Alan Shatter (Dublin South, Fine Gael)

I move amendment No. 5:

In page 16, between lines 1 and 2, to insert the following:

"(iii) is appointed to be a guardian of the child in accordance with the provisions of this Act,".

There is a reference to the definition of "guardian" in relation to a child which appears on page 15. It states that:

"guardian", in relation to a child, means a person who—

(a) is a guardian of the child pursuant to the Guardianship of Infants Act 1964, or

(b) is appointed to be a guardian of the child by—

(i) deed or will, or

(ii) order of a court in the State...

The additional words which I seek to insert are "is appointed to be a guardian of the child in accordance with the provisions of this Act". The additional amendments that are referred to which we are taking in conjunction with this are amendments Nos. 40 and 99. I will briefly refer to those. Amendment No. 40 seeks to insert: "In page 26, line 2, after "order" to insert "or guardianship order made by it"." The "it" in that context would be the adoption authority. Amendment No. 99 which, from what I can recollect, is the more substantive amendment, states:

In page 99, between lines 23 and 24, to insert the following:

"163.—Section 11B(1) of the Guardianship of Infants Act 1964 is amended by the insertion of the following:

"(c) is a spouse of a parent of the child,".".

What this is all about, if I can put it in non-legal language, is dealing with the issue of family adoptions and, as we know from the information documentation made available by the Adoption Board at present, a substantial number, indeed the majority, of adoption orders made at present by the Adoption Board are essentially family adoptions. The majority of family adoptions are adoptions by a biological mother who has married someone who is not the biological father of her child and who wishes that her husband adopt the child and assume parental rights identical to those that normally would vest in a biological father where a child is born to a married couple and the husband wishes also to have the entitlement of adopting the child.

In the context of adoptions, from the Adoption Board annual report 2008 - I do not think we have the 2009 report - during that year there was a total of 49 applications for non-family adoptions and there were total applications for what are known as family adoptions of 224 and 217 out of the 224, that is, 79% of the total domestic adoption applications received by the Adoption Board in 2008 were received from birth mothers and their husbands who were trying to jointly adopt the birth mothers' children. Curiously, there was only one from a birth father and his wife seeking to jointly adopt.

In the same year in 2008 - some of the applications received in 2008 would not result in orders being made until 2009 - in the context of adoption orders made, a total of 200 adoption orders were made in that year and 128 of them, that is, 64%, were in favour of the birth mother and her husband.

Two were in favour of the birth father and his wife. Therefore, 130 out of 200 orders were in respect of the original biological parent plus a spouse.

A series of reports published by the Adoption Board over the past 20 years - I will not delay the House with a recital of quotations - have recommended alternative procedures. The 1984 review report of adoption services recommended that where a biological parent marries a person who is not the other parent, an alternative procedure should be put in place to grant parental rights to the latter. To use the example represented by 99% of cases, it is extremely artificial to require a biological mother to jointly adopt her own child with her husband. My proposed amendment will allow the new adoption authority to make what is known as a guardianship order as an alternative to an adoption order. This would confer rights on the husband to be the child's guardian without creating an artificial arrangement whereby the mother has to adopt her own child. A later amendment proposes, as an alternative to requiring the biological mother and husband or, in the aforementioned three instances, the biological father and wife jointly adopting the biological parent's child, to allow the non-parental spouse to have an adoption order made in his or her favour in circumstances where the legislation expressly preserves the rights of the biological parent.

It is a bizarre system. In 2009, 79% of applications derived from biological mothers and their husbands. Biological mothers undergo an assessment process to determine whether they should be allowed to adopt their own children. They are then put in the anomalous position whereby they must produce an adoption version of the birth certificate if they are asked to demonstrate they are the child's parents. How many teenagers will as a result wonder whether their biological parents are in fact their real parents? How much confusion is created by a bizarre law which requires a mother to adopt her own child in order to confer legal rights and responsibilities in respect of that child on her husband in circumstances where the latter wants to acquire them? In the vast majority of these cases, the biological father played little or no role in the life of the child.

Given the Adoption Board's repeated appeals in its annual reports over a period of two decades for changes to the law, I do not understand why the issue is not being addressed in this Bill. This is a fundamental amendment because it is not right that doubts should be sown in the minds of persons who were adopted using this system as they head into their teens and twenties. We have heard numerous stories of adopters failing to tell children that they were adopted and we know the difficulties that ensued.

This is an antediluvian and anachronistic provision based on legislation which dates back to 1952. It is extraordinary that we are re-enacting this anachronism 58 years later despite all the recommendations from the Adoption Board. I raised this issue on Committee Stage in the hope that the Minister of State would reflect further on it before Report Stage. I urge him now to accept Amendment No. 5 and the subsequent amendments to which I referred.

See this speech in context