Brian Lenihan Jnr (Dublin West, Fianna Fail)

Senator Browne referred to the disincentive of a lack of inheritances in foster cases, but fostering was never envisaged as a complete transfer of rights. Adoption is the total transfer of rights and is required when a child in a long-term fostering arrangement has bonded with the foster parents and has no real connection with his or her natural parent or parents.

We must examine this issue. Constitutionally, we can approach the matter by allowing a child over 18 years of age and who has been in foster care for a specified period to be adopted by simple declaration of the child and the foster parents. The imprescriptible rights of a parent over a child disappear when the child reaches majority, is of full understanding and can give consent. I propose to address the issue in this way in the adoption legislation. I welcome the opportunity to outline my proposal because the Bill cannot be considered in isolation from that reform.

I am trying to provide a spectrum of legal certainty about the future to children brought into our care system, which they do not really have. They are consigned to permanent foster care and without the possibility of enhancement. When this legislation is enacted, the parental position will be strengthened in the spectrum. When the adoption legislation is enacted, the full issue of adoption can be addressed freely in the manner outlined.

Traditionally, common law systems do not permit the adoption of adults. They introduced adoption as a statutory arrangement that tended to be a care option for children under the age of 18 years. In civil law jurisdictions, the adoption of adults has been a recognised feature of the legal landscape and it was this that inspired me to the idea that we should examine that option because it would be a useful and convenient way to address the needs of those children.

Due to the significant increase in the number of long-term fostering arrangements, particularly since the 1991 Act, there will be an increasing cohort of such children. While many are still growing up, inheritance questions will arise. The only way to address the matter is by making adoption easier and less expensive. Adopting a child on an application to the High Court, which is the constitutional procedure accepted by the Supreme Court, is cumbersome and it is not surprising that many foster parents are deterred from making such applications.

Senator Browne raised the question of adoption information. I will examine this matter through the adoption Bill, as a number of its proposals relate to the issue. It is a difficult and sensitive area, but the Adoption Board can and does release original birth certificates to adoptees based on their applications and with the co-operation of the relevant agencies. Only in a small number of such applications are refused. The board contacts the agency and an attempt is made to determine the current circumstances of the mother and to ascertain her opinions on the matter. In 2003, 39 applications were approved, 55 were awaiting further information and three were refused. In 2004, 53 applications were approved, 30 were awaiting reports and four were refused.

The case law laid down by the Supreme Court is that the child has a right to know the identity of his or her natural mother, but the State must respect and vindicate the potentially conflictual right of the natural mother to privacy and confidential. Neither of these rights is considered as absolute by the courts. As a Minister of State, I have tried to create and foster a climate where people realise that disclosure is the better course of action, but some cases can be difficult.

In 2003, I undertook a consultation process and the administrative provisions relating to making contact were drawn up with regard to the views of adopted persons, natural parents, those who adopt, professionals, agencies and international best practice. We set up a national contact preference register on an administrative basis to enable the mother and adopted child to register their names voluntarily to clarify that they are available for contact. The register is maintained by the Adoption Board and does not preclude an adopted person from applying for the release of the birth certificate in any event. In practice, many adoptees can ascertain the identities of their parents through a search in the register of births, deaths and marriages because it is common for the person's Christian and original names to correspond. Searches can narrow the range of possible candidates and are commonly carried out by those seeking to trace their parents.

I am anxious to increase the discussion and publicity of this matter. The contact preference register was advertised by door-to-door household leaflet drops one or two years ago and there has been some response. It is our intention to place the register on a statutory basis and, in the context of the legislation, I would be open to Senators' suggestions regarding contact. It is a difficult issue. The courts have laid down clearly that there are two conflicting interests and the question is one of how much balance should be provided.

In light of the importance of modern medical and genetic science, there must be a presumption in favour of knowing about one's origins. When the 1952 legislation was enacted, the knowledge of ancestors' medical conditions was not considered relevant to one's physical or mental health, but we live in a different world. We can revisit this issue in the context of the adoption Bill.

Senator Tuffy raised the question of persons outside the foster care system. The working group examined the possibility of placing some children in the care of the Health Service Executive to provide the income support for the family in respect of the child. The group was strongly of the view that such a practice would be highly inappropriate because income support should be a matter for the Department of Social and Family Affairs. If children who are taken into care meet the criteria for protection, they are put in the fostering system.

I appreciate that Senator Tuffy and others, including myself, can be put under pressure by people's relatives who see an injustice in the greater support given to foster parents through the payment of the foster care allowance compared to the payment obtained by people outside the foster care system. The foster care payment was introduced because the children in question are difficult and have experienced problems. To take on the task of fostering is to take on the task of looking after not just a child, but a child in need of care and protection. We should not lose sight of this during the debate.

Senator Tuffy outlined a number of ideas relating to guardianship and how the position of the father can be strengthened, but they are matters for the Minister for Justice, Equality and Law Reform. I will not speak for the Minister, but Senator Tuffy made an eloquent case in respect of the birth certificate in that if a father is disclosed on the certificate, he should have some rights without the need to go to court. The Senator was concerned about definitions, but I assure the House that the powers given to parents under this legislation would be the same as those currently enjoyed by the HSE. Instead of the State being the parent, it is delegating parental responsibility to foster parents.

Senator Glynn referred to the rights of unmarried fathers in a similar sense, but he was anxious that unmarried fathers should meet their obligations, which is a major issue. He raised the same issue as the Irish Foster Care Association, namely, how to recruit more foster carers. We are researching the matter. We find it is easier, particularly with the very challenging children, to find a placement outside Dublin and that is a cause of concern to us, but then one also wants to keep closer the link between the child and his or her place of origin and where the child's mother or father lives, and there is a difficult balance to be struck. Senator Glynn also referred to the bequest and inheritance issue which I addressed already.

Senator Henry was anxious to know the figures for long-term and short-term fostering arrangements. Of the 2,869 general foster care placements in 2004, for example, 605 were for less than a year, 1,146 were for between one and five years, and 1,118 were for more than five years. There are placements in foster care where children have special requirements or extra supports, the number of which is small. There were only 25 of those in all in 2004. Of relative foster care in 2004, 294 were for less than a year, 676 were for between one and five years, and 379 were for more than five years. There was a very small number — 38 in all — of pre-adoptive foster placements. That gives Senator Henry a general sense of the figures. Of course with relative foster care, the child is in need of care and protection. It is the case that the HSE social workers have located a relative who will look after the child rather than another person who will take on that responsibility.

Senator Henry made a good point, that the foster carers need social as well as financial supports. It is not enough to simply pay the foster care allowance and say "Well done"; they need support from the social workers. One of the merits of this legislation is that in time it will free up social work time. At present, much social work time is being taken up dealing with children in long-term foster care, as in the Torremolinos example she gave earlier, and that is undesirable. I hope this legislation will enable them to focus on that supportive role which foster parents also need.

Senator Henry raised the question of the appropriate duration of time, as did Senator Minihan. Senator Feeney also welcomed the measure. I outlined to the House my thinking on the measure at any rate. This is about giving a spectrum of rights to the foster care parents. The particular spectrum here is giving the parents more responsibility in bringing up the children after a designated period of time, but we need to complete that spectrum by making the adoption option far more available than it is today and I will be addressing that in the adoption legislation. I thank the Senators for their welcome for the measure.