Friday, 2 July 2010
Adoption Bill 2009 [Seanad Bill Amended by the Dáil]: Report and Final Stages
This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 113, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. Senators may speak only once on Report Stage.
The objective of ratifying the Hague Convention on the protection of children and co-operation in respect of inter-country adoption, is at the core of this legislation. The Bill provides for the State to enter into discussions with states which are not party to the Hague Convention for the purposes of making bilateral agreements on inter-country adoptions. Equally, the standards applying to inter-country adoptions under a bilateral agreement will accord with the Hague Convention standards.
I regard inter-country adoption as a valuable form of alternative care for children and I want to protect those children's interests and to ensure that high standards in the adoption process are upheld. This is one of the Government's main objectives in this legislation.
The first group of amendments, Nos. 1, 5 and 6, deals with the provision of counselling for mothers or guardians prior to their placing a child for adoption. This is an important issue which was initially raised by Senator Fitzgerald and supported by a number of other Senators on Committee and Report Stages in the Seanad. The decision to place a child for adoption is a difficult decision and one with far-reaching consequences for all involved. In view of this, I brought forward amendments in the Dáil to provide that the accredited body shall provide information and counselling to the birth mother or guardian before the child is placed for adoption.
The second group of amendments relates to providing clarification around the issue of what constitutes the making of arrangements for adoption in the context of section 5 and provides clarification relating to contravening provisions of the Act.
The third group of amendments have been made to re-format section 33 and to ensure consistency with the definition of inter-country adoption in section 3 and consistency with Article 23 of the Hague Convention which provides that an adoption certified by the competent authority of the state of adoption as having been made in accordance with the convention, shall be recognised by operation of law in the other contracting states. Amendment No. 8 ensures that an adopted person or a person who has an interest in the matter who wishes to have particulars of an adoption entered into the register of inter-country adoptions as provided for under section 90(3) and who is married, does not require the consent of his or her spouse to have the adoption recognised. In other words, only adoptive parents require each others consent to adoption.
The amendment to section 33(4), amendment No. 9 in this case, provides that if the person applying for recognition of an inter-country adoption effected outside the State is the adopted person or a person with an interest in the matter, as referred to in paragraphs (b) and (c) of section 90(3), that person does not have to meet the minimum age requirement of 21 years. The age limit of 21 years in this subsection is only relevant in the context of the adoptive parents at the time of the making of the adoption order or the recognition of inter-country adoption.
Amendment No. 10 deletes the reference to inter-country adoptions in section 33(5) as that sub-provision only applies to adoption orders made by the authority.
On the matter raised by Senator Cummins, I refer to the Minister of State's remarks. Given the movement from the 1991 Act to today and with regard to inter-country agreements which have permitted hundreds of children who were placed in orphanages in Vietnam to be adopted and given homes and in the case of this country, to be given the best opportunities, the Minister of State has refused to meet the Helping Hands organisation in Cork and he has refused to meet a cross-party delegation of Oireachtas Members from Cork. If we are to facilitate and assist people, is it not the case that a crucial element of the bilateral agreement was the establishment, at the insistence of Ireland and Vietnam, of a not for profit licensed facilitator? In the case of Vietnam, the facilitator was and remains the Helping Hands Adoption Mediation Agency. However, the Minister of State has refused to meet this group and the cross-party delegation from Cork. His office replied to a letter from Deputy Kathleen Lynch on behalf of the delegation stating that the Minister of State's diary was too busy in the coming months to meet the delegation. I am concerned that we have created a situation with regard to the Helping Hands Adoption Mediation Agency which is unfair and which is wrong. The agency has published an independent audit of its work. I have no difficulty with the Minister of State making decisions but I have a difficulty when a decision is unfair or wrong. I do not believe for one second that this agency has done anything illegal. Up to the present day, Helping Hands continues to assist. What the Minister of State has not addressed this morning or during the Bill's passage through the other House, is the fact that we now have no due regard in this process.
As Senator Cummins said, there are hundreds of families affected. I attended a funeral last Monday and I met a cousin in tears, in limbo, because of the process. This is a consequence of Government's failure to enter into negotiations and given statements made by the Minister of State, a refusal to enter into negotiations with the Government of Vietnam. We have allowed this to lapse since May last year. I am concerned that we have gone down the wrong road.
I understand the Minister of State's stand with regard to the Adoption Bill but the regulation of affairs between two sovereign nations, Ireland and Vietnam, can be independently achieved when both nations agree on how they will conduct international adoptions between the two countries. This is an example of progressive and beneficial thinking. Everybody wants to get the best possible standards and bearing in mind that at all times the welfare of the infant child - in Vietnam or wherever - must be at the core. The children must be protected to the highest possible standard.
I am disappointed with the response we have received today and I ask the Minister of State to reconsider it.
I welcome the Minister of State. Can the Minister of State tell us where are the files on the 20 couples in abeyance for more than one year? Those dossiers were in Vietnam before 1 May 2009 when the Ireland-Vietnam bilateral agreement closed. They are waiting and they are afraid to speak out. If they speak out as a group, they are afraid it will mitigate against them. They do not know whether they are coming or going. It is great news that it looks like Vietnam will open next January. Does the Minister of State think this is the case? However, that will not affect the 20 couples. Will the 20 couples be sorted out prior to January 2011 or are they also relying on that date? For the bulk of families in Ireland, the 300 involved in Helping Hands Adoption Mediation Agency referred to by Senator Buttimer, they are waiting for the period after January 2011. What is the Office of the Minister for Children and Youth Affairs doing? I am not trying to cut the Minister of State. I was in this situation as an adoptive parent but I never had the State working against me. The State was always on my side. Besides the fact they had difficulty conceiving and had to wait up to seven years to get through the assessment, the most difficult thing for these couples is that the State is dragging its heels. I asked the Minister of State to clarify this point.
I received a letter from Helping Hands Adoption Mediation Agency, stating it is completely vindicated after being silenced for ages. What will be the status of Helping Hands Adoption Mediation Agency in respect of the Irish Government after the enactment of this Bill?
I congratulate the Minister of State on moving Ireland to the position where it is ready to give effect to the Hague Convention on intercountry adoption. It is a positive step forward and I congratulate him on it. I echo the sentiments of my colleagues who have spoken on the heartbreak suffered by many prospective families. Parents have endured an emotional rollercoaster over the past years and months, particularly the 20 sets of parents to whom Senator Healy Eames referred. They have been on a particularly difficult emotional rollercoaster. At one point, through no fault of the Minister of State, some of the parents received calls from the Minister of State's delegation in Vietnam to say this issue had been resolved. I received a call that evening from one set of parents who were overjoyed at the news and were preparing their home to receive a child on whom they were ready to lavish care, affection and love.
It looks like Vietnam is moving towards giving effect to the Hague Convention. Does the Minister of State have pertinent information on this? If so, will Helping Hands Adoption Mediation Agency remain the agency that processes intercountry adoptions? The Minister of State launched an inquiry into the operation of Helping Hands Adoption Mediation Agency last October. Information I have, which the Minister of State can rebut or confirm, is that the inquiry was given no terms of reference and no end date by which it had to produce a result. In that vacuum, Helping Hands Adoption Mediation Agency commissioned a world-class accountancy firm, Grant Thornton, to carry out a forensic examination of its operation. The latter inquiry proves there is no evidence whatsoever of impropriety on the part of Helping Hands Adoption Mediation Agency. I ask the Minister of State to do everything in his power to take these 20 sets of parents off the emotional rollercoaster and give them some security and real hope that within the next couple of months the children they have been waiting for will finally come to live with them in order to form the family unit they have been waiting so long to form.
Let us be honest, if we are going to support the introduction of higher standards, we must support the consequences of the higher standards. Some of those consequences can be uncomfortable and under previous adoption arrangements we failed to regulate mediation agencies. There were no regulations whatsoever and we wish to do so now. This will be a better scenario for everyone. I did not initiate an investigation into Helping Hands Adoption Mediation Agency. The Adoption Board is making inquiries arising from comments in the ISS report, with the support of UNICEF, which found that Helping Hands Adoption Mediation Agency claimed it had elicited some money for changing foreign currency but that the opposite should have been the case. In other words, there should have been reductions rather than increases in fees charged to prospective adoptive parents. I do not like to refer to this as an investigation because it is not of that nature but the inquiries are ongoing. Grant Thornton has carried out an audit commissioned by Helping Hands Adoption Mediation Agency and, without casting any aspersions on Grant Thornton, which is an outstanding firm with a good track record, self-auditing has its limitations. Very often, companies coming to court with rival sets of accountancy firms presenting views on each company's behalf.
That is the point I am trying to make. We need to be careful about saying Helping Hands Adoption Mediation Agency is completely vindicated by the report it commissioned. It is difficult to stand over that. It is not a case of vindication. Let us be clear about what went on and what ISS had to say. The Adoption Board, which is an independent organisation with important functions, is carrying out that inquiry. We want to improve matters and move things on and the consequences of this can be uncomfortable and difficult for people involved.
If we learned anything from our adoption history, where we sent thousands of children out of this country because of the stigma associated with births outside marriage, this is an opportunity to learn those lessons. Many people have tried to come back here to trace their history and have had positive experiences. All studies on intercountry adoption have been very positive. Much of the credit for this goes to the assessment process, which is overly long but is very fair in its substance. It allows parents to come to terms with what they might expect when adopting from abroad.
I saw the information about Vietnam in the newspaper last Sunday and I am delighted. When I went to Vietnam it was clear to me that the fact that Ireland, Sweden and the US had closed intercountry adoption to Vietnam was having an effect. Certain changes seem to be afoot as a consequence. When the ISS recommended that countries suspend adoptions until Vietnam adopted the Hague Convention, we took the advice. It seems to have had positive effects. One cannot say it was definitely the reason that Vietnam seems to be much closer to compliance with the Hague Convention than before. As soon as Vietnam is compliant with the Hague Convention and as soon as Ireland is compliant with the Hague Convention - the last country in Europe to do so - we will be able to resume adoptions from Vietnam.
Yes, that will happen as soon as we get this Bill passed, subject to the normal convention rules whereby one must lodge the instruments of ratification with the Hague Convention. Three months after that, the convention becomes active in this country. This will happen in October or November.
The final question concerns the 20 sets of prospective parents involved. We have been considering the subject this week and I have been in discussion with various Departments. It is extremely frustrating. Senator Cannon made reference to my trip to Vietnam this time last year. I refer to the concession made by the Vietnamese to process applications in these 20 cases who had not secured a referral by then but whose files were with the Department of Intercountry Adoption in Hanoi. It was made on the understanding that we were proceeding with a bilateral agreement at the time. However, as Members are aware, discussions on the bilateral agreement collapsed because of the International Social Service, ISS, report to be presented the following August. We were then left in a highly complex situation where the State was on notice that there were serious shortcomings in Vietnam. As the State pulled out of the bilateral agreement, whatever would be constructed for the aforementioned 20 cases would be complex and require an input from various Departments, including my Department, the Department of Foreign Affairs and the Office of the Attorney General. The matter is under active consideration and a lot of time has been devoted to it in the course of this week. That is all I will say about the matter at this point. It is not in abeyance.
In response to Senator Healy Eames, I have never outlined a timeline. I acknowledge this is highly frustrating for those involved, but there is only certainty in respect of those who do not wish to proceed. However, if they wish me to continue making efforts, no guarantees can be given in respect of a timeline. I must consistently maintain this position. While it is very tough for the people concerned, we continue to consider the matter actively. The process is independent of the Hague Convention process.
The next group of amendments provides further clarification of provisions in the Bill. Amendment No. 11 deletes the phrase "effective outside the State" because, in the case of domestic adoptions effected outside the State, section 34 is not applicable. Following this amendment, section 34 applies to the recognition of intercountry adoptions or the making of an adoption order. The suitability of applicants for adoption in a domestic adoption effected outside the State - section 3(1)(b) defines an intercountry adoption outside the State - is a matter for the jurisdiction in which the adoption was made. The adoption authority would not seek to question the suitability of adoptive parents who had effected a domestic adoption in another jurisdiction. The amendment will ensure also an adopted person or a person with an interest in the matter under section 90 will not be obliged to meet the eligibility criteria for prospective adoptive parents set out in section 34, that is, the section only applies to adoptive parents' eligibility and their suitability.
Amendment No. 12 ensures persons appointed by the HSE who are not employees of the HSE will have knowledge and experience related to the purpose of the committee. The HSE has a statutory responsibility to appoint the membership of adoption committees and is required to ensure the adoption committees are fit for purpose.
The purpose of amendment No. 13 to section 57 is to make it clear that, in the case of an adoption referred to in paragraph (b) of the definition of intercountry adoption effected outside the State, parents must be habitually resident in the state in which the adoption is effected at the time the adoption order is made. This requirement for habitual residence in the state in which the adoption takes place is for foreign domestic adoptions. Where the adoptive parents are living in another jurisdiction and adopt in that jurisdiction, they may apply to the adoption authority for recognition of the adoption.
I will take the opportunity to raise with the Minister of State the issue of the files that continue to be held up with regard to Russian adoptions. I ask him to address the failure of the HSE to complete the post-placement records of children placed in Ireland and the manner in which this is preventing further adoptions from Russia to Ireland.
If the Minister of State intends to address this matter, my understanding is that it is not simply an issue in which the HSE has not completed post-placement reports. Is it not also an issue that when the HSE completes such post-placement reports, it forwards them to the parents involved and that thereafter it is their responsibility to forward them to the Russian Embassy? If, for some reason, parents choose not to forward such reports to the Russian Embassy or the Russian authorities, what is the position then? What steps can be taken by the Government to assist in this regard? Obviously, this has implications for the many Irish families who await approval to proceed with adoptions. The Minister of State should also clarify whether the Government has made contact with the Russian department of education and children to clarify the position on outstanding post-placement reports. Does he envisage a timeframe for the recommencement for these procedures for the children concerned?
When an adoption from Russia is effected, the applicants sign an affidavit undertaking to provide post-placement reports for a period after the adoption, usually four years approximately. However, what happens is - this is a normal human experience - that, although the reports come in promptly for the first six months, as time passes and normality resumes in a family's life, people forget to furnish them. Efforts are made by the Adoption Board and the HSE, although they are not required to do so in law, to elicit such reports because, naturally, the Russians get annoyed when such reports are not forthcoming. Senator Corrigan is correct that it is the parents who give that undertaking and sign an affidavit. The State cannot oblige them to do so because of the nature of adoption in this country. It severs all ties with the natural parents and the family with a newly adopted child is in the same category as a married family and can exclude inquiries made by a third party about the health or well-being of children, unless a child protection issue arises and this situation cannot be so described. Consequently, it requires the grace and favour of the parents to keep the process going.
The Russians were being frustrated by a number of countries, including Ireland, and blacklisted them. However, I am aware that certain adoptions have taken place from Russia in recent months. In any case, I have met officials from the Russian Embassy to clarify what the Government can and must do to keep the door open with Russia, as many have adopted very happily from that country, including relatives of mine. However, because Russia is not a Hague Convention country, we must consider a bilateral agreement with it. This possibility is being actively considered. It formed part of the discussion I had with Russian Embassy officials. The Government is progressing the matter as much as possible within the constitutional limits of what it can do.
Yes. As I stated, both the HSE and the Adoption Board get in touch with them in an effort to obtain the information from them. In one or two cases a social worker may be on leave, but this is not common enough to justify blacklisting a country. While there are the natural and administrative blockages one would normally expect, one should not allow them to have the country blacklisted.
This group relates to the making of transitional arrangements when the Bill is enacted. The amendments are to sections 63 and 175 of the Bill. I am satisfied that my amendments address some of the issues raised by Senators, in so far as is possible, with regard to difficulties encountered with transitional arrangements. Section 63, as originally drafted, provided that a foreign adoption, as described in the Adoption Act 1991, would, if it was in process immediately before the establishment date, proceed under the new legislation as though it had been commenced under the new legislation. Representations were made to me on behalf of prospective adoptive parents who considered themselves to be disadvantaged by this provision, in so far as the new legislation would only allow for adoption from a country that was party to the Hague Convention or from a country with which Ireland had a bilateral agreement. Many prospective adoptive parents affected by this provision had commenced adoption proceedings some years ago and anticipated adopting a child from Vietnam, Russia or other non-Hague Convevtion countries which would be excluded by the new legislation until such time as a bilateral agreement had been reached or the Hague Convention had been signed by the country in question.
In an effort to address the Senators' concerns, I have introduced a number of amendments to the Bill which provide for prospective adoptive parents to proceed with adoptions from non-Hague Convention or non-bilateral agreement countries if, immediately before the establishment date, they were at that stage in the adoption process where they had been issued with a declaration of eligibility and suitability.
The amendment further requires that the Adoption Authority would have to be satisfied that the adoption meets all the standards of the Hague Convention.
The next group deals with the amendments outlined. They are technical, drafting amendments to update references in the Bill, including references to the Minister for Social Protection, the Minister for Justice and Law Reform and the Department of Justice and Law Reform.
Amendments 14 and 15 delete the reference to affiliation order, which is a term used in the 1952 Act but which we used in the Bill as a generic term. The amendments update the wording of the provision and provides that any orders or agreements to make payment for the benefit of the child in place cease to have effect from the time of the making of the adoption order but without prejudice to the recovery of any arrears due.
Amendments 17 and 24 are included on the advice of the Parliamentary Counsel. To remove possible legal uncertainty amendment 25 inserts a new section 161 to bring the general administration records of the authority under the provisions of the Freedom of Information Act in accordance with Government policy in this area. The new provision, by amending section 46 of the Freedom of Information Act also has the effect of excluding from the Freedom of Information Act any records of the authority relating to or arising from the making of an adoption order or the recognition of an inter-country adoption effected outside the State.
I thank the Minister of State for coming to the House to explain the most recent amendments that were made to the Bill in the Dáil. He is aware of the importance of using every resource available to him to resolve the issue for the 20 families who are left in abeyance, in effect, in limbo. That should be one of his major concerns in the coming weeks. I genuinely believe he is doing all that he can. I wish him well in resolving the problem.
I congratulate the Minister of State on his grasp of and interest in the topic. I have not been involved in the debate on this occasion. I thank him for coming back to us with those amendments, which have improved the Bill. As Senator Cannon has said, the Minister of State should not forget those 20 families who are still in limbo.
I thank the Minister of State and his officials. The legislation has profound implications for the families. I thank him for the empathic way in which he approached the Bill, which will move us on to a better and safer place. There will be challenges ahead, especially with the countries with whom we have a previous relationship that are not yet signatories to the Hague Convention. I wish him well.
The legislative process has continued for a year and three or four months. We have soldiered into the Chamber at various Stages of the Bill. I am delighted this country will be formally compliant with the Hague Convention on the enactment of the Bill. As a prospective adoptive parent in the mid-1990s I was assessed according to the terms of the Hague Convention. To be fair to the former health board, it was using those criteria at that point. I accept there is a difference in that now the position has been formalised which makes a big change in terms of foreign adoption and the various arrangements we make with different countries.
I urge the Minister of State to use the highest levels of diplomacy to ensure that Irish families can continue to adopt from Russia. It might be necessary to force couples here to become compliant. I use the word "force" in the gentlest way possible, because I know what it is like. The Minister of State used the word "normality". When normality returns to a family that has adopted from abroad they just get on with rearing their children and they forget to some extent about their obligation to the birth country and how that can affect families in future here. We need the Minister of State to pursue a bilateral agreement with Russia for the sake of this country since it is not seeking compliance with the Hague Convention at the moment. Mexico is also an excellent provider of children so that is an important country to keep in contact with, as is Vietnam. I accept what the Minister of State said about Vietnam today.
My main disappointment is that there is no grandfather clause in the Bill, regardless of the recommendations of the Law Reform Commission. Without that clause children will be denied the opportunity to grow up with a sibling from their country of origin and culture. I adopted one of my children from abroad. I am aware that it is a source of great comfort to many families that sometimes a child from the same birth family becomes available for adoption, or from the same country. Without the inclusion of a grandfather clause, Irish families cannot now adopt such a child if he or she becomes available. That is a great mistake. It did not affect me personally, but we cannot just talk about what affects us personally. We are working on everyone's behalf. I hope we can address the matter in the future.
Given the Minister of State's overall brief of child protection, he could have spent all of his time on the Adoption Bill which was so chaotic especially given the situation in Vietnam and Russia. As he indicated, it is not over yet. I urge him to continue his work and not to give up. We need him to succeed.
This has been a long road for the Adoption Bill given that the heads of the Bill were produced in 1998. There has been much consultation and many people have had an input. I thank all the prospective adoptive parents, the adopted persons, and people who gave up children for adoption for their input. The Bill is a testament to their efforts, interests and experiences. We have tried to capture the best standards possible in legislation. Work remains to be done, in particular in the area of tracing. We propose to do that as soon as we have completed the Bill. As Members are aware, the Bill was first published in the Seanad, which provided its unique perspective in ensuring the Bill had a good start in January 2009. That is an indication of how long it can take for a Bill to go from publication to enactment.
I thank my officials, in particular Dolores Moran and Moira Griffin who are present and Liz Canavan who did a significant amount of work on the Bill. I also thank the Adoption Board which was most helpful in ensuring that the Bill would become law as quickly as possible.
The issues raised by Senators are very sensitive and emotive and they require considerable sensitivity in the way they are dealt with. It is difficult to displace emotion and to deal with matters in strictly legal terms. It is important that one does not completely close one's eyes to the emotional part and that one allows it to inform the formation of policy. It is also important to strike the right balance.
As soon as the Bill is enacted and we move into the new regime, I aim to have all the parts in place. It would be wonderful if Vietnam was ready to open up again. There are many perfectly adoptable children and suitable prospective adoptive parents. Creating a match in a safe environment is what this is all about. However, inter-country adoption is of its nature imperfect and we cannot control the jurisdiction from which one adopts. However, we will make the greatest efforts possible. I referred earlier to the ISS report which outlined some of the shortcomings in Vietnam and in receiving countries such as Ireland which gave valuable advice. I mentioned that it made reference to currency fluctuations in regard to Helping Hands but I am now informed it was not in the ISS report. I want to clarify that so nobody will feel confusion or unfairly treated.
We must remember our objective is to ensure that the views of the very motivated, well-intentioned people who want us to find a legislative framework that operates in the best interest of children are reflected in the legislation. We have come as close to doing so as we can. I thank Senators and the Deputies in the other House for all their assistance.