Seanad debates
Wednesday, 4 March 2009
Adoption Bill 2009: Committee Stage
11:00 am
Alex White (Labour)
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I move amendment No. 1:
In page 16, subsection (1), line 5, after "text" to insert "in the English language".
This could essentially be described as a drafting amendment. It seeks to amend the section that deals with the interpretation of the term "Hague Convention". The Bill states:
"Hague Convention" means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 1993, the text of which, subjection to subsection (3), is set out for convenience of reference in Schedule 2;...
My amendment is that it should include the words "in the English language" after the word "text" in line 3 for the simple reason that only the English text of the Hague Convention is annexed but there is also a French text, which is equally authentic.
The concluding paragraph of the convention, which is on page 116 of the Bill, states the convention was "Done at the Hague, on the 29th day of May 1993, in the English and French languages, both texts being equally authentic".
We in this country are used, by way of interpretation, to having regard to the Irish language as well as the English language, preferring the Irish language constitutionally. It is not the same point but, by analogy, we should also have regard to the fact that there is a French language version of the Hague Convention which the Bill declares to be equally authentic. I see no reason we could not include the words "in the English language" because the reference in the section of which we speak is to the English language text rather than to both.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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Senator Alex White drew an analogy between the constitutional position regarding Irish and English and the reference at the back of the Bill to French and English, but it is understood that the English version is the one that is to be interpreted in the event of a dispute. I argue that it is a given that such would be the case.
There is no constitutional position of the French language whatsoever. The entire Bill is in English. English is one of the recognised languages under the Constitution. The fact of it being in the English language is understood. It is a presumption, if you like.
If it is of any comfort to the Senator, if he feels that problems may arise in the future, it is something at which we can have a look prior to Report Stage, as with any of these amendments. However, I am satisfied the proposed amendment is not necessary and that the English language is understood in this section.
David Norris (Independent)
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It has been 16 years since Ireland signed the Hague Convention. That is quite a long time gap. That may explain one point which I find interesting. The Minister of State spoke persuasively about the power and significance of the English version. Then there was the matter of the French version. I wonder is there an Irish version of the Hague Convention. This would predate the position where, as a result of Government advocacy, the Irish language became one of the necessary languages of the European Community and a horde of translators was employed.
The reason I ask is because the Minister of State also raised the question of the constitutional provisions. Of course, as he will be aware only too well as a fine lawyer, if there is a conflict between the English version of the Constitution and the Irish version, the Irish version prevails.
This is an aspect of the matter. Senator White was worrying about French but we do not even know whether there is a version of the Hague Convention in our own language. If there is, presumably, by analogy with the constitutional position, it would be the Irish version, not either the English or the French version, that would prevail in law. It is an academic point but in a way the entire debate on this Stage is academic.
Alex White (Labour)
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I may be responsible for taking us down the road of that perhaps not significantly helpful analogy as between the Irish and English languages if an issue arises in terms of what the Constitution means. The point we are making in this amendment is a somewhat narrower one, that if one refers to the Hague Convention in the interpretation section of the Bill, it states:
"Hague Convention" means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 1993, the text [I suggest, "in the English language"] of which, subjection to subsection (3), is set out for convenience...
It is merely for the sake of completeness. Schedule 2 acknowledges "both texts being equally authentic". We are incorporating the convention into Irish law by way of this legislation.
In the last page of the Bill, it states that both texts are equally authentic. That is fine, nobody disagrees with that. All the amendment does is state that when we speak about the Hague Convention, we mean the convention set out in Schedule 2 in English. It also exists in French and if anybody wants to refer to it in French, he or she can go off and refer to it in French, take it out of the library or whatever. Simply for the sake of completeness, all it states is that what one will see in Schedule 2 is the English language version of it.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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Senator Alex White is trying to anticipate where there might be a conflict in the future and where there might be a possibility of two interpretations arising from the two languages, French and English. There can be no doubt that English, being a constitutional language in this country, is the language in which it will be interpreted in the event of that happening. As I stated, I will look at this matter again and we can revisit it on Report Stage.
Alex White (Labour)
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I am grateful to the Minister of State that it will be looked at again. I may have taken us down something of a siding on the interpretation point. I accept what the Minister of State says. There is an issue about the version of the convention to which we should have regard and I agree it would clearly be the English version. This, however, is more of a drafting amendment and does not anticipate a problem with interpretation.
Ivana Bacik (Independent)
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It might be dangerous to include a line such as this because wherever legislation incorporates the text of a convention, it is always in English. If we start stipulating in express terms "in the English language" in a section such as this in one Bill, the danger is that in other legislation where we have not inserted that phrase, a lawyer in the years to come might claim the French text is the definitive version. It is a technical point but it might be dangerous to start including this if it has not been the practice heretofore.
Alex White (Labour)
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I will withdraw the amendment on the basis that the Minister of State has said he will look at the issue again.
Paddy Burke (Fine Gael)
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Amendments Nos. 14 and 50 are related to amendment No. 2 and they will be taken together by agreement.
Alex White (Labour)
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I move amendment No. 2:
In page 16, line 30, after "Convention" to insert the following:
"and includes an adoption from a country other than one a party to the Hague Convention or a bilateral agreement if the Authority considers that the adoption can be effected from a third country in a manner compatible with this Act".
This issue that arises from widespread concern expressed by those with an interest in adoption. The general response to what is being achieved with this important and comprehensive legislation has been welcoming. The Hague Convention clearly transposed into our law the basis for inter-country adoption. The codification of all of the previous legislation going back to the 1950s is welcome and I commend the Minister of State and his officials on the extraordinary work that has been done in putting this Bill together.
Concerns still remain, however, about countries that will not be covered by the Hague Convention. I am not for a moment saying we should not promote, improve and uphold international standards. That is the point of the convention. It requires a high level of scrutiny on adoptions across the board. The whole point of the convention is that it be applied as the basis for inter-country adoptions.
Inevitably there will be countries from which Irish people wish to adopt children that will not be in a position to fall within the remit of the Hague Convention. The easy answer to that is that if we are to apply an international standard, it must be that set out in the Hague Convention, and if a country does not meet that standard, so be it. No one, however, would want to dispose of human situations in that way. Every time a law is made, there will be hard cases and exceptions, especially in such a human area. Our concern, which is shared by many of the adoption associations, is that countries such as Russia, Vietnam and Ethiopia, could fall outside the requirements in the convention.
Bilateral agreements can be made with these countries. Currently the bilateral agreement with Vietnam is in the process of being renegotiated. We are aware that Vietnam has become a popular country for Irish applicants because it follows model practice promoted by the Adoption Board, the Health Service Executive and the Minister of State's office. The Minister of State has indicated his support for a new bilateral agreement to replace the agreement that expires in April. The Department has yet to send a draft agreement, however, through the Department of Foreign Affairs to the Vietnamese authorities. The time is now critical for this new agreement given the situation in which many people find themselves. We do not want a hiatus to cause a collapse in adoptions from Vietnam, depriving 20 or more families and children of the opportunity to live in loving and secure environments. Ultimately those children might never be adopted if there is a delay in the application by Irish authorities on this urgent issue.
Other countries have established bilateral agreements with Russia so there are precedents and a willingness on the part of the Russians to enter bilateral agreements. There are hundreds of thousands of children in orphanages in Russia and we should not close Irish homes to them. Standards must be applied but that is what the convention seeks to do and that is what the Minister of State wants to achieve.
Recent analysis of adoption law in Ethiopia deemed the regime there compatible with Irish law. Why then is there a hold up in the establishment of a bilateral agreement with that country?
12:00 pm
Ivana Bacik (Independent)
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I support this amendment. Like other Senators, I received information from the International Adoption Association that highlighted its concerns in respect of children who have been adopted or who may be adopted in future by Irish parents from countries without bilateral agreements but where they are being prepared but are not yet concluded, particularly Vietnam, Ethiopia and Russia.
In excess of 1,000 children have already been adopted from Russia. There is, however, a concern among the members of the association that because agreements are in the process of being finalised and because the Bill is proceeding with such haste, these countries might fall outside the terms of the Act as currently drafted. This is a useful amendment to cover that instance, not in any way by lowering the standards that must apply in any inter-country adoption but ensuring countries with which bilateral agreements are being concluded but are not yet concluded may still be covered if the authority considers that the adoption can be effected in a manner compatible with this Bill.
There are detailed provisions on the bilateral agreement arrangements in sections 73 to 80 of the Bill. This amendment does not serve to undermine those but includes in the definition section a recognition that there may be a shortfall in time with some of these countries and recognises that there are already families in Ireland who may be in the process of concluding individual arrangements with children in other countries, notably siblings. Families who have already adopted a child have a real concern that in future they might not be able to adopt siblings. I know that other provisions cover this matter, but it is an important amendment to the definition of the section.
David Norris (Independent)
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I support Senator Bacik, especially her final remarks. It would be cruel to inhibit the adoption of a sibling because adopted children, particularly if they are of a particular age group, can often be bereft and in need of support even though they may be placed in a positive family. Concern has been expressed to me about Vietnamese adoptions and, in fact, people have even indicated their concern that the Department is not serious about meeting the requirements within the timeframe. After the debate on Second Stage I had further communications with people who said they did not take the Minister of State's assurances seriously. I would like to provide him with this opportunity to strengthen his response in this area.
In a general profile, this section examines inter-country adoptions and three different scenarios are created. First, there is the domestic adoption of Irish-resident children, which is not the subject of this amendment. Second, there are inter-country adoptions effected outside the State and, third, inter-country adoptions requiring subsequent domestic adoptions. That reflects the current situation but the approach to certain provisions applicable to domestic adoptions could undermine the completion of inter-country adoptions effected abroad. For example, without prejudice to the provisions that concern the rights of fathers and the religion of parents, the treatment of these could have the effect of rendering inter-country adoptions which require subsequent domestic adoption incapable of being completed. This amendment addresses the point about the third country in a manner compatible with the Bill.
As it stands, the legislation contains impediments, for example, the ability of assessed and qualified applicants to provide loving and secure homes to children in need from other countries. There is ambiguity over the ability of Irish adoptive parents to complete such legal proceedings on their return which could result in foreign authorities declining Irish applications despite the laws in such countries being fully complied with. This would be contrary also to the essence of the Hague Convention whereby contracting states are obliged to accept adoptions completed under the laws of other contracting states.
We have a situation therefore where there are millions of children in institutions throughout the world, a comparatively small number of which — about 30,000 — are internationally adopted. Ireland has about 400 of these, yet we have this continuing inhibition contained in the legislation which is worth highlighting. That is covered by the phrase in amendment No. 2 which states that "the adoption can be effected from a third country in a manner compatible with this Act". These issues arise from that matter. As the Bill stands, we have a situation whereby there can be at least the initiation and partial completion of an adoption with these third countries but that is dependent upon a subsequent finding of the High Court in Ireland.
Paul Bradford (Fine Gael)
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I support the amendment. I brought the legislation to the attention of a number of my friends and constituents who are either adoptive parents or hope to adopt. One of the issues they raised strongly with me was the fact that countries outside the Hague Convention would become almost exclusion zones as far as the adoption procedure is concerned. What I have heard from my colleagues is important in the sense that they are not trying to reduce the bar. They want the standards and conditions applicable to the Hague Convention to be the set standard, but they want prospective parents to have the opportunity to adopt children from countries outside the Hague Convention zone. I support that concept. We are probably not talking about very many such adoptions. However, we must recognise that the possibility of the door being shut firmly in respect of a number of countries arising from their non-participation in the Hague Convention is a negative aspect in the legislation. The amendment would provide for the inclusion of such countries with the highest possible standards being applicable. I hope the Minister of State will reflect favourably on this amendment. It is one area of the Bill that has been brought to my attention by a number of concerned persons.
Frances Fitzgerald (Fine Gael)
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I want to raise a couple of issues concerning these amendments and perhaps the Minister of State can cast some light on the situation. First, it is disgraceful that people are wondering whether or when the bilateral agreements will be concluded. If this matter was clarified it would relieve much anxiety for people who, for example, want to adopt children from different countries, including Vietnam. People are genuinely concerned about this. I will quote from a letter I received, which stated: "This is a massive blow to us, as we are registered with the mediation agency whose applications will effectively be put on hold from April 1st." Perhaps the Minister of State can update the House on this situation. People are saying the Vietnamese Government has told the Irish authorities it will cease to accept adoption dossiers from Ireland from 1 April. Is that accurate or has the situation been updated? I hope it has, but if it has not it is unacceptable that people are left to worry that their applications will not go ahead because, for some technical reasons, we have not concluded the bilateral agreements. The Minister of State should clarify the current situation, what his intentions are and what other countries he will deal with through bilateral agreements. That would be helpful. These amendments seek to remove the uncertainty that exists currently, albeit unnecessarily.
I would like to hear the Minister of State's views on standards and building flexibility into the legislation. The Bill requires some flexibility because Irish families may wish to adopt children from countries which, for a variety of reasons, have not signed up to the Hague Convention. Does the Minister of State envisage that some flexibility will be built into the legislation in this way while keeping the highest standards? I fully recognise there are downsides to this which is why I would like to hear the Minister of State's views. What is the international situation with regard to this matter? Have other countries that have signed the Hague Convention continued to allow some flexibility so that people can adopt children from non-contracting states? Will that flexibility apply to our legislation in future?
Amendment No. 50 proposes one way of dealing with the points that have been raised. It would allow the adoption authority to make an exception. The authority could assess whether an exception was required or desirable, having regard to various factors, but ensuring the standards continued to be met. I would like to hear what the Minister of State has to say about these amendments. Can he outline the Government's intention concerning the issues I have raised?
Fidelma Healy Eames (Fine Gael)
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The whole point of this Bill is to facilitate families in Ireland who can provide a loving and secure home for children, many of whom are in institutions and would benefit from a good home, to do so. I speak in favour of these amendments. Some 78% of families in Ireland seeking to adopt children want to do so from countries that have not signed the Hague Convention or countries with which Ireland does not have bilateral agreements. We adopt approximately 400 children annually, which means that about 300 such babies potentially could be denied adoption unless we insert this important amendment. Every month, 20 babies are adopted from Vietnam which equates to 240 babies a year. It is critical a new agreement is put in place by 1 April.
I know what it is like to have to wait for an adoption baby from abroad. I would hate to think any hold-up in the process was due to some lack of action on the part of my Government.
I agree with the urgency of securing the bilateral agreement with Vietnam. I support the amendment to enter new bilateral agreements with Ethiopia and Russia, or at the very least to allow adoptions with these countries continue.
I also support the proposal concerning the adoption of siblings from non-Hague Convention countries. It has been well-documented that adopted children seek out other children in their own likeness. It gives them a sense of belonging. It is important we do not reject this amendment or else the supply of foreign adoption babies to Ireland will be cut off. It would also prevent parents from adopting the siblings, or even nationals, of their already adopted children.
I agree with the Minister of State that it is important we support standards set by the Hague Convention. However, when I first adopted in 1994, I was counselled under that convention, not knowing that it was not law. Since then the Adoption Board has been following the Hague Convention, even though it was technically not in force.
Feargal Quinn (Independent)
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The objective of these amendments, particularly in the case of adopting siblings, is worthy, one with which I am sure the Minister of State agrees. It may well be that the words used, technically, are not quite correct for the legislation. I do not know why as they seem fine to me. If the Minister of State is unable to accept the amendments as they are, it is possible to achieve the same objective by changing the text to address his concerns.
I was not aware, until Senator Healy Eames stated it, that 78% of adoptions are from non-Hague Convention countries. It concerns me a great deal because I assumed adoptions from Russia, Vietnam and Ethiopia were exceptions. I hope the Minister of State will accept these worthy amendments in some form or other.
David Norris (Independent)
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Concerning my earlier comments on the Department's attitude regarding Vietnamese adoptions, there seems to be a certain amount of confusion. The closing of the existing bilateral agreement was triggered by the Office of the Minister for Children and Youth Affairs. That was in spite of a general acceptance that the Vietnamese experience has been a model one and was promoted as such by the Adoption Board. On top of this, despite the positive remarks the Minister of State made during the debate, he has not yet sent a draft of the new agreement to Vietnam. I accept he made a successful and positive trip to Vietnam before Christmas but this agreement expires in less than two months. My colleagues have also raised concerns about agreements with Ethiopia and Russia and the possible adoption of siblings.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I thank Senators for their contributions on this important area. It has occupied much of my time in preparing this legislation over the past six months. I have had many discussions with the Adoption Association and many parents who approached me in my constituency office and elsewhere on this matter. I have received many e-mails from parents concerned about the situation, particularly as it applies to Vietnam.
I have enormous sympathy with those parents because they have come through a long and personal process. For many, it began with approaching the HSE to apply for adoption. While there is a necessary element to the process with due diligence required, much of it is regrettably prolonged unnecessarily.
I understand the huge frustration expressed by adoptive parents on achieving a bilateral agreement with Vietnam and other countries. The Hague Convention, however, has at its core the protection of children rather than the protection of parents' rights. While this is putting it bluntly, it is understood and no one will argue with that. It is important to place that as a central principle in this debate.
Some questions were raised about the safety of adoptions from Vietnam with the United States and Sweden preventing any further adoptions from the country. We began the process of rolling over the existing agreement or securing a second agreement by 1 May. The Government made a decision to negotiate a new agreement on my recommendation in December, following a visit by members of my office and the Adoption Board to Vietnam. I hope this week to send a draft agreement to the Vietnamese Government through the Department of Foreign Affairs. I have communicated this to the Adoption Association and other interested bodies. It will be up to the Vietnamese Government to agree to the draft. Hopefully, we will be in a position to settle this issue before the deadline.
We did encourage prospective adopting parents to identify with Vietnam, as it is a country in which we have confidence. While I sympathise with their concerns about the agreement, I ask them to keep their nerve on this. The Government is determined to reach an agreement with the Vietnamese authorities. Its policy is based on solid and sound investigations of the Vietnamese adoption process. We are fortunate enough to have an agency on the ground to assure us about this, unlike other countries which have too many, and have a secure system in place.
Senators have been calling for a parallel system for countries that have not signed up to the Hague Convention or those with which we do not have a bilateral agreement. We have gone to enormous trouble to get a bilateral agreement with Vietnam and we will do so again with Russia and Ethiopia. If we were to create an alternative mechanism that would operate outside the principles of the Hague Convention in respect of adoptions from countries which, for whatever reason, cannot sign up to that convention or with which we do not have bilateral agreements, it would dilute what we are attempting in this Bill. We cannot anticipate developments in this regard.
We are seeking to enter a new era with regard to adoption in this country. The Bill is the product of a lengthy consultation period which commenced in 1993, when we signed the Hague Convention. The initial intention was to transpose the latter into Irish law but it was then decided to consolidate the principal Act and the various amendments relating thereto into the legislation before the House.
Having learned from the mistakes made in other countries, engaged in an extremely lengthy period and received the views of all interested parties, we want to create a new structure under which there will be a solid grounding for adoption and in respect of which concrete minimum standards that are complaint with the Hague Convention will apply. The Government has given this matter all due consideration and any dilution of the central principles I have outlined would weaken the Bill.
We are moving forward and trying to put in place further bilateral agreements. Adoptions of Russian children will be able to proceed until the Bill has been enacted. We must wait until the situation relating to Vietnam is resolved before trying to exert further pressure in order to achieve agreements with Russia and Ethiopia, which have been popular among prospective adoptive parents.
David Norris (Independent)
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I thank the Minister of State for his reply and I welcome the fact he has taken up the invitation extended to him by the House to provide a clearer commitment. He has certainly done so. There was a precision, clarity and materiality about what he said, particularly in respect of Vietnam, and I am sure his comments will be welcomed by the international adoption agencies. I welcome his statement to the effect that the draft agreement is being worked on, is almost complete and will be sent to Vietnam by the deadline. I thank the Minister of State because we have already done a useful day's work. What he said represents a clear advance on the much more nebulous commitments put forward on Second Stage.
On the principle of the need for clarity, a good regime, etc., in respect of non-Hague Convention countries — some Members raised issues in this regard — the Minister of State's approach is one of integrity. What he said certainly convinced me because I have always believed, in respect of matters of adoption, the absolute and fundamental principle revolves around the welfare of the child and not around the very human needs and aspirations of prospective parents.
Not only am I satisfied with the arguments put forward by the Minister of State, I am also very pleased by them. He stated that he has already communicated the position with regard to Vietnam to some of the adoption agencies, so there is probably not much need for Members to do likewise. This represents legislative progress in which the House has played a reasonable part.
Alex White (Labour)
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I also welcome the commitment the Minister of State provided in respect of the draft agreement with Vietnam. He indicated that he has informed the various interested bodies with regard to this matter. It is good that he should do so. As recently as yesterday morning, one of the organisations in question, the International Adoption Association, IAA, did not appear to have been informed of developments. The IAA may have received information yesterday afternoon, which is fine. I will not make an issue of this matter.
David Norris (Independent)
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The Senator can give the IAA the good news.
Alex White (Labour)
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I am sure the Minister of State will contact the IAA because he is aware of its interest in and the amount of work it has carried out in respect of this matter.
The Minister of State indicated that there has been a lengthy period of consultation in respect of the legislation. There is no doubt that this is the case. It would appear that such consultation was extremely meaningful, particularly in light of the level of detail contained in the Bill and the Minister of State's knowledge of the issues and familiarity with the various arguments put forward, which I welcome.
There is some concern that, following the lengthy period of consultation, things will happen quickly in respect of the legislation. Organisations whose representatives met or lobbied the Minister of State in respect of making certain inclusions in the legislation, only obtained sight of the Bill some four or five weeks ago. It was initially proposed — I do not believe the Minister of State was involved in any way in this regard — that Committee and Report Stage debates on the legislation would be taken on the same day. That did not occur, which was good, because the Leader changed the proposal. There is a need for breathing space, not only for outside organisations but also for Members, in order that various matters might be considered before the conclusion of Committee Stage and prior to the taking of Report Stage. Concerns have been expressed that matters are proceeding extremely quickly in respect of the legislation. Perhaps the Minister of State will allow some measure of latitude to organisations, particularly those which are non-expert from a legal point of view, in order that they might have their say.
The specific proposals contained in amendment No. 2 essentially suggest that there should be a third category of possibility. The first category relates to inter-country adoptions involving countries that are signatories to the Hague Convention, and the second to countries with which Ireland has bilateral agreements. If the amendment were to be accepted, the third category — I accept that the Minister of State is balking at this and I understand his reasons for doing so — would involve inter-country adoptions being allowed if the authority considers that an adoption "could be effected from a third country" in a manner compatible with the legislation. The amendments puts forward a high level of control in respect of such adoptions.
I take the Minister of State's point with regard to diluting the application of the Hague Convention and the position with regard to bilateral agreements. I must admit that I am swayed by the argument he offers in this regard. If one is intent on putting certain structures at the heart of one's regime, one must think twice in respect of allowing inter-country adoptions which do not fall within those structures. Nevertheless, the amendment would give rise to a high level of control because the new authority established under section 94 would be obliged to come to the conclusion that a proposed adoption could be effected from a particular third country in a manner compatible with the legislation. High standards would have to be applied and, in that context, the new authority would be obliged to apply those under the Hague Convention with which we are familiar and those we are seeking in respect of bilateral agreements. The amendment would provide flexibility in respect of allowing the third category of adoptions to which I refer to take place.
I will not press the amendment. However, I ask the Minister of State to have regard to the point I have made before Report Stage. We might revisit the matter at that point. If, perhaps for a technical reason which I cannot currently contemplate, a bilateral agreement could not be affected, the amendment would provide that in the essentially exceptional circumstances I have outlined, an inter-country adoption could take place from a state not covered by the Hague Convention or a bilateral agreement. In such circumstances, the new authority could deem that such an adoption could take place once it was completed in a manner compatible with the legislation.
Frances Fitzgerald (Fine Gael)
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The Minister of State's comments will reassure many parents who are involved in the adoption of Vietnamese children. He indicated his hope that there will be an agreement and he referred to the fact that the USA and Sweden have stopped all adoptions from Vietnam. Are the difficulties being experienced in respect of this matter relative to the Vietnamese side or to the Irish side? Do those difficulties relate to standards? What has given rise to the delays outlined by the Minister of State? In light of those delays, is he confident a bilateral agreement will eventually be concluded?
With regard to Russia and Ethiopia, if the bilateral agreements are not concluded before this legislation is passed, what will be the situation for the parents concerned? The Department will have to undertake quite a large information initiative for parents who are involved with these countries at this point. The Department might already be doing that, but there is a need for clarity for parents on this issue. I have conducted adoption assessments as a social worker over the years and I am aware it is an extremely traumatic and difficult time for people to get to the point of being accepted as adoptive parents, not to mind the difficulties of inter-country adoption. Now there is an entirely new legal framework which parents will have to negotiate. A huge information initiative is required to help people understand the implications of the Hague Convention and to give them reassurance in the case of bilateral agreements. Will the Minister spell out the implications of bilateral agreements not being in place by the time this legislation is passed? That is very important.
On the other point about flexibility, I agree that standards are incredibly important in this area. There has been exploitation internationally. Everybody wants to give a home to a child who is in need and who might be in horrific circumstances in the countries from which they are being adopted, but we know from international research that there have been appalling abuses in the adoption area, not least in Ireland in the past. Standards, therefore, are critical. The Hague Convention guarantees good standards. Adoption will not be allowed from any country that has not signed up to the Hague Convention. If, as Senator Healy Eames said, 78% of adoptions in Ireland at present are from non-Hague Convention countries——
Fidelma Healy Eames (Fine Gael)
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And non-bilateral agreement countries.
Frances Fitzgerald (Fine Gael)
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——what are the implications of that for social policy in this country with regard to adoption? More important, what are the implications for the individuals who are currently dealing with those countries? What is the Minister's advice to them? What will be the knock-on effects of this legislation for them? The Minister should spell that out as clearly and in as much detail as possible in response to these amendments. It would be extremely helpful in ensuring that the many couples who are involved in adoptions from these varying countries will know what the future holds for them when this legislation is passed.
Does the Minister still intend to make bilateral agreements after the Hague Convention comes into force or will it put an end to such agreements for all time? Can bilateral arrangements still be made with some of these countries after this legislation is passed?
Fidelma Healy Eames (Fine Gael)
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Well done to the Minister with regard to the Vietnam agreement. Let us hope it is established by 1 May so there is no breakdown for the couples in the process of adopting there. I wish to focus on Russia. I am aware of a number of couples — I am close to one of them — who have been approved to travel to Russia. This Bill is going through the Oireachtas at a rapid pace and if the Bill is enacted before the adoption process has been completed, will they be unable to adopt from Russia? This is unbelievable. I seek a commitment that, at the very least, adoptions in process, that is, where a declaration has been given by the social worker and the Adoption Board that within six months the couple can travel and identify a child in Russia for adoption, will be facilitated. We are talking about people in their mid-40s, who have spent five to six years getting to this stage only to discover that they might not now legally adopt from Russia because a bilateral agreement is not in place.
What is the position regarding the bilateral agreement with Russia? Will the Minister discuss the position of the couples that are currently in the process? It will be a terrible outcome for people who have gone so far in the process if it is stopped at this stage. The Minister will be aware that they are currently identifying with agencies in Russia for a suitable baby. That is how close they are to adopting. This Bill was introduced two weeks ago and it is already on Committee Stage. It is going through the Oireachtas rapidly. If another six months were available, couples in the process might have their adoptions finalised. We must think of the couples in the process. I look forward to the Minister's response on that point.
Ivana Bacik (Independent)
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I am grateful for the Minister's response. It is useful to remind ourselves that the rights of the child, not the parents, must always be paramount. The Minister is to be commended on the progress that has been made with Vietnam. However, I share the concerns of other Senators. It is a concern that some other countries in the EU have broken the link with Vietnam.
The valid questions that have been raised by Senators about this illustrate the difficulty with the current arrangement, a difficulty that will continue under this Bill when enacted. Senator Fitzgerald has put down a useful amendment, No. 49, which would resolve some of these problems in a pre-emptive or proactive way by requiring that prior to the expiration of any existing bilateral agreements, the Minister concerned would indicate whether that bilateral agreement was likely to be renewed and would give reports to the Houses of the Oireachtas on the progress being made. Does the Minister think that would be helpful? It would mean that even if only a twin-track approach is taken, in other words, an inter-country adoption can only be carried out with a state that is party to the Hague Convention or to a bilateral agreement — I can understand why the Minister does not wish to dilute that principle — there would be a little more certainty about the status of bilateral agreements or future bilateral agreements with countries with which we have long-standing relationships and from which a large number of children are already adopted and resident in families in Ireland.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I will deal first with the suggestion that we are proceeding too quickly. The Adoption Bill has been a long time in gestation. We published it five or six weeks ago after extensive consultation with the representative groups over the past few years. Since my appointment I have met the groups whenever they have requested such meetings and there is a very good relationship between them, the Office of the Minister for Children and my staff. We have afforded the representative associations all the time we can to ensure they are up to speed with what we are doing.
Some 66 amendments have been proposed. We are about an hour into the debate on Committee Stage and we are dealing with amendment No. 2 so we cannot be accused of being too quick on this. It is right that we take our time. We have had the period of consultation with the public and representative groups, and it is now a matter for the legislators. They can talk to the people who make representations to them. We are taking our time with the legislation and I do not accept that we are dealing with it too quickly.
We have made progress with Vietnam. That is due to the huge amount of work by the people in my office, the adoption authority, the Department of Foreign Affairs, the consular staff in Hanoi and the people in the Attorney General's office. A huge amount of effort has been put into it. The question is what we do after that. It must be remembered that the Vietnamese authorities have to agree to the proposal we will put to them. It is a sovereign Government and we cannot tell how long that will take. We cannot tell whether it will agree to it or what problems might arise. That is the next stage. People should be aware of that.
We are determined to proceed with trying to achieve a bilateral agreement with Russia. Again, however, the rights of the child will be central to that. We will have to be satisfied and have reassurances about the basic principles of international adoption relating to consents, ensuring there is no improper financial gain and the protection of children. Those are the central issues as well as eligibility. We will have to resolve all those issues. There is nothing to stop us proceeding with further bilateral agreements. The Vietnamese agreement has been in compliance with the Hague Convention. We have moved on, however, and we are trying to establish better standards now that we are in the process of enacting an Adoption Bill and transposing the Hague Convention in Irish law. The bilateral agreement must be upgraded to reflect these changes.
It was stated that 78% of Irish adoptions are of children from countries which have not adopted the Hague Convention or with which Ireland does not have a bilateral agreement. I am not sure what is the source of this figure but it is incorrect. I am informed that a large majority of adoptions are of children from Vietnam and that these are carried out on foot of a bilateral agreement which will expire and, I hope, be replaced at the end of April.
Fidelma Healy Eames (Fine Gael)
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Of those seeking to adopt a child, 78% are considering countries which have not signed up to the Hague Convention or with which we will not have a bilateral agreement.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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In that case, the figure is cited in anticipation that Ireland will not have a bilateral agreement with Vietnam. Let us not give the impression that three quarters of applicants will be left high and dry, even if we secure an agreement with Vietnam.
Fidelma Healy Eames (Fine Gael)
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In that case, the figure would be lower.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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While it is not the Senator's intention to give the wrong impression, it would be an unintended consequence of allowing the 78% figure to hang in the ether.
On the issue of adopting siblings from countries which have not adopted the Hague Convention and do not have a bilateral agreement with Ireland, the problem, as I outlined, is that, having signed up to the standards of the convention and consulted as widely as possible before incorporating them into Irish law, we should not require the authority, even on a case-by-case basis, as suggested by Senator Alex White, to satisfy itself that all adoptions comply with Hague standards on consents and the absence of improper financial gain in a third country. Ireland, as a small country with a small regulatory authority, cannot do an investigation of these countries to a standard sufficient to ensure an adoption should be accepted. We should be resolved and determined to remain within the boundaries of the Hague Convention and such bilateral agreements as we are able to secure based on the convention's principles. These are the standards we should apply.
Frances Fitzgerald (Fine Gael)
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On that point, the Minister of State appeared to indicate that his Department is not in a position to work on the bilateral agreement with Russia until such time as the bilateral agreement with Vietnam has been concluded. Perhaps I misunderstood him.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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My point was that we will probably spend more time on the bilateral agreement with Vietnam but we are making progress with Russia. In other words, we are addressing the issues which arise in this regard. I do not wish to give an impression that the process has stalled completely but a great deal of our time is taken up with the agreement with Vietnam because it is the most popular country for foreign adoptions. We also have an excellent relationship with the country and we recommend it to prospective adoptive parents.
Frances Fitzgerald (Fine Gael)
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My point was related to the resources available to the Minister of State's office to secure bilateral agreements. As the Minister of State noted, the Department has an agency working on the ground in Vietnam and departmental staff have been able to visit the country and work with Vietnamese officials. I hope we are moving towards a resolution although if I am to interpret the Minister of State's comments correctly, that is not definitively the case.
What resources are available to the Minister of State's office to address the issues which require investigation and reach satisfactory bilateral arrangements, for example, with Russia and Ethiopia? Are these resources sufficient to reach bilateral agreements in the coming weeks and months? What timeframe does the Minister of State have in mind for concluding such agreements? Is it correct that Ireland does not have a bilateral agreement with Russia?
Fidelma Healy Eames (Fine Gael)
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To clarify, I stated that 78% of those seeking foreign adoptions are considering non-Hague Convention countries or countries with which we do not have bilateral agreements. This figure is from the International Adoption Association, which does research in this area. Couples seeking foreign adoptions contact the association for advice and to declare their interest. That is a fact and we should not make little of it.
I do not believe the Minister of State answered my question on couples who are in process and have a declaration to travel to Russia. For example, I have just received a text message from a couple who state they have been given a declaration to travel in June and have been informed that is fine. This Bill could be enacted by June. In that case, what is the position of the couple? They have also been informed that many of the couples on their course are now excluded. Foreign adoptions in Russia are clearly an issue.
I share Senator Fitzgerald's concern that the Department may not have sufficient resources or that its staff may be over-worked. I have no doubt that it is doing brilliant work with regard to Vietnam. However, I was recently involved in bringing a body home from Vietnam and our dealings with the Vietnamese authorities were horrifically slow and difficult. It took us three weeks to have the matter dealt with. These are human issues which take a long time to address. Human issues also arise on this side. Will the Minister of State clarify the position of couples who are in process and have a declaration to travel but may not have travelled to collect the baby they wish to adopt before the Bill is enacted?
Barry Andrews (Dún Laoghaire, Fianna Fail)
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My office has outstanding human resources available to it. The effort and work of my officials is not constrained by time issues. Complex issues must be resolved, which takes time. I reject any suggestion, although no such suggestion is being made in the House, that anyone has failed to apply himself or herself or that public servants have caused a delay.
Frances Fitzgerald (Fine Gael)
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I did not make any such inference.
David Norris (Independent)
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The Senators' concerns related to financial resources.
Geraldine Feeney (Fianna Fail)
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Please allow the Minister of State to continue without interruption.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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As I stated, no such inference was made by anyone in this House. However, I make the point that it is unfair to portray anyone who works as hard as my officials as having caused a delay or that delays are typical of Civil Service inertia or any suggestion of that nature. Such accusations are absolutely unfounded.
David Norris (Independent)
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Does the Minister of State's office have enough money?
Frances Fitzgerald (Fine Gael)
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We asked questions about resources. No inferences were made about personnel in the Department.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I listened to everything that was said in this debate. Senator Fitzgerald, for example, described what was taking place as "disgraceful".
Frances Fitzgerald (Fine Gael)
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The uncertainty experienced by prospective adoptive parents is disgraceful.
Geraldine Feeney (Fianna Fail)
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The Minister of State did not interrupt Senators. I will allow Senator Fitzgerald to contribute again when the Minister of State has concluded.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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The record may show something different. Let us not get stuck on this issue. While I apologise if I have provoked Senators, I acknowledge the hard work being done in my office on this issue.
We are determined to secure a bilateral agreement with Russia before the Bill is enacted. We cannot guarantee this outcome will be achieved and it would be dishonest of me to suggest we will do so because we are dealing with a sovereign third country which will make its own decision on whether to sign a bilateral agreement.
I advise the couple who texted Senator Healy Eames to have faith for the moment and continue to deal with the country from which they propose to adopt a child. The last thing we want is people to go to countries where Ireland does not have a track record, has no experience and has not, therefore, obtained safeguards. We need to be careful in our choice of terminology and language because this is an extremely sensitive issue for prospective parents. While there will be turbulence in this time of change in regard to adoption in Ireland, we do not want people to panic and seek alternatives. Instead, we ask them to stay the course in this difficult and uncertain period.
The Department does not lack resources and it certainly does not lack determination. We are working extremely well with the agencies on the ground in third countries and representative groups here. I hope we will be able in the near future to assuage the fears about which we have heard.
Frances Fitzgerald (Fine Gael)
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I used the word "disgraceful" because parents in this situation have told me that by 17 February it was apparent the agreement had still not been sent to Vietnam. The Minister might confirm the date on which the agreement was sent to Vietnam.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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It has not been sent.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I said it was to be sent this week.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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Yes, I hope. I will clarify this for the Senator's benefit.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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We have communicated this to the support groups and they are aware of the position. I hope to be able to send this proposed agreement through the Department of Foreign Affairs to the Vietnamese Government in the next day or two — certainly this week. It will then be up to the Government of Vietnam to decide whether it will sign up to that agreement. There may well be negotiations and difficulties between the two countries. We can anticipate that as these are the difficulties one faces when dealing with sovereign governments. If it were simply the case that sending the agreement represented its ratification, it would be fantastic, but obviously that is not the case.
Frances Fitzgerald (Fine Gael)
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This Bill, which deals with the Hague Convention, is in the Seanad, but at the same time the Minister is trying to finalise an agreement with Vietnam which has not yet been sent to the Vietnamese Government. It is a reasonable point to make that it would have been preferable if this had been dealt with before the legislation came in.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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We will have to agree to differ. I do not think it is disgraceful.
Frances Fitzgerald (Fine Gael)
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I am glad to hear the Minister of State does not have any difficulty with resources. I hope that means he will be able to make progress on the Russian and Ethiopian agreements.
Geraldine Feeney (Fianna Fail)
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Is the amendment being pressed?
Alex White (Labour)
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I will reserve my position for Report Stage so I will not press the amendment at this point.
I ask the Acting Chairman for clarification as I am still a relative rookie. We were dealing with amendments Nos. 2, 14 and 50, and perhaps I was expected to address Nos. 14 and 50 at the same time, but they have not been called yet.
Geraldine Feeney (Fianna Fail)
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I am sorry. Amendments Nos. 14 and 15 can be discussed now.
Geraldine Feeney (Fianna Fail)
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I am sorry, it is amendment No. 50.
1:00 pm
Alex White (Labour)
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The Minister might have anticipated amendment No. 14 in some of his remarks a few minutes ago, but it is a considerably different proposal to that made in amendment No. 2, which had to do with a third category of possible inter-country adoptions. I will not press that amendment at this stage but reserve my position for Report Stage. Amendment No. 14 is a proposal akin to a grandfather clause, if it can be described in that way. The intent is similar to that of amendment No. 50 tabled by Senator Fitzgerald. It would allow for families who have already adopted a child from a country that has not approved the Hague Convention or with which Ireland does not have a bilateral agreement to conduct a second or subsequent adoption from that country. It would be something akin to an interim measure while those families are growing and developing as families. No adoptions can be completed by first-time applicants to that country, and if this amendment was not accepted or the issue not addressed in some other way, a child who has already been adopted from that country and is now an Irish citizen would be precluded from growing up with a sibling from his or her country and culture of origin. The basis of this amendment is to allow for such adoptions in what are essentially exceptional circumstances.
I understand what the Minister said in reply to the previous amendment. It is his view that we should have a regime whereby either the Hague Convention or a bilateral agreement applies, and to do otherwise would be to dilute the regime we are seeking to introduce. That argument has considerable force. However, the Bill itself, in section 81, does allow for arrangements in exceptional cases with a non-contracting state. Thus, according to my brief consideration of section 81, we are already contemplating in this Bill, quite rightly, allowing for adoption from countries that are not party to the convention and with which we do not have a bilateral agreement. In fact, it is at section 81 that Senator Fitzgerald's amendment is directed. Either amendment would deal with the point I have mentioned. Perhaps the Minister will address this.
Fidelma Healy Eames (Fine Gael)
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Amendment No. 50 refers to section 81, which states: "The Authority may enter into an arrangement with a non-contracting state that is not a party to a bilateral agreement if...the prospective adopters are relatives of the child". The amendment would continue this with "or have previously adopted a child from a non-contracting state". I support the amendment on the grounds it would be similar to a grandfather clause. If I have adopted a child from Russia, for example, with which there is no bilateral agreement at the moment, and I find out that a sibling of the same family is available for adoption, it is essential that my family be allowed to adopt the other child for the sake of both the new child and the existing child in the family. It is good practice. There is much research to show that this is useful in helping both children gain an understanding of their own identities and a sense of belonging. It is also positive in terms of building their self-image and self-esteem, and good for their overall health and well-being.
This is also the case if the child available for adoption is not a sibling of the existing child but is of the same nationality. I mentioned earlier that it was a very important aspect of the development of the adopted person that he or she find someone in his or her own likeness. There is evidence that many adopted people, because they do not find people in their own likeness, look forward to having their own children because they are the only people similar to themselves. Where we can complete families and work in favour of the existing child and the child to be adopted, we should do so. I strongly support this amendment. I ask the Minister to comment on this.
Frances Fitzgerald (Fine Gael)
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The point about amendment No. 50 is that the Minister, in section 81, is already allowing for some exceptions which are deemed necessary. The amendment does not, for example, create a right to adopt where a person or couple have previously adopted from a non-contracting state. Rather, as I said earlier, it provides for the making of an exception where the authority deems it required or desirable having regard to a range of factors. There is already a safeguard in that the authority must be satisfied the standards applied to the adoption accord with those of the Hague Convention. Thus, it is not creating another track, a possibility about which the Minister was concerned in our earlier discussions. However, it allows for an exception in terms of what is referred to as a grandfather clause, which could be helpful to many couples. I ask the Minister to consider this amendment.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I understand that because amendments Nos. 2, 14 and 50 are being taken together we should debate them together.
David Norris (Independent)
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The Minister of State has addressed them.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I do not mind addressing them again.
Alex White (Labour)
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On a point of order, it was my mistake and I think the Minister of State is correct.
Fidelma Healy Eames (Fine Gael)
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He did not deal with the grandfather clause.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I will speak to that issue.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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For future reference, should we not debate amendments together?
Barry Andrews (Dún Laoghaire, Fianna Fail)
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We have held wide-ranging discussions with the International Adoption Association on the grandfather clause and I have explained our reasons for not permitting it. The clause arises in this grouping of amendments for the simple reason that the arguments I made earlier apply in respect of it. We are introducing standard setting legislation and people have been crying out for us to sign up to the Hague Convention. It would be seen as a dilution of that convention's principles if we allowed an adoption simply because one has already adopted a child from the same country. In seeking to change the practice, we cast no aspersion on adoptions made from these countries in the past. The adoptions to which Senators referred were made in the utmost of good faith.
I am informed that no evidence exists to suggest that the adoption of siblings from the same country is of benefit to an already adopted child.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I acknowledge that the Senator claims to possess research that would suggest otherwise but my information indicates that no such evidence exists. It boils down to the question of whether psychological ties are more easily formed between people from the same cultural backgrounds or if it is the common humanity among people from various ethnic backgrounds that determines whether such ties can be formed. In the absence of evidence which would convince us of an overwhelming benefit and having given the matter all due consideration and consulted all the relevant parties, the Government is not prepared to accept the amendment.
Geraldine Feeney (Fianna Fail)
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Amendments Nos. 3 and 20 are related and can be discussed together by agreement. Is that agreed?
Frances Fitzgerald (Fine Gael)
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Amendments Nos. 14 and 50 have not been put.
Geraldine Feeney (Fianna Fail)
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They will be put sequentially as they are reached.
Frances Fitzgerald (Fine Gael)
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We have moved on to amendments Nos. 3 and 20.
Frances Fitzgerald (Fine Gael)
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However, amendments Nos. 14 and 50 were not called.
Geraldine Feeney (Fianna Fail)
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I will call amendments Nos. 14 and 50 when they are reached. Do Members wish to raise issues in regard to these amendments now?
Frances Fitzgerald (Fine Gael)
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They have been reached. We just discussed them.
Ivana Bacik (Independent)
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On a point of order, the normal procedure is that we discuss amendments when they are grouped together but they are not put or voted on until they are reached sequentially.
Geraldine Feeney (Fianna Fail)
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We debate the amendments now but we call them when we reach them.
Frances Fitzgerald (Fine Gael)
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I understand. It was my mistake and I apologise for it.
Geraldine Feeney (Fianna Fail)
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Is it in order to proceed with amendments Nos. 3 and 20?
Geraldine Feeney (Fianna Fail)
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Is it agreed that amendments Nos. 3 and 20 will be discussed together? Agreed.
Ivana Bacik (Independent)
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I move amendment No. 3:
In page 17, between lines 25 and 26, to insert the following subsection:
"(4) In this Act, "married couple" means an opposite-sex or same-sex married couple or a couple who have entered a registered civil partnership with each other.".
I welcome the opportunity to discuss this important amendment but I should at the outset declare my interest as counsel in the case taken by Zappone and Gilligan regarding the right of same-sex couples to marry, which clearly has a bearing on my proposed amendment. Amendment No. 3 takes a conservative approach in that it follows the practice in the bill of using the term "married couple". My colleague, Senator Norris, has tabled an amendment which takes a different approach but would have a similar effect. I considered a more radical amendment that would have extended the categories of those who are eligible to adopt beyond persons whose relationships are recognised. This Bill replicates an anomaly that exists in Irish adoption law whereby the only persons eligible to adopt are either single persons applying alone or married couples. In other words, no provision is made for adoption by a cohabiting couple, whether of the same or the opposite sex. That is anomalous because it means that a lesbian woman, gay man or heterosexual person could adopt on his or her own account irrespective of whether he or she is living in a relationship with another person. Eligibility for adoption would be considered on the basis of the individual and whoever he or she lives with will have no legal relationship with the child. It is anomalous that cohabitees are not capable of being considered as adoptive parents.
The more radical amendment I considered would have the expanded "married couple" to "married couple or cohabiting couple or person" but I restricted the scope of my amendment to a definition of "married couple" as a married couple of opposite sex or the same sex or a couple who have entered into a registered civil partnership. This is a pre-emptive amendment because it looks ahead to the time when, as the Government has clearly indicated, a legal system of civil partnership will be in place for same-sex couples.
If the legislation proceeds as the Government has indicated in the heads of the Bill, a system will be established of presumptive recognition of cohabiting opposite sex couples. Perhaps my amendment should, therefore, include this type of relationship. The amendment would also have to be accompanied by various other amendments to take account of a couple who were previously in a registered civil partnership, just as the present Bill provides that a couple whose marriage has ended will no longer be considered to adopt as a married couple. Where "married couple" is used in the Bill, it is taken to mean a couple who are married to each other and are living together. I am trying to extend in a somewhat restrictive manner the categories of those who are eligible to adopt to include only those same-sex couples who are married or have entered into civil partnerships.
When I raised this issue on Second Stage, the Minister of State responded: "Adoption is a right that is afforded to children, and the right of a child to a family is at the core of adoption legislation.". I completely agree with that statement and believe we cannot emphasise it enough. He went on to state:
There is also a right in my view which must be considered, that of same-sex couples. Their rights need to be explored. The Civil Partnership Bill is the forum at present for the extension of those rights. I am an extremely strong supporter of those rights but this Bill is not the appropriate forum for that.
I would accept the Minister of State's argument except that the heads of the Civil Partnership Bill make no reference to children or adoption. This is the reason Senator Norris and I have proposed amendments. The British legislation on civil partnership was introduced subsequent to reforms of that country's adoption law to enable adoption by same sex couples. A precedent therefore exists for providing for eligibility for same sex couples in adoption rather than civil partnership law. I urge the Minister of State to accept this method of extending eligibility, notwithstanding his stated view that the Civil Partnership Bill is a more appropriate vehicle. I welcome his acknowledgement that the right of same sex couples in this regard needs to be explored but it would be useful to do so in the context of the Bill before us.
The Citizen's Information Board guidelines on adoption by same sex couples indicate that current legislation is clear on the issue. Under current legislation it is not possible for a partner to apply to become a guardian of a child nor is it possible for him or her and the same sex partner to adopt a child jointly even where one of them is the birth parent of the child. This can no longer be justified in a modern state wherein, we know, there are already many children living within a secure and loving family whose parents are a same sex couple but with whom the child has no legal relationship as a couple even where one of the parents, as would be typical, is the birth mother of the child. That is an anomaly.
Many years ago, although rather belatedly, we equalised the position of children born in and outside marriage, which was a very important move. We say, and the Minister of State has reiterated this, that in all legislation of this type the primary concern must be the best interests of the child. I ask the Minister of State how it can be in the best interests of the child to continue to discriminate against children of same sex couples. There are in Ireland already many children, some of whom are well into their teens and older, whose relationship with their non-birth parent within a same sex relationship is not legally recognised. It is wrong that we continue not to recognise their relationship with their families.
I have no doubt there will be opposition to the amendments tabled by myself and Senator Norris. It may well be that the old canard that children have a right to two parents of the opposite sex will be restated. However, that is a meaningless thing to say. Children live in many different arrangements and with many different parenting situations. We have had in Ireland a long history of different types of parenting arrangements. All research indicates that it is the quality of parenting that matters to the child. What is important is that the child live in a loving home. The quality of parenting rather than sexuality or gender of either or both parents is what matters. I refer the Minister of State to the research of Susan Golombok and others. The most authoritative research establishes that there is no disadvantage to a child in being brought up by a same sex couple, a single parent or married parents, rather it is the quality of parenting that is of paramount importance.
At a recent seminar on civil partnership organised by Senator Norris, Fergus Ryan, an expert on this area of law, made the point that extending rights to children of same sex couples, as in this case, is not taking rights from married couples or from children within marital families, rather it is giving extra cake — to use that analogy — to people who should have it. That is an important analogy to make. If there are already, as we know there are, children in Ireland living in families with same sex parents who currently have no right to a legal relationship with the non-birth parent in that relationship, it is wrong that we do not extend to them the right to be adopted by their other parent thus ensuring they then have all the rights that follow from that. I am speaking again about the rights of the child as this must be framed in that context.
I cannot see any logical justification for opposing the principle behind this amendment and the amendment tabled by Senator Norris. I acknowledge many other amendments would have to flow from this amendment, if accepted, in particular to recognise the ending of a civil partnership. The amendment is predicated on a civil partnership regime being introduced. In principle, the amendment seeks to extend recognition for adoption eligibility to same sex couples. I do not see how the Minister of State can oppose that principle.
David Norris (Independent)
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My amendment is somewhat different. It seeks to insert in chapter 3, page 29, section 33, which states that the authority shall not make an adoption order or recognise an inter-country adoption effected outside the State unless the applicants are a married couple who are living together, a new subsection (b) which states that that the applicants are a couple of the same sex, over 21 years of age who can demonstrate that they have been living together within the jurisdiction for not less than two years and who have demonstrated to the appropriate authorities under this legislation that they are fit persons to adopt. I believe this meets the type of criteria indicated by the Minister of State, including a stable and successful relationship. Also, the welfare of the child is seen to be paramount and has been so adjudged by an independent body.
Elements of the amendment tabled by my distinguished colleague, Senator Ivana Bacik, appeal to me. In particular her amendment assumes the marriage of two people, Katherine Zappone and Ann Louise Gilligan, which is the subject of a case before the courts, is valid under the Irish Constitution. It is a case I strongly support. It seems to me to be perfectly clear and could not possibly be clearer going back over 40 years. It is precisely the reason Declan Costello in his 1967 governmental review of the Constitution indicated that he, as a member of Government and a distinguished lawyer, felt it necessary to spell out what had not been spelled out previously, namely, that marriage under the Irish Constitution should mean marriage between a man and a woman. It is obvious that in his opinion it does not mean that. That view was articulated in 1967, some 42 years ago. I am taking as granted that that is the position. In other words, I am waiting for the courts to recognise the constitutional position, namely, that Katherine Zappone and Ann Louise Gilligan are married and that other marriages are valid. It would be extraordinarily insulting on the part of the State of Ireland were we to tell Canada and other countries what should be their arrangements in regard to marriage and whether they are valid. That is my reason for supporting Senator Bacik's excellent amendment.
My amendment commends itself because it is directly in line with the principles of this legislation. It is idiotic to say we accept there are people in same sex relationships, each of whom can individually adopt a child but that the person not involved in the adoption has no relevance whatever in the situation. That is completely idiotic. Senator Bacik was reserved in what she said.
David Norris (Independent)
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It is idiotic, contemptible and inhumane and it does not redress this human situation. Moreover, if we are interested in the rights of the child, why then do we not listen to what the children affected are saying? There have been a number of marvellous, courageous and splendid interviews on radio, television and in the newspapers by these children who want to know why we do not recognise their relationships with their parents. If one wants to know whether the shoe pinches, one asks the foot, not the shoe. In this case, the foot is being ignored. There is a strong argument for this provision on the basis of what the children who are already in this situation are saying. It is idiotic that same sex parents can individually adopt a child and that the non-adopting parent is not permitted to have a legal relationship with the child. That is farcical. It is the result of cowardice on the part of the Government which refuses to face up to what is essentially sectarian and religious prejudice and hypocrisy.
With regard to the domestic partnership law, this is a blatant flaw. This was made obvious during the briefing session. The British amended their adoption legislation before introducing their civil partnership legislation. In light of the fact that we have produced a civil partnership Bill with this glaring lacuna, it would seem obvious that this situation should be addressed at this point. A recent survey indicated that 62% of the people have no difficulty whatever with recognition of full civil marriage for gay people which would automatically confer on them the right to adopt. Why is this Government intimidated by a few backwoods people? Why not get on with the job and do it with some little remaining degree of vision? I call on the Government to do this in the light of the clearly expressed views of the people which have vindicated people like me who have always said the Irish are decent, tolerant, compassionate, understanding, and not at the blatant level of idiocy and hypocrisy that we see in this neglect of the welfare of children. It calls into question that ceremony in the Mansion House, out of which I am very sorry I did not walk, where we trumpeted our succession to the ideals of 1916 and the Dáil of 1919 and recited yet again this notion of equality for children. No religious prejudice or preconception should ever be allowed to take precedence over the rights of children.
It was a proud day for me when I sat in this Chamber and heard a Fianna Fáil Minister, Máire Geoghegan Quinn, say she would need a clear, cogent and factual reason to introduce discrimination against any Irish citizen. That was a proud day for democracy and I was thrilled when I heard it. I would like a bit of action on the fine rhetoric that emerged from the former Taoiseach, Bertie Ahern, when he said there was absolutely no justification whatever in law for disadvantaging any Irish citizen on the basis of sexual orientation.
With regard to capacity I read with interest that there was evidence given by a person in that case who presumed to give evidence, who had no qualification whatever, had never published any research, who, when I said that in the House had the impertinence to write to the Cathaoirleach to complain. How dare those people stick their noses into an area where they have no competence whatever.
Mary White (Fianna Fail)
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I empathise with the Senators who have put forward this amendment. There is an anomaly there if a single person can adopt. I know a single lady who has adopted a baby from the Caribbean. If two people of the same sex are living together why can one not adopt the child of the other? I congratulate Senator Norris on his courage in speaking out alone. It was a lonely station. Some of the comments we hear in this Chamber about same sex relationships are not the general opinion of the Irish people. We are a very tolerant race.
Mary White (Fianna Fail)
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We were trampled for 800 years and we are not going to isolate anybody.
Mary White (Fianna Fail)
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In the course of my studies on suicide and self-harm I saw the report of the Gay and Lesbian Association to the effect that people who have sexual problems have a higher propensity to die by suicide which is unforgivable. Will the Minister of State say why, if single people can adopt, one partner in a cohabiting couple cannot adopt the child of the other? We will not resolve the issue in this Bill but will do so when we discuss the civil partnership Bill.
Rónán Mullen (Independent)
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It never gives me satisfaction to visit this issue because it is deeply personal for many. I recognise Senator Norris's particular knowledge of the issue and his attachment to his views which many support. I disagree with these proposed amendments. This is a sensitive, personal issue. I have friends who are homosexual who do not agree with my views on this issue and there are those who do agree.
David Norris (Independent)
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Senator Mullen knows some very odd people.
Rónán Mullen (Independent)
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It is very hard to have this debate because, despite the many welcome advances we have made in our ability to discuss a range of issues openly, people on both sides of the argument, particularly those with a traditional view such as mine, can easily and quickly feel demonised. They sometimes feel bullied into not expressing their views. I would like for people never to abandon values of absolute respect, regardless of their point of view, even if they feel that those points of view are destructive. No doubt Senator Norris believes that my point of view is destructive. Some of his and Senator Bacik's points of view, were they to carry weight, would be destructive of our society and injurious to the dignity of persons. That is my only motivation in speaking on these issues. I would rather that people's arguments on these issues were never characterised as religious. I describe myself as religious and know that Senator Norris is also a religious man. We have very different views on this issue just as people who do not share my faith or any faith might hold different views, or perhaps the same views.
I try to approach the issue from the point of view of respect for what I regard as the natural law and its philosophy, which is far from being the preserve of religious people, as Professor John Finnis in Oxford makes clear. I also try to seek out the common good. I am absolutely at one with Senator Bacik in trying to work out the implications of the statement that the welfare of a child shall be paramount. That is my starting point in respect of a range of issues, whether research that involves the destruction of embryos or adoption by same sex couples. As Senator Ross said on another topic, on another occasion, it is inaccurate to portray as exclusively religious or sectarian viewpoints that are deeply held and whose premises perhaps differ from those of the proponents of these amendments. It is dangerous to label the views of other people as either sectarian or religious, although I support the right of religious people to advance a religion-based argument. I hear all sorts of arguments based on prejudice and personal convenience every day of the week. Every voter and public representative is entitled to take his or her lived experience into the ballot box and the debating chamber. My motivation is to seek out the common good based on rational argument and principles that seek to vindicate the dignity of the person in all circumstances, without fear or favour. It is in that spirit that I approach the amendments tabled by Senators Norris and Bacik. I am taking as my starting point the constitutional architecture in which we operate. I refer to the State's pledge in the Constitution to "guard with special care the institution of Marriage, on which the Family is founded". I heard what Senator Norris said about Mr. Justice Costello's views. It would be the settled view of most people in society that the Constitution prefers the family based on marriage — by which I mean marriage between a man and a woman — not because it wants to be hard on anybody or to disrespect anybody's private life, but because it believes that marriage offers the optimum set of circumstances for the upbringing of children in our society. That is not to say that children who find themselves in circumstances other than marriage are not well loved and, in many cases, very well reared. The business of the State, and the reason the State takes an interest in marriage, as distinct from leaving it as a private arrangement between parties——
Geraldine Feeney (Fianna Fail)
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I hate to interrupt Senator Mullen but as it is now 1.30 p.m. I have to suspend the sitting.
Ivana Bacik (Independent)
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On a point of order, before the House suspends I ask the Minister of State to take the opportunity during the sos to consider whether some move towards the recognition of same-sex couples, and children within same-sex couples, might be done in the civil partnership legislation. The Minister of State said at an earlier stage that his view was that the matter should be dealt with in the civil partnership legislation rather than in this Bill. Will he will take the opportunity afforded to him by the sos to consider that?