Rónán Mullen (Independent) | Oireachtas source

I move amendment No. 84:

In page 84, line 24, to delete “subparagraphs” and substitute “subparagraph”.

The principles are all interrelated. The current provision in adoption legislation is such as to give preference to the marital family or widow, widower or single person who is a relation of the child. There is a particular reason this is the current legal position. The presence of widows and widowers in the first category is based on a certain understanding of marriage that underlay the legislation in that the widow or widower came within the institution of marriage for the purposes of understanding the constitutional family and adoption law. It is for this reason that one finds, in the first category of prospective adopters or people who may without qualification apply to adopt under existing legislation, married couples, widows, widowers or single persons who are related to the child who is the proposed subject of the adoption order. However, the law provides that in particular circumstances a single person may adopt. It is worth remembering that this provision was included when Dr. O'Hanlon was the relevant Minister and that part of the background to extending the right to apply to adopt was the phenomenon of the Romanian orphanages and single people who, in some cases, on having travelled abroad to do some very laudable and creditable work in such orphanages wanted to apply to adopt. The law was enlarged to meet that aspiration by providing that such persons could apply to adopt as single persons. The existing circumstances best represent the solicitude to vindicate the child's best interests, which is to say that, all things being equal, it is better that an application to adopt be made by a married couple, although there may be exceptions where a single person related to the child, or a widow or widower, can apply. There may be other particular circumstances where the law contemplates single persons not related to the child might be eligible to adopt.

It seems that what is in law is a good model for framing law on children's best interests, while at the same time recognising that life is complicated and that different circumstances require different responses and solutions. Existing adoption law has a general category under which one may automatically apply to adopt and a second in which there are particular circumstances that justify the application to adopt. We are talking about establishing eligibility. There is, of course, a set of additional hurdles to be crossed when determining suitability to adopt and that is where the relevant officials and experts will do all that is necessary to ensure it is in the child's best interests that he or she be adopted by a certain individual or couple.

The Bill has a one-size-fits-all policy or perhaps, as I put it earlier, an all-sizes-fit-one policy. This is to say the law seems to be embarrassed about making distinctions. It is caught by the Minister's repeated desire in these debates to avoid any hierarchy of families. However, if we are to put children's best interests front and centre, we must be alert to the fact that, all being equal, certain circumstances are more likely to secure children's best interests than others and that it is better that a child have a father and a mother. In addition, it is better to have this principle regarded as an essential value to be considered by all those whose job it is to secure a child's best interests in the case of adoption. We all know that there are cases in life where the two members of a same-sex couple are parenting the biological child or one or the other. We all know that in these circumstances the child's best interests lie in all of these relationships being respected and the child's needs being vindicated. This legalisation, particularly its provisions on guardianship, seeks to secure the child's best interests in these circumstances. However, the question of what ought to be in the mind of the adoption authorities when figuring out where a child's best interests lie in making adoption decisions remains.

I was struck by an exchange on "Morning Ireland" in late January concerning the Minister but in which she did not take part. Cathal Mac Coille of RTE was interviewing Dr. Geoffrey Shannon who was asked whether a parent putting a child up for adoption could elect to or signal a preference to have the child placed with a father and a mother. I am paraphrasing and obviously working from memory. Dr. Shannon was not in a position to say if the law would recognise such a right. If I recall correctly, he said all of these matters would be determined having regard to a child's best interests. All that is rather circular because it begs the question as to what constitutes a child's best interests and who determines them. What constitutes a child's best interests will obviously vary according to circumstances, but we are back to the core question, namely, whether, all being equal, it should be regarded as a fundamental good where an adoption decision must be made that the child have a father and a mother in his or her life unless there are compelling reasons to the contrary. The Minister knows my position is that it is such a fundamental good that ought to be considered. The compelling reason that might dictate otherwise is along the lines I described. It concerns where one of the biological parents has custody of the child and is in a same-sex relationship, perhaps after the break-up of a previous relationship. However, it is difficult to conceive of many circumstances in which it could truly be said a child's best interests somehow exclude the necessity of seeking for him or her the experience of a father and a mother in his or her life. There has been a considerable amount of public debate on the proposed referendum but also on this legislation. People find very difficult to understand why there is this studied neutrality on the part of Government and senior policy makers about whether a child deserves to have a father and a mother. I have put it in the negative in the sense that while there are situations in life where a child cannot be brought up by their own father and mother or where it is not possible to provide that the child has a father and mother experience, it should never come about as a result of a decision or of a policy of the State ort as a result of a particular decision of adults backed up by the State. Those are the premises that have underlined what I have had to say about donor assisted human reproduction but they also underline my criticism of the lack of a stated preference. In the context of adoption, a child will have a father and a mother and adoption authorities rightly have to undergo many requirements, where everything is looked into from parents' income to the quality of their relationship. Some prospective adopters have found those questions intrusive but they are necessary because they are designed to establish whether the child's best interests can be secured in those circumstances. In this context it seems bizarre that something as fundamental as the aspiration that a child would have the complementary experience of a father and a mother is not stated upfront in the legislation in the way it has always been by implication in the way our adoption law has been written up to now.

What we have here is a certain trumping by ideology over what many people have always understood to be common sense. There is a great compassion, realism and pragmatism in Irish people and they know that parents do their best, often heroically, in all sorts of situations. Most people in Ireland have always wanted to support that and our instincts about that have informed the collective horror at the failures of the past in regard to the institutional care of children in particular, but that same general sense that children ought to come first in our society is at work in some of the criticisms I have heard and that have been made about the Bill.

These amendments seek to restore not an absolutist position but a social preference and specifically in the making of an adoption order, that in order for the person to consent to the making of an adoption order the birth mother, in particular, would know when consenting that it is not proposed to place the child either with a married couple or with an individual who was related to the child or a widow or widower, in other words the older automatic category. It is not important or central to the amendment I have proposed whether they would know that it was proposed to place a child either with civil partners or with a cohabiting couple, that is not the point. The point is whether the person placing the adoption has the right to secure, by making it conditional on their consent, that the child would be placed in time honoured fashion with a father and a mother.

The case has been made by some that one can already do this in certain areas of the law. For example, the law provides in certain cases that parents placing a child for adoption may object if the religion of the proposed adoptive parents is not the same as their own and that probably recognises the social sensitivity around different people's faith commitments and so forth. Surely, even more important would be the basic aspiration that a parent might have that their child would be placed with a father and a mother. I think that decision should be left to those parents. That is a relevant issue and one that goes to their consent. It should not be regarded as something that somehow breaches some kind of equality principle if they were left to make that consent. There is a higher value here which has to do with the right of a child to be brought up by a father and a mother unless the best interests of that child can be shown to be otherwise.