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

I have worked with my officials and the Parliamentary Counsel on the issues raised by Senators Ruane, Black and Higgins. We took quite a bit of time taking a look at this amendment. I know it was proposed in the context about which Senator Ruane spoke. Senator Black also has significant experience in this regard. It is so much what it means to be a lawmaker to draw on that experience. One's way of analysing it and marshalling various pieces of evidence for the law-making process ensure it should and does make a difference.

It troubles me that what was described as having gone on may still be going on. I do not know if it is still going on in a significant way and that we may need to attend to it. I am not sure it would be possible to deal with it the way Senator Ruane recommended. However, there may be some scope.

Section 53 of the Adoption Act 2010 provides that the Adoption Authority will adjourn an application for an adoption order made to it and declare it will make the adoption order if the High Court, by order under section 54(2), authorises it to do so, if the authority has heard from the Child and Family Agency and any persons who are entitled to be heard at such a hearing, which include the mother and father of the child. The authority, in its discretion, may also decide any other person in this regard. The authority must also be satisfied that if an order of the High Court, under section 54(2), were made in favour of the applicants in respect of the child concerned, it would be in accordance with the Adoption Act 2010 to make the adoption order.

If upon hearing from a birth parent, or any other person, who raises a concern with regard to the support the birth parent might have received from the Child and Family Agency, I am advised by the authority that it would adjourn the case and seek a comprehensive report from the Child and Family Agency. The Adoption Authority has also advised me that in the past where these reports were requested and received, they outlined in detail the various case meetings held over the years, including any offers of support offered to the birth parents at the time of, or subsequent to, the birth of the child.

Section 54 of the Adoption Act provides that the High Court may authorise the Adoption Authority to make an adoption order for a child and dispense with the consent of anyone whose consent is necessary to the making of the adoption order. This is the issue about which Senators are concerned. Section 24 of the Adoption (Amendment) Bill amends section 54 of the 2010 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 that child. There is some revision of criteria going on within the current Bill.

The revised criteria are that the High Court will be satisfied that the parents of the child have failed in their duty towards that child 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. The failure constitutes abandonment on the part of the parent of all parental rights and by reason of this failure, the State, as guardian, should supply the place of the parents. The child must be in the custody and have a home with the applicants for a continuous period of not less than 18 months and the adoption of the child by the applicants must be a proportionate means by which to supply the place of the parents.

In considering an application for an order under this section, the High Court will have regard to the rights, whether under the Constitution or otherwise, of the person concerned, including the natural and imprescriptible rights of the child, as well as any other matter which the High Court considers relevant to the application. The High Court shall also, in so far as participle, in a case where the child concerned is capable of forming his or her own views, give due weight to the views of the child, having regard to the age and maturity of the child. In the resolution of any such applications, the best interests of the child will be the paramount consideration. This may address some of the concerns expressed by the Senators.

The court provides a significant safeguard in this process. It should be noted that applications to dispense with consent due to parental failure are uncommon. They are only made after significant engagement with the child and parents and the child will have been in foster care for at least 36 months. The Child and Family Agency has advised me that, once every effort made to keep a child at home has been unsuccessful and the parents have consistently failed to provide that adequate care and protection to the point where the child’s welfare is at risk, the child is received into care. A child will only be put forward for adoption when all other options have been explored and ruled out. I am advised the issue of supporting parents will have been adequately addressed by then, long before adoption has been considered as a proportionate means to meeting the needs of the child.

How do we know this is the case? In this regard, the Child and Family Agency undertakes its functions regarding child welfare and protection under the Child Care Act 1991.I am consistently referring to other legislation which ensures in a reasonable manner the kinds of protections and supports the Senators refer to in their amendment. They are present in the current legislation. Section 3 of the Child Care Act 1991 provides that the agency in carrying out its functions will: "(i) regard the welfare of the child as the first and paramount consideration, and (ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child;". It will also have regard to the rights and duties of the parents and the principle that it is generally in the best interests of a child to be brought up in his or her own family.

The agency has also advised me that where there are concerns about the welfare of a child it carries out a comprehensive assessment, including a parental capacity assessment, and this assessment includes the development of danger statements, child protection plans and safety plans. Additionally, child protection case conferences and family welfare conferences, which Senators referred to, are convened to ensure that all parties are fully aware of the issues and concerns and that there is an agreed plan of action to ensure the welfare and protection of the child.

The parents are included in all aspects of the plan and are given clear guidance on how to adequately care for their child in order to meet the threshold for adequate care and protection. They are encouraged to receive support via support workers and parenting courses and are invited to participate in all planning meetings, and supported and encouraged to have their views heard. I have no evidence to indicate that the issues raised by the Senator, therefore, are not adequately addressed in current legislation and practice and in addition I am concerned, upon advice received, that the proposed amendment could give rise to significant anomalies or indeed operational inequalities. For those reasons I am not at this moment accepting the amendment.