I move amendment No. 1:
In page 4, lines 18 to 32, to delete all words from and including “(1) Where—” in line 18 down to and including line 32 and substitute the following:
“(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).”.
I welcome Mr. David French to the Visitors Gallery. When he attended the Oireachtas committee on justice yesterday, I said only half in jest that he has a better attendance rate in this place than some Members do. Everybody in the House, including the Minister, will acknowledge the reason this Bill is before us at all is largely down to the efforts of David and his family. Their efforts in memory of Valerie are commendable.
The amendment seeks to strengthen section 12C by requiring Tusla to apply to the court in every case following a conviction and by requiring that to be done within three months. As it stands, there is a discretionary test I am concerned about that could limit applications where reasonable cause is not established and that contradicts the stated intention that the application would be made in all cases. A conviction for the murder or manslaughter of a co-guardian is in itself sufficient evidence of a fundamental breach of the duty to the child and no further threshold need apply, so removing the discretion ensures consistency, protects the child and avoids the risk the legislation becomes ineffective in practice. I raised this with the Minister on Committee Stage. My appeal was that he would either accept this amendment or provide another formula of words that would be acceptable to him because there is a concern in terms of the veracity of Tusla in these matters. We had Tusla representatives before the committee yesterday. Essentially, it appears that in practice this will operate with a single social worker making a determination. That is concerning. There could be a situation where Tusla decides, via one person or very small number of people, that this law should not be applicable in a situation whereby somebody who has killed another parent and is still considered under law a legal guardian of a child who has been deprived of a parent by that individual and that that might remain legally the position at the behest of a single institution. Therefore, we believe there is a need for absolute clarity in terms of the law and to ensure there is no ambiguity.
As the Minister knows, we have a further amendment that clarifies one of the areas he has raised and it is a valid point whereby somebody could have been convicted but on the basis of all the discernible evidence it could be proven that they had been a victim of domestic abuse. In that regard, we recognise there needs to be a level of discretion but it is our view that discretion should be in the hands of the courts, not in the hands of the agency. There should be a very clear level playing field in terms of where these decisions are made. As in all cases, once Tusla brings an application, it will be for the courts to adjudicate but there is a real concern by campaigners and by the people who have brought us to this point that you could have a scenario whereby one parent is responsible for the murder or manslaughter of another parent and Tusla, in whatever wisdom or logic, decides it does not believe there is a case to be brought to remove guardianship rights from that parent. There is no mechanism for appeal in that regard. That is unfair and it goes against the spirit of everything the Minister has quite rightly said in terms of the importance of this legislation.
