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

I thank Senators for their comments on this amendment. I am satisfied that it is not required and I do not agree with Senator Mullen's analysis. The net point is that failure is established and this is agreed. If we consider the two subsections, we can see that Article 42A.2.1°, concerns parents who fail in their duty whereas Article 42A.2.2° concerns making provision "by law for the adoption of any child where the parents have failed for such a period of time". It is quite clear that the provisions of Article 42A.2.1° apply, but that this goes much further.

If one looks, for example, at the provisions of the Bill I have published, one sees we are talking about parents having failed in their duty towards the child to such an extent that the safety or welfare of the child is likely to be prejudicially affected. We also see that there is no reasonable prospect that the parents will be able to care for the child in a manner that will not prejudicially affect his or her safety or welfare. The Bill also provides that the failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child and that by reason of the failure, the State, as guardian of the common good, shall supply the place of the parents and so on. Therefore, we have an even stricter and stronger definition of failure. This is spelled out clearly.

What we have, as we have in adoption and in law already, is a separate process where a parent is coming in to take the permanent place of a parent or coming in to adopt. This is spelled out in the legislation. I believe this satisfies the concerns. The Bill we have published is absolutely clear on all of those criteria around failure. It is clear the provisions in 42A.2.1° apply, because a child will not be adopted except, obviously, where there has been failure - a strict definition of failure will apply. We are talking here of non-consensual adoption and this will only be in exceptional cases. I expect the application of this provision will be quite rare. Obviously, we want to allow more children who were previously not available for adoption to be adopted, but under very strict criteria, which are spelled out carefully in the legislation.

I also reject the point being made that the courts might allow only a "best interests" question.

Obviously, the rights and duties of parents in Article 41 will come into the equation and I ask the Senator to consider this. Clearly, Article 41 and the constitutional rights of parents will apply in regard to the test that would apply in regard to non-consensual adoption. This is spelt out very strongly in the legislation and it is also spelled out very strongly that the period is three years. Senator Walsh makes the point that three years is not a long period but, in the life of a five year old, three years is a very long time. In any case, we are not just talking about three years as we are talking about 18 months with the adopted parent also.

If one looks at intercountry adoption, the vast majority of Irish parents who have adopted in the last ten years have adopted babies aged, say, three or six months because they want to give the child the best opportunity to bond with them, because that child is available and because there is consent and all of the criteria have been met. If one is talking about older children, to have three years and a further period of 15 months is a long period in the life of a child. Incidentally, the period currently is 12 months for children who are eligible for adoption and the failure has to have been for 12 months in the case of lone parents. We are now talking about marital and non-marital situations and we are suggesting three years as well as the 15-month provision. In the life of a child, that is certainly reasonable. One must also consider the time it takes to go to court and for orders to be made.

Some people would have argued the provision should be for a shorter period but I believe three years, with the 15-month provision, is reasonable and could be considered the most appropriate in terms of the best interests of a child and ensuring there is permanency planning. If there is one failure in our care system, it is the lack of permanency planning, which has been commented on time and again and was noted in the child death report. We have a real problem in terms of children moving in and out of care and moving between foster families. What we want to arrive at is a balance whereby the permanency planning takes into account and gives full respect to the natural parents, Article 41, the rights and duties of parents and the place of the family while, equally, considering the needs of the child. For those reasons, I am not in a position to accept Senator Mullen's amendment.

The Constitution has quite a number of areas where there is a main provision like this and there is then a sub-article outlined in the way I have outlined the sub-article in this regard. I consider that the formula is well established in the Constitution and also that the meaning is clear. In addition, there is very strong legislation accompanying this. For all of those reasons, the way we have approached it is satisfactory.