Wednesday, 30 June 1976
Dáil Eireann Debate
Mr. G. Collins: Do I take it that the section primarily means that all past orders would be completely validated where the grounds for attack on such orders would be similar to the grounds that gave rise to the decision in the recent court case?
Mr. Cooney: There is provision for hearings in camera but not specifically in cases arising under the adoption Acts. The practice is—unfortunately it has been breached by some journals —that the names of the parties be not revealed and they are referred to merely by initials to preserve their privacy. Proceedings under the adoption Acts are public but if the welfare of a child or the Guardianship of Infants Act procedure is concerned it is normally in camera.
Mr. G. Collins: The Minister will agree that the welfare of a child was in question here because the decision of the case had such far-reaching effects. The Minister will also agree that the glare of publicity given to the case, even though the identity of the child and the people concerned was withheld, caused grave anxiety to many people and many adopted children.
Mr. Cooney: The criterion for in camera is the question of the custody of the child. In determining the question of custody welfare is relevant. In proceedings under the adoption Acts simpliciter there is no express provision for in camera hearings. The identity of the child is however not revealed in those proceedings and the parties are not publicly identified.
Mr. Cooney: No question of it. Certain new procedures are provided for in subsequent sections which will remove the difficulties that arose in the case that gave rise to this section but without in any way inhibiting the rights of the various parties to give or withhold or be informed about the position regarding consent. We will deal with that in section 3.
Mr. O'Malley: The Government have made reference—this is something one does not like to talk about too much in public because it may give rise to apprehension on the part of some people—to the possible unconstitutionality of some part or parts of the 1952 Act. Apparently danger of that is apprehended because there is talk of a referendum at some future date to rectify any possible unconstitutionality of the 1952 Act and, if that is so, does not the danger of such unconstitutionality apply also to this section?
Mr. Cooney: No. The danger apprehended has to do with the exercise of judicial functions by the Board. Section 5 is designed to shut the door on all possible challenges under the Adoption Acts, but it cannot shut the door on people who exercise that challenge under the guise of constitutionality and so there may have to be a referendum to deal with that particular problem. But it is a particular problem. In general, there is no apprehension in regard to what is proposed in section 2, but that is not to say some person might not take a constitutional case under section 2.
Mr. O'Malley: If there is reason to believe the exercise by the board of its powers under the 1952 Act, as amended, may be the exercise of a  judicial function, is there not the possibility that section 2 may be unconstitutional? Is there not the danger of that possible taint applying to section 2?
Mr. Cooney: That applies to everything, and not just to section 2, under the parent Act and all amending Acts. May I say it is only a point of view with regard to the 1952 Act and the presumption is in favour of its being constitutional. It would have to be attacked and I do not even know if it is going to be attacked. Apprehensions in this whole area have been strengthened by what has happened and our anxiety is to close every possible door, even to the extent of hypothetical apprehensions, and it is in that context the constitutional change by referendum has been mentioned. I take Deputy O'Malley's point but, if we were to try to deal with that point, we would be looking questioningly at everything done under all the Acts so far and that is, I think, something we should avoid.
Mr. O'Malley: I do not want to labour the matter but it is, unfortunately, a very important point. The purpose of the section is to deal with the failure by the board to do certain things the Supreme Court recently held it should have done under the 1952 Act.
Mr. Cooney: The implication of what the Deputy says is that the board did not do what it should have done. I understand the particular case was an exception and the purpose of this section is to cover any other exceptions that might have crept in, but that is not to say that the norm of behaviour is not correct. That is not the position. This is to deal with exceptions from the norm.
Mr. Cooney: That is something on which I would not like to offer an opinion. I am sure they will take legal advice. There might possibly be other grounds under other legislation for proceeding on the question of custody, or something like that, but not proceeding on the Adoption Acts.
Mr. Cooney: This section relates to future cases and it is designed to provide for certain changes in adoption procedure, primarily with a view to enabling the board to maintain substantially its present practice of not checking back with the mother at the last moment before the adoption order is made. It proposes that every person whose consent to the making of an adoption order is necessary and is being given shall be informed that her consent may be withdrawn at any time before the making of the order and that she is entitled to be heard on an application for the order. She may indicate in writing her wishes as to whether or not she should be informed of the date on which the board would be willing to hear her or as to whether she wants to be consulted  again. Where she does not wish to be so informed or consulted it will not be necessary to contact her again but, in any other case, the board will have to ensure that she is informed or consulted and, if she cannot be found, the board will deal with the application as if the consent were not forthcoming. The idea here is to provide a legal process at a fairly early stage whereby the consenting person—I understand this is what most mothers who consent to adoption would want—may opt out of the adoption process at a fairly early stage. If the mother says she wishes to be consulted again then she must be consulted again. If she says she does not wish to be consulted again there is no obligation on the board to consult her again. They might voluntarily decide to do that but I doubt very much if they would so decide.
Mr. O'Malley: Potentially if a natural mother so wished she could appear at the hearing that led to the making of the adoption order. It has never been the practice for the natural mother to be there at the time or to be told of the date or place where it was proposed to make the order. It is normal practice for the child and the adoptive parents to be present at the hearing that leads to the making of the order. It would be a very unsatisfactory situation if the natural mother were to be present at the same time or in the same place as the adoptive parents. Will the Minister state if it can be so arranged that the hearing for the purpose of the order would be held, perhaps, at two different times and in two different places if it were a case where the natural mother exercised her right to appear?
Mr. Cooney: I agree entirely with the Deputy that it would be unsatisfactory. In fact, it would be contrary to all proper adoption procedures for the parties to be in an adversary situation at an adoption hearing. This will not be done; the mother will not be present when the adoptive parents and the child are present. If the mother wants to be heard, she can be heard by the board on a separate occasion. That is what is meant by the  section. There can be different stages and different periods for dealing with the application. It does not all have to happen on the same afternoon, on the same day or, even, in the same week. However, I imagine the matter would be dealt with speedily once it is started. It would be quite in order for the mother to be heard one day and the adoptive parents two or three days afterwards or they could both be heard at different times and in different places on the same day. It would not be the practice of the board to have the parties together.
Mr. O'Malley: The Minister will appreciate that while this provision probably was unavoidable in the circumstances it will create serious administrative difficulties. For one thing, the same committee of the board will have to hear the natural mother and the adoptive parents. Obviously, all the members of the board do not sit at all hearings; they could not do this, particularly as they hold many of their hearings outside Dublin. Is there any way of avoiding that kind of difficulty? Is it likely to give rise to further problems?
Mr. Cooney: We do not anticipate administrative difficulties nor do we anticipate that there will be many applications by mothers to be heard. Even if there are, we do not think it will give rise to administrative difficulties. It will be possible for the board to hear the mother separately and distinct from the other party to the application. It is a matter of administration that will have to be overcome because we are satisfied that the provision in the Bill is the best way to deal with the problem. Possibly it has to be dealt with in this way by virtue of what the Supreme Court said in some of their obiter dicta.
Mr. Cooney: This section proposes that the board may request and authorise any organisation or person, whether in or outside the State, of whose suitability the board are satisfied, to make inquiries on their behalf. The board shall be entitled to accept and rely on the report of such organisation for the purpose of satisfying themselves that every person whose consent is necessary has given the consent and understands the nature of the consent and of the adoption order. The idea is that the board will make contact with the mother in all cases, either through their officers or another agency. The information that is elicited by virtue of that inquiry can be accepted by the board to satisfy them that consent has been given and that the nature of the consent has been understood.
Mr. O'Malley: I can see why this provision is in the Bill but would the Minister not agree that it is a very loose provision, that the board have no way of knowing that the report they get is accurate? I can see why the provision is here and I am not to be taken as objecting seriously to it. However, I have grave reservations about giving a board which has very important functions, which are now believed to be judicial functions——
Mr. Cooney: I said there were certain apprehensions but the presumption must be in favour of constitutionality. Naturally, the board have to act through agents in many of their  activities and this will be an extension of that procedure. The Deputy will note that the section says that the person from whom the board seeks this information must be a person whom the board consider suitable for the purpose. Obviously, the board will not ask any casual bystander or any casual person to make such an inquiry. The board must know that the person is suitable and, consequently, must have hard information to satisfy them that the person is suitable. Obviously, inquiries will be made through people in this field, through adoption societies or people who are engaged in the general adoption field. There is no need to be apprehensive that the board will get information from less than worthy sources.
Mr. Cooney: This section provides that an adoption order shall not be declared invalid where the court, having regard to the interests of the child and to the rights under the Constitution of all persons concerned, considers that it would be proper not to make such a declaration. The intention is to go as far as possible towards enabling the High Court to validate any order made by the board no matter what legal or other omissions may have taken place or may still exist.
As I explained on Second Stage, this is a far-reaching section. It is so far-reaching that, in effect, the High Court might be asked to disregard fraud or a serious legal omission, if the High Court decided at the time the question came before it subsequently that such fraud or illegality should be ignored because the interests of the child at that time determined it. It was considered that the interests of the child was what should move the court rather than any consideration as to the legality, or lack of legality, when the child was adopted, or when the purported adoption was made possibly years earlier.
 As the Deputy will see, there are two matters the court has to consider. The first is the interests of the child. It is specifically directed to that but the court must have regard to the rights under the Constitution of all persons concerned. We might find ourselves in a position where, by law, we have effectively closedoff any hope of a person attacking the order on some technical or legal ground. If a person wanted to persist, his only hope would be via a constitutional challenge. It is in this area that amendment is being considered. It is quite difficult technically. If you like, that is the second leg we will be looking at from the point of view of the constitutional change, in addition to removing the apprehensions with regard to the 1952 Act.
Mr. O'Malley: In this phrase, “having regard to these interests and to the rights under the Constitution of all persons concerned”, has the Minister in mind the reference in the Constitution to the inalienable and impresciptible rights of parents in relation to their children?
Mr. O'Malley: Does the Minister's thinking extend to any change in the position of the parents of a legitimate child towards that child and vice versa, or does the Minister's thinking apply to orphans and illegitimate children?
Mr. Cooney: The point raised by Deputy O'Malley may have to be faced in the framing of the question, but not necessarily so. The matter is being teased out in the drafting process and in the discussion process. I would have no objection to a question to overcome that difficulty. It is a point which was raised at some length in the Seanad and in this House when the Adoption Acts were being amended in 1974. It was felt there was a gap in our law, that legitimate children could not fall to be adopted and that the law should be changed. That might mean a constitutional change. It is a matter for legal argument as to whether the Constitution needs to be changed in this regard. Possibly it does. Whether the question to be framed to deal with the immediate problem this Bill is attempting to cure needs to be framed to take in the wider aspects of the adoption of legitimate children, is something I cannot say at this stage.
Mr. Cooney: I cannot specify what they might be because they would depend on what rights the advisers of a particular person would find as being infringed when that person found his challenge was closed off by the other parts of this section. The rights which might be infringed would depend on what was being done in a particular case. My having to put it that way probably highlights for the Deputy the difficulty of drafting the constitutional amendment.
Mr. O'Malley: Assuming the first amendment in the Minister's name is accepted, will this not put the adoptive parents in exactly the same position as the natural parents, in which they have not been hitherto in general terms? Therefore, would this reference in section 5 not include them as well?
Mr. Cooney: I should not like to make any comment on that in case I would be commenting on court procedure, which would not be appropriate for me to do. We would all prefer that all parties would be heard, but there is always the difficulty in this area of having a confrontation between the adoptive parents and the natural parents, something which the Deputy deprecated in the context of proceedings before the Adoption Board. Procedures to ensure that both can be heard without this confrontation will have to be devised. It is a matter which I might discuss with the superior court's rules committee.
Question proposed: “That section 6 stand part of the Bill.”
Mr. Cooney: This section is designed to sever the issue of invalidity of an order where a declaration of invalidity is made from the issue of custody of the child. The section proposes that, when an adoption order is declared invalid, the court shall not make any order as to custody unless the custodians who would normally be the adoptive parents are heard. This deals with the point made by Deputy O'Malley in the context of custody. The section is worded so as to discourage the making of a custody order in these proceedings but, if the court decides to make a custody order, it has to do so in accordance with section 3 of the Guardianship of Infants Act, 1964, which provides that the welfare of the infant shall be regarded as the first and paramount consideration.
The section is designed to enable the question of the invalidity or otherwise of the adoption order to be dealt with on its own. If the court decides that in the same proceedings they will also deal with the custody, the physical possession of the child, that can only be determined on the criterion of section 3 of the 1964 Act. Preferably only the validity of the order would be decided and custody would then be decided elsewhere, if at all, that is, if challenged by the people who might have been successful in setting aside the adoption order.
Mr. O'Malley: Would it not be unusual if a natural mother or natural parents, as in the recent case challenged the validity of an adoption order and secured a declaration to that effect, that they would not seek to  follow it up by an application for custody? Even if they did not, which would be unusual, would we not have the anomalous situation that there would be a declaration that the child was not validly adopted but would still continue to live with the adoptive parents and would not acquire any rights, say, under the Succession Act vis-à-vis his adoptive parents?
Mr. Cooney: Anomalous is hardly the word. It would be a legal consequence of the adoption order being declared invalid. It was the adoption order which gave those rights and, when it was found invalid, those rights ceased with it. That is not to say the rights could not be provided by the adoptive parents by legal instruments. They could. All the rights could be provided for by will or deed. It is a point I have been considering. It might be possible to deal with it legislatively at another date and that one could impute rights under the Succession Act to certain categories of people the custody of whom had not been taken from the adoptive parents. As the Deputy rightly points out, it is a consequence of the order being declared invalid that the rights which go with the adoption order fall. It is then a matter for the adoptive parents to take the legal steps open to them to secure the rights under the Succession Act and any other rights they may want to give a child in their custody.
An Leas-Cheann Comhairle: The Chair wishes to tell both sides of the House that we have five minutes left for this measure.
Mr. O'Malley: I have no objection to this section. It is very important, very difficult and very tricky. It is a great pity that, unfortunately, due to circumstances we have to skim through the Bill.
Mr. Cooney: Section 6 is essentially a simple section.
Mr. O'Malley: It is but it has many consequences.
Mr. Cooney: The consequences to which Deputy O'Malley refers were there anyway. The section sets out to prevent a situation where custody will automatically follow the declaring invalid of an adoption order. This was one of the complaints.
Mr. O'Malley: It does not at the moment. No custody order was made in the recent case.
Mr. Cooney: I understand a custody order was made in the recent case. What we want to ensure is that the two things are severed and, if they are not severed and it is going to be dealt with there and then, that the criterion will be the Guardianship of Infants Act, 1964 criterion, the interests of the welfare of the child. That is all this section is doing. On the other question of the rights under the Succession Act, all these arise in the general context of adoption laws, what status an adopted child should have and so on.
Question put and agreed to.
Mr. Cooney: I move amendment No. 1:
In page 4, before section 7, to in insert the following section:
7.—Where, in any Act of the Oireachtas passed after the passing of this Act, there is a reference to a child of a person or persons, then, unless the contrary intention appears—
(a) the reference shall be construed as including a reference to a child adopted by the person or persons, as the case may be, under the Adoption Acts, 1952 to 1976, and
(b) a child so adopted shall be deemed, for the purposes of the Act, to be the child of the person or persons aforesaid born to him or them in lawful wedlock and not to be the child of any other person.
This amendment is to secure a point raised by Deputies Collins and Colley on Second Stage when they said they were surprised to learn on the debate  on one of the financial measures here that an adopted child is not treated for all purposes as the natural child of the adopter or adopters. Part III of the Adoption Act, 1952, goes a great deal of the way in putting an adopted child on an equal footing. It is commonplace, however, for revenue and social welfare Acts to make provision for them also. It is not possible to have a simple, unqualified provision putting an adopted child entirely in the same position as a natural child, but, as I am generally sympathetic to what was raised, I think the amendment as drafted meets what the Deputies had in mind.
Amendment agreed to.
Mr. Cooney: I move amendment No. 2:
In page 4, before section 7, to insert the following section:
8.—A court shall not make an order under section 22 (5) of the Principal Act or an order for the discovery, inspection, production or copying of any book, document or record of the Board (or of any extracts therefrom), or otherwise in relation to the giving or obtaining of information therefrom, unless it is satisfied that it is in the best interests of any child concerned to do so.”.
This amendment is intended to meet the situation, which, as far as is known, has never arisen, when application is made to a court for the disclosure of information in the board's records or in the index kept by the Registrar General which makes traceable the connection between entries in the Adopted Children Register and the corresponding entry in the register of births. The purpose of the proposed provision is to ensure that it is only where the interests of the child concerned require it that such an order may be made.
Amendment agreed to.
Section 7 agreed to.
Title agreed to.
Agreed to take remaining Stages today.
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