Tuesday, 13 June 2017
Adoption (Amendment) Bill 2016: Report and Final Stages
I welcome the Minister, Deputy Katherine Zappone. Before we commence, I would like to remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to discussion on the amendment. Also, on Report Stage, each amendment must be seconded.
Amendment No. 1, in the name of Senator Fintan Warfield and his party colleagues, is out of order. It proposes to require Tusla to provide a written reason when "it does not consult with any of the relevant non guardians" in respect of a pre-placement consultation procedure. The amendment is a resubmit of a Committee Stage amendment. However, the amendment was not discussed in the course of the Committee Stage debate. It must therefore be ruled out of order in accordance with Standing Order 129, as it does not arise out of committee proceedings.
Amendment No. 2 is in the name of Senators Alice-Mary Higgins and Lynn Ruane. It arises out of committee proceedings. Amendments Nos. 2 to 5, inclusive, 13, 17, 18 and 24 are related, and may be discussed together by agreement. Is that agreed? Agreed.
I call Senator Ruane. She will need someone to second her amendment.
I move amendment No. 2:
In page 8, after line 40, to insert the following:“(7) (a) The Child and Family Agency shall publish guidelines in relation to best practices around post-adoption voluntary contact plans.
(b) The guidelines should include information on relevant services and supports including those relevant to maintaining post-adoption voluntary contact plans.”.
I will speak to the first grouping of amendments. These amendments all relate to the post-adoption supports available to both parents and adopted children. Currently, informal arrangements are often in place between new adoptive parents and former birth parents, recognising that this is in the best interest of the child regarding contact. These arrangements do not have any legal status or security. The amendments provide an avenue for many adopted children to know more of their identity and origins and, if possible, to have information about their birth families. Having an appropriate contact plan in place would also allow for changes in circumstances where a parent was previously not able to maintain appropriate contact, but whose circumstances have since changed. The current system is that the security and rights of the adoptive parents trump the rights and responsibilities of the birth parents. However, most importantly, it is in the best interests of the child to have rights to relationship.
These amendments seek to allow some complexity in the types of positive relationships a child may have without compromising security. We must move past a drive towards a very simple narrative of the family unit, which has led to some very poor practices in the past. The central core of amendments Nos. 2, 3, 13, 14 and 24 requires the Adoption Authority of Ireland to publish best-practice guidelines around post-adoption voluntary contact plans. This is in recognition by the Adoption Authority and the State that the practice of making contact plans exists, and an attempt should be made by the State to provide clear guidelines and direction to relevant supports. It leaves it to the Adoption Authority, with its expertise, to draw up what it considers best practice. The guidelines do not compel those involved in drawing up contact plans to adhere strictly to the guidelines. Rather, it provides for efficiency for those involved in drawing up such contact plans. Given the aims of these amendments, I think it is only necessary that the recognition of voluntary contact plans should be fed into decisions made by the Adoption Authority and the High Court with regard to orders for adoption.
Amendments Nos. 4 and 5 provide that the Adoption Authority and the courts will consider the existence of or potential for any contact plan.Amendment No. 17 clarifies that the High Court in considering a decision on consent shall have regard to "the existence of, or proposals for, any contact plan". Contact plans are an important element in ensuring that adopted people are able to maintain ownership over their identity. I hope the Minister will accept them today.
I support my colleagues, Senators Alice Mary Higgins and Lynn Ruane, in proposing these amendments, which are related to the post-adoption supports available to parents and adopted children. Often we see informal arrangements put in place between new adoptive parents and birth parents. This should always be driven by what is in the best interests of the child. However, these arrangements often do not have any legal status or real security. It leaves people unsure of what will work best and lacking support. We know that adoption is a complex and sensitive issue, therefore, we need to be sure we tread carefully here.
Ultimately, these amendments try to recognise that families do not all look the same and different contact arrangements are often made on a case by case basis. People and families are different. These amendments would ensure that the Child and Family Agency would publish guidelines to help support people make their own arrangements and to give them support in doing so. For example, there could be a situation where a birth parent was previously not able to maintain appropriate contact but whose situation might change. Again, these amendments seek to give guidance to families on how to deal with these changes.
In terms of support, we have worked with a broad number of groups specialising in this field to try to make the legislation better. Barnardos has urged that guided contact plans can be in the best interests of the child and help give clarity for all involved. The Irish Foster Care Association has noted that the amendments are important because they recognise the diversity and difference in relationships and family types such as between the child and their grandparents or siblings. The Irish First Mothers group has said that unresolved adoption and adoption reconnection issues can have a huge effect on mental health, so trying to give guidelines and support when parties want to pursue reconnection is especially important. The Irish Foster Care Association has also said that guidelines would be welcome.
I also wish to raise the issue of resources. Given the limitations applying to amendments introduced in this House, a proper resourcing plan is not included in them, but I stress to the Minister it is vital that one would accompany this legislation. Barnardos especially has been clear on this. Contact plans and post-adoption support are important. They can only be implemented appropriately if the resources are provided. The supports must be in place for the children, for young people and for both sets of parents.
I wanted to speak in general terms regarding those amendments. I appeal to the Minister to accept them. These are reasonable amendments. It is worth acknowledging the trouble, time, research and engagement put in by the proposers of the amendments. The amendments may need to be tweaked and changes made to them and the Minister will articulate her views on them, which I will be interested to hear. It is worth acknowledging the contribution and work that Senators have put into this important legislation.
We are dealing with the Adoption (Amendment) Bill 2016. In summary, it seeks "to amend and extend the law in relation to the adoption of children; and, for that purpose, to amend the Adoption Act 2010; to provide for the repeal of Part 11 of the Children and Family Relationships Act 2015; and to provide for related matters". These are reasonable amendments. They have been tabled on foot of engagement with people who have experience of adoption, families who have experienced it and people who were adopted or in situations around it. It is important that there are contact guidelines. People have rights and an entitlement to have some contact with their families connections and roots. We all want to know who we are and where we come from. There are blips in family relationships and there may be circumstances at one point in time that contribute to something but they do not always stay the same. There is that sense of connection and sense of family. All these amendments are reasonable, although they may need some tweaking, and I want to hear what the Minister has to say about them. In general, I am supportive of them. Again, I acknowledge the enormous amount of work that some Senators have put into this legislation.
I thank very much the Senators for putting forward the amendments and the work that has gone into them. As the Senators are aware, I will make reference to post-adoption contact between birth parents and adopted children. This is not currently provided for or regulated by statute, therefore, to refer to it in adoption legislation represents a major policy change. To provide for any such plans post-adoption would require a full review of adoption policy. That is one of my first arguments. Under current practice, as referenced by the Senators, there are often arrangements in place for ongoing contact between birth parents and adopted persons and their families where there is agreement by the relevant parties. Additionally, the provisions in section 9 regarding the best interests of the child in adoption proceedings states "that the Authority or the court, as the case may be, shall have regard to ... the child's relationship with his or her parent, guardian or relative ... and any other particular circumstances pertaining to the child concerned".
The amendments also raise a possible constitutional issue in regard to the family, which the State recognises "as the natural and primary fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law", notwithstanding the points the Senators made regarding the diversity of the family. Where a child has been adopted the child concerned is considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the adopter or adopters and with respect to the child, the mother or guardian of the child and every non-relevant guardian of the child loses all parental rights and is free from all parental duties in respect of the child. I expect that the Senators accept that. To require an adoptive parent to submit to a contact arrangement post-adoption raises a question regarding the constitutional protection of the family under Article 41 of the Constitution.
That is my second point. Regardless or whether they require or are voluntary, this would still place in law something that raises questions in regard to the constitutional issue in terms of the protection of the family under Article 41.
Third, any plans with prospective adopters about post-adoption contact are not legally enforceable having regard to the rights of parents under the Constitution. There is no lawful means of compelling the parents of a child to facilitate access to the child by other persons unless by a court order. Putting these plans therefore on a legislative footing could give rise to legal difficulties. It also raises a question about the appropriateness of the State's involvement in such arrangements.
Amendments Nos. 2 and 13 also raise operational difficulties for the Child and Family Agency. "Relevant services and supports" are very broad terms for the purposes of legislation. Contact plans are not provided for in adoption legislation. Therefore, the proposed amendments would require the establishment of new services and supports which could have both resource and cost implications, notwithstanding the comments made about seeking sufficient resources, which, of course, I would support.
With regard to amendment No. 3, post-adoption services and supports are available to an adopted child in the same manner as with respect to any other child in the State. Accordingly, it is open to an adopted child to access the full range of services as appropriate for that child. Amendments Nos. 4 and 5 would require the court to have regard to the existence of, or any proposals for, any contact plan when making its assessment of the best interests of the child in the context of making a decision regarding an adoption. As I said previously, to provide for any such plans post-adoption would require a full review of adoption policy. Amendments Nos. 17 and 18 would also require the court to have regard to the existence of, or any proposals for, any contact plan when making its assessment of the best interests of the child in the context of making a decision regarding an adoption. Given that there is no provision for contact plans in adoption legislation, it would not be appropriate to include such a provision in a section which deals with specific circumstances for dispensing with parental consent.
Amendment No. 24 proposes to amend section 96 of the principal Act to provide for the publication of guidelines relating to contact plans, as well as information on post-adoption services and supports. Again, given that there is no provision for contact plans in adoption legislation it would be inappropriate to include a provision such as this.
For these reasons I am not accepting the proposed amendments.
It is regrettable that the Minister is unable to take these amendments on board. Post-adoption contact plans are a reality. In addition, anything that is dealt with in a culture of secrecy, non-acknowledgement and non-transparency with regard to children in Ireland is a bad idea. All the experts and groups across the board, including Barnardos, the foster carers of Ireland, who are the likely prospective parents under this legislation, and the care leavers of Ireland, consistently talk about the importance of contact plans. I must be clear. There is nothing in these proposals that places any obligation on a new parental or family unit.
However, when we are discussing children and the family unit it is important to remind the Minister and the House that we have moved past that in Ireland, because we also have children's rights legislation. A child has rights in their own capacity and among those rights are not just the right to security and well-being but also the right to relationship. Are we to say, because we do not wish to acknowledge it, that a child who is adopted at seven years of age, for example, no longer has a relationship of any kind with a former parental grandparent or an uncle, perhaps, who may have health issues and might not be in a position to act as an adoptive parent but who has an important role in the child's life? By not acknowledging the fact that contact is possibly an important issue, even if not for every child, we do not acknowledge fully the child's right to relationship and we take advantage of the fact that very few children will be likely to take cases in this regard. However, in the future we will face cases of children who, when they become adults, talk about the denial of their right to relationship and the fact that they were not allowed to have a full relationship.
The Minister repeatedly argues that we do not legislate for contact plans. We are not seeking to legislate for them. I would be happy if the Minister did so, but I realise that is not the case. We are talking about acknowledgement that contact plans happen and that it is better to have best practice in that regard. For example, prospective parents discussing with the Adoption Authority whether they wish to adopt and families who are foster carers and who, under this legislation, may now become parents should be able to have a full discussion around what might come into place and what a good contact plan would look like. It is now happening informally and under the radar, which is dangerous and inappropriate. This simply acknowledges the needs both of former families and also, most importantly, of children and the new parents.
When we discuss current practice we are talking about five or six children per year. With this legislation we could be talking about 100 or 200 children per year. In the lifetime of this legislation, and the Minister knows this, there will be a transformative effect. We will go from cases in single figures to cases in three figures in terms of the number of children being adopted, so an ad hocsystem will not be adequate. The State must take responsibility. I urge the Minister to table amendments in the Dáil in this regard if she cannot support mine.
Finally, the State does not and cannot constitutionally wash its hands of its responsibility to children simply because they have a new family unit. Post-adoption supports have been sought at every level. They are informally acknowledged for children who have gone through the Hague Convention, because we know informal funding is rightly provided for children who have come through that process to be counselled. This proposal is designed to give the Minister and her Department space. Yes, referring to relevant post-adoption supports is loose, but that is because I recognise there are no formal post-adoption supports. However, I am trying to give the Minister the space down the line to introduce those post-adoption supports, allow them to be recognised and to share information about them. This is giving the Minister the space to implement good practice, to which I believe the Minister is committed. I deeply regret she is not seizing that opportunity now. I urge her to re-visit the issue to ensure that she does not leave a flawed legacy and that we do not have hundreds of children moving through a new system which is leaving key building blocks off the table.
I am not in disagreement with much of what the Senators have put forward, and particularly what Senator Higgins has just articulated. It is important that we acknowledge fully the child's right to relationship. However, an ad hoc system is inadequate. I am not accepting these amendments now. The various amendments refer to voluntary contact plans and the need to put them into legislation. We cannot do that now. Before that we must engage in a full review of adoption policy, particularly with regard to open adoption, what open adoption means, the nature of the contact plans that would enable us to implement open adoption or semi-open adoption and so forth. While I do not disagree with much of what the Senator has said my argument is that it is not appropriate or good law to offer a major policy change now and put that into a statute, particularly an adoption amendment Bill, in an ad hoc way, which is what the various amendments are attempting to do, without a full review of adoption policy. That is as pithy as I can be in responding to the arguments the Senator put forward.
I move amendment No. 3:
In page 8, after line 40, to insert the following:“(7) The Authority shall ensure that those considering adoption are provided with—(a) information on options and best practices regarding post-adoption voluntary contact plans, and
(b) information on relevant post-adoption services and supports.”.
Ivana Bacik, Frances Black, Victor Boyhan, Gerard Craughwell, John Dolan, Alice Mary Higgins, Kevin Humphreys, Colette Kelleher, Niall Ó Donnghaile, Aodhán Ó Ríordáin, Grace O'Sullivan, Lynn Ruane, Fintan Warfield.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paul Coghlan, Martin Conway, Mark Daly, Paul Daly, Robbie Gallagher, Maura Hopkins, Gerry Horkan, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, Ned O'Sullivan, James Reilly, Neale Richmond.
Section 9 of the Bill amends section 19 of the Adoption Act 2010 by substituting a new section 19 to reflect Article 42A of the Constitution. This section provides that in the resolution of any matter, application or proceedings referred to in the section, the Adoption Authority or the court, as the case may be, shall in respect of any child who is capable of forming her or his own views, ascertain the child's views and such views shall be given due weight, having regard to the age and maturity of the child.
Subsection (4) provides that I may make regulations prescribing the procedures by which the authority or the court shall determine how best to ascertain and give due weight to the views of the child in any matter, application or proceedings. As currently drafted, it is possible to interpret this provision as attempting to provide that I have the power to regulate how a court reaches its decision by prescribing the weight to be attached to the views of the child but that is not my intention.
The policy intention of these amendments is to prescribe the mechanisms by which the views of the child can be ascertained so that the authority or the court, as the case may be, can give those views their due weight in its deliberations. With amendment No. 8 I am proposing to amend this section to clarify that the regulations made under this section shall only prescribe the mechanisms by which the views of the child shall be ascertained and that it is a matter for the court or the authority to determine the due weight that is to be attached to the child's views.
Subsection 9(6) provides that in determining for the purposes of subsection (3) how the child's views shall be ascertained and heard and how such views shall be given due weight, having regard to the age and maturity of the child, the authority or the court, as the case may be, shall have regard to the regulations made by the Minister under the subsection. Further consideration has been given to this subsection and it has been decided that it is not required in the circumstances and amendment No. 12 proposes to delete that subsection. Amendment No. 11 is a technical amendment resulting from the deletion of subsection (6). I recommend that these amendments are accepted.
Section 9 provides that the Minister may make regulations to make provision for the procedures that are to apply to enable a child to present her or his views in person or in writing to the authority or the court, as the case may be. It also provides that the Minister may make regulations to make provision for the procedures that are to apply to enable a child to nominate an appropriate person to present the child's views orally or in writing to the authority or the court. As currently drafted, the child is restricted to expressing her or his views in person or in writing. I am proposing to amend this section in order to future proof the legislation to ensure that a child who may wish to use other means, including electronic means, to give her or his views to the courts or the authority may do so.This provision will also apply in cases where the child nominates an appropriate person to present his or her views to the authority or the court. I recommend that the amendments be accepted.
I move amendment No. 13:
In page 12, between lines 34 and 35, to insert the following:"Information on post-adoption supports
10. The Principal Act is amended by the insertion of the following after section 19:"Information on post-adoption supports
19A.(1) The Child and Family Agency shall publish guidelines in relation to best practices around post-adoption voluntary contact plans.
(2) The guidelines should include information on relevant services and supports including those relevant to maintaining post-adoption voluntary contact plans.".".
I move amendment No. 14:
In page 12, between lines 34 and 35, to insert the following:"Information on post-adoption supports
10. The Principal Act is amended by the insertion of the following after section 19:"Information on post-adoption supports
19A. The Child and Family Agency shall publish information on relevant post-adoption supports and services.".".
I will not speak to it at length. It relates to a concern I raised previously, based on my view that the Child and Family Agency should publish information on relevant post-adoption supports and services. Again, it was widely framed. I am conscious that we do not know what relevant post-adoption supports and services might be available at this point. The amendment is to the principal Act to ensure that, in respect of the core capacities of the Child and Family Agency, we will give the agency the power to state it can publish information on relevant post-adoption supports and services. We have heard that the current primary legislation does not provide that power. The amendment refers back to the primary legislation and seek to ensures the Child and Family Agency will have what I propose as one of its clearly established powers. It would give it the capacity to publish information on post-adoption supports and services that it might consider to be relevant. It is a very mild and reasonable amendment. One would think somebody who goes to the Child and Family Agency should be able to access information of this nature. I understand the objections may be very similar to others given; therefore, I do not want to waste too much of the time of the House on the matter.
I thank the Senators and appreciate the amendment which concerns additional matters to some of the others outlined. Barnardos provides professional support for children adopted from abroad and their families living in Dublin, Kildare and Wicklow on a range of post-adoption issues. In other areas, however, the Child and Family Agency adoption services provide information on the availability of local services, access to the social work duty system and facilitate peer support groups for the parents of adopted children. It should be noted, however, that under the Adoption Act 2010, once a child is adopted, parental duties are assigned to the adopted parent. Therefore, it is open to any adopted child to access the full range of services available to all Irish children. They include specialist psychiatric and psychological services, health services and speech and language services. While I appreciate that some children adopted from abroad may require specialised services to meet complex needs, such a need would be consistent for all children with complex needs, not just those who have been adopted. For these reasons, I do not propose to accept the amendment.
I will not give an extensive answer. The Minister knows, as we do from sitting in this House, that the needs are not the same and that children who go through the adoption system have a very specific set of needs and experiences. It is not simply a question of requiring services such as those outlined by the Minister, including Barnardos, to provide information. As the Minister rightly said, with regard to the child and his or her family or the persons who will choose to access services, it is a matter of ensuring they will have access to information on the services available. Nonetheless, I recognise that the Minister is not in a position to accept the amendment at this time.
I move amendment No. 15:
In page 13, between lines 35 and 36, to insert the following:"13. (1) Section 23 shall not generally apply to persons who, at the date of the adoption order, were more than 18 years of age, however, the Adoption Authority may waive this requirement if they believe it is in the best interests of the person for whom an adoption is being sought.
(2) The Adoption Authority shall also consult the prospective adoptive family in deciding whether to waive the requirement to be less than 18 years of age.".
This amendment would give the subject of an adoption and the family some leeway, at the discretion of the Adoption Authority of Ireland. I do not ask for the removal of the upper age to be considered, although there are certain provisions to that effect in some jurisdictions. It probably seems to be counterintuitive to some that adoption should be possible after the age of 18 years, but the adoption process is long. In the 2010 Act some of the provisions and timeframes involved result in circumstances in which it might not be possible to conclude the process before the child reaches the age of 18 years. For example, a child who might be brought into a family at the age of 15, 16 or 17 years might not, owing to the timeframes involved and administrative delays, have his or her adoption process concluded before reaching 18. That is relevant and important, for a variety of reasons which particularly relate to property rights. If a prospective adoptive parent were to die intestate, it would obviously have serious implications for the prospective adoptee who, if adopted, would be entitled to inherit. It would also make a difference in the payment of dependent child allowances and other social welfare benefits. There ought to be some flexibility in that regard. The sharp cut-off point of 18 years potentially creates difficulties for families and individuals who would otherwise be the subject of an adoption. There should be flexibility to allow for the fact that there might be a difficulty or a delay in processing an adoption case such that it would not be concluded until after the child reached the age of 18 years.
The primary purpose of the Adoption (Amendment) Bill 2016 is to give effect to Article 42A of the Constitution in so far as it relates to adoption. In particular, the Bill provides for the adoption of any child, regardless of the marital status of his or her parents, and that in respect of any matter, application or proceedings under the Adoption Act 2010 before the Adoption Authority of Ireland or any court, as the case may be, the best interests of the child shall be regarded as the paramount consideration and that in respect of any child who is capable of forming his or her own views, the child's views should be ascertained that and such views shall be given due weight, having regard to his or her age and maturity.
Priority is given by the Adoption Authority of Ireland, the Child and Family Agency and the courts to cases in which a child is older to ensure the adoption process is completed before he or she reaches the age of 18 years. There is no evidence to suggest a provision in that regard is required. However, a number of Members, including some of the Senator's colleagues in the Dáil, have raised concerns that while this may not have happened to date, it could possibly happen in the future. The Senator has, therefore, called for a strengthening of the procedures involved. Having given careful consideration to the concerns raised, I agree that the procedures involved in such cases should be strengthened. I committed in the Dáil to requesting that the Adoption Authority of Ireland to prepare a proposal, in consultation with the Child and Family Agency, for inclusion in its business plan to address this issue. I am pleased to inform the House that I have written to the chairperson of the board of the Adoption Authority of Ireland on the matter. The chairperson has advised me that the authority has been liaising with Tusla on the issue and that a new protocol has been established to strengthen the management of all cases in which an adoption application concerns a child aged 16 years or over. There is no evidence that what is envisaged has happened in the past. What we are doing is asking the Adoption Authority of Ireland and Tusla to identify and put in place a protocol to ensure the management of cases in order that those children who are older will be prioritised and adopted prior to reaching 18 years of age.
Amendment No. 20 seeks to delete the amendment that was inserted into section 54(1) of the Adoption (Amendment) Bill on Committee Stage in the Seanad. At the outset, I want to state that I understand the reason the Senators submitted this amendment. In short, they are concerned that some parents may not be offered supports that would assist them to take care of their child rather than that child being received into the care of the State. I have been working with my officials for some time now to develop an amendment that addresses the principle of the Senators' concerns without the risk of preventing the adoption of a child in whose best interests adoption is appropriate.
During this time, Tusla, the Child and Family Agency, the Adoption Authority of Ireland and the Office of the Attorney General were consulted on a number of proposals my Department developed in an attempt to provide a workable amendment. However, despite a great deal of effort, it has not been possible to bring forward such an amendment so, reluctantly, I must propose that the amendment inserted on Committee Stage is now deleted. However, I would like to reflect on what the Senators wished to achieve through the amendment, therefore, I propose to accept the Senators' broad principle by issuing a ministerial direction to Tusla under Part 6 of the Child and Family Agency Act 2013. Specifically, I propose to use section 47(1) of that Act to issue a direction to the agency. Where it appears to the agency that the child requires care or protection, the agency must take all reasonable steps to work in partnership with parents providing a package of care, including practical, emotional and financial support to keep children at home safely where at all possible. I intend to make this direction within the next two weeks. Under the Child and Family Agency Act 2013, the agency must comply with the direction. The direction must be published in Iris Oifigiúiland laid before the Houses of the Oireachtas. The chairperson of the agency must, within the time I specify in my direction, inform me of the measures taken by the agency to comply with the direction.
The ministerial direction I propose to make in my view is broader than the Senators' amendment. In effect, it affects all cases, not just cases which will lead to a section 54 application. It emphasises partnership between the parents of the child and Tusla and it will require detailed recording, which is in line with evidential standard in all cases, system upgrading and reporting to me by the chairperson of the Tusla board of the specific measures taken to comply with my direction.
This is a system-wide policy direction which can ensure that the Senators' objectives can be achieved in all cases and for that reason I am grateful to the Senators for raising this and working so extensively on it with us. Moreover, it will ensure an increased acknowledgement of and administrative backing for parental supports. However, as I mentioned briefly already, I have a number of concerns about the potential effect of the amendment inserted on Committee Stage. The effect of the Senators' amendment would be that before making an application for a child to be adopted because of parental failure, Tusla must be satisfied that every reasonable effort has been made to support the parents of the child in question. If it is considered that reasonable efforts were not made to support the parents or where Tusla is unable to prove it has done so, there is a strong risk that the adoption of the child would not go ahead. That is despite the adoption being in the best interests of the child. That is my first reason.
It is also likely to be the case that there will be no realistic chance that the child will be reunited with its parents. In all likelihood, the child will be returned to State care until he or she is 18. Is that what we want? I do not believe so. That is my second reason.
This raises a significant issue around the constitutionality of preventing the adoption of a child in whose best interests adoption is appropriate. A failure by the State, perhaps many years previously, to support parents or an inability to prove it has done so could mean that the adoption cannot go ahead. In many cases, the child in question will have indicated his or her wish to be adopted. There is also a risk that an adoption could be delayed despite the adoption being in the best interests of the child. That is my third reason.
As I mentioned earlier, in those circumstances, the child may not return to his or her family but would remain in care up to the age of 18 years and would not benefit from the permanency and stability of adoption. Additionally, this will be an extra criterion to be considered by the court before an order under section 54 can be made.
High Court consideration of any criterion rightly takes time, and more court time will logically and inevitably cause the proceedings to be longer. It cannot be argued that creating an additional criterion will somehow not incur extra court time. It will.
Inevitably, the threshold for such court applications will be very high. Strong evidence will be required and will be robustly challenged. The court will no doubt consider what supports have been offered, provided, for how long and to what extent those supports were provided. This could limit the ability of Tusla or the court to make effective and timely decisions regarding children. It could result in the loss of a critical focus on the child's best interests.
As the Senators are aware, the primary purpose of the Adoption (Amendment) Bill 2016 is to give legislative effect to the constitutional amendment as it relates to adoption. The insertion of Article 42A into the Constitution gave children rights which have not heretofore been enunciated in the Constitution. For the first time, therefore, the Constitution contains an express statement of children's rights.
The Adoption (Amendment) Bill 2016 supports and upholds those rights, but there is a risk that this amendment may actually achieve the opposite of what is intended. It moves the Bill from the current child centred focus to a parent-adult centred focus, which is inconsistent with the intention of Article 42A. Adoption is a hugely significant event in the life of a child. It has lifelong implications for the child concerned. A child will only be put forward for adoption when all other options have been explored and ruled out. As legislators, we have a responsibility to ensure that the legislation supports and safeguards a child.
I believe that my proposal to issue a ministerial direction to Tusla comprehensively meets the Senators' concerns without attracting the risks attached to the amendment inserted on Committee Stage. It is a practical and effective response to the Senators' proposal and I look forward to implementing it.
I thank the Minister for her time. I thank the Senators who supported my successful amendment to this Bill on Committee Stage and continue to do so. The amendment represented a crucial and necessary addition to the Bill that placed a responsibility on the State to support birth parents when their child is taken into foster care and to improve the chances of eventual family reunification. I was delighted to see it attract majority support in the Seanad.
The policy intention of the amendment was relatively simply. We wanted to give effect to the obligation on State authorities that exists under Irish law and international human rights law to take positive steps towards reunification of children who are in care, where possible with the birth parents. Specifically, the amendment was drafted to create an obligation on the Child and Family Agency to support the birth parents during the period between their child being taken into foster care and when an adoption order is being made by the High Court in which the consent of the birth parents is dispensed with. That was a response to the reality that exists in practice where the agency will often offer supports to parents while their child is still in their home but will stop doing so when the child enters foster care, greatly lessening the chance that the birth parents will ever be in a position to adequately care for the child in the future.
International human rights law, particularly the European Convention on Human Rights, and Irish domestic law both recognise that there is a positive onus on State authorities to seek and achieve the reunification of children in their care with their natural parents. It is not sufficient to sit back and wait for the parents to address the issues that resulted in the child being taken into care. The State must take positive steps designed to facilitate reunification. A failure to do so would amount to a failure to respect the right to family life of both the children and parents involved. It was with that intention to give statutory underpinning to this commitment that the amendment was drafted. That was the policy intention of the amendment.
In the weeks following Committee Stage of the Bill, the Minister, Deputy Zappone, and her departmental officials were kind enough to make the time to meet with me on a number of occasions to discuss the amendment. The Minister and her officials raised a number of practical concerns with the wording of the amendment as inserted on Committee Stage. As a result, we agreed a revised version of the amendment that incorporated a wide range of feedback.The text was written by the Minister's own department officials and it was agreed that it be introduced by the Government at Report Stage. This unfortunately did not happen. The agreement was reneged on and the debate was cancelled. We now stand here six weeks later and the best that the Minister and her Department can come up with to support birth parents whose children are about to be adopted without their consent is to simply delete my amendment. I will explain why I am opposed to the ministerial direction presently. We have had months of constructive engagement, I and my office have put in hours and hours trying to address the departmental concern with the amendment, trying to figure out how this can work in practice and how it would be feasible to support birth parents during the relevant period. To come up with this now and to remove my amendment is to wash our hands of the issue of birth parents when the child is in foster care. I do not accept that this is the best the Government can do and I urge the Minister to re-introduce the revised amendment that we agreed on when this goes to the Dáil. I will explain why the revised amendment is a positive one.
First, with regard to the issue of the ministerial direction, I do not doubt the Minister's intention. I understand why the Minister feels that it is broader and what it will do. For me, however, this is another measure that Túsla can be directed to do that it will not do in the end. It is not a precondition for adoption. Túsla has many recommendations and policies and lots of lines that it has to follow in ensuring the best course of action for families. It often does not do this. The problem that kept coming up for the revised amendment and with my amendment, and it came up in every single meeting that I had with the Minister and her officials, was one of administration, namely the administration of proving that parents have been referred to the relevant supports. We should never place administration over people. We should want nothing more than to have a positive reporting system that accurately captures the timeline of a parent's engagement with Túsla.
When the High Court agrees to dispense with the consent of a parent in cases of adoption, it must be proven to be just and warranted and it must stand up to legal scrutiny. This cannot be achieved with a ministerial direction that has no statutory underpinning. A ministerial direction is a general order to the Child and Family Agency and will not make referring birth parents to supports the criteria for adoption proceeding without their consent. If a case has been made in court as to why a parent is having their legal relationship with their child permanently removed without their consent, Túsla must be held accountable and be able to demonstrate that parents were referred to supports when their child was taken into foster care so as to make them better able to care for that child. The direction from the Minister means nothing if Túsla claim that they do not have the ability, capacity or administrative proficiency to demonstrate that they refer parents to supports.
This week I was reminded of why I need to trust my gut and fight for this amendment, if not the revised amendment. This was when I was contacted personally by a family whose father is currently incarcerated and had addiction issues. He is a loving father and looked after his children very well until the time of his incarceration. Unfortunately, the mother of those children took her own life a few weeks ago. I will try not to get upset because this is a situation that is quite close to my own family. I got a phone call from this distressed family during the week about a visit to this man in prison from a social worker. This concerned the future of his two children and his stepchild. This man, who does not even have secondary level education, was not even offered the support of having someone present during the meeting with social worker. This is just after losing his partner to suicide. Not so much as a chaplain or a prison security guard were asked to sit in on that meeting so that he could understand the complexity of everything being laid out before him about his two young babies, aged six and seven. The very last line of the notes from the meeting, typed up by the social worker, stated that the father is not currently in the position to care for the children, nor will he be in the future.
This is based on one meeting with the father of these children. Some social worker who had never met him before went in with pre-typed notes. There is no case of him with the social workers. They decided in there to sit down and have him read over a care plan and intentions to bring him to Family Law Courts in a few weeks. Luckily, somebody in this House, a Senator who is a barrister in this area, intervened and helped me to try to stop that happening.
My concern is that we have vulnerable adults faced with forms and sheets about the future of their children who do not even have the literacy to understand them. Never mind being offered supports to help him care for his children when he gets out, this man was not even offered someone present at the meeting to support him and help him understand. We need to understand that there are parents out there who need to be referred to supports. When it comes to removing someone's consent in the court system, we should expect nothing less than Túsla to be able to stand up and give an account of the supports offered to a family. I know that it does that when the child is in the home. When the child is removed from the home however, and I have dealt with cases in treble figures of this kind in my 16 years of working with social protection, there will sometimes be a social worker who is perfect and has everything covered. In another case, however, there may be a social worker who has recorded barely any understanding in his or her notes.
An inconsistency in the Túsla administration should not be a reason not to introduce an amendment ensuring that parents are referred to supports. It is not that difficult and there will be no delay in the court system. It is just one more thing on a checklist of things already required. As someone who has worked in a care system, the notes that I kept could be taken out of a drawer straight away to prove the supports I offered people in the community and addiction sectors. I do not see why a whole institution with resources behind it cannot also produce the same kind of proof in court, especially when we are moving to a policy that removes the consent of a parent. This is the first time that this has ever been done in Ireland. Why not make sure that when we do something so big for the first time, we can stand over it in court? We can then know that we have done the right thing and that that parent was never going to be able to care for his or her child. We do not know that if we never referred them to supports.
I will be very brief. I speak in support of my colleague. It is regrettable that we are looking at the direct removal of an amendment passed and agreed by this House. It would have been different if the Minister had come with an alternative amendment. I believe that an alternative amendment was drafted at one point and it is regrettable that that was not put forward. That would have been more useful as an approach, perhaps it might be useful in the Dáil. I do not find it appropriate that we would remove an amendment that had been put forward by this House. There have been great efforts to try to come up with something substantial.
We need to be very clear, it is not the proposal brought in by my colleague that is unusual. The Minister suggests that the adoption process would somehow be hugely changed and compromised by this new measure. The change that is happening here, in this legislation, is a radical change, allowing for the waiver of parental consent. It may be very positive in many situations. It is, however, a radical change and the forces introducing this radical change are the Minister, her Department and this legislation. That is why there is an onus to ensure that we get this right, that we strike the right balance and that we do not have unforeseen consequences.
Let me be clear, this is not saying that adoption is going to constrained. The best interests of the child are very clearly made paramount and are paramount throughout the legislation. That is in no way affected or compromised by the amendment inserted by this House. What is required, however, in putting forward this radical proposal to withdraw the requirement for consent, is that basic checks and balances be put in place. These would be to ensure that the decision to withdraw parental consent is not taken lightly or without evidence put to the satisfaction of the organisation. The amendment is mildly worded. What is important is that those concerned would be able to give an account that they have considered these issues appropriately.The amendment is beyond reasonable. Again, I am sure the detail can be nuanced in the future but we should not be in a position to withdraw this amendment at this point.
It has been argued that my ministerial direction is sitting back, that it is a radical change for me to come in and delete an amendment that was part of Committee Stage and that the ministerial direction will mean nothing in terms of the arguments of the Senators. I know Senators are appreciative of going back and forth in respect of my office and the Seanad Office in trying to come to the place where I would come here with an amendment to the amendment as distinct from a deletion and arguing that we should do something else. I do not accept that this is a radical change. I accept that it has to do with an aspect of the process of law making. I do not think one would necessarily argue that, in principle, every deletion of an amendment that happens on Committee Stage-----
All I am saying is that this is the process of law making we follow. Obviously, I made every effort on the basis on the legal advice I had and worked with my officials to come back with something different. As the Senator is aware, we went through a number of iterations. Ultimately, we had to move forward to something that is effectively broader and affects all cases, not just cases which will lead to a section 54 application. It emphasises a partnership between the parents of the child and Tusla. I also note that the amendment that was passed on Committee Stage also concerns Tusla having to do something.
Some of the arguments that have been put forward relate to the lack of capacity of Tusla. I am issuing a ministerial direction to Tusla to do things it has to do. Tusla has to come back and demonstrate to me that it does these things. I note that some of the arguments the Senator has put forward are made on the basis of what an agency has to do so that there is also a question about whether, in general, it has the capacity to do so. I completely understand the Senator's objectives and the arguments put forward. I am rejecting some of those in terms of the way they are made. I am simply saying that what I am putting forward will achieve the same objective but for a wider number of cases and that it is a better way of making law.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Martin Conway, Frank Feighan, Maura Hopkins, Tim Lombard, Catherine Noone, Kieran O'Donnell, James Reilly.
Frances Black, Gerard Craughwell, Mark Daly, Paul Daly, John Dolan, Robbie Gallagher, Alice Mary Higgins, Gerry Horkan, Colette Kelleher, Terry Leyden, Brian Ó Domhnaill, Niall Ó Donnghaile, Grace O'Sullivan, Ned O'Sullivan, Lynn Ruane, Fintan Warfield, Diarmuid Wilson.
I move amendment No. 23:
In page 22, between lines 18 and 19, to insert the following:“Amendment of section 58 of Principal Act27. The Principal Act is amended by inserting the following new section:“58B.A child who has been adopted under the provisions of the Adoption Acts shall continue to be entitled to have access to his previous parents or guardians, or relevant non guardians, prior to the adoption, should the child so wish, and provided that this is in the best interests of the child.”.”.
I move amendment No. 24:
In page 24, between lines 27 and 28, to insert the following:“Amendment of section 96 of Principal Act37.Section 96 of the Principal Act is amended, in subsection (1), by the insertion of the following paragraph:
“(i) (i) the publication of guidelines in relation to best practices around post-adoption voluntary contact plans for those considering adoption,
(ii) information on relevant post-adoption services and supports for those considering adoption.”.”.
I move amendment No. 26:
26. In page 26, between lines 5 and 6, to insert the following:"42.Not later than 10 months after the passing of this Act, the Minister shall initiate a review and consultation in respect of the potential introduction of open or semi-open adoption in Ireland. Such a review shall include public consultation and legal and policy analysis. A report on the findings of this review and consultation shall be laid before the Houses of the Oireachtas not later than 18 months after its initiation.".
I will not speak at great length. I thank the Minister, as I believe she is open to working with us, particularly on the substitute amendment I have tabled. This recognises that the missing piece of adoption in Ireland is open and semi-open adoption, and that this is something due for consideration. I have spoken to the Irish Care Leavers' Network. Many of its members have been in some of the worst and most difficult aspects of our care system. It is very strongly in favour of the introduction and consideration of open adoption. It conducted a survey recently of 100 of its members to ask whether they would have wished to have been adopted. These are people who went through the entire care system without this option. A total of 60 said they probably would have. They were also asked would they have considered adoption if it had not meant the complete severing of ties with the person's former family, that is, if we had open adoption, and far more of its members said they would have sought adoption or been interested in adoption in such circumstances. The foster carers of Ireland very strongly believe open adoption is the direction in which we need to go and should be one of the options.
I realise open adoption will not always be the appropriate option, but it should be one of the options on the table to ensure we have a new modern transparent system and that children can have access to the full gamut of relationships. Barnardos has also spoken about the dangers and some of the negative impacts we have had from Ireland's system of closed adoption in the past and the need to move to a new system. This is uniform, and the head of the Adoption Authority of Ireland, in his academic work, has spoken about open adoption as the missing piece. This is the next step for Ireland as a nation if we want to move past some of the legacy of a closed system, secrecy and a dynamic which seeks, in some cases, to narrow the sphere of reference for children. It would lead to more adoption and more effective adoption because people would not be placed in a binary choice position. At present, to agree to being adopted, to choose to adopt or to agree or give consent to a child being adopted is a zero-sum game in Ireland. There is no acknowledgement of potential ongoing valuable relationships. These may not be relationships as primary carers but relationships a child may wish to maintain, a parent may wish to maintain or that a new adoptive family may wish that child to maintain.
I welcome the fact the Minister is looking at the issue. I hope it happens during her tenure in office. I am concerned about this, because I believe the Minister acknowledges and recognises the issue. I appreciate she has indicated an openness to considering and initiating a review of this. In this context I will only propose the substitute amendment.
Other reasons we need to examine this issue include that we are in a different legal context now. The constitutional assumptions we have had in Ireland need to be changed and looked at. The family unit is in the Constitution, but we now have the new Article 42A of the Constitution on the rights of the child. It is consistent with the rights of the child, and the very serious article to which we gave a collective mandate to include in our Constitution, that we consider the child's full right to relationships. This is part of the spectrum of open adoption. It is also very much in the spirit of the Children and Family Relationships Act 2015, which recognises that a child has a wide spectrum of meaningful relationships. To be in tune with the constitutional amendment and current legislation it is very important that we review the issue and reconsider it. I thank the Minister for giving it consideration. I wish it was included in this legislation, but I look forward to future legislation which may address it.
I thank Senator Higgins for her willingness to engage and agree to a substitute amendment. I am deeply appreciative of this. It is something that will enable us to achieve some shared objectives. I acknowledge the benefits of open adoptions. I support it in principle. It should be noted, however, that I believe it will need to be given full and careful consideration.
Open adoption generally means a form of adoption in which the biological and adoptive families have access to varying degrees of each other's personal information and have an option of contact. We need clarity on what is meant by open versus semi-open adoption. Are we speaking about some form of ongoing contact between all parties? Do we mean adoptions where the legal link with the birth parents is not broken? Do we mean shared parenting between birth parents and adoptive parents? These are the questions that will be integral to this work. One approach is provided for in the Adoption (Information and Tracing) Bill, which states Tusla may facilitate the implementation of an arrangement between a birth parent and an adoptive parent of an adopted child relating to the sharing of information. The Senator is aware of this, and we will be debating it here in due course. A broader approach can be one of shared parenting, where both parental parties retain parental rights in regard to the child. This would require a total restructuring of the current provisions of the Adoption Act 2010 and the total re-examination of the way in which Irish adoption is aligned with the child welfare system and the revised guardianship provisions implemented in the Children and Family Relationships Act.
Consideration must also be given to a number of relevant broader issues, such as implementation of Article 42A of the Constitution on the best interests of the child. The review would also require a full examination of a number of issues relating to its retrospective application, having regard to the legal basis of existing adoptions and the constitutional legal rights of those involved; the possible implications for intercountry adoption and the operation of arrangements with other countries; and greater consideration of sensitive situations where it may not be in the best interests of the child to be subject to an open adoption. I merely take this opportunity to identify some of these issues so the Senator will understand and is aware of the work the Department has already done on considering these issues and wanting to move forward.
I am committed to undertaking a full review of adoption policy and legislation and, I state explicitly in this context, to looking at the concept of open adoption. The proposal to undertake a review and consultation process as outlined by the Senator will be considered as part of the overall review. It is a significant project. It will need to be carefully planned and resourced. It will obviously require extensive consultation, involving a wide range of stakeholders to review the policy and legislation. I appreciate the Senator was willing to increase the timescale in her original amendment, which allows me to be able to accept it. As the Senator can hear, I am in favour already of the objective of it. I also wish to say to the Senator that while arguing her other amendments, in the context of knowing this amendment would be accepted, I appreciate her willingness to take most of them back for another day.