Ivana Bacik (Independent)

I thank Senator Norris for sharing his time. I welcome the Minister of State to the House and join other Senators in commending him on the introduction of this long overdue Bill which provides for a positive overhaul of adoption legislation previously set out in the 1952 Act, as amended. I should declare an interest in that as a practising barrister I have acted in cases concerning adoptions and related areas.

I concur with Senator Fitzgerald on the need for allowing ample time between Second Stage and Committee Stage for the drafting of amendments. This is a lengthy Bill and it would be valuable to have time to review it in detail. It would also be a good idea to have joint committee hearings at which interested groups and parties could make submissions. This was done by the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights in its discussions on the Immigration, Residence and Protection Bill, which was a valuable exercise for all Members of the committee.

I would like to address a number of points wherein I believe the Bill could be strengthened and do so in a spirit of welcome for the Bill and in an effort to be constructive. The first relates to an issue which it was recommended many years ago be legislated for. The Review Committee on Adoption Services, chaired by the late Dr. Joseph Robins, recommended in 1984 that there should be a way of applying for special guardianship of a child, in particular in respect of long-term foster carers. This is a difficult issue, one which could well have been tackled in this Bill. I am interested to hear if the Minister of State will contemplate amending the Bill to address this issue given the strength of recommendations in this regard dating back to 1984.

More recently, in January 2005, the Minister's predecessor, Deputy Brian Lenihan, published a report on the consultation process on adoption legislation. I am sure the Minister of State is well aware of it. That report recommended that long-term foster carers who had cared for a child for five years or more be permitted to apply for guardianship of that child. The model for this is contained within the British Adoption and Children Act 2002, which is more comprehensive than the legislation before us in that it addresses issues beyond adoption. Also, it addresses the issue of special guardianship. Section 115 of the British Act allows a court to make a special guardianship order in respect of a child who has lived with foster parents for at least one year prior to the application. The advantage of this is that it gives a child a measure of security beyond placement in foster care while falling short of the severance of ties with the birth parents that adoption tends to entail. This can be a valuable measure. It has been invaluable in Britain in allowing foster parents and children in their care to have some measure of security.

Special guardianship allows the foster parents to take on parental responsibility for the child, including day-to-day decisions in respect of care and upbringing while retaining some rights for the natural parents, including the right to consent or not to the child's placement for adoption. I ask that the Minister of State consider inserting into the Bill a similar provision in respect of special guardianship given the strength of recommendations in this regard which date back some time and the difficult position in which children in foster care may find themselves in terms of security and permanency.

The second issue I wish to raise is one which Senator Norris also raised, namely, eligibility to adopt. An opportunity exists to amend this Bill to be more inclusive. I am disappointed that section 33 of the Bill retains the current restrictions allowing only couples who are married to each other to adopt. Under the current provision only opposite sex couples or single people may adopt, which is anomalous. A single person, in a cohabiting relationship, either same or opposite sex, can adopt as a single person but not as part of a couple. This appears to be anomalous and in breach of the Government's stated policy in favour of civil partnership. Perhaps the Minister of State will clarify whether the civil partnership Bill will be changed, as I believe it should, to provide that couples who enter a civil partnership or are in a presumed cohabitation relationship within the terms of the civil partnership Bill as proposed, would be able to adopt as a couple rather than as individuals. It is anomalous they are currently not allowed to do so.

Interestingly, the citizen's information page provides information for same sex partners. I, and I am sure many others in the House, know there are already in Ireland many families involving same sex parents with one or more children in their household yet the non-biological parent in the same sex relationship has no rights in respect of the child and, more important, the child has no rights in respect of the non-biological parent. We saw powerful testimony on the "Late Late Show" from a grandmother of a child born to same sex parents and who was in that difficult position whereby the non-biological parent had died. The citizen's information section states quite correctly that under current legislation it is not possible for the partner of a same sex relationship who is not the biological parent to apply to become a guardian of the child nor is it possible for same sex partners jointly to adopt a child even if one is the birth parent of a child. In my view, that is anomalous, unjust and discriminatory against children who are living in family households where the parents are of same sex and who wish to have a legal relationship with a non-birth parent. I ask that the Minister of State consider introducing amendments to the legislation to address this discrimination against children of same sex couples. I do not see why this cannot be extended. Prior to the introduction of civil partnership in Britain, a change was made to the law in respect of adoption to allow couples or individuals to adopt children.

I accept that the most important and paramount consideration must be the welfare and best interests of the child. Given this is the case, I do not understand how we can limit eligibility to adopt to married couples or single persons. The best interests of the child may well lie in allowing a cohabiting couple who have been parenting them to adopt them. Another point in terms of eligibility that is a disappointment is section 32 which makes the presumption that parents who adopt be of the same religion as the child. I am not sure why that remains the case. It seems to be a throw-back.

My final point relates to the abandonment of parental rights. The proposed provision in section 54 restates current law on abandonment. It is a difficult test to fulfil. The court may make an order dispensing with consent of parents where the natural parents have failed in their duty to the child and that failure amounts to an abandonment of all parental rights. The Supreme Court emphasised how rigorous that test is in the Western Health Board case in 1995. The difficulty is that it is too high a hurdle and that it can come into conflict with the best interests of the child, which should be the paramount test.

I am glad the Baby A case which Senator Frances Fitzgerald mentioned is addressed in the Bill through section 59 which provides that an adoption order is not invalidated if parents subsequently marry. However, the Bill highlights again the need for us to ensure that in all legislation concerning children, adoption and guardianship, the welfare of the child is a paramount consideration and that no other considerations obstruct us reaching that conclusion.

Senator Fitzgerald referred to the need for the guardian ad litem provision. While the statutory power to appoint a guardian ad litem exists, it needs to be fleshed out. There is a difficulty in the courts, day to day, in terms of responsibilities and duties of guardians ad litem. It would again be useful if the Bill could encompass those measures along with the adoption measures.