Private Members' Business. - Recognition of Foreign Adoptions Bill, 1990: Second Stage (Resumed).

Wednesday, 20 February 1991

Dáil Éireann Debate
Vol. 405 No. 4

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

Mr. Martin: Information on Micheál Martin  Zoom on Micheál Martin  With the permission of the House I would like to share my time with Deputy Quill.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is that satisfactory? Agreed.

Mr. Martin: Information on Micheál Martin  Zoom on Micheál Martin  I wish to take this opportunity to pay tribute to the Minister and the Government for their decision to agree to the Bill on Second Stage and allow it to be dealt with by a Special Committee of the House. I would also like to pay tribute to Deputy Shatter for bringing the Bill forward. One could certainly not accuse him of legislative inertia as he has been one of the more successful Deputies when it comes to forcing the pace of legislation. On the other hand, it should be pointed out that too many Opposition Deputies have put across the view that the Minister, and his officials in the Department of Health, are taking a perverse pleasure in placing as many obstacles as possible in the way of legalising foreign adoptions. They are being both unfair and unreasonable as, after all, the Minister has a responsibility not only to the children concerned but to the adoptive parents to ensure that as sound a legislative framework as possible is put in place with few opportunities to challenge the Bill in the courts following its passage.

The dilemma we face is that, as legislators, we genuinely want to meet the wishes of the adoptive parents. We have all been struck by their refreshing, sincere and selfless approach to this issue. Indeed, their enthusiasm is overwhelming. They are looking for the ideal solution — the adoptions recognised and questions such as succession rights dealt with as quickly as possible. We have to reconcile this emotional need with the need to be absolutely sure that no legal difficulties will arise later.

We have to frame legislation which will be in accordance with the Constitution, the European Convention on the Adoption of Children and the United Nations' Charter on the Rights of Children which we have signed. They are instruments which we cannot circumvent. As the House is aware, the Adoption Bill, 1988 was referred to the Supreme Court to test its constitutionality. Therefore, in framing the legislation genuine constitutional difficulties may have to be surmounted and this should be acknowledged. In this regard I was struck by the performance of Deputy McCartan last night who more or less sought to put forward the ideal solution. However, I respectfully suggest to him that if he were to make the same submission in the Supreme Court or, indeed, in the High [1143] Court it would not go very far as much of what he had to say would not stand up to scrutiny. Nevertheless, I take his point that we must endeavour to facilitate the wishes of the parents to the greatest degree possible within the confines of the Constitution. I would go so far as to say, as other Deputies have, that if need be we should make amendments to the Constitution.

It is not fair to suggest that the Minister or the Government are deliberately placing obstacles in the way of this legislation. In many respects the decision to agree to the Second Stage of the Bill is evidence of our genuine commitment to face up to the issue. It is also important that there be all-party consensus on this issue given that it is a very emotive and complex one. It should be dealt with by an all-party Special Committee of the House as happened in the case of the Child Care Bill.

We accept the principle of the Bill and the Minister has made it clear that there are a number of defects in it which he intends to remedy at the Special Committee by way of amendment. The issues about which we are most concerned are the adoption of children born within marriage and the question of the consent of the natural parents, a question which is not dealt with in the Bill. The Law Reform Commission in their report did not deal with all the issues in a comprehensive way nor did they provide all of the answers. As other Deputies are anxious to contribute to this debate, I will conclude and thank the Chair for allowing me to make the essential points.

Miss Quill: Information on Máirín Quill  Zoom on Máirín Quill  With the permission of the Chair, I would like to share my time with Deputy Tom Kitt.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is that satisfactory? Agreed.

Miss Quill: Information on Máirín Quill  Zoom on Máirín Quill  The Progressive Democrats, on whose behalf I now speak, have no hesitation in giving their full support to this Bill. We recognise, because of the recent rush of Romanian adoptions, that the question of foreign adoptions [1144] which was the subject of a Law Reform Commission report in June 1989 had to be addressed sooner rather than later. Hundreds of Irish citizens rightly looked to us as legislators to come up with Irish law to give full legal status to their newly adopted children. A speedy response was called for. We studied the Bill and recognised that the essential issues had been well addressed. We concluded that any alternative draft legislation would not and could not vary fundamentally with the Bill and that any detail which needed to be determined could be so determined by an all party Select Committee. Happily, that is now the case.

This is a historic night in the House. It is the first time in Dáil Éireann that a majority Government decided not to vote down a Private Members' Bill. Accordingly, not alone does it mark a major milestone in the history of law reform, it marks a major milestone in the history of Dáil reform. A valuable precedent has now been set and my hope, and the hope of my party, is that what has happened tonight will happen more frequently in the future. When new legislation, or an amendment to existing legislation is urgently needed, and where there is no fundamental policy difference between Government and Opposition, we see no justification whatsoever for the barren practice of voting down legislation initiated by Opposition Members as has happened consistently in the last 30 years. We have a huge backlog of law that needs to be updated. It is only by continuing the intelligent approach adopted by the Progressive Democrats-Fianna Fáil Coalition, in this instance, that we can ever hope to make significant strides in the field of law reform. The Progressive Democrats warmly commend Deputy Shatter for his initiative in bringing in this draft legislation and for the hard work he put into bringing it before the House. We also warmly congratulate the Minister for Health, Deputy O'Hanlon, for his open-minded and generous approach to the Bill. All in all this is a good night for parliamentary democracy.

I acknowledge fully that there are shortcomings in the Bill and that a [1145] number of key areas need to be fully explored, developed and fine tuned, but surely the same can be said of most draft legislation that comes before the House. The essence of parliamentary debate is to provide for analysis, amendments and improvements to legislation as it passes through the House. It may very well be that there are elements in this Bill that conflict with the Constitution and that must be confronted if it emerges. It is an issue we cannot afford to shirk in these circumstances.

I have every confidence that at the end of the day we will have good, comprehensive, workable legislation as a result of the deliberations of the Special Committee. Moreover, I hope that proper procedures will be put in place to ensure that at all times the rights and welfare of the child are paramount. In all adoption cases what is done is not finding children for parents; rather it is finding good, caring, loving parents for children. Some mistakes have been made here in the past but now the Special Committee, to whom this Bill will go after tonight's discussion, will have all the benefit of experience. The Special Committee will be well positioned to ensure that strict criteria are laid down in relation to the suitability of adoptive parents, that the qualification of social workers is clearly monitored at all times and that adequate provision is made by health boards and adoption socities to enable the aims and objectives of this Bill to be facilitated fully. In other words, due assistance will be given to adoptive parents both before and after adoption because that is so badly needed.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I intervene to advise the Deputy that some two minutes now remain of the time available to her and her colleagues.

Miss Quill: Information on Máirín Quill  Zoom on Máirín Quill  The last point I want to make is that I hope that as a result of this discussion, and of the deliberations of the Special Committee, we will emerge with a heightened appreciation of the importance of children in our society.

I want to make one comment and I [1146] hope it is taken in the right spirit. It is highly ironic that at a time when Romanian babies, and babies from other countries, are finding extremely good homes here there are in this city, and other cities in this Republic, a small number of children living in homes where they are suffering from severe economic social and emotional deprivation. This issue will have to be confronted by Irish society. The legislators do not have all the answers. They have some of the answers, but I make this comment tonight because there is an obligation on all of us to stir the conscience of this nation and remind ourselves that we have an obligation, as was said in the Proclamation of 1916, to cherish all the children of the nation equally. I hope that will be taken on board in this year, the 75th anniversary of that rising.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Deputy Kitt perhaps a minute.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  Can I add my word? The Opposition have half an hour; is that correct?

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  It is being shared.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  Could I have just one minute?

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Deputy ought to avail of it.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I will confine myself. First, I congratulate my constituency colleague Deputy Shatter. This is the second time he has produced a Bill in Private Members' time which I support. The Bill attempts to deal with a legal limbo in which Romanian and other foreign children adopted by Irish people find themselves.

The Minister is arranging for health boards to undertake home study assessment for couples wishing to adopt from a foreign country. I welcome this move. It is important to ensure that the suitability of couples seeking adoption [1147] abroad is properly assessed by a competent agency. Most of the foreign authorities require home study, so it is important that prospective adoptive parents have safeguards for the welfare of the child. I am aware Irish couples have difficulties in obtaining home study reports, and the proposed involvement of health boards in carrying out assessment for inter-country adoptions will ease the situation and facilitate suitable couples wishing to adopt abroad. The Minister's initiative is also in harmony with the special provision of the UN Convention on the rights of the child which requires states to ensure that children involved in inter-country adoption enjoy standards and safeguards equivalent to those existing in the case of national adoption. The call for a specialist agency to process applications for adoptions is unnecessary. In my view the proposed involvement of health boards will obviate the need for specialist agencies. The health boards already provide adoption services——

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I am calling the next speaker.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  ——and they have the necessary expertise to undertake work in relation to inter-country adoptions.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  Let me ask you, Sir, for the agreement of the House to sharing my time with Deputy Dukes and Deputy Garret FitzGerald.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is that satisfactory? Agreed.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  The welcome from all sides of the House tonight, and on the other nights we debated this Bill, is a reflection of our responsibility and role as legislators in regard to, first, children and their rights and, secondly, the rights of parents giving their children for adoption and those who will have the joy of adopting children. Let me commend and compliment Deputy Alan Shatter on introducing this Bill and the Minister and [1148] the House for accepting it and treating it in the way such an important and fundamental subject should be treated.

I welcome also the establishment of a Special Committee, not merely this one, because each time a Special Committee of this House has been established it has been tremendously successful providing us legislators with a role we would not otherwise have had. Above all, it has shown what a Legislature such as ours is capable of and can produce. The constructive, productive operations of such a committee, with a commitment to a Bill such as this, should be expanded. As Deputy Quill said, there is an enormous amount of legislation before this House of tremendous importance. One positive reform we can bring about is the usage of such Special Committees and all-party consensus which would be fully commended by the electorate.

My comments will be of a more general nature because I know that Deputies Shatter, McCartan and others have dealt with the various sections in a detailed, fundamental manner. I agree with the points made by Deputy Shatter in his introductory remarks and by Deputy McCartan last evening. I reinforce what they, and Deputy Quill, said, that this Bill is historic not merely from a national, parliamentary point of view in this Republic but in global terms. We are introducing a Bill and adoption laws that must push out boundaries in the same way in which they have been so completely overturned within the last year or two with regard to economic, political and policy structures. This means that any future legislation of ours must encompass that wider, global sphere. It means also that the provisions of this Bill cannot be implemented within the more rigid, structured context of the European Convention of 1967 or our Constitution of 1937, all the more so realising the rapid transformation that has taken place in world politics within the past two years.

In responding to the reservations expressed by the Minister, and Members on that side of the House, I would say that we should not think of any future legislation merely in terms of our national [1149] interests but also in terms of international law and the laws of other countries. This should not mean or imply that the laws of other countries are of a lower standard nor should we have the arrogance to suggest that ours are superior to those of other countries. For instance, we, and prospective adoptive parents, have to be satisfied that the standards and laws pertaining to adoption in Romania are perfectly acceptable and protective of the child and natural mother, indeed of the parents if both are involved. We must keep a broad, open mind on such issues and ensure that we are not confined to the factors that restrict some of our national legislation.

Although it is a debate for another day I have argued that our 1937 Constitution, while written with the greatest sense of responsibility to citizen's rights, is now applicable in an utterly changed world, not merely one of attitudes or of politics but of the very structures of home life, long term relationships and units. Our Constitution still recognises only those units classified as “married” within the strict rigid Irish context or interpretation. In this country, still regarded as being a conservative, that type of unit is not recognised as the norm. Henceforth we must bear in mind that there will be other long term relationships or units that do not go through the legal process we accept. For instance, in the Netherlands I have been informed that there has been much debate, perhaps even legislation at this stage, in favour of all kinds of loving couples, relationships, units of a familyentity type which should be recognised. Indeed, they will have to be recognised in the future because those units, while different, are certainly not lower which is something we must bear in mind continuously within the whole arena of Irish law. As Deputy McCartan said last evening, even the 1967 Convention is dated compared with the speed with which such changes are taking place.

We must remain open-minded, compassionate, always viewing the child as of paramount importance. In doing so we must also recognise parents' rights and sensitivities. There must be information, [1150] assistance and resources made available to ensure community support for such couples.

At Special Committee level we will very definitely have to begin thinking about children who because of, say, famine, disaster, war and other violent reasons, may not have natural parents who can be traced, who may be marginalised and excluded from any kind of loving home or family unit as a result. I might also echo the reservations of Deputies Shatter, McCartan and others about the constraints of our laws which stipulate that a child must be six weeks old before being adopted. We must remember that there will be urgent circumstances in which that type of constraint will operate to the detriment of the paramount importance of the child, perhaps even of the parents.

I look forward to the Special Committee which I hope will act in that broad, open-minded, international global fashion because, sadly, that is the only way one can legislate for present world conditions.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I should like to begin by saying that I am proud of Fine Gael's record in the area of family law reform. It is fair to say that all of the worthwhile initiatives in this area in the last decade have come from Fine Gael. In particular, I should like to congratulate my colleague, Deputy Shatter, and commend him on his tenacity in this area which has brought us to the point we are at this evening in relation to this Bill.

In view of all of that I am very pleased that the Minister, and the Government, have decided to agree that this Bill should receive a Second Reading and be remitted to a Special Committee of the House. I am confident that the result of that will be a compassionate, humane Bill which will be a valuable addition to the body of our adoption law. The history of reform legislation in this House in the last couple of years might have led the Minister a little more quickly than he did to take this view. I will not go into it at length but the last adoption legislation passed here began as a Fine Gael Private [1151] Members' Bill, voted down by the Government, and subsequently brought in in almost identical form by that same Government. The Judicial Separation and Family Law Reform Act again started off as a Fine Gael Private Members' Bill which, after some little struggle, was finally enacted into law. Those two cases, and this Bill, surely prove beyond any doubt that there are areas in which a Government should take the view that a successful Private Members' Bill, introduced by the Opposition, will not in any case be read as weakness of any kind on the part of Government or as any parliamentary failure on the part of Government. The Bill before us deals with an issue that certainly qualifies for inclusion in that category.

The Review Committee on Adoption Services established by the then Minister for Health, former Deputy Barry Desmond in April 1983, reported in May 1984 and dealt with the question of the adoption of foreign children in paragraphs 3.13 and 3.14. Those paragraphs are of central importance to the issues we are dealing with tonight. Paragraph 3.14 reads as follows:

There will, nevertheless, be particular instances in which persons living in Ireland may wish to adopt a foreign child and where the circumstances would justify a favourable view being taken of such an application. We would recommend, however, that it be obligatory that all applications in respect of the adoption of a foreign child should be made through a registered adoption society or health board. The agency would have the responsibility to make inquiries about the background of the child and to ensure that the necessary conditions, particularly those relating to consent, had been fulfilled.

The committee's view of the necessity for such provisions have been borne out by subsequent experience and it has been clearly borne out by the recent experience of the adoption of Romanian [1152] children. There have indeed been other cases down through the years.

Like many other Deputies I have been in touch with prospective adoptive parents who wish to adopt children abroad for a variety of reasons. I have seen, as have other Members, the joy and delight of those prospective adoptive parents when they find a child for adoption. But, I have also seen their very deep worry and concern when they find that there is not any provision under which the adoption of such a child can be recognised in Irish law. Like other Members, I have spoken to numbers of couples who have found themselves in that situation, who looked at the provisions of our law, and who took advice. I have to say that I very rapidly came to the conclusion that there was a need for specific legislation in this area, legislation of the kind now before us. I am glad the House has arrived at the point we have got to this evening and that we can now see that legislation in sight.

The review committee went on to look at the requirements in relation to the recognition of adoption orders made abroad. They dealt with that in paragraph 13.17. That paragraph dealt in a very wise way, and in a very foresighted way, with the kind of issues with which we are dealing this evening. It stated:

It has been represented to us that difficulties have arisen in some instances in regard to the recognition of adoption orders made abroad. We are aware that this issue is a cause of considerable concern to adoptive parents. In addition to the psychological importance of a child adopted abroad being recognised as fully integrated into his new family, recognition of a foreign adoption order affects a range of other matters such as succession rights, taxation, maintenance and issue of passports. We recommend that the Minister for Health be statutorily empowered to designate countries whose adoption orders would be recognised in Ireland. The effect of this recognition would be to accord the same rights to children adopted in [1153] these countries as children who had been adopted under Irish law. The Minister should also be given powers to draw up rules which would govern the recognition of adoption orders made in non-designated countries.

The Bill before us makes provision to meet the needs identified by the review committee. In his speech on the Bill last week, the Minister expressed a number of reservations about assurances of consent by natural parents in the countries of origin of the children who are being sought for adoption. There may indeed be grounds for some of the Minister's reservations. There may be fewer grounds for others. It seems to me that the designation procedure proposed in this Bill provides a proper framework for securing any assurance that may be required, going from the consent of the natural parents to all the other concerns that have been raised and that have caused worries throughout the country, in particular concerns in relation to the possible trafficking of children, to use the term used in the legislation and conventions governing this.

At one point in his speech the Minister seemed to have some difficulty with the idea that the adoptive parents or the adopted person would be entitled to apply to the High Court for a declaration that their foreign adoption is valid here. The Minister asked, “what is to happen to a child if the court refuses to recognise a foreign adoption order?” It seems to me that that is an extraordinary question, particularly as the Minister went on to claim that there are no guidelines for the court. The court would of course have the body of adoption law, including the Bill this House is going to pass, to guide it. In any case, I find the Minister's question to be a bit out of place in a debate on a Bill which sets out means by which foreign adoptions which cannot now be recognised here, can be recognised. Not anybody would argue with my view that certainty in the law is at least as important in this area as in any other, if not more important.

The integration of a child into a family [1154] is of such fundamental importance to the child and the adoptive parents that we must have clarity about all of the issues arising. From the State's point of view there are the issues of civil status, rights and entitlements. All of those issues arise and exist from the family's point of view, but beyond those, and far more important than those, there are all of the deep emotional and psychological questions of bonding and family building. The child and the adoptive parents must be given the maximum amount of emotional and psychological room to build a family. For that reason, not only must the law not be an obstacle but it must remove any obstacles that it possibly can. That is why I regard this Bill as being so crucial to innocent young children who are now without families and to protect the prospective adoptive parents.

Dr. G. FitzGerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I wish to raise one issue in a Bill which I strongly support. I am delighted it is before the House and that it will be enacted with whatever technical changes may be necessary. In raising this issue, I should declare an interest, because the problem I am raising is one which was brought to my attention by the fact that one of my relatives is an adopting parent. She is in the UN service and has been working for most of the last ten years in either Kampuchea or Vietnam. She has adopted two children under the law of Vietnam. The children, happily are now Irish citizens. My relative is not married, and the adoption is valid under Vietnamese law. Our proper concern in domestic adoptions, given the desirability, all things being equal, of a two-parent family, the shortage of children and the large number of couples who want to adopt and who are very well adapted to adopt is to allow married couples to adopt.

Under our law there is no provision for a single parent adopting. I fully understand and accept that, but in this law where we are dealing with adoptions from abroad, we should not put an obstacle in the way so that a person in the position of my relative coming back to Ireland with two children who would be Irish [1155] citizens, would not be in a position to have the legal privileges of parenthood here because of the requirement in our law, well founded in the domestic situation but inappropriate in this instance. I would ask the mover of the Bill and the Minister to have regard on Committee Stage to this problem and to make whatever provisions are necessary to ensure that the provision in our domestic law should not impede a case of this kind. I do not want to detain the House on a special specific point, but as the Bill will go into Committee and I will probably not be on the Committee, I thought I would raise this point and ask that it be considered.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I thank all those who contributed to this debate. It has been an historic debate. Deputy Máirín Quill correctly set that out this evening. We have had some very good contributions. I should like to thank the Labour Party and The Workers' Party for supporting the Bill. I thank the Independent Deputies who I know would have supported it if we had had a contested vote. I should also like to thank in particular my colleagues in the Fine Gael Party who have been supportive throughout in the processing of this Bill before the House and many colleagues contributed to this debate.

I am also pleased that despite the two months of interviews during which the Minister indicated his intention to oppose the Bill there was a change of mind. It was a good day for the Dáil last week when that change of mind took place. I thank the Minister for adopting a constructive approach to the passage of the Second Stage, although I will have some remarks to make later about the criticisms he makes of the Bill. We need to respond to these criticisms in preparation for Committee Stage.

I should also like to thank the Progressive Democrats who have been unambiguous in their support for the Bill. That support was very welcome.

I mentioned in my opening speech last [1156] week, and now reiterate, my appreciation of the tremendous work done by the Irish/Romanian Parents Group who have lobbied in support of the Bill. They have always been anxious that this should not become a political football and they made that point to every Member they could lay their hands on. They are a group of people who have taken a tremendous burden on themselves in seeking to have legislation changed and they have done this country proud in going to Romania and bringing back many children for whom there would otherwise have been little hope. We hope these children will settle into a new and happy life in Ireland and will be proud Irish citizens of the future. When they grow up they might look back on this debate as the start of their Irish citizenship, as opposed to their simply coming to Ireland in a family in circumstances in which Irish law was not prepared to recognise their existence.

We started in the autumn raising the need for the passage of legislation in this area. It would be correct to say that initially the reaction of Government was, to put it at its most charitable, inertia. The attitude was that there was no particular need to pass any legislation or to change procedures. This is something which could have been put into the long list of hoped for legislation that might finds its way through our bureaucratic processes in perhaps four or six years' time.

I also found that at the beginning there was a great deal of confusion on the part of Government as to the way in which, even administratively, we should deal with the many couples in Ireland who wanted to adopt in Romania. As the numbers of parents going to Romania increased in the spring and early summer of 1990, I raised with the Minister for Justice by way of parliamentary question the issue of whether an Irish couple adopting in Romania would be allowed to bring their Romanian adopted child back to Ireland without any difficulties in the context of visas or otherwise. In reply to a question in June last the Minister for Justice indicated that there was no problem. Provided the couple had an adoption certificate from the Romanian [1157] authorities or the proper foreign documentation in regard to couples who were adopting in other countries, the child would be allowed to enter Ireland.

During the summer months the Department of Justice when requested to do so issued letters to any couple going to Romania who sought them for confirmation to the Romanian authorities. As we came into October confusion hit. For between two and four weeks the Department of Justice refused to issue such letters and great difficulties arose for couples who wanted to go to Romania for the purpose of adoption. Some people who had already gone were uncertain as to the reception they would get on coming back to this country. It was only as we came into early November that the confusion cleared and the Department again agreed to issue the letters which they had previously been issuing.

The initial reaction on the part of Government was inertia; the second was confusion. The third reaction was from the Minister for Health when on 29 November in this House we again asked him to introduce legislation. All he would say was that the Government would have the Attorney General's office look at the Law Reform Commission's report. When he was asked if he was promising legislation he categorically said he was making no such promise.

On 11 November 1990 the Report Stage of the Child Care Bill gave us an opportunity to try to resolve the problem of home study reports. An amendment was tabled to section 6, which dealt with imposing obligations on health boards to provide adoption services in the domestic sense. The amendment required health boards to carry out assessments and provide home study reports for the purpose of inter-country adoption. At some considerable length I and Deputy Ivan Yates and other colleagues explained to the Minister the difficulties which prospective adopters were experiencing in having home study reports prepared and asked that provision be included in the Child Care Bill. I regret that the Minister opposed that and it went to a vote which resulted in the Fine Gael amendment [1158] being defeated. Two days later, on 13 December, we published this Bill.

Adopters not only initially were greeted with Government confusion and inertia but also found themselves being presented with obstacles. The health boards were unwilling to co-operate in the carrying out of assessments and the Government had voted down a reasonable amendment to a Child Care Bill which was designed to ensure that assessments would be carried out. Much has been said about the European Convention on the Adoption of Children and its application in this area. The absence of provision up to now in our legislation for the carrying out of such assessments is in clear breach of an article of the European Convention.

I welcome the fact that this Bill resulted in a vigorous debate as to the needs in this area and that it has produced a considerable change of approach on the part of the Government. It was only in response to the Bill on Tuesday last that the Minister for Health indicated that the health boards would now be asked to co-operate in the carrying out of family assessments and home study reports. He indicated in the context of Romania that there would be some contact made with a new central authority which has been put in place in Romania, although he was not clear whether this contact would be made by his Department, all health boards or a particular health board. This contact would be in the hope of providing a co-ordinating approach by this country in the context of the adoption of Romanian children.

I regret that we are still not clear whether health boards will now carry out assessments. The Minister has said he will give instructions in this regard. Although the Minister is not in a position to reply to me this evening, I would ask him within the next couple of days to make it very clear to all couples who want to go to Romania to adopt whether, if they approach their local health board, assessments will be carried out and home study reports prepared and whether those couples will be given the priority that is necessary to ensure that the assessments [1159] are carried out with reasonable speed whilst also ensuring that the necessary work is undertaken to satisfy the health board as to their suitability to adopt. It is not totally clear whether this is operating on the ground or when it will start operating. Couples are entitled to know. This could always have been done by way of an administrative instruction from the Minister to the health boards. The reason we sought to impose an obligation on health boards in the Child Care Bill was that there was no such administrative instruction and health boards were being obstructive rather than helpful. It is important that many couples who want to go to Romania to adopt are told now or as soon as possible when health boards will provide this service.

The Minister by his approach to the Bill and his decision not to oppose it on Second Stage has acknowledged that there is an urgent need for legislation. That is a welcome recognition of the problems we have. I am greatly disturbed not only by the speeches made by the Minister and the junior Minister at the Department of Health but by the speeches that continue to be made from the backbenches of the Fianna Fáil Party on the Bill. I am even more disturbed by the speech of the Minister of State at the Department of Justice than I was by the speech of the Minister for Health last week. I am not trying to score political points by saying this, but I know the Minister's speech last week and, perhaps, Deputy Flood's as the junior Minister in the Department of Health, were more likely prepared in anticipation of opposing the Bill than actually allowing it to pass. In saying that I am not trying to do any injustice to the Minister or to Deputy Flood. Events moved on and the Bill was not opposed.

My concern is that Deputy Treacy, who is Minister of State at the Department of Justice, continued to run the themes that the two Ministers in the Department of Health ran last week. There is one very clear problem on the part of the Government in dealing with this. That is that there seems to be a [1160] complete failure to understand the difference between enacting laws for domestic adoption to apply to the adoption of children living in Ireland, placed by Irish adoption societies for adoption and adopted through an Bord Uchtála, as opposed to the provision of laws under private international law to recognise foreign adoptions. There is an absolute and complete confusion as to the dichotomy of approach between private international law rules and domestic rules. Indeed, listening to the Minister's speech, it does not surprise me that the Government were not able to come up with a Bill. It would be impossible to deal with the recognition of foreign adoptions in the context of legislation to incorporate the type of provisions that the Minister and his colleagues on the Fianna Fáil side have been talking about.

I wonder about the extent to which the Minister's speech, and those of his colleagues, arose through any discussions with the Attorney General's Office. I would hope that the Attorney General would set the Minister right on this because all of the problems being raised by the Minister are not real; in the context of this legislation they are illusory. None of these problems are raised by the Law Reform Commission's report in the context of any of the rules they recommend for the recognition of foreign adoptions. Unfortunately, the Minister's speech is full of confusion. It was Deputy McCartan, in a very excellent speech who very clearly made the point that if we continue along that road in the Special Committee this evening will be a false dawn and we will run into very real difficulties in the Special Committee.

I do not want to be misunderstood. I have said all along that I will be happy for the Bill to incorporate constructive amendments that are proposed from any side of the House that will make it work as well as it could possibly work. However, I am really concerned as to whether the Government amendments will, in reality, allow that to happen if the Minister continues to travel along the road he is suggesting. The Minister seems to envisage that to recognise a foreign [1161] adoption it is necessary for the foreign country to incorporate within its own domestic laws, Irish domestic adoption law as it applies from time to time. He seems to envisage that whenever we change our adoption Acts the United Kingdom Parliament, the Romanian Parliament and the parliament in Peru should automatically change their Acts to accord with our domestic adoption law. There is very real confusion. It has lost the point that to recognise a foreign adoption, just as to recognise a foreign divorce or even to recognise a decree of a foreign country in a number of different types of legal actions, that recognition is based on what is known as the connecting factor, the true connection between the country that has made the court order or the adoption decree and the person subject to it. It is suggested that the provision of a recognition rule of adoption based on the nationality and residence of a child would result in some open ended system of adoption which would undermine our own adoption system. That is complete and utter nonsense. One could equally say the same about recognising an adoption based on the domicile or habitual residence of one or both adopters, that it would undermine the entire adoption system here. It is based on a complete lack of understanding of how private international law works.

Deputy McCartan was correct when he said there was a narrow view coming from the Government side. Not only is it a narrow view, it is a dangerously misinformed view that, if carried into Committee, threatens to undermine the very essence of the Bill and to ensure that all of the children who have been adopted in Romania by Irish couples properly according to Romanian law will, at the end of this process, find themselves deprived of recognition of their adoptions. That is the last thing that must come out of the Bill. The Bill must ensure that where an Irish couple properly comply with the law of a country in adopting a child and where the child is a national and a resident of that country, that we extend to that adoption the full recognition it deserves and that we ensure [1162] that the child adopted is placed in a position of legal equality in Ireland with the child adopted within Ireland.

It has been suggested that there are constitutional problems. I must say that there are no constitutional problems in the context of the recognition rules provided for in the Bill. Indeed, the Law Reform Commission expressed that view. A member of the Minister's party managed to stand that report on its head by saying that the Law Reform Commission did not mean it when they said there was not a constitutional problem but that they really meant there might be. That is not what the Law Reform Commission said. There is no constitutional problem. Let me illustrate it in a way that it has been previously illustrated. We have within our Constitution a prohibition on divorce, but we also passed legislation in 1986 which recognises foreign divorces and which our courts have fully and properly upheld. There is no question that recognition rules in the adoption area as the Minister thinks they should apply would apply to the recognition of divorce. If that were the case there would be no divorce granted anywhere in the world to anybody, no matter whether they were nationals domiciled and resident in a foreign country, that we could possibly recognise because we would always have to relate it back to our domestic law. There is a very real and serious confusion.

Much mention has been made of the European Convention on the Adoption of Children and that copperfastens the confusion. The European Convention on the Adoption of Children has absolutely nothing to do with the recognition of foreign adoptions. The only existing convention in that area is the Hague Convention 1946, the full contents of which are published in the Law Reform Commission's report and the provisions contained in it which are so unrealistic that the convention has only been ratified by three countries and is basically inoperable. It is a sort of dinosaur convention that has been proved to be irrelevant in the international legal sense. The European Convention on the Adoption of [1163] Children is solely concerned with domestic adoption law and domestic adoption rules and has nothing to do with recognition. It does though impinge on two areas of the Bill and in both respects the Bill is trying to ensure that this country, which ratified this convention in 1968, finally complies with it, because we have been in breach of it since 1968 in the sense that in the context of that convention there are two important Articles.

Article 11 provides that where a child is adopted by parents of a different nationality the contracting State is required to facilitate the acquisition by the child of the adopters' nationality. Under that convention if an Irish couple adopt a Romanian child this State should have in being laws which ensure that that child acquires Irish nationality. We do not have that. At the moment it is a discretionary function of the Minister for Justice who can wait years before agreeing to exercise his discretion to give the child Irish nationality. We are currently in breach of Article 11 of that convention.

Article 14 of the convention provides that where a couple are adopting in another State and inquiries have to be undertaken as to their suitability to adopt the requesting State shall if a request for information is made, promptly endeavour to secure that information. It obliges us to ensure assessments are carried out and home study reports are provided. We have been refusing to do it in this context and we are in breach of the convention. Section 12 of the Bill resolves that problem.

I hope we have a constructive Special Committee. I hope we can tease out the problems that some Deputies believe exist and that the Minister will get greater clarification through the Attorney General's office as to the difference between domestic adoption law and private international law. I want to conclude by saying that I am happy that on this issue tonight the House is not dividing, that the Bill will get a Second Reading without the bells ringing. This has been a good day and a good two weeks for parliamentary democracy. I hope Fine Gael have been [1164] seen to tackle a major social problem that deserves to be tackled. I hope this will be the first of many Private Members' Bills that are brought forward from this side of the House that the Government will agree to take on board and not oppose. I hope, Sir, that we can move swiftly on this legislation and ensure that it is enacted into law well before the summer vacation.

Question put and agreed to.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  When is it proposed to make an order for the referral of the Bill to a Special Committee?

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  That order will be moved next Tuesday.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Is that agreed? Agreed.


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