Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

-----I had prior commitments in my constituency and could not be there. I agree with her that it is very welcome that this is one of the first pieces of legislation to be debated in this Dáil term. One of the most significant developments in child protection in recent years has been the constitutional change approved by the people of Ireland in November 2012.

Article 42A "affirms the natural and imprescriptible rights of all children" and places children's views and their best interests at the centre of court proceedings regarding care, adoption, guardianship, custody and access. Fianna Fáil welcomes and is fully supportive of this long-overdue adoption legislation, which gives legislative effect to this constitutional change, requiring that the views of the child shall be heard and given due weight in adoption cases.

We must begin by acknowledging that the Bill deals with a sensitive and extremely difficult area, namely, that of adoption proceedings, adoption orders and adoption eligibility. However, it is an area in which, if nothing else, we can all agree that the paramount concern must be the best interests of the child. The child has an inalienable, and now constitutionally enshrined right to ensure that his or her best interests are always the fundamental and sole concern in adoption cases. The Bill further provides that children's own wishes, desires and views regarding their best interests are valued and should, as far as practicable, have a significant bearing on court decisions made.

Few matters can be of such importance to a child's welfare and well-being as cases involving custody, guardianship and adoption. It is a sign of how much our society has developed that we recognise in our Constitution, and in legislation giving effect to these constitutional provisions, that in fundamental matters of importance, children have a right to form a view, have their view heard and that that view be given due weight in cases that affect them.

While the amendments in this Bill giving effect to both Article 42A.4.1°, that "the best interests of the child shall be the paramount consideration", and Article 42A.4.2°, that "the views of the child shall be ascertained and given due weight", are to be welcomed, I believe that further scrutiny may be required in this area to ensure that the views of the child are ascertained in all adoption cases. In particular, there is a strong argument to be made that guidelines or even further legislation may be required to give full effect to Article 42A, in particular the provisions that the best interests and the views of the child are heard and considered in adoption proceedings. I intend to return to this point in my concluding remarks.

I welcome the other elements of this Bill, which will bring greater clarity to adoption legislation in the context of non-married couples and civil partners. Adoption provides security to children and strengthens families, but our laws have unfortunately been out of step with the reality of modern life for a long time. These changes, which clear the way for non-married couples and civil partners to jointly adopt, are long overdue and welcome.

I also welcome the removal of the anomaly regarding step-parents. Step-parent adoption usually refers to the adoption of a child by a birth mother and her spouse, who is not the birth father of the child. At present, under current adoption legislation, there is a senseless legal anomaly whereby if only the birth parent's spouse adopts the child, the birth parent would lose her rights and responsibilities regarding the child and would no longer be the child's guardian. The Coalition of Mother and Baby Home Survivors referred to this anomalous law as "ridiculous and woefully outdated". This Bill corrects this anomaly, introducing an amendment whereby the parent will continue to be the parent and the step-parent will be an adoptive parent.

This Bill also includes provisions that will give greater legislative clarity to adoption proceedings in the case of parental failure. The amended section provides for the High Court to authorise the Adoption Authority to make an adoption order on behalf of applicants, that is, foster parents or relatives, if the court is satisfied that such an authorisation would be in the best interests of the child and if it has been shown to the satisfaction of the High Court that the parents of the child have failed in their duty towards the child. It is important to point out that this amendment is not about removing children from their families, but rather about putting them into care. It is about ensuring that children who are in the care system are no longer left to drift and are given a second chance.

As I said at the outset, this Bill has been a long time overdue. The reason for this is that prior to the children's referendum, a decision was taken by the previous Government to produce material which was deemed to be impartial. In view of that and directly as a consequence of a decision taken by one of the Minister's predecessors or by someone at a very senior level in her Department, this legislation is almost four years overdue. Thankfully, both the High Court and the Supreme Court rejected the challenge to the vote and upheld the referendum result.

We must think of the number of children who have gone through the care system in the past four years and who have had to wait far too long for the outcome of the referendum to be given legislative effect. I expect somebody to take responsibility for that decision. Nobody ever has. In the previous Government, I questioned the Tánaiste, who was then Minister for Children and Youth Affairs, as to what happened and the answer given was always that we could not debate the issue because it was before the courts. It is no longer before the courts. Somebody needs to come out to take responsibility, but also to apologise to the thousands of children who are were deprived their right of getting the opportunity to have their social families recognised as their legal families. Close on 2,000 children per year have gone through the care system in the past four years and have lost the benefit of these new legislative changes. I need not remind the House of the potentially harmful consequences this has on these children's sense of belonging, sense of home and sense of identity, as well as on their rights to succession and inheritance.

As I stated, up to 2,000 children could become eligible for adoption as a result of this change. However, the level of resources in place in the adoption system supports only a small number of children progressing through the system on an annual basis. In 2014, there were 112 domestic orders and 34 inter-country adoption orders. It is a real and worrying issue, one which I hope the Minister will acknowledge and respond to in her concluding remarks, that there does not seem to be a resourcing plan to accompany this legislation, given that there is a potential to dramatically increase the number of adoptions that will go through the Adoption Authority.

The previous Government imposed an agonising long delay on children in long-term foster care by not acting on this legislation. Unless resources are put in place in the adoption system, I worry that backlogs in the system will impose another painful delay on these families by preventing children in foster care from progressing swiftly through the adoption process. It is not enough to give these children the legal right to adoption. They also must be able to exercise this right to become legally part of their foster families. I would like to know what level of resources will the Minister be putting in place to ensure that these children will not have to wait even longer to exercise this right to a family.

In the context of this Bill, it is equally worrying that there is no commitment in the programme for Government for the establishment of family courts. Considering the current long delays in family courts, it is deeply worrying to think of how these will be severely exacerbated as a result of possibly thousands of new adoption cases. I would point out that it being a commitment in the programme for Government does not necessarily mean that will happen. It was a commitment in the previous programme for Government, the previous Government lasted its full five-year term yet we still do not have a dedicated family courts system. That is something that is urgently needed. I am speaking about it in the context of this legislation because this will only add to the pressure on the family legal system. It is something that the Minister needs to address with her colleague, the Tánaiste and Minister for Justice and Equality. Without some reform in this area, there is little hope of alleviating the long delays in family law cases.

I believe it is incumbent on us all in this House, to ensure these children and families are given the opportunity which they are owed by the State, to deal with this Bill in as prompt and efficient a manner as possible. However, I am apprehensive about the Government's decision to by-pass the pre-legislative scrutiny stage, which stage was promised by the previous Minister. I believe that pre-legislative scrutiny is not a time-consuming indulgence but provides an essential proofing stage for complex Bills such as this. I worry that the decision to skip this stage may hold back some of the later Stages if difficulties, whether technical or substantive, are uncovered. In her response, perhaps the Minister can outline why the pre-legislative stage was skipped.

There are a number of section 45 Adoption Act 2010 difficulties, which I can discern at this Stage and which I would like the Minister to respond to. One such concern is the complete repeal of section 45 of the 2010 Adoption Act. Section 45 limited the circumstances in which a child could be re-adopted. With complete removal of this section, it seems possible that a child could technically be adopted by two adoptive families. Surely the more prudent approach would have been to amend section 45 rather than completely remove it. My party intends bringing forward an amendment in line with international best practice on Committee Stage.

Another concern is that this legislation fails to deal with how the Adoption Authority will consult with birth fathers in cases of donor-assisted human reproduction. For example, does the Adoption Authority have to consult with sperm donors, as is required under section 18 of Adoption Act 2010 which requires the authority to consult with birth fathers? This is a difficult, complex question. Perhaps the Minister can respond in due course.

Another concern which has been expressed to me is the apparent incongruity in children's rights to information and tracing. It is an anomalous situation where in Parts 2 and 3 of the recently commenced Children and Family Relationships Act 2015, there are explicit rights to access to information and identity tracing for children who are conceived from donor-assisted human reproduction. Yet, adoptive children are still awaiting the information and tracing Bill to be published for a similar right in the context of adoption. This is not the Minister's fault, but I want to use the opportunity to remind the House that on the formation of the previous Government, both the then Minister for Justice and Equality, Mr. Shatter, and then Minister for Children and Youth Affairs, Deputy Fitzgerald, held a press conference stating that their first priority in terms of legislation was to give what every child is entitled to, that is, the right to identity.

In that context and in the context of the tens of thousands of children who, through either forced adoptions or illegal adoptions, do not know their true identity, there was a solemn promise made that such legislation would be top priority for that Government. Unfortunately, five years later, the legislation has yet to be published. It is something that the Minister needs to take on board. From meeting so many of the organisations prior to the establishment of the mother and baby home commission, as I did, I am sure the Minister heard, engaged and dealt with these same brave men and women who have come forward and shared the most deeply personal stories with us as public representatives in the hope that we can use our position within the Oireachtas to afford them their basic human right to an identity. At the time of the publication of the biography Philomena, everyone was outraged and acknowledged the braveness of that lady in terms of what she did to highlight the issue. I would urge the Minister, as she starts in her position as Minister in this Department, to get the Department into gear and ensure that action is taken to bring forward the information and tracing Bill as soon as possible.

The most substantive provision in the Bill is to give legislative effect to the new Article 42A on the rights on the child. However, we must ensure, in practice, that during adoption proceedings children's views are heard and their best interests ascertained.

I will conclude by discussing potential reforms that are required to ensure Article 42A on the best interests and views of the child can be better upheld in courts and private legal proceedings. An important point to consider in this regard is that the new Article 42A.4.2° will extend the right to be heard in adoption proceedings to all children with the capacity to form views, not just those capable of expressing them. Ensuring adherence to the spirit of this new right may require some changes in approach to be applied by those tasked with assessing a child’s decision-making ability during adoption, custody or guardianship proceedings. For example, the new article on the right of the child to be heard may require the provision of further supports for a child during adoption proceedings to enable him or her to form a view, for example, in the form of child-friendly information or a trusted representative who is capable of explaining matters to him or her.

One of the most worrying omissions from the Bill is the absence of a provision on the right to have a guardianad litemappointed in adoption cases, even though there is such a provision in Northern Ireland. This omission is despite the fact that many experts in this area, chiefly Dr. Geoffrey Shannon, the Government's special rapporteur on child protection, has stated there is inadequate statutory regulation and a lack of guidance on how a guardianad litemshould be appointed. Legislative provisions do not specify the requisite qualifications an expert must possess in order to be qualified to carry out a report which seeks to express the views and capture the best interests of the child in these cases.

The appointment of a guardianad litemis too fundamental a matter to be left unregulated and the guardian ad litemsystem should be placed on a statutory footing as a matter of priority. Although there have been repeated Government promises to reform the area, including measures to tackle the often excessive payments on legal and guardian ad litemfees, nothing has been done. In the last Dáil Fianna Fáil brought forward legislation to reform the guardianad litemsystem, which we intend to reintroduce in the coming term. I urge the Minister to accept the forthcoming Bill which we will to bring before the House shortly. I would welcome an opportunity to discuss it with her and her officials.

The primary method used to ascertain the wishes of a child is by allowing him or her to speak to the judge privately in his or her chambers. However, it has been suggested reform may be required in this area. Guidelines on private meetings between children and judges should be issued to ensure best practice is followed when ascertaining the views of children in adoption cases. Dr. Shannon suggests guidelines are required in this area, including on the importance of observing the principle of a fair trial and preferably guaranteeing confidentiality to a child, unless the parents in the case object to this on reasonable grounds.

I fully support and commend the Bill, especially for its effect in alleviating the legal limbo which families and children in long-term foster care have been in for too long. It is deeply regrettable that the legislation could not have been implemented sooner after the children’s rights referendum. However, I fear these and other families will have to wait even longer to exercise their constitutional right to become legal families, unless the Minister puts in place a coherent plan to properly resource the adoption system and clear the backlogs in the family court. I urge her to take seriously many of the concerns I have raised about the Bill, as well as the reforms I have suggested of the wider legal procedures for ascertaining the views of children and what is in their best interests in family cases in accordance with Article 42.

See this speech in context