Alan Shatter (Dublin South, Fine Gael)

I welcome that we are finally debating this Bill in the House. I commence by saying that central to any arrangements with regard to adoption is the best interests of the child. I agree with the Minister of State that our legislation must be child-centred and intent on protecting the welfare of children on all occasions and in all circumstances.

The Bill has been portrayed by the Minister of State as a major reforming measure. This is true in the sense that we are finally going to incorporate within our law the Hague Convention in regard to intercountry adoptions, which I welcome. The Hague Convention which has long awaited incorporation into our law prescribes minimum standards that must be complied with to ensure adoptions are properly effected, that children's best interests are properly protected and a protection to ensure that children who are made available for intercountry adoption are done so in circumstances in which proper procedures are applied and all proper consents are obtained from the biological parents where they consent to adoption or from other guardians or institutions taking care of children.

The convention is a crucial part of our international architecture with regard to adoption to ensure minimum standards. It is deplorable that it has taken so many years for this legislation to come before us. I welcome the introduction of legislation to deal with this issue. Aside from dealing with the issue of intercountry adoption, replacing the Adoption Board with an adoption authority and recalibrating some of the procedures with regard to the steps that must be taken by prospective adopters in the area of domestic adoption, the Bill is not merely a disappointment but is fundamentally flawed and deficient. I say this because we have been promised for more than 20 years a major reform in our adoption laws. There are reports dating back to 1974 detailing major difficulties and flaws in our domestic adoption laws and making recommendations for reform and a plethora of reports published by the Adoption Board which annually detail gaps and inadequacies in the adoption laws and suggesting the need for reform.

I find extraordinary that this legislation deals with little other than incorporation of the Hague Convention into our law and essentially ignores much of what has been said about the need to reform our adoption laws. It is extraordinary that what we are now doing is incorporating within our adoption laws a consolidating piece of legislation which is essentially based on the philosophical and statutory approach taken to adoption in 1952. This is not a reforming Bill other than in the area of intercountry adoption in regard to which there are particular flaws, to which I will come later and of which I believe the Minister is now aware as a consequence of the multitude of letters, e-mails and representations received in this regard. In the context of our domestic adoption law, this is basically consolidating legislation. Even more extraordinary, in the context of the Bill's reference to protecting the welfare of the child, is a basic flaw in terms of a failure to define the concept of welfare in the definition section.

I want first to address the issue of intercountry adoption. The reality today is that the majority of couples and individuals who succeed in adopting do so outside this State as a consequence of there being fewer children available for domestic adoption than was previously the case. In the 1980s and early 1990s, approximately 1,000 domestic adoptions per annum - the figure is in excess of 1,000 for some years - were granted by the Adoption Board. Currently, fewer than 200 domestic adoptions are granted each year. In 2007, some 187 domestic adoptions were granted, 144 of which are termed family adoptions, namely, adoptions effected by a biological mother adopting jointly her own child with her husband who is not the biological father of that child, an issue to which I will return later.

The scale of intercountry adoption and the number of people who seek to effect an intercountry adoption is well detailed in the context of recent declarations of suitability to adopt made by the Adoption Board. In 2006, the Adoption Board made 406 declarations of suitability; in 2007 it made 436 declarations of suitability and in 2008, it made 490 declarations of suitability. I do not know whether the figure for this year will exceed 500. This means there are currently in the region of 600-800 couples and-or individuals who have obtained declarations of suitability who may be on the path of completing a foreign adoption or are hoping to do so. The Minister of State will be aware that serious difficulties have arisen in this area. Everyone in this House is aware of these difficulties. The first difficulty that arose relates principally to adoptions in Vietnam. Irish adopters have completed a substantial number of adoptions in Vietnam. In terms of the number of adoptions, Vietnam features among the top six countries from which Irish couples have adopted. The previous bilateral agreement expired on 1 May 2009, which has left many couples in limbo. These people have spent between two and four years - some even more - going through the labyrinthine HSE assessment process with the intention of adopting in Vietnam. There are hundreds of couples in this position. They now find they have been blocked from proceeding with their adoptions because the bilateral agreement has expired. The Minister of State has failed these couples particularly. Perhaps it is unfair to lay this entirely at the door of the present Minister, as his predecessor must share the blame.

Why am I saying this? The Minister is right to say that if there is a new bilateral agreement we must ensure the procedures that apply in Vietnam are appropriate and the children's welfare is protected. However, it seems it was not until March 2009 that the Government got around to sending to the Vietnamese a new proposed bilateral agreement. That should have happened much earlier. I presume if the decision was made in March 2009 to send a new proposed draft bilateral agreement, it was decided it was reasonable at that stage to enter into new arrangements with Vietnam. However, those arrangements ran into difficulties. The Minister, in good faith, visited Vietnam and the deputy premier of Vietnam recently visited this country. The reason the Minister is now giving for the lack of progress in a bilateral arrangement with Vietnam is a draft ISS report - which I understand he is not able to publish as it is in draft form - which apparently raises disturbing issues that need to be addressed.

My criticism of the Minister is that if there is disturbing content directly related to adoptions being effected by Irish couples or individuals in Vietnam, why did it take so long - until this report was published in draft form and furnished to the Minister in August 2009 - for the Minister and his Department to discover the nature of the difficulties? If there were difficulties, this should have been known. Under the bilateral agreement there was provision for the establishment of a review group jointly composed of people appointed by this State and, in particular, the Department and the Vietnamese to review how the bilateral arrangements were working.

If there were problems, alarm bells should have been ringing during the currency of that agreement. The Minister and his predecessors should have been aware of them before March 2009. If there were problems, couples going through the assessment process should have been given some warning that they could run into difficulties if that was the route they were going to travel. However, they were given no warning. They were led to believe the arrangements between Ireland and Vietnam were by and large working and that there was no structural difficulty with regard to their continuing. This has caused major concern to many couples who now find themselves in limbo.

It is unfortunate that the Minister of State is still not able to tell the House when this issue will be resolved. I am asking the Minister to tell us whether he still intends to enter into a new bilateral arrangement with the Vietnamese. Is it his intention simply to let matters drift, let the legislation be enacted, and wait until Vietnam becomes a party to the Hague Convention, perhaps in late 2010 or in 2011 or 2012, before any new arrangements are established to allow Irish couples to effect adoptions in Vietnam that Ireland will recognise? The Minister owes it to the couples and individuals who hope to adopt in Vietnam to clarify the position. We know there are 20 couples who had reached a point at which, it was understood, even in these circumstances, they would be allowed to continue with their adoptions. What has happened with this? It seems also to have ground to a halt.

There are couples and individuals in other circumstances who want to adopt. More than 100 adoptions have been effected in Ethiopia and are recognised in this State. What is the Minister's intention with regard to Ethiopia? This needs to be clarified. There are couples who have adopted previously in Vietnam or Ethiopia who are concerned that if they want to adopt a second child from those countries, this legislation will not facilitate their doing so. They are seeking special provisions in that regard. I ask the Minister to clarify his intentions.

There is a series of countries in respect of which we have received representations. Another is Mexico, with which we have no bilateral arrangements. A number of Mexican adoptions have been effected by Irish residents. How does the Minister propose that future adoptions from that country be addressed?

An important point was mentioned by the Fine Gael leader, Deputy Enda Kenny, at the opening of business, as well as by the Taoiseach and by the Minister in his opening speech. If this legislation is enacted and we become a party to the Hague Convention, what transitional arrangements will be put in place? I wish to be fair to the Minister. It is clear from the legislation that some transitional arrangements were envisaged. Section 63(2) states: "If, immediately before the establishment day, a foreign adoption described in the Adoption Act 1991 is not yet effected but is still in process as provided for under that Act, the adoption may proceed under this Act as if it were commenced under this Act." What is meant by "still in process"? If we have 400 or 500 couples with declarations of suitability on the day of commencement of this legislation, all of whom have gone through the adoption assessment process with an intent to adopt in a particular country, such as Vietnam, but who have not yet been allocated children, is this regarded as being "in process"? Will this legislation cover such a situation?

The problem with the phraseology of the legislation in dealing with any possible transitional arrangements is that it is utterly unclear how it will apply in practice. Provision must be made to ensure people understand how the legislation will work. There is an essential need, in the best interests of children and in fairness to those who have gone through the assessment process, to provide some meaningful transitional arrangements and not to leave people who, in good faith, have gone through a lengthy assessment process in an unclear situation. I ask the Minister to clarify how the transitional arrangements envisaged in this brief subsection of the Bill will work in practice, because that seems particularly unclear.

I was disappointed the Minister did not refer to the process for assessment of suitability to adopt in his speech, although he has mentioned it on other occasions. Be it domestic or inter-country adoption, everyone must undergo the same process now, although things were somewhat different originally. Everyone must obtain a declaration of suitability. It is simply not fair to any couple or individual that it can take up to three or four years to be assessed. This is an extraordinarily long period. This is particularly the case nowadays, when people marry and adopt at a later age. The HSE and its social workers appear to have an almost theological view on the age of prospective adopters. If a husband or wife has hit 50, no matter how suitable he or she may be, the HSE will recommend against adoption.

I am aware of people who sought assessment in their mid-40s and did not come through the process until they are 50 or 51. The age issue looms larger in the minds of social workers, with regard to unsuitability to adopt, as time passes. It is not the fault of the couples that the process takes so long. This legislation prescribes no specific timescale within which the adoption assessment process must be completed by the HSE. The wording it uses is "as soon as practicable", which is a meaningless phrase. It should never take longer than 18 months for an assessment process to be completed in a reasonable way. That gives the HSE an opportunity to order its business in a reasonable way and gives a reasonable timeframe to couples and individuals who in good faith seek to be assessed for adoption.

The Minister of State has acknowledged the timeframe is unfair. It also varies. A person who lives in one part of the country might have the assessment completed within 14 to 15 months but for a person living in Dublin this might take four and a half years. It is unacceptable that this is the case and there is a need to specifically address it.

Another issue the Minister of State does not address in this Bill is the procedures that are prescribed. I do not talk only from a position of theory but should make a mild declaration of interest. As a family lawyer, over the years I have represented prospective adopters in hearings before the Adoption Board. Currently, when a person has gone through the initial assessment process and the social worker produces the assessment report the case goes before a HSE adoption committee. That is what happens in practice although there is no statutory provision for it. For the first time, the Minister of State is making statutory provision for the HSE adoption committee, which has no statutory function of any description at present. This committee sits behind closed doors. Under this legislation, as is currently the position, no criteria are specified as to who might qualify to be placed on such a committee. No procedures are prescribed as to how the committee should operate. No provision is made as to whether prospective adopters are entitled to any legal representation. What happens? A social worker presents a draft assessment report to this committee and it is the committee that determines whether a prospective adopter or couple be deemed suitable.

I do not know, and I suspect neither does the Minister of State, how many instances there may have been where the social worker said a person or persons were unsuitable and the committee said they were. Or it might be the other way round - the social worker says the person or persons are suitable and the committee says they are unsuitable. I have talked to a number of couples who found themselves in situations where there were personality clashes and difficulties with social workers. We have some fantastic social workers but down the years there were some working in the adoption area who may not have been as well trained or suited to dealing with it as they should have been. I know of individuals and couples who found themselves before these committees. They have reported to me - I do not know if this is fair or unfair - that it is like being before the Star Chamber. A group of people associated with the HSE, about whose qualifications one knows nothing, throw questions at one. A person was asked if she would have a dog in the house with the adopted child. She felt a judgment would be formed that depended on whether she was pro or anti the canine.

This Bill is deeply flawed in so far as it provides for the establishment of these committees without prescribing any eligibility criteria or anything procedural. I do not know what their purpose is. If a properly qualified social worker produces an assessment report detailing whether somebody is or is not suitable, that is the report that should go to the Adoption Board. I do not understand the function of filtering it through a committee that sits in private. I suspect the way these committees work - and may work under this legislation - is unconstitutional because a decision made by this committee can have a fundamental impact on a person's entitlement to seek an adoption, make a determination as to their suitability and effect his or her right to family life as defined under Article 8 of the European Convention.

The other difficulty that arises which this Bill does not address is the question of what happens when a report states one is not suitable. Ultimately, the Adoption Board determines whether a couple or an individual is suitable. Unfortunately, I do not have time to give the Minister of State examples of the type of circumstances I have seen in cases coming before the Adoption Board. One paediatric nurse who retired just after the age of 50 had been involved with children and had nephews and nieces. She was deemed unsuitable by a social worker who feared that because of her age, she might not live long enough to bring up a child. Another question concerned whether she had appropriate family members to name in a will as custodian of her child in the case of her death. Clearly she had. There was a hearing of such a case before the Adoption Board whose decision was that the person was eminently suitable. The board disagreed with the view of the social worker. The Adoption Board would say that over recent years behind closed doors such things occur.

Over the years those who sit on the board have dealt with these cases and applications with great insight, understanding and sensitivity. This is not, in any respect, a criticism of the Adoption Board. However, it is not widely known that there have been a number of cases where social workers have given a report stating people are unsuitable, on grounds that are unsustainable and lack credibility. Having heard the social worker and the prospective adopters and read the various reports and background information, the Adoption Board makes declarations of suitability. At that point a real problem arises because a number of couples and individuals who have got declarations of suitability and seek to adopt abroad also have a family assessment report from the HSE that says they are unsuitable. The HSE will not amend that report and the Adoption Board has no statutory power to require it to do so.

The Minister of State preserves that system in this legislation. If the adoption authority determines a person or persons as suitable and the social worker or the HSE says they are not they then have a declaration of suitability in one hand and, in the other, a family assessment report stating they are unsuitable. That creates huge difficulties in practice for completing adoptions. The Adoption Board has tried to get over that administratively by issuing a letter detailing its disagreement with the HSE report.

There is a need to amend this legislation. In circumstances where there is a declaration of suitability from an adoption authority a proper report should be made available to prospective adopters which confirms their suitability. They should not be placed in the position they are today.

I return to an issue that relates to foreign adoptions. This legislation repeals in its entirety the 1991 Adoption Act. However, Part 11 tries to preserve some of the circumstances in which we recognise foreign adoptions under the 1991 Act. The main provisions on foreign adoptions in the legislation are designed to address the issue of persons habitually resident in this State who adopt outside the State, and the recognition of those adoptions. Over the years many people have established domicile or ordinary or habitual residence in a vast number of countries across the world. There will be more of this in the current economic climate. Irish couples go to England, live in London, Manchester, Birmingham or Liverpool for up to ten years, adopt there and then come home. At present we recognise those adoptions. The 1991 Act, which I introduced to this House as a Private Members' Bill, provided for the recognition of adoptions effected in states where couples or individuals were domiciled, habitually resident or ordinarily resident. I assume it is the Minister of State's intention to retain that provision within the legislation but that is not clear in the Bill. He is repealing the 1991 Act but claiming the State will continue to recognise adoptions in some of the circumstances prescribed in the 1991 Act.

This issue must be teased out because there will be huge question marks as to what the position will be, for example, in 2012 when an Irish couple, habitually resident in London, adopt a child and return to Ireland. They want the registration of that child in this country to confirm the adoption is recognised.

I turn to domestic adoptions. It is extraordinary that a whole raft of issues that should have been dealt with in this legislation have not been. The legislation continues the current situation - I made mention of it earlier - where the biological mother of a child marries someone who is not the father of her child but she wants her husband to have parental rights with regard to that child and acquire parental obligations. In many such instances the biological father has long since disappeared over the horizon. The only way this can happen at the moment is in the context of an adoption by the biological mother of her own child. This can create all manner of problems. When the child hits his or her teenage years and starts contemplating such adoption, he or she may wonder whether the mother is the biological or adoptive mother.

A biological parent should not need to go through an adoption process to allow his or her spouse to acquire rights and obligations to a child who is a part of the marital family. For 30 years, successive Adoption Board reports have asked Governments to address this issue. I remember writing about it in the first edition of my family law book, which was published in 1977. I have with me the 2007 report of the Adoption Board. It states: "As noted in recent Annual reports, it remains the Board's view that adoption is not always the ideal solution in step-parent situations". The procedure in question is adoption by both the biological parent and his or her spouse. It went on to state: "Some other legal means should be devised to establish the rights and responsibilities of a birth-natural mother's husband without extinguishing the rights and responsibilities of the birth-natural father". As has been recommended and is the case in other countries, our legislation should allow guardianship rights to be conferred on the husband in those circumstances. There should not be a necessity to go through an adoption process. I do not know why this remains the position.

In practice, there has been a movement in domestic adoptions over the years to what is referred to as open adoptions. The couple adopting may meet the biological parents or, more usually, just the biological mother, get to know one another and adopt the child. There may be some arrangement to facilitate the biological mother maintaining contact with her child. On occasion this also applies to the biological father. In other reports, the Adoption Board has referred to such agreements and stated that there is a need for a legal mechanism to protect an arrangement in which the biological parent has formal access to or contact with the child post-adoption. I have given legal advice where required in circumstances in which natural mothers consented to the adoptions, but wanted to maintain contact with the child. Post-adoption, such agreements have no legal force. They only work if trust is maintained between the parties. I do not understand why this issue is not being addressed.

I will conclude and I appreciate the Acting Chairman's forbearance. This legislation has missed a golden opportunity to modernise our domestic adoption laws in the necessary manner. It provides for a series of possible and unnecessary High Court applications which will create unnecessary adoption litigation. When the new adoption authority should be dealing with various matters, it is being proposed that they instead be brought before the High Court. Under Article 37.2 of the Constitution this is not necessary. I hope that the Minister of State will take a constructive approach to Committee Stage and agree to allow the Opposition to work with him to improve this Bill radically, address its many gaps and inconsistencies and flesh out some of the problems that have been part and parcel of our adoption process for a long time. For example, Barnardo's offers a tracing service in a particular framework. The Adoption Board facilitates a contact register _ but this has no statutory provision despite the fact that legislation on it has been promised for 20 years.

The Bill is missing a great deal, but it provides a foundation-----

See this speech in context