Katherine Zappone (Dublin South West, Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am very pleased to bring forward the Adoption (Amendment) Bill 2016. The Bill was published earlier this month by my predecessor as Minister for Children and Youth Affairs, Dr. James Reilly, and I would like to acknowledge his important contribution in bringing the Bill to this Stage. The Bill contains a number of very important changes to adoption legislation arising from the children referendum which was held in 2012.

As an independent Member and a human rights advocate, I welcome the fact the first piece of legislation to be brought before the new Dáil relates to significant improvements to the rights of children. Most important, this Bill will give a voice to the child and we will finally put the best interests of the child at the centre of any decision regarding adoption. The views of the child will be given due weight, taking account of his or her age and maturity. We will probably require a learning curve in order to do this and we should let our children help us learn how to do it. Let them be our teachers and let us ensure we listen to the diverse voices of our children, especially as they grow to embrace who they are in their identity as they move from birth and background to who they imagine themselves to be in their heart, body, mind and soul.

Adoption was first legislated for in this country in the early 1950s. The regulatory framework has been strengthened over many years in an attempt to ensure that the best interests of children are protected at every step throughout the adoption process. The Adoption Act 1952 was the principal Act in force until the enactment of the Adoption Act 2010, which updated and restated the 1952 Act and all subsequent amending legislation into a single Adoption Act. The 2010 Act gave force of law to the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption.

The 2010 Act also provided for the establishment of the Adoption Authority of Ireland. The Adoption (Amendment) Bill 2016, which is on Second Stage today, will amend the 2010 Act to give effect to the children referendum of 2012 and will also set out new provisions for step-parents wishing to adopt a child.

Adoption is a hugely significant event in the life of a child. It has lifelong implications for the child concerned, for the parents who place that child for adoption and for the parents who adopt that child. As legislators, we have a responsibility to ensure that the legislation supports and safeguards the child and his or her parents or guardians throughout the process. Adoption is a way of providing a new family for a child who cannot be cared for by his or her parents. It is a legal procedure which transfers parental rights and duties from parents or guardians to adoptive parents. The decision of the people in the children referendum of November 2012 endorsed the proposition of the Government of the day to move the position of children on to a new plain as regards recognition of the unique qualities, as well as vulnerabilities, of childhood and adolescence. It gave effect to the opportunity for this generation to author an enduring positive message to future generations that we place the protection and welfare of children amongst the highest values of our society. It is great credit to the Irish people that, through Article 42A of the Constitution, clear expression has been given to the imperative that children are to have the full rights and protections of all citizens under the law on the basis of equality, including as regards adoption.

The insertion of Article 42A into the Constitution gave children rights which have not, heretofore, been enunciated in the Constitution. For the first time, the Constitution contains an express statement of children's rights. The Bill I am bringing forward today gives legislative effect to the constitutional amendment as it relates to adoption, including providing that, in the resolution of any matter, application or proceedings under the 2010 Act, the Adoption Authority or the court, as the case may be, shall regard the best interests of the child as the paramount consideration.

Changes which arise from the children referendum are part of this Bill. To give effect to the constitutional amendment, the Bill provides for several changes, as follows: first, the right of any child to be adopted, irrespective of the marital status of his or her parents, where both parents consent to the placing of the child and to the making of an adoption order; second, the best interest of the child to be the paramount consideration in regard to any matter, application or proceedings under the Adoption Act 2010, and, in that regard, for the views of the child to be ascertained by the Adoption Authority or by the court and for those views to be given due weight, having regard to the age and maturity of the child; and, third, a change in the criteria under which the High Court may, in a case of parental failure, make an order authorising the adoption of a child without parental consent.

The Bill deals with an issue which has caused concern for some parents over the years, namely, the adoption of a child by a step-parent. Step-parent adoption was not specifically provided for in the Adoption Act 2010. Currently, a step-parent may apply to adopt the child jointly with the child's parent. In those circumstances, the child's parent is also required to adopt his or her own child, and both the step-parent and the parent both become adoptive parents. I do not consider this to be acceptable.

To address this, the Bill provides for the adoption of a child by his or her step-parent without the requirement for the child's other parent to adopt his or her own child, where that other parent is the spouse, civil partner or cohabitant of the proposed adopter. The step-parent will be the sole adopter and will have parental rights and duties in respect of that child as a result of the adoption being effected. Under this Bill, the parent will continue to be a parent and the step-parent will be an adoptive parent.

In addition, the Bill repeals Part 11 of the Children and Family Relationships Act 2015 which, I am sure Deputies will agree, is a substantial and progressive Act with wide-ranging implications for child and family law in this country. Part 11 of that Act amended the Adoption Act 2010 to provide for civil partners and cohabiting couples to be eligible to apply to adopt a child. Certain provisions of Part 11 require amendment in order to clarify that the 2010 Act adequately protects the rights of those persons whose consent to an adoption is required and generally to ensure a robust legislative basis for adoption. The repeal of Part 11 allows for the sections providing for the adoption of a child by civil partners and cohabiting couples to be inserted into the Adoption (Amendment) Bill. This will assist in achieving clarity and coherence in our adoption legislation, with the added benefit of providing for adoption law in adoption Acts.

I will now address the specific provisions of the Bill. The primary purpose of the Bill is to give legislative effect to the Thirty-first Amendment of the Constitution following on from the children referendum.

Section 1 provides that "Principal Act" means the Adoption Act 2010. Section 2 provides for the repeal of sections 24 and 45 of the Adoption Act 2010 and for the repeal of Part 11 of the Children and Family Relationships Act 2015. The repeal of section 24 is consequential on the amendment of section 23 of the 2010 Act, which is provided for in section 12 of the Bill. The repeal of section 45 is to clarify that a previously adopted child is eligible for adoption in the same way as any other child. The repeal of Part 11 of the Children and Family Relationships Act 2015, and the bringing forward of relevant sections from that Act into the Adoption (Amendment) Bill, ensures that provisions allowing for the adoption of a child by civil partners or cohabiting couples are encompassed in primary adoption legislation.

Section 3 of the 2010 Act provides for definitions. Section 4 amends section 4 of the 2010 Act to provide that the term "birth parents" is replaced by "parents". Section 5 provides for the inclusion of "mother" and "father" in the definition of "guardian" in section 12 of the 2010 Act.

Section 6 amends section 16 of the 2010 Act and replaces the term "father" with "relevant non-guardian" in order that each person who is included in the definition of "relevant non-guardian", as set out in section 3 of the Bill, may give notice of his or her wish to be consulted in regard to an application for an adoption order by a mother, step-parent or relative of a child. Section 7 of the Bill replaces the term "father" with "relevant non-guardian" in section 17 of the 2010 Act in order that each person who is included in the definition of "relevant non-guardian", as set out in section 3 of the Bill, is included in the category of persons with whom consultation is required prior to the placement of a child for adoption.

Section 8 of the Bill inserts a new section 18 into the 2010 Act to replace the term "father" with "relevant non-guardian", as defined in section 3, in order that each person who is included in the definition of "relevant non-guardian" is included in this section. This section sets out the circumstances wherein the authority may, with the approval of the High Court, authorise the placing of a child for adoption and dispense with the requirement for consultation with the child's "relevant non-guardian".

Section 9 of the Bill amends section 19 of the 2010 Act by substituting a new section 19 to reflect Article 42A of the Constitution and to provide that in any matter, application or proceedings under the 2010 Act before the Adoption Authority or any court, the authority or the court, as the case may be, shall regard the best interest of the child as the paramount consideration in the resolution of such matter, application or proceedings. The section also provides that in the resolution of any matter, application or proceedings referred to in the section, the authority or court, as the case may be, shall, in respect of any child who is capable of forming his or her own views, ascertain the child's views and such views shall be given due weight, having regard to the age and maturity of the child.

Section 10 of the Bill amends section 20 of the 2010 Act to enable the Adoption Authority to make an adoption order in respect of civil partners or a couple who have been cohabiting for over three years, if they have been assessed as eligible and suitable to adopt. It also provides for an intercountry adoption undertaken outside the State to be recognised where the adopting couple are civil partners or cohabitants who have cohabited together for over three years.

Section 11 amends section 21 of the 2010 Act by substituting a new subsection (2) to provide that the Child and Family Agency shall give notice of discontinuance of adoption proceedings to the authority, any adoption committee concerned, the mother or guardian and every relevant non-guardian of a child.

Section 12 amends section 23 of the 2010 Act to provide for eligibility for adoption of any child residing in the State who is under the age of 18 years and has been in the care of the applicants for the prescribed period, if any such period has been prescribed. The section also deletes the reference to eligibility for adoption of a child who is an orphan or born to parents not married to each other. The section also provides that a step-parent may adopt a child where that child has had a home with his or her parent and step-parent for a continuous period of not less than two years at the date of application for the adoption order.

Section 13 amends section 30 of the 2010 Act to replace the term "father" with "relevant non-guardian" in order that all persons included in the definition of "relevant non-guardian" are persons with whom consultation is required under the section.

Section 14 amends section 31 of the 2010 Act by substituting a new section 31 to provide that in circumstances where a child has been placed with prospective adopters and, where prior to the final adoption order being made, a person whose consent to the making of the adoption order is necessary fails or refuses to give consent or withdraws a consent already given, the applicant or applicants may apply to the High Court for an order giving custody of the child to the applicant or applicants for such period as the court may determine and authorising the authority to dispense with the consent to the making of an adoption order in favour of the applicants. In these circumstances the section provides that the High Court shall have regard to the relationship between the child and the applicants and the relationship between the child and his or her mother or guardian, the efforts made by any of these persons to develop or maintain such a relationship and any proposed arrangement of either the applicants and the mother or guardian for the future care of the child. The section also provides that the High Court shall, in so far as is practicable, give due weight to the views of the child, having regard to his or her age and maturity.

Section 15 amends section 32 of the 2010 Act to provide that the authority shall not make an adoption order in circumstances where the child, the applicant or applicants for an adoption order and every person whose consent to the adoption is required under section 26 of the 2010 Act are not all of the same religion, if of any religion, unless every person whose consent is required to the adoption knows, when so consenting, the religion, if any, of the applicant or applicants.

Section 16 amends section 33 of the 2010 Act to provide that a couple who are civil partners of each other, a cohabiting couple and a step-parent of a child are included in the categories of persons eligible to apply for an adoption order or the recognition of an adoption order effected outside the State.

Section 17 amends section 34 of the 2010 Act to bring forward the provisions of section 115 of the Children and Family Relationships Act 2015 into the Bill to provide that a couple who are civil partners of each other and a cohabiting couple are included in the categories of persons whose suitability for an adoption order or the recognition of an adoption order effected outside the State must be satisfactory to the Adoption Authority prior to the making by it of an adoption order or the recognition of an adoption order effected outside the State.

Section 18 amends section 37 of the 2010 Act to provide that a couple who are civil partners of each other, a cohabiting couple and a step-parent are included in the categories of persons who may apply to the Child and Family Agency for an assessment of eligibility and suitability and the issuance by the Adoption Authority of a declaration of eligibility and suitability in accordance with that assessment.

Section 19 amends section 38 of the 2010 Act by providing that the Child and Family Agency shall give notice of the discontinuance of an application for assessment under section 37(1) to the Adoption Authority, the adoption committee concerned, the mother or guardian of the child and every relevant non-guardian of the child.

Section 20 amends section 40 of the 2010 Act by providing that a couple who are civil partners of each other and a cohabiting couple are included in the categories of persons in whose favour the Adoption Authority may issue a declaration of eligibility and suitability.

Section 21 brings forward the provisions of section 119 of the Children and Family Relationships Act 2015 into section 41 of the 2010 Act to provide that a couple who are civil partners of each other and a cohabiting couple are included in the categories of persons in whose favour the Adoption Authority may extend the time period of the declaration of eligibility and suitability and from whom the authority may hear on new information or a change in relevant circumstances in this regard.

Section 22 amends section 43 of the 2010 Act to provide that a "relevant non-guardian" is included in the category of persons entitled to be heard by the Adoption Authority on the application for an adoption order.

Section 23 amends section 54 of the 2010 Act to provide for revised criteria under which the High Court may authorise the making of an adoption order without parental consent where, unfortunately, a child’s parents have failed in their duty towards him or her. Under the revised criteria, the child must be in the custody of and have a home with the applicants for a continuous period of not less than 18 months and the High Court shall be satisfied that the parents of the child have failed in their duty towards him or her for a period of 36 months and that there is no reasonable prospect that the parents will be able to care for the child in a manner that will not prejudicially affect his or her safety or welfare.

Section 24 amends section 58 of the 2010 Act to provide that an adopted child shall be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the adopter or adopters and that the child’s mother, guardian or relevant non-guardian shall lose all parental rights and be freed from parental duties in respect of him or her.

Section 25 inserts a new section 58A into the 2010 Act to provide that a child’s mother or guardian shall not lose all parental rights in respect of his or her child when that child is adopted by a step-parent. The section provides that a child who is adopted by his or her step-parent shall, on the making of an adoption order, be regarded as the child of that step-parent and the step-parent’s spouse, civil partner or cohabitant shall retain all parental rights in respect of him or her.

Section 26 amends section 59 of the 2010 Act to replace the term "birth parents" with "parents" and to clarify that the reference to "parents" in section 59 is a reference to a child’s "birth parents" only.

Section 27 provides that for the purposes of section 60 of the 2010 Act, an adopted person is to be regarded as the child of his or her adopter, not the child of his or her pre-adoption parents. The section provides that references to adopters who are a couple also include adopters who were married to each other, civil partners of each other or a cohabiting couple at the time the adoption order concerned was made but who are no longer married to each other, civil partners of each other or living together as a cohabiting couple, as the case may be at the time of the disposition of the property concerned.

Section 28 amends section 61 of the 2010 Act to provide that, subject to section 58A of the 2010 Act, for the purposes of stamp duty chargeable on conveyances or transfers of land, an adopted person is regarded as the child of his or her adopter or adopters, not the child of any other person.

Section 29 amends section 62 of the 2010 Act to provide that the term "birth parent" is replaced with "parent" in each place where it occurs.

Sections 30 to 33, inclusive, amend sections 68, 69,78 and 79 of the 2010 Act to provide that the term "birth parent" is replaced with "person" to provide for circumstances where a person other than a "birth parent" may be required to consent to the making of an adoption order.

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Section 34 amends section 84 of the 2010 Act to provide that the entry of particulars in the adopted children register are appropriate particulars in respect of the type of adoption concerned. Section 35 amends section 85 of the 2010 Act to provide that in the case of a subsequent adoption any reference to a previous adoption will be excluded in a copy or extract of the entry. Section 36 amends section 97 of the 2010 Act to provide that the "father" is again replaced with "relevant non-guardian" in order that the Adoption Authority, when making rules regarding its procedures and governing the consultation required with a person, shall include each person who is included in the definition of "relevant non-guardian" as defined in section 2 of the Bill.

Section 37 amends section 125 of the Adoption Act 2010 to provide that a civil partner of a parent of a child and a cohabitant of a parent of a child, where the cohabitant and parent are a cohabiting couple, are included in the categories of persons who are not precluded from giving or receiving a child for adoption. Sections 38 and 39 amend sections 144 and 145 of the 2010 Act to clarify that the reference to a "guardian" in those sections is a reference to a "guardian" as defined in the Guardianship of Infants Act 1964.

Section 40 amends Schedule 3 of the Adoption Act 2010 to provide that the term "marital status" is replaced in the section with the term "civil status" and that the Schedule includes the required particulars for all adoptions. Section 41 is a standard provision setting out that the Bill shall come into operation on such day or days as the Minster for Children and Youth Affairs may appoint by order or orders, either generally or with reference to any particular purpose or provision, and different days may be appointed for different purposes or different provisions, and also provides for the repeal of Part 11 of the Children and Family Relationships Act 2015.

I look forward to hearing the views of Deputies on these important issues. I am also very grateful to Deputy Kathleen Funchion for attending a briefing with me and my officials yesterday. It is very important to me to consult with all political parties, independents and any others who wish to be briefed on Bills prior to coming to the Dáil. I express my genuine openness to Deputies' views to assist me in making this the best legislation for our children. I commend the Bill to the House.

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