they have a nephew or niece who is to be without a guardian, either because their parents have passed away or are in fact unfit to be guardians, and that man or women does nothing because he or she has no idea he or she might be entitled to apply for guardianship of that child or even to weigh in that child's guardianship proceedings. By ensuring that if any person were to receive a letter informing them of the situation of their nephew, niece, grandchild or so on, many of them would, at a minimum, get involved in the proceedings and give the court a broader perspective on the child's welfare. If many of them were informed in that letter that they have or may have a right to apply for guardianship, where that is the case then the State would find, more often than we think, a willing guardian. This is something which would not only relieve the strain on our social services but would very often find a more organic and healthy environment for the child concerned.

As I believe similar amendments to mine were tabled during the Dáil debates on this Bill and were rejected partly on the grounds that no definition of family was provided, in this amendment I have provided one. Before anyone argues this list of relatives is too exhaustive and will clog up the system with endless administration, let me point out the countermeasure. The phrase, "in so far as is reasonably practicable", contained in the proposed subsection (1) acts as a vital common-sense safety valve. It ensures that neither Tusla nor the applicant is forced to achieve the impossible. It means that while the readily available maternal grandmother, aunts or local adult siblings must be actively informed, the system will not be held up or paralysed by a mandatory hunt for a distant cousin who lives overseas and has no relationship with the child. Furthermore, the proposed subsection (5) places the ultimate discretion squarely where it belongs, that is, with the judge. The court must simply be satisfied that all reasonable steps have been taken. If Tusla demonstrates it has made an honest, practical effort to notify the child's known immediate family network, the judge has the full authority to rule that the statutory burden has been met and to proceed with the case.

This amendment does not create a heavy, unworkable checklist for social workers. Rather, it uses strict language to stop Tusla from completely shutting out a child's family, while providing the court with the necessary flexibility to ensure a speedy, efficient process that keeps the child's best interest paramount. Additionally, it empowers the applicant to make use of the other bodies in the State insofar as there is no breach of standing data law.

Moving further into section 3, we will come to my amendments Nos. 3 and 4, regarding the requirement of the court to seek and consider extended views. I have tabled these amendments as a staggered option for section 12C. Amendment No. 3 is my preferred, robust option. It makes the gathering of the views of family and others a firm statutory precondition. It states the making a guardianship removal order shall be subject to the court making reasonable efforts to obtain the input of family members and independent professionals. We cannot allow life-altering decisions about a child's legal structure to occur behind closed doors with only the State, Tusla and the offender in the room.

However, if the Minister objects to that strict precondition on administrative grounds, I have provided amendment No. 4 as a flexible fallback option. This fallback option uses the phrase "where practicable" to grand the Judiciary immediate flexibility. It establishes a clear, positive mandate encouraging the court to look outside the institutional vacuum of Tusla and the convicted guardian, explicitly drawing on wider family networks and any appointed guardian ad litem.

Similarly, I have applied the exact same principle to section 12D under amendment No. 5, which deals with cases where a parent has survived a serious non-fatal assault. Here, the dynamic changes dramatically. The other guardian is very much alive but they are a recovering victim. My amendment explicitly hard-codes the victim guardian directly into the list of mandatory voices the court must seek out and listen to. It ensures a traumatised parent cannot be sidelined by Tusla's legal team while simultaneously mandating that the wider family and the independent professionals are engaged to build a comprehensive picture of the child's environment.

This brings me to what I believe is the most fundamental shift proposed in this package. Amendment No. 7 seeks to insert section 12DA, granting the family a direct right to apply for the removal or restriction of guardianship. As the Bill is currently drafted, Tusla virtually holds a total monopoly. If a parent kills the other parent, only Tusla can choose to initiate a case. If Tusla drops the ball, delays or forms a view that differs from the family, the victim's family is left entirely powerless. My amendments break that bottleneck. They allow a relative, be it a grandparent, aunt, uncle or adult sibling who has legitimate concerns for the child's safety to walk directly into a court and sue to strip the killer's guardianship rights. Crucially, the proposed subsection (8) explicitly states that this application can be made independently of, and notwithstanding any actions or inaction by Tusla. To prevent any malicious litigation, subsection (9) gives the judge full power to throw out any application that is frivolous or vexatious. Likewise, if there are multiple applications it gives the court the right to direct that those applications may be heard at the same time.

Overall, the principle of this amendment, as with most of them, is to involve family because I feel the bulk of the objections to these amendments will be that involving family, giving them rights of application and mandating they should be notified of proceedings will introduce too many variables into the court case. Yet I think this objection would be hypercritical, because on one hand we find that it is good enough for a family to take the initiative to alter our national statutory legislation, as David French and his family have bravely done, but on the other hand we do not think a family is good enough to apply for a guardianship removal. That is not consistent.

Furthermore, I want to draw the House's attention to the vital shield I have built into subsection (7) of amendment No. 7. Under our current flawed family law system, if a courageous grandmother, aunt or uncle tries to step in to protect a child, a high-earning defence solicitor representing the convicted killer can immediately turn around and drag that grieving family through the mud with retaliatory counter-suits for access or custody under the 1964 Act. My amendments would put a definite stop to this legal harassment. They explicitly lock the abuser out from weaponising sections 6A or 8 against the family, thereby ensuring the court system can never be used as a tool of ongoing control and trauma from behind prison bars.

Finally, we must look at how these rules tie together procedurally under section 12I, which handles notice parties.I want to be entirely transparent with the House about how these final two amendments operate. Amendment No. 17 provides the necessary legal machinery for the family' right to apply. It mandates that if a relative launches a case independently under section 12DA, notice must be served on Tusla giving the agency an automatic right to apply to be joined to the proceedings. Therefore, amendment No. 17 relies entirely on the passage of amendment No. 7. If this House chooses to grant families the right to act, amendment No. 17 is the bridge that keeps Tusla involved as a supportive partner.

However, if the committee rejects that right and chooses to maintain Tusla's monopoly over initiating cases, I ask the Minister to look at amendment No. 18, which must be seen as our vital, stand-alone fallback. Even if the State refuses to let a grandmother launch a lawsuit, it is an absolute injustice to let Tusla run that lawsuit while leaving family members in the dark and, more accurately, even potentially leaving them in the dark, which would be a failure of good law. Amendment No. 18 does not rely on amendment No. 7. It stands completely on its own. It establishes a strict duty to notify, forcing Tusla, insofar as reasonably practicable, to actively track down and notify the next of kin or adult relatives whenever the State moves to restrict a killer's guardianship. Once more, I note that we are coming full circle, as, like my first amendment, it transforms what is currently a passive right to join a case into an active, informed safeguard to ensure that no family is left in the dark.

It is likely the Minister will tell this House that Tusla already involves extended families whenever it is appropriate to do so, but that is exactly the problem. Right now, the system relies entirely on Tusla's own discretion. It holds all the cards as an unaccountable gatekeeper. By shifting this requirement into a strict statutory mandate under amendments Nos. 1 and 7, and locking it in place with the notice machinery of amendments Nos. 17 and 18, we are using the power of primary legislation to force it to act against its own gatekeeping instincts. Under amendment No. 17, if a family initiates a case, Tusla is stripped of its powers to block it. It is legally brought in as a notification party to assist the family and not to command them. Under our fallback amendment No. 18, if Tusla tries to run a case in the shadows, it is statutorily compelled to actively notify the next of kin. We are stripping away its choice to ignore the family. With this complete framework, Tusla will no longer be the masters of who gets into the courtroom. It will be a legally compelled servant of the court and held directly accountable by judge.

When we evaluate this legislation package in its entirety, we are looking at the comprehensive, interlocking strategy to fundamentally rebalance Irish family law away from institutional monopoly and back towards family, kinship and care. By passing amendment No. 1, we shift the entire structural landscape of the 1964 Act from passive to active rights, creating an all-encompassing notification system that ensures aunts, uncles and grandparents are automatically invited to protect children in their darkest hours, completely protected by common-sense administrative and GDPR safety valves. With amendments Nos. 3, 4 and 5, we shatter the glass door and the closed door court secrecy of Tusla-led prosecutions under Valerie's law and guarantee, through primary mandated and staggered fallbacks, that the voices of extended family, independent specialists and recovering victims' parents can never be sidelined by State attorneys. With amendment No. 7, supported by the notice machinery of amendments Nos. 17 and 18, we demolish Tusla's exclusive gatekeeping monopoly. We give blood relatives the legal autonomy to independently apply to remove an abuser's guardianship, armed with an iron-clad statutory shield that prevents the offender from launching retaliatory custody lawsuits against a grieving family. If this State truly believes in the power of the family network, if it truly intends to honour the legacy of Valerie French and the tireless campaigning of her kin, we must stop treating relatives as silent bystanders in State-controlled courtrooms. We must pass this full package, dismantle these artificial bureaucratic bottlenecks and transform the extended family into active, legal, protected partners in safeguarding Ireland's children. I commend these amendments to the House. I hope the Minister will consider accepting some of them. I do not want Tusla to be the final gatekeeper in this particular legislation.

Maria McCormack (Sinn Fein)
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I welcome the Minister back to the Upper House for the final Stages of this debate. Once again, I welcome David French and his family to the Chamber. I will make a brief contribution because Senator Keogan has covered the issue in a lot of detail. I will discuss our amendments Nos. 16 and 19. Amendment No. 16 ensures that all relevant parties are notified of court applications affecting a child, including the next of kin of a deceased guardian. It is similar to Senator Keogan's amendments. It is important that the family of the guardian who has been killed is made a notice party to these proceedings. They have a clear and legitimate interest in the child's welfare and that role should be recognised, respected and reflected in this process. I ask that, in some form, the Minister looks to see if he can accept one of these amendments to help strengthen the role of the family.

On amendment No. 19, this section, as it stands, gives the Child and Family Agency full discretion in dealing with convictions that occurred before the Act commenced. Without strengthening this provision to include other parties, as my amendment seeks to do, there is a real risk that applications will not be brought. This amendment recognises that guardians ad litem, other guardians and relatives should have a role in prompting action where it is in the child's best interest. That aspect, that it is in the child's best interest, is most important. Given Tusla's concerns about resourcing and identifying historical cases, it is essential that those closest to the child can bring matters forward and ensure appropriate applications are made to the court. I ask the Minister to consider those amendments.

Patricia Stephenson (Social Democrats)
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I thank the Minister. I, too, acknowledge David French and his family, who have fought so hard in tragic circumstances for his sister, Valerie. No family should have to suffer like that and certainly no children should ever have to suffer like that.

I will speak specifically to amendment No. 19. It is designed to make sure that no child falls through the cracks and to provide a pathway for those closest to the child, their guardian ad litem or relative, to ask Tusla to look at the case because they believe action is needed. It does not force Tusla to make an application but it ensures that concerns can be raised and do not just disappear into the ether. It is asking that if Tusla decides not to proceed, it should be required to explain why. It is about transparency and providing a platform for openness. Everyone in this space wants children's safeguarding to be transparent and open. We are all here to put the child's best interests at the centre of all decisions. Several of the amendments laid out in this grouping give a voice to those closest to the child without taking away the professional judgment of staff at Tusla. If Valerie's law is about putting children first, we should make sure that there is a clear way for those acting in the best interests of the child to be able to just knock on the door and ask the State to act and to have a clear pathway by which to do that. It might be that all that is required is for someone to be asking that question. This amendment makes sure that the question can be asked and the pathway is there. It is about strengthening the practical operation of the Bill by introducing an important safeguard to ensure no applications are missed in cases where a child's best interest may require court intervention.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I welcome David French and his family to the Gallery. Like colleagues, I commend them on their campaigning in this area. I also thank Senator Keogan for the amendments she has put down. It is obvious that a lot of work went into them and I commend her on that. I similarly commend Senator McCormack and Sinn Féin on their amendments.I also thank Senator Stephenson for her contribution.

I recognise that all of the amendments being put down are motivated by what the Senators believe is in the best interests of the child concerned, taking into account the family. I will deal with the amendments individually. The system that operates at present is what is referred to as a public law response to a terrible event that happens. We are dealing with circumstances where one guardian parent has been convicted of the murder or manslaughter of another guardian parent. In those circumstances I think that requires a public law response. I do not think that it is a private family issue that the family should be forced to litigate to bring the issues before the court. It is for that reason the legislation is very much public law legislation. It gives responsibility to the Child and Family Agency to bring this application within six months where there has been a conviction for murder or manslaughter and the agency believes that such an application is in the best interests of the child. I am fully aware, and we are all fully aware, that when a tragic event happens, a murderous event like this, the family around the child are enormously supportive and important. Of course, one of the limitations of the legislation that we are introducing is that it is only triggered once there has been a conviction. Once there has been a conviction the time period starts to run. As I mentioned on the last occasion, however, there is the terrible day of the killing and the issue of what happens to the children. We know in most instances that it is the surviving family members, a brother or sister of the deceased guardian or parent, are the ones who actually just on a practical basis take over minding the very young children. If they are not available, obviously Tusla has to come and get involved and bring an application under the Child Care Act for the immediate care of the child.

It is important to note, however, that the legislation I am bringing before the House takes account of the very important role that families play in the lives of children such as the ones caught up in the type of scenario we are describing. Section 12I (1) of the Bill provides for notice parties to proceedings under this part. It states that when an application such as this is being made by Tusla the first persons it must notify are any guardians. Obviously that will include the convicted guardian but also any other guardians in existence should be notified as well. Section 12I (2) provides that a relative of the child concerned may seek leave to be joined as a notice party to proceedings under this part. It defines "relative" as meaning a "grandparent, brother, sister, uncle or aunt ..." and it sets it out in detail there. The scenario that will arise is that if and when Tusla brings the application a relative can apply to be a notice party. I think that is appropriate because the District Court will decide whether it is appropriate for a notice party or relative to be made a notice party to the proceedings. Obviously, if a person is a notice party he or she will get to be heard in the proceedings and will play a role in it.

We also need to recognise the reality of the fact that families do not always come with one harmonious and homogeneous position. Let us consider the proposed definition of "relative" that is being put forward by Senator Keogan in her first amendment. Subsection (2) of the Senator's first amendment includes a grandparent of the child or an aunt or uncle of the child. To get into the reality of this, this will include the parents of the deceased and indeed the parents of the convicted person, or the siblings of the deceased and-or the siblings of the convicted person. The proceedings are about the protection of the children. That is my motivation and that is what motivated David French in seeking to change this law. It is all about what is in the best interests of the children. What I do not want to see happening is that an application before the District Court turns into a row between different sections of the family. That can happen and it is something that I have to ensure does not happen.

I will deal with amendment No. 1. As I mentioned, the Bill deals with how relatives can be made notice parties. I referred to section 12I. Another concern I have is with subsection (3) in amendment No. 1 from Senator Keogan. It would require An Garda Síochána, the General Register Office and any other public body to provide information notwithstanding any enactment that prevents its disclosure. That could raise a data protection issue. Section 12H of the Bill already allows the bodies named in it to share information but only where it is in accordance with law and is necessary and proportionate, and it provides for regulations and for measures to safeguard the rights of the people whose information is shared.

The last subsection of Senator Keogan's amendment has the potential to tie the hands of the court in making appropriate provision for the child. I do not want a situation where a child is in need of another guardian being appointed, or a care order to be made, and the court cannot do so because an administrative step of notifying a particular relative has not been taken. That is one of the consequences - I think of Senator McCormack's amendment - if there is the requirement to notify all next to kin, which is not defined, or relatives, which I know Senator Keogan has defined. If there is a requirement that the relatives must be notified, then the case cannot be heard until they are all notified and there are affidavits of service showing that the aunts, the uncles and the grandparents have been served and proof that they have been served, and then there is the issue of trying to determine their view in respect of it. I am being frank. I do not want the family to be the driving force in these applications because that is very much a private law response. We have to recognise that the family is not going to have, in many instances, a consistent view in respect of it.

On amendment No. 7, I appreciate the best of intentions of Senator Keogan to ensure that the relative who is concerned for the welfare of a child is able to act. What the Bill seeks to do is put in place a public law determination of what is in the best interests of the child. That is the paramount consideration. I would be concerned that if we were going to delegate responsibility to certain other family members or give them a say, that would make it a private law matter to be determined by the family. We need to recognise that this could put a lot of pressure on the family as well, a family that has been through a terrible and appalling trauma when we consider that one parent of the remaining children has been convicted of killing the other parent of the remaining children. We need to ensure that this is done in a sensitive way that does not simply generate a row in the court. Amendment No. 7 would allow any relative to bring proceedings to restrict or remove a guardian, whether or not Tusla has done so. That is not a public law response: it is private litigation within the family. Such an application would not rest on any assessment by Tusla of the welfare of the child. It could be contested between family members. It could draw the surviving victim guardian back into proceedings brought by relatives. It could lead to competing applications about the same child. This is a very significant point because then we would have competing views presented in terms of the application by different members of the family. A relative who has concerns is not without a voice under the Bill. I refer to section 12I (2), which states that a family member can apply to be a notice party.

Amendment No. 17 serves only as a function if amendment No. 7 is accepted. I do not propose to accept amendment No. 7.

Amendments Nos. 3, 4 and 5 are two alternative versions of the same new subsection in section 12C. At most, one of them could be accepted. I note what is said but I do not intend to accept these amendments. I appreciate the intention behind them, which is that the court should hear from the child's family and from others close to the child before it makes an order. I have set out a procedure there which I think facilitates that. The amendment would invite argument about whether the court had consulted widely enough and it could delay the making of an order in the case where the safety or welfare of the child requires that the order be made without delay.We want the court to be able to look at the totality of the circumstances and it is better, in my view, that it retains the discretion to do so, rather than being directed by statute as to whose views it must seek in every case.

Throughout the legislation, in the way it has been drafted, the best interests of the child are the primary purpose. In terms of hearing the voice of the child, section 12F applies Part VA of the Childcare Act 1991 to proceedings. This provides for the appointment of a guardian ad litem whose role is to ascertain the views and wishes of the child and to convey them to the court.

Section 12I requires that each guardian, including the guardian ad litem, be given notice and allows a relative, broadly defined, to seek to be joined as a notice party.

I will now deal with amendments Nos. 16 and 18. Senator Stephenson referred to amendment No. 19, which I will come to presently. I do not accept these amendments, which both aim to accomplish substantially the same result, namely, the notification or joining as notice parties of the next of kin. As I mentioned, next of kin could have no relationship with the deceased or their child and may, in some circumstances, be difficult to identify or locate. Again, I ask Senators to look at subsection 12I. I think that is a very appropriate one and it will allow the court to determine who should be joined as a notice party.

Amendment No. 19 is in the name of Senator McCormack and others. Senator Stephenson also spoke to it. The first part is fairly straightforward. It does not need to be made a statutory provision. It simply says where a guardian or relative of the child is of the opinion that an application ought to be made and it is in the best interests of the child, they can request Tusla to do so. There is nothing stopping them; they do not need a law. If you are the brother, sister or parent of a deceased guardian, you can, of course, write to Tusla and say you would like it to invoke the provisions in respect of it. Where it does get difficult is in subsection (2), which is what Senator Stephenson spoke to, along with Senator McCormack, that there would be a requirement on Tusla to provide reasons. There could be very sensitive reasons, based on personal information related to the child or in respect of others, as to why the application is not being made. I would be concerned about that information just being able to be given out to individuals simply because they write - and it could be someone who does not have any connection with the child other than being a relative - and ask Tusla for the reasons it brought an application. It would be problematic to force Tusla to set out the reasons.

I very much appreciate the amendments that were put down. I know the desire of all three Senators who have spoken to this is to make this legislation as effective as possible. I commend them on their attempts to do so but once we go down the route of bringing in the family as the driving force, as the Senators will know themselves, problems are going to arise. Why not get the legislation enacted and up and running as it is? We can then see how Tusla performs in its functions. Fortunately, applications under this legislation will be few and far between, I hope. If there are many of them, it would be a sign that the horrific crime to which Valerie French was subjected has happened again. Fortunately, there will be very few of them. Let us see how the legislation progresses and let us not put responsibility on the families. The families have been through a lot already. Let us leave this as the State having a role to play and see how it progresses.

Sharon Keogan (Independent)
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Will the Minister agree to review this legislation in, say, 18 months? I should have written that in as an amendment.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes, absolutely. There is a requirement on me, as the Senator knows, to do a post-enactment report a year after enactment, I think. The Department of justice does that. I will certainly take it into account. The provisions in this are retrospective as well. It may be the case that there are family members who will contact Tusla to say they would like it to bring an application, notwithstanding the fact that the conviction predates the commencement of the legislation. That will all be part of the review. That will be information that will be available for the purpose of the review. It will be reviewed and kept under constant review.

Mark Daly (Fianna Fail)
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Members will be aware of Standing Order 179 relating to having a post-enactment report a year after legislation is passed setting out the progress made.

Patricia Stephenson (Social Democrats)
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Going back to amendment No. 19 and the second part of it, which is around the request, the Minister said there would be circumstances where giving out the information that might be associated with someone making a request to understand why a case was not being brought forward would potentially put people at risk. Will he outline the procedures provided for under the Bill in that instance? The amendment refers to providing reasons for the decision to the person who made the request. I appreciate what the Minister said, that providing the rationale for any decision to any person who makes a request would be open-ended. Are there changes that could be made to this amendment to provide for instances involving someone with a vested interest in the case? How can we bring transparency to this so that it is not simply a matter of "case closed", with Tusla choosing not to pursue the matter without saying why? Are there ways that process could be strengthened to have more transparency?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am sure if somebody writes to Tusla and says they would like it to bring an application in respect of a conviction which took place, either retrospectively or one which happens after the commencement of the Act, and asks for it to take an application, as they are entitled to, I would think that in most scenarios Tusla will write a reply and give an explanation. It may not be necessary for it to withhold information. However, there must unquestionably be times where Tusla, having considered what is in the best interests of the child, having received some information from a guardian ad litem in respect of the child or based on other factors which it has taken into account, might not do so. If there is a statutory obligation on it to provide reasons, it could be to provide reasons to the parents or siblings of the convicted guardian. There are sensitive reasons for not wanting to have a statutory obligation in place for that. Putting in a statutory obligation that Tusla has to provide reasons would be damaging to the legislation. Obviously if somebody brings an application and Tusla consistently says "No", they could seek a judicial review but they would want to be able to point out that there is an administrative or public law failing by Tusla in terms of not complying with the legislation.

We need to get this legislation in place and see how it operates in its early days. I have no doubt there will be a necessity to come back in due course and we will be able to improve it. However, if we start putting in a statutory obligation on Tusla to provide reasons to every relative, there will be relatives of the convicted parent and relatives of the murdered parent and they do not always get on. There will be different views as to how the kids should be brought up, how the guardianship of the kids should operate and who should have guardianship for them. The kids have been through an awful trauma as it is. The last thing we want to do is put them in the middle of a family law dispute, which, in effect, is what would happen if we have competing relatives arguing in front of a judge about what they say is the best interest of the child. They should not have the primary role. It should be about public law, Tusla coming in and having an opportunity for the voice of the child to be heard by the judge. The judge can hear applications from relatives to be joined as notice parties. The judge may say "I don't want to hear the notice parties; I'm going to go solely based on what is in the best interests of the child, as advocated to me by Tusla." Alternatively, and probably more likely, a judge will allow a relative to be joined. However, the last thing a judge wants is a representative of the murdered guardian on one side and the killer on the other side, with the kids stuck in the middle. That is why I think we need to leave this with public law, but I will certainly consider the matter in due course as the legislation goes on.

Sharon Keogan (Independent)
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I have tabled a lot of amendments and my only issue is the one with Tusla, the State agency for the care of children. I just do not have faith in it, but I have faith in the Minister that, if Tusla is not doing its job or not doing it correctly, he will come back to this Chamber in a year's time and say that can be changed and perhaps another body can be found to take on the role.

I thank the Minister. I will not be pressing my amendments. I accept the Minister's reasoning.

Maria McCormack (Sinn Fein)
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I move amendment No. 2:

In page 4, to delete lines 18 to 32 and substitute the following:

12C. (1) Where a person (in this section referred to as the ‘convicted guardian’) who is a guardian of a child is convicted in the State of the murder or manslaughter of a person who was, at the time of the commission of the offence concerned, another guardian of the child concerned the Child and Family Agency shall, as soon as practicable but not later than 3 months after the conviction or any extension of that period under subsection (2), apply to the court in that behalf for an order under subsection (3).”.

This amendment seeks to strengthen section 12C by requiring the Child and Family Agency to apply to the courts in every case following conviction. I believe the Minister has covered this already. He answered everything in my head.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I give a quick response if the Senator would like me to.

Maria McCormack (Sinn Fein)
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We have gone back and forth on this and the Minister has given all the information. I still feel nervous about having to wait for Tusla, that it is not obliged to make an application, for transparency reasons. Tusla does not have to answer to anyone if it chooses not to come forward. As it currently stands, there is a discretionary test that could limit applications where reasonable cause is not established. I will let the Minister come back to me on it and I will not press the amendment.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Senator. Senator McCormack's amendment proposes to do two things. One is to change the six-month period in the legislation to three months. That is not necessary because there is already a statutory provision in the Bill that requires an application to be made as soon as practicable. The Bill says "as soon as practicable but not later than 6 months after the conviction". Senator McCormack wants to reduce that to "not later than 3 months". My concern about changing it to three months is that it will take time to put the evidence together to go to the District Court. There will need to be reports and evidence on the voice of the child and how it is to be progressed. If we change it to three months, which is a short period for an application like this, what will happen is that Tusla will go in early and look for an extension of time and just extend and extend it. We do not want that to happen. We want Tusla to bring the application as it will have been given a decent period in which to do so.

The second significant part of the amendment is that Senator McCormack proposes to remove the requirement on Tusla to believe the convicted guardian has failed in his or her duty towards the child concerned to such an extent that the safety or welfare of the child is likely to be prejudicially affected. As I said earlier, that is a statutory test that can be overcome fairly easily. However, if it is not in the Bill, I am advised the legislation will be constitutionally frail because people who are convicted guardians will argue this is all about adding on an additional penalty for them, that they have been convicted of murder or manslaughter, have been given their sentence and now an additional penalty is being put on them that they will automatically lose guardianship of their children. That is an argument they could make quite strongly if this provision, which says that Tusla must also be satisfied that the convicted guardian has failed in their duty towards the child, were not in the Bill.

I remember David French said publicly that of course it is a failing of duty to the child to kill the child's other guardian or parent. It is important to have it in the Bill because the last thing I want to happen is for this to be referred or for someone to challenge it. Let us be clear. People will challenge this because it is a significant measure to have guardianship rights removed or restricted, even if a person has been convicted of murder or manslaughter. People will fight this and we need to ensure it is rigorously constitutional. I believe this provision, which I want to retain, will ensure that.

Mark Daly (Fianna Fail)
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Is the amendment being pressed?

Maria McCormack (Sinn Fein)
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Yes.

Maria McCormack (Sinn Fein)
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I move amendment No. 6:

In page 8, between lines 8 and 9, to insert the following:

“(7A) (a) Notwithstanding subsections (1) to (7), this section shall not apply, or shall apply with such modifications as the court considers appropriate, in a case where the convicted guardian was convicted of manslaughter and the court is satisfied that—

(i) the act giving rise to the conviction was committed in self-defence, or

(ii) at the time of the commission of the offence, the convicted guardian had been subjected to domestic violence (within the meaning of the Domestic Violence Act 2018) by the deceased guardian, and the offence occurred in circumstances materially connected to that history of domestic violence.

(b) In determining whether paragraph (a) applies, the court shall have regard to—

(i) any findings of fact made in the criminal proceedings,

(ii) any evidence of domestic violence, including patterns of coercive control, and

(iii) the best interests of the child concerned.

(c) Where paragraph (a) applies, the Child and Family Agency shall not be required to make an application under subsection (1), unless the Agency is satisfied that, notwithstanding those circumstances, there is a risk to the safety or welfare of the child concerned.

(d) Nothing in this subsection shall prevent the court from making an order under subsection (3) where it is satisfied that such an order is necessary and proportionate to protect the safety or welfare of the child concerned.”.

Mark Daly (Fianna Fail)
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Does the Senator want to speak about the amendment?

Maria McCormack (Sinn Fein)
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No.

Mark Daly (Fianna Fail)
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Is the amendment being pressed?

Maria McCormack (Sinn Fein)
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Yes.

Mark Daly (Fianna Fail)
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Amendments Nos. 8 to 12, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The first four amendments in this grouping are minor drafting corrections to correct the wording in four places so the Bill reads consistently. They do not make any change to the substance or effect of the Bill.

The fifth amendment, amendment No. 12, is again a technical amendment. It is to ensure we apply the provisions of the Act of 1991 relating to the appointment of a guardian ad litem to proceedings heard under the new Part. The only substantive change is that the new drafting ensures a guardian ad litem can be re-appointed both where there is a review of an order as set out in the order itself, and where a review of the order takes place under the proposed new section 12E.

A guardian ad litem is an independent person appointed by the court to put the views and best interests of a child before the court. Under this Bill, the court may appoint a guardian ad litem for a child in proceedings to restrict or remove the guardianship of a convicted guardian. The guardian ad litem is to be drawn from the new guardian ad litem national service. The amendment applies the rules of that service to the new proceedings and makes clear how they work in this context. It provides for when a guardian ad litem's appointment comes to an end and how a replacement is to be appointed. The aim is to ensure the child is independently represented throughout, that there is no gap in that representation if a replacement is needed and that there is full clarity on the role of the guardian ad litem.

The Child Care (Amendment) Act 2022 reformed the guardian ad litem system and provides for the new service, which commenced about a week ago. The Government is committed to a high quality, consistent, child-centred service that strengthens the voice of the child in care proceedings.

Mark Daly (Fianna Fail)
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Amendments Nos. 13 to 15, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The purpose of these amendments is to set out which courts shall have responsibility for applications under this section. In particular, amendment No. 15 sets out under the new Family Courts Act, which District Court will have responsibility. It will be the family District Court and it applies to the other courts as well. It will apply to the Circuit Court, which is to be construed as a reference to the family Circuit Court and a judge of the District Court shall be a judge of the family District Court.

Senators will be aware that the Family Courts Act was enacted in 2024. I published an implementation plan. When this legislation is up and running and the Family Courts Act has commenced, we want to see those courts deal with this.Obviously, in advance of the commencement of the family District Court, this legislation will still be operative and operational in the District Court.

Maria McCormack (Sinn Fein)
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I move amendment No. 16:

In page 11, to delete lines 29 to 32 and substitute the following: “12I. (1) An application to the court for an order under this Part shall not be made in relation to the child concerned other than on notice to—

(a) each guardian of that child (including a victim guardian within the meaning of section 12D), and

(b) the next of kin of a deceased guardian of that child, where that deceased guardian died as a result of an offence referred to in section 12C(1)(a); provided that a person shall not be regarded as next of kin for the purposes of this paragraph if that person has been convicted of that offence,”.

Maria McCormack (Sinn Fein)
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I move amendment No. 19:

In page 12, between lines 16 and 17, to insert the following: “(1A) Where a guardian ad litem of the child, another guardian of the child, or a relative of the child (being a person who would be entitled to notice of proceedings under this Act) is of the opinion that anapplication under subsection (1) ought to be made in the best interests of the child, he or she may request the Child and Family Agency to make such an application.

(1B) The Child and Family Agency shall consider any request under subsection (1A) and, where it decides not to make an application under subsection (1), shall, on request, provide reasons for that decision to the person who made the request.”.

Mark Daly (Fianna Fail)
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When is it proposed to take Report Stage?

Robbie Gallagher (Fianna Fail)
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Now.

Mark Daly (Fianna Fail)
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Is that agreed? Agreed.

Mark Daly (Fianna Fail)
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When is it proposed to take Fifth Stage?

Robbie Gallagher (Fianna Fail)
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Now.

Mark Daly (Fianna Fail)
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Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank all the Senators for their contributions and support. It is unusual in this business of politics to go into any House and receive universal support for a piece of legislation. I thank all Senators for their support. As they know, I have made a couple of amendments and, therefore, the Bill must go back to the Dáil. That will happen on the week beginning 13 July. Hopefully, the legislation will pass all Stages of the Houses by 15 July. Obviously, it will then go the President to be signed.

I commend David, Veronica and Suzette French on their presence here, particularly David for his campaigning in respect of this. The first time I encountered David French was on a television programme around January 2024. It was before the Government was announced. There was a question about what would be done in the area of familicide and when tragic events like that happen. David was in the audience and said that this legislation had been a recommendation of the familicide report. He was the one who stated that it is, clearly, abusive of children for one guardian to kill the child's other guardian. The presenter turned and asked me whether I would bring in this legislation if I were to become Minister of justice, and I said I would. It was hard to do. Not everyone was fully supportive of it, but it is important legislation that we will have in place to provide a public law response in this regard.

I commend David and his family on their campaigning on this matter. I thank Senators for their support. We will keep the legislation under review and see how it progresses. It is an important public law response to a appalling and tragic crime that takes place, and for which there needs to be a public law response.

Robbie Gallagher (Fianna Fail)
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First, I commend David, Veronica and Suzette on their work in this area. I met David on a number of occasions. He has been a serious campaigner and advocate. For his family to go through what they have gone through and still campaign to change things, not just for themselves but for those who will come after them, we are all deeply indebted to them. Gabhaim buíochas leo go léir.

I thank the Senators who contributed this evening, all of whom did so in a constructive fashion and came forward with reasonable and good points. Finally, I thank the Minister, who acted on his word, as he outlined in his contribution, and has been proactive on this issue and across a wide range of issues. I thank him for his enthusiasm, endeavour and appetite for work. I salute him.

Mark Daly (Fianna Fail)
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I thank Senators and the Minister. I thank David and his family for their presence on the occasion of the passing of this legislation. It will now move on to the Dáil. From there, it will go the President for signature.

Mark Daly (Fianna Fail)
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When is it proposed to sit again?

Robbie Gallagher (Fianna Fail)
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Tomorrow morning at 10.30 a.m.

Mark Daly (Fianna Fail)
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Is that agreed? Agreed.