Wednesday, 30 November 2016
Adoption (Amendment) Bill 2016: Report and Final Stages
I move amendment No. 1:
In page 5, lines 13 to 15, to delete all words from and including “(1) The” in line 13 down to and including line 15 and substitute the following:
“(1) Section 24 of the Principal Act is repealed.”.
I indicated on Committee Stage that I would bring forward an amendment to this section. Section 45 of the Adoption Act 2010 provides that where a child’s adopters have died a further adoption order may be made in respect of the child and, for the purposes of the order, the child shall be taken to be the lawful child of the deceased adopters.
The children referendum and the insertion of Article 42A in the Constitution states that provision shall be made by law for the adoption of any child and therefore extends to the further adoption of a child who was previously the subject of an adoption order. It was previously my intention to repeal section 45 of the Adoption Act 2010 to provide for this but I am now proposing instead to include an amendment in the Adoption (Amendment) Bill 2016 to provide that, where a child in respect of whom an adoption order is in force or an intercountry adoption effected outside the State that has been recognised, is further placed for adoption, a further adoption order may be made in respect of the child, and for the purposes of the order, the child concerned shall be taken to be the lawful child of the adopter or adopters in whose favour the first mentioned adoption order or intercountry adoption effected outside the State was made or recognised, as the case may be.
Amendment No. 1 removes the intended repeal of section 45 of the Adoption Act 2010 and amendment No. 15 substitutes a new section 45 in the 2010 Act to clarify that a further adoption order may be made or an intercountry adoption effected outside the State may be recognised in respect of an adopted child.
We will not oppose the amendment. It was explained on Committee Stage and at the briefings. I have not had the opportunity to study it in detail but I made the point at the briefings that it is important that the Adoption (Information and Tracing) Bill deals with subsequent adoptions of the kind referred to here in a like for like manner. If that is not in the Bill, it is something that should be considered for Committee and Report Stages of that legislation.
I move amendment No. 2:
In page 11, between lines 3 and 4, to insert the following:
“(2) In determining for the purposes of subsection (1) what is in the best interests of the child, the Authority or the court, as the case may be, shall have regard to all of the factors or circumstances that it considers relevant to the child who is the subject of the matter, application or proceedings concerned including—
(a) the child’s age and maturity,
(b) the physical, psychological and emotional needs of the child,
(c) the likely effect of adoption on the child,
(d) the child’s views on his or her proposed adoption,
(e) the child’s social, intellectual and educational needs,
(f) the child’s upbringing and care,
(g) the child’s relationship with his or her parent, guardian or relative, as the case may be, and
(h) any other particular circumstances pertaining to the child concerned.”.
I indicated on Committee Stage that I would bring forward an amendment to this section. The Adoption (Amendment) Bill amends section 19 of the Adoption Act 2010 to reflect the 31st amendment to the Constitution in regard to the best interests of the child. In any matter, application or proceedings under the Act which is before the Adoption Authority or any court, the authority or the court, as the case may be, shall regard the best interests of the child as the paramount consideration in the resolution of such matter, application or proceedings.
A number of Deputies requested a strengthening of the provisions to be made in regard to the best interests of the child in adoption proceedings. I agree that the provision of a framework for the application of the best interest's principle in adoption proceedings would be beneficial for the Adoption Authority or the court, as the case may be.
I propose to include an amendment in the Adoption (Amendment) Bill 2016, Amendment No. 2, to provide that, in determining what is in the best interest of the child, the Authority or the court, as the case may be, shall have regard to all of the factors or circumstances that it considers relevant to the child who is the subject of the matter, application or proceedings concerned including the child's age and maturity; the physical, psychological and emotional needs of the child; the likely effect of adoption on the child; the child's views on his or her proposed adoption; the child's social, intellectual and educational needs; the child's upbringing and care; the child's relationship with his or her parent, guardian or relative, as the case may be; and any other particular circumstances pertaining to the child concerned.
I propose amendment No. 6 to provide that regulations may be made prescribing the procedures by which the Authority or the court, as the case may be, shall, in so far as practicable, determine how best, having regard to the age and maturity of the child, to ascertain and give due weight to the views of the child in any matter, application or proceedings and, without prejudice to the generality of the foregoing, such regulations may make provision for the procedures that are to apply to enable a child to present his or her views in person or in writing to the Authority or the court, as the case may be; make provision for the procedures that are to apply to enable a child to nominate an appropriate person to present the child's views orally or in writing to the Authority or the court, as the case may be; prescribe as appropriate persons a class or classes of persons who are suitable to be appropriate persons for the purposes of such functions; make provision for the procedures that are to apply in respect of any consultation by the Authority or the court, as the case may be, with a child or an appropriate person; make provision for the consultation by the Child and Family Agency with a child for the purpose of ascertaining his or her views and for the procedures relating thereto, including procedures relating to the preparation and submission of any written reports arising from such consultation to the Authority or the court, as the case may be; prescribe the standards to be applied by an appropriate person to the performance by the person of his or her functions under this section; and prescribe the allowable expenses and-or fees that may be charged by an appropriate person.
I intend to enter into a consultation process with children before the regulations are drafted.
I will look specifically at section 6 in this regard. The amendments deal with the systems by which the interests of any child involved in legal proceedings are protected, essentially, the guardian ad litemsystem. Under the current system, an absence of clear regulation of an appointment and employment of guardians ad litemhave left the process haphazard, chaotic and vulnerable to exploitation.
While Fianna Fáil is broadly supportive of the Minister's amendments, we believe that they do not go far enough as they fail to make provision for an independent regulatory body to monitor the quality of the guardian ad litemservice. This would provide much needed accountability and efficiency to the system. Given the crucial importance of the guardian ad litemin ensuring children's voices are heard in legal proceedings, this type of meaningful reform is badly needed. By failing to create an independent regulatory authority, the Minister is failing to provide a lasting and real solution to a chaotic system.
Following the 2012 children's referendum, Article 42A.4 was inserted into the Constitution. The article provides that provisions shall be made by law for the best interests of the child to be the paramount consideration in child protection, care, adoption and family law proceedings, and for the views of the child to be ascertained and given weight. In order for the child's views to be heard, it is common for judges to appoint a guardian ad litem, an independent professional who is appointed to represent the wishes of the child in specified court proceedings.
There is a part of it missing, which is the guardian ad litem. Perhaps the Minister could respond as to where she can see there is a role for them in the future.
I welcome the amendments. Obviously, I welcome that it is intended to strengthen the voice of the child in the legislation. It takes on board comments that Deputies from all parties made during the course of Committee Stage and Second Stage.
I have a number of queries. That point about a regulatory format for the process is important. It clearly seems, at least to me, largely to envision providing for situations in which a guardian ad litemwould be involved. However, in so far as I can see, it does not use that phrase in any of these sections whereas, although I could be mistaken, the phase "guardian ad litem" is specifically outlined in the entitlements in the original 1991 Act. I would be curious to know whether there was a particular reason - perhaps I have missed it - the phrase is not used and whether there is a wider category of person who are considered.
I would also be curious to know about amendment No. 18, which has been ruled out of order. It is one of Deputy Rabbitte's amendments, and she can correct me if I am taking this up wrong. I understand the intention is that judges would retain a discretion to keep a child, where he or she has been made a party to proceedings, as a party of the proceedings after an order has been given entitling him or her to a guardian ad litem. Therefore, such a child could both have a guardian ad litemand be a party to proceedings where the judge felt that was appropriate. I understand that is not currently possible. I merely want to know whether the Minister gave that any consideration, particularly in light of Deputy Rabbitte's amendment, if I understand it correctly.
I wish to tease out this a little further as well.
I also welcome the intention to give due weight to the views of the child, which is contained in the Minister's amendment No. 6. On the description of an appropriate person, the Minister can prescribe an appropriate person and the amendment lists the possible kinds of persons, and considering their qualifications, training and expertise etc I suppose I merely wanted to get some sense of what kind of persons and what particular professions the Minister is talking about.
It relates to the guardian ad litemissue, raised by Deputies Rabbitte and Ó Laoghaire, as to whether that is too precise a definition. Is that why the Minister does not use the term or is the Minister keeping it looser in order to have different possible appropriate persons?
I presume that having such appropriate persons does not mean that the child personally, if he or she is an appropriate age, cannot express his or her views on the issues concerned. Maybe the Minister could clarify some of that.
I thank the Deputies for their questions.
In terms of the questions with regard to the guardian ad litem, as Deputies would be aware and while I am deeply respectful of the issues that they have put forward here, the guardian ad litemapplies to child care proceedings generally but not to adoption. These issues will be addressed in separate legislation. Heads of a Bill on guardian ad litemreform will be published prior to the end of this session and the issues, some of which the Deputies identified here and perhaps raised in other amendments that they put forward in terms of our discussions of this Bill, will be dealt with in those heads.
In terms of Deputy Jan O'Sullivan's question with regard to the appropriate persons, the regulations may prescribe as appropriate persons a class or classes of persons who, in the Minister's opinion, having regard to the functions to be performed by members of such classes, are suitable to be appropriate or who, in the Minister's opinion, have the considered qualifications, training and expertise of such class or classes of persons.
I believe that is specific enough with regard to the judgment of a Minister in terms of the knowledge that is required for the adoption proceedings as they go forward, be it in the courts or with the Adoption Authority.
I move amendment No. 4:
In page 11, line 4, to delete “In so far as practicable,”.
I tabled these amendments on Committee Stage. They seek to remove the five words, "in so far as practicable", from each of the provisions. To give the specific context, it comes back to the right of the child to have their voice heard and whether a child is capable of forming his or her own view and having that expressed. I took the Minister's comments on board, but I still believe it is worth pursuing. Without those words the subsection, and all the subsections are similar, would read: "In relation to any matter, application or proceedings referred to in subsection (1), in respect of any child who is capable of forming his or her own views, the Authority or the court, as the case may be, shall ascertain those views and such views shall be given due weight having regard to the age and maturity of the child." There is already a high level of conditionality there. One is whether the child is capable of forming their own views. In addition, it allows the authority or the court to give due weight to them, that is, to consider the views on their own merits and in the context of the age and maturity of the child.
However, there is no basis for making that conditional on how practicable it is. To offer a parallel, it would be similar to providing in legislation that somebody in front of a criminal court would be entitled to legal representation in so far as practicable. As far as I am concerned, it would be the right of the child and there should not be any conditionality to it. The Minister has taken some steps but we must do more to strengthen the voice of the child in proceedings. I welcome what she said regarding the heads of the Bill relating to guardian ad litem. In that context, we should consider a minimum age or a minimum age above which children's voices should always be heard. However, that is another matter.
To return to the amendment, there is no basis for making the entitlement of the child to be heard with regard to any of those sections and the proceedings that would be involved contingent on how practicable it is. As I said on Committee Stage, that phrase usually relates to matters of budget or administration. There are no circumstances I can envisage in which it could be considered to be not practicable, other than where the child is considered not capable of forming his or her own view and that is already provided for even without the inclusion of those words. All the amendments have the same effect and I will press them.
I appreciate the Deputy raising this matter again. We had a good exchange on it on Committee Stage. It has prompted me to reflect further on the Deputy's amendments so I will respond to his proposal. "In so far as practicable" is consistent with the language used in Article 42A of the Constitution. It states: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." It allows the Adoption Authority or the court, as the case may be, to take into account the individual needs of each child in ascertaining his or her views, having regard to the child’s age and maturity. I consider this provision would be unworkable without "In so far as practicable", as a child cannot be compelled to give his or her own view if he or she does not wish to do so.
As I indicated on Committee Stage, I have developed this provision further and am proposing to provide that regulations may be made prescribing the procedures by which the authority or the court, as the case may be, in so far as practicable, can determine how best, having regard to the age and maturity of the child, to ascertain and give due weight to the views of the child in any matter, application or proceedings. As I said, I have reflected on the Deputy's amendments but, on the basis of what I have said, I do not propose to accept them. What we are trying to provide for here is a standard that relates to a threshold of feasibility. It is not intended to be an escape route.
I draw a distinction between this and the point about the constitutional amendment, because that obviously governs an enormous number of areas and how the Constitution and children will interplay with a range of services and entitlements whereas this amendment refers to a basic and fundamental right. That said, I accept the point that a child could not, and probably should not, be compelled. I might consider a revised version of an amendment which I could recommend to be tabled by our Senators. I will take that point on board as it is a fair point.
I move amendment No. 6:
In page 11, between lines 8 and 9, to insert the following:“(4) Without prejudice to the generality of subsection (3), the Minister may make regulations prescribing the procedures by which the Authority or the court, as the case may be, shall, in so far as practicable, determine how best, having regard to the age and maturity of the child, to ascertain and give due weight to the views of the child in any matter, application or proceedings, and, without prejudice to the generality of the foregoing, such regulations may—(a) make provision for the procedures that are to apply to enable a child to present his or her views in person or in writing to the Authority or the court, as the case may be,(5) Regulations under this section may—
(b) make provision for the procedures that are to apply to enable a child to nominate an appropriate person to present the child’s views orally or in writing to the Authority or the court, as the case may be,
(c) prescribe as appropriate persons—(i) a class or classes of persons who, in the opinion of the Minister having regard to the functions to be performed by members of such class or classes of persons under this section, are suitable to be appropriate persons for the purposes of such functions, or(d) make provision for the procedures that are to apply in respect of any consultation by the Authority or the court, as the case may be, with a child or an appropriate person,
(ii) a class or classes of persons who, in the opinion of the Minister having considered the qualifications, training and expertise of such class or classes of persons by reference to the functions to be performed by members of such class or classes of persons under this section, are suitable to be appropriate persons for the purposes of such functions,
(e) make provision for the consultation by the Child and Family Agency with a child for the purpose of ascertaining his or her views and for the procedures relating thereto, including procedures relating to the preparation and submission of any written reports arising from such consultation to the Authority or the court, as the case may be,
(f) prescribe the standards to be applied by an appropriate person to the performance by the person of his or her functions under this section,
(g) prescribe the allowable expenses that may be charged by an appropriate person referred to in paragraph (c)(i) and the fees and allowable expenses that may be charged by an appropriate person referred to in paragraph (c)(ii),
(h) make provision for such other matters as the Minister considers necessary to ensure that appropriate persons are capable of performing their functions under this section.(a) make different provision in relation to—(6) In determining for the purposes of subsection (3) how the child's views shall be ascertained and heard, and how such views shall be given due weight having regard to the age and maturity of the child, the Authority or the court, as the case may be, shall have regard to regulations made by the Minister under subsection (4).”.”.(i) children of different ages and maturity, orand
(ii) different classes of appropriate persons,
(b) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.
I move amendment No. 7:
In page 12, between lines 11 and 12, to insert the following:“(3) This section shall not generally apply to persons who, at the date of the adoption order, were more than 18 years of age, however, the Adoption Authority may waive this requirement if they believe it is in the best interests of the person for whom an adoption is being sought. The adoption authority shall also consult the prospective adoptive family in deciding whether to waive the requirement to be less than 18 years of age.”.
This amendment relates to a point that was made previously and I agreed to consider what the Minister said. However, I retain the view that it is something that must be dealt with either in this legislation or in a future legislative measure. In this instance, I believe it is worth pursuing. There are two contexts in which it would apply. One is probably more urgent than the other, but it is still relevant and worth considering. It is particularly important in instances where there might be some delay in the administration. As I said on Committee Stage, adoption should not be a speedy process. It is right that it should be thought through and comprehensively well managed. However, that presents the potential difficulty that a delay would result in a child reaching the age of 18 years before the adoption order has been fully processed.
I understand that all efforts are made to rush it through where it is absolutely required, but there should be some provision to allow for people who have reached the age of 18 years to be considered to be adopted. That is in very restricted circumstances. It would allow the person, after they have reached the age of 18 years, to enjoy certain entitlements. Obviously there are significant differences in how that person might enjoy property rights and social welfare entitlements. Indeed, I believe there are some implications for the property rights of the would-be adoptive parents as well. Most of the Deputies were present for the discussion on Committee Stage. If somebody were to die intestate, how the person would be entitled to benefit subsequently would be greatly different.
If that person were to die testate, they would still be subject to a much greater tax on any assets to which they would be entitled.
Essentially, this relates to a very small number of cases where it might be necessary to regularise those situations to provide some recognition. It should not be open-ended. Due discretion and care should be shown in that regard. This is an important issue that needs to be dealt with. The adoption is entirely about the welfare of the child and providing an environment in which the welfare of child is safeguarded and advanced. This amendment is not particularly about the welfare of the child, rather it deals with a person who has ceased to be a child but that person will continue to have rights. That person has a history that should be recognised in terms of their property rights and entitlements with respect to how they deal with the State more generally.
Deputy Ó Laoghaire made a very good case in regard to a young person where there was a delay and the child became an adult during the course of the adoption process. The Minister in her reply to this issue on Committee Stage indicated that this would be a fundamental change because it would involve how we would define a child. If there is delay in the process and there was an intention that the person would be adopted but they cannot be adopted because they have turned the age of 18, is there some mechanism, although perhaps not through legislation, by which the Minister could ensure that if a process was commenced, it would be completed in time for the intention to be fulfilled? That is essentially what the Deputy is seeking to achieve in his amendment.
I would also like to support what Deputy Ó Laoghaire has brought forward in his amendment. This point was very well made on Committee Stage and it was very thought-provoking. I welcome his amendment. From the small amount of research I have done on this, I note that due to the process involved there is an opportunity where some people might not see the process through to completion. Having regard to the way the Deputy explained this case, I would not like to think that if a process has been started that a person would lose out because it was not brought to completion. I also support what Deputy O'Sullivan said. Is there any means by which a directive could be provided? If it could not be inserted in the Bill, could we provide that the Minister's Department could issue a directive to provide that this would becomes part of best practice, where if a process is started that it would be seen to completion? It was one of the queries I had on the Bill and I thank the Deputy Ó Laoghaire for pointing it out.
I thank Deputies Ó Laoghaire, Jan O'Sullivan and Rabbitte for their comments. They have all referred to the discussion of this issue on Committee Stage which was very thought-provoking. I promised to think about it again and I have thought done so. I will outline some of my reflection subsequent to that. The rationale Deputy Ó Laoghaire provided in his amendment, largely on Committee Stage, related to a concern about there being a delay in the process. On this Stage the Deputy has amplified some other aspects, not only related to a delay in the process, and I will also deal with those aspects, but I will first address the delay issue.
The proposed amendment would allow for the adoption of person over the age of 18, as the Deputy is aware. The primary purpose of the Adoption (Amendment) Bill 2016 is to give effect to Article 42A (Children) of the Constitution in so far as it relates to adoption. en applications for an adoption order were received by the Adoption Authority in 2015 where the child was due to turn 18 years of age in 2015. All of those applications were finalised and adoption orders were granted in 2015. In 2016 to date, ten applications have been received for children turning 18 years of age in 2016. All of those applications have also been finalised and adoption orders have been granted. Currently, the Adoption Authority has no outstanding applications received in 2016 where the child will turn 18 yers of age in the 2016 calendar year.
As I explained on Committee Stage, priority is given by the Adoption Authority, the Child and Family Agency and the courts to cases where a child is older to ensure the adoption process is completed before the child reaches the age of 18. I am not satisfied that a provision in this regard in the Bill is required. On this basis I do not propose to accept this amendment.
I would like to add a few points as what I have said is largely is based on the rationale of whether there could be a potential delay in the process. As I indicated, and this is new information, that has not happened in 2015 and it is not happening in 2016. As I also indicated, it would be a major policy change for us to accept this amendment in the context of a Bill when there is no evidence that it has ever happened and that is still the case.
Having acknowledged a concern about there being a delay in the process, to pick up on Deputy Ó Laoghaire's point it is a process that should be thought through and enough time should be given for that. Even if there is a shortened period involved, the adoption process can move forward and has moved forward. I would like to believe that we make law that encourages, as the Deputy said, people to think through the serious issue of adoption. In terms of some of his other arguments that significant things can change in terms of entitlements and so on for the person - a child or a young person who is just past the age of being a child - who could potentially be adopted, these are serious matters.
Given that, we need to support and make law to encourage those people who are thinking about becoming legally part of a family to make those choices for all of the reasons that this would entail and they would require sufficient time to do that, as distinct from that process being narrowed to issues of entitlement or tax relief, which I know the Deputy was not implying. I am answering his points in a fulsome way while on the one hand, acknowledging that this is not something that should be quickly done and, on the other hand, pointing out that even when there may be less time in some cases when children begin the process of adoption, we still do not have any cases where they are not prioritised and enabled effectively to become part of a family.
Given the concern expressed by Deputies Jan O'Sullivan, Rabbitte and Ó Laoghaire in terms of the age process, and even though this has never happened previously and I do not believe it would happen given the law we are crafting with this Bill, I would be willing to offer - I believe this would be a good measure and this demonstrates the additional thinking and research we have done - that in accordance with section 110 of the Adoption Act 2010, I can and I will request the Adoption Authority in preparing its annual business plan to consult with Tusla and to prepare plans to ensure that all adoption applications are assessed and completed before the adoptee's 18th birthday. The best interests of the child is always paramount in that regard.
I thank the Minister for her response. Clearly, a great deal of thought has been given to this, which I welcome. The steps she and the Department are committed to taking are also welcome. However, this does not necessarily deal with the broader question of people for whom it was not a cause of delay but ultimately who found, just after their 18th birthday, that this potential avenue was closed to them. I refer primarily to delay. While I recognise it is not an issue at the moment, the number of 17-year-olds on behalf of whom applications are being made is relatively small but that might not always remain the case. Adoption numbers generally are relatively low in this country, albeit there will be an increase following the passage of the legislation. However, we do not draft legislation on the basis that everything has worked fine so far. If somebody who, despite every effort, found the clock had run out, there would be no recourse for him or her. All the timelines, guidelines, instructions and directives to everyone involved in the process would be no addition to that person. If the Minister does not accept the amendment, I ask her, beyond whatever instructions she intends to give to the authorities responsible, to commence some form of consultation or discussion within the Department and the agencies to consider whether a change in policy is required. The policy I propose exists in other countries. There is not even a maximum age in France. I do not necessarily advocate that but I ask the Minister to consider whether a change in policy might be necessary.
I appreciate the rationale for the Deputy's arguments. It is not that the number is small; it is zero. I understand it is part of his argument that this may not be the case in the future. I have agreed with him that because it is such a serious matter that it requires the time. If people wait until, say, the final five days before their 18th birthday, that would raise a question in respect of the overall rationale in that regard. While I would not necessarily be respectful of that, it could raise a question. On the basis of the Deputy's arguments and recommendations, I would be happy to instruct the Adoption Authority of Ireland, in preparing its business plan, to ensure anyone who applies before he or she turns 18 has his or her assessment completed. It is helpful for the Deputy to raise the wider question within my Department about the deeper policy issue. The discussion has begun and I promise that we will continue with that.
I move amendment No. 8:
In page 12, line 16, to delete "(3) Subject to this" and substitute "(2) Subject to this".
These are consequential technical amendments arising from an amendment on Committee Stage to delete section 30(2) of the 2010 Act. The purpose of the amendments is the consequential renumbering of later subsections. These amendments contain no substantial change to the text of the Bill.
I move amendment No. 11:
In page 13, lines 6 and 7, to delete "(6) After counselling the mother or guardian of the child under subsection (5)" and substitute "(5) After counselling the mother or guardian of the child under subsection (4)".
Amendment agreed to.
I move amendment No. 15:
In page 18, between lines 4 and 5, to insert the following:"Further adoption
23. The Principal Act is amended by the substitution of the following section for section 45:"45. Where a child, in respect of whom an adoption order is in force or an intercountry adoption effected outside the State that has been recognised, is further placed for adoption—(a) a further adoption order may be made in respect of the child, and
(b) for the purposes of the order, the child concerned shall be taken to be the lawful child of the adopter or adopters in whose favour the first-mentioned adoption order or intercountry adoption effected outside the State was made or recognised, as the case may be.".".
I move amendment No. 17:
In page 20, between lines 18 and 19, to insert the following:"Amendment of section 58 of Principal Act26. The Principal Act is amended by the insertion of the following new section:"58B.A Child who has been adopted under the provisions of the Adoption Acts shall continue to be entitled to have access to his previous parents or guardians, or relevant non-guardians, prior to the adoption, should the child so wish, and provided that this is in the best interests of the child.".".
The amendment relates to access. I made the point at length on Committee Stage that children who have been subject of an adoption do not have the statutory right to have access to their former family. That could happen in a number of circumstances. It could be parents with whom they had a good relationship or people with whom they did not maintain a good relationship. In those instances, it could be a grandfather or a sibling. Clearly, in most cases where an adoptive family has the best interests of the child at heart, it will allow and facilitate such access. However, should the family be restrictive about this, my understanding is the child has no recourse. Where such access occurs, it is monitored by the relevant authorities such as Tusla and in consultation with the adoptive family. However, a statutory right should be put in place. Commentary has been generated previously about the fact that our adoption laws are open and shut. We do not have necessarily the same forms of open or flexible adoptions that exist in other jurisdictions. The matter needs to be considered as a wider policy issue but, in the interim, at the very least, a general right limited on the basis of the child's consent or where it is in the child's best interest should be given a statutory basis, ensuring he or she has access to the family because he or she has a past and will want those people to continue to be a part of his or her life. The door should not be shut on that part of these children's lives forcing them to move on.
This amendment proposes that an adopted child would be entitled to continue to have access to previous parents, guardians or non-guardians. Where a child has been adopted, the child concerned is considered, with regard to the rights and duties of parents and children in respect of each other, as the child of the adopter or adopters, and with respect to the child, the mother or guardian of the child and every non-relevant guardian of the child loses all parental rights and is freed from all parental duties in respect of the child. I also made this argument on Committee Stage. Under current practice, there are often arrangements in place for ongoing contact between birth parents and adopted persons and their families, where there is agreement by the relevant authorities.
The Adoption (Information and Tracing) Bill 2016, which I published last Friday, also provides that the birth parent and adoptive parent can enter into arrangements regarding the sharing of information between both parties. This Bill will facilitate that contact. On the basis of these arguments, I do not intend to accept the proposed amendment.
I was hoping for a more comprehensive answer, maybe even a commitment that this issue would be looked at more broadly, whether in the context of the reform of adoption legislation generally or of open adoption of some form or other being considered. I will touch briefly on the fact that there would be beneficial by-products of this. I emphasise before I say this that it is very much a secondary consideration to what would be in the best interest of the child and what he or she would consent to and desire. The possibility that the child might decide to maintain contact with the previous family would have implications for and would inform decisions taken by the birth parents about whether they consent to an option. It would inform that. It would also inform decisions that women who have unplanned pregnancies make and the decisions they make subsequently. The possibility of greater access, obviously contingent on the consent and best interest of the child, would inform those decisions. That is a secondary consideration. The interests of the child are first and foremost. It is an issue that has been flagged by a number of legal academics. Some research carried out by the crisis pregnancy agency highlighted the fact that the possibility of such a form of an adoption would inform decisions women take after that time. That is a much more advanced process of reforming adoption law and the processes more generally. At the very least we should be providing such an option. It is not good enough to simply say that the birth family has lost all legal rights and entitlements. It is not so much about the birth parents' rights and entitlements, although that is worthy of consideration; it is about the right of the child. It is not fair to say a child has no right in law to access the family, or grandparents, who raised him or her for perhaps five, ten or 15 years, depending on the circumstances. It is not good enough to say that they have no such right.
Let me offer an additional response. Under the recently published Adoption (Information and Tracing) Bill 2016, the Child and Family Agency will have a role in encouraging and facilitating contact between adoptive children and previous parents or guardians. I refer the Deputy to section 45 of the Bill as published. Recent legislation in this area is endeavouring to provide an equivalence between adopting families and other families. That is important and we cannot just sweep it aside. Under our legislative framework on adoption, parental rights and responsibilities are assigned to adoptive parents. Where voluntary contact is not agreeable between the parties, it is desirable that a child receives guidance and support from his or her adoptive parents. Underneath that is the principle that the rights of the child are not absolute in this regard. They are qualified by the rights of the adoptive parents and in this case they act as protective measures and mechanisms for the child. Article 41 of the Constitution recognises and protects the family. The courts have interpreted this constitutional status as extending to an adopting family. If we have a child with an adoptive family, the views need to be ascertained and heard, with the support and guidance of the adoptive family and balanced by the responsibilities and rights of the adoptive family. Not only is that reasonable, it is the way our law already proceeds. It is also a protective mechanism for children. The amendment, while clearly well-intentioned, could lead to unintended consequences. Inserting this entitlement into the legislative framework might give rise to sensitive difficulties of an intractable nature. The area involves a delicate calibration of the rights of the various parties. That is what the legislation is attempting to do. As the Deputy knows well, no right is absolute. As an example for further reflection, if there is an amicable relationship between the adopted child and the different families, there could be contact but if there is dissension there is no framework in the amendment put forward for how it would work. Our concern is for the child. For those various reasons, I will not accept the amendment. No constitutional right is absolute. They are all balanced with other rights and given it is a child in this regard, it is balanced with the adoptive family's rights. I would certainly be happy to consider some of the further issues the Deputy identifies such as open adoption. I will get the Department to take a look at that. In respect of the amendment the Deputy has put forward, because of the reason I have given, I will not accept the amendment.
I welcome the publication of the Adoption (Information and Tracing) Bill 2016. I did not table the amendment I tabled on Committee Stage because the Bill has now been published. I have no doubt that the issues Deputy Ó Laoghaire is raising will be a big part of our discussions when we come to deal with that legislation where we are talking about people who, in many cases, have no information about their birth parents and who are seeking access to birth certificates. There will be issues we want to tease out in that legislation. There are issues around statutory declarations which we will come to when we come to that legislation. There are two different kinds of children here. There are children who remember their previous family and have formed ties, which are the ones Deputy Ó Laoghaire is concerned about. If a child is adopted almost immediately after birth, there is a totally different scenario. We will be dealing with much of this when we come to the other legislation so I will contribute at greater length at that stage.
I recognise that point. In some cases, the Adoption (Information and Tracing) Bill 2016 will deal with those circumstances. As Deputy O'Sullivan noted, there are children who will be perfectly aware of their past and the family which previously raised them and who will have a desire to access them. I recognise that no rights are absolute under the Constitution. If the Minister sees fit, I would be more than happy to accept a regulatory framework or a provision for regulations to underline and qualify an important statutory right.
The point being made was that the child does not have an unqualified right. As things stand, the child does not have any statutory right. It is entirely subject upon agreement between the adoptive parents and the previous parents of the child.
The legislation is good and it speaks to the rights of the child to be heard. However, in this instance the child has no agency. The child has no right to access where his adoptive parents are unwilling to co-operate. Of course there will be circumstances in which there might well be dissension, but that does not necessarily mean the child should be deprived of the right to see the family. The child may well have happy memories of the family or may well have close connections.
It is not good enough to fail to provide any statutory right whatsoever. I am more than willing to consider regulations to underline or qualify that, but I believe such a statutory right is important.
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