Alan Shatter (Dublin South, Fine Gael)

I move amendment No. 2:

In page 13, after line 37, to insert the following:

"(3) Nothing contained in this Act shall prevent any person or married couple who applied to the HSE to be assessed for an intercountry adoption prior to the 1st January 2009 and subsequently obtain a declaration of suitability to adopt from effecting such adoption and having such adoption recognised under the law applicable prior to the coming into operation of this Act.".

I will make reference to the amendments I am proposing in this regard. I am proposing that in page 13, after line 37, to insert the following new subsection (3) "Nothing contained in this Act shall prevent any person or married couple who applied to the HSE to be assessed for an intercountry adoption prior to 1 January 2009 and subsequently obtain a declaration of suitability to adopt from effecting such adoption and having such adoption recognised under the law applicable prior to the coming into operation of this Act."

My other amendment arises later on in the legislation, on page 25 of the Bill. I propose that the following additional subsection should be included and I quote:

A person or couple who prior to the commencement of this Part, completed an inter-country adoption effected outside the State may not, notwithstanding this Act, effect another such adoption within five years of the former adoption from the same state, having first obtained a declaration of suitability in accordance with this Act, and such adoption may be recognised as if effected under the law applicable prior to the coming into operation of this Act.

We are all aware that a substantial number of people are currently in the process of being assessed as to their suitability for adoption, primarily by the HSE, although other adoption agencies could carry out such assessments. We know that the time-frame for carrying out assessments varies throughout the country. In the context of a couple or an individual who wishes to adopt outside this State by seeking an inter-country adoption, if they live in Dublin, for example, and if they have applied to the HSE to be assessed, the current likelihood is that it will take between three to four years before they complete the process and the matter comes before the Adoption Board. The Minister is on record as saying - I think he agrees with me - something that I have been saying for over a decade, that the length of time it takes for assessments to be completed is entirely unacceptable.

In other parts of the country where the social work services are under less pressure, or where local health officers may work more efficiently in some places than in others, an applicant may find that their assessment for an inter-country adoption will be completed within about 18 months. That is a reasonable period to go through an assessment process whereby a person is first required to attend some initiating courses so they fully understand the complexities of what is involved in inter-country adoptions. An assessment is then carried out as to their suitability.

There must be some reasonable time-frame to facilitate the relevant agencies, be it the HSE or an adoption society, in carrying out the assessment process. There must also be time for people to reflect and, in addition, one must have regard to the fact that the HSE has other functions concerning children. I think 18 months is the maximum reasonable period that people should have to wait to have an assessment completed and a report furnished to the Adoption Board after they have applied to the HSE to be assessed.

This proposal is to address the concerns that many prospective adopters have, who are currently caught in the system. While the Minister of State might know, I do not have the exact numbers of those currently awaiting the completion of an assessment by the HSE. I would expect there are many hundreds of couples and individuals across the country who are in that position. They started the process on the understanding that if they complete it successfully and get a declaration of suitability, the rules that would apply to the recognition of any adoption effected by them in a foreign state would be the law as contained in the Adoption Act 1991 and some subsequent amendments made to that Act. That was, and has been since 1991, the bedrock legal foundation for the recognition in this State of inter-country adoptions and for the registration by our Adoption Board of such adoptions once they have been effected in a manner that facilitates their recognition under that Act.

It is bad law to enact legislation that changes people's legitimate expectations and undermines their understanding of the end-game in the journey they started. In the context of children, I personally do not like the use of the term "end-game", which I have just employed. What I really mean is that a couple may have commenced the process in 2007 or 2008, for example, and made application to the HSE to be assessed. They then went through the course that was required by the HSE, and it was explained to them what the law was with regard to the recognition of foreign adoptions in this State. They may currently be awaiting the completion of that assessment and if there is a declaration of suitability from the Adoption Board, I think it is reasonable that when they seek to effect an inter-country adoption, they should not find that the legal provisions applicable to the recognition of that have changed in mid-stream.

This proposal is designed to ensure that continuity is maintained with regard to those who commenced that process prior to the publication of this Bill. We know that there is a substantial number of people who have made representations to Members of this House and who are currently caught in the circumstances I have described. They are greatly concerned as to the difficulties that might arise with regard to their completing an adoption following the enactment of this Bill, if their declaration of suitability is not obtained before the Bill comes into force. That is the crucial date. This amendment is designed to resolve that difficulty.

The Minister of State has prescribed special arrangements or rules for those who, at the time the Bill has commenced, already have their declaration of suitability. It will be extraordinarily arbitrary as to which set of rules applies to such people, however. When we embarked on the journey of debating this Bill, I think the Minister could have expected that we would have completed the legislative process more quickly than we have done. It is not unreasonable that it has taken an amount of time to give an opportunity to Opposition Members and those outside the House to consider the Bill's provisions, make representations, have hearings at the Committee on Health and Children, and reflect on changes that need to be made.

Some changes have been made to the Bill as it has gone through that process. It is arbitrary, however, in the sense that this process could be completed today, although that is unlikely. It could be that Report Stage will be continued next week or the week after. Nevertheless, by the time this Bill commences, a number of couples who commenced the process of seeking to be assessed in 2007 or 2008, for example, will - depending on where they reside - have declarations of suitability, while others will not. Those who do have declarations of suitability will be in a different legal position with regard to the recognition of their inter-country adoption than those who do not yet have such declarations.

A couple in Waterford or Cork may have applied to the HSE on 1 June 2008, and by the time this Bill is enacted they will have declarations of suitability. Meanwhile, other couples who applied to the HSE in Dublin on the same date, will not be remotely near completing the process of having a report submitted to the Adoption Board. That is arbitrary, unfair and could give rise to constitutional difficulties. It puts couples - all of whom started from the same perspective, and were given the same legal advice with regard to how they can effect an inter-country adoption that will be recognised in this State - in entirely different positions based on the arbitrary nature of what date we complete the passage of the Bill, when the Minister makes the necessary commencement order, and the luck of where they started the process.

It will also create difficulties for the Adoption Board. I know we addressed this issue on Committee Stage but this is the first occasion on which we have been able to deal with it in detail in this House. The Adoption Board will be put in the unenviable position, after the Bill has been enacted by this House, where there will be a brief period during which it may make some further declarations of suitability to adopt abroad in respect of couples, prior to the Bill's commencement. Pressure will be put and great anxiety will be caused to prospective adopters and pressure will be put on individual Health Service Executive social workers, and the adoption committees that we will discuss later, to first, submit reports to the Adoption Board, make recommendations as to suitability and to get those recommendations and reports in to the Adoption Board with speed immediately this Bill is passed. There will then be pressure on the Adoption Board by individuals who know appropriate recommendations have been made to the board to hold hearings to make declarations.

I do not believe that is an appropriate process. In circumstances where the recommendation from the Health Service Executive is that a couple or an individual is suitable to adopt, the Adoption Board may be able with some speed to hold a hearing and issue a declaration of suitability but there have been a small number of couples or individuals in respect of whom the Health Service Executive has recommended against making declarations of suitability in their favour and which have resulted in hearings in the Adoption Board of some difficulty involving social workers and adopters and they may not be able to be held with speed. One may have a situation where simply depending on the nature of the recommendation made, one falls within the old law as it applies under the 1991 Act or the new law with regard to how one can go about effecting an adoption abroad that is recognised and the Adoption Board registers.

Essentially, the first amendment that I read into the record is about trying to escape from that trap and that difficulty. It is about setting out a circumstance which is clear, does not result in undue pressure being put on the Adoption Board or the new adoption authority to make declarations, allows for the completion of the process of assessment within the timescale required, albeit as I say in some parts of the country the timescales are unreasonable, without the date of commencement of the Bill being a crucial date in determining whether foreign adoption will be recognised based on the criteria set down in the 1991 Act or the criteria set down in this Act.

The second amendment I have tabled is to address an issue in respect of which we have also received representations. A number of couples have adopted in various countries across the world, having been properly assessed as suitable and had their first adoptions recognised, and they wish to adopt again in the same country so that they will have a brother or sister for their already adopted child of a similar background to the first child they adopted. They have concerns that provisions in this Bill would act as an obstacle to their doing that. The aim of the second amendment I have tabled is to remove that obstacle and to try and ensure that occurs, but not in the context of the removal of acceptable standards to ensure that where there is such a second adoption the very strict criteria applied in existing law continues to apply to the recognition of that adoption and also without ensuring that they first obtain under the provisions of this legislation a declaration of suitability, which is very important.

Although it is difficult to anticipate that there would be many cases where a couple or individual who has successfully previously got a declaration of suitability and adopted a child would at a later stage be deemed unsuitable to adopt a second child, of course circumstances could arise if it turned out that they did not properly care for the first child they adopted, so no one can assume that because one received one declaration of suitability that one would automatically get a second declaration. Central to the way we deal with adoption must be the protection of the welfare of the child. It is of course appropriate that there would be a further assessment, albeit the second assessment for a couple who has gone through an inter-country adoption should not require that they repeat all of the steps that they have previously been required to undertake for the first assessment to the extent of going back to do courses prescribed by the Health Service Executive to explain to them the complexities of inter-country adoption.

One of the concerns I have in the context of couples and individuals who have successfully been deemed suitable to adopt, effected a foreign adoption and when they want a second adoption that on occasion it seems to me that the Health Service Executive treats them as if they never adopted previously, as if the whole thing is an entirely new experience for them. There is a need to get a handle on what is happening in that context. I am aware that when couples seek to effect a second adoption they are put at the back of the queue and very little real regard is had to the fact that perhaps a year or 18 months earlier they successfully adopted, having got a declaration of suitability and that much of the process that should apply to the initial assessment has ceased to be relevant to the second assessment.

What should be primarily relevant to the second assessment is events that have occurred since the first adoption and obviously an assessment of how well the child in their care from the first adoption is doing, whether they are appropriate people who can cope with a second adoption and if it would be in the best interests of a child - that is the crucial issue - and that a second child would be placed in their care for adoption purposes and whose adoption we should recognise. They should be the central issues in a second adoption. A second adoption should not require attending at courses and repeating much of what was already undertaken first time around.

The second proposed amendment is to deal with that issue. We received representations on it from people who adopted in a variety of countries - some of the countries that come to mind are Ethiopia, Vietnam, Mexico and Russia. Perhaps the Minister of State, Deputy Barry Andrews, will report to us on the matter, as it was his view in regard to Mexico that the legislation presents no difficulty to people effecting a second adoption in Mexico. As we were completing Committee Stage the Minister of State told those of us who attended the Select Committee on Health and Children that he was meeting with parents who had adopted in Mexico to explain the situation to them because to fairly present what he had to say, he thought they were unduly concerned and that there was not a real problem in that area. Perhaps when replying the Minister of State will explain to us the outcome of that meeting and whether he did so satisfy them and his view as to the necessity or otherwise of this amendment.

See this speech in context