Katherine Zappone (Dublin South West, Independent) | Oireachtas source

I am pleased to before the House today for this Second Stage debate on the Adoption (Amendment) Bill 2016. I look forward to engaging in debate with Senators as the Bill proceeds through the various Stages.

As Senators will be aware, the Bill provides for a number of significant changes to adoption legislation arising from the children's referendum held in 2012 and given effect to in legislation in 2015. The children's reference inserted Article 42A into the Constitution, providing that children have constitutional rights and protections and that the State must vindicate those rights. The primary purpose of this Bill is to give legislative effect to Article 42A specifically with regard to adoption procedures and provides that all children are now eligible for adoption regardless of the marital status of their parents. The Bill also provides for ensuring that the best of interests of the child and the views of the child are at the heart of the adoption proceedings before the authority or the courts. The Bill amends the Adoption Act 2010 and repeals Part 11 of the Children and Family Relationships Act 2015. The provisions in Part 11 of the 2015 Act, allowing for cohabiting couples and civil partners to adopt, have been brought forward in the Bill to ensure they are encompassed in primary adoption legislation.

The Bill also contains new provisions that provide for step-parent adoption without the requirement for the other parent to adopt his or her own child. The legislation will introduce many significant substantive changes to adoption, as well as technical changes.

As Senators will be aware, adoption is, first and foremost, a child welfare measure that encompasses their well-being, happiness and health. Often when one hears the word "welfare", it is associated with adults in difficult circumstances, etc. In this case, adoption is a child well-being measure with the aim of providing a new family and home for a child who cannot be cared for by his or her parents. Adoption is a hugely significant event in the life of a child, one that has life-long implications for him or her and his or her family. An adoption order ends the legal link - there are others - between the child and his or her parents or guardians and transfers parental rights, responsibilities and duties to the adoptive parents. This process is aimed at ensuring the child is provided with a secure and permanent family unit. Given the life-changing legal implications of adoption, it is essential that the best interests of the child remain central to the adoption process. The amendments I brought forward in the Dáil will further strengthen procedures in this regard.

I will refer to the proposed amendment brought forward in the Dáil by Deputy Donnchadh Ó Laoghaire on the adoption of a person over the age of 18 years. I understand the intention of his proposal was to allow for the adoption of a person who had begun but not completed the adoption process before turning 18 years. I am not aware of specific cases in this regard. I understand both the Adoption Authority and the Child and Family Agency, Tusla, prioritise cases in circumstances such as this. However, in the course of debating the issue a number of Deputies raised concerns that while it might not have happened to date, it could happen in the future. Therefore, they called for procedures to be strengthened. Having given careful consideration to the concerns raised, I requested the Adoption Authority to prepare a proposal, in consultation with the Child and Family Agency, for inclusion in its business plan to address the issue. The Bill is about a child's welfare, well-being, happiness and encouraging care in the context of loving circumstances, which are all good, when difficulties or circumstances arise or there is trauma, neglect or lack of care. This is a significant and a very good Bill that will no doubt be improved in this debate.

I will address specific provisions. As I said, the primary purpose of the Bill is to give legislative effect to the 31st amendment to the Constitution following the children's rights referendum.

Section 1 provides that the principal Act means the Adoption Act 2010. Section 2 provides for the repeal of section 24 of the Adoption Act 2010 and Part 11 of the Children and Family Relationships Act 2015. The repeal of section 24 is consequential on the inclusion of section 12 of the Bill which inserts a new section 23 into the 2010 Act. Section 2 also provides for the repeal of Part 11 of the Children and Family Relationships Act 2015 and the insertion of the contents of its provisions, amended as required, into the Adoption (Amendment) Bill. As I said, this ensures provisions allowing for the adoption of a child by civil partners or cohabiting couples will form part of primary adoption legislation. Again, it is a significant measure.

Section 3 of the Bill amends section 3 the 2010 Act to provide for the insertion of definitions of various terms in the Bill.Section 4 amends section 4 of the 2010 Act to replace the term "birth parents" with "parents" with regard to references to making arrangements for adoption. Again, we are all so aware that language is powerful and this language change reflects a cultural change.

Section 5 amends section 12 of the 2010 Act by including the terms "mother" and "father" in the definition of "guardian" in the context of visits and enquiries pertaining to adoptions. Section 6 amends section 16 of the 2010 Act and replaces the term "father" with "relevant non-guardian" in order that each person who is included in the definition of relevant non-guardian may give notice of his or her wish to be consulted on an application for an adoption order by a mother, step-parent or relative of a child.

Section 7 replaces the term "father" with "relevant non-guardian" in section 17 of the 2010 Act in order that each person who is included in the definition of relevant non-guardian is included in the category of persons with whom consultation is required prior to the placement of a child for adoption. The term "relevant non-guardian" has been widened and so within each case we need to insert it as distinct from the term "father". Section 8 is another example of this as it substitutes section 18 of the 2010 Act to replace the term "father" with "relevant non-guardian". In this case the section sets out the circumstances wherein the authority may, with the approval of the High Court, authorise the placing of a child for adoption and dispense with the requirement for consultation with the child’s "relevant non-guardian".

Section 9 of the Adoption (Amendment) Bill amends section 19 of the 2010 Act by substituting a new section 19 to reflect Article 42A of the Constitution and to provide that in any matter, application or proceedings under the 2010 Act before the Adoption Authority of Ireland or any court, the authority or the court, as the case may be, shall have regard for the best interests of the child as the paramount consideration in the resolution of such matter, application or proceedings. The section also provides that in the resolution of any matter, application or proceedings referred to in the section, the authority or court, as the case may be, shall, in respect of any child who is capable of forming his or her own views, ascertain those views and such views shall be given due weight having regard to the age and maturity of the child.

I brought forward an amendment in the Dáil to strengthen the provisions of the new section 19 of the 2010 Act in enabling the views of the child to be heard in matters or proceedings to determine the best interests of the child. The new section details the factors and circumstances relevant to the child that the authority or court shall regard in determining the child’s best interests in any matter, application or proceeding before them. One can imagine a child whose universe includes parents, prospective adoptive parents, a guardian or guardians and relevant non-guardians. In that context it is very important to ensure that the best interests of the child in that circle are considered and his or her views are heard and given due weight. The amendment came about as a result of engagement in the Dáil and many Opposition requests that a more substantive provision be included in the Bill. The factors to be considered include the child’s age; the physical, psychological and emotional needs of the child; the likely effect of adoption on the child; the child’s views on his or her proposed adoption; the child’s social, intellectual and educational needs; the child’s upbringing and care; the child’s relationship with his or her parent, guardian or relative, as the case may be and; any other particular circumstances pertaining to the child concerned.

The amendments I brought forward in the Dáil also provide for the making of regulations to prescribe the procedures under which the authority or court best ascertain and give due weight to the views of the child. This will include procedures to enable a child to present his or her views, in person or in writing and to nominate an appropriate person to present the child’s views as well as the procedures that are to apply to any consultation by the authority or court with the child or appropriate person. I intend to enter into a consultation process with children before the drafting of these regulations. This is the norm in the Department of Children and Youth Affairs with regard to matters of such importance and I look forward to the results of that consultation.

Section 11 amends section 21 of the 2010 Act by substituting a new subsection (2) to provide that the Child and Family Agency shall give notice of discontinuance of adoption proceedings to the authority, to any adoption committee concerned, to the mother or any other guardian and to each relevant non-guardian of a child. Section 12 of the Adoption (Amendment) Bill amends section 23 of the 2010 Act to extend the eligibility for adoption to any child residing in the State who is under the age of 18 years and who has been in the care of the applicants for the prescribed period. The section also deletes the reference to the eligibility for adoption in respect of a child who is an "orphan" - when was the last time Members heard that word? - or who is "born of parents not married to each other". This is a very significant change, reflecting how society has moved on. The section also provides that a step-parent may adopt a child where that child has had a home with the child’s parent and step-parent for a continuous period of not less than two years at the date of the application for the adoption order.

Section 13 amends section 30 of the 2010 Act to replace the term "father" with "relevant non-guardian" so that all persons included in the definition of relevant non-guardian are persons with whom consultation is required under this section. In the drafting of the Bill it was important to ensure clarity on whose consent is required in relation to the adoption process. Section 14 of the Bill amends section 31 of the 2010 Act by substituting a new section 31 to provide that in circumstances where a child has been placed with prospective adopters and where, prior to the final adoption order being made, a person whose consent to the making of the adoption order is necessary fails or refuses to give consent or withdraws a consent already given, the applicants may apply to the High Court for an order giving custody of the child to the applicants for such period as the court may determine and authorising the authority to dispense with the consent to the making of an adoption order in favour of the applicants. This is one of the many examples in the Bill of a thinking-through on the part of those drafting the Bill, in my Department and in the Office of the Attorney General, of the consequences of what is being written with the aim of ensuring that the bests interests of the child are to the fore. In these circumstances, the section provides that the High Court shall have regard to the relationship between the child and the applicants, the child and his or her mother or guardian and the efforts made by any of those persons to develop or maintain such a relationship and any proposed arrangements of either the applicants and the mother or guardian for the future care of the child. The section also provides that the High Court shall, in so far as is practicable, give due weight to the views of the child, having regard to the age and maturity of that child.

Section 15 amends section 32 of the 2010 Act to provide that the authority shall not make an adoption order in circumstances where the child, the applicant or applicants for an adoption order and every person whose consent to the adoption is required under section 26 of the 2010 Act are not all of the same religion, if of any religion, unless every person whose consent is required to that adoption knows, when so consenting, the religion, if any, of the applicant or applicants. Section 16 amends section 33 of the 2010 Act to provide that a couple who are civil partners of each other, a cohabiting couple and a step-parent of a child are included in the categories of persons eligible to apply for an adoption order or for the recognition of an adoption order effected outside the State. Section 17 amends section 34 of the 2010 Act to bring forward the provisions of section 115 of the Children and Family Relationships Act 2015 into the Bill to provide that a couple who are civil partners of each other and a cohabiting couple are included in the categories of persons whose suitability for an adoption order or for the recognition of an adoption order effected outside the State must be satisfactory to the Adoption Authority of Ireland. Section 18 amends section 37 of the 2010 Act to provide that civil partners, a cohabiting couple and a step-parent are included in the categories of persons who may apply to the Child and Family Agency for an assessment of eligibility and suitability. Section 19 amends section 38 of the 2010 Act by providing that the Child and Family Agency shall give notice of the discontinuance of an application for assessment under section 37(1) to the authority, the adoption committee concerned, the mother or any other guardian of the child and to each relevant non-guardian.

Section 20 amends section 40 of the Act by providing that civil partners and a cohabiting couple are included in the categories of persons in whose favour the authority may issue a declaration of eligibility and suitability. There was a time when that was not the case. Actually, there still is. This change is only being introduced now.

Section 21 brings the provisions of section 119 or the Children and Family Relationships Act 2015 into section 41 of the 2010 Act to provide that civil partners and a cohabiting couple are included in the categories of persons in whose favour the authority may extend the time period of the declaration of eligibility and suitability. Section 22 amends section 43 of the 2010 Act to provide that a relevant non-guardian is included in the category of persons entitled to be heard by the authority on the application for an adoption order, as well as any guardian.

Section 23 amends section 45 of the Act in order to clarify that a child who was adopted may have a further adoption order made in respect of him or her and that, in those circumstances, the child shall be taken as the lawful child of the first-mentioned adopters. Section 24 amends section 54 of the Act to provide for revised criteria under which the High Court may authorise the making of an adoption order without parental consent where a child's parents have failed in their duty towards him or her. This is significant. Under the revised criteria, the child must be in the custody of and have a home with the applicants for a continuous period of not less than 18 months and the High Court must be satisfied that the parents of the child have failed in their duty for a period of 36 months and 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. These are heavy responsibilities.

Section 25 amends section 58 of the Act to provide that, upon an adoption order being made, an adopted child shall be considered, with regard to the rights and duties of parents and children in respect of one another, as the child of the adopter or adopters and that the child's mother, guardian or relevant non-guardian shall lose all parental rights and be freed from parental duties in respect of the child. Section 26 inserts a new section 58A into the 2010 Act to provide that a child's mother or guardian shall not lose all parental rights in respect of his or her child where the child is adopted by a step-parent. The section provides that a child who is adopted by his or her step-parent shall, upon the making of an adoption order, be regarded as the child of that step-parent and the step-parent's spouse, civil partner or cohabitant. Section 27 amends section 59 of the 2010 Act to replace the term "birth parents" with "parents".

Regarding property rights, section 28 provides that, for the purposes of section 60 of the 2010 Act, an adopted person is to be regarded as the child of his or her adopter and not his or her pre-adoption parents. For the purposes of stamp duty chargeable on conveyances or transfers of land, section 29 amends section 61 of the Act to provide that, subject to section 58A of the Act, an adopted person is regarded as the child of his or her adopter or adopters and not of any other person.

Section 30 amends section 62 of the Act on the ceasing of payments for the benefit of the child by a parent upon the making of an adoption order by replacing the term "birth parent" with "parent" in each place that it occurs. Sections 31 to 34, inclusive, amend sections 68, 69, 78 and 79 of the Act to replace the term "birth parent" with "person" to allow for circumstances where a person other than a birth parent may be required to consent to the making of the adoption order. Section 35 amends section 84 of the Act to provide that the entry of particulars in the Adopted Children Register are appropriate particulars in respect of the type of adoption concerned.

Section 36 amends section 85 of the Act to provide that, in the case of a further adoption, any reference to a previous adoption will be excluded in a copy or extract of the entry from the Adopted Children Register. Section 37 amends section 97 of the Act to provide that the term "father" is replaced with "relevant non-guardian" in order that the Adoption Authority, when making rules regarding its procedures governing the consultation required with a person, shall include each person who is included in the definition of "relevant non-guardian". Section 38 amends section 125 of the Act to provide that a civil partner of a parent of a child and a cohabitant of a parent of a child are included in the categories of persons who are not precluded from giving or receiving a child for adoption.

Sections 39 and 40 amend sections 144 and 145 of the 2010 Act, which relate to the prohibition of certain advertisements for adoptions and the prohibition of making or receiving payments for adoption, to clarify that the reference to a "guardian" in those sections is a reference to a "guardian" as defined in the Guardianship of Infants Act 1964. Section 41 amends Schedule 3 of the 2010 Act to provide that the term "marital status" is replaced with the term "civil status" and that the Schedule includes the required particulars for all adoptions, including the particulars of a person who is married to or in a civil partnership or cohabiting with the adopter. Section 42 is a standard provision setting out that sections of the Bill may be commenced by the Minister on a phased basis.

I look forward to hearing the opinions of Senators on the Bill and the important issues that they wish to address. I commend the Bill to the House.