Brian Lenihan Jnr (Dublin West, Fianna Fail)

We will explore that issue further on Committee Stage, but it is five continuous years. Senator Minihan wanted to divine my thinking on the issue. I am trying to outline my thinking and to show how we arrived at the five-year period. I am open to suggestion on it, but do not see a need to increase it to six years. Senator Henry seemed to suggest that some circumstances arise where a small break in continuity should be disregarded for continuity purposes and we could examine that on Committee Stage so that a person who was substantially in continuous care would not be discriminated against. I am not open to pushing the period back below four years. There must be a definite bond between the parent and the child before legislation of this nature can come into operation.

Senator Browne raised the issue of the number of grandparents, relatives and extended family members now caring for children, not all of whom are in the foster care system. He is quite right on that and the figures I gave relate to the numbers in the foster care system. The reason for my lower figures is that children are only brought into care by the Health Service Executive if they are in need of care and protection. It is not necessarily the case that a child being cared for by a relative is in need of care and protection.

The typical circumstances with which we are all familiar occur where both parents die and the child is reared by another member of the family. That child does not, as such, require care and protection and, therefore, has not come to the attention of the HSE for the purposes of the foster care system. However, Senator Browne made a legitimate point in that regard. Those people also need special supports. The report of the working group on foster care looked at this issue, but was emphatic that only children brought into care should come under the Child Care Act and the fostering system. Outside that, it should be for the Department of Social and Family Affairs to devise appropriate income support arrangements for those circumstances where a child is outside the immediate family setting and being cared for by members of the extended family.

Senator Browne also raised the topical issue of the costs of adoption. When the original Adoption Act was enacted in 1952, the view was taken that the Constitution precluded the adoption of a child of a marriage. In 1998 the Oireachtas enacted legislation which permitted the adoption of a child of a marriage in very limited circumstances. We may well have to revisit this issue on constitutional terms because I am not satisfied we have adequate powers to deal with it.

The 1998 legislation has been in operation a number of years and requires an application to be made to the High Court for the adoption of a child in the position of long-term foster care. The Health Service Executive pays the costs of the application to the High Court, but those costs can be as high as €150,000. The process is a full High Court application, in which the proofs which must be satisfied in order to come within the scope of the 1998 Act, are the proofs of parental failure, abandonment and all the related constitutional terms. These carry a heavy burden of proof.

While it is true that the Health Service Executive discharges the costs of foster parents who wish to adopt their child in long-term foster care, and a number of applications have been successfully made, it remains an expensive procedure. That is the reason, as I mentioned in my opening remarks, that in the context of the adoption legislation which I hope to publish in a matter of months, I address the question of the adoption of foster children again and propose that when the child reaches the age of 18, he or she can be adopted by the foster parents. This is important and necessary reform because the number of children in long-term foster care is constantly growing.

Senator Glynn touched on this matter also when he referred to the issue of a legacy to a foster child. The Senator is correct in that the foster child is a stranger for the purposes of adoption or inheritance legislation. I understand the legacy would be taxed as if the person were a stranger, but I would be happy to be contradicted by the Minister for Finance.