Private Members' Business. - An Bille um an Séú Leasú ar an mBunreacht, 1978: An Dara Céim. Sixth Amendment of the Constitution Bill, 1978: Second Stage.

Tuesday, 24 October 1978

Dáil Eireann Debate
Vol. 308 No. 6

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[1052]Mrs. Desmond: Information on Eileen Desmond  Zoom on Eileen Desmond  Tairgím: “Go léifear an Bille an Dara hUair.”

I move: “That the Bill be now read a Second Time.”

This Bill to amend the 1937 Constitution has three distinct purposes, each of which aims to secure the rights of children. The first and immediate purpose is to ensure that adoptions are safeguarded and made constitutionally secure. The other purposes come within the broader ambit of children's rights, towards which we, the legislators, should be addressing our minds as we approach 1979, the year of the child. These other purposes are the removal of discrimination against illegitimate children and the extension of the category of children who can be legally adopted.

Legislation on adoption belongs to this present century. It was enacted in most countries between the two world wars to cater for the great masses of homeless children who were the victims of these clashes between great powers. England and Wales produced adoption legislation in 1926, Northern Ireland in 1929, but despite pressure since the late forties from our adoption societies, it was late 1952 before a Bill was enacted here to legalise adoption. It is true to say that there was a certain reluctance and opposition to the legislation and there were reservations to the Bill that was enacted. There were fears that it would deprive parents of their rights and the Act reflected some of the fears that were prevalent and attempted to safeguard the rights of parents. There was great preoccupation with the rights of parents during those years.

In 1971, Father James Good, speaking with considerable authority and experience on the subject of adoption, criticised the provisions of the 1952 Act for not being sufficiently child-centred. Adoption, he said, was not for the purposes of providing children for childless [1053] marriages, it was not for the purpose of relieving parents of their responsibilities, nor for saving the State expense, but to provide homes and families for homeless and familyless children.

Father Good was correct. This must be the prime purpose of adoption legislation and the amending Acts of 1974 and 1976 reflected this thinking and sought to provide that the child's welfare be placed first in cases of custody disputes. Indeed, such thinking had also been reflected in section 3 of the Guardianship of Infants Act, 1964, which sought to ensure that the child's welfare be of paramount importance.

There is no doubt now, however, that these legislative measures, with their emphasis on the rights of the child, are constitutionally valid and there is doubt on constitutional grounds also as to the legal validity of adoption orders made by the Adoption Board since it was established in 1952.

With regard to adoption orders, since the famous McL case decided by the Supreme Court in June 1976, adoptive parents have lived in a state of great anxiety and they have freely expressed their anxiety to all our political parties. It is in response to representations from the Adoptive Parents' Association as well as from the many caring organisations who concern themselves with the welfare of children and also because the Government have not acted, that the Labour Party have put forward this Bill.

In the McL case a five year old adoption order was quashed by the Supreme Court because the Adoption Board had made a mistake in administrative procedure. It had not fully informed the natural mother of the consequences of her consent to adoption and of her right to withdraw that consent up to the time of the making of the adoption order. In this McL case the natural parents had since married and, as the order was defective, the child was legitimated and he and his natural parents formed a family with all the rights and privileges which Article 41 of the Irish Constitution affords families based on marriage.

The decision of the Supreme Court to quash the adoption order in this case was disturbing to all adoptive parents [1054] because such a case though rare, could recur. They also felt that the board could have made further administrative errors in any of the 23,721 cases since 1952. Most disturbing of all, however, was the fear raised by the McL case that the whole system of adoption might be unconstitutional.

The case made by counsel for the natural parents in the McL case was that the Adoption Board, in considering a case and deciding whether or not to make an adoption order, were exercising powers of an unlimited judicial nature and were therefore trespassing a field which the Constitution reserved to the High Court.

Article 37 of the Constitution permits the exercise of functions and powers of a limited judicial nature by any person or body of persons duly authorised by law, notwithstanding that such person or such body of persons is not a judge or a court, but the point argued was that the making of an adoption order, which would affect the whole future of the child whose adoption was being considered, could not be considered as exercising limited functions and powers.

The McL case was decided on the validity of the individual order and the judges, quite deliberately, I think, did not go on to consider the constitutional issues which were raised at that time. Following the McL case, the Government enacted the Adoption Bill of 1976 as an emergency measure to deal with the fears that had been raised making the child's welfare of paramount consideration, but still the constitutional issue remained unclear and the doubt persisted in the minds of adoptive parents.

In their great anxiety to have the matter clarified, the Adoptive Parents' Association commissioned an opinion from two eminent barristers, Messrs. Barrington and Condon. Their opinion, given on 8 March 1977, sustains the fears that existed with regard to the unlimited nature of the functions and powers of the Adoption Board, and also with regard to the constitutional validity of the provisions of the 1974 and 1976 Adoption Acts, which placed the child's welfare first.

The legal opinion at that time was that the first problem—the unlimited nature [1055] of the functions and powers of the Adoption Board—could only be solved by writing adoption into the Constitution. Our amendment to Article 37 of the Constitution is an amendment, along the lines suggested by this opinion of March 1977, by the addition of the following sentence:

The Adoption Board established under the Adoption Acts 1952-1976 shall be deemed in considering adoptions and in making or deciding not to make adoption orders to be exercising limited functions and powers.

This is an urgent and appropriate amendment. It is now nineteen and a half months since that legal opinion was given which I think made Government action imperative. It is unbelievable that no action has been taken by the Government in that time. The Government have been in power for 15 of those nineteen and a half months and must be held primarily responsible for the lack of action in that area and for the unnecessary pain and suffering caused to 25,000 families who were concerned in the intervening years and who adopted children between the coming into operation of the original Adoption Act and the present day. It is indefensible that legislation of this nature should give pride of place to many other pieces of legislation that we have. At present we have a Bill before the House in regard to capital gains tax. That Bill must be passed but surely it is a reflection on the priorities of the Government that such Bills take preference over a Bill to alleviate human suffering such as a Bill to suffering the Constitution and ease the sufering of people involved in regard to adoption.

Sections 2 and 3 of our Bill amend articles 41 and 42 of the Constitution by deleting the words “inalienable” and “imprescriptible” as they apply to family rights and parents rights respectively. These amendments remove doubt as to whether Irish adoption laws, to the extent that they make the welfare of the child the paramount consideration in adoption matters, contravene Articles 41 and 42 of the Constitution which have been interpreted as giving priority to [1056] parental rights over children's rights. In fact, legal opinion exists that notwithstanding the 1976 Adoption Act a court might feel obliged to quash an adoption order and return a child to its natural parents—provided they have married—regardless of the welfare of that child. One could recall in the sense of a statement such as this a statement made by the Chief Justice in the McL case when he warned: “One must not allow compassion to confuse or permit sympathy to conceal fundamental rights”. Such a decision could be taken and we can well imagine its traumatic effects. Our amendment places beyond doubt the validity of the 1974 and 1976 Adoption Acts and it eliminates the danger of such a decision.

We must also bear in mind that the courts have decided that a family in this State under Article 41 of the Constitution means a family based on marriage and does not include a family comprised of unmarried parents and their children. This results in discrimination against illegitimate children and it is the elimination of this discrimination that we propose as the second purpose of this Bill. Deletion of the words “inalienable” and “imprescriptible” as they apply to the rights of parents and the inclusion which we propose of the words “equality of rights under the law shall not be denied to any child on the basis of status at birth or parentage”, would remove the present legal discrimination against the illegitimate child.

We believe this reform is very urgent. It has already been carried out in a large number of countries such as New Zealand, Germany, Switzerland, Norway, Sweden, Denmark and Iceland. Its practical effect would be to give children born out of wedlock the same right of succession under the 1965 Succession Act as children born within marriage, provided paternity is established. At present a child born out of wedlock has no rights of succession whatever in this country to the property of its natural father and only a very limited right to succeed to the property of its mother—the right only exists where the mother has no legitimate issue. It is a disgusting and shameful law which penalises and victimises innocent [1057] children with some vague notion, apparently, of discouraging adultery and fornication.

The association, Cherish, which is very well equipped to speak on this subject in welcoming this Bill says it is totally unacceptable that some children of a nation are discriminated against by virtue of the marital status of their parents. They say that this discrimination has the effect of prohibiting a child from succeeding to the estate of his father or fraternal relatives and brings into question his right of inheritance to the estate of his mother. They add that nothing but the total abolition of the status of illegitimacy is acceptable. They welcome this Bill. They are people who are affected by it and people whom we seek to help by putting forward this Bill.

The Council for Social Welfare held in Dublin in 1976 in a submission on children born out of wedlock stated:

We are concerned with the rights of all children and that they should be treated equally. We regard it as unchristian that children born out of wedlock should, as a result of the actions of their parents be victimised by legal distinctions between them and children born to married parents. Consequently, we wish to urge that the legal disabilities imposed on these children should be removed.

They recommend that there be no distinction between children before the law and that children born out of wedlock be given rights of succession.

The Irish Council of Civil Liberties which is deeply concerned with rights of children in a report on children's rights under the Constitution deplores the concept of illegitimacy as “one of the law's most shameful creations” using as it does innocent children as tools and recommends that a clause be added to the Constitution forbidding discrimination between different classes of children based only on difference in the marital status of their parents. The Sixth Amendment of the Constitution Bill, 1978 will have the effect of alleviating the disgust of all these groups of people in regard to the present situation. It will [1058] bring to an end the discrimination that exists between legitimate and illegitimate children. It is a reform that is long overdue and we commend its purpose to the House.

The third purpose of the Bill is to extend the facility and benefit of adoption to a wider category of children than orphans and illegitimate children. At present children of married persons, whether abandoned or however illtreated, do not qualify for adoption. This is so because of the rights and duties married parents are given under Articles 41 and 42 of the Constitution of 1937 which are described as inalienable or imprescriptible or both. The amendments in sections 2 and 3 of the Bill proposing that those words be deleted would overcome this difficulty.

As the Constitution stands, married persons cannot divest themselves of their rights and duties in respect of their children, even those parents who seriously neglect and ill-treat their children, who have no interest in the welfare of their children, and who are not fitted for the care of children. Even in their case the Constitution still insists on preserving rights which they may have abused over and over. This appears to me to be a ludicrous situation. Children of such parents need help. They are worse than homeless. They are entitled to benefit from the warmth and security which could be theirs, and which would be theirs, in an adoptive home but for this cruel constitutional barrier which still exists. Many of them are condemned to spend their lives in institutions, and that is indefensible. I submit each day a constitutional amendment is delayed, and a subsequent referendum is delayed, will result in deprivation and perhaps irreparable damage to other young lives. The matter is urgent. In their statement in 1976 the Council for Social Welfare said:

5.5. It is most destructive experience for a child to be abandoned by his parents. When a child is abandoned, whether by married parents or by single parents, or where they do not make reasonable effort to provide a secure home environment for him, then the interests of the child demand that an equivalent home environment [1059] should be created for him with, or even in extreme cases without, the consent of the parents.

5.6. We are aware that children can be left in care until they are of an age to enter employment and earn wages, at which stage their parents reestablish contact with them. We have known of such children returning then to live with their parents and suffering morally and physically as a consequence. The law offers no protection to these children against either their exploitation or their removal from the jurisdiction by their parents.

5.7. Children should no longer be seen as objects of the law but rather as subjects with rights, and this concept of children's rights should be embodied in the law. In any conflict situation the child's welfare should be paramount.

5.8. When for any reason, parents are unable or unwilling to fulfil their obligations towards their children, the State as the ultimate authority must intervene to protect the rights of those children.

In her submission to the newsletter “Children First” Anna Lee the coordinator of Cherish said:

We would consider it a matter of utmost urgency that discrimination against children by reason of their parentage alone should be prohibited. There is no possible justification for allowing the present legal discrimination between different classes of children based only on differences in marital status of their parents to continue.

She was referring to the concept of illegitimacy and the discrimination against illegitimate children. She went on to say:

Adoption should be made available to all children regardless of legal status where it might be seen to serve their best interests. Thus, the adoption of legitimate children with living parents should be made possible so that they may be offered a secure and stable family life if their biological parents are unable or unwilling to provide such a life.

[1060] Very many authoritive sources agree on this issue. It is in response to the submissions of all these people that we have broadened the concept of our Bill to provide for the two other purposes I have mentioned: the ending of discrimination against illegitimate children and the broadening of the category of children who may be adopted.

It is important to add that this Bill will not in any way undermine the family because Clause 3 of Part II states quite clearly:

The State acknowledges the family as the social unit best fitted to provide the continuity of care essential to the upbringing of a child. Where, however, the welfare of the child requires it, whether by reason of the death of the parents, or by reason of their unwillingness, neglect or inability to discharge their parental duties, the State shall supply the place of the parents by appropriate means, which may include the enactment of laws providing for the transfer of parental rights to substitute parents.

We acknowledge the family as the social unit best fitted to provide the continuity of care essential to the upbringing of the child.

There is at present a shortage of children for the number of prospective adoptive parents eager to provide the security, warmth and comfort of an intimate caring family relationship in full adoption. At the same time, a considerable number of children are condemned to institutions or the lesser security of fosterage, excellent though fosterage is in many instances.

The present situation is ludicrous. It is ridiculous. It can be resolved by the passage of this Bill. The Bill is not narrow. It is well rounded. It secures the rights of children as well as alleviating the immediate problems. It is an appropriate measure as we approach International Children's Year.

It is the duty of the Government to protect and vindicate the rights of children. In the 15 months they have been in office they have been totally negligent in that area. It is also the duty of the Government to allay the fears of the adoptive parents throughout this State. By accepting this Bill, with its [1061] framework for reform in the two areas of adoption and illegitimacy, they will be bringing to an end a great deal of human suffering in this country. They will also be clearing the way for further legislative reform in the area of child welfare without fear of constitutional challenge.

I confidently recommend the Bill to the House.

Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  I formally support the Bill which was so effectively and comprehensively introduced by my colleague Deputy Mrs. Desmond. I want to give an assurance to the House and to the Minister on a number of items in our approach to this Bill. We want a constructive debate. As a political party we are completely open to a response. In no way do we regard our Bill as being an entirely definitive instrument on the totality of the subject. We know there is great sensitivity needed in the drafting of any such legislation.

Indeed, a week ago in his response to a query as to why there is not a Government Bill before the House on this matter, the Taoiseach said there are major difficulties. We accept that there are considerable difficulties. We know this as a political party and from the various representations we have received, some as far back as ten years ago. I have been here for ten years and Deputy Eileen Desmond has been in one or other of the Houses for longer. In our day to day work during that time we have come face to face with the disabilities and the inadequacies of the legislation in existence, with the positive discrimination of existing legislation in relation to adoption, the social and legal rights of illegitimate children and other matters.

I want to stress the appalling reflection on our parliamentary system of the extent to which the Labour Party have access to the body of constitutional opinion on this matter. It is negligible. We know there is a great deal of sympathy on this issue, on the lack of humanity and sensitivity, and we in this party are open to conviction as to the views of the Minister, the Attorney-General and the constitutional draftsmen on this Bill and on its shortcomings.

The fundamental purpose of the debate is to try to light a fire under the [1062] subject after so many years of sporadic public discussion, to try to make some progress in regard to the need for constitutional reform in this area and to remedy the situation as rapidly as possible. There is nothing more discouraging to people, be they members of my own family who are involved in adoption or social workers not only here but in England who make constant inquiries as to the precise limitations in this area in regard to existing relationships between adoptive parents and their children or in relation to our socially outrageous discrimination in regard to illegitimate children and their rights of succession. It is outrageously discouraging that we should allow this situation to continue without providing clarification.

I can assure the Minister that we do not approach this debate even from a Labour Party political point of view. Our basic aim is to see to what extent we can make progress. We have difficulties even in that because at this moment we do not know the mind of the Government in relation to this issue. There have been numerous speeches, or half speeches, with great deference to the Minister and the Taoiseach and to my constituency colleague, Deputy Andrews, on this matter of illegitimacy. After nearly two years of experience of a clear-cut constitutional opinion, it is about time we got down to work to clarify the position.

There are only 22 sitting days left before Christmas. Even if we started tomorrow on a Bill to amend the Constitution, we would be doing extraordinarily well to have it through by Christmas. When we come back at the end of January we will be involved up to our tonsils in the budget debate and this Bill will slide into oblivion until the middle of next year, when the Government will be able to advance the argument that the European and local elections will be held and that we could not possibly have a referendum on the Constitution. Therefore I would strongly impress on the Minister the concern of this party that we should not allow things to drift until the end of next year.

We come to the problem of a referendum on a Constitution amendment. I do not know to what extent this has been [1063] discussed at Cabinet level, but I now ask the Government to make provision for an early Constitution referendum, if necessary in conjunction with the European elections. There is not a councillor in the country who would shed a tear if the local elections were not held next year—they could be postponed for a year by a simple Government order. Now that the rates have been abolished there is very little power left in the hands of local councils. Therefore, it should not be beyond the wit of the Government to bring forward a referendum on a constitutional amendment in respect of which I have no doubt 95 per cent of the Irish people would vote “yes”.

We are faced with the appalling situation that nobody seems to know the precise form such a constitutional amendment would take. The Government apparently have two distinct views and we have never had a clear-cut opinion from the Law Reform Commission. It is not good enough that after 15 months of government we should be faced with a situation where an opposition party have to put this matter on the table. Other constitutional matters such as the question of bail fade into insignificance by comparison with this area, and I would ask the Government to allow for the referendum to be held simultaneously with the European elections.

If it is not politic for the Government to postpone the local elections for another year and if we have to have three ballot papers on the one day I have no doubt that such is the overwhelming national opinion on this issue, an opinion that something must be done rapidly—the precise parameters of the framework of the amendment are still somewhat clouded—that people would vote in the European elections, the local election and simultaneously give a resounding “yes” to the necessary dual amendments of the Constitution.

There is a way ahead and an opportunity open to the Government on this. I am aware of the comments the Minister has made on this issue here and to outside organisations. I know that by and large he is in agreement with us that the country needs the necessary amendments [1064] to the Constitution. There is no need for me to mention the vast amount of material available to Members on this issue. When I was in Opposition in 1971-72 I wrote an article to The Irish Times on the question of adoption and I was confident then that something would be done, but in the four years we were in Office we did not do much about it. During that period we got a very solid kick in the rump by virtue of court proceedings and constitutional opinion. Therefore, there are no political kudos to be gained on this issue. Before the politicians become discredited on this issue—there are a number of serious constitutional issues on which we are almost totally discredited be it adoption, divorce or family planning—we should ensure that adoption does not enter into that litany of necessary social legislative change on which we have failed miserably.

We have received representations on this issue from at least 20 organisations and many individuals, and they all deserve better of us. I earnestly plead with the Minister, on behalf of adopted children and those who will be adopted and enjoy the blessing, the warmth and love of family life, such as we have been fortunate enough to enjoy, to help bestow that blessing on many more children. We should do it for those who are the subject of adoption orders and, in particular, we should eliminate the unchristian, anti-social, viciously discriminatory status in our society in relation to illegitimacy which has been a blot on Irish nationhood, nationality and citizenship for decades.

We should grasp this opportunity, and it is within the competence of the Minister to do so. I can assure the Minister that we are open to suggestions on this matter. The Taoiseach, in his initial response, made some criticisms across the House, but we are prepared to listen to those and any criticisms the Minister may make. We are prepared to make this an all-Party matter, and if the Minister wants an all-Party Committee to frame an agreed piece of legislation on adoption we would be agreeable. We would nominate our Members overnight to such a committee. I implore the Minister to deal with this matter urgently [1065] and ensure that before the year is out we can say that we passed a piece of legislation which redounds to the credit and public responsibility of the Parliament.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I understood that the normal procedure in the course of a debate of this nature was that speakers were called from the different sides of the House. I thought we would have had the benefit of the Minister's views on the Bill at this stage of the proceedings. I do not know whether the fact that the Minister has not spoken so far is an indication of the attitude of the Government on this matter or whether he has not spoken because he does not have any of his troops behind him in support. The fact that he has not spoken is a cause for concern to those who are genuinely interested, on a non-party basis, in dealing with the troubled situation relative to our adoption laws. The recent history is well known. From the McL decision in 1976 we had a state of crisis here in regard to our adoption laws. That was followed by the 1976 Adoption Act, an emergency measure which attempted to allay the fears of the adoptive parents and adopted children. At the time it was indicated by the Government that that was not the last word on the matter. Shortly afterwards the Government indicated that, having taken advice, a referendum was necessary to ensure that in any adoption situation the interests of the child should prevail. That view was confirmed by the then Minister for Justice who, in March 1977, indicated that the preparation of proposals was at an advanced stage.

Following the change of Government questions were put to the Taoiseach in regard to this matter and in October 1977 he indicated that the possibility of an amendment to the Constitution to deal with certain aspects of the law on adoption was under consideration. In December 1977, in response to questions I put to the Minister for Justice, he indicated that that was his view and that he would not make any further statement. We are now in October 1978 but we have not had any action from the Government in this area or, indeed, in any area relative to the field of law reform. I make that statement more in [1066] sorrow than in anger because I feel that the Minister and the Government must be aware of the real crisis in the field of adoption which presented itself following the 1976 decision. They must be aware of the insecurity of adoptive parents and of adopted children. They must be aware that prospective adoptive parents are to some extent affected in their decision as to whether to adopt because of the present state of our adoption law.

Looking further to the future, we have to consider the situation of the prospective adoptive children. Is there any discussion on the need to change the present situation to bring it up to date to secure the adoptive parents and the adopted children, and if so why is action not being taken? The Government must accept the considered opinion produced by various organisations and legal gentlemen, and if they do not accept the finer points of these opinions, surely they must accept the basis on which it was found necessary to seek these opinions and the basis on which these opinions were given.

The present problem means that changes are necessary. Nothing is being done to provide these changes, and in this regard I compliment Deputy Mrs. Desmond of the Labour Party for bringing the matter to a head by placing this Bill before the House. On behalf of my party I accept this Bill in principle. I also accept that there are points in detail which one could take issue with, but these could be sorted out in committee. The adoption problem has been put on the floor of this House by Deputy Mrs. Desmond, and on behalf of Fine Gael I approve this Bill in principle.

If the Minister accepts the underlying need for change there are two options open to him. We either accept this Bill in principle and agrees to the Second Stage, reserving the right to put down amendments in Committee, or he gives a clear and positive undertaking without using the words “within a reasonable time” or some such formula which I distrust, that he will within a specified time limit circulate a Bill to deal with this problem. If the Minister were prepared to do that I, and I am sure Deputy Mrs. Desmond, would feel that she had achieved her mission, that she had caused the [1067] problem to be dealt with if not in the terms in which she present her Bill.

Legislation in recent years, for instance the Guardianship of Infants Acts, 1964, and more recent adoption Acts, have caught up with the public and social attitude of the day that our legislation should be more child centred and not as envisaged at the time of the 1937 Constitution, dealing with, dealing solely with the rights of parents. Although I would not classify myself as a constitutional lawyer, I feel that to constitutionally secure the adoption orders made since 1953 of which there are about 23,000 it is necessary to change the Constitution. The Taoiseach at the opening of this session indicated that he had some doubt on this point. If there is some doubt among lawyers, and there is a clear view strongly expressed by very eminent counsel that there is no doubt that a referendum is necessary to change the Constitution so as to provide the necessary constitutional framework to carry out adoption orders, the Minister should consider that it is doubt that we are trying to allay here. In case adoptive parents and adopted children feel greater insecurity as a result of this type of debate I must point out that the McL case was an isolated case and the circumstnces which arose in that case are very rare.

There is a certain element of insecurity and even if the problem is tacked by producing a new Bill which does not amend the Constitution there is a possibility that the sense of insecurity will continue. I would urge the Minister to either accept this Bill and put down amendments at Committee Stage or to give the undertaking I referred to and produce a Bill to amend the Constitution or else a Bill which would be made absolutely constitutionally secure. The only way to produce such security would be to amend the Constitution or to submit a Bill under Article 27 for approval by the people. The result of doing this would have a considerable psychological effect in that the matter would then be beyond all doubt. Unless this is done either in Deputy Mrs. Desmond's Bill or by way of a Bill from the Minister some doubt will remain.

[1068] The situation of the child today is that we are beginning to accept that a child has civil and human rights, the child is not just considered as being part of the family. This type of thinking is an advance on that which obtained when the 1937 Constitution was drafted. The 1937 Constitution laid considerable emphasis on the inalienable and imprescriptible rights of the family and the rights of the parent in regard to education, custody and so on. There seems to be an omission in the 1937 Constitution in that the child is not considered as an individual human being. Public opinion today is that the child should be considered to have individual civil and human rights, and this is why the Constitution and the thinking behind it should be brought up to date. In dealing with this Bill we are looking at a suggestion that, first of all, orders made by the Adoption Board should be constitutionally secure. I am not entirely happy with the drafting of the Bill for a number of reasons. For instance if one refers to the Adoption Board established under the Adoption Acts from 1952 to 1976 and incorporates this in the Constitution there might be difficulty if there was an adoption Act in 1980, and there might be a difficulty if in the future we wished to establish some other type of board to deal with this problem, but this is purely a drafting point and does not take from the fundamental principle that I fully agree with, that adoption orders should be absolutely constitutionally secure.

This Bill deals also with the question of illegitimacy and provides that in effect the stigma of illegitimacy on a child born out of wedlock is to be removed totally. Is there anybody who can take issue with this concept? The manner in which this part of the Bill is drafted might give rise to question but presumably that is a matter for referral to the parliamentary draftsman for assistance. One cannot expect a Deputy in Opposition to be up to date with the techniques of parliamentary draftsmanship but the fundamental principle is contained in the Bill. Can anybody argue that an innocent child born into this world should carry any stigma or [1069] can any argument be raised against such an innocent child having full rights of citizenship, rights of property and of succession as in the case in respect of any other child? In regard to that aspect of the Bill it is clear again that there can be no objection.

The third major aspect of the Bill relates to the question of the adoption of legitimate children. Under the present law this is quite limited and relates only to orphans or to an unusual type of situation where a child's natural parents marry subsequently and afterwards wish to have the child adopted. As the law stands the child would have been rendered legitimate by the marriage but this indicates how confined is the whole question of the adoption of legitimate children. Obviously, there is no question of the State, of the Adoption Board or of anybody else being empowered to take children from one family and place them in the care of another family for reasons that are frivolous. It is obvious that in the thinking behind this Bill there is no question that for any reason, financial or otherwise such a change should be made. But if there were to be such a change I would not apologise for emphasising the necessity for very strong safeguards from the point of view of protecting the family, from the point of view of protecting natural parents and of ensuring that the substantial onus of proof was totally in favour of the natural parents in this type of situation.

However, at this stage we are discussing the Bill which deals with an amendment to the Constitution. We are not dealing with an adoption Bill as such. We are in the situation that daily the lives of children are being affected in a most serious way to the extent that their prospects of adoption are being impaired by the present uncertain situation. I believe there is consent on all sides of the House that change is necessary. In that situation I would urge the Minister, not on a party basis but in the interest of humanity, in the interest of adoptive parents and of adopted children both now and in the future, that action must be taken. This action can be taken in either of two ways—to support the Bill in principle or to give a clear and specific [1070] undertaking that with a specified time which, in the light of my remarks, must be very short, to bring in a Bill to deal with this problem.

Minister for Justice (Mr. G. Collins): Information on Gerard Collins  Zoom on Gerard Collins  At the outset I assure the House that so far as the Government are concerned there is no disagreement with the proposition that adoption orders made properly according to law should be safe from the danger of being declared to be invalid. For the rest, the ground covered by Deputy Desmond's Bill is very difficult and, indeed, very delicate. I understand the concern that has prompted the Bill and I congratulate Deputy Eileen Desmond on her initiative in introducing it. Also, I thank Deputy Barry Desmond and Deputy O'Keeffe for their contributions.

I am sorry if there appears to have been some delay on my part in reaching conclusions on what needs to be done but changes in this area are of such fundamental importance to the lives of a great number of people that every possible care must be taken to ensure that steps taken will solve the problems they are intended to solve and that in the process those steps do not create other serious problems. I assure the Deputies that this matter has been analysed carefully both in my Department and by the Attorney General and I am now in the process of consulting my colleagues in the Government. I am hopeful that decisions will be taken by the Government in this area in the very near future. Regarding the request made by Deputy O'Keeffe and bearing in mind the number of sitting days remaining in this session, I am confident of having legislation before the House before the session concludes.

As matters stand I cannot say whether, for example, having regard to the analysis I have mentioned, the provision on the lines of section 1 of the Bill will be accepted by the Government as being necessary. In any case, the text of that section appears to be in need of at least one important amendment.

The combined effect of section 2 and the Schedule could be very far-reaching indeed, and its application in particular cases might have effects quite different [1071] from what very many people would consider to be right or even tolerable. In the circumstances therefore I must oppose this Bill.

Again I would like to assure the House that I will do everything in my power to expedite the formulation of the Government's proposals in this area, and I am confident that I will have the necessary legislation to deal with the matter in the House this session.

Mr. Cluskey: Information on Frank Cluskey  Zoom on Frank Cluskey  Could I ask the Minister two questions? When he states that he is confident that he will have a Government Bill in this session, is he saying that the Bill will cover all three aspects of the Deputy E. Desmond's Bill?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I am not. I would prefer not to get involved with what will——

An Leas-Cheann Comhairle: Information on Seán Browne  Zoom on Seán Browne  If the Minister wishes to reply he can but we cannot have questions during a motion of this kind.

Mr. Cluskey: Information on Frank Cluskey  Zoom on Frank Cluskey  If the Minister intervenes in a debate and gives an under-taking regarding the introduction of a Bill, it is only reasonable that one should ask for clarification about what he is promising. That is all I am doing.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  The Deputy knows from his time in Government that it has never been the practice to disclose the contents of a Bill until it is published.

Mr. Cluskey: Information on Frank Cluskey  Zoom on Frank Cluskey  That is not what I am asking. I am asking if the Government Bill will cover the present situation regarding present adoption, will it cover the question of the legal rights of illegitimate children and will it cover an extension of the present eligibility for adoption?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I would prefer to leave that area alone until such time as the Government Bill will be before the House. I am aware of the problems that exist in this area. As I said, I propose to consult the Cabinet in the very near future—I hope Deputy O'Keeffe will forgive me for using that phrase—and when they have made a final decision, then, and not before, will I be prepared to disclose what is in the Bill. That has [1072] been the normal practice since I have been in this House.

Mr. Cluskey: Information on Frank Cluskey  Zoom on Frank Cluskey  I am not trying to be controversial; I am trying to have this discussion as non-political party as possible, but when the Minister stands up and indicates in a very general way that he will introduce a Bill before the Christmas recess, and if we are to accept his word on that, which we do, it is reasonable to know precisely what he is undertaking to do. Is he undertaking to deal with the first aspect of the Bill with regard to adoption orders or is he giving us an undertaking that he will introduce before Christmas a Bill that will deal with the present adoption order situation, the rights of illegitimate children under the law and the consideration of the extension of eligibility for adoption? As I said I am not trying to be controversial but in my view it is reasonable that the Minister's undertaking could end this discussion only if he gives us a clear statement of intent.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  The Deputy knows that I cannot give him a clear indication of specific provisions of the Bill. I would like to assure him again in general terms that the real fears of the many thousands of adoptive parents will be put at rest as a result of the measures I hope to introduce before Christmas on behalf of the Government.

Dr. Browne: Information on Noel C. Browne  Zoom on Noel C. Browne  The Minister has chosen his words very carefully—“The real fears of parents”. This Bill wants to go further than that. As Deputy Cluskey said there is also the provision of the extension of eligibility for adoption and the question of the rights of the illegitimate child. I congratulate Deputy E. Desmond on introducing this Bill. I agree with the points raised by her and I support the case she made, and Deputy O'Keeffe's submission.

My experience in this area goes back a very long time. It always puzzles me how we got the reputation of being the wild Irish, impetuous and moving forward without giving any great thought to what we are doing, because my first experience in this area was in 1948, exactly 30 years ago. The proposal of an Adoption Bill at that time [1073] was turned down. The subsequent Government introduced an Adoption Bill in the fifties and we have been having discussions on this very tangled, delicate and intricate problem—I have no illusions about that—ever since.

I am very glad to see this new development of the child orientated type of legislation appearing. It is something I hoped would develop for a very long time. Another matter in which I have been engaged for at least 20 or 25 years concerns the right of the individual child—this occurs also in the question of corporal punishment—and whether any individual can be subjected to assault by another individual. All through the years we have given parents particular rights not only in relation to adoption but also in relation to this other matter, which I am not going to pursue.

A case has been made for saying that because a child is an individual and a personality in his own right, it is illegal to touch a child. The Labour Party's Bill, which proposes to change the Constitution, is very urgent. Unfortunately it affects a minority—25,000 people and the children involved—and through the years we have not paid very much attention to the rights of minorities. I am glad to hear the Minister is going to take some measures to deal with the anomalies arising out of the making of the adoption orders. Even that will be a welcome advance, but I hope he will go further, in order to give some security to the parents who have children and, much more important, security to the children who have been taken into families and given the advantage of the stability and security of a loving relationship between the parents and children of the adoptive home.

This is really the kernel of this whole question of the child and the child's position in this situation, we must not, at the same time, forget the dilemma of the young girl—usually young girl—who has had the child, who is the natural mother of the child, and the difficulties she has experienced in the past to a much greater extent. We have become very much more understanding of this problem in the last 15 or 20 years. We had the introduction by the previous Government of the support for the unmarried [1074] mother, which was an advance, a progressive and radical step in its own way in our kind of society. Obviously there are overtones in relation to the recognition of illegitimacy which are much less intense than they were. The fact that the girl at least had some kind of support from the State, was recognised as being somebody who had a social problem, and that the community got together to try and help her deal with that social problem in hard financial terms was an advance. But it still leaves the girl with her emotional problem.

That is the aspect of this about which there is considerable difference of opinion—the parental rights, parental rights whether it is an unmarried mother or parents who neglect their children, the right of the natural parents, the emotional difficulty of a girl who is having a baby and who is under what must be the intolerable pressure of the ordeal of facing society. Unfortunately we are still censorial about this kind of thing happening in society, more now in rural areas than in urban ones, where it can be concealed to some extent. We are still censorial about it. The girl then has the physical problem of her job or occupation—possibly she has parental disapproval—and all these other practical problems she faces which tend to make her feel that the correct decision to take is to get rid of the child at all costs to a loving home. There are, of course, plenty of loving homes with adoptive parents. Superficially at any rate it is the easy and the obvious thing to do.

In my experience—and naturally as a doctor one comes up against this kind of thing relatively frequently—it is remarkable how difficult it is for the girl at the time. All the arguments are in favour of a good, stable home, a loving relationship, assured prospects of education, protected upbringing, the dilemma of trying to do the best thing for the child, the difficulty of making a decision, a hard-headed, cool decision in the midst of the business of the delivery and all the rest associated with it, even for the married mother, and then deciding what is best for the child.

Superficially what is best for the child is to have it taken into adoption. But it is [1075] remarkable how difficult it can be, in some cases, for a girl to make up her mind about whether she should put the child into adoption. You are then faced with the question of how long should she be given—a peremptory sort of word to use—but how long should she take or should she be permitted by the State to wonder about this very serious problem. In some cases when it comes to giving away the child she simply cannot be separated from it. Therefore the State has to decide—this I imagine will be one of the Minister's problems—we have to decide at what stage do we intervene in accordance with part 2. Do we, the State, intervene and, while acknowledging the family as the social unit, try to take a decision that the girl cannot, for one reason or another, in our view, bring up the child? If I were faced with this problem I would imagine that would be a decision I would not like to have to take. Obviously that is something we shall have to think about and on which we will have to come to some decision: should the girl be allowed to keep the child for six months or a year? In order to come to terms with their problem, if one does allow that space of time, one then comes over to another side of it—the side I would see as a psychologist or psychiatrist—the problem of the psycho-dynamics of personality formation and the parental relationship.

This is a very difficult problem about which nobody is very sure—the importance of the parent or the surrogate parent at the time of the birth and for the first six months or year, or five, ten or fifteen years. It is interesting to recall that, at a certain stage, they used to take the child away from the mother for a period after the birth of the child. They then changed their minds completely and they decided that under no circumstances, for emotional reasons in respect of the child, should the child be taken away from the mother at all after birth because it might damage the child. Therefore, if that can happen in the first 48 hours or three or four days of a child's life try and extrapolate that to a situation in which the adoption period is delayed six months, or a year, or longer: what damage is done to the child's personality, [1076] how long should the mother be given and how do you protect the rights of the child in that sort of situation? One comes up against the conflict there, which Deputy Desmond recognised, and with which she tried to deal in her own submission—the inalienable right of the parent and then the prior rights of the child which we are trying to establish under this Bill.

To some extent I have some sympathy with the Minister because I feel that there is this great conflict. Because part of my job for some years was the care of youngsters who were put into institutions and who, for that reason, grew up with total emotional deprivation and in that way ended up as various forms of sociopaths and psychopaths of one kind or another I am afraid I would tend to lean over towards the prior rights of the child.

Debate adjourned.


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