Ivana Bacik (Independent)

I move amendment No. 42:

In page 41, subsection (2)(b)(i)(I), line 26, to delete "moral" and substitute "other".

This is the critical section in Part 7 which relates to adoption orders in exceptional cases and the role of the High Court. Section 54 provides for the orders of the High Court authorising the adoption authority to make adoption orders for children whose parents fail in their duty towards them. This is a tricky area of law — I declare my interest as I practised a little in this area — and, of course, this must also be read in light of the Constitution.

To provide some context for the amendment I am proposing, the amendment seeks to change slightly the way in which such an order will be made by the High Court. The High Court can make an order even where there is no consent from the natural parents. It is clearly an exceptional type of order to dispense with the consent of a person whose consent would normally be necessary to the making of the adoption order.

Subsection (2) is the main subsection which provides for this. It states that where an application is made in the High Court, it may authorise the authority to make an adoption order and to dispense with the consent, and a range of tests are set out. The first of those is where the High Court is satisfied it would be in the best interests of the child to grant the authorisation, which is absolutely right and proper. I seek to change paragraph (b) where a number of matters must be shown to the satisfaction of the High Court. These provisions are set out under subsection (2)(b)(i) which restates the case law that has established the test.

It is an extremely difficult test for the High Court to fulfil and a very high hurdle to jump to waive the need for consent. Effectively, the High Court must be satisfied that the parents of the child for at least 12 months before the making of the application have failed in their duty towards the child "for physical or moral reasons". I propose to remove the words "or moral reasons" and replace them with the words "or other reasons" because this is broader. Given the definition of "welfare" of the child in the Guardianship of Infants Act and our understanding of welfare, "physical or moral" is simply too narrow. I would prefer to see something broader, such as "physical or other reasons".

The more substantive change I am proposing relates to subsection (2)(b)(i)(III). Currently, subsection (2)(b)(i)(III) provides that the failure of the parents in their duty towards the child — which must, of course, continue until the child attains the age of 18 — must constitute an abandonment on the part of the parents of all parental rights, whether they are under the Constitution or otherwise, with respect to the child. This is an extremely high test and one that has been set out by the courts. I know the Minister of State's response will be that it is a constitutional requirement that the parents must have abandoned their parental rights for the High Court to be able to grant an order without the consent of parents in such circumstances. However, my answer is a proposal to delete this subsection. While I accept this is dealt with in Supreme Court judgments, I do not believe we need to restate it here because it is already the law. I hope this is a law that will change if we amend the Constitution because it is unnecessary and duplicates the test already in existence to reproduce it in this provision.

I say this because the courts have stated the abandonment must be total in character and this abandonment test is very difficult to fulfil. It is right and proper that it should be a difficult test to fulfil where it is possible for a parent to consent and he or she has not done so. The real difficulty that has arisen is where there is a child of parents who are married to each other and where the child should be placed for adoption.

At present it is not possible for two parents married to each other to waive their parental rights by consenting to an adoption. The Minister of State may correct me if I am wrong but this is my understanding of the law, which will remain and is restated here. Under current legislation the only way in which a child of marital parents may be adopted is where the court is satisfied that the parents have abandoned all parental rights and have failed totally in their duty to the child. That is extreme and implies the most appalling judgment on the character of the parents. However, if they are married there is no other way for them to consent to adoption because of the constitutional status of the marital family. Geoffrey Shannon and others have long pointed out the difficulties with this.

Mr. Shannon wrote that it is profoundly ironic that it is easier to vindicate the interests of a child born outside marriage by means of adoption, in which that child becomes part of a caring stable family unit, than it is to secure the same rights for a child within wedlock. He said this arguably places the child of parents married to each other at a significant disadvantage relative to his or her non-marital counterpart because the only way a child born within marriage may be adopted is for this mechanism to be followed, namely, that the parents be proven to have failed totally and to have abandoned their parental duties.

I propose another solution, namely, to amend this provision and remove the need to prove abandonment. It is already contained in our constitutional jurisprudence and we do not need to restate it here. It is unhelpful because I anticipate we may be about to amend the Constitution, making the best interests of the child the paramount consideration, including in cases where the child is born within marriage. That would then change the situation.

There is another potential mechanism for fulfilling the needs of the child. It is clear from section 54(2)(b)(ii), that this proposal is intended to provide for a situation where a child is in the custody of and has a home with the applicants or prospective adopters and has been there for a period of not less than 12 months preceding that time, and that the child's adoption is an appropriate means by which to supply the place of the parents. This envisages a situation where a child is in long-term care of somebody other than his or her natural parents but whose natural parents are unable to consent either because they are married to each other and therefore legally cannot consent or they refuse to consent for another reason. In that situation, if the people who are caring for the child and who have done so for at least a year seek to adopt they must prove to the satisfaction of the High Court that there has been an abandonment by the natural parents of their parental rights.

A better approach would be to provide for special guardianship. The likelihood is that those who will make application under this section will be either relatives or recognised foster carers of the child. In such a situation, English law provides a mechanism for long-term foster parents to apply for special guardianship under section 115 of the 2002 Act. They take on parental responsibility for the child, including all responsibility for day to day decisions about the child's care and upbringing, but the natural parents retain some limited rights, including the right to consent or not to the child's placement for adoption. It is a more appropriate procedure. It does not require the total relinquishing of all parental rights and in particular it does not require that the natural parents be shown to have failed or abandoned their child or children. That is very difficult for anyone to face. It is difficult for the prospective adopters to be placed in a position of having to show this and for the natural parents to be subject to this requirement.

I spoke about this matter during the earlier debate on different forms of adoption. In the past there have been recommendations for special guardianship mechanisms, particularly to facilitate long-term foster carers or persons who are caring for children born within marriage who cannot be adopted under our present law. In January 2005, the then Minister of State with responsibility for children, Deputy Brian Lenihan, published a report on the consultation process on adoption legislation, recommending that those foster carers who had cared for a child for five years or more should be able to apply for guardianship. Over 20 years ago, in 1984, the report of the review committee on adoption services made a similar recommendation. The provision has been recommended for a long time.

I understand that section 54 seeks to give the child security within the home of the persons who have been caring for him or her. We must never forget it is for the child's sake that all this is important. However, for that to be done, and where the natural parents do not consent or where they cannot consent because they are married to each other, the section requires that the High Court be shown that the parents have abandoned all parental rights. That is very difficult for everybody to have to do. Although a test case was laid down by the Supreme Court, I do not believe we should replicate this in adoption legislation that seeks to improve the adoption system. I wish to hear the Minister of State state whether he accepts the principle of the argument, or, if he cannot accept this amendment, whether he will accept there might be an alternative solution that would provide for some form of special guardianship.