Wednesday, 13 May 1987
Dáil Eireann Debate
Mrs. Taylor-Quinn: Yesterday I expressed the view that adoption offered more than Deputy Cooney suggested. I suggested that it offered to the child the security of family life, the love of a mother and the security that generally surrounds a family. I am sure Members from rural constituencies can understand the invidious position in which a child who is fostered out finds himself in a rural community. We have often heard the comment: “He is boarded out”, and when that child goes to school other children ask him how come he has a different name from others in the house. That child is looked on in a different light by other children in the classroom, is subject to stress and automatically becomes the  subject of attention that would not apply if he or she were properly adopted. That is why it is important that the legislation before us is passed by the House. We must ensure that children are not subjected to that type of social scrutiny. We must understand the stress such a child is subjected to.
Adopting a legitimate child means more than other speakers have suggested. In my view all aspects of adoption are adequately dealt with in the Bill which is well drafted. I do not find anything objectionable about it. The same is true of the views expressed by the Minister. He appears to support the provisions of the Bill and I hope he will be broad-minded enough to accept it. If he takes issue with some of its provisions he can table an amendment for debate on Committee Stage. I hope the Bill gets the support of the Minister and all Members.
Mr. Andrews: Like other Members I am in a dilemma in regard to the Bill because, as I am sure the Minister will agree, it is well intentioned. The only difference between the Minister and Deputy Shatter is that the Minister feels the Bill may not be properly constructed. I should like to make an appeal to Deputy Shatter to stay his hand for another few weeks to give the Minister an opportunity to bring in a Government sponsored Bill. I am sure the Minister's Bill will have the full support of the House.
I should like to congratulate Deputy Shatter on introducing the Bill which deals with a topic which is dear to my heart. Since I was elected a Member of the House I have been relatively articulate on matters of social concern and I have not been afraid to express my point of view on social issues. It is in that spirit that I appeal to Deputy Shatter not to put the Bill to a vote of the House this evening. I do not make that appeal because of a fear that the Government will be defeated. I do not think I could be accused of that type of politicking. In my view the Bill should be taken out of the political arena. It is so important that it should be treated in a non-political  fashion. My information is that the Minister has given an undertaking to produce his Bill “without undue delay”. I understand that commitment will be honoured by the end of the month or, certainly before the summer recess.
The Bill offers a new departure in the context of adoption. I agree with the Bill before us in principle but I do not think it is too much to ask Deputy Shatter to await the introduction of the Minister's Bill so as to ensure there is all-party agreement on it. However, I am not entirely in agreement with section 9 which concerns costs and court fees. The section, while well intentioned, is too open-ended. That area should be looked at again by the Minister before he produces his legislation. At the conclusion of his contribution the Minister said he did not wish to anticipate the contents of his Bill but he was anxious to help Deputy Shatter, and the House, by giving some indication of the options. He went on to list a number of options, one of which I fundamentally disagree with. I am referring to the suggestion that the health boards should be the applicants in every case. The people who want to adopt children, and not the health boards, should be the applicants. I am not in any way diminishing the role of social workers. The health boards have done a good job with the adoption societies. Adoption is a personal matter and it should be left where it should properly be left.
The Minister also said that he is sympathetically disposed to the view which has been expressed that married persons under 18 years of age should, where such exceptional applications might arise, be eligible for adoption. That requires further consideration even in the light of the Minister's proposed Bill. The Bill put forward by Deputy Shatter was out of a genuine concern for the people whose problems we are trying to solve and not for any party political advantage. An important difference between the Bill put forward by Deputy Shatter and that of the previous Government is the provision in section 9 which would empower the High Court to require the adoption  board to meet the legal costs of applicants who take proceedings in these new cases. This section will also charge the adoption board with meeting costs in certain cases arising where adoptive parents may apply to the High Court for an order dispensing with the consent of a natural parent or guardian of a child acceptable under current adoption law. The Minister says — and I agree with him — this is a significant new departure from existing practice which he would require time to consider and to consult with others.
There is a genuine and serious dilemma in relation to this. The Minister has been in office for a very short period of time. Is it unreasonable to ask that the Minister be allowed to reflect on this very fruitful, very good and very worthwhile debate so as to ensure that perfection is achieved in his proposed Bill? It is only a matter of weeks. Deputy Shatter may properly make the point that we take his Bill and when it moves to Committee Stage the Minister may then propose amendments. That is a valid argument and I find very little to disagree with in it. As one who has made contributions over the years on social issues, I think the wrangle which now appears to be emerging on the Bill is tragic. Once again, I appeal to the fair-mindedness of Deputy Shatter to ensure that this matter is properly dealt with by the Government of the day.
Governments are elected to govern and to legislate. It may also be argued that the Opposition have a duty, not only to assist in perfecting legislation but to forward legislative proposals of their own. That is a legitimate and reasonable point of view but I believe it is not sustainable taking account of the fact that the Government were given a mandate and in circumstances where legislation of this nature is so fundamental to the future of so many people on balance, with the full weight of the administration behind their legislation, who is to say that the Government's proposals would not be better advised in the best sense of that word? The Minister will have the opportunity of studying the very worthwhile contributions made during the course of  this debate and in his wisdom or otherwise he will decide what to propose in his Bill. That is the merit of this debate and the merit of Deputy Shatter bringing in his Bill at this time.
For the sake of four or five weeks, is it too much to ask that we draw a legislative breath, that we stand back and look at the contributions made on this Bill so that we may incorporate the best points of this Bill in the Minister's proposed Bill? I hope, given that opportunity, that the Minister will bring in the Bill. If I give the English language its proper meaning, I understood The Irish Times this morning to say it would be done without undue delay, perhaps in three or four weeks time but certainly not later than the end of this session. When those of us who are concerned about this Bill have given the Minister's Bill a Second Reading, perhaps we could come back during the summer recess and meet in Committee to perfect — if perfection is required — the Minister's Bill. Those of us who are genuinely concerned about this Bill would be glad to do that work during our so-called holidays. Of course, Dáil Deputies never get holidays. To suggest because the Dáil goes into recess for three and a half months that in some way is a holiday is a rather bad joke.
With respect to Deputy Shatter, his Bill is not original in its philosophy but it is original in its production and for that we should be very grateful. The Review Committee on Adoption Services who were responsible for the report were appointed by the then Minister for Health, Deputy Barry Desmond, in April 1983. This committee were representative of the health services, the legal profession, adoptive parents and the present Adoption Board. Their report on the adoption services represents the first comprehensive review of the operations of the adoption system since it was introduced in 1953. The report deals with all aspects of the existing laws and procedures and contains a number of recommendations which would radically alter the structure of the present system.
The report recommends the extension of eligibility for adoption to legitimate  children whose parents are alive and the introduction of a legal procedure to permit the dispensation of parental agreement on the placement of a child for adoption in certain narrowly defined circumstances. This Bill seeks to achieve those recommendations. The report also recommends the introduction of new procedures to speed up the process of adoption and the replacement of the adoption board by a single adoption court which would function as a specialist branch of the High Court. This is a matter worthy of consideration. While I agree that the Minister has to deal specifically with what is now before the House as set out in Deputy Shatter's Bill, nevertheless these are matters which might be contemplated.
The report also recommends the setting of higher standards for adoption agencies and the introduction of a new registration system under the aegis of the Minister for Health. A majority view of the review committee recommended that children adopted in future should have the right of access to their original birth certificates on reaching 18 years of age. That is another very worthy recommendation. The report acknowledges that the implementation of a proposal to permit the adoption of legitimate children and to allow in some instances for dispensing with parental agreement to placement for adoption may give rise to constitutional difficulties. The report argues that the constitutionality of any such legislation should be secured in advance by referendum if necessary. I depart from the committee's view in that regard. I do not think we should put this matter to a referendum. People such as Deputy Shatter and Deputy McDowell, on the one hand, and with the Minister with the backing of the Attorney General, on the other hand, should be able to come up with perfect legislation which would not have to be examined constitutionally. I do not think that is unreasonable.
I have spoken on many social issues down through the years in this House and I consider this to be one of the most important. While I agree with what is  contained in the Bill I feel, nevertheless, it is a matter for Government to introduce legislation as far-reaching as this. In addition the Minister and his Department might consider also the abandonment of the terms “illegitimacy” and “legitimacy” in the context of children. A child is brought into this world without any responsibility on its part. If two individuals, a man and a woman, produce a child, outside of wedlock, then to designate that child as illegitimate is, in my view, an attack on the child's constitutional rights and on his or her rights as a citizen. These are matters on which the Minister might contemplate if and when he gets the opportunity to introduce his own Bill. I strongly suggest to the House, to Deputy Shatter in particular, and to the Fine Gael Party that whilst the thrust of the Bill has great merit and finds cross-party support almost in its totality, nevertheless there are certain frayed edges which could be properly dealt with by the administrative backing of a Government Department led by the Minister for Health.
Mrs. Barnes: ——that a Deputy who is, not in years but in experience, a veteran of this House and of the slow process of legislation though this Chamber, and with his interest and his expertise in the laws, should stand here this evening, when we are concluding Second Stage of a Bill, which he admits is well and truly overdue, and say we should draw a breath regarding this legislation. If we continue to draw breaths at the slow rate at which we are drawing up legislation we will pass into unconsciousness. Sometimes I believe we have ceased to draw a breath regarding the introduction, implementation and enactment of legislation. That is why I  welcome what I would like to believe is the first of many Private Members' Bills to hasten the process and progress of legislation through this Chamber, particularly in an area which has been so neglected, restricted, cut off and debated for so long. It is shameful for us in 1987 that we still have not got a set of fundamental children's rights.
We pay lip service to the importance of children, to our young generation, to parenthood, to family, the strength of the family, the recognition and nurturing of the family, confidence, self-possession and development within the family. Yet in 1987, as Deputy Shatter said when introducing this Bill, we are the only country in Europe who actually discriminates not just against illegitimate children — which we do because of another lengthy delay on the Status of Children Bill — but, what is well nigh impossible and certainly shameful, against legitimate children. That is why this Bill is not only important but urgent.
I fail to understand why there is a consensus in the Dáil, and has been since the reform started, on two levels, First, there is a need to introduce and pass legislation because of the backlog. Second, where there is consensus and general support for the principle of laws and legislation there should be no undue delay. Third, all of us in this Chamber have a mandate, and have been elected to be legislators, regardless of which side of the House we sit on. I find it incredible that it should be suggested that only a Government side of the House have the ability, commitment and competence to introduce legislation with a possibility of it being passed. It is outrageous and it is a denial of the rights of all of us as legislators, regardless of whether we are in Opposition or in Government. It is a further insult to an already very insulted profession to suggest that competent expert people who, because of an election, find themselves on the other side of the House, should suddenly be denuded of that competence and expertise which enabled them to bring in the legislation when they were on Government side. It  is a total negation of what we would like our democracy to be in this House and to which all of us pay lip service, that is, that legislators on all sides of the House should be enabled to take part in their full capacity and not be excluded or ignored. That is why I appeal to the Government side tonight, who in their speeches up to now have said that they welcome broadly, and support in particular the introduction of such a Bill.
Deputy Shatter pointed out that his Bill is an amended version of what was a Government Bill, drafted with all the backing and resources which the Government now say that their Bill would need. That is nothing but an excuse for needless, total and dishonest delay. The Bill has been introduced by a Deputy who is recognised — both inside and outside this House — as one of the experts in family law. His books and judgment are accepted, not just by the legal profession but everywhere as being those of an expert. On that level there is absolutely no excuse for dismissing or neglecting this legislation. Let us come to the fundamental point as to why this Bill must go through the House tonight and why the Committee Stage should be introduced as quickly as possible. It is because this Bill addresses the most vulnerable section of our community, those who cannot, either through age or inexperience, claim rights for themselves. That is why we have a particular and special responsibility towards children over every other section of the community. That is why it is all the more embarrassing and shameful that we have failed them so dismally.
I wish to make only a few comments on the Bill because it has already been discussed during last week and this week, and I am aware that other speakers wish to speak. It should be recognised and recorded that the Review Committee on Adoption Services — which as Deputy Andrews pointed out was set up years ago and is why we have to operate in terms of years and sometimes decades rather than months which is a total disappointment to me — made the fundamental point, on the need for this Bill,  that eligibility for adoption should not be determined on the basis of the marital status of parents. It came as a shock to me because, until Deputy Shatter mentioned this point in his speech last week, I was not aware that discriminated against legitimate children and their exclusion from being adopted in this country. This has led to some children being sent out of the jurisdiction. We may feel very concerned that our older, educated, experienced adult population have to emigrate, perhaps to return one day, but it is appalling to think that discrimination within our legislation could cause vulnerable children to go outside this jurisdiction to get a natural family upbringing and all the security that offers. I do not hear anybody on the other side of the House getting hysterical about that.
We have had submissions and reports from every organisation dealing with children, all urging us to proceed with this legislation. Not only have we consensus in this House but we have support and consensus outside the House. There is huge disillusionment at the slow rate at which all legislation regarding children's rights is crawling through these Houses.
Deputy Shatter has been extremely careful in drafting this Bill so that it fits within the constitutional restrictions. Even if it is tested in the Supreme Court I hope it will be shown that the constitutional rights of children have a place and a priority which in certain circumstances would supersede that of parents who have neglected them to the extent that they should have given up all natural rights and responsibilities. Deputy Shatter has been careful to make sure that there should be a rigorous examination of each application by the adoption board. Each application would then have to be tested and authorised by the High Court. There is no way in which the drafting of this Bill could be described as anything less than careful. If it were not for the constraints of the Constitution, I am sure Deputy Shatter would prefer to expand it and make it more open and child-centred, which the Constitution certainly is not. When we have a new  Constitution and perhaps a more progressive attitude, I would like to hope that we would remove the anomaly which disallows widowers from adopting and look at the whole area of caring parents in a single or unmarried state who, because of a particular relationship with a child, should also be allowed to adopt. I am aware, however, that getting this legislation through is the first priority and we can amend and expand it in the future.
The whole thrust of this Bill is to put children first. Their security and their relationships of love and care with adults they can trust are of prime importance, not the property rights and the marriage rights which have dominated relationships in this country, sometimes to the total destruction of relationships.
I particularly welcome Deputy Shatter's provisions in relation to the important matter of fees and expenses. All legislation should ensure that people have full access to the courts, regardless of their financial status. This is especially important when their rights or the rights of their children must be tested. Formerly this matter was decided at the discretion of the courts and I welcome the provision in this Bill which will enable people to come forward with confidence knowing that they will not become involved in financial difficulties by so doing. If we want our courts to be open to people regardless of income or status, it is essential that this provision be supported.
Above everything else I applaud the general considerations at the end of the Bill and the explanatory memorandum which sums up what the Bill is about. The rights of natural parents will always be supported and protected but there are situations where there is a total breakdown. Every support should be given to prevent this happening, but when it does happen the reality is that children are placed in long term institutional care when there are loving couples desperately anxious to adopt such children. The explantory memorandum states:
There are, however, a considerable number of children in long term residential or fostercare who have long  since ceased to have any relationship of any nature with their natural parents. The major provisions of this Bill extend to such children the possibility of a secure family life in the home of adoptive parents.
I wish to comment briefly on Deputy Cooney's suggestion last night that, since this Bill is fraught with constitutional difficulties, we might focus on fostering as an alternative to adoption. Deputy Taylor-Quinn has already pointed out some of the inadequacies of this. Fostering does not give the legal protection and the security both the child and the parents need. While fostering in certain circumstances is certainly to be encouraged, basically we need to give the same rights of adoption to all our children, regardless of the marital status of their parents and of legitimacy or illegitimacy. The sooner we get rid of all those discriminations the sooner our children will actually be cherished by the nation and realise that they have the same rights and the same status. It is intolerable that they do not have that status. They cannot fight for it themselves since it is pre-determined for them and can distort their development all their lives.
Once again I appeal to the Government to support this Bill, to give it the consensus it has got from this side, to allow us to bring one Bill regarding children's rights through fast without delaying it for party political reasons or because Private Member's Bills are seen in this House to be less credible than others. I reject that. There is not much point in talking about Dáil reform if that is one of the reasons that this Bill is turned down. If and when we bring this Bill through it will be an encouragement to other legislators on either side of the House to introduce other legislation which has been long delayed. It will also relieve the burden on the Government. We are all aware of the heavy demands made on Ministers in Government time and the many other demands on their time and energy. Surely it is practical that the competence and expertise of all sides of the House be used where other  Members of the House might have more time in that area. If we are to consider this a working House this Bill must be accepted by all sides of the House and go through, otherwise it is a charade to talk of this being a place of legislative reform.
I appeal tonight across the House that everybody support this Bill and bring it through as fast as possible because it is so long overdue and discrimination against children continues at the most fundamental level. We have still to bring through this House the Status of Children Bill which has already gone through the Seanad. It is remarkably good legislation now and its passage through this House should not take too much time because there was a high level debate and a good Committee Stage in the Seanad. The Minister is here across the floor and I know his commitment to the Children (Care and Protection) Bill which, so long delayed and so necessary, has to go through the whole process in this House again. We accept what the Minister said, that because of difficulties and amendments that is the way it must be. I appeal to the Minister in the light of all the legislation outstanding — there is such a backlog — to support this legislation and get it through as a first step so that we can get on to the other legislation. I hope that at the end of all this we can leave this House, proud in the knowledge that we have assured rights for our children which at the moment to our shame and embarrassment we cannot claim.
Mr. Lawlor: Like Deputy Barnes, I am anxious to see some progress in this area. One would not think that the party introducing the Bill were four years in Government recently. If it was as critical, urgent and as badly needed as we all believe it is, one fails to understand the long, protracted delay in making any progress on that front.
The Minister for Health has made the point in this debate that the Government support fully a change in the law to allow the adoption of certain children now ineligible for adoption and that they are determined to bring about such a change no matter how their clearly stated stance  may have been represented in this House since this debate started. The Government are no less concerned than Deputy Shatter or any other Deputy opposite to allow children the opportunity of a permanent home. Indeed, I remind the Deputies across the House that it was a Fianna Fáil Government who brought forward what we all agree is limited legislation at present on the Statute Book. However, an important change of this kind in our social legislation surely should be the responsibility primarily of the Government of the day, not of any individual Deputy on the benches opposite even if he has managed to secure the support of his own party. The Bill, however, will not be stampeded through the House simply to satisfy the whims of Deputy Shatter and some of his colleagues who appear to be as concerned about embarrassing the Government as they are about bringing forward this desirable change.
The Bill Deputy Desmond circulated was available. Therefore, it was obvious that there was a Bill prepared by the outgoing Government which would have been a priority for the incoming Government. It would not have taken a great deal of ingenuity to bring the previous Bill in here in Private Members' time but it is not going to be produced overnight. The present Bill and Deputy Desmond's Bill seem to have some serious defects. My colleague, Deputy Andrews, has referred to those.
Section 9 of this Bill seems extremely open-ended particularly in regard to costs. Unfortunately, to this House's cost, we all know what the legal bill can be. When one gives that great, amorphous body down there, the courts, any sort of free hand on costs, be it an inquiry or whatever, we end up with a very substantial cost. As I read it, anybody making an application to the High Court under this Bill will be able to recoup the full costs. I was amazed at Deputy Barnes condoning fully that open-ended policy, irrespective of means. The State is supposed to be able to pay the legal eagles' full costs under Deputy Shatter's Bill.
This section also requires the court to  be satisfied that the application is made in good faith having regard to the best interests of the child. However, it is most unlikely that a court will decide that any application of this sort is not made in good faith. The financial implications of section 9 are, therefore, that the Adoption Board would in effect be obliged to meet the costs in all instances. I find no limitation whatsoever placed on these costs and, of course, they will be payable irrespective of the financial standing of the applicant. That is unacceptable. So far as I am aware, this will also be contrary to the established practice in regard to the payment of costs by the State. Under the free legal aid scheme costs are met only where it is clear that the person concerned has not the means to pay the costs of the court proceedings. The Attorney General operates a more informal scheme which may allow for the recoupment of costs in other cases where the court so recommends but quite clear limitations are set as to what should be payable under any scheme at present in vogue.
It seems that the type of arrangement envisaged by Deputy Shatter is too open ended and might end up being another goldmine for the legal profession. As I have said, we have had too many experiences in that area. I am sure the House will be reluctant to pass any such open-ended legislation and to see any such development, particularly in these difficult times when impositions on the taxpayer are so severe already.
Another defect I see in this Bill is that the provisions would meet only the costs of persons wishing to secure an adoption order. There is no provision for the natural parents of the child who might be opposing the making of the order. That seems to be a major inequity. I have no doubt that the House will see the merits of not wanting to adopt such an open-ended approach to this crucial legislation.
The Minister for Health and the Attorney General are looking very closely at the wording of Deputy Shatter's Bill and that of the previous Government to see if certain provisions need to be strengthened or altered. I say to  Deputy Barnes that, while I agree with her sentiments, the outgoing Government have left us one major constitutional legacy vis-à-vis the Single European Act and that was from the same Attorney General's Office as was used to draft the Bill Deputy Desmond circulated. Therefore, we should make haste very slowly in that respect. We are dealing with the fundamental and crucial issue of the transfer of a child from one family to another. That is a very solemn matter with far-reaching implications and it would be downright irresponsible to take chances with a new law which if subsequently overturned might lead to a child being taken back from the family it had come to accept as its own. We should not play politics with this type of Bill. In the long term children about whom concern is being expressed here might be the main sufferers of such a defect.
I urge the Minister to make haste in producing the Government Bill, if possible within the next couple of weeks. I can assure the House that the Bill now being drafted and scrutinised by the Attorney General will take priority on the Order of Business.
We all believe that the question of adoption is a matter of great urgency. We must also be careful about the complexities of the interaction between the Houses of the Oireachtas and the courts which, in recent years, has tended to end up in conflict. For that reason we should leave it to the Minister for Health to effect whatever modifications are necessary to Deputy Shatter's and Deputy Desmond's Bills so that whatever Bill is passed by these Houses will be workable and not be subject to testing in the courts. Perhaps that will happen anyway but we must endeavour to minimise that possibility.
This is perhaps an unfair and generalised criticism but the legal profession will defend one for murder if one pays. The whole area of legal costs needs great scrutiny. We should be very careful that we are not opening up a Pandora's box to the legal profession in order to peddle in the misery of adoption. There must be  restrictions and limitations on such costs. There are people who would willingly meet the legal costs involved in adopting and giving a home to a child. It is very unfair that the burden of such costs should revert back to the taxpayer. If the State is to pay the bill it will constitute an enormous burden on the taxpayer.
Mr. Lawlor: It is intended that the Government will introduce a Bill in the House within a matter of weeks. I have pointed out that there are serious defects in section 9 of Deputy Shatter's Bill which need to be teased out or eliminated. No doubt the Minister is dealing with that. Probably he would have had his Bill before the House had not Deputy Desmond's Bill been seen to be defective by the present Attorney General. That is what must be put right. It should be remembered that for four years the party opposite did not find time to introduce a Bill. Yet within six or eight weeks of a general election the Minister has given this House a commitment to introduce this Bill. We on this side of the House are prepared to await that Bill.
Mr. Lawlor: That does not mean we regard the matter any less urgently. But we are not prepared to see a Pandora's box of legal costs opened up under the provisions of this Bill. That is my main criticism of it. No Bill should be given passage in this House that does not have some limitations on such provisions, as I  outlined in some detail in regard to section 9.
An Leas-Cheann Comhairle: As far as the Chair is concerned there are prescribed rules and regulations to which we must adhere. Already one representative of the Labour Party has spoken and a representative of the Fine Gael Party will be called on at 8.15 p.m. to conclude. The Chair leaves it to the discretion of the speaker to think of others but there is no obligation on him to do so. I am calling on Deputy Mervyn Taylor.
Mr. Taylor: I would have thought that this Bill would have been regarded as non-controversial on all sides of the House. For the life of me I cannot understand the attitude of the Fianna Fáil Party in Government, as exemplified by Deputy Lawlor who has just concluded, indicating that the Bill was brought forward for the purpose of embarrassing the Government. I cannot see wherein lies the embarrassment unless it be in the fact that, for some strange reason, the Government choose to oppose the Bill and are defeated on it.
Certainly that would be an embarrassment for the Government but an embarrassment brought on themselves by adopting a foolish attitude to the Bill instead of saying to the House and to the public outside, in particular to those people who are anxious to adopt the children covered by the provisions of the  Bill: “A measure is being brought forward here; this is a matter on which there is universal agreement; this is not a matter for party politics; rather it is a matter of general social justice; this is a matter on which this country should have brought in laws decades ago; we are happy to go along with it and to assist in its passage. There may very well be some of its provisions that need to be varied, such as control, legal costs and other matters. We will be dealing with those on Committee Stage and will be moving sensible amendments to them.” That would be a very sensible attitude for a Government to adopt on this Bill.
Ought there to be some great divide on a Bill of this nature? Are we talking about privatisation, nationalisation, taxation, excise duties, health charges, things like that? Those are matters of controversy; those are matters for compromise on other sides of the House. As has been said repeatedly by Fianna Fáil spokesmen on the Bill, they agree with its broad principles. That is all we are dealing with on Second Stage. If the Government agree with the broad principles of the Bill, I do not see why they do not avoid their own embarrassment, go along with it and make any amendments they feel may be necessary or appropriate. That would be a responsible way to handle the matter. But I disagree with this idea that Governments must do everything, must move everything, be responsible for everything.
I do not say that is an attitude peculiar to this Government. No doubt the same criticism could be applied to former Governments but whichever Government it may be I disagree with it. When a non-controversial Bill of this nature arises it ought be accepted. It may be that the previous Government had the Bill, they did have the Bill, but perhaps there was not time with the pressures on them to introduce it in Government time. Here is a case where an Opposition party are prepared to devote their Private Members' Time to the purpose. That is something that ought to have been welcomed. I should have thought the Government would have been very  happy to have availed of the fact that an Opposition party would devote their Private Members' time to a non-controversial issue of this nature. It seems to me that any embarrassment there is on this issue is of the Government's own making.
There are certain provisions of the Bill that could well be examined on Committee Stage. I do not intend to elaborate on them because there are other Members anxious to speak. I take the point that this whole adoption situation — by reason of legal and perhaps constitutional positions — could possibly turn out to be a paradise for lawyers. That is a matter of great regret. It is also a matter of great regret that the issue of whether or not an adoption order should be made, or permission given for an adoption order to be made, should be left in the hands of a High Court judge. I do not see any particular expertise on a social issue of this nature vested in High Court judges. I have no doubt that many or all of them are humane people who will do the best they can but High Court judges have not the training, the knowledge or the expertise which many other professional people in our society have, such as social workers, health workers and experts who specialise in the field of adoption and who work on it all the time. I realise there are certain constitutional constraints on this point and that is regrettable. I would prefer to see the matter dealt with by a tribunal, a board or a panel made up of experts such as child psychiatrists, social workers, adoption workers, ministers of religion perhaps and so on who would be much more highly qualified to make a decision on these matters than would any High Court judge.
In the present system of administration of justice, one day a High Court judge may deal with civil jury actions, another day he might be in the Criminal Court, another day in the Probate Court and another day he may have to deal with Chancery matters. These judges have no expertise on these issues. If this matter  has to be dealt with within the realm of the courts and on an adversarial basis at least there ought to be a special family court with a special family judge who would deal with nothing else but family matters. In that way there would be a degree of consistency and expertise among a section of the Judiciary to deal with these kinds of cases. It may not be possible to bring that about without amending the Constitution but if the Constitution has to be amended to provide for that sort of issue, so be it, it should be tackled.
Like Deputy Lawlor I am concerned about the legal costs involved. We may be left with many tribunals and there might be a great deal of litigation involved in these applications. The health boards are involved in adoption and the Adoption Board have a role to play also. This could result in an adversarial situation. The High Court have a crucial role in adoption matters and any case that goes to the High Court can, on appeal, go to the Supreme Court. One can see that there is a totally unnecessary complexity in regard to the whole matter under which the procedure is initiated. First, perhaps the case will go to the health board, then to the Adoption Board, then to the High Court, then to the Supreme Court and back again to the Adoption Board for an order to be made. A scheme should be devised, even by a constitutional amendment, under which one tribunal would deal with this issue and examine it on an informal basis instead of in a court scenario with solicitors, barristers, junior counsel and senior counsel all being paid fees with the result that an appreciable sum for any one application could be involved. It would be a much more desirable approach for one body to deal with the matter but that would require a constitutional amendment and we should tackle the problem now.
It is wrong and unnecessary for the Government to have taken the line that they will oppose this Bill because they are going to introduce a Bill that, quite clearly from the statements which have been made, will be very little, if at all, at variance with this one. There is not much  room for variation in it in the present constitutional position. It would be very welcome if the Government were to say that they will go along with the general principle of the Bill and make amendments to it. That would not be a source of any embarrassment to them, quite the contrary. To treat a matter of this nature which involves the adoption of children as a bipartisan measure would be very welcome on all sides of the House and would be very welcome by the public. They would say that at long last there is some measure of responsibility here and that there are some things which do not have to be regarded as adversarial in Dáil Éireann. They would say that for once the Deputies have got together and put their party matters aside for a personal issue of social necessity. They would see that we were dealing with the matter on a unified basis, that we had done the right thing. It would be to the general good of the House if that approach was taken.
A number of points that could be made on the Bill would be appropriate to Committee Stage. For example, I would like to see a provision under which relatives of a child to be adopted, who would be concerned about the child's position, would have to be consulted, that it would not be left open to the court to decide whether they might be consulted. In other words, that they should be involved in determining whether an adoption order should be made.
There are no provisions in the Bill whereby the rights of the child would be argued in deciding whether an adoption should be made. There is provision for those seeking the adoption and who are parties to it and also for the parents who might resist the application. It is open to the courts to bring in other parties but there is no specific provision under which the interests of the child are represented. It can be glibly said on occasion that in these cases the welfare of the child is paramount. That is a high-sounding and very admirable notion but on many occasions it may not be so easy to apply or as easy to determine as it may sound.
I appeal again to the Government to accept Second Stage of the Bill, albeit  with reservations, but let them have their reservations. Let them say they will bring in amendments as they see fit on the legal cost issue. I accept that is a valid point. There is no reason some limit should not be put on the cost element or some arrangement should not be made to ensure that these costs are kept to a minimum and are confined to those who can afford them. The main thrust of the Bill speaks for itself. It is much overdue. Time has been given to the House in Private Members' Time to debate it and I ask the Government to allow it to pass Second Stage. We can then meet in a special committee and discuss, and perhaps achieve, necessary improvements of a technical nature.
An Leas-Cheann Comhairle: Deputy Birmingham has been waiting for some time and I ask the Deputy to appreciate the problem the Chair has. I know it is difficult for Deputy Colley to demonstrate any magnanimity towards him in respect of the time she has——
Miss Colley: I have undertaken with Deputy Shatter to be brief so as to allow other Deputies to contribute. I welcome the Bill and I commend my constituency colleague, Deputy Alan Shatter, and Fine Gael for allowing Private Members' Time to be used for the purpose of this Bill which proposes much needed legislation. It seeks to give those in long term foster care in particular and who have formed strong parental bonds with foster parents the opportunity to be adopted. It is very hard both on the children and on the foster parents not to have a proper relationship at law. This reflects the reality of the position. Even very occasional visits by natural parents to these children are upsetting and often the natural parent will hold out hope of setting up a home or trying to discredit the foster family when on those visits. The child's best interest is not served by allowing this to continue without some definite end in sight.
There are other children not covered  by the provisions of this Bill who could properly benefit from adoption and the stable family life it provides. However, I know it is necessary that the Bill should be very carefully drafted, as Deputy McCartan I think said last evening. It is essential that we pass an Adoption Bill that will be in keeping with our Constitution. Ideally we would have a constitutional referendum, not simply to add or delete words allowing for adoption of legitimate children, but a referendum which would incorporate some sort of charter of rights for children. At present, anyone reading our Constitution would be struck by the proprietorial nature of parenthood over children. The child of its natural parents, who are married to each other, is seen more in property terms than as a person in his own right. What we must aim for is to strike a balance between rights of the parents over what they desire for the future of their child and what society demands as basic needs for that child. If a conflict arises between these, I feel the needs of the child must prevail. However, in order to establish what they are in a court, be it in adoption proceedings or in other family cases, the child should be separately represented and his needs seen as those of a separate person.
In that connection I have to say the present system for dealing with family matters in the courts is grossly inadequate. Injustice is unfortunately regularly done to litigants because there is no proper system of family courts, no proper training for court personnel, including judges, and no proper referral system for those in need of medical, psychological, social or rehabilitative help. These facilities are essential to deal properly with sensitive matters of relationships, personal problems and such like. They are not the same kind of things as the subject matter of civil actions in contract, tort, conveyancing and so on. While I recognise that the Bill provides for these cases to be heard in private, I think Deputy Shatter would probably agree with me that to have a proper family court system  to deal with these cases would be far better.
Before I finish my truncated speech I will deal with the Government's attitude to the Bill. I believe it is nothing short of blatant hypocrisy. The Minister is adopting a dog in the manger attitude and I can only surmise that the beleagured nature of his position regarding cuts in the health services has spilled over into his attitude to this Bill. He seems to be saying, as does his Minister of State, that if we, that is the Government, cannot bring in this Bill now, however worthy it is in principle and largely in detail, no one will do so.
Wearing my hat as spokeswoman on institutional reform for the Progressive Democrats, I see a prime example of where the business of this House is appallingly ordered. Of course I mean no disrespect to the Chair. I do mean, however, that the business moves very slowly through the House and indeed often never reaches that stage with delays in drafting etc. If in Private Members' Time a responsible measure is brought forward with the approval of the Government of the day for the principle of the measure and, as in this case, it has been very carefully drafted for the greater part by the parliamentary draftsman's office, the Government, by rejecting such a Bill, are wasting taxpayers' valuable money. If we are to take the Minister at his word, a Bill will be introduced in Government time thus pushing aside other legislation that could be dealt with if the Government allowed the Second Stage of this Bill to pass. We should be showing by our example in this House that we believe in being as productive as possible.
The suggested changes in the Bill which the Minister proposes, if they were found to be right and necessary, could be dealt with properly on Committee Stage. His proposal regarding the role of the health boards is, I believe, totally ill-advised and perhaps contrary to the concepts of natural justice.
There are one or two areas, such as the issue of possible collusion between parties to an adoption application, which I would like to see incorporated in the  Bill. However, the time and place for that is Committee Stage. The principle of the Bill is absolutely praiseworthy and, as far as I can see, it has been drafted extremely carefully. I would feel, as a safeguard to future adoptions under this Bill, that it should be referred by the President to the Supreme Court before promulgation.
Mr. Enright: I am saddened that this Bill is not getting all party support because it is an important and very desirable Bill. I believe this Bill does not present any constitutional problems. Article 42.5 of the Constitution reads:
In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
Since 1929 legitimate children could be adopted in Northern Ireland. I am not certain about all our EC partners but I am sure the majority of them have similar provisions to what is contained in this Bill. We are very far contained in this issue and we should try to keep in step with the rest of Europe.
Even at this late stage I do not believe the Government would lose face if they allowed the Second Stage of this Bill to  pass. I am pleased the Taoiseach has come into the House to listen to the concluding speeches. He is very welcome. In his capacity as Minister for Justice, the Taoiseach had the name of a reforming Minister, particularly in the social field. It would be a magnanimous gesture on his part if he and his Minister agreed to the passing of the Second Stage of this Bill.
I commend Deputy Shatter for bringing in this Bill but there are some points where I would like to have changes made, such as the time limit mentioned in section 2. A period of 12 months was mentioned but I would like to see that period extended. Under the Constitution children may be adopted in exceptional cases where their parents for physical or moral reasons fail in their duty towards there children but there may be other reasons for such adoption, such as emotional or mental torture. This would require a referendum. I believe the Bill as drafted keeps within the ambit of the Constitution. Again, I urge that this Bill be supported by all sides because it is of major importance.
Every Deputy should try to improve family law. This is a very big and important area to which we should all turn our minds. Deputy Lawlor mentioned that this area was a Pandora's box for lawyers. I have been qualified as a solicitor for more years than I care to remember but I believe the majority of solicitors and barristers approach family law with a great deal of sadness. They tend to get involved with the families because they want to understand their problems. The majority of solicitors and barristers involved in this area are not in it for money. I would not like people think that is why this matter is being discussed as everyone here is interested in the good of the children concerned.
Mr. Shatter: I wish to thank the Deputies who have spoken in this debate which has run for two weeks. In particular. I wish to thank all those who made comments supportive of the Bill who represent parties of different ideologies and beliefs and who have come together on a Bill which I hope will be non-contentious  and will receive the support of Members of all parties in the House. I should like to thank Deputies from the various parties represented who have spoken and I should also like to thank the Independent Deputies who indicated that they are supportive of the Bill and will be supporting it in the House this evening.
I welcome the initial comments made by the Minister for Health when he indicated that the Government accepted in principle the aims and objectives of the Bill. The purpose of this legislation is to extend the possibility of adoption to children who are either in long term foster care or in long term residential care and who have no prospect, for the rest of their childhood, of resuming a normal family life with their own parents. I welcome the fact that the Minister acknowledges there is a need to change the law in this area.
It appears at least in this debate that we have achieved a consensus on this issue because it was only on 30 April last, in reply to a Dáil question which I tabled to the Minister, that he indicated, in the context of the report of the adoption review board which recommends the reform we are seeking to bring about, that he would in the coming months consider the recommendations contained in that report with a view to producing legislation. It appears that this debate in a sense has focused the mind of the Government on the issue and has brought forward a general agreement in principle in the House that our adoption laws in this area require change and that such change proposed in the Bill is desirable.
Having regard to the agreement in principle, I find it totally inexplicable that the Government are not merely not willing to extend their support to the Bill or to even abstain on a vote but are, apparently, intent on opposing it. A vote on Second Stage on any measure in the House is a vote to accept the principles of the legislation. The specifics, the nitty gritty, of the individual sections and subsections are teased out on Committee Stage. If the Government are genuine in  stating that they accept the need for this change and that they agree with the Bill in principle, the only action they can take is to support it on Second Stage.
Deputies have referred to the specific measures contained in the Bill and Deputies on different sides of the House have referred to possible amendments which may be necessary. The Minister, in his speech, also made such reference. Indeed, Deputy Andrews has already stated what I intended to state on this issue and what I stated in opening the debate last Tuesday week, that Committee Stage is the normal process during which amendments are tabled to a Bill. We on this side of the House are open to consider any reasonable amendments which will ensure that this legislation will work fully and properly to achieve the objectives it seeks to bring about.
The Minister raised a number of concerns including the constitutional issue and suggested that there might be a constitutional infirmity in the Bill. Neither the Minister nor any member of the Fianna Fáil Party has, in any speech delivered in the House, referred in any specific detail to any constitutional infirmity within the provisions of the Bill. If such exists and if there is a genuine concern in this regard, it is open to the Minister to table amendments on Committee Stage.
The Minister also said he wishes to consider extending the possibility of adoption to married couples under the age of 18 years. I have not heard any great public clamour on the part of married couples under 18 years of age to have the possibility of adoption extended to them. That issue as a problem does not even appear in the context of the review committee on adoption services but, in so far as the Minister perceives it as a problem, it can be raised on Committee Stage. If it is a problem it is a very minor one compared to the position of many hundreds of children who are currently abandoned by parents and deprived of the family security that adoption can extend to them.
It is estimated that there are in excess of 1,000 such children at present in that  position. How many thousands of children in the years gone by have been deprived of the security of a normal family life because of the Dickensian nature of our adoption laws? How many thousands of children who found themselves in permanent residential care in the past decades could have benefited from an adoption law which sought to extend the possibility of a normal family life to them? If the Government are genuinely committed to this reform, I appeal to the Taoiseach and to the Minister not to divide the House on this issue. The Government may be defeated but I do not perceive it as a matter of party politics.
Abandoned children should not be kicked about the floor of this Chamber as if they were footballs on a political football pitch. They should be treated seriously and their problems should be addressed. I hope the measure will not be opposed and I appeal to the Minister not to do so. If he is suggesting, as has been said, that he will introduce his own Bill — various timescales have been given — it is quite clear that any Bill which the Government might produce has no prospect of completing its passage through the Oireachtas this side of the summer recess. Indeed, any Bill that might be published by the Minister has no hope of a Second Stage debate this side of the summer recess because of the burden which the Finance Bill will impose on the House. Any such Second Stage debate which might take place would merely repeat much of what has been said during the course of this debate. I suggest to the Minister that the Fine Gael Party, in bringing forward this Bill, have done a service to the House by providing for a debate on a major issue of social reform within Private Members' time.
I invite the Minister in supporting the Bill, if it achieves a Second Reading, to adopt it as a Government measure, to bring it into Government time and to take up Committee Stage. He should table whatever amendments he deems appropriate and I invite him to do so in the context of his announced agreement and commitment in principle to this reform.
Deputies referred to the difficulties  inherent in the adoption process provided in the Bill and technical matters which need to be resolved. I agree with many speakers who said it would be preferable to have this issue dealt with in a properly constituted family court than in the context of the High Court, but no such family court exists and, constitutionally, it appears that the issue of adoption of legitimate children must be dealt with at High Court level. I would be the first to state that the issue of expense and legal costs for lawyers or anyone else should be reduced and, if possible, removed from an adoption process. However, if it is necessary for these matters to be dealt with at High Court level, it is also necessary to ensure that the children available for adoption are not just available for adoption by those rich enough to be able to afford to complete the type of adoption process which our Constitution appears to impose on them by virtue of the provisions contained in Articles 41 and 42.
I hope the Government will reconsider their approach. A major social reform programme is necessary in the general area of children's law and services. For far too long Members of the House and successive Governments have paid lip service to the need for reform but have been very slow in bringing forward legislation. It is not our intention in proposing the Bill to cause embarrassment to the Government. Deputy Taylor put it well when he said that, if the Government are embarrassed this evening, it is an embarrassment which they brought on themselves. If the Government are defeated on this measure this evening, in real terms it will not be a political defeat but a victory for the children of Ireland. It will be a victory for the abandoned children of Ireland who look to us in this House to extend to them the possibility of a secure family life with parents whom they can regard as their true parents. They look to us to extend to them the possibility of a family life outside institutional care when they have been abandoned by their own parents through no fault of their own.The Dáil divided: Tá, 74; Níl, 74.
Cooney, Patrick Mark.
Cosgrave, Michael Joe.
De Rossa, Proinsias.
Farrelly, John V.
Gibbons, Martin Patrick.
|Higgins, Michael D.
McCoy, John S.
McDowell, Michael Alexander.
Mac Giolla, Tomás.
Noonan, Michael (Limerick East).
Coughlan, Mary T.
Cowen, Brian. Kirk, Séamus.
Kitt, Michael P.
Noonan, Michael J. (Limerick West).
O'Dea, William Gerard.
de Valera, Síle.
Gallagher, Pat the Cope.
Haughey, Charles J.
Hilliard, Colm Michael.
Jacob, Joe. O'Hanlon, Rory.
Wilson, John P.
An Ceann Comhairle: There is here an equality of votes. Pursuant to Article 15.11.2º of the Constitution, I have a casting vote which I am required by the Constitution to exercise. I exercise my casting vote against the question and declare the question negatived accordingly.
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