Wednesday, 11 March 2009
Adoption Bill 2009: Committee Stage (Resumed)
We had some discussion on this earlier. Basically, a number of criteria in the Bill regard the mother or guardian as to the effect of adoption and this is an amendment to ensure the woman has been fully counselled. At this stage there has been some debate on this and I would like to hear the Minister of State's response as to whether he would consider inserting this provision.
I support Senator Fitzgerald in this amendment. I cannot remember but I think I spoke already on this to support her and in that case I will not say any more. It is an important amendment and like Senator Fitzgerald, I would like to hear the Minister of State's response.
I thank the Senators. I am opposing the amendment. It is my view that section 14 already provides that the accredited body shall provide the mother with a written statement explaining the effect of an adoption and the consent necessary, and requires the mother to sign a document stating she understands the import of the written statement.
Furthermore, section 28 goes on to provide that the consent to the making of an adoption order is not valid unless the person whose consent is necessary has given the consent and understands the nature and effect of the consent to the adoption order.
Section 28 indicates that the mother should understand the nature and effect of the consent and of the adoption order. My amendment would strengthen that in section 14. It is an elaboration of the issue and a safeguard, given what we have seen in the past. People have found themselves in positions where they have clearly stated they did not understand the consequences of the various legal aspects of adoption or the decisions being made. This is an attempt to safeguard that and I am disappointed the Minister is not inserting it in this section at this time.
At one level I am inclined to agree with the Minister of State in that when a person has been counselled and gone through the assessment process as a prospective adoptive parent, there should be a very good understanding of what is about to be undertaken. In the case of the young mother of baby Ann recently, she clearly did not know the import of what she was embarking on. Ultimately, the adoptive parent lost out and the baby was returned to the birth mother. It would be wise to indicate that both the birth mother and adoptive parent needs to be fully aware of what they are undertaking prior to the signing of any documents. Will the Minister of State comment on that?
The baby Ann case is a very unfortunate set of circumstances. Those types of cases are determined on the basis of the best interests of the child, as we all know. Even under the old regime prior to this adoption Bill, every effort is made to allow the mother realise the consequences of both the placing of a child for adoption and the adoption order itself.
The best practice in this area internationally and here in Ireland from lessons we have learned from such unfortunate cases are encapsulated in the section and the corresponding section 28. I am satisfied that the amendment simply restates what is already in the section and that it does not go any further. The understanding that "the effect of her decision and that she has made her decision freely" is another way of saying what is already in section 14.
There can be no duress, which is implied as the opposite of a free decision, or oppression of will. This must be done on the basis of a full understanding of the consequences of what is being done and an understanding of the statement and the signing of that statement. There are a great deal of safeguards, all of which reflect best practice.
Sometimes, when going through procedures, there is a series of statements that must be signed. It can often be done in a ritualistic way and they may be handed over to people who are asked if they understand it and then sign it. My amendment uses the phrase "fully counselled", which is different to asking if a person understands a form and can sign it. It is an attempt to ensure there has been full counselling, there is full understanding and the woman has made the decision freely.
I accept there are improvements in this legislation in terms of trying to ensure the very best practice is followed. This amendment would strengthen the provisions and ensure full informed consent by the mother. It would avoid problems down the road.
All the big cases in this area have featured the giving of full information by social workers to natural mothers and problems arise with a change of mind. Taking all the sections together, the statutory framework is correct. We must ensure practice reflects that, as it sometimes has not been of the first order in terms of what social workers do and how they work. I am satisfied the statutory framework is there and the next step, which is nearly always the case, is to ensure that is reflected and transposed into practice.
I move amendment No. 6:
In page 21, before section 16, to insert the following new section:
16.—(1) A child shall not be placed for adoption, nor may an application be made by the mother or a relative of the child for an adoption order, without the consent of the father or the court where the father is a guardian or is named on the child's birth certificate.
(2) Where subsection (1) does not apply, the father may give notice to the Authority that he objects to the adoption of the child.
That issue is dealt with in later sections. That issue will be widely discussed when we come to deal with them.
I move amendment No. 8:
In page 23, subsection (5), line 7, to delete "refuses to" and substitute "does not".
I am glad to have this opportunity to address the House on this group of amendments because, effectively, they all seek to achieve the same objective. As the Minister of State said, section 18 provides for circumstances where the father cannot be located or the authority does not know his identity. It covers those issues. Effectively, it is where the accredited body is to be exempted from a duty to consult the father. It mirrors, as I am sure the Minister of State will state, the existing provisions.
The amendments I seek to insert will not in any way change the substance of the section. I should state that initially. I do not have any objection to the substance of the section. It is eminently sensible as it provides for the necessary procedures to be gone through where the father cannot be located.
I propose in these amendments to change the language in the section. While the language mirrors the existing language in section 6 of the 1998 Adoption Act, which inserts a new section 19A into the Adoption Act 1952, none the less it could be improved upon. Section 18(5) states that, "If the identity of the father of a child is unknown to an accredited body and the mother refuses to reveal the father's identity" and it goes on to outline what will happen. In amendment No. 8 I propose to delete the words "refuses to" and substitute the words "does not". My reason for doing so is that I believe the words "refuses to" are loaded. There is a judgment implied of the mother's failure to reveal the father's identity that signifies that there is something wilful, deliberate or negative about her failure to disclose his identity. In the interests of procedures running more smoothly, it would be better if the section was more neutral in the way it portrays the lack of revealing of the father's identity.
The proposed amendment does not in any way change the substance or purpose of the section because it still requires that where the mother does not reveal the father's identity, the accredited body must then counsel the mother on the various matters and if the mother continues not to reveal the identity, the accredited body must furnish the authority with a written report and so forth. The proposed amendment does not in any way change the steps that must be taken by the accredited body where the father's identity is not revealed. It would simply insert more neutral language that is not condemnatory of the mother's failure to disclose the name.
Clearly, there may be many reasons a mother might not wish or might not be able to disclose the identity of the father. It may be a lack of knowledge as to who he is. It may be a desire not to reveal his identity for many reasons, which are implied in other provisions of the Bill, where, for example, there has been violence in a relationship, where the conception is as a result of non-consensual intercourse and so on. There might be painful and difficult circumstances around the father's identity, especially where mothers seek to give a child up for adoption, and there may be a very good reason for the mother not wishing to disclose the name of the father. The use of the language "refuses to" implies a judgment of that decision by the mother.
I will not labour the point in terms of the other amendments because it is fairly clear. Amendment No. 9 seeks to delete the words "in order to attempt to obtain her co-operation". Again, that implies the mother is willfully not co-operating. That wording does not add anything in the sense that the purpose of the counselling is clear from the remainder of subsection (5)(a).
In amendment No. 10, I suggest that rather than the language "continues to refuse to" the use of language "does not" in terms of does not reveal the identify of the father. That language would be neutral as to why the mother is not revealing the identity of the father. In amendment No. 11, I propose the substitution of the word "assistance" for the word "co-operation" in subsection (6)(a). "Assistance of the mother" is a more positive term.
This exercise is all about trying to improve the process by which children are given up for adoption and to make it easier. It is a difficult process, particularly perhaps for the natural mother, and we must be mindful of and sensitive to that. That is why I suggest a more sensitive use of language in these provisions.
Amendments Nos. 17 and 18 relate to section 30, which provides for necessary procedures to be put in place. As stated in the Bill, having gone through the necessary procedures with the accredited body, the authority will then dispense with consultation with the father where the identity is unknown. The same language of refuses to or is unable to reveal the father's identity is used in subsections (5) and (6). I suggest the use of the wording "does not" or "unable to" is a better and more sensitive use of language than the wording "refuses to".
I would be grateful if the Minister of State would indicate his willingness even to examine this issue of sensitivity in language. When we are dealing with a topic as difficult as adoption, it is useful to attempt to be as sensitive as we can be while maintaining the necessary substance of the relevant provisions. I would be grateful for the Minister of State's views in this respect.
I wish to add my words of support to Senator Bacik's words. This is not just a question of semantics or of use of words. Clearly, the word "refuses" has an insinuation of a determination not to whereas the words "does not" includes all the other reasons as well. In the case of amendments Nos. 8 and 10 the wording "does not" is much more moderate. It gets to the kernel of the topic. The word "refuses" has a different meaning and implies that the mother determines that although she apparently knows the identity, she refuses to reveal it. The words "does not" cover that. I urge the Minister of State to give serious consideration to accepting the proposed wording.
I support Senator Bacik in her choice of words because, as I alluded to earlier, there may be cases where the mother does not know who the father is and the baby may have been conceived as a result of a very traumatic experience, be it rape or incest. The word "refuses" implies a lot that may only add to a great deal of pre-existing pain. Therefore, the words "does not" or "unable to" would be well-chosen words and I support their use.
I am inclined to accept the principle behind the amendments in regard to the words "refuses to" because we can do something on that and it is probably worthwhile to do so. The only caveat and reason I would not accept the amendments today is that I am concerned there may be an unintended consequence that mothers may be less inclined to reveal the identity of fathers. There is a possibility that they may opt instead not to do that more easily. As Members are aware, we are trying to guide ourselves on the principle of what is in the best interests of a child. It is obviously in the best interests of a child for many reasons that we would know the identity of the father. If Senator Bacik would withdraw her amendments, we might return to this issue.
However, in regard to the use of the word "co-operation" in amendments Nos. 9 and 11, I am not minded to accept that "co-operation" is a pejorative term and the section is improved by the substitution for it of the word "assistance". Co-operation has always been positive. While I accept it is an issue of language, I am satisfied that the co-operation of the mother is understood to be in the best interests of the child in those circumstances.
I am grateful to the Minister of State for indicating willingness to consider the matter and I will certainly not press it at this stage. I look forward to some constructive proposals on Report Stage. I would be very grateful if the term "refuses to" was removed as it is perhaps the most loaded term. I am grateful to my colleagues, Senators Quinn and Healy Eames for their support. I note that section 30(5) already includes the term "refuses or is unable to". That is not included in section 18(5), which is an interesting omission because it implies the only reason the mother does not disclose the name is that she refuses, which clearly cannot be right. There would be many circumstances as envisaged in section 30 where the mother is simply unable to reveal the identity of the father. The term "refuses to" must be changed. I am glad that principle is acknowledged.
Co-operation is a less judgmental and loaded word. However, we need to consider the context in which it is used. I take the Minister of State's point that generally to co-operate is positive. However, section 18(5)(a) uses the phrase "in order to attempt to obtain her co-operation," which implies that she is not co-operating. I have a sense that is not the most sensitive or helpful phrase. I take the Minister of State's point. Clearly one must guard against the unintended consequence that a mother is less likely to disclose the name of a father. My feeling, which I hope is right, is that there would always be a good reason for the mother not to disclose the name of the father. I do not believe that changing "refuses" would alter that. I do not believe it would encourage more women not to reveal the father's identity. Clearly there are still many steps to be taken where the father's identity is not revealed. It is not as easy a process and is more cumbersome. Therefore there are many built-in reasons for a person to reveal the father's name if possible.
I note that both sections 18 and 30 contain procedures for statutory declaration where the mother is unable to identify the father. There are steps the mother must take and it is not as easy as simply not disclosing. Clearly the procedures that must be followed where there is no disclosure are more cumbersome than those where the mother names the father.
I am grateful to the Minister of State. I would like to see "refuses" removed. Some phrase that is not quite as loaded as "attempt to obtain her co-operation" would be useful because in its current context it implies that there is no co-operation. That is not helpful when we are trying to ensure the process is smoother and easier for everybody given that the process can only be a difficult process, especially for the natural mother. I am grateful for the Minister of State's words and I will not press it at this stage.
I move amendment No. 12:
In page 24, line 12, after "consideration" to insert the following:
", and it shall be presumed unless the contrary is shown that the welfare of the child is best promoted in the society of either or both of the child's natural parents".
The test that arises from the Supreme Court decision in N and HSE is material to the amendment and to section 19 in general. The notion of the welfare of the child is not a freestanding concept. There must be a presumption going with it. Is there to be or ought there be a presumption going with it that the welfare of a child is best promoted in the natural family unless the contrary is shown? I am not sure whether that is the case or whether that ought to be the case. I do not believe that the notion of the welfare of the child is undifferentiated or a freestanding concept. I would be interested to hear the response of the Minister of State on that matter. It is not possible to reduce welfare to simply a financial contest between natural parents and the conceivably more well-heeled or better-endowed financially adoptive parents. That is the basis upon which we propose to insert the words contained in the amendment.
I oppose this amendment which is not helpful. Section 19, as drafted, very importantly regards the welfare of the child as the first and paramount consideration, which is in keeping with our international obligations in terms of the rights of the child. To start to qualify or dilute that by creating presumptions would be unhelpful. Senator Alex White already referred to the baby Ann case. Unfortunately the constitutional presumption already requires that the marital family has certain rights over the child, which is not always conducive to the best interests of the child. There is a difficulty with that, which is why we have the current debate on the need to insert a constitutional amendment on the rights of the child. The judge with perhaps the most experience of child and family law, Ms Justice McGuinness, has made various comments that are pertinent. She supports the idea that the welfare of the child should be of first and paramount consideration, as we all should do.
Section 19 frames that correctly without any qualification or presumption. How can we say that the welfare of the child is best promoted in the society of either or both of the child's natural parents as a presumption? Certainly that would be the case for many children and, one would hope, for the majority of children. However, we need to be realistic. Children are not placed for adoption unless the natural mother, in particular, believes it is in the interests of the child that the child not be brought up with his or her natural mother and indeed sometimes with his or her natural father as well. For the courts trying to adjudicate on these matters and for the Health Service Executive trying to run the adoption procedure as best it can, it is vital to include the phrase "the welfare of the child as the first and paramount consideration" without qualification. Clearly welfare encompasses an entire range of different aspects. They are not just economic and financial but also emotional, psychological, spiritual and so on. We would certainly hope that most children would be brought up by their natural parents and that is not a problem. However, the Bill is not dealing with that majority of children but with children who are offered for adoption, which is a very different context. In that context it is vital the welfare of the child be the first and paramount consideration and that we do not dilute it with presumptions.
I support Senator Bacik. I would like the section to stand without amendment. It is important to consider the welfare of the child without any qualification. When a child is placed for adoption only the child's welfare must count and not whether the birth mother is placing requirements etc. The welfare of the child is a very wholesome concept. It embodies all the aspects, including the physical, emotional, social and spiritual ones. That would also include the nurturing of the child's talents into the future as they emerge. In my experience of the adoption and assessment process I feel very confident that the authority places the welfare of the child at the centre. It is best to leave this without any qualification as it is stated in the Bill. I will also be opposing the amendment.
In supporting the amendment, I wish to make a point. Senators Healy Eames and Bacik made the point that the amendment clearly places the welfare of the child at the very top. The amendment states "unless the contrary is shown", which means the amendment has taken into account and recognised the very points made by those who believe the amendment should not be accepted. Given the choice, the amendment is in the interests of the child because it insists that unless the contrary is shown, the child should stay with its natural parents if that is at all possible. Because of the term, "unless the contrary is shown", I certainly support the amendment.
The position in general terms in the Constitution is that it is presumed the best interests of children are served in the marital family. We can debate that presumption all day in the context of the marital family and natural parents but that is not really relevant to this matter. We are dealing with what considerations are to be taken into account during adoption proceedings. Naturally, adoption proceedings kick in when a natural parent presents a child for placement once all of the previous circumstances have been satisfied. It only kicks in when the adoption process has begun.
At that point, the presumption that is being suggested by the amendment, albeit a rebuttable presumption, carries the danger of skewing what, up to now, has served its purpose very well, namely, that the first and paramount consideration should be the child's best interest, and that at no point should a burden to disprove anything be placed on adoptive parents. It should simply be the case that if it is in the best interests of the child to stay with the adoptive parents, then so be it, and if it is in the best interests of the child to be returned to the natural parents, then so be it. That should be adjudicated freely in court and should depend on the circumstances arising in the case.
This has been the practice. As I am sure Senator Alex White is aware, the interest of the child is not just a financial matter and of course it encompasses the physical, moral, educational, spiritual and social interests of the child. That is the way in which the welfare of the child is taken into account.
I am interested to hear what the Minister of State and my colleagues have said in this regard. It is probably fair to say the substance of the proposed amendment more closely approximates to our law than the section as drafted. I understand the Minister of State's point as to its relevance in this section and, for that reason alone, I will not be pressing the amendment at this point. However, the Minister of State will know we are wrestling with these issues in the committee of which I am a member. There is some irony to the fact the content of the amendment as proposed by us is essentially the law, although the Minister of State says it is not relevant to have it included here — that is really the point he is making and I understand that point. While it is important to test this issue, as we will be doing in the next couple of months in the committee, I will not press the amendment at this point.
I do not believe the amendment does state the law at present. The law at present, as the Minister of State and I said, is that there is a constitutional presumption that the interests of the child are within the marital family but, in all other matters, while the constitutional preference for the family is there in Article 41, it is not necessarily with the natural parents. We must be mindful of the UN Convention on the Rights of the Child and our obligations thereunder to ensure the best interests of the child must take precedence in all matters concerning the child's welfare. Of course, that is in keeping with other legislation in terms of the Guardianship of Infants Act, which defines "welfare" very broadly in section 2, and while we do not have a definition here, we can take it "welfare" has a similar broad meaning in this Bill. It would be important not to qualify the consideration contained in section 19 that the welfare of the child should always be first and paramount in considering the making of an adoption order.
I move amendment No. 13:
In page 24, between lines 12 and 13, to insert the following subsection:
"(2) It shall be the duty of the Authority to obtain, where possible, the medical records of the biological parents of adopted children and to make such records duly available to the adopted children or their guardians through the HSE.".
This amendment arose from an approach from a person whom I have known for 20 years. This man had been adopted at a very early age and had not met his birth mother until quite recently, certainly in the past ten years. He had always suffered from a particular illness. When he met his birth mother for the first time and was made welcome, he told her of this illness. She told him his father had the same illness and that she was sure this is where he had inherited it from. Had he and his medical advisers known this at an early stage, while the illness would not have been cured, it could have been delayed and restricted and he could have been helped a great deal.
It seems it is possible to help in this regard. I am not certain the amendment is totally accurate or capable of being enforced and, therefore, I included the term "where possible" because I assume it is not possible in many cases. In this case, however, and in many like it, it seems a shame the adopted child was unaware of the inherited illness when, had he known it, it would have been of great benefit.
I have also referred to the anonymity of the parents in order to protect them. While I am not sure if this is the ideal way to do this, I put forward the proposal because I believe it is worthy of consideration, which I hope the Minister of State will give it.
I am happy to support the amendment. To be fair to current practice, social workers do try to establish medical history and while it has not been my experience in this country that they have supplied medical records of biological parents, they have certainly established medical history in anecdotal form. However, in the case of foreign adoption, I have, in my own case, been provided with medical records, which is very useful. Every family has a medical history. A child's uncles and grandparents may have had a long line of heart disease, for example. Prevention is better than cure and a parent can adapt a lifestyle around that.
This is a very useful amendment. Senator Quinn has wisely inserted the words "where possible" because, of course, we do not want to slow down an adoption process or make it impossible to go ahead with it because the biological records of parents are not available. It is useful and I am keen to hear the Minister of State's response.
It is a useful idea. I am not sure this is the best section in which to insert it given this is the section providing for the welfare of the child and, therefore, to include anything else in it seems to be a weakening or a detracting from that paramount consideration. However, it is useful idea to have some sort of duty, be it in statute or guidelines, that the authority would, where possible, make available medical records of biological parents. I would be interested to know whether there is currently a policy whereby such records are made available as a matter of routine, where they are available — I can imagine there are many cases where they are simply not available.
It is a very well-intentioned amendment. To identify genetic illnesses at the earliest possible time in a child's life can have an amazing impact on the treatment and even the life expectancy of a child — that goes without saying. However, I am not inclined to accept the amendment for two reasons. One is that the health information Bill will deal with some of the issues. There are issues concerning whether one can access medical records of one's parents in the normal course of events, apart from adoption — for example, I cannot access my parent's medical records. That is a legal difficulty which would have to be overcome. It is a legal principle that persons are entitled to confidentiality in respect of medical records. However, I understand the health information Bill will build on existing data protection legislation which gives effect to the EU directive on data protection. The principles of this are well established nationally, especially in the case of what is termed sensitive personal information and personal health information. This obviously falls into the category contemplated by Senator Quinn and those legal difficulties must be overcome. Nevertheless, as Senator Healy Eames rightly pointed out, in the process of placing a child for adoption medical histories are obtained where possible. In practice, therefore, this happens already. Part of the work done with birth mothers concerns the relinquishing of this information. We already had this discussion with regard to cases in which a mother refuses to identify the father. Clearly we wish to calibrate this in such a way as to balance the rights of mothers and fathers with the need to get sensitive medical information that may help the child in the treatment of any genetically inherited illness.
Both in practice and in statute we have the right balance. However, I believe this will be visited on a statutory basis when the health information Bill comes before both Houses.
I thank the Minister of State. I understand the point he makes. I agree with Senator Bacik. I am not certain this is the right place to put it. I believe the objective I sought in this amendment is understood and if it is possible to cover it in the health information Bill, that will solve the problem.
Senator Healy Eames made the point that the supply of information usually happens in any event and it may not necessarily be required to include it in legislation. However, I urge the Minister of State to consider the matter and ensure it is passed on to those who are putting together the health information Bill on the basis that it would solve a problem that exists. Such a measure would help those who have experienced such problems. I will not press the amendment. I believe the Minister of State understands the objective and I hope we will achieve something.
I move amendment No. 19:
In page 28, before section 31, to insert the following new section:
"31.—(1) In this section, "a contact order" means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.
(2) Where the father is consulted under section 30 (3) of this Act, the Court may make a contact order in favour of the father, on such terms as the Court may see fit.".
On Second Stage we mentioned the concept of open adoption and asked the Minister of State how legislation might deal with that and what his view was in terms of the legislation required. We suggest a new section here in respect of the definition of a contact order. In addition, in paragraph (2) of the amendment we suggest that where the father is consulted, as under section 33 of this Bill, the court can make a contact order in favour of the father on such terms as the court sees fit. This amendment attempts to deal with situations of open adoption where, potentially, there would be ongoing contact such as is prevalent now in many countries, including Ireland.
I support this amendment. There are instances where the finality of an adoption order may not be appropriate. On Second Stage, I argued that it might be a good idea to provide for special guardianship in this Bill or in other legislation. This is a mechanism provided for in section 115 of the UK Adoption and Children Act 2002. It gives long-term foster carers an additional legal status vis-À-vis the child who has been in their care for some time but in respect of whom an adoption order may not be appropriate. Senator Fitzgerald's amendment seeks to do something similar by ensuring there can be some ongoing contact even when an adoption order has been made.
A special guardianship procedure would be an alternative route. It would allow foster parents to have a special guardianship of a child but does not amount to a full adoption order in respect of the child. The child does not terminate his or her rights in respect of the natural parents. In some cases, that may be better for the child and for all concerned. I raised that issue on Second Stage but the Minister of State did not respond at that time. The previous Minister of State with responsibility for children consulted widely about special guardianship because of the mechanism used in Britain. Will the Minister offer his view on this? It is not directly to the point of this amendment but seeks to do something similar, namely, to offer something other than the finality of an adoption order, which seems to be the system we have currently. Might there be a better way to ensure some ongoing contact, even in cases where an adoption order has been made? Might there be an alternative to making an adoption order in some cases, for example, where long-term foster carers have been caring for a child who has ongoing contact with his or her natural parents and does not wish to sever that contact?
This amendment envisages a hybrid between fostering and adoption, a legislative halfway house. As Senator Bacik pointed out, previous Ministers of State with responsibility for children have, to an extent, investigated the matter. We may return to it but not in the context of adoption. Fostering arises out of child care concerns, as opposed to adoption, which is the creation of the same family tie that exists between a natural parent and a child. It is the recreation of that, on foot of the Adoption Bill and all the procedures contained therein. Fostering, on the other hand, arises from an order made, voluntarily or otherwise, under the Child Care Act 1991.
In Ireland we have a set principle that reflects the principles in the Hague Convention, namely, we prefer full adoptions because of constitutional provisions concerning the protection of the family. The Bill in its provisions allows for the conversion of simple adoption — the type of open adoption to which the Senator refers — into full adoption. I am not against the idea of an enhanced guardianship or a suite of rights for foster parents which would — I will be careful in my choice of words — improve the fostering relationship between parent and child and obviously in the best interests of the child. Recent legislation and child care legislation has given to foster parents the right to consent to medical procedures and to apply for a passport for a foster child. These are the kind of rights I have in mind and on which we can make progress. However, this would be under the heading of child care rather than under the heading of adoption. Under adoption we create a full adoption which gives to the adoptive parents and the child that same relationship as between natural parents and children in this country so, therefore, I am not inclined to accept the amendment.
I understand the point being made by the Minister of State about the meaning and the finality of an adoption order and the bundle of legal rights that are associated with it. One could argue that one cannot have a halfway house and that it is either adoption or it is not and there has to be certainty about it. This is what section 58 touches upon and to which my amendment No. 44 relates.
I understand very well the argument made by the Minister of State and the context in which he makes it. However, Senator Frances Fitzgerald's amendment has merit and I also draw the Minister of State's attention to my amendment No. 44 which I accept would constitute a very radical proposal in the context of the law as we know it and as has been described correctly by him. However, if one considers the current situation, in the case of a non-adopted child the position is that any relative or person who is acting in loco parentis to that child can apply for access to the child. That person may not have an automatic entitlement to obtain access but can apply none the less. The natural or even the married parents do not have an entitlement to absolute control over access. This is our law as I understand it and I am open to correction if I am mistaken. Why should that situation be changed so fundamentally and so utterly in the case of an adoption order?
In the case of a natural mother who cannot cope with the child, for instance, due to drug addiction or some other issue and the child is adopted, why cannot we at least explore or examine a bit further how a court might be able to afford her some small amount of access from time to time in the circumstances, without prejudice to the rights of the adopting parents who have all of the normal parental rights and duties as the Act makes clear and as the law currently states?
The idea that an adoption order must terminate all pre-existing relationships in that very harsh manner that it would appear to do, seems to be almost a kind of throwback to an earlier era of how we understand what adoption can offer and what is adoption.
Is there space or grounds here for the Minister of State to look at whether it has to be so black and white and such a final either-or situation? I know there are constitutional contexts to this and the Minister of State might well say the effect of this amendment would be unconstitutional but the old section 11(b) of the 1964 Act would seem to me to be unconstitutional for the same reasons if that were the case.
I do not expect the Minister of State to embrace this issue on his feet in the House but I appeal to him and ask that he might give it some further consideration. I acknowledge this is excellent and important legislation and there has been significant work on it. If we are ever to address this issue this is the only time when we can realistically address it. I do not claim to have the solution to the problem but it seems to me that this window between now and Report Stage might offer the opportunity for it to be considered once and for all.
Adoption practice is changing quite dramatically and there is the concept of open and closed adoption. The Minister of State in his response is speaking about a closed adoption system whereas the truth is that practice has gone ahead of——
We will say full adoption. My point is that practice has gone beyond this in the sense that many adoption agencies and those working with mothers would set up a situation where birthday cards and letters and photographs are sent to the natural mother and significant events are recorded for her in letters. This is the practice and there are also examples of actual contact between natural mother and child, by agreement. The practice is ahead of what the Minister of State describes and there is scope for the law to reflect this and to formalise it. I ask the Minister of State to examine this issue. I understand there may well be constitutional issues but I ask that he examine it and see if there is scope and if it is constitutional for the Bill to include some recognition of this reality and some provision that would address it.
With respect to my colleague's views, I have some difficulty with this amendment. I see merit in a suite of options being made available to adoptive parents and adopted children in both full and open adoption. I have no difficulty with the exchange of photographs and information updates on a birthday basis as this is quite normal. When birth mothers and adoptive parents meet, they often agree to do this for six or seven years or whatever. However, the issue of visits is quite something else and I say this, bearing in mind the interest of the child. We need to be very careful about the growth and development of the child and the confusion that can arise around identity. I am completely supportive of the child knowing from day one that he or she is adopted and knowing his or her rights, the right at 18 to search and to trace and to be supported. It is always very useful when the birth mother or parents have had an opportunity to meet the adoptive parents and this is discussed before the adoption is finalised. In the UK, open adoption is quite common but I would like to know more about the outcomes of this policy and the research showing how good this policy is for the child. The most important aspect must be the welfare of the child.
I acknowledge there will be exceptions where a birth mother may have difficulty raising her child and where a birth mother, in all sincerity, is not able to agree to full adoption for her child. In that case, open adoption may make it easier and it would serve the child well.
The teenage years are tough years for some adopted children. Every teenager has difficulties coming to grips with themselves, with puberty and with his or her own development. When the meeting of a birth mother or father is put on top of that, it is quite something. I would wait until the child is 18 and I wish to add that to the pot of the discussion.
A national contact preference register was established in 2005 and this gives adopted children and natural parents an opportunity to put out feelers for contact. A court order is a dangerous precedent. There could be a frustrated father who objected to the placement or who challenged the consent being dispensed with in the High Court and who could be making applications for contact orders or applications as envisaged under amendment No. 44. This would cause upheaval for a child. As Senator Healy Eames said, it is already traumatic enough for a teenager. Many of them ask "Why me?" regardless of the difficulties associated with adoption and the greater problems associated with court applications in relation to contact that may not be welcome. That concern must be considered in this amendment.
There is a finality to Irish adoption. It would be a major change in policy to move towards the open adoption system. Section 58 of the Bill explains the position. It states:
Upon an adoption order being made, or the recognition under this Act of an intercountry adoption effected outside the State—
(a) the child concerned shall be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the adopters born to them in lawful wedlock...
Obviously consequential amendments would have to be made if we were to accept the amendments proposed. Apart from that, it is probably unconstitutional as well. On the example of the mother struggling with alcohol addiction, it was suggested that an adoption should be open so that the mother could have some contact, but fostering is supposed to, and does in most cases, deal with a situation where a mother, suffering from a temporary impairment, is not in a position to mind a child. Fostering allows contact in the normal way, with the opportunity, if the mother is able to restore herself to full capacity, to renew her relationship fully with the child.
We must stay within the parameters of full adoption. We must accept that we are setting minimum standards here. We have a full adoption system and I do not believe it is in the best interest of a child that an application could be made as envisaged here. The contact register is the appropriate way. There are other sections in the Bill which refer to the voice of the child being heard if he or she is over a certain age and where appropriate. That is safeguarded in the Bill also.
I am glad of the opportunity to address the House on this section as I flagged this issue on Second Stage. I believe that section 32 adds nothing to, and indeed is in conflict with the Bill. It seems to be in conflict with our international obligations to regard the welfare of the child as the first and paramount consideration. This section is, effectively, a relic of our past. It relates to a time, as the Minister of State will be well aware, when historically adoptions were run by religious bodies, the churches and their societies. Prior to the Adoption Act 1952 an ad hoc arrangement operated, with the different religious bodies controlling orphanages and deciding who gave children up for adoption. Geoffrey Shannon's excellent book on child law, Children and the Law, 2001, gives a brief account of it in terms of the churches involvement in the placement of children for adoption with, again, always the consideration that they be placed with adoptive parents of the same religion as the birth parents. I believe I am permitted to quote once I attribute the source. There is one line in Geoffrey Shannon's book which it is useful to quote as we debate this issue. He talks about the churches fearing that adoption would be used as a vehicle for changing the child's religion and it was therefore necessary to assuage such concerns in the 1952 Act.
We have moved on from that. The Minister of State responded on Second Stage that the provisions have changed from the original provisions of the 1952 Act. That is right — I checked it — but of course the current provision in section 4 of the Adoption Act 1974 is really what section 32 would propose to restate, namely, that prospective adoptive parents, birth parents and child must all be of the same religion, unless the birth parents, knowing in advance the religious persuasion of the adoptive parents, have waived this requirement. Married couples of mixed faith can adopt provided birth parents consent to the placing of the child with them.
Restating the current position with section 32 can no longer be justified in Ireland 2009, a country of increasing pluralism and diversity in religion. Even to speak of "mixed marriages" betrays a mindset that is living in a distant past, when religious organisations and the churches had immense power in Ireland. I believe they still have too much power, but clearly nothing like they did. A provision that reiterates the current law from 1974 and previously in 1952, to the effect that an adoption shall not be made unless the child's parents and the prospective adoptive parents are of the same religion, is to restate a presumption in section 32. The Minister of State is right in saying that this presumption may be rebutted and that the condition may be waived where everybody consents to this, but why is it inserted in the legislation? Why is religion seen to be a pre-eminent issue where, for example, we do not have ethnicity, nationality or geographical area? Presumably for many birth mothers nowadays the issue of where the child is to be placed, geographically, in a city, town or village, for example, is of much greater concern than the issue of religion or lack of religion because of course the prospective adopters may not have any religious persuasion. They may be atheists or agnostic. Why should religion be pre-eminent in this manner?
In Britain, as the Minister of State will be aware, there have been a great many issues relating to ethnicity and children being adopted by parents of similar ethnicity to the birth parents. There is a great deal of sensitivity around that subject in Britain. That is equally so around religion and I am not saying it should not be a factor, it should, but just one of the factors, with ethnicity, nationality and geographic area in terms of whether prospective adopters are urban or rural dwellers and so on. There are a number of factors which the adoption authority must take into account. In restating the pre-eminent position of religion in section 32, we are creating a provision that is directly in conflict with our stated and very welcome consideration in section 19 that the welfare of the child should be first and paramount. Why should anything else have the status of a presumption when an adoption order is being considered.
That is a relic of the past and we no longer need to include this section. Clearly, religion can be something which adoption bodies will look at as one of the many factors to be taken into account in deciding whether an adoption order is in the best interests of a child. I feel very strongly that this is something we should look at again in 2009 as it is no longer appropriate. I know the history and have tried to give a brief outline in that regard. However, I do not believe that history justifies the continuance of this provision in the Bill or that it is in the interests of the child.
I, too, question why this section is in the Bill. Its inclusion must be justified, rather than arguing for its removal. Why is it here? Certainly, it seems to jar with the main substances of the legislation. Is it some type of postscript, a genuflection, as it were, in the direction of religion? Without having heard the Minister of State on this, there seems to be no real reason for its inclusion from the viewpoint of making legislation and dealing with the complex question of adoption. No doubt, religion, race, nationality, ethnicity and so on are questions which the authority, in making orders, will have to consider. These are areas that are worth considering in any event.
I find myself in full agreement with Senator Bacik's questioning the privileged position of religion. Why has religion its own section in the Bill? What about all the other characteristics that might well enter into the equation, given the differences or sensitivities that might arise between different groups? Why does religion have its own section in this way? What is the purpose that we are seeking to achieve? What are we seeking to protect by including it here in this essentially privileged manner? I support the arguments made and I oppose the section.
I support my two colleagues and question the purpose of this section. If the birth mother must know and consent to the religion of the family to which the child is going, it could prevent many adoptions taking place.
I refer to inter-country adoptions. In some countries, the child must be technically abandoned. I am familiar with cases where children are left at dumpsters. For a mother to technically abandon her child for him or her to be put up for adoption, it would put an extra block in place if we were to bring religion into it.
I am keen to hear why religion is more important than colour and ethnicity. One would have to question whether this is helpful at this point in the adoption journey given that it is far bigger than this country. Irish families adopt 400 children from other countries annually. I look forward to hearing the Minister of State's justification for this section.
We would not have moved forward if this provision had tried to protect one religion over another. It does not. It is simply a reflection that for many people, religion is very important. As a State, we accept that. I do not believe ethnicity is as important and it would be wrong for the State to support that. I do not believe one's race is as important and that the State should serve to protect that in its policies. However, if a person is very religious, he or she is entitled to the protection and recognition of his or her religious views in State policy from time to time. A person is entitled to protection to be allowed to practise his or her religion in all its forms. I do not believe anybody in this Chamber would dispute that.
Rather than block adoptions, this tries to ensure consent is fully informed. If a person has no objection, the child could be adopted by a family of a different faith. The person could waive any objection to that. It is simply to protect against any difficulties which might arise later on. If one has a daughter and is placing her for adoption into a religion which might not be as favourable towards women as other religions, one may wish to reflect on that at the time of placement for adoption. It would be too late afterwards if we did not allow that to happen. Those are the considerations contemplated.
I accept that in 1974, when this was included, they were not the considerations and that there were others. They were afraid of proselytising, conversion and those types of things but we have moved on and we do not favour one religion over another. However, we insist that a person's right to practise his or her faith should be reflected from time to time. I would not compare it to a person's right to the protection of race or ethnicity.
I thank the Minister of State for his response. I believe he somewhat misunderstood the point Senators Alex White and Healy Eames and I made in terms of race, ethnicity, nationality and so on. There is very advanced literature on, and practice in, Britain, in particular, about the criteria to be taken into account in the placement of children with appropriate adoptive parents and all the factors an adoptive agency must look at in terms of an appropriate placement. Those factors include the relevant ethnicity of the chid and the prospective adopters and the location in which the adoptive parents live, just as the nature of the home which the adoptive parents have to offer would be looked at, as indeed would their religion.
Senator Alex White put it correctly that this section privileges religion over all of those other considerations a reputable and good adoption authority must take into account in making a decision about the placement of a child with adoptive parents. All those factors must be looked at in the round, including the religion of the prospective adopters. Clearly, where the birth mother has a particular preference because perhaps she is of a particular religion or has an aversion to a particular religion, then the adoption authority if it is at all reputable, and ours are, must have regard to those wishes of the birth mother.
Our objection to this section is that it privileges religion over all the other considerations while at the same time, it does not refer in any way to the wishes of the birth mother in respect of where she might like the child to be brought up, whether in Dublin or Cork, for example, or whether she might like the child to be brought up by parents of a particular ethnicity or nationality. In privileging one consideration, it demotes all others or simply disregards them. That cannot be right when the authority must have regard to the best interests and welfare of the child.
This provision goes well beyond accommodating the entitlement of every one of us to have our own religious views or not to have religious views at all and it privileges religion. It also goes further by assuming that everyone has a religion. As an atheist, I take exception to that. Does it mean prospective adopters who are not religious may be disadvantaged in some way? There is a presumption that persons who are adopting are of a particular religion. That is problematic.
The Minister of State referred to 1974. He is quite right that in 1974 there would have been very different concerns about including a section such as this but it is 35 years later and things have moved on. Central Statistics Office figures on religious beliefs and affiliations clearly show us that times have changed in Ireland, that we are becoming more pluralist and more tolerant and that religion no longer has that privileged place in our society. That is quite right and proper.
There is a constructive way to move forward on this and I would like the Minister of State to intimate that he might consider it. I suggest an alternative provision which would address his concern about a birth mother's concerns about religion but which would take on board the suggestions we have made. The provision might state that "where possible, the authority shall seek to accommodate the wishes of the birth mother with respect to". One could include religion there as one of the factors to which the authority would have regard in making an adoption order. In that way, that is accommodating somebody who has a very strong view that she would like her child to be brought up in a particular religion while at the same time not creating this very problematic presumption that the child will be adopted by persons of the same religion as the mother.
Senator Healy Eames raised a relevant point. I read section 20 a number of times and it seems nonsensical if it also applies to inter-country adoptions. Perhaps the Minister of State will clarify that. If a child is from Vietnam, Russia or China, it will be very difficult to comply with this presumption because the religious affiliations would be very different. There may be no majority religion in some of the countries from which people are adopting. It is nonsensical in that case. It makes a farce of the provision in the first instance.
We are debating in a legal vacuum but we all know that the majority of people adopting in Ireland are doing so from abroad. The provision is nonsensical to that extent because I do not see how it can be implemented in inter-country adoptions in any real way and it does not take account of changes in Ireland 35 years on. It privileges religion and it assumes that all of us have a religion. It somehow implies that persons who wish to adopt may be disadvantaged in some way if they are not of a religion. For all those reasons, I urge the Minister of State to accept the constructive criticism of this section and perhaps look at some alternative which might accommodate birth mothers' wishes in respect of religion and other factors too.
On the final point made by Senator Bacik, I would like the Minister of State to comment on the question of its application in the context of inter-country adoptions. In looking at the Bill again perhaps I am missing something in terms of where the matter appears. Section 32 covers religion. Does it have equal application to inter-country adoptions? How on earth is it suggested it could have any practical value or application in those circumstances, as touched on by Senator Bacik?
The Minister of State's justification of the section in the context of the rights of people to pursue their religious views or practise their religion is not really convincing. Of course people have the right to religious views and to practise their religion. To remove section 32 would not remotely undermine either of those rights. How could it conceivably affect people's rights to have a religious view or practise their religion?
It is problematic in the case of an adoption where a child is to be adopted and the natural mother takes an interest in the destination of the child. Religion is one aspect which would enter her mind. Listening to the debate, I find it problematic. I do not agree that included in a person's right to practise his or her religion or in the State's vindication of that right is a veto on the question of religion. I know this is a different area but I find it problematic. I do not think removing section 32 remotely undermines one's right to practise religion or hold religious views and I find it singularly unconvincing as a justification for the section.
To distinguish the right of a person to practise his or her religion from the other points made on race, nationality and ethnicity, perhaps I misinterpreted what was said in that regard and if so, that was not my intention. Regarding what Senator Bacik said, the existing section states "the religion (if any) of the applicant or each of the applicants, if they are a married couple". It has been pointed out to me that perhaps there should be an amendment to the effect that where the section states "are not all of the same religion" we could include "if any" in that regard.
I stand over the views I expressed. We are trying to anticipate any dangers which may arise where consent would be challenged. We are trying to avoid that possibility. We are not trying to privilege religion over other considerations. We are trying to acknowledge the fact that people feel very strongly about religion. It is not the same as the other criteria we have outlined. It justifies the section as proposed.
There may be a reluctance to adopt into specific religions, whether Jehovah's Witnesses or other religions which have restricted rights within their frame of beliefs. It is probably right and proper that a parent has full knowledge of that at the time of making consent. It is a situation we seek to avoid in this section.
I do not want to prolong the debate unnecessarily. I am glad the Minister of State has acknowledged there should be some amendment to the section. I agree that to include "if any" in the first line addresses the point I raised, which is that the section assumes everyone is of a particular religion. However, it does not really address the fundamental issue I have with the provision, which issue Senators Alex White and Healy Eames have supported.
From what the Minister of State has said, I do not hear any real justification for the continued inclusion of this section. It is privileging religion. There is no doubt about that. The concerns the Minister of State expresses could as easily be addressed, and in a much better way, by simply having a provision stating that the wishes of the birth mother with respect to the religion of prospective adopters would be respected. That should be the presumption rather than making the presumption that they all be of the same religion.
The other approach is a better, more inclusive one and still acknowledges the important role religion has. There are other factors in today's Ireland which will be of equal concern to a birth mother and to any women going through the dreadfully traumatic experience of giving a child up for adoption. The main concern she will always have is that the child will be well looked after. This section is in conflict with that. How can we make a presumption that everyone is of the same religion and that is automatically in the best interests of the child? There are parents seeking to adopt with whom the child may be best placed and who have no religion. Those issues have all been raised already.
I would like to hear what the Minister of State has to say about my suggested alternative, which he did not address. It involved making an alternative provision stating that the wishes of the birth mother with respect to religion would be respected. I have not worded it very well but I will come up with something better on Report Stage. The Minister of State takes the point and perhaps he will comment on whether that would be a possible alternative route which would address the problems raised but would not make this very problematic assumption about religion.
The difficulty with the way the section is framed is that it could be another blocking mechanism to enabling a mother to have her child adopted. There are so many other considerations that this is very last thing a mother needs. If the mother needs a parent of a particular religion to adopt her child it may not be the best parent for the child's broader needs. It could really slow down the process. I did not hear the Minister of State's clarification to Senator Bacik. Does this also apply to inter-country adoption?
I did not address that issue. Senator Healy Eames pointed out that some inter-country adoptions arise from the abandonment of a child and obviously there is no opportunity in those circumstances for the natural mother of the child to give an opinion. In inter-country adoptions, a mother will be counselled on all these issues, such as where the child will be placed for adoption. What was the previous point made by Senator Healy Eames?
It is a right for the natural mother rather than anything else. I do not see how it could fetter the natural mother in placing a child for adoption.
A natural mother may have a desire to have her child adopted into a particular religion. I accept that could be something a natural mother would wish for. However, it will not be her sole consideration. She will have many other needs for the child. If one puts the issue of religion on top of her other requests, one may be very slow to find a suitable adoptive parent. I know this for a fact because some birth parents come with quite a list of requirements.
If the consent is not informed, one will not have an adoption. If a mother or father who is placing a child for adoption has a list of requirements, there will be no adoption until the list is complied with. There must be fully informed consent.
One must ensure that is done. It is something which has tried to be captured in the amendment so the mother is fully aware and is entitled to assert her right to ensure this issue is respected. I would stand over the proposed section.
I am supportive of the mother's right to be informed, as her consent should be informed. Medical records can be attained without there being a legal requirement. Establishing a religion can be done in much the same way. Including it as a major section could lead to its becoming a blocking mechanism, a new hindrance to a child getting——
It is less and less of a significant section due to the Senators' points. The section will not block adoptions in practice. Rather, it will ensure that adoptions will not run foul of subsequent withdrawals of consent because of placements with religions that do not suit or had not been brought to the attention of the natural mother or father. The section seeks to avoid that situation. It will not lead to any injustice. Rather, it is to the benefit of the legislation.
I must clarify the point, given the different opinions on it. I must give the Senators a more complete answer on Report Stage.
I would be grateful for that. I hope that the Minister of State will accept an amendment to the effect that adoptive parents might not have a religion. The section is nonsensical if it applies to intercountry adoptions, which form the bulk of adoptions. How can we presume that a child born in Vietnam to Vietnamese parents of the state religion will be of the same religion as the adoptive Irish parents? This is just one example.
I move amendment No. 20:
In page 29, subsection (1), between lines 38 and 39, to insert the following:
"(b) 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.".
This is Senator Norris's amendment.
I move amendment No. 21:
In page 30, subsection (4)(a), line 26, to delete "21" and substitute "18".
The age of 21 is inserted in section 33 as the youngest age at which a person may be considered as an adoptive parent in a domestic or intercountry adoption. It struck me as discriminatory towards younger people. I do not know why 18 years cannot be the age. In practice, it is unlikely that anyone of 18, 19, 20, 21 or 22 years of age will seek to adopt, but I do not understand 21 years as the lower age limit, particularly given the fact that we do not have an upper age limit. Adoption practice is to have a de facto upper age beyond which people cannot adopt, although other Senators know more about this than me. Why should we set a de jure lower age that is above the age of majority? Obviously, 18 years should be the lowest age and I am not proposing a reduction. We have changed 21 years of age for 18 years of age in most other laws.
The measure is to ensure a reasonable degree of maturity in adoption applicants. Different age limits are applied in other areas, such as the age of consent, voting and so on. In this case, the age limit allows applicants a reasonable opportunity to evaluate their readiness for the procedures involved, which everyone knows to be complex. If we are guided by the best interests of children, it is in their best interests to provide for a reasonable degree of maturity in the Bill. The lower age limit of 21 years provides the right balance while ensuring that adoption is available to young people. While one can marry at 18 years of age and have children in the normal way, a few more years would strike a reasonable balance in the adoption application process.
The authority must be capable of ensuring that the adoptive parents are of the appropriate level of maturity, but 21 does not add much to 18. We believe that people of 18 years of age are mature enough to marry, vote, drive and do just about everything else. It is the general age of majority, although 17 is the age of consent. I do not know why we are discriminating for adoption.
I can imagine situations in which the age limit of 21 years would be problematic. For example, if a young person with a serious illness wishes to adopt his or her partner's biological child, the limit could lead to some injustice. I will not labour the point, but will the Minister of State reconsider the amendment?
I move amendment No. 23:
In page 31, line 1, to delete "The" and substitute the following:
"Save in the case of an application by a natural parent or relative of the child, the".
Section 34 addresses persons suitable for adoption or for the recognition of an intercountry adoption effected outside the State and sets out a number of tests. The amendment is intended to make an exception in respect of applications by a natural parent or relative of the child.
A strong argument can be made that the rigorous tests, which are included in section 34 for a good reason, are not appropriate to an application by a parent or relative in some respects. For example, section 34(c) refers to having "adequate financial means to support the child". Essentially, were Members to retain this section as drawn up at present, they would be declaring that an unmarried mother or father of his or her own child could not become an adopter because he or she lacked the financial means or had no money. Similarly, Members should consider the reference to age in section 34(b). Is it their intention to specify that grandparents will not be able to adopt a grandchild because of the age of the former? I suggest, by means of this amendment, that more sensitive tests are required in the circumstances of a proposed adoption by parents or relatives, as opposed to those by unconnected third parties or other parties.
As for amendment No. 24, instead of "each", it proposes to include the word, "either". Essentially, this pertains to the qualifications on who is suitable to adopt. It is based on the argument that the qualification on who is suitable to adopt places an unreasonable requirement on applicants. This is an attempt to modify it a little by stressing, "either", rather than "each", in respect of their ability to parent, if this makes sense to the Minister of State. It modifies the qualification a little and makes it somewhat less of a burden. This certainly is the view of the International Adoption Association, which has been communicated to me.
While the amendment seeks to make a sensible change, I would be somewhat cautious about diluting the need for the authority to have regard always to the welfare of the child as being first and paramount. I have a slight concern, particularly in respect of amendment No. 24, that it implies a watering down of the tests required. I can see that the tests could be fulfilled much more quickly in respect of a natural parent or relative who was seeking to adopt. However, all Members are still highly conscious of the dreadful abuses that occur within natural families and I can imagine that an authority must still be satisfied of certain basic considerations pertaining to the child's welfare before it could give its recognition to an adoption order or an inter-country adoption.
I note that section 34(b)(v) contains a requirement for the authority to be satisfied as to the prospective adopters valuing and supporting the child's needs in respect of his or her identity and ethnic, religious and cultural background. This is what I referred to previously about adoption practice elsewhere being clear about always having regard to such matters when placing children for adoption with appropriate adoptive parents. It strikes me that this is a sensible way to frame the necessary consideration to be taken into account by the authority.
It is a much more sensitive and sensible way of doing it than that proposed by section 32. Moreover, it strikes me that this provision conflicts with section 32. If the authority must have regard to ethnic, religious and cultural background while also operating within a presumption that the child is best served by being placed with someone of the same religion as his or her birth mother, it may find it hard to tally those two positions. They may not sit easily alongside each other in some cases. It strikes me that this is the better wording and it achieves the needs Members have identified.
To deal with the first point, in the previous day's debate, Members had a discussion on the standards this Bill is trying to introduce and the danger of diluting such standards by allowing less rigorous criteria for certain categories of people simpliciter, without being obliged to go through the same eligibility and suitability procedures as everyone else. This is not good practice and would change significantly the overall Bill and the overall policy contained therein. The best interests of the child are best served by ensuring that anyone who sets out to adopt a child, regardless of him or her being a relative or being assessed separately as a natural parent, should be obliged to go through the same process of eligibility and suitability as everyone else. It is also good practice to ascertain how both proposed adoptive parents get on with each other, to view that process and to assess how that dynamic works.
I have serious reservations about amendment No. 24 which states, "if a failure by one only of the married couple to comply with this section would not seriously threaten the welfare of the child". I cannot accept this and it is far removed from what this legislation seeks to achieve. As for amendment No. 23, one must avoid, as Senator Bacik put it, diluting the basic principle, which is that each applicant for adoption must go through the same rigorous process as everyone else to serve the best interests of children. One cannot on the one hand state it is a first and paramount consideration while on the other hand, permit all sorts of parallel mechanisms that would allow people to go through this process in a different way.
As for the comments on the religious, ethnic and cultural background, this raises an issue. Senator Mary White stated that she supports Senator Bacik in this regard. Section 34(b) sets out a list of criteria to which regard will be had when making an assessment of a person's eligibility for adoption. It goes through a list of considerations as to whether a prospective adoptive parent is able to support the child's welfare, which encompasses many different matters that Members have discussed earlier, such as the health, social, educational and other interventions for the child. Moreover, it would value their identity as well as their ethnic, religious and cultural background. This issue is separate to that which was being dealt with in section 32, which pertained to informed consent.
One could argue there is a dichotomy in the language employed because religion is referred to exclusively in one section, in respect of the establishment of consent. This is an area in which many problems have arisen in the past in respect of High Court cases disputing consent. This contrasts with the area under discussion at present, which pertains to the suitability of a parent to accept the ethnic background of a child. To use Senator Alex White's phrase, the language jars a little. In any case, however, I am satisfied that it is legitimate to investigate such criteria in the assessment process. While they are not deal breakers, they are criteria to which one must have regard. While there is no amendment before Members in this regard, it is the right way to go.
I wish to respond briefly. I understand the points made by the Minister of State in respect of both amendments. With regard to amendment No. 23, he correctly states that he is opposed to any dilution of the basic principles and I have no difficulty with that. When I make that point, I do not suggest that it will be followed by a "but", to the effect that I wish to dilute any of the principles. At the same time, a question arises in this regard in the case of a proposed adoption by a natural parent or a relative of the child, which is of a somewhat different character. Consideration should certainly be given to whether the criteria ought to be precisely the same.
While I understand the Minister of State's position in regard to amendment No. 24, his response was slightly dismissive in that he seemed to suggest there was almost a lack of concern for the welfare of the child in the amendment. The welfare of the child is always of paramount importance. That is the test. It is not a question of setting aside the welfare of the child. Rather, the amendment proposes that where one of these criteria cannot be met by both persons, this will not necessarily be fatal to the adoption application so long as a conclusion is reached that to proceed would not seriously threaten the welfare of the child. It is wrong to characterise this as an attempt in any way to undermine the fundamental objective in all of this, namely, the welfare of the child.
I do not propose to press either amendment. I may come back to amendment No. 23 on Report Stage, and I reserve my position in regard to amendment No. 24.
I move amendment No. 25:
In page 31, line 28, after "section 37(1)," to insert the following:
"or to an accredited committee or body on behalf of the Executive".
This amendment arises from representations my colleagues and I have received from the International Adoption Association. Its primary concern in regard to this legislation relates to the delays in processing applications being experienced by prospective adoptive parents throughout the State. The Bill appears to state that all applications for assessment must be made through the Health Service Executive, which currently manages well over 90% of all assessments and has thus presided over the growth of waiting times. In Dublin, Cork, Limerick and elsewhere, it can take more than three years for an assessment to begin. Such waiting times are excessive. It is not unusual for it to take four to five years for applicants to be processed through a system that will ultimately involve only some 30 hours of contact with a social worker.
We all accept that assessment must be robust and must allow for an inevitably lengthy period of preparation, reflection and consideration by those responsible for processing applications. However, it has been pointed out to me that an applicant who applies to adopt three times may be involved in the process for up to 15 years. The International Adoption Association has asked that provision be made to allow accredited agencies to conduct assessments. As it stands, all applications must be made to the Health Service Executive and must subsequently be passed back to the executive's placement committee. This requirement serves to discourage the establishment of any assessment agency as its sustainability and efficiency would be dictated by the executive. Instead, assessments by accredited agencies should be directly routed to independent placement committees and applicants should have the opportunity to apply directly to any such accredited agency. What is the Minister of State's view on this?
I support the points made by Senator White. Most of us approach this Bill from the perspective of the representations and constituency queries we receive on this issue. The concern raised most frequently by my constituents is the issue of the delay in assessment. I appreciate that in all legislation governing adoption we must be absolutely precise about the propriety of every part of the process. A certain degree of delay is necessary in order to allow all parties sufficient time to reflect and deliberate. However, the prospect of a waiting time of two and a half or three years is of serious concern to prospective adoptive parents. As Senator White observed, couples fortunate enough to adopt two or three children may be involved in the administrative process for ten or 15 years.
An acceptance that we must process applications as thoroughly and professionally as possible does not mean that we should not seek to remove some of the administrative road blocks. In this regard, the proposal that agencies other than the Health Service Executive should be allowed to manage the process is worthy of consideration. This legislation will put in place the strictest rules and regulations regarding the propriety of prospective parents. The process will be very thorough and everybody will be properly vetted. That is welcome and necessary. However, it should not be beyond the bounds of possibility that other agencies, other than the Health Service Executive, could have a direct role in assessment, thus expediting the application process and reducing the backlog. From my layman's perspective, this seems to be the issue of most concern to people. I have spoken to couples who want desperately to adopt a child but are faced not only with a wall of bureaucracy but also with an apparently endless delay. Accredited agencies which are obliged to comply with all the rules and regulations could play a constructive role in this regard. I hope the Minister of State will respond positively or will at least ensure that delays are reduced to the greatest possible and practicable extent.
Like other Members, I have received useful information from the International Adoption Association about the delays experienced by prospective adopters. We all agree that standards in terms of assessment for suitability for adoption must not be diluted. It must always be the case that any procedure has regard to the welfare of the child as its paramount consideration. The Bill envisages that accredited bodies would carry out certain functions and these amendments seek to facilitate that being done in the interest of smoother procedures of assessment for adoption.
I have met the International Adoption Association on a number of occasions since my appointment and the organisation has consistently raised the delay in the assessment procedure, as have constituents, Deputies and Senators. Complaints are also made about the procedure, although people are reluctant to complain about it because they feel they may jeopardise their chances of succeeding in their application. The International Adoption Association has made representations to me about ideas that will improve the speed at which this is done. I am in discussion with the organisation on this matter but it is not addressed in this legislation. It is an administrative issue concerning how the HSE carries out its business and whether an accredited body can do some of this work, as suggested by Senator Bacik.
I draw the attention of Senator Alex White to section 37(3):
As soon as practicable after the Health Service Executive receives an application under subsection (1), the Health Service Executive shall take the following steps concerning the adoption proposed under the separate application referred to in subsection (2)(b) or arrange for the steps to be taken by an accredited body:
(a) providing information, advice and counselling to the applicants;
(b) carrying out an assessment of eligibility and suitability in relation to the applicants;
That point is catered for in legislation. I have met the HSE about this matter on a number of occasions and it is trying to standardise the process in different parts of the country. Members have probably heard anecdotally that the process is much quicker in Donegal than in Dublin. The agency is trying to make sure this is equalised and after working on this standardisation process the HSE cannot guarantee that it will shorten waiting times. The HSE is upfront about this point.
The HSE has responsibility for this area under section 6 of the Child Care Act and for entering into arrangements with adoption societies in respect of providing services for the adoption of children. It is important that the HSE retains a central role in this to ensure that standards are maintained and that there is consistency in the standards applied through the assessment procedures. There has been discussion about a not-for-profit agency with the International Adoption Agency and this is not precluded by the legislation. For those reasons, I ask Senators to withdraw the amendments, which are not necessary because of section 37.
This is a most important Bill. I refer to the delay involved. It would be beneficial if the duration of the process was shortened. Two and a half or three years can be like a lifetime. I will present my document on suicide prevention to the Sub-Committee on the High Level of Suicide in Irish Society at 3 p.m. today. The HSE moves very slowly. The Minister of State should consider a non-profit organisation and should examine what is done in other countries. From the point of view of the child and the parent, this period is far too long. I do not see why common sense cannot prevail. I do not want to hold up the Minister of State's work in this regard but it would be a wonderful day's work if we could decrease waiting times with this Bill. I know people who think that the waiting time is too long and that they could not go through that experience, yet there are children in the world who could do with homes.
I am not suggesting that we rush this Bill, nor am I being critical, but this is typical of the public sector. I am dealing with another issue and because there are so many people involved in the unit of the organisation, the issue I am dealing with must be considered by six people. A private company or a non-profit organisation could deal with this through one person. Because the number of people employed in the organisation is so bloated, several people must give their opinions on the matter. We are missing out on the human and emotional lifetime challenge and opportunity for the child. For a parent who is deprived of the ability to have a child, this waiting period is cruel. It is archaic and it is about time we got to grips with it.
I took the somewhat selfish view that I would concentrate on the amendment I tabled, but I will try to have regard to others. I hear what the Minister of State says with regard to talking to other bodies in an attempt to improve the situation. Accredited bodies are already provided for in section 37, as the Minister of State pointed out. Our amendments to section 35 contemplate an application being made directly to an accredited body whereas section 37 refers to the HSE taking certain steps that might include arranging for steps to be taken by an accredited body if the person has applied in the first instance to the HSE.
I hoped the Minister of State would hear what I had to say so I will wait until he is finished talking — I do not take it as a slight. I am not in favour of outsourcing to facilitate any dilution of standards nor would I be in favour of a measure if I thought there was a danger it would undermine the standards the Minister of State is correctly careful to uphold. That is not what is at issue, however. This is an administrative issue, as the Minister of State pointed out. If there is a group of people or an accredited body with certain skills, such as social workers who are responsible for these assessments, I do not see an objection in principle so long as there exists a mechanism whereby the HSE can apply standards. I do not see a difficulty in a regime where the accredited body could do that. There are plenty of examples where public bodies ensure that certain standards are applied and can outsource work. Many people of various political persuasions have promoted this as an approach to problems. Where there are large bureaucracies with major responsibilities, objectives and priorities, it may not be suitable always for an expert assessment to be made by a person working for that large organisation. It could be that one might ensure standards are applied by the accredited body but might outsource the task to the accredited body.
I agree with the comments made by Senators Mary White and Bradford with regard to long delays. People's genuine frustration cannot be emphasised enough. I have said what I wanted to about the accredited bodies and the Health Service Executive. I am well aware of the professionalism and application of many social workers engaged in this work. It is not in any sense a reflection on them or their professionalism to say that we need a different way of doing these things, be it as the Minister of State contemplates with the HSE set-up or whether accredited bodies might be able to do it. There are very fine social workers doing this work but it may be that they need to have some administrative and bureaucratic burdens taken from their shoulders so they can do the job they are trained to do.
Senators speaking about outsourcing could be rather dangerous at the moment as we could be outsourced ourselves. I was interested in what was said by Senator Mary White. When all this legislation goes through this House and the other House we should aspire to have a process in place of the highest standards that would be expedited in an appropriate fashion. People should not see an endless queue or list.
Mention was made of section 37 and I am advised that we can drift in and out of the sections because the amendments cover several of them. The Minister of State mentioned section 37, in which the language states, "As soon as practicable after the Health Service Executive receives an application" it shall do the following. Although it looks fine in print and the term "as soon as practicable" has been in law over recent years, the term often results in these very lengthy delays.
It would be great if we could have some time limit or obligation on the authorities either to have the assessments done themselves or to be in a position to outsource, if we are to use that sometimes politically incorrect word, to get the job done. Prospective adoptive parents only have one request — I will not say it is a demand because they are not generally demanding people — which is to have the assessment completed and their suitability or otherwise decided upon.
As Senator Mary White has said, it would be a great afternoon's work for the Seanad if we could be in a position to know, at the end of our deliberations, that there would be real progress on the time issue. There may be many ways of responding to that concern of ours and it could be a question of having more staff at HSE level or more time being allocated. What has been in place to date does not seem to be working as well as we would wish.
The Minister of State has mentioned that we hear stories from various parts of the country, with some of them right and some wrong. From our own constituency work we hear claims of delays in one area and greater levels of progress in others. That would need to be improved as soon as possible.
In his contribution, the Minister of State spoke of the need to be thorough in the way assessments are done and we all support that. Will the Minister of State try to put in place some sort of timeframe, either by legislation or directive, or is this practical or possible? It is certainly desirable to set some sort of bar for us, the legislators, and there should be a reasonable timeframe for people seeking to have the assessments carried out. It is only the first step and the people should have a clear picture of a reasonable timeframe.
All of us on every side of the House are at one in our general support of the Bill but we are also at one in our desire to try to expedite matters. Senator Alex White spoke earlier of the process lasting three or four years but in speaking of the number of hours that became part of that three or four-year delay, it is not a question of six or 12 months' work. Senator White indicated it might be 30 to 40 hours of serious work and attention. I can see that it is better for that 30 or 40 hours of work not to take place over a three-week or three-month timeframe but it should not take three years to process that 30 or 40 hours of work. I am not trying to reduce the intensity and seriousness of those hours of professional input but it should not be beyond our collective abilities to put in place a system that works slightly more quickly and equally well.
We all would agree that the result of every assessment done over the course of previous years was correct but it is disappointing they have taken so long. We must aspire to progress in expediting this. The term "as far as practicable" is fine in print but what it does it mean in practice? The Minister of State should try to set some reasonable time limits and if those cannot be met under the present HSE-centred structure, it should be possible to use additional support.
I am interested in the Minister of State's comment that he has received queries or representations and he is at least reflecting on the possibility of giving some degree of discretion for outside agencies or not-for-profit organisations to be involved in the process. We look forward to the Minister of State's further deliberations on this as part of an effort to explore assessment issues.
I remind Senators that we are discussing amendments Nos. 25 to 36, inclusive and Nos. 45 to 48, inclusive. They will not be discussed further and may be moved later. Are there any other comments from Senators before I call on the Minister of State to respond on those amendments?
It is a long list of amendments which propose to amend different sections. It seems they are from the same perspective, which allows for the possibility of the Health Service Executive or any accredited agency authorised by the adoption authority to conduct assessments of suitability and so on. I have not studied the amendments particularly closely but they seem to raise a similar enough point to that which I raise in my amendment. It may well be that the amendments across a number of different sections of the Bill may offer a vehicle for the Minister of State to address the issue we have debated for the last few minutes, which is to see whether we can have a scenario where applications can be dealt with more quickly and perhaps more efficiently without undermining the standards we all want to uphold. There is great merit in the amendments and I am interested to know what the Minister of State proposes to say on them.
I reiterate that I have enormous sympathy for parents who have to go through this process because it is unnecessarily prolonged and drawn out. It can be tortuous and really tough on parents because much of the time they have had painful and difficult problems relating to having children. I would love, as a Minister of State, to be able to make this reform and shorten that period of assessment. I have great ambition to do so.
I will identify some of the problems we have come across in dealing with the issue. Under the current system the same social workers are providing the adoption assessments as are providing services to children at risk and child abuse or neglect cases. We are drawing from the same pool. Members will know from previous debates in this House and media coverage that those same social workers are under serious pressure in terms of waiting lists. All children are assessed initially but the provision of services is taking some time. Every Minister with responsibility for children faces the nightmare scenario such as that which happened in the case of the child, known as baby P, in the Harringate Council in the UK. Child protection and welfare services are delivered by the same cohort of social workers who are under severe pressure to provide them. That is where some of the difficulty arises. We cannot ignore in any debate in this House the serious resource issue the HSE is experiencing in 2009, experienced in 2008 and is likely to experience in 2010. We cannot ignore those facts but, in fairness, we are dealing with legislation and the setting of standards.
On Senator Bradford's point about the setting of a timeframe, I would be reluctant to do that because I do not want to promise something I cannot deliver. This raises the question Senator Mary White and others raised, namely, a not-for-profit arrangement and why that cannot be done. I am not sure it cannot be done. That is why I am discussing with the IAA other ways of doing that. Some problems that have been highlighted in those discussions reveal that if a not-for-profit group is set up to carry out such assessments, naturally it will promise it will carry them out more quickly than the existing service and it will have to be self-funding. It will require a payment to be made whereas no such payment is made in the assessment process carried out by the HSE. The danger is whether such an arrangement would create a two-tier system where people with means would be able to get an assessment done more quickly. Trying to equalise and avoid that kind of problem is what we are scoping out with the IAA.
I reiterate that, as provided in section 37, the accredited bodies can carry out assessments. That is set out in section 37(3)(b), the next section with which we will deal. There is no legislative barrier to this being done and the political will exists to do it as far as I am concerned. I take on board the encouragement of Senators in this regard.
I take on board what the Minister of State said. He spoke of delays and the burden on social workers to do almost two projects simultaneously. What is his assessment of the reason for the two and half to three year waiting period? Is it due to a staffing issue, the thoroughness of the work involved in the assessments or an administrative blockage? Within the remit of the existing legislation, should it not be possible to progress assessments more quickly? Are the delays due to a lack of staff or a lack of other resources?
It is the reality on the ground. As I explained to the Senator, the HSE is vilified all the time, especially in the Houses of the Oireachtas. I am a strong advocate for our social workers because they make major decisions in child welfare and protection about whether a child stays within his or her family or is put into foster care or some other type of protection of the State. These are major decisions. We had a discussion about this in the Dáil yesterday. Social workers do these jobs extremely well and under pressure. We have a problem with the retention of staff within the public child protection service provision. Many social workers prefer to migrate into private service provision. They prefer to work in hospitals where there are simple structures in place and a 9 a.m. to 5 p.m. workday. Working in this field with families with multiple problems and with children at risk is among the most difficult and challenging work social workers can do. The problem is that the same social workers are being called on to do the assessments. The problem is due to an issue of resources and an issue of time. I do not accept that the HSE is overstaffed. The improvements in numbers over the years are on foot of demands in this and the other House for the delivery of better services, more front-line people and the provision of various therapies and they have been provided.
We had a similar discussion in the Dáil yesterday and in 2008, therefore, this is a type of party political broadcast. The HSE is given credit for the improvement in our health indicators. From 2006 to 2008 we had the fastest improving health indicators in Europe. Credit is given to the HSE for that much needed reform of our health provision.
The simple answer to the Senator's question is that there is a problem of resources. That is why we are in engaged in discussion to ascertain if we can do what I mentioned, but we do not want to create a two-tier problem. I take this issue seriously.
I am pleased the Minister of State has confirmed that much or all the delay is due to a lack of resources. At least it is a problem we can identify and to which we can hopefully respond. I am at one with the Minister of State on what he said about the very effective, sensitive, professional and thorough manner social workers carry out their tasks and they have all our support. What can we do to support them either by way of increasing the administrative resources available to them or adding to their numbers? Is it possible that other staff, equally highly qualified but in a different field, within the HSE could receive further training to assist in the field of social work?
We should be able to utilise more effectively some of the substantial taxpayers' money this and previous Governments have spent on health services. At least the Minister of State has indicated his view that a sizeable portion of the delay is due to staff numbers and hopefully the appropriate personnel in his office and in the HSE will reflect on that. The money needed is available and the numbers required are available but it is a question of utilising them to the best possible degree. I hope the Minister of State can progress that. If the three year delay was necessary from an investigative point of view, that would be reasonable, but it is fairly obvious there is no practical or psychological reason an assessment should take up to three years. We must do everything possible to expedite assessments, whether by way of a not-for-profit or other agencies or by providing more resources for the HSE's budget for social workers. We have a duty to respond to the heartfelt pleas we receive from prospective parents and the need to progress their applications.
I referred to a time limit earlier. I innocently proposed a time limit or an aspiration in that regard. I take the Minister of State's comment as being genuine in the sense that he does not want to set a very precise limit or demand. Is there some space in between to allow us to aspire to progress? To say that it will be done as soon as practicable sounds fine, but we need to reflect upon what is happening in reality. By directive or guideline, I would like us in some way put a little pressure on all of us on both the political side of the equation and the administrative side to have a reasonable timeframe deemed to be the norm rather than the exception.
The danger with a timeframe is that it might draw child welfare services away to service adoption towards the end of any proposed timeframe that might be set out in legislation. The dangers of that are self-evident. I would be very concerned about that. Again we need to frame the debate in the context of the country's financial situation, which is parlous as the Senator is fully aware. Therefore I would be very reluctant to put in legislation what we can do. However, there are two avenues. The Senator wants to apply the pressure to ensure the issue is not simply passed over. Two processes are ongoing. First, I am discussing with the IAA what type of provision it might be able to suggest. Second, the HSE is continuing to try to standardise processes across the country in order to make it efficient, clear and consistent, which would mean that prospective adoptive parents at least know what they are letting themselves in for and what to expect. As the Senator and others have said already it is tortuous having to wait unnecessarily. I would be extremely reluctant to insert any timeframe for that.
I acknowledge and respect the Minister of State's response to my query, which was not particularly well researched or thought out. I was interested that the Minister of State said he would be concerned about the danger of drawing staff away from the work of child protection and welfare towards the assessment side of their duties. Therein lies the difficulty from a work and staff point of view. Obviously child welfare must be paramount and social workers are called on at all times of the day or night, seven days a week to respond to crises. We should hope that there would be sufficient staff resources for assessment duties and that it would not be the one or two hours' work that staff would do at the end of the week after having spent many stressful hours doing other child welfare duties. It was a telltale and genuine comment from the Minister of State. Obviously there is a difficulty with the personnel numbers on the ground doing this very important work.
I accept the comment of the Minister of State on the state of the national finances. His views are readily acknowledged by all responsible political parties. It is interesting that in one sense the work of adoption assessment is almost being slotted in — I will not say as an afterthought to the other duties. However, it is not getting the majority of hours available. I acknowledge that the other child welfare work is crucial and cannot be delayed or deferred by a minute. It surprises me somewhat that there appears to be a shortage of appropriate personnel to carry out both of these very important duties.
I move amendment No. 37:
In page 34, subsection (1)(b), line 21, to delete "12 months" and substitute "24 months".
Senator Fitzgerald advises me that the amendment arises from suggestions by the IAA. The argument is made that the waiting times for referrals increase partly in line with increased regulation and the growth of compliance with The Hague Convention. We should be mindful that issues can arise and can significantly delay applications in the process of conducting an adoption. I am advised that cases can take up to and beyond three years. A simple amendment to extend the renewal of a declaration to 24 months would provide for a total of four years in which to complete an adoption. I am also advised that it is of course possible as the Act provides for the authority to review cases and to retract declarations.
In a sense I am almost contradicting what I was saying earlier about the need to make progress and make haste to the greatest degree. The amendment relates to a number of cases where that bit of extra time could be required. I am advised by the Senator that the amendment was suggested following discussions with the IAA.
The amendment would provide for a four-year period until the expiration of a declaration. I consider this to be too long a period because in normal circumstances an extension is usually shorter than the original period rather than being exactly the same time. I believe 12 months is an appropriate period of extension. I am advised that difficulties may arise in other jurisdictions in accepting documents that are four years old. I am inclined not to accept the amendment.
They clearly were, and they should not have done it. That will be a suitable rap on the knuckles.
I wish to support the principle expressed in the amendments proposed for section 46 which concerns the power to summon witnesses. The section provides that the authority may examine on oath the witnesses attending before it. It should provide also that it could examine on affirmation rather than on oath, which is a very well-established procedure in our courts where matters are being attested to. It is an omission not to include it in this section.
I am informed that section 48, as drafted, provides that "The Authority may take evidence orally or on affidavit." If the authority takes evidence orally, it does not preclude it from taking it on affidavit also and vice versa. Therefore, the amendment is not necessary.
I do not have any particular insight to add. The Part is relevant in that it concerns adoption orders in exceptional cases and the role of the High Court. The section states:
(1) In this Part, "parents"—
(a) includes a surviving parent, and
(b) in relation to a child in respect of whom an adoption order is in force or who is the subject of an intercountry adoption effected outside the State that has been recognised, means—
(i) the adopters, or
(ii) the surviving adopter,
under the order.
(2) References in this Part to—
(a) persons in whose favour the Authority has made a declaration under section 53(1), or
(b) persons applying for an adoption order,
in the case of—
(i) a declaration in favour of one person, or
(ii) an application by one person,
are references to that person.
It is simply a definition and interpretation section.
I move amendment No. 42:
In page 41, subsection (2)(b)(i)(I), line 26, to delete "moral" and substitute "other".
This is the critical section in Part 7 which relates to adoption orders in exceptional cases and the role of the High Court. Section 54 provides for the orders of the High Court authorising the adoption authority to make adoption orders for children whose parents fail in their duty towards them. This is a tricky area of law — I declare my interest as I practised a little in this area — and, of course, this must also be read in light of the Constitution.
To provide some context for the amendment I am proposing, the amendment seeks to change slightly the way in which such an order will be made by the High Court. The High Court can make an order even where there is no consent from the natural parents. It is clearly an exceptional type of order to dispense with the consent of a person whose consent would normally be necessary to the making of the adoption order.
Subsection (2) is the main subsection which provides for this. It states that where an application is made in the High Court, it may authorise the authority to make an adoption order and to dispense with the consent, and a range of tests are set out. The first of those is where the High Court is satisfied it would be in the best interests of the child to grant the authorisation, which is absolutely right and proper. I seek to change paragraph (b) where a number of matters must be shown to the satisfaction of the High Court. These provisions are set out under subsection (2)(b)(i) which restates the case law that has established the test.
It is an extremely difficult test for the High Court to fulfil and a very high hurdle to jump to waive the need for consent. Effectively, the High Court must be satisfied that the parents of the child for at least 12 months before the making of the application have failed in their duty towards the child "for physical or moral reasons". I propose to remove the words "or moral reasons" and replace them with the words "or other reasons" because this is broader. Given the definition of "welfare" of the child in the Guardianship of Infants Act and our understanding of welfare, "physical or moral" is simply too narrow. I would prefer to see something broader, such as "physical or other reasons".
The more substantive change I am proposing relates to subsection (2)(b)(i)(III). Currently, subsection (2)(b)(i)(III) provides that the failure of the parents in their duty towards the child — which must, of course, continue until the child attains the age of 18 — must constitute an abandonment on the part of the parents of all parental rights, whether they are under the Constitution or otherwise, with respect to the child. This is an extremely high test and one that has been set out by the courts. I know the Minister of State's response will be that it is a constitutional requirement that the parents must have abandoned their parental rights for the High Court to be able to grant an order without the consent of parents in such circumstances. However, my answer is a proposal to delete this subsection. While I accept this is dealt with in Supreme Court judgments, I do not believe we need to restate it here because it is already the law. I hope this is a law that will change if we amend the Constitution because it is unnecessary and duplicates the test already in existence to reproduce it in this provision.
I say this because the courts have stated the abandonment must be total in character and this abandonment test is very difficult to fulfil. It is right and proper that it should be a difficult test to fulfil where it is possible for a parent to consent and he or she has not done so. The real difficulty that has arisen is where there is a child of parents who are married to each other and where the child should be placed for adoption.
At present it is not possible for two parents married to each other to waive their parental rights by consenting to an adoption. The Minister of State may correct me if I am wrong but this is my understanding of the law, which will remain and is restated here. Under current legislation the only way in which a child of marital parents may be adopted is where the court is satisfied that the parents have abandoned all parental rights and have failed totally in their duty to the child. That is extreme and implies the most appalling judgment on the character of the parents. However, if they are married there is no other way for them to consent to adoption because of the constitutional status of the marital family. Geoffrey Shannon and others have long pointed out the difficulties with this.
Mr. Shannon wrote that it is profoundly ironic that it is easier to vindicate the interests of a child born outside marriage by means of adoption, in which that child becomes part of a caring stable family unit, than it is to secure the same rights for a child within wedlock. He said this arguably places the child of parents married to each other at a significant disadvantage relative to his or her non-marital counterpart because the only way a child born within marriage may be adopted is for this mechanism to be followed, namely, that the parents be proven to have failed totally and to have abandoned their parental duties.
I propose another solution, namely, to amend this provision and remove the need to prove abandonment. It is already contained in our constitutional jurisprudence and we do not need to restate it here. It is unhelpful because I anticipate we may be about to amend the Constitution, making the best interests of the child the paramount consideration, including in cases where the child is born within marriage. That would then change the situation.
There is another potential mechanism for fulfilling the needs of the child. It is clear from section 54(2)(b)(ii), that this proposal is intended to provide for a situation where a child is in the custody of and has a home with the applicants or prospective adopters and has been there for a period of not less than 12 months preceding that time, and that the child's adoption is an appropriate means by which to supply the place of the parents. This envisages a situation where a child is in long-term care of somebody other than his or her natural parents but whose natural parents are unable to consent either because they are married to each other and therefore legally cannot consent or they refuse to consent for another reason. In that situation, if the people who are caring for the child and who have done so for at least a year seek to adopt they must prove to the satisfaction of the High Court that there has been an abandonment by the natural parents of their parental rights.
A better approach would be to provide for special guardianship. The likelihood is that those who will make application under this section will be either relatives or recognised foster carers of the child. In such a situation, English law provides a mechanism for long-term foster parents to apply for special guardianship under section 115 of the 2002 Act. They take on parental responsibility for the child, including all responsibility for day to day decisions about the child's care and upbringing, but the natural parents retain some limited rights, including the right to consent or not to the child's placement for adoption. It is a more appropriate procedure. It does not require the total relinquishing of all parental rights and in particular it does not require that the natural parents be shown to have failed or abandoned their child or children. That is very difficult for anyone to face. It is difficult for the prospective adopters to be placed in a position of having to show this and for the natural parents to be subject to this requirement.
I spoke about this matter during the earlier debate on different forms of adoption. In the past there have been recommendations for special guardianship mechanisms, particularly to facilitate long-term foster carers or persons who are caring for children born within marriage who cannot be adopted under our present law. In January 2005, the then Minister of State with responsibility for children, Deputy Brian Lenihan, published a report on the consultation process on adoption legislation, recommending that those foster carers who had cared for a child for five years or more should be able to apply for guardianship. Over 20 years ago, in 1984, the report of the review committee on adoption services made a similar recommendation. The provision has been recommended for a long time.
I understand that section 54 seeks to give the child security within the home of the persons who have been caring for him or her. We must never forget it is for the child's sake that all this is important. However, for that to be done, and where the natural parents do not consent or where they cannot consent because they are married to each other, the section requires that the High Court be shown that the parents have abandoned all parental rights. That is very difficult for everybody to have to do. Although a test case was laid down by the Supreme Court, I do not believe we should replicate this in adoption legislation that seeks to improve the adoption system. I wish to hear the Minister of State state whether he accepts the principle of the argument, or, if he cannot accept this amendment, whether he will accept there might be an alternative solution that would provide for some form of special guardianship.
This is a very complex area. The measure has been on our Statute Book since 1988 and this is simply a transposition of those provisions into the current Bill. It has been through the Supreme Court and the circumstances as set out in section 54(2)(b) reflect that, being the Supreme Court judgment on the section.
I read all the arguments in respect of section 54(2)(b)( i)(I). The requirement is that there must be a continuous period of 12 months during which the parents have failed in their duty towards the child. The argument is that this should be a sufficiently high bar, together with paragraph (II) which states that the situation is likely to continue until the child reaches the age of 18. The third criterion is superfluous. That has been ventilated by a number of people. If parents failed in their duty and this failure were to continue until the child was 18 one cannot imagine the parents could satisfy the other test, namely, that they had not abandoned their parental rights. The language is important here. It is not an aspersion on them, implying that they abandoned their children, but rather that they abandoned their parental rights. It is unfortunate in a way.
The Senator anticipated what I was about to say. There is a constitutional provision and we must stay within such provisions, including the judgment of the Supreme Court, the Act and the Article 26 reference. We are bound by that. Senator Bacik and Senator Alex White know that we are going to the third phase of consideration in the Joint Committee on the Constitutional Amendment on Children. One of the proposals put down by the Government before the last election relates to the position of marital parents, children of marital parents and adoption. It is important that we await the outcome of the scoping out of those issues by that committee. I am told that what happens in practice is that when a foster child reaches the age of 16 or 17, the application is made and because that age is close to the 18 years to which stage the failure of duty must continue, those applications are successful at that point.
I said that foster parents have improved their position. We discussed consent to medical procedures and the ability to apply for passports on behalf of foster children. If the constitutional position does not change an alternative would be to look for a set of rights. I am not familiar with section 115 of the UK Act but if there is something there that might offer us a signpost to a direction we might take we should look at it.
I am aware that my predecessors in this post, the Ministers, Deputy Brian Lenihan and Deputy Brendan Smith, were favourable towards this and in 2005, as Minister of State, Deputy Lenihan, launched the consultation. In the meantime we are very close to finality in respect of the committee chaired by Deputy Mary O'Rourke and we should await the outcome.
I thank the Minister of State for his response. In a way, I do not have as much of an objection to the test in the context of parents who are not married to each other or where, for example, a birth mother gives up a child for adoption. It is right that the test should be extremely rigorous in order for the adoption authority to be able to dispense with the consent. Clearly that is important. I am talking about children born within marriage because the parents have no entitlement or no capacity to consent under our present system. Indeed, before the 1988 Act — this is really a restatement of the 1988 position — there was no provision for children born within marriage to be adopted. I would like the Minister of State to explore the special guardianship option in greater depth. It is unfortunate that was not done in this Bill, given that there was such a long period of consultation leading up to the Bill and that this recommendation was put into the previous report in 2005 and in the 1984 report by the late Dr. Joseph Robins.
The reason special guardianship is so important is for the security of the child. The Minister of State rightly stated that in the case of children in their late teens an order may be made at that point. The difficulty arises for a younger child — these cases happen — who is facing the awful prospect of being moved between different foster carers or from foster carer to natural parent and back again to foster care. In this case the child has no degree of stability or security in his or her placement under foster care arrangements. As the Minister of State said, there has been some improvement in that foster parents can now apply for a passport for the child and so on, but there is still the prospect of the child being moved and this can be very disruptive for the child. Special guardianship offers a measure of greater stability and greater security for a child within the home of the people who are caring for him or her. Clearly adoption offers the greatest stability and security because it is the full order, but because of this difficulty about the children of marital parents, this very rigorous test is required to be fulfilled before a child born of a marriage can be adopted, even by his or her long-term foster parents.
I acknowledge that my amendment is not the right way to deal with this but some mechanism should be adopted, ideally in this Bill, to deal with this position. There is an attempt in section 54 to deal with the children who are in long-term foster care and who may have been born within marriage, therefore it may be very difficult to go through an adoption process. Indeed, the children and all concerned may not wish a full adoption. They may wish something more flexible where the natural parents can maintain contact. I would like to hear whether the Minister of State might anticipate looking again at section 115 of the UK Act.
I do not in any way have the expertise, the knowledge or the access to the fine legal tomes as has Senator Bacik. I raised this matter on Second Stage. I am far removed from professional expertise in law and I thought this section was very new whereas it is a transposition of the 1998 Bill, if I am correct. Has the Minister of State any indication as to the number of adoption orders which have issued under this section and whether its genesis stretches back further than 1998? Is it used very infrequently or slightly more frequently? Is there a number put on the orders which have issued under the said circumstances which would have led to the interventions described?
I am informed that the numbers are very low. This was discussed at the Joint Committee on the Constitutional Amendment on Children. It is usually applied for when a child is in long term foster care and reaches the age of 16 or 17. The application is made and is usually successful but the numbers are quite small. I will undertake to provide the Senator with the information in due course.
I ask the Minister of State to clarify in the case where countries which have not signed the Hague Convention but with which Ireland has a bilateral agreement whether this agreement is affected in any way by this section of the Bill?
This is about the transfer of a child from the State to another contacting state, in accordance with the Hague Convention. Does it apply to countries with which we have a bilateral agreement? Does it work the other way? If a country is not signed up to the Hague Convention, does this mean that a child could be transferred to those countries with which we have a bilateral agreement or does it have to be only to a country signed up to the Hague Convention?
I will come back to the Senator on that point as I do not want to give a definitive answer now. We can discuss it on Report Stage.