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

Wednesday, 25 October 1978

Dáil Eireann Debate
Vol. 308 No. 7

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Atairgeadh an cheist: “Go léifear an Bille don Dara hUair.”

Question again proposed: “That the Bill be now read a Second Time.”

Dr. Browne: Information on Noel C. Browne  Zoom on Noel C. Browne  Deputy Desmond can congratulate herself on having won from the Minister the undertaking to deal with the problem which she has covered in the first part of her proposal for the amendment of the Constitution Bill, the security of parents who have adopted children and who were obviously disturbed by the Court ruling that children, for reasons of defect in the law, might be taken away from them. I must accept the Minister's assurance in that regard. That is certainly an advance. But it is a peculiar criticism of our legislation that that should have taken 26 years from the time of the introduction of legislation in regard to adoption. We are trying to get it right this time.

I share completely the Deputy's view on the second question of legitimacy and I will not attempt to add anything to what she said. She made a very compelling case and I hope the Minister will give sympathetic consideration to it. The idea that an innocent child should be discriminated against simply because of his or her birth seems to me unthinkable, a throback to the old days of the stoning of the lady caught in sin and visiting the guilt on the unfortunate child. I hope the Minister will accept that this anomaly in the law should be removed.

The question of parental rights is the [1265] most interesting and difficult question of all. Clause 1 of Part II of the Schedule states:

Children shall enjoy special protection, by law and other means, to enable them to develop physically, mentally, morally and spiritually to their fullest potential and in conditions of freedom and dignity.

Clause 3 of Part II states:

...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....

This is very interesting and possibly it is a point on which a number of us might differ to varying degrees because it comes back to the case I made last night of the difficulties in attempting to arrive at a just decision, a judgment of Solomon, in relation to the right of the unfortunate girl who has had the child and who decides that she cannot rear the child. Undoubtedly this imposes considerable emotional stress on her. All the States who have adoption laws have the problem of deciding how long is long enough before the prior right of the child comes into force. In our case that period is six months and after that time the State must intervene. The child can be taken into adoption and held permanently by the adoptive parents. That seems to be clear and to be accepted by all and I hope the Minister will provide security for that position.

In relation to the anomalous position of the child whose parents die, perhaps they may be killed in an accident, and who cannot be adopted, I cannot think of any argument against giving to this child the right to adoption and to the security of a loving home and upbringing. I accept that without question.

However, I am not quite so sure about the provision in Clause 3 which refers to unwillingness, neglect or inability of parents to discharge their parental duties. I have seen a lot of this neglect, [1266] as one would in medical practice particularly on the psychiatric side, and it appears to me that this brings us into very deep water, this attempt by outsiders to decide on the effect that an insecure home background is having or is likely to have on the child. During the years I have seen many children taken into care; fortunately it is not as prevalent as it was in the past where we had enormous orphanages filled with small children.

We must consider the general principle of outsiders such as social workers, psychiatrists like myself, doctors and the various appointees of the State trying to assess the relationship between a child and one or both parents where prima facie the general impression is that there is a broken home because of drink or some other factor that the parents might not be able to control, the insecurity of unemployment, temporary desertion and, the case I met most frequently, the mental distress of somebody who is isolated for a long period in hospital. Where do we draw the line in such a situation? How will we make a decision that the marriage has irrevocably broken down, particularly when we do not have divorce? In the case of the unmarried girl we decide that six months is enough but I should not think that would be enough in the case of the disturbed home. What is enough? Is it one, two or three years? People can come together. They can give up drink, they can get good jobs. Their economic circumstances can change and the home could become a stable home. I should like to know Deputy Desmond's conclusions in relation to attempting to deal with that problem.

Clause 3 refers to the inability of parents to discharge their parental duties and this is an even more complicated question. During the years we have taken up a position in relation to people who would be unable to discharge their parental duties, deciding not simply on affluence or the absence of poverty, quarrelling parents, desertion or alcoholism but on the suitability of parents in respect of their religious and political beliefs. I had an old friend, a lady whose husband died tragically during the War of Independence and as a [1267] result of the appalling stress she suffered she changed her attitude completely. After the death of her husband she went what was then thought “way out”. She gave up her religion and became a Marxist and Communist and all that kind of thing. It was the decision at that time that she should not be allowed to rear her children. That is an extraordinary case, but it illustrates the possibilities in this sort of situation.

There is also the position of parents having different religions. I have had this experience myself; after my own children were reared my wife and I agreed that we would like to adopt a child and it was decided that we were not suitable because we had different religions. That is another situation in which the State might decide that because of a norm—political or religious—that they had established the parents could not in their view discharge their parental duties, that is bring up a child to be a good Catholic, Protestant, Communist or whatever it might be. This provision in Deputy Desmond's Bill opens up a very wide opportunity for parents. This situation is less likely to occur than it was in years gone by, but when there were intense differences and the level of political and religious bigotry was more perfervid than it is at present these were real issues, and this kind of thing can happen again.

I agree completely with the first part of her Bill and I am glad that the Minister is going to do something about it. I hope he will also do something about the second part. It seems such a self-evident plea for a remedy that I hope he will take her suggestion. In relation to the third and last part, I have had young children in my care, psychopathic and terribly disturbed youngsters who had lost their parents in car accidents and who ended up in institutions instead of being allowed healing of the terrible emotional wounds of the sudden loss of their parents and who became terribly socially disturbed. Every kind of protest, conscious and unconscious, that they could make they made. I ask the Minister to consider seriously the child who has lost parents in an accident or by death and to bring this into the ambit of [1268] the magnificent provisions of adoption, because the adopted child is the wanted and usually loved child. It is probably the best emotional ambiance for any child in society because the adoptive parents go out of their way and put themselves to trouble in order to adopt the child and to give him a happy home background, to which every child should have access. In relation to the State deciding that a family is bad or unsuitable or that here is a broken home or a neglected child, I share the Minister's fears about trying to legislate there.

Mr. Horgan: Information on John S. Horgan  Zoom on John S. Horgan  It gives me great pleasure to speak in support of this legislation. It is legislation which has not arisen overnight and various speakers, including speakers on this side of the House, have made it clear that both the last administration, and this one to a certain extent, share responsibility for the situation with which this Bill is trying to deal. However, the present administration are the more culpable in view of the fact that the major part of that delay has occurred under them.

The Bill deals basically with three main areas: adoption, legitimacy and the very complex question of the adoption or otherwise of legitimate children. The first point I would like to deal with is the question of adoption. I cannot improve on the case that Deputy Desmond has made in relation to the effects of the various court cases not merely on the adoption laws themselves but on the peace of mind of the thousands of adoptive parents and on the relationships between these parents and the children they have adopted. Deputy Desmond referred to senior counsel's opinion and stated unambiguously that this problem was so serious that it could not be resolved without a constitutional referendum. Our approach to this matter is based, at least in part, on our belief that this is the right procedure. That is why we have introduced this Bill which is of a kind rarely introduced into this House, an amendment of the Constitution Bill designed as the preliminary to the necessary referendum.

The debate on the Bill, however, has been impoverished by the evident lack of any adequate response from the Government [1269] side of the House to any of the very substantial questions that have been raised. The most substantial one is whether a constitutional referendum is necessary. To put it mildly, we would have been grateful to have had the Minister's thinking on this. He referred to the necessity for legislation; unless I am mistaken, he did not refer to the necessity for a referendum. We are entitled to be told in this debate whether the legislation that the Minister proposes to introduce will be an attempt to remedy the situation in relation to adoption by purely legislative means or whether it will be the sort of Bill that we are bringing in here now, that is the preliminary to a constitutional referendum. I speak in ignorance of the Minister's intentions and his insights in this matter but he must be aware that if he attempts to solve this problem by legislative action alone there is a substantial danger that it will not solve the problem, that it certainly will not remove the real fears of adoptive parents who have been told on the very best authority that a constitutional referendum is necessary, and it may only postpone the day when the full, adequate and proper procedure of a constitutional referendum takes place. I shudder to think of the cumulative anxiety and worry on the part of adoptive parents, actual or intending, in such an interregnum. It is almost inevitable that unless this problem is resolved satisfactorily by means of a constitutional referendum sooner or later the natural parents of some child or other may again take the matter to the High Court and Supreme Court and the Supreme Court may find in their favour. The Government will then have to start all over again the process that we want to start now. We want to start it now because even though the people involved are a very small minority of the people of this State, some 80,000 adoptive parents, one cannot measure the anguish and uncertainty they experience. It is impossible to count this but we know it is real and that is why we have brought this Bill into the House.

The Minister in his speech told us that the subject matter of this Bill has had extensive [1270] detailed consideration in his Department. I have no doubt that it has and I have no doubt that that consideration and consultation began before the change of Government. It is not good enough for the Minister to come in here and say that there has been 16 or 19 months' thought given by his Department, with all the technical, legal and constitutional resources at their command and decline to give the House even a fragment of the benefit of that consideration carried out at public expense. I believe that the Minister, and presumably the Government as well, are fighting shy of a constitutional referendum on this issue or on any issue. They know very well if they take a decision to put this issue to the people in a referendum immediately there will be an attempt, no doubt by people in the House and outside the House, to widen the scope of this referendum. There will be an attempt to say that we are having it on adoption so why do we not throw in something else, why not throw in the National University of Ireland so that we can sort out the universities problem, why not throw in the prohibition on divorce? I believe the Government do not want the scope of any constitutional referendum to be widened.

The fundamental question is that if we believe that a referendum is necessary as we believe it is and as we have the authority of senior counsel that it is necessary, the Government should not run away from this issue. We should be told now if they believe that a referendum is necessary, and if they believe it is necessary they should hold it. It is their business, whether or not they respond to pressures or their own internal exigencies to widen it in one direction or another, but it should certainly be held on this issue. That is why we are introducing this Bill to the House.

There is another reason why we are dissatisfied with the brevity of the Minister's response. Deputy Barry Desmond suggested that it would be possible to set-up an all-party committee on the matter. I would like to take up that point and develop it a little further. While I do not believe that it is necessary to set up an all-party committee separate from the House on the matter it is certainly essential [1271] that if this Bill passes the Second Stage debate in the House that we will have to set up a special committee for the Committee Stage because it will be absolutely essential to secure, as far as possible, an all-party agreement and specifically the agreement of the Government on the exact nature of the question or questions to be presented to the people in a referendum. The reason for this is that, although to the best of my knowledge, the Constitution states that all amendments of the Constitution have to be, first of all, passed by the Dáil and Seanad in the form of legislation and then submitted to the people by a referendum there is absolutely no way that this side of the House can insist on the Government holding the necessary referendum even if this Bill were passed in three weeks' time. This is why we need all-party agreement on the exact nature and terminology of the questions to be presented to the people in a referendum. That is why we need a special committee on Committee Stage of this Bill to conduct their work as expeditiously as possible and I hope in the absence of party feeling.

I will have to leave that point there in ignorance of whether or not there will be any further contribution from the Government side on this issue. I must put it on the record that this side of the House are disappointed at the lack of information and response because we know that the information is there, that the opinions are there, that the evaluations have been done, that the legal opinions have been taken by all the resources of the Department of Justice and we are not being told anything about any of them.

I would like to return to the second aspect of this Bill, the complex question of giving to illegitimate children the same respect in real terms, the same legal status in real terms as those children born legitimately. This question has a very high emotional content but I am glad to say that it is being debated in this House without any untoward emotional overtones. The phrase of the 1916 proclamation “to cherish all the children of the nation equally” has been used so often in this House that unfortunately it [1272] is now a cliché. It has become time worn and almost an electoral slogan to be used by whichever side happen to think it is most to their advantage to use at any particular time. We can apply this phrase with particular appropriateness to the subject matter of the second part of this Bill, the rights of illegitimate children. We are not cherishing all the children of the nation equally. We are discriminating between one type of child and another, regardless of personal circumstances, simply because of the objective fact that his biological parents may or may not be married. I am afraid that in this we are still substantially behind the legislative position in many other countries. In the United Kingdom, for example an Act was passed in 1969 which, at least in a limited sense, conferred on illegitimate children the same sort of property rights as their legitimate peers. I say in a limited sense because the 1969 UK Act enacted that if the mother of an illegitimate child died without having made a will that child would be entitled to her estate as if he were her legitimate child, providing there were no other legitimate children. One might think that this was a comparatively small advance but an advance it was and we have still to make even such a small advance along the road to equality.

The House may remember that in 1974 Senators Mary Robinson, Trevor West and I introduced a Bill entitled, as far as I remember, Illegitimate Children (Maintenance and Succession) Bill. It was a Bill which had many objects, and those in relation to the maintenance orders, proofs of paternity and so on I will not go into here, but its fundamental effect would have been to radically change the succession rights of illegitimate children. It was accorded the privilege of a lengthy and thoughtful debate, eventually adjourned without a vote being taken. I think the House would appreciate the benefit of some of the arguments that were made then. At column 85, Volume 79, of the Official Report of the Seanad I said:

The key matter in all this, of course, is property. If no human beings owned property I suspect the question of illegitimacy would never [1273] have arisen, or if it had arisen would never have generated one-quarter or one-sixteenth of the friction that it generates today. This is a sad but certainly recognisable fact of modern times. Many of the highly moral attitudes towards illegitimacy are in reality no more than a transposed and transferred or concealed justification of the rights of private property. It is a justification which is fundamentally selfish and which fundamentally works against the best interests of the children concerned.

I still hold that position and I believe it is relevant to the matter being discussed to-day. If we did not have such a hang-up about property we would not be in such an emotional pickle about illegitimacy; we would not be treating illegitimate children as objects of ownership rather than as objects of affection. I want to make one other brief reference to this debate.

An Leas-Cheann Comhairle: Information on Seán Browne  Zoom on Seán Browne  The Deputy should not quote from debates in the other House. I have allowed him to quote from his own speech in the other House but otherwise it is not in order.

Mr. Horgan: Information on John S. Horgan  Zoom on John S. Horgan  I am grateful for the Chair's indulgence. I have lost the quotation so I will not be disorderly, but I feel I can, without being disorderly, tell the House that on that occasion in Seanad Éireann the then Leader of the Opposition, Senator Brian Lenihan, fully and warmly welcomed the principle behind that Bill. I believed that that was a responsible position by him at that time and I cannot believe that it was taken without consultation. We should like to see more evidence from the other side of this House that the thinking which was forcefully and unambiguously expressed in the other House at that time is still part of the thinking of the Fianna Fáil Party. But we have no such evidence in this House tonight nor did we get it last week.

The other point that I want to make in favour of the section of this Bill dealing with illegitimate children is that it [1274] operates to favour a small number of children in a particular category that has not been referred to yet in this debate. These are the children who were born to parents whose marriages were nullified by our civil courts. Children whose parents' marriages are decreed to be null and void by the law are retrospectively turned into bastards. They are made illegitimate by an act of the court, not just by the behaviour of their parents. As things stand at present, these children—we do not know how many there are but they are as real a problem as any other child and one cannot measure their problem—are illegitimate in the eyes of the law despite the fact that they were produced from unions which most people thought were valid marriages. They were legitimate up to point X and suddenly they became illegitimate; they suddenly joined the ranks of those—and their numbers are increasing—who are illegitimate ab initio, whose illegitimacy stems not from a court decision but from the fact that their parents were not married.

It the State, to put it at its mildest, is going to allow and encourage the situation in which children formerly believed to be legitimate can be made illegitimate, the very least it ought to do is to pass this legislation. It is ironic when we think about the problems connected with the introduction of civil divorce that at least civil divorce, no matter how awkward or how unsatisfactory it may be, makes some attempt to look after the children of broken marriages. Our civil nullity procedure renders them illegitimate and says goodbye to them. Our civil nullity procedure has nothing to do with arrangements for the welfare of the children of the union declared null and void.

The third point that I wish to touch on is whether or not children who are legitimate should have the right to be adopted. I phrase it in that way because I do believe that some children who are legitimate do have the right to be adopted because they have the right to a stable and happy family life and are unlikely to get it in the circumstances in which they find themselves. On one reading of our Constitution this might be possible because the Constitution, in the [1275] order in which it approaches the question of marriage and the family, puts the family first and marriage second. One might have thought that the courts in their series of interpretations of this constitutional law might have taken the view that family comes first and that marriage, although normally associated with it, is not always essential. The courts have decided that the family and the right of the family as we know them are coterminous with the rights of civil legal marriage. In doing so they have given the partners in a civil legal marriage substantial rights over their children, even in the many cases in which these rights are exercised to the detriment of the children.

It is important when we look at the question of placing children, legitimate or illegitimate, in homes which would guarantee them at least a modicum of love and affection that we think not just in terms of the child that is being placed for adoption—let us assume for the purposes of argument that we are to change this particular part of the Constitution and make it possible for legitimate children to be adopted—but of an adult to be. We should insist on the importance of this fact because that adult to be will also, in the fullness of time, most likely be a parent, and society has a deep vested interest in knowing whether an adult to be will be a competent and adequate parent or an inadequate one. Because of that, society should take all steps at its command to ensure that we have as many as possible adults to be who are not to grow up failures or inadequate parents.

Society must use each child placement, including placement where necessary of legitimate children, as an occasion for protecting future generations of children by increasing the number of adults to be who are likely to become adequate parents. Only in this way will we break the cycle of sickness, hardship and inadequacy which is still a blight on our society today. I fully commend the Bill to the House.

Mr. Cluskey: Information on Frank Cluskey  Zoom on Frank Cluskey  We in the Labour Party in tabling this Bill endeavoured to make it as non-political as possible. To illustrate [1276] the lengths to which we went to do that, it is on the record of the House that before the Summer Recess, when we were asking the Government to accept this Bill and it was being resisted by the Taoiseach, I told the Taoiseach that if there were objections to certain sections of the Bill and there was acceptance by the Government of one of its provisions—the provision correcting the position in regard to adoption orders at present—we were prepared to have that section isolated from the Bill and passed through the House either in the name of Deputy Mrs. Desmond on behalf of the Labour Party or to have it introduced in the name of the Taoiseach or the Government and we would support it. Unfortunately, that opportunity was not availed of. Even though we endeavoured to that extent to keep this issue a non-party political issue, last night and again tonight it has been blatantly and disgracefully treated as a purely political issue by the Government.

There are two reasons why I have regretfully come to that conclusion. The Minister for Justice made what I have heard some people refer to as a speech. In fact, it was a two or three minute intervention last night in an effort to get the Government's feet out of their neglect in this area when he announced that the Government would introduce legislation in the present session to deal with one aspect of the Bill—the validity of existing adoption orders. That, I accept, is a major advance and we are extremely glad that by tabling and pursuing this Bill we got the Government to move on this aspect of the matter. But last night, when I asked the Minister to clarify the position in regard to the other two aspects of the Bill, he claimed that he could not give details of the contents of a Bill before it went to the Cabinet. I accept that without reservation, but the Minister can and could have indicated whether it was the intention of the Government to deal with all three aspects of child care and welfare involved in this Bill. While the move on adoption orders is most welcome and while we are most heartened that by the proper use by the Opposition of Private Members' Time we have been able to get that move, we feel that an opportunity [1277] was given in the contents of this Bill in its entirety to make substantial advance regarding our society's attitude towards children.

What we sought in the Bill and request Dáil Éireann to support on the Second Stage of the Bill is, first to put beyond question the validity of adoption orders made by the Adoption Board. That is an aspect of the matter that is of very considerable public concern, has evoked considerable comment and has widespread support at present by many sections of the community. I believe it is for that reason the Minister made the brief intervention last night, to indicate that on this issue he was prepared to make some advance.

The present position in regard to adoption orders is that since 1952 approximately 25,000 adoption orders have been made. If one were to take into consideration just those directly concerned in the making of those orders you would arrive at a figure of approximately 75,000 or 80,000 people. It goes far beyond that. It affects directly not only the people who seek to adopt children and the children themselves, but their relations and friends.

This is a very emotional issue and it has the support of tens of thousands of enlightened people throughout our society with no direct or indirect connection with adoption who realise that the 1952 Act probably brought more happiness to children than any other legislation passed through this House since the foundation of the State. Because of a constitutional challenge to the Act, adoptive parents were placed in a nightmare world. When the McL case was going through the courts, parents of adopted children thought: “Could my child be taken away from me?”

Most if not all of these children have never known any other home or any other parents. While a child cannot be formally adopted until he or she is six months old, frequently a child is placed in the care of adoptive parents long before that statutory age. I know cases where people have had adopted children in their care since they were six or seven days old. It is very difficult for anyone to imagine the mental anguish of adoptive [1278] parents at even the remote possibility that the established family unit could be broken up because of some defect in the law, involving the breaking up of a relationship between child and mother, and child and father. There is no justifiable reason I can think of why, when given the opportunity before the summer recess, the Government did not put beyond all question the validity of adoption orders which had been made.

When the Adoption Bill was before this House in 1952 the climate of opinion was not as well disposed towards adoption as it is now. Society has seen it working extremely successfully and there is now a definite and general acceptance of the benefit of that Act. When the Bill was introduced the climate was much the same with regard to adoption as it is now with regard to the legal position and social status of illegitimate children. I do not think I can hope with any degree of optimism that the attitude of the Government will be as enlightened on illegitimacy as was the attitude of the Government who introduced the 1952 Adoption Bill.

It is the responsibility of each and every adult in any civilised society to ensure that no harm or damage, physical or mental is inflicted on any child. The mental damage inflicted by this society on children who are termed illegitimate is very considerable indeed. Apart from the social attitude, the stigma of illegitimacy is reinforced by the law as it stands. We are asking to have this stigma removed. One would hope that, by doing so, one would be able to have a more enlightened approach to people termed illegitimate. It is only right to say there have been considerable advances in social attitudes and social thinking towards people who are termed illegitimate. As it stands, the law discriminates against that man, woman or child. We are asking the Government and the House on behalf of our society to remove that legal stigma if we cannot immediately remove the social stigma which may still exist in some sections of our society.

The Bill also proposes that the question of eligibility for adoption should be re-examined and that the child of a legal marriage in certain circumstances—and [1279] we qualify that; we emphasise that —should be eligible for adoption. There are children at this very moment in institutional care and the people looking after them are totally convinced there is no possibility of their married parents assuming or reassuming their responsibilities towards their children. As the law now stands, they cannot place such children with a couple who would be prepared and anxious not only to give care and affection and love, but also to receive love and affection from them, and to create an atmosphere and a relationship which by anyone's definition is that of a genuine family. Children who have been abandoned by married parents, children whose parents have quite obviously not lived up to their responsibilities towards them, children the courts know, when they are sending them back into parental care, that it is not in their best interests, but they are inhibited from doing anything else because of the law on parents' rights which are far outweighed by parents'responsibilities to their children, and if they do not live up to these responsibilities it is the duty of Parliament and Government in civilised societies to guarantee the interests of children. The interests of the children must be paramount, must have priority, in any family law consideration.

There are two sides in our discussions on Irish adoption law. We have been talking about the adoptive parents, but I often wonder if the six-months limit for the child's natural mother is long enough. Many things have to be considered. In our society still, particularly in the rural areas, the unmarried girl expecting to become a mother is subject to severe social pressures. Such pressure, especially from her family, can be so severe that she will undergo an extremely difficult time during pregnancy, imposing great mental anguish, even if there have not been any pre-natal physical complications. Therefore, there are still enormous social and family pressures on the unmarried mother.

When that girl decides to put her child out for adoption she is taking an irrevocable step, and I question whether the present six months post-birth limit is [1280] sufficient. She has to decide whether forever she will forfeit her right to custody of the child. There have been pre- and post-natal social, financial and family pressures on her to make a decision and I submit that in many of those cases the present six months is not long enough.

The right of the child's natural father must be considered as well. As I understand the legal position of a father whose child has been born out of wedlock, he may not claim the child and rear it as his own child. Could it not be made possible legally for a man who claims to be the father of a child born out of wedlock, and who has gone to considerable trouble to have that claim substantiated, to be given custody of his own child? There are many cases in which such a man could give to a child not only material advantages but love and affection.

In family law reform legislation we must also provide for the pressures on would-be adoptive parents. Sometimes they are given the care of a child when it is a week old, when it has been sent out of a hospital or a nursing home. Final adoption papers may not be completed until six months later, but the Adoption Board are so overworked—I have been told they have to travel throughout the country—that it may be ten or 12 months later before final legal adoption occurs. In the meantime the prospective adoptive parents have had the child in their care. They have been ticking off the days until the statutory six-month period will have elapsed, and their lives become hell in case anything may go against them. By that time a relationship has developed between them and the child and fear becomes terror that the child may be taken away. There is a great deal of mental anguish involved. We should ask ourselves if six months is long enough to give a girl an opportunity to make a decision and if it is not we should make it 12 months but once the time has expired and the girl has made a decision the formal adoption order should be made. If necessary we should establish regional or county adoption boards to deal expeditiously with adoption orders.

Next year is the International Year of the Child but our attitude to our children as reflected in our legislation leaves a lot [1281] to be desired. I do not believe we are a heartless people. In fact it is my belief that we have a great affection for children. I do not believe that Fianna Fáil members are heartless and I believe that a majority of them are genuinely concerned about the contents of our Bill. If they are genuinely concerned do they not feel that they have an individual responsibility towards the welfare of children? For that reason do they not feel that this issue should not be one that is subject to such a party political approach that we have not heard one speaker from the Government benches in the time we have been debating this Bill? The only contribution from the Government benches was a three minute intervention by the Minister for Justice but even that intervention was made as a PRO exercise to try to take the political heat out of something we did not wish to make a party political issue of.

Mr. Mitchell: Information on Jim Mitchell  Zoom on Jim Mitchell  What I have to say will also be by way of intervention rather than by way of a speech because the case that has been made by Members who contributed is overwhelming. I plead with the Government either to allow this Bill through or introduce their legislation as a matter of urgency. This is an extremely urgent matter because there are many children in orphanages throughout the country who, for all sorts of wrong reasons, cannot be adopted. Some have passed the age for adoption and others are approaching it. They will never have a secure, permanent and loving home. The Government should act on this matter and not waste any more time. Next year being the International Year of the Child presents us with an opportunity of having a referendum on this issue so that we can guarantee the rights of our children. I hope the necessary Constitutional amendment is carried next year. I beg the Government to treat this matter as urgent because the situation as it stands is totally unsatisfactory: the rights of the parent are far superior to the rights of the child and that should be corrected. Parents after all can fend for themselves but children in such circumstances have nobody to fight for their rights.

[1282]Mrs. Desmond: Information on Eileen Desmond  Zoom on Eileen Desmond  I should like to thank those who contributed to this debate. The quality of the speeches was very high and the informal contributions to this issue and to the whole question of childrens' rights has made this a worthwhile exercise. I appreciate the welcome extended to the Bill and the general acknowledgment that the presentation of it served a useful purpose. Deputies Cluskey and Horgan commented on the dearth of speakers from the Government side on this issue and I was also disappointed that we did not have more speakers from that side of the House on the Bill. I echo what Deputy Cluskey said, that the fact that we did not have more contributions from the Government side did not reflect the interest of individual Deputies from that side of the House.

The Minister intervened in the debate for approximately three minutes to inform us that he would be introducing a measure to allay the real fears of adoptive parents. He told us that this measure would be introduced during the 21 sitting days before the Christmas recess. I welcome that announcement. Such a measure is long overdue but I urge the Minister to ensure that the Bill becomes law before Christmas. We will facilitate him in every way in this regard. We did not expect the Minister to spell out in detail what he proposes to include in his Bill but it was not expecting too much of him to answer when we asked whether he proposes to cover the two areas dealt with in our Bill. Our Bill proposes to cover the two areas of discrimination against illegitimate children and extension of categories of children who may be adopted. In the absence of any information from the Minister in these two important areas we have no option but to press our Bill to a vote tonight. It is not our intention to be contentious about this issue because it is something which transcends party politics but we feel the Minister should have handled this situation differently. As Deputy O'Keeffe said, the Minister could have accepted our Bill in principle.

If the Minister with the benefit of the expertise which is not available to us had felt that an amendment was necessary we would have been amenable if it [1283] covered the area we wished to cover in this Bill. The Minister could have accepted suggestions made by Deputies Barry Desmond and Horgan that an all-party committee consider the Bill on Committee Stage, as that would be the appropriate way to deal with a Bill such as this. The personal expertise of people like Deputy Cluskey and the professional expertise of Deputy Noel Browne, who voiced a very real concern, could be brought to bear on the measure on Committee Stage if an all-party committee were to be established. The Minister choose not to accept the Bill in principle and not to elaborate on his proposals so we are left with no option but to press the passage of this Bill into law.

The two aspects of this Bill covering the broader issue of children's rights which the Minister refused to be drawn on and where he refused to give any guarantees are very vital issues. We aim totally to eliminate the terms “legitimate” and “illegitimate” as they apply to children. We might start by eliminating the legal definitions of “legitimate” and “illegitimate” and that would go a long way towards changing attitudes which bring a lot of heart-break to the children and their parents. The social issues raised which hinged on the question of illegitimacy were very worthwhile and if the debate served no other purpose it served a good purpose in raising these issues.

The Leader of this party said tonight that the six months' period during which an unmarried mother could decide whether or not to part with her child is too short. I agree that this might be the case and a case can also be made in the context of a debate like this that the supports given to an unmarried mother to do otherwise than part with her child are totally inadequate. The unmarried mother is not able to make a free choice. She is forced by prejudice, by social concepts and very often by economic necessity to part with a child which she might otherwise wish to keep. The unmarried mother should be afforded every possible opportunity to keep her child and to make a conscious decision as to what is best for the child. This debate has raised [1284] issues which we will have to face very shortly.

No legal discrimination should be retained in the case of children born out of wedlock. When introducing this Bill I referred to the Succession Act and was since asked whether an amendment to that Act would meet the case. Such an amendment would not meet the case. I want the terminology completely changed. If a case in relation to discrimination against the children of unmarried parents were brought to court it might stand some chance of success having regard to Article 40 of the Constitution which gives equal rights to all citizens before the law, but no such case has yet been brought because unmarried parents are the most economically depressed section of the community and are not in a position to institute any legal proceedings, especially proceedings of such a highly speculative nature. All the legal advice available cannot guarantee that such a case would succeed and children have no separate legal representation, which is another issue we will have to face shortly. The best way to deal with this situation is by way of a Bill such as this which proposes to write into the Constitution that equality of rights under the law shall not be denied to any child on the basis of percentage or status at birth. This would solve the whole issue. Neither the Minister nor any member of his party have advanced contrary arguments so it seems that this principle is generally accepted, yet the Minister simply refuses to accept the Bill.

There may be small reservations in relation to the extension of the categories of children who may be adopted. Deputy Browne instanced some reservations he had. I accept in that, even as I have accepted in relation to the Bill generally, that the expertise available to us advises that the best way to go about this matter is in the way we propose in this Bill. If the Minister with all the resources available to him was to bring in a measure which would cover the areas covered in this Bill I would be prepared to withdraw this Bill in favour of his Bill if a time limit and some guarantees were given. No guarantees were given in relation to illegitimacy and the extension of [1285] the categories of children to be adopted. All we have is a promise, which I presume the Minister will keep, in relation to the adoption orders, that the fears of parents will be allayed this side of Christmas. I accept that, but we hope that the measure which the Minister proposes to bring in will not be confined [1286] to just these points but will also cover other aspects of the question of children's rights. In the absence of any concrete information and in the absence of any guarantees I am putting this Bill to a vote in the House tonight.

Question put.

Barry, Peter.
Barry, Richard.
Begley, Michael.
Belton, Luke.
Bermingham, Joseph.
Boland, John.
Bruton, John.
Burke, Joan.
Byrne, Hugh.
Clinton, Mark.
Cluskey, Frank.
Collins, Edward.
Conlan, John F.
Cosgrave, Liam.
Cosgrave, Michael J.
Crotty, Kieran.
D'Arcy, Michael J.
Deasy, Martin A.
Desmond, Barry.
Desmond, Eileen.
Enright, Thomas W.
FitzGerald, Garret,
Fitzpatrick, Tom (Cavan-Monaghan).
Flanagan, Oliver J.
Harte, Patrick D.
Hegarty, Paddy.
Horgan, John.
Keating, Michael.
Kenny, Enda.
Lipper, Mick.
McMahon, Larry.
Mannion, John M.
Mitchell, Jim.
O'Brien, Fergus.
O'Brien, William.
O'Connell, John.
O'Donnell, Tom.
O'Leary, Michael.
O'Toole, Paddy.
Pattison, Séamus.
Quinn, Ruairí.
Taylor, Frank.
Treacy, Seán.
Tully, James.
White, James.

Ahern, Bertie.
Ahern, Kit.
Allen, Lorcan.
Andrews, Niall.
Aylward, Liam.
Barrett, Sylvester.
Brady, Gerard.
Brady, Vincent.
Briscoe, Ben.
Browne, Seán.
Burke, Raphael P.
Callanan, John.
Calleary, Seán.
Cogan, Barry.
Colley, George.
Collins, Gerard.
Conaghan, Hugh.
Connolly, Geard.
Cowen, Bernard.
Cronin, Jerry.
Daly, Brendan.
Davern, Noel.
de Valera, Sile.
Doherty, Seán.
Farrell, Joe.
Faulkner, Pádraig.
Filgate, Eddie.
Fitzgerald, Gene.
Fitzsimons, James N.
Flynn, Pádraig.
Fox, Christopher J.
French, Seán.
Haughey, Charles J.
Keegan, Seán.
Kenneally, William.
Killeen, Tim.
Killilea, Mark.
Lalor, Patrick J.
Lawlor, Liam.
Lemass, Eileen.
Lenihan, Brian.
Leonard, Jimmy.
Leonard, Tom.
Leyden, Terry.
Loughnane, William.
McCreevy, Charlie.
McEllistrim, Thomas.
MacSharry, Ray.
Meaney, Tom.
Molloy, Robert.
Moore, Seán.
Morley, P. J.
Noonan, Michael.
O'Connor, Timothy C.
O'Donoghue, Martin.
O'Hanlon, Rory.
O'Kennedy, Michael.
O'Leary, John.
Reynolds, Albert.
Smith, Michael.
Walsh, Joe.
Walsh, Seán.
Woods, Michael J.

Question declared lost.


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