Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

Article 42A.2.2° provides for making lawful the adoption of any child where the parents have failed for a period, as may be prescribed by law, in their duty towards the child or where the best interests of the child so require. Members will be aware that I have published the outline of the adoption legislation that will accompany the referendum. I did that because people would want to know that if they supported the referendum, what precisely we intend to do. When I came into office I said that I had to develop a policy and the legislation. Obviously adoption is a complex area and any changes have many implications for the current legislation. We have had to address those in the new Bill which I have published.

The reference "where the best interests of the child so require" restates the statutory requirement under the Adoption Act 2010, the difference being that under the proposed new amendment, "best interest" is given a constitutional recognition which will give a greater weight to the principle when counterbalanced against other rights when the court is considering adoption under this provision. The provision should facilitate the enabling of legislation which will allow for the adoption of children in certain well defined circumstances, that is, where there has been a failure by the parents in their duty towards the child in a prescribed period. That is spelt out in the legislation. It will permit adoption without the necessity of proving that the failure by the parents amounts to total abandonment of rights that is likely to last until the child reaches the age of 18 years. We have the situation where many 17 and a half year olds who have been living with foster families are going into court and requesting that adoption certificate because they have been with the family for such a long period but, rightly or wrongly, the Health Service Executive or those working with it did not consider they would be able to rise above the test of abandonment right up to the age of 18 years. It addresses that anomaly and gives children in that position the opportunity to be adopted at an earlier stage. Nevertheless, it is still an onerous process, involving three years in care and 18 months in the care of the family who want to adopt.

If the referendum is passed, a new adoption law will place an onus on the parents who have not had their child in their care for three consecutive years to satisfy the court as to there being a reasonable prospect of them resuming care of their child. It will provide for a shift in focus. One of the reasons is the failure of the parents to focus on the impact on the child and his or her best interests. I emphasise the constitutional rights of the parents have to be respected. Where parents say to the social workers, their child and the foster family that they want involvement, everything will be done to facilitate that involvement. Effectively, there has been a failure where parents are not involved, are not helping the child and where there is almost no contact.

I am not absolutely clear on what Senator Mullen hopes to achieve by adding the words "in particular". It does not add anything to the overall meaning and legal effect of the provision. There is a possibility that the Senator is linking Article 42A.2.2° with the preceding Article 42A.2.1° in a way that is not intended which concerns child protection and State intervention. The effect of accepting the amendment would be to create an impression that adoption is the natural next step to a child being taken into care, which is not correct and does not reflect well-established public policy in this area. Many children come into care for short periods and return home. There is a variety of ways in which children and families use the care system. For those reasons it would not be helpful to accept the amendment. However, the Senator makes the point that Article 42A.2.1° and Article 42A.2.2° are linked and that is the reason they are in the same section. Failure is a requirement in the case of adoption of children by foster parents or others where parents have not consented. That is the reason the two elements are contained within the one sub-article. It is not the policy intention where a child is in long-term care that adoption should automatically follow. There will be many situations where a child will remain in long-term foster care because although in contact with the family, the family is unable to care for the child. As Senator Power said, the views of the child may be given due weight, an older child may not want to be adopted. A court will not pursue an adoption if a child says he or she does not want to be adopted or it is not in the best interests of the child to be adopted. Adoption will continue to be an alternative, in particular circumstances, after an assessment has been made, after the case has gone to the adoption authority and after the case has gone to the High Court. It is still an onerous process. I have published all the processes that take place for adoptions and which will take place for those children whom we hope will be available for adoption, given the new provisions. An authorisation from the High Court is required before the adoption authority can made an order in such circumstances. That requirement arises from the provisions of Article 41 on the family and the requirement to recognise the rights and duties of parents.

Senator Walsh raised the issue of duty. The word "duty" was in the previous Article 42.5 and has been used consistently and in the other Article in regard to education.

The requirement to balance the rights of the family with the rights of the child, which under the proposed amendment will be given express recognition, is also reflected in the draft general scheme of the adoption Bill. As I have said, the criteria set out include that the child has been in care for three years and there is no reasonable prospect of the parents resuming care of their child. The test provided not only requires failure but also that the failure is effectively an abandonment of the parental rights established in Article 41. The test goes beyond the one established in Article 42A.2.

I want to be crystal clear about adoption. Fostering is not a permanent arrangement, though sometimes a child may require foster care for many years or until he or she becomes an adult. Increasingly, we are seeing children continuing in foster care beyond 18 years by being in after-care and staying with their foster families. Long-term and permanent fostering does not give the same legal security as adoption for either the child or the foster family but it may be appropriate. I do not want for one moment to compare fostering with adoption because both options have their place. There are many families who want to adopt and are interested in intercountry adoption. The provision will now say that there will be children in Ireland who for legal reasons before now were ineligible for adoption and who could now, potentially, be eligible for adoption. It is reasonable to assume that some of the children - and we have over 2,000 children in long-term care over five years - would be eligible for adoption. There would have to be a clear assessment of the child's situation and that of his or her natural parents. Adoption could be appropriate for some of those children depending on the child's relationship. Some children do not have any contact with their natural families. It will depend on the child's relationship with his or her birth parents.

The amendment, and in the proposed legislation that flows thereof, it is not intended to provide that a child who has contact with and a strong beneficial relationship with his or her birth parents and wider family may be adopted unless the child's parents have voluntarily placed him or her for adoption and consented to the adoption order being made. For that reason I ask that members consider linking the formula proposed with adoption as an automatic follow-on from the "supply of the place of the parents" in the context of care and that it is not the policy's intent. It would not be desirable. In truth, I do not believe that was the intent of the Senator's proposed amendment but I am advised that it is one of its potential effects. Therefore, I will not accept his amendment for those reasons.