Like my colleagues, I too welcome Mr. David French to the Gallery. I commend him on his perseverance and the encouragement he has provided, not only to me in terms of trying to ensure the legislation could be introduced to the Houses of the Oireachtas but also in terms of the encouragement and support to other Members of the House. It is unusual to have legislation that is universally supported. I am very conscious Members are perfectly entitled to put down amendments but it is unusual to have legislation that is so universally supported. This is in no small part due to the presence and campaigning of David French. I thank Deputy Carthy for his amendment, which seeks to do two things. It seeks to amend section 12C, which at present, under the draft that was approved on Committee Stage, requires the Child and Family Agency to bring an application as soon as practicable but not later than six months after the conviction of the person for manslaughter or murder. Deputy Carthy's amendment wishes to amend this so that it states "3 months". I cannot accept the amendment because I believe the statutory provision that is there at present is fairly clear to the Child and Family Agency. It requires it to bring an application as soon as practicable. This requires it to move with considerable expediency and the timeline limit on which the application can be made is six months. My concern is that by changing the statutory limitation from six months to three months I will find myself in a situation where the Child and Family Agency will recognise that it cannot get all of the material before the courts within the three months and we will encourage applications for extensions of time. As Deputy Carthy is aware, under the legislation such applications for an extension of time are permitted and sometimes they may be necessary. My concern is that if we limit it so tightly to three months, there will necessarily be constant immediate applications for extensions. It is also important to point out that when it comes to making this application it will, presumably, be an application that is made on affidavit by Tusla, in which it will have to set out the basis for the application. It will have to provide evidential proof of the conviction by way of the order from the Central Criminal Court. It will take a bit of time to do this. It will also need to put before the court evidence that it states is necessary to show that the second requirement for the implication of the application has been met, which is that the convicted parent has failed in his or her obligation to the child. This brings me to the second part of Deputy Carthy's amendment, which is that he seeks to remove from the consideration the test that Tusla must be satisfied the convicted guardian has failed in his or her duty towards the child concerned. The reason this is included, and I emphasised this on Committee Stage, is based on the constitutional threshold for State intervention in the family. It is important, as I have stated repeatedly, that this provision is not perceived as being a penalty imposed on a guardian who is convicted of manslaughter or murder. That is not the purpose of it. If it were the purpose, challenges would be brought to it on grounds of equality. The purpose is to trigger an application in circumstances where there is a conviction of a guardian of the murder or manslaughter of another guardian and there is a belief that the convicted guardian has failed in his or her duty towards the child concerned. I agree with virtually everyone here that in the vast majority of circumstances where an individual guardian has been convicted of murder or manslaughter of another guardian and there are children, this is in itself a child protection issue and the person who is convicted has failed in his or her duty towards the child concerned. To use the example that Deputy Carthy gave a few moments ago, which is present in one of his forthcoming amendments, say there was a situation where a female guardian who had repeatedly been subjected to domestic violence was prosecuted for murder or manslaughter and was convicted. There could be situations where Tusla, as the party bringing the application, could look to see who else was a potential guardian of the children. It could determine in this situation and in this context that it would not be appropriate to bring an application because the mother of the children should remain as the guardian. In such circumstances it would be inappropriate for such an application to be made. For this reason I cannot accept the amendment, notwithstanding that we all agree with the sentiment that we want applications such as this to be brought as soon as is reasonably practicable. I cannot remove the second limb of the triggering test, which is the requirement for Tusla to be satisfied that the convicted guardian has failed in his or her duty towards the children. Tusla is the Child and Family Agency and it is the appropriate entity to bring such an application. I know in due course this afternoon we will be discussing amendments from Deputy Carthy on other family members being permitted to bring an application. This would create a very contentious and difficult scenario for the family and the children in certain circumstances. This is a public law issue. Because of this, the public statutory body responsible for the protection of children is the appropriate entity to bring the application. For this reason I respectfully say I cannot agree to Deputy Carthy's first amendment.

Sentiment score: -0.03

We had a good discussion about this on Committee Stage. I note what Deputy Carthy is trying to do but I have to stick with what I have in terms of the six months and the statutory requirement. The last thing any of us in the House want is for an application to be challenged in the courts by a person who is convicted and who says it is an extra penalty being imposed on them, that they are a person who has been convicted of murder or manslaughter and is being treated differently from others who have been convicted of murder or manslaughter because an extra penalty is being imposed upon them, namely, the removal of their guardianship rights. I have to take this into account. The reason the Minister for children is sitting beside me and is so supportive of the legislation is that it is about protecting children. That is the primary focus of it. It arises in the context of the criminal justice system reaching a certain determination but the provision in the legislation is about protecting children. If I deviate from that and start focusing on matters other than children, we are going to get ourselves into legal difficulties.

Sentiment score: 0.02

I thank the Deputy for his amendment. I do have a better type of wording and it is set out in section 12I of the legislation. The section is entitled "Notice parties to proceedings under this Part". Section 12I(i) states, "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 each guardian of that child". Whether it is an application in circumstances where the victim guardian is still alive, and that can happen, an application must be made to that victim guardian or, indeed, to any other guardian who is available. It will obviously have to be served on notice to the convicted guardian as well. The legislation before us also provides in section 12I(ii), "A relative of the child concerned may seek leave to be joined as a notice party to proceedings under this Part." If a relative becomes aware that Tusla is bringing such an application, that application will obviously be on notice to the guardians of the child who are living and a relative can nonetheless still apply to the court to be made a notice party to the proceedings. I am concerned that the Deputy's amendment could give rise to a lot of contentious and difficult circumstances during the hearing of the application. What the Deputy wants to introduce is a requirement that Tusla would have to notify the next of kin of a deceased guardian of that child. It is important to set out that there is no definition of who is the next of kin within the Deputy's amendment. When it comes to the relative, defined in section 12I, I have specified who a relative is for the purpose of making such an application. Section 12 I(3) states, "In subsection (2) ‘relative’, in relation to the child concerned, means a grandparent, brother, sister, uncle or aunt, whether of the whole blood, half blood or by affinity, and includes the spouse of any such person and any person cohabiting with any such person." Under the provision I have, a relative can apply to be put on notice and can seek the leave of the court to be joined. Under the Deputy's proposal, there is a statutory requirement to be imposed on Tusla to put on notice the undefined next of kin. It is not possible for me to accept such a vague and ill-defined amendment. Even if it were the case that I was to accept the Deputy's amendment, if it were precise, we must think of the difficulties that could arise in circumstances where all the next of kin of a deceased guardian of a child would be put on notice. Let us use an example where the mother of the child or children is the victim and, regrettably, that is predominantly the case. In such circumstances, is it the case that Tusla will have to put on notice every sibling of that deceased person? What about her parents and grandparents? It is not defined as to who should be put on notice. The reality is that in a particular family, it may be the case that the next of kin of the deceased has no relationship with the deceased or their child. Alternatively, a next of kin may have a very close relationship with the convicted guardian. It may in some circumstances be difficult to identify or locate such people as the next of kin. There is a requirement to put them on notice. Like me, Deputy Carthy wants to ensure that these applications are heard as soon as practicable. If it is the case that Tusla is required to put every next of kin on notice, what happens in circumstances where a next of kin, say a sibling of the deceased guardian, lives in Australia or elsewhere outside the jurisdiction? That will, in effect, mean that the District Court hearing the application will say there is a statutory obligation and the Oireachtas has determined that the next of kin must be put on notice. If one of the people who are the next of kin is living in Australia, the application could not proceed until such time as that person has been put on notice of the application. It would impose a barrier, and I know the Deputy does not want to put in place barriers. It would impose a barrier to bringing an application in a speedy manner and would not provide any additional benefit for the child concerned. As I say, I believe the provisions that are set out in section 12I, which deals with notice parties to proceedings under this Part, are sufficient. The guardians must be put on notice. A relative can seek the leave of the court to be put on notice. It does not mean that the court is going to, on each occasion, say that person will be granted leave to be heard in the case. The court may say it does not need to turn this into a family row among the remaining relatives of the deceased guardian, with a number of them in court saying that they want the children to remain within the guardianship of the convicted guardian while another part of the family is saying they want to guardianship rights of the convicted guardian taken away. We must recognise that there will not always be harmony within a family in terms of what should happen at the outcome and the provision that I have included at section 12I is, to use Deputy Carthy's words, better wording, and that is what we should stick to.

Sentiment score: 0.06

I am not dismissing Deputy Carthy's proposed amendment because it is coming from him. I listen carefully to what he says and what other colleagues contribute. We want to get this right. I must be honest with the Deputy in the House about what I think the consequence of his amendment would be. It is true that there is no definition for who is the next of kin. The first thing a court will do when it is mandated by the legislation to put on notice the next of kin is to ask who the next of kin is. Is it all the siblings of the deceased guardian or does it extend only to certain among them? We need to be precise and will be criticised by the courts if we do not define this accurately. The Deputy raises the valid point that families want to be involved in this. We know that the genesis of this legislation is the love of a brother for his deceased sister. That is why I included, in section 12I, a provision that allows family members to bring an application to the District Court requesting to be put on notice of this application because, for example, they represent the interests of their deceased sister and would like the court to hear those during the hearing of the application. That provision is there already. As well as that, Tusla is not an island. People contact it, write to it and make submissions to it. There is an express statutory provision in place. It is not Tusla that will decide whether a family member is to be a notice party. The court will decide and I think that resolves the issue of concern to Deputy Carthy. No disrespect meant to his amendment but the provision in the Bill is far better and the amendment put forward by Deputy Carthy would create confusion.

Sentiment score: 0.18

I thank Deputy Carthy for his amendment. In paragraph (1A), in effect what Deputy Carthy is seeking to achieve is already the law under the provision. Deputy Carthy's amendment states "where a guardian ad litem of the child, another guardian of the child, or a relative of the child ... is of the opinion that an application ... ought to be made in the best interests of the child", he can request Tusla to do so. The situation at present is that if Tusla believes it is in the best interests of the child - that is the second limb of the test we discussed under amendment No. 1 - it must bring the application, where there has been a conviction of murder or manslaughter. That is a requirement. The purpose of Deputy Carthy's first paragraph is to achieve something that will happen in any event. As Deputy Carthy fairly acknowledged I said on Committee Stage, there is nothing to stop relatives, guardians ad litem or other guardians of the child contacting Tusla to say they believe an application should be brought. If it is the case that an application is in the best interests of the child, Tusla must bring it. My real concern about the proposed amendment, however, is the requirement in paragraph (1B) for Tusla to provide reasons to the person who made the request if an application is not made. Although Deputy Carthy does not define "relative", we will assume it has the same definition as it has in section 12I. Deputies will see that I included a very broad definition of "relative". Under this provision, there would be a requirement on Tusla to set out to a broad range of family members reasons an application is not being made. There may be reasons that are sensitive or personal which Tusla might not want to give out because of the central importance of the child being protected. They could be matters confidential to the child, such as the child's views. I appreciate what Deputy Carthy is trying to do in all the amendments but I have to try to ensure that, at the end of this, we get a Bill that is coherent and will work and I am concerned that doing this would undermine the effectiveness of the legislation. On balance, I do not think it would improve the legislation. I say that with the greatest of respect for Deputy Carthy. I am fearful the obligation on Tusla to provide reasons would become quite a legal process. It would recognise that any reasons it gives out would have to thorough and that might have an impact on the decisions it makes. It is always the case that if Tusla is not fulfilling its public law duty as required, there are remedies available to family members, guardians ad litem or the other guardians by way of judicial review. That is not the outcome anyone wants but there is a certain architecture to this legislation that will permit families to engage with Tusla. It permits family members or relatives to be put on notice of the application before the courts. If family members are put on notice of the application, they will be given a right to be heard by the District Court so their views will be well aired before the court. In balancing the rights of relatives, or the next of kin as Deputy Carthy referred to, it is important they have a process in which their views can be accommodated and listened to. I have included that in section 12I and the process whereby the application is made and people can contact Tusla is sufficient. I just do not want to put Tusla on a defensive, litigious footing when it comes to communications from family members where Tusla has a statutory obligation to provide reasons to those people that it is not bringing the application. I do not want that to become the dominant part. We want this to be as simple as possible. There is a conviction for murder or manslaughter. It is in the best interests of the child for an application to be made under this section. Tusla goes promptly to the District Court. The District Court considers the application. Family members will apply to the District Court to be heard and put on notice. I am sure in many instances the court will permit that while not turning it into a situation where every family member has a separate entitlement to be heard. We can then have a prompt decision which, as always, is guided by what is in the best interests of the very unfortunate children who are left behind.

Sentiment score: 0.16