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

Amendment No. 20 seeks to delete the amendment that was inserted into section 54(1) of the Adoption (Amendment) Bill on Committee Stage in the Seanad. At the outset, I want to state that I understand the reason the Senators submitted this amendment. In short, they are concerned that some parents may not be offered supports that would assist them to take care of their child rather than that child being received into the care of the State. I have been working with my officials for some time now to develop an amendment that addresses the principle of the Senators' concerns without the risk of preventing the adoption of a child in whose best interests adoption is appropriate.

During this time, Tusla, the Child and Family Agency, the Adoption Authority of Ireland and the Office of the Attorney General were consulted on a number of proposals my Department developed in an attempt to provide a workable amendment. However, despite a great deal of effort, it has not been possible to bring forward such an amendment so, reluctantly, I must propose that the amendment inserted on Committee Stage is now deleted. However, I would like to reflect on what the Senators wished to achieve through the amendment, therefore, I propose to accept the Senators' broad principle by issuing a ministerial direction to Tusla under Part 6 of the Child and Family Agency Act 2013. Specifically, I propose to use section 47(1) of that Act to issue a direction to the agency. Where it appears to the agency that the child requires care or protection, the agency must take all reasonable steps to work in partnership with parents providing a package of care, including practical, emotional and financial support to keep children at home safely where at all possible. I intend to make this direction within the next two weeks. Under the Child and Family Agency Act 2013, the agency must comply with the direction. The direction must be published in Iris Oifigiúiland laid before the Houses of the Oireachtas. The chairperson of the agency must, within the time I specify in my direction, inform me of the measures taken by the agency to comply with the direction.

The ministerial direction I propose to make in my view is broader than the Senators' amendment. In effect, it affects all cases, not just cases which will lead to a section 54 application. It emphasises partnership between the parents of the child and Tusla and it will require detailed recording, which is in line with evidential standard in all cases, system upgrading and reporting to me by the chairperson of the Tusla board of the specific measures taken to comply with my direction.

This is a system-wide policy direction which can ensure that the Senators' objectives can be achieved in all cases and for that reason I am grateful to the Senators for raising this and working so extensively on it with us. Moreover, it will ensure an increased acknowledgement of and administrative backing for parental supports. However, as I mentioned briefly already, I have a number of concerns about the potential effect of the amendment inserted on Committee Stage. The effect of the Senators' amendment would be that before making an application for a child to be adopted because of parental failure, Tusla must be satisfied that every reasonable effort has been made to support the parents of the child in question. If it is considered that reasonable efforts were not made to support the parents or where Tusla is unable to prove it has done so, there is a strong risk that the adoption of the child would not go ahead. That is despite the adoption being in the best interests of the child. That is my first reason.

It is also likely to be the case that there will be no realistic chance that the child will be reunited with its parents. In all likelihood, the child will be returned to State care until he or she is 18. Is that what we want? I do not believe so. That is my second reason.

This raises a significant issue around the constitutionality of preventing the adoption of a child in whose best interests adoption is appropriate. A failure by the State, perhaps many years previously, to support parents or an inability to prove it has done so could mean that the adoption cannot go ahead. In many cases, the child in question will have indicated his or her wish to be adopted. There is also a risk that an adoption could be delayed despite the adoption being in the best interests of the child. That is my third reason.

As I mentioned earlier, in those circumstances, the child may not return to his or her family but would remain in care up to the age of 18 years and would not benefit from the permanency and stability of adoption. Additionally, this will be an extra criterion to be considered by the court before an order under section 54 can be made.

High Court consideration of any criterion rightly takes time, and more court time will logically and inevitably cause the proceedings to be longer. It cannot be argued that creating an additional criterion will somehow not incur extra court time. It will.

Inevitably, the threshold for such court applications will be very high. Strong evidence will be required and will be robustly challenged. The court will no doubt consider what supports have been offered, provided, for how long and to what extent those supports were provided. This could limit the ability of Tusla or the court to make effective and timely decisions regarding children. It could result in the loss of a critical focus on the child's best interests.

As the Senators are aware, the primary purpose of the Adoption (Amendment) Bill 2016 is to give legislative effect to the constitutional amendment as it relates to adoption. The insertion of Article 42A into the Constitution gave children rights which have not heretofore been enunciated in the Constitution. For the first time, therefore, the Constitution contains an express statement of children's rights.

The Adoption (Amendment) Bill 2016 supports and upholds those rights, but there is a risk that this amendment may actually achieve the opposite of what is intended. It moves the Bill from the current child centred focus to a parent-adult centred focus, which is inconsistent with the intention of Article 42A. Adoption is a hugely significant event in the life of a child. It has lifelong implications for the child concerned. A child will only be put forward for adoption when all other options have been explored and ruled out. As legislators, we have a responsibility to ensure that the legislation supports and safeguards a child.

I believe that my proposal to issue a ministerial direction to Tusla comprehensively meets the Senators' concerns without attracting the risks attached to the amendment inserted on Committee Stage. It is a practical and effective response to the Senators' proposal and I look forward to implementing it.