Barry Andrews (Dún Laoghaire, Fianna Fail)

Adoption was first introduced into Ireland through the enactment of the Adoption Act 1952. Prior to that, there was no statutory adoption process in this State although there were very many children who were brought up in families other than their birth families. In the years between the enactment of the Adoption Act in 1952 and up until 1990, the vast majority of children adopted in Ireland were children who had been placed for adoption by their mothers within the State. During the same period almost 2,000 Irish children were placed for adoption outside Ireland, the vast majority of these children being adopted by Irish American families in the United States.

Today, we have a very different society and it is now a rare event for an Irish child to be placed for adoption outside his or her own family. As a result, many couples have looked to overseas to adopt and there has been a huge growth in intercountry adoption since the early 1990s. This trend was initiated by the Romanian orphanage crisis in the 1990s and has now spread to other countries. It is against this background that this Bill creates the appropriate legislative framework to ensure a well regulated regime of adoption which reflects the changing nature of adoption and the growth in intercountry adoption. The Government's aim in bringing forward this legislation is to support and protect prospective parents and, more importantly, the children for whom adoption services are devised and provided.

The Bill which I am introducing has been designed with four main objectives. First, it brings the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption into Irish statute law. Second, it provides for the making and recognition of intercountry adoptions in accordance with bilateral agreements. Third, it establishes the adoption authority of Ireland. Fourth, it provides for the repeal of the Adoption Acts 1952 to 1998 and for the bringing forward, restating or updating of the provisions of those Acts, as appropriate.

The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption was signed by Ireland in 1996. A core principle of the Hague Convention is that intercountry adoption should be child-centred, that is, in all stages of the process, the child's interests must be paramount. The provisions of the Adoption Bill 2009 will ensure all intercountry adoptions recognised in this country meet the standards of the convention, which is in Schedule 2 of the Bill and which, in accordance with section 9, will be given the force of law in this country.

The Bill also provides for the entering into discussions with states which are not party to the Hague Convention for the purposes of making bilateral agreements regarding the making and recognition of intercountry adoptions. Any such agreement entered into by the Government shall be laid before each House of the Oireachtas. The standards that apply to such adoptions will accord with Hague standards.

As mentioned, the Bill also provides for the establishment of a new adoption authority which will take over the functions of the existing Adoption Board and act as a central authority for the purposes of the Hague Convention. The Adoption Board was established under the Adoption Act 1952 at a time when domestic adoption was being formalised for the first time in this country and when intercountry adoptions into Ireland did not take place. The adoption authority's role will be an expansion of the current role of the Adoption Board, taking on new functions in relation to the Hague Convention and with significantly improved governance and accountability structures.

I acknowledge that adoption is one of those policy areas which has given rise to a disproportionate number of Acts over the years. There have been six amending Acts since the first Adoption Act in 1952. This Bill repeals those Acts and provides for all adoption legislation in this Bill. This will be of great benefit to parents, social workers and anyone with an interest in this complex area of child law. Overall, this Bill provides safeguards for children who are being adopted into new families. It sets out a common standard for adoption procedures both in this State and abroad and will provide greater assurance for children and their families that appropriate procedures have been followed and that the adoption was effected in the best interests of the child.

Part 1 of the Bill comprises sections dealing with interpretation, repeals and revocations etc. Part 2 provides for the Hague Convention on Protection of Children and Co-operation in Intercountry Adoption to have legal effect in this State and for judicial notice to be taken of the explanatory report in relation to the convention prepared by Mr. Gonzalo Parra-Aranguren. Thus, the Hague Convention is being brought into Irish statute law.

Part 3 provides for the placing of a child for adoption and provides for the care of a child pending placement. It also provides that an accredited body — adoption societies will be known as accredited bodies — shall not place a child for adoption unless the child is at least six weeks old. The accredited body must provide the mother placing the child for adoption with a written statement explaining the effect of an adoption order and the consents necessary for the order to be made. A signed statement by the mother of her understanding of the import of the written statement is required.

The Bill also sets out the right of the father of the child to give notice to the authority of his wish to be consulted in relation to the placement of the child for adoption, or for an application for an adoption order to be made in respect of the child, and outlines the pre-placement consultation procedure required. Where the accredited body is unable to consult the father, or where the authority is satisfied it is inappropriate for the accredited body to contact the father, the authority may, with the approval of the High Court, authorise the accredited body to place the child for adoption. The requirement for High Court approval before proceeding with an adoption where the father has not been consulted is a new safeguard provided in the Bill and is a further recognition of the father's rights in the adoption process.

In circumstances where the mother refuses to or cannot identify the father, this Part provides that the mother be counselled and that she be advised of the possibility that the adoption may be delayed and of the father contesting the adoption, and that the absence of knowledge of the medical, genetic and social background of the father may be detrimental to the welfare of the child. Following such counselling, the authority may, with the approval of the High Court, authorise the accredited body to place the child for adoption.

Part 4 deals with the authority's power to make adoption orders and provides that in relation to adoption, the welfare of the child is the first and paramount consideration. Adoption orders may not be made in respect of a child unless the child resides in the State, is not more than seven years of age and is an orphan or born of parents not married to each other. However, a child of married parents may be adopted in exceptional circumstances where the parents have abandoned the child. There are also exceptions to the seven-year age limit. If the child is over seven years of age, due consideration is to be given to his or her wishes, having regard to the child's age and understanding. This Part also deals with the required consultation with the child's father and with the consent requirements from the mother or guardian before an adoption order is made and it sets out the circumstances in which the High Court may authorise the making of an adoption order in the absence of such consent. There is also a requirement to provide relevant information about consenting to adoption and the requirements for consent to be valid.

The categories of people who may apply for an adoption order or for the recognition of an intercountry adoption include a parent of the child, a married couple living together, or a person who satisfies the authority that the adoption is in the best interest of the child. It is provided that the authority will not make an adoption order or recognise an intercountry adoption unless it is satisfied with the suitability of the applicants. Applicants are required to be of good moral character, in good health, of an age to have a reasonable expectation of being capable, throughout the child's childhood, of fulfilling their parental duties, with the capacity to promote the development and well-being of the child and to have adequate financial means to support the child.

Part 4 also provides that a person or married couple may apply to the HSE for an assessment of eligibility and suitability to adopt and sets out the procedure to be followed by the HSE following receipt of such an application. This Part also sets out the functions of adoption committees established by the HSE and provides for the preparation and delivery by an adoption committee of a recommendation to the authority to issue or not to issue, as the case may be, a declaration of eligibility and suitability. It also provides for the issuing of, or the refusal by the authority to issue, a declaration to applicants. The expiration and the withdrawal of declarations of eligibility and suitability is also provided for in this Part.

Part 5 lists the persons who are entitled to be heard by the authority on application for an adoption order and the circumstances in which an interim order for custody of a child may be made by the authority are set out. The authority's power to summon witnesses, acquire documents and the taking of evidence on oath or on affidavit is set out. It is also provided that the authority may refer any question of law arising from an application for an adoption order or from an application for recognition of an intercountry adoption to the High Court for determination. Any question of public policy arising with respect to entries in the register of intercountry adoptions shall be referred to the High Court for determination.

Part 6 provides that an adoption order, an intercountry adoption effected outside the State or an entry in the register of intercountry adoptions that relates to an intercountry adoption shall not be declared invalid if such a declaration is not in the child's best interest. It is also provided that if the adoption order is declared invalid, the court may, on application, make a custody order in the same proceedings, subject to section 3 of the Guardianship of Infants Act 1964.

Part 7 provides that the High Court may authorise the authority to grant an adoption order in favour of applicants if it is satisfied the child's parents, whether married or not, have for physical or moral reasons failed in their duty towards the child for a continuous period of not less than 12 months, that such failure is likely to continue without interruption until the child is 18 years old, and where that failure constitutes an abandonment of their parental duties. Legal costs incurred by the parents and the applicants for an adoption order under this provision shall be paid by the Health Service Executive. Part 7 mirrors the provisions of the Adoption Act 1988 which will be repealed on the enactment of this Bill.

Part 8 covers the recognition in this State of adoptions effected in another state, either in accordance with the Hague Convention or under a bilateral agreement between this State and the state of origin of the child. The competent authority of the state of origin must certify that the adoption has been made in accordance with the Hague Convention or the bilateral agreement, as the case may be. The adoption must also be in accordance with the public policy of this State. Provision is also made for the deeming as valid of foreign adoptions, as defined in the Adoption Act 1991, effected before and after the establishment day, unless such deeming would be contrary to public policy. This Part also provides that if the pre-existing legal parent-child relationships are not terminated by virtue of the adoption order, the birth parents are not freed of all their parental rights or duties.

Part 9 of the Bill, which I will refer to later, deals with converting such adoptions into adoptions which do have that effect. It also provides that the validity of an adoption order is not affected by the subsequent marriage of the child's birth parents to each other. However, if the child has been adopted by one of his or her birth parents and their subsequent marriage legitimates the child in accordance with the Legitimacy Act 1931, the adoption order ceases to have effect.

If an adopted person or an adopter dies intestate, his or her property shall devolve as if the adopted person were the child of the adopter. A transitional provision allows for adoption proceedings commenced under the Adoption Act 1991 to proceed as if commenced under this Act. Thus, it will not be necessary for applicants to have to re-apply under the new Act as they can continue their applications under the provisions of the new Act.

Part 9 of the Bill deals with intercountry adoption and the role of the authority as the central authority for the purposes of this Act, the Hague Convention and bilateral agreements. This Part provides for the adoption authority to recognise certain adoptions effected in another state and for procedural arrangements in recognising such adoptions in this State, and for the conversion of adoptions from ones which do not have the effect of terminating existing legal parent-child relationships into adoptions which have that effect. Provision is also made for arrangements to be entered into by the authority, in exceptional cases, to allow for the adoption of a specific child who is a relative of the prospective adopters from a state of origin that is not party to the Hague Convention or to a bilateral agreement. The standards of such an adoption must accord with those of the Hague Convention. The Bill provides that the HSE must be informed, within three months, of a child's first entry into the State following his or her adoption or of a child's entry into the State for the purpose of being adopted in the State.

Part 10 of the Bill provides for the adopted children register and the register of intercountry adoptions. An t-Ard Chláraitheoir is required to maintain a register of adoption orders made by the authority and an index to that register shall be available for persons to search. Certified copies of entries are available from the register for a fee. A separate index is also to be kept by an t-Ard Chláraitheoir to make traceable the connection between each entry in the adopted children register and the register of births. This index will not be available for public inspection and information will only be released following a court order to that effect.

Provision is made for the register of foreign adoptions, previously maintained by the Adoption Board, to be continued by the adoption authority and to be known as the register of intercountry adoptions. There is a requirement for the adopters to ensure that, not later than three months after a child first enters the State after his or her adoption by parents habitually resident in the State, an application is made to the adoption authority to have the adoption entered in the register of intercountry adoptions.

Part 11 deals with proof and registration of adoptions effected outside the State and provides that where an adoption is effected outside the State, unless the contrary is shown, it shall be deemed to have been effected in accordance with the law of that state. It also provides that regulations may be made by the Minister regarding the proof of intercountry adoptions effected outside the State and the regulations may make different provision for different states and different classes of adoptions.

Part 12 provides for the establishment of the adoption authority. The authority's functions will include performing functions previously carried out by Adoption Board; performing as a central authority under the Hague Convention; providing general advice to the Minister about adoption; undertaking or assisting in research; compiling statistical information; maintaining the register of accredited bodies and maintaining the register of intercountry adoptions. This Part provides that membership of the authority consists of seven members, the chairperson, deputy chairperson and five ordinary members appointed by the Minister. The chairperson and deputy chairperson are required to be a judge or to have been a judge in the preceding two years before appointment or to be a solicitor or barrister of ten years standing. The five ordinary members must include two social workers, a medical practitioner, a barrister or solicitor and a person trained in psychology. The authority is required to hold at least 12 meetings each year.

Part 12 also provides for the appointment of a chief executive officer and for the establishment of committees to provide assistance and advice to the authority. Governance arrangements for the authority, including codes of conduct, annual reports, business plans and financial reports are provided for in this Part. This Part also sets out the accountability requirements for the adoption authority to the Minister and Oireachtas committees and the standards of integrity to be maintained by members of the authority and its employees. Arrangements for the recruitment of employees to the authority are also provided in this Part.

Part 13 provides for the adoption societies register to be continued and to be known as the register of accredited bodies. It provides for the registration, renewal, cancellation or amendment of registration, and for appeals to the District Court against a decision by the authority in this regard. This Part sets out the arrangements for such bodies which are required to furnish the adoption authority with information in regard to their constitution, membership, employees, organisation and activities and permits the authority to inspect and make copies of all their books and documents relating to adoption.

The making of arrangements for the adoption of a child is an activity restricted to an accredited body or the Health Service Executive. However, a parent may place a child with a relative or the spouse of a relative for the purpose of having the child adopted by that person. The authority is responsible for the issuing of certificates of registration to an accredited body specifying the activities in respect of which that body is registered.

Part 14 covers the dissolution of An Bord Uchtála and the transfer of employees, property and liabilities to the authority. This Part deals with the arrangements for the transfer of employees from the Department of Health and Children and the Department of Justice, Equality and Law Reform to the adoption authority. It also deals with the transfer of property and liabilities to the authority and includes provisions dealing with pending adoption proceedings and other legal proceedings and the transfer of all rights and liabilities by virtue of any contract. It also deals with the transfer of records.

Part 15 provides for offences under this Act, including the prohibiting of certain advertisements about adoption, and the receiving, making or giving of payments and rewards in consideration of the adoption of a child. The making of false or misleading statements to the authority or to an accredited body is also an offence. Accredited bodies may receive reasonable costs and expenses and also donations with the prior approval of the authority. The penalties for offences under the Act are set out in this Part.

Part 16 provides for the Minister to make regulations. This Part covers various regulation making provisions whereby the Minister for Health and Children may make regulations as are considered appropriate in respect of adoption, including regulating the activities of accredited bodies. Part 17 provides for consequential amendments to other Acts and for transitional arrangements in respect of applications made under the Adoption Acts.

There are four Schedules to the Bill. Schedule 1 provides that the Adoption Act 1952 and its amending Acts are repealed and that certain statutory instruments are revoked. Schedule 2 is the text of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoptions. Schedule 3 provides for particulars of adoptions to be entered in the adopted children register. Schedule 4 provides for an amendment to the Second Schedule of the Civil Registration Act 2004.

As already mentioned, the Bill will give force of law to the Hague Convention on the protection of children and intercountry adoption 1993. A core principle of the Hague Convention is that intercountry adoption should be child centred, that is, in all stages of the process the child's interests must be paramount. The convention puts in place the equivalent of a contract between states to regulate the standards that will apply in each jurisdiction. This provides a safeguard for children being adopted into Ireland regarding the standards that are being applied in their country of origin, over which we have no jurisdiction.

As a country which has a growing rate of intercountry adoption, it is especially important for us to have confidence in all aspects of the intercountry adoption process. I firmly believe that this legislation, when enacted, will provide an assurance for children, their families and the State that standards in accordance with the Hague Convention have been followed in all adoptions and that adoptions are effected in the best interests of the child. To conclude, it is very important to have a rigorous adoption system in place in which we all can have confidence. The Adoption Bill 2009 ensures that the welfare of the child is given first and paramount consideration and it promotes the best international ethical and legal standards throughout the adoption process. I commend the Bill to the House and look forward to hearing the views of Senators.