Wednesday, 2 June 2010
Dáil Éireann Debate
This deals with the reference to the term “child” and defines a “child” as any person under the age of 18 years. The relevance of the reference is that under the adoption legislation it is only a child who can be adopted. In the context of this amendment, I am proposing that there be added “and over 18 years who was in the care of a person or persons other than his or her biological parent or parents for a period of three years or more prior to attaining the age of 18 years”.
There is a large number of children in foster care and a number of them who, having been in foster care for what was thought to be a period of short duration, have ended up in foster care of a long-term nature all the way up to attaining the age of 18 years and who would like to be legally recognised as part of their foster family. This amendment is designed to facilitate the making of an adoption order in respect of someone over 18 years who for a minimum of three years prior to attaining the age of 18 was in the care of persons other than their biological parents.
This is an issue that has been given very little attention in this State. It is an issue about which some people outside this House feel very strongly, including former foster parents of people in their early twenties and people older than that who have ultimately been, for all practical terms, a child of a foster family for the greater part of their childhood. One of the difficulties is that when, in years gone by, children were placed in fosterage even in circumstances where there was a possibility of adoption and the use of the Adoption Act 1988, it was not always brought to the attention of foster parents in the context of their circumstances by the HSE or social workers attached to the former health boards. This is designed to address that issue.
Minister of State at the Department of Health and Children (Deputy Barry Andrews): One of the criteria regarding eligibility for adoption is that the person to be adopted must be under 18 years of age. The issue of the adoption of persons aged over 18 years of age originally arose in the context of children who remain in long-term foster care, as the Deputy has said, with the same family for a considerable period of time but who, for one reason or another, are not eligible to be adopted. As the Deputy will know, the Childcare (Amendment) Act 2007 provides additional rights to parents who foster on a long-term basis. The referendum wording, as proposed and agreed unanimously by the Joint Committee on the Constitutional Amendment on Children, will allow liberalisation of the kind of restrictions which are causing people to be in foster care for long periods of time when adoption might be a more appropriate answer for them. For that reason, I will not accept the amendment. It would be more appropriate to deal with it in the context of the referendum proposal which will be put before the people in due course.
Deputy Alan Shatter: To briefly respond to that, there is a policy issue in relation to this matter which is do we, as a matter of policy in all circumstances forevermore, confine adoption to persons under 18 years of age or is the Government open to considering, for the type of individual I have described, the possibility of extending of adoption to them? It is not necessarily an issue which is going to be resolved by the wording proposed by the all-party committee for a children’s rights referendum, which includes addressing certain adoption issues, though the provision proposed contained within that may more readily facilitate this.
I want to say that I recognise in the context of this amendment that if this amendment were to be made, I think there are other changes which would be required in our adoption legislation. I think if one had a 25 or 30 year old who had been in long-term fosterage and wished to be adopted, for example, by the foster parents it would be a little odd to go looking for the consent or agreement of the original biological mother when this was a decision made by an adult. I think there is a very fundamental decision to be made, which is whether adult individuals who had been in long-term fosterage should be given the legal autonomy to be able to make this type of decision without reverting to the biological parents.
I essentially raise this issue to try to generate some discussion and consideration of this which has really not been the subject of any detailed public debate. I welcome the fact that the Minister of State said that when we come back, hopefully we will have the children’s rights referendum this year and, quite clearly, further adoption legislation would then be required. In that context, it is my intention to withdraw this amendment and not press it.
I merely ask the Minister of State a question, in the context of his reply. We are aware that the Joint Committee on the Constitutional Amendment on Children recommended that new draft proposals for adoption legislation should be published before we have the children’s rights amendment. I want to ask the Minister of State if there has been any progress made in that regard because I am concerned that it does not become an obstacle to the time line of holding a referendum in 2010.
Deputy Barry Andrews: The Deputy is right that we are dealing with a blockage in regard to children who would be otherwise adoptable but are in long-term foster care. The categories for which the Deputy is seeking to provide additional rights would normally be adoptable but for the 1988 interpretation. I remember the Deputy raising this issue at the all-party meetings of the Joint Committee on the Constitutional Amendment on Children where his view was that there was a very narrow interpretation abroad about how that could be relied on by people in long-term foster care. I am absolutely sympathetic to what the Deputy is trying to do but the relaxation of the point will bring the issue more into the categories of long-term foster care children under 18 years of age. That issue would be more appropriately dealt with for children rather than for adults.
An Leas-Cheann Comhairle: Amendment No. 5, also in the name of Deputy Shatter, arises out of Committee Stage proceedings. Amendments Nos. 40 and 99 are related. Therefore, amendments Nos. 5, 40 and 99 may be discussed together.
The additional words which I seek to insert are “is appointed to be a guardian of the child in accordance with the provisions of this Act”. The additional amendments that are referred to which we are taking in conjunction with this are amendments Nos. 40 and 99. I will briefly refer to those. Amendment No. 40 seeks: “In page 26, line 2, after “order” to insert “or guardianship order made by it”.” The “it” in that context would be the adoption authority. Amendment No. 99 which, from what I can recollect, is the more substantive amendment, states:
What this is all about, if I can put it in non-legal language, is dealing with the issue of family adoptions and, as we know from the information documentation made available by the Adoption Board at present, a substantial number, indeed the majority, of adoption orders made at present by the Adoption Board are essentially family adoptions. The majority of family adoptions are adoptions by a biological mother who has married someone who is not the biological father of her child and who wishes that her husband adopt the child and assume parental rights identical to those that normally would vest in a biological father where a child is born to a married couple and the husband wishes also to have the entitlement of adopting the child.
In the context of adoptions, from the Adoption Board annual report 2008 — I do not think we have the 2009 report — during that year there was a total of 49 applications for non-family adoptions and there were total applications for what are known as family adoptions of 224 and 217 out of the 224, that is, 79% of the total domestic adoption applications received by the Adoption Board in 2008 were received from birth mothers and their husbands who were trying to jointly adopt the birth mothers’ children. Curiously, there was only one from a birth father and his wife seeking to jointly adopt.
In the same year in 2008 — some of the applications received in 2008 would not result in orders being made until 2009 — in the context of adoption orders made, a total of 200 adoption orders were made in that year and 128 of them, that is, 64%, were in favour of the birth mother and her husband.
A series of reports published by the Adoption Board over the past 20 years — I will not delay the House with a recital of quotations — have recommended alternative procedures. The 1984 review report of adoption services recommended that where a biological parent marries a person who is not the other parent, an alternative procedure should be put in place to grant parental rights to the latter. To use the example represented by 99% of cases, it is extremely artificial to require a biological mother to jointly adopt her own child with her husband. My proposed amendment will allow the new adoption authority to make what is known as a guardianship order as an alternative to an adoption order. This would confer rights on the husband to be the child’s guardian without creating an artificial arrangement whereby the mother has to adopt her own child. A later amendment proposes, as an alternative to requiring the biological mother and husband or, in the aforementioned three instances, the biological father and wife jointly adopting the biological parent’s child, to allow the non-parental spouse to have an adoption order made in his or her favour in circumstances where the legislation expressly preserves the rights of the biological parent.
It is a bizarre system. In 2009, 79% of applications derived from biological mothers and their husbands. Biological mothers undergo an assessment process to determine whether they should be allowed to adopt their own children. They are then put in the anomalous position whereby they must produce an adoption version of the birth certificate if they are asked to demonstrate they are the child’s parents. How many teenagers will as a result wonder whether their biological parents are in fact their real parents? How much confusion is created by a bizarre law which requires a mother to adopt her own child in order to confer legal rights and responsibilities in respect of that child on her husband in circumstances where the latter wants to acquire them? In the vast majority of these cases, the biological father played little or no role in the life of the child.
Given the Adoption Board’s repeated appeals in its annual reports over a period of two decades for changes to the law, I do not understand why the issue is not being addressed in this Bill. This is a fundamental amendment because it is not right that doubts should be sown in the minds of persons who were adopted using this system as they head into their teens and twenties. We have heard numerous stories of adopters failing to tell children that they were adopted and we know the difficulties that ensued.
This is an antediluvian and anachronistic provision based on legislation which dates back to 1952. It is extraordinary that we are re-enacting this anachronism 58 years later despite all the recommendations from the Adoption Board. I raised this issue on Committee Stage in the hope that the Minister of State would reflect further on it before Report Stage. I urge him now to accept Amendment No. 5 and the subsequent amendments to which I referred.
Deputy Jan O’Sullivan: I support Deputy Shatter’s argument. This Bill is supposed to be in the best interests of the child but serious confusion still arises in regard to children who are being adopted by their natural mothers and their relationship with their adoptive and natural fathers. In many ways society is ahead of the proposals in this legislation. We must be frank and honest in giving information to children on these matters. By accepting the amendments proposed by Deputy Shatter the Minister of State would offer more clarity to young people in regard to the identity of their natural parents and their relationships to subsequent partners.
I am reminded of a recent article by John Waters in The Irish Times which told the story of a young couple. The girl’s mother became extremely shocked when told the identity of the boy. It turned out that the boy’s father was probably also the girl’s natural father. We must face up to these realities with this Bill. The amendments I have tabled on the natural father of children in the adoption process are also relevant to this issue.
We probably will not be revisiting these issues for quite some time, even though the Minister of State has indicated his intention to introduce another Bill to deal with post-adoption information, tracing and birth certificates. In my opinion these matters should be provided for in the Bill before us because it is important that we get clarity on them in the context of modern society as opposed to the past when all these stories were hidden and families did not speak to their children about them. It is important that we reflect the fact that we live in a different world when we pass legislation in this House. In that context I ask the Minister of State to take Deputy Shatter’s amendments seriously.
Deputy Barry Andrews: The adoption authority will not be involved in the appointment of guardians and this Bill does not provide for the appointment of a guardian to a child. Section 17, which deals with placement, provides that the appointment of a guardian is done by way of an application under section 6A or section 11(4) of the Guardianship of Infants Act 1964. Otherwise, as set out in section 3 of this Bill, a guardian may be appointed by deed or will or by order of a court in this State. As such, the appointment of a guardian is outside the scope of the Bill.
Amendment No. 99 is a matter for the 1964 act, which is under the aegis of the Minister for Justice, Equality and Law Reform. Guardianship in the Adoption Bill arises in the context of consent required for adoption. If the natural father is a guardian, his consent is required before a child can be placed for adoption or an adoption order can be made.
Deputy Alan Shatter: I regret the Minister of State’s reply. He did not address the issues I raised. As the Minister of State with responsibility for children, he has given us a sort of mechanical reply that the Bill does not deal with guardianship, this is a matter for the Minister for Justice, Equality and Law Reform, ergo he will not deal with the matter. That is the explanation he gave.
The Bill does not deal with guardianship because it does not address this issue. It will deal with guardianship if this amendment and the other two amendments I proposed to the House are made. Here again, we have what I would describe as piecemeal thinking, that is, making a pretence at addressing issues from a child’s perspective, but in fact offering the excuse that the Department does not deal with the issue. That is essentially what the Minister of State is saying. He is the Minister with responsibility for children across the Departments of Justice, Equality and Law Reform, Health and Children and Education and Skills. I presume that if a guardianship Bill were introduced in the House, he would deal with it under the guise of Minister of State in the Department of Justice, Equality and Law Reform. I cannot take seriously his response.
The Minister of State also failed to state the reason successive reports of the Adoption Board are being ignored. I indicated already that I do not propose to read all the reports into the record of the House.
To return to the comments made by Deputy Jan O’Sullivan, apart from not confusing the child’s background genealogy, giving rise to doubts about the position of the biological mother, there is another reason for providing the type of alternative structure I am proposing. Incidentally, there is no reason the adoption authority should not be given the entitlement to make such orders. A constitutional amendment we made to our legislation some years ago to protect the position of the Adoption Board will equally apply to the adoption authority and creates no difficulty in making this sort of order. The other reason for providing an alternative structure is to protect the role, in certain circumstances, of natural fathers. Natural fathers may not have difficulty with a husband of a biological mother acquiring rights to a child in circumstances in which the natural father has maintained contact with and has some access to the child, provided his identity as biological and legal father is not extinguished. By being able to make a guardianship order, one preserves the identity of the biological father as the father of the child while conferring rights on the husband that are to the benefit of the child in a parenting context. For this to happen, the same structure as applies with regard to seeking consents from the natural father would apply and if there was a dispute about this, ultimately it may well be that the District Court could otherwise have to deal with the matter.
I make no excuse for quoting from the most recent annual report of the Adoption Board, which is from 2008. I made mention of the report a moment ago. The issue comes back to the statistics to which I referred. Paragraph 1.2 states:
Twenty years of reports have said this. During that period, we have had six or seven Ministers with responsibility for children in different administrations. This is the first so-called comprehensive Adoption Bill we have had in 20 years, as opposed to Bills tinkering with issues the Government of the day has been forced to address as a consequence of court decisions or the 1991 Private Members’ Bill that I sponsored which, for the first time, prescribed rules for the recognition of foreign adoptions. This is the first Bill dealing in a comprehensive way with domestic adoption issues.
Deputy Barry Andrews: The circumstance Deputy Shatter has raised is not adoption. It is described in the various annual reports of the Adoption Board and is a situation in which the rights of the natural father are not extinguished, which is how we understand adoption in this country. The Deputy is seeking another legal mechanism and while I do not disagree with the view of the Adoption Board in this matter, this is not appropriate legislation for introducing such a mechanism. This Bill relates to adoption, which is understood in Ireland to be the extinguishment of the legal rights of natural parents in circumstances in which adoption is effected. While I agree with the Deputy’s general sentiments, it is wrong to assume that this legislation is the correct vehicle to make the proposed change.
|Allen, Bernard.||Barrett, Seán.|
|Breen, Pat.||Broughan, Thomas P.|
|Bruton, Richard.||Burke, Ulick.|
|Burton, Joan.||Byrne, Catherine.|
|Connaughton, Paul.||Coonan, Noel J.|
|Costello, Joe.||Coveney, Simon.|
|Crawford, Seymour.||Creighton, Lucinda.|
|D’Arcy, Michael.||Deasy, John.|
|Deenihan, Jimmy.||Doyle, Andrew.|
|Durkan, Bernard J.||Enright, Olwyn.|
|Feighan, Frank.||Flanagan, Charles.|
|Flanagan, Terence.||Gilmore, Eamon.|
|Hayes, Brian.||Hayes, Tom.|
|Higgins, Michael D.||Hogan, Phil.|
|Howlin, Brendan.||Kehoe, Paul.|
|Lynch, Kathleen.||McCormack, Pádraic.|
|McEntee, Shane.||McGinley, Dinny.|
|McGrath, Finian.||McManus, Liz.|
|Mitchell, Olivia.||Morgan, Arthur.|
|Naughten, Denis.||Neville, Dan.|
|Noonan, Michael.||Ó Snodaigh, Aengus.|
|O’Dowd, Fergus.||O’Keeffe, Jim.|
|O’Shea, Brian.||O’Sullivan, Jan.|
|Penrose, Willie.||Perry, John.|
|Quinn, Ruairí.||Rabbitte, Pat.|
|Reilly, James.||Ring, Michael.|
|Shatter, Alan.||Sheahan, Tom.|
|Sheehan, P.J.||Sherlock, Seán.|
|Shortall, Róisín.||Stagg, Emmet.|
|Stanton, David.||Timmins, Billy.|
|Tuffy, Joanna.||Upton, Mary.|
|Ahern, Bertie.||Ahern, Dermot.|
|Ahern, Michael.||Ahern, Noel.|
|Andrews, Barry.||Andrews, Chris.|
|Aylward, Bobby.||Blaney, Niall.|
|Brady, Áine.||Brady, Cyprian.|
|Brady, Johnny.||Browne, John.|
|Byrne, Thomas.||Carey, Pat.|
|Collins, Niall.||Conlon, Margaret.|
|Connick, Seán.||Coughlan, Mary.|
|Cregan, John.||Cuffe, Ciarán.|
|Curran, John.||Dempsey, Noel.|
|Dooley, Timmy.||Fahey, Frank.|
|Finneran, Michael.||Fitzpatrick, Michael.|
|Fleming, Seán.||Flynn, Beverley.|
|Gogarty, Paul.||Gormley, John.|
|Grealish, Noel.||Hanafin, Mary.|
|Harney, Mary.||Haughey, Seán.|
|Healy-Rae, Jackie.||Hoctor, Máire.|
|Kelleher, Billy.||Kelly, Peter.|
|Kenneally, Brendan.||Kennedy, Michael.|
|Killeen, Tony.||Kitt, Tom.|
|Lenihan, Brian.||Lowry, Michael.|
|McDaid, James.||McEllistrim, Thomas.|
|McGrath, Mattie.||McGrath, Michael.|
|McGuinness, John.||Martin, Micheál.|
|Moloney, John.||Moynihan, Michael.|
|Mulcahy, Michael.||Nolan, M.J.|
|Ó Cuív, Éamon.||Ó Fearghaíl, Seán.|
|O’Brien, Darragh.||O’Connor, Charlie.|
|O’Dea, Willie.||O’Donoghue, John.|
|O’Flynn, Noel.||O’Hanlon, Rory.|
|O’Keeffe, Batt.||O’Keeffe, Edward.|
|O’Rourke, Mary.||O’Sullivan, Christy.|
|Power, Peter.||Power, Seán.|
|Roche, Dick.||Ryan, Eamon.|
|Sargent, Trevor.||Scanlon, Eamon.|
|Smith, Brendan.||Treacy, Noel.|
|Wallace, Mary.||White, Mary Alexandra.|
This is a technical amendment. It is not as important as the core issues in the Bill, but I will move it formally. It seeks to insert the phrase “in the English language” because there is also an authentic French text. It would be more accurate to indicate that we are talking about the English language text.
Deputy Barry Andrews: The proposed amendment suggests inserting “in the English language” into the definition of Hague Convention in section 3 of the Bill. This is considered unnecessary as it is considered a given that the text of the Hague Convention referred to in the Bill is the English language version. For that reason, I do not accept the amendment.
Deputy Jan O’Sullivan: I will not press the amendment, but I am concerned that somebody could decide to use the text in the French language and legitimately argue a case using the French text, which might cause a problem. However, I will not press it because it is clear the Minister of State will not accept it.
This amendment inserts, in page 16, line 21, after “1991” the following: “by a person or couple ordinarily resident, habitually resident, or domiciled in the State where the adoption was effected”. The related amendment, amendment No. 8, proposes to insert in page 16, line 26, after “1991” the following : “by a person or couple habitually resident or domiciled in the State where the adoption was effected”.
These two technical amendments try to ensure that adoptions effected outside the State by persons who are properly resident outside the State are registered and recognised in the State and that no difficulty arises under this legislation. We discussed this issue at some length on Committee Stage. I note the Minister of State has some related amendments and do not intend to talk at any great length about these two but would like to hear what he has to say about the amendments he has tabled.
Deputy Jan O’Sullivan: Amendment No. 31 in this grouping is in my name and seeks to deal with the same issue. Many people live outside the State for a number of years. They settle down and decide they want to have children and may subsequently adopt. When they come back to Ireland they want to have their family appropriately recognised. I believe the Minister of State has accepted the intention behind my amendment and that he covers it adequately in amendment No. 70. However, I would still like to move my amendment.
Deputy Barry Andrews: Amendment No. 7, if included in the Bill, would exclude applicants who are resident in Ireland who have effected an adoption order in another jurisdiction before the establishment day which may be recognised by the Adoption Authority. The amendment merely makes specific provision with regard to persons who at the time of the making of the adoption order were ordinarily resident, domiciled or habitually resident in the state where the adoption was effected. The definition of intercountry adoption effected outside the State at (a) in that definition in the Bill as drafted covers all categories of adoption in respect of which applications to the authority can be made and adoptions recognised by the authority in accordance with section 57 of the Bill, provided the adoption conformed with the definition of foreign adoption in section 1 of the 1991 Act, as amended, and is certified by a certificate issued by the competent authority of the state of adoption as having been effected under and in accordance with the law of that state and is not contrary to our public policy.
On amendment No. 8, the definition with regard to paragraph (b) of the definition of intercountry adoptions effected outside the State covers, as drafted, domestic adoptions, as it were, effected in other jurisdictions following the establishment day. These adoptions, in accordance with section 57, may be recognised by the Adoption Authority. Amendment No. 70 in this grouping is a Government amendment to section 57.
Amendment No. 31 is in the name of Deputy O’Sullivan. Section 20 of the Bill includes provision for the Adoption Authority to recognise an intercountry adoption effected outside the State. The definition provided in section 3(1) of the Bill covers the circumstances set out in the Deputy’s amendment.
I have also brought forward a Government amendment to section 57(b)(i) which clarifies that in the case of an intercountry adoption effected outside the State, as referred to in paragraph (b) of the definition in section 3, the adopter or adopters must be habitually resident in the State, “habitually resident” being the crucial term. I have introduced amendment No. 52 to ensure consistency with the definition of intercountry adoption in section 3 and with article 23 of the Hague Convention, which provides that an adoption certified by the competent authority of the state of adoption, as having been made in accordance with the convention, shall be recognised by another contracting state. Section 33(5) should only refer to adoption orders made by the Adoption Authority and I have brought forward this amendment to delete the reference to intercountry adoption in this subsection.
The purpose of amendment No. 70 is to make it clear that in the case referred to in paragraph (b) again, parents must be habitually resident in the state in which the adoption is effected at the time the adoption order is made.
For clarity, the Attorney General has given specific advice on the question of habitual residence. It is his considered view that it is the term that is most commonly used and is the matter for the authority to consider from time to time. It is analogous to the concept of domicile and will be for the authority to determine according to public policy.
There is a strange anomaly in the Bill. We discussed this amendment on Committee Stage, but the Minister opposed it, although I cannot understand why. There is reference to the welfare of the child in various parts of the legislation. In the Guardianship of Infants Act 1964 there is also a reference to the welfare of the child as being the first and paramount consideration in dealing with issues relating to children. Section 3 of the Guardianship of Infants Act 1964 imposes an obligation on the courts to regard the welfare of the child as the first and paramount consideration in resolving various issues relating to the guardianship and custody of children and the definition section of that Act contains a definition of the concept of welfare. That definition is just applicable to the Guardianship of Infants Act 1964.
The only change that has occurred since 1964 came about during the debate on what became the Child Care Act 1991, when I proposed that the definition of welfare should include a reference to emotional welfare. In the 1964 Act, welfare is said to mean physical, social, intellectual, moral and religious welfare. I recall that I proposed the amendment of the 1991 legislation to include the word “emotional”. My recollection is that my proposal was accepted. If it was not included in the 1991 Act, then it was accepted in the context of the Committee Stage debate on some later item of children’s legislation in which I was involved.
Amendment No. 10 proposes that we should define welfare, in the definitions section of the Bill before the House, as referring to the physical, emotional, social, intellectual, moral and religious welfare of the child. When one is referring to the concept of welfare in legislation, one must define what one means by that concept. We cannot leave it to the courts to state that the legislation before us, which will become the Adoption Act 2010, does not define the concept. At some point, a judge may state that the concept of child welfare is not defined in this legislation and that, therefore, the definition contained in the 1964 Act should be assumed to apply. Alternatively, he or she might decide to take the definition as being contained in the corpus of child care legislation at the point where the word “emotional” is used.
I do not understand why the Minister of State opposed this amendment on Committee Stage. If I am wrong in my recollection that emotional welfare is not yet referred to in statute, that is fine. However, it should be so referred to. In 1964, people tended to regard the religious welfare of children as being somewhat more important than their emotional welfare. It has now been established that a failure to protect a child’s emotional welfare is likely to cause greater damage than a failure to ensure his or her religious observance.
I propose that the amendment be accepted. I would have thought that out of all the amendments tabled in respect of the Bill, the Minister of State would have acceded to this one. I cannot understand why he would oppose it. I hope the matter has been given further consideration since Committee Stage.
Deputy Jan O’Sullivan: Amendment No. 25 states, “it shall be presumed, unless the contrary is shown that the welfare of the child is best promoted in the society of either or both of the child’s natural parents, if either or both of them wish to exercise that role”. There should be an assumption in the Bill that a child would be better off with his or her natural parents, unless there are reasons this should not be the case. This matter was discussed on Committee Stage and the amendment in my name allows for an assumption to be made that a child’s natural parents are the best people to rear him or her. However, the amendment would still leave open the possibility to argue that this might not be best for the child.
If provision can be so made, it is best that children be raised by their natural parents. Issues such as money, etc., should not be given priority over the fact that his or her parents actually brought him or her into the world. This is an important principle and it should be contemplated in the Bill. As already stated, it could be overridden if there is a good argument in favour of deciding otherwise. I urge the Minister to consider the amendment.
Deputy Barry Andrews: In respect of amendment No. 10 in the name of Deputy Shatter, section 3 was brought forward from the 1952 Act, in which welfare was not defined. Thus, in the Bill before the House welfare will be interpreted in accordance with precedent and the rules of statutory interpretation. By not defining it, we are giving the term its ordinary and broadest meaning, which encompasses all aspects of the welfare of a child. Welfare is not defined in the Child Care Act 1991 or the Children Act 2001. It is, however, defined in the Guardianship of Infants Act.
I reiterate the point I made on Committee Stage in respect of Deputy O’Sullivan’s amendment, namely, that section 19 relates to making arrangements for the adoption of a child or for the recognition of an inter-country adoption outside the State after the decision has been taken by the child’s birth parent or guardian that he or she is to be adopted so the placement has occurred and the adoption is now being sought. In these circumstances, a child’s parent or guardian will have already made the decision that his or her best interests are served by his or her being placed for adoption. For that reason, the amendment cannot be accepted.
Deputy Alan Shatter: I suspect that we should bring this procedure to an end by accepting the Government’s amendments. We could then all go home and not waste the public’s time or our time for that matter.
The Minister of State’s explanation is that because it never occurred to anyone to define, in the 1952 Act, the concept of welfare, we will not define it in 2010. That is the totality of his explanation. Somebody thought of doing it in 1964, some 12 years after the original legislation was enacted. Whomever was responsible for drafting what became the Guardianship of Infants Act 1964 could have stated that the concept of welfare was not defined in 1952 and asked if there was really a need to bother framing such a definition at that point. It was important that someone bothered to arrive at a definition because the Circuit Court, the High Court and the Supreme Court handed down a series of judgments on how the concept of welfare should be applied under the 1964 Act.
The Minister of State indicated that welfare has not been defined because it is a broad concept and that the matter will be left to the courts to decide according to case law. I challenge him to supply the definition the courts have attached in case law to the concept of welfare under adoption legislation. Is it any different to that provided under the Guardianship of Infants Act 1964? Has some unique, broader concept been invented by a judge? That would be an interesting explanation to receive.
The concept of welfare that I propose to be included in the Bill is consistent with our existing statutory provisions. In addition, it gives a recognition to the emotional welfare of a child. That is important in the context of determining issues——
An Ceann Comhairle: I apologise for interrupting but I must mention that when the proposer of an amendment speaks for the second time, he or she has only two minutes within which to make his or her contribution.
Deputy Alan Shatter: I am about to conclude. What the Minister of State has to say on this matter is not credible. In fact, he is undermining the credibility of the entire process in which we are engaged.
Deputy Barry Andrews: I wish to respond to the nonsense uttered by Deputy Shatter. We were treated to the same performance on Committee Stage, although it did not last as long. I have genuine reasons for resisting the amendment. If the Deputy feels intellectually snubbed in any way, that is a pity because I have accepted some of his proposals in respect of other amendments.
Deputy Barry Andrews: As indicated on Committee Stage, the Deputy is providing what purports to be an exhaustive list of the considerations that could be included as being pertinent to the welfare of a child. However, there are other categories which could be considered in the modern age. The broadest interpretation has been deemed appropriate by the courts in the past.
Deputy Barry Andrews: I will not rise to the Deputy’s provocation. The purpose of sections 4 and 5 of the Bill is to ensure that agencies involved in the making of arrangements for adoption are registered in the register of accredited bodies. Deputy Shatter put down an amendment in regard to section 5 on Committee Stage and I acknowledged the point he made, namely, that there is a risk that simply providing legal advice in regard to adoption may result in the commission of an offence. The same might apply in regard to transferring a child to the State which is not the intent of these provisions, as explained on Committee Stage.
The purpose of the amendment to section 5 is to make certain that perfectly legitimate activities are not caught by the definition, rendering those activities unlawful. The purpose of the amendment to section 147 is to clarify that only accredited bodies may make arrangements for the adoption of a child and that the courts shall have regard to the carrying out of those activities which are being deleted from section 5 and brought into section 147. These are the matters set out in sections 4 and 5 for the purpose of determining whether a person or body has contravened the Act by making arrangements for the adoption of a child.
Deputy Alan Shatter: I do not fully understand amendment No. 97 which relates to section 147 and deals with the prosecution of offences. Subsection 147(1) provides that an accredited body will be guilty of offences if it contravenes provisions under various sections of the Bill, while subsection (2) deals with further offences that a person may commit. I pointed out on Committee Stage that given the way the Bill is drafted, there may be a liability for anybody giving legal advice to a person seeking to find out the legal background position with a view to effecting an inter-country adoption. This means that a solicitor giving legal advice in good faith or an airline or travel agency that sells a ticket to a person intent on inter-country adoption could be prosecuted.
The Minister of State seems to have taken on board that the provisions in this area were poorly drafted and created various perils that should not exist. I am not really sure how amendment No. 97 works. I welcome the deletion of certain provisions, which clearly takes account of what was said on Committee Stage. However, amendment No. 97 is a strange provision, providing that in determining whether somebody can be prosecuted for a particular offence, the court shall have regard to a whole series of matters which appear no longer to make them liable to a criminal offence. I do not understand how that will work.
Deputy Barry Andrews: Amendment No. 97 refers to section 147, which states that in determining for the purposes of subsection (2) whether a person has contravened section 125, the court shall have regard to the matters set out in sections 4 and 5, and also to whether the person did any or all of the following, namely, prepared documentation to assist any prospective adopter habitually resident in the State, or provided assistance to any prospective adopter habitually resident in the State in relation to any legal matter. It determines some of the criteria that were raised as issues of concern. The purpose of the amendment is to clarify that only accredited bodies may make arrangement for the adoption of a child and to clarify that the court shall have regard to the carrying out of those activities which are being deleted in section 5 and brought into section 147.
Deputy Alan Shatter: Amendment No. 97 refers to the determination of the courts as to whether a person “provided assistance to any prospective adopter habitually resident in the State in relation to any legal matter that arose in the state of origin of the child concerned and relates to the effecting of the adoption in that state”. Does this not again suggest that if a person is effecting an adoption outside the State and he or she seeks legal assistance in regard to any matter relating to it, then the person who provides that legal assistance will be criminalised? I am sorry if I do not understand it but this provision seems merely to be inserting the existing provision in a different place. It does not specify that giving legal advice will not be an offence. Rather, it seems to suggest that in determining whether one is guilty of an offence or not, the courts will have regard to whether one was giving legal assistance. By implication, giving legal assistance is an offence or is not an offence; I do not know what the intent is but I can certainly see this provision producing substantial litigation if anybody is ever prosecuted under it.
We addressed this issue on Committee Stage. There is a definition of “father” in different places in the Bill but this section has a particularly odd definition, namely, that for the purposes of this Part, “”father”, in relation to a child, includes a person who believes himself to be the father of the child”. There could be three or four people all believing themselves to be the father of a child under this provision. The definition of “father” contained elsewhere in the legislation, which refers essentially to the biological father of the child, is an adequate definition for the purpose of the Bill. This is a bizarre, esoteric definition that is liable to give rise to all types of problems and difficulties and should be deleted.
Deputy Jan O’Sullivan: Several of these amendments are in my name. Amendment No. 17 proposes that the birth should be registered prior to placement for adoption. That is in some way a separate issue to that addressed in the other amendments which deal with the father. It is an extraordinary omission that the birth does not have to be registered before the placement for adoption. Deputy Shatter’s amendment seeks to address the definition in the Bill of “father” as a person who believes himself to be the father. What I am trying to achieve in my amendments is that the father’s name be registered.
The only time a father would not be registered is when the mother has completed a statutory declaration to the effect that the father is unknown, missing or cannot be traced. The related amendments also deal with this issue. I do not believe we should write out of history fathers of children who are being put up for adoption as if they do not matter because there are consequences to doing so. The consequences of this are that fathers believe they do not matter, as is the case in many other situations.
I have been a feminist for a long time and I believe in women’s rights. However, fathers’ rights are being consistently walked on in this State. This legislation virtually ignores the rights of the natural father. It states that a father can be consulted but that he does not have any real say whatsoever in his own child being put up for adoption, which I believe is wrong. In the same way as we look back now and wonder how 30 or 40 years ago we in this society allowed women to be walked on, we will look back in years to come and wonder how we ignored fatherhood or considered it to be unimportant. These amendments are about valuing fatherhood. While a father might not want to know or be interested in his child’s adoption, that fact should be at least recorded and considered to be important. Where a father wants to be involved, that, too, should be considered important. This should be facilitated in this legislation.
These amendments are about challenging the type of assumptions we make. I am often visited in my clinic by people who have written out fathers from the lives of their children. Often these are fathers who have fathered many children with different mothers. We are in this legislation seeking to be child centred. A child has a right to a natural father and natural mother. We will not achieve all of these cultural changes of which I speak in one piece of legislation. However, we need to acknowledge this issue in this legislation and to begin to redress the balance so that we consider fatherhood to be important, not alone well-heeled middle class educated fathers but all fathers. Unfortunately, this is not the reality.
I referred earlier to an article by Mr. John Waters in last week’s The Irish Times in which he describes a situation in which two people meet and discover they have the same natural father and the huge dilemmas this causes. The reality is that in Irish society this could happen relatively easily. While I accept this legislation will not address all of those issues, it needs to acknowledge that a natural father is not someone that can be ignored. As Deputy Shatter stated in regard to his amendment anybody can claim to be the natural father of a child and be given some kind of credence.
Deputy Barry Andrews: On the first amendment from Deputy Shatter to delete the words “a person who believes himself to be the father”, the section is designed to allow for a situation where a dispute arises in regard to paternity, which is not unusual in certain circumstances, so that every person who believes himself to be the father can involve himself in the process. On amendment No. 17, the Civil Registration Act requires the parents to give to the Registrar of Births the particulars of the birth and to sign the register of births not later than three months following the birth. The accredited bodies ensure as far as possible that the child’s birth is registered prior to adoption. It is an offence not to register the birth within the required timeframe.
In general, the Bill is designed to strengthen rather than weaken fathers’ rights. For the first time, the authority will be required to obtain the approval of the High Court before authorising an accredited body to place a child for adoption or to allow an adoption order without consulting the father. Similarly, where the mother states that she is unable to identify the child’s father, the High Court’s approval is required before the child is placed. This puts the father in a much stronger position than heretofore.
Section 30 provides that if the authority is satisfied that it would be inappropriate for the father to be consulted, the High Court’s approval is required before the adoption order can be made. These provisions are included in recognition of fathers’ rights in the adoption process. They reflect more recent judgments in the European Court of Human Rights and of the High Court on related issues.
Deputy Alan Shatter: Amendments Nos. 22, 23 and 24 which are being taken in conjunction with amendment No. 16 relate to a different issue in terms of the definition of father. The Minister appears to believe that in interposing the High Court into all of this he is giving additional protection to fathers. This legislation seeks to ensure, in compliance with our obligations under the European Convention on Human Rights and basic human values, that where fathers are involved with their children, they should be notified. Even where they are not involved with their children they should be notified and should be given an opportunity to be heard.
There are certain special circumstances — the Bill uses the words “exceptional circumstances”— where fathers may not be notified, for example, a biological father may not be notified where a child has been conceived as a consequence of rape. There may be other circumstances such as the whereabouts of the father not being known and as such he cannot be notified. I do not understand, in circumstances where we have had an adoption board for many years, a system that is entirely different from the United Kingdom and Northern Ireland systems, why, when we are to have an adoption authority dealing uniquely with adoption, we are superimposing the High Court into all of this in the manner the Minister now proposes through this legislation. I do not see this as providing additional protection for fathers’ rights. I believe it will prolong unnecessarily the process because the adoption authority, as a body with limited judicial functions, can address that issue quite properly. It appears to me that it will now have to deal with the issue on a preliminary basis following which the High Court will be asked to deal with it. I do not see the purpose in this duplication. At a time when we are trying to focus resources to the benefit of children in terms of protection and when the HSE is in large parts of the country incapable of processing adoption assessments within a reasonable period, we are going to divert public expenditure to create problems in a large number of cases in respect of which currently no High Court applications are required. Essentially, these will be family adoptions. In the majority of domestic adoptions, to which I made reference previously, we are not alone going to superimpose the High Court but the Chief State Solicitor’s Office, junior counsel and, possibly, senior counsel will be involved. This will create a money trail all the way to the Bar, the Law Library, for no reason. I do not say this to be in any way critical of anybody in the Bar. There are occasions when adoption matters do come before the courts. It is often necessary for them to come before the courts and they can be difficult, contentious and distressing.
This provision is bringing into the courts an area of adoption that has not up to now required the involvement of the court system. As I pointed out, 64% of adoptions that took place in 2008 were family adoptions and 79% of applications received in 2008 were in respect of family applicants. Those statistics involved families where, in all but three instances, it was the biological mother adopting with a husband. In the other three instances, it was the biological father adopting with a wife, the husband and wife in each example not being the biological parent.
In the context of many family adoptions, this provision will automatically create a trail of 50 or 100 cases being brought to the High Court. Based on the information available to him in the Adoption Board, has the Minister of State assessed, for example, that if this provision was in place in 2008, how many of the adoptions of this nature effected in 2008 would have first required an application to the High Court?
Deputy Jan O’Sullivan: I am not suggesting that a father has any particular rights in the case of rape or in the case where he went out of the mother’s life the day after conception. The balance of the rights in this section and in later sections, to which my further amendments relate, treat a child’s right to have a father as something trivial and that is not available to all children. That is fundamentally wrong. I am aware Deputy Lynch is neutral in this respect in the context of her role as Acting Chairman but she produced a Bill on a related matter.
I repeat my earlier point that in 20 years time we will probably look back and ask ourselves what were we doing when we ignored fatherhood to the extent that we have did in practices at this time . That is very much the case in this Bill. I would like the Minister of State to take this point seriously.
Having listened to Deputy Shatter and having regard to the issues we have been teasing out this afternoon and that we teased out in committee, this Bill on coming into law will have to be reviewed in the not too distant future to assess how it is working. There are a number of areas of serious concern that may well cause difficulty. I ask the Minister of State to consider that point. The first of my amendments in this grouping deals with the fact that a birth does not have to be registered in advance of adoption. Am I correct in that? If I am, that seems to be a serious omission in the Bill.
Deputy Barry Andrews: These matters are already before the court. What generally happens, as the Deputies will be aware, is that the father will have to seek an order quashing an adoption order to enable him to be properly consulted if the adoption authority has dispensed with the right of the father to be consulted, which is a rare enough occurrence. If we leave matters as they are under the old system an applicant would have to go to the High Court and an applicant might decide to challenge a case, say, two or three years following a step-parent adoption. It will be rare that this would happen, but is it not better to have these matters properly thrashed out at the earliest possible occasion? Is it not better to put the child at the centre of the issue?
Deputy Barry Andrews: There will not be that many of them. It is a fairly simple exercise for the authority to consider. In the vast majority of cases there will not be an issue. As long as we leave matters are they are under the old system, where a real substantive issue arises, it will be dealt with in a certain way, as occurred in a case of a man who was in jail for two or three years but he had known his children at a very early part of their lives and the adoption order has already been effected. If one were to put the child at the centre of that equation, one would say that the better solution would have been to require the Adoption Board to refer the matter to the High Court for the issue to be properly assessed as early as possible in the life of the child to ensure that the child’s best interests would be served in the process rather than any considerations about resource implications.
With regard to the point raised by Deputy O’Sullivan regarding a birth certificate, section 22 of the Civil Registration Act provides that the father of a child who was not married to the mother of the child at the date of his or her birth or at any time during the period of ten months before such birth shall not be required to give information about the birth. The registrar shall enter the father’s details in the register if the mother and father jointly request this or on the production to the registrar of a court order or statutory declaration naming the father of the child. No legal rights accrue to the father by being named in the birth certificate. The father has to apply for and be granted guardianship under the Act in order for his consent to an adoption to be required. We do not wish to do anything in this legislation that might discourage fathers from agreeing to their name being included on the child’s birth certificate.
The adoption authority will first have to be satisfied that because of the nature of the relationship between the father and the mother or the circumstances of the conception the father should not be contacted. Having made that decision, the adoption authority will then have to ask the High Court for a decision. On what basis will the High Court make its decision? There is little guidance in the section for the High Court. A notice cannot be served on the father to get his view on it because that defeats the purpose of it. What is the point in this duplicatory procedure? What will the High Court know that the adoption authority will not know? What mysterious information will suddenly descent on the lap of the High Court judge? The High Court will only know what the adoption authority knows. On what basis is the High Court to disagree with the adoption authority? If the mother were to swear an affidavit about something that occurred relating to the nature of her relationship with the father, would that be enough?  Is the biological mother to be put in the witness box? Is a mother who is stressed over the fact that she is placing a child for adoption — let us assume it is not a family adoption but a third party adoption — the mother who is stressed about the adoption can deal with an accredited agency informally, can fill out the forms correctly? Is that mother to be thrown by the High Court into the witness box? She will be told that if she wants her child adopted and if she does not want us to communicate with the father, even if the father raped her, she will have to go to the High Court and get into the witness box and explain that to the High Court judge. Why are we going to put biological mothers through that?
I very much appreciate and agree with the view of Deputy O'Sullivan that on occasions we have not properly respected fathers’ rights. However, this is not about respecting rights of fathers, this is about superimposing an additional court hearing that is not necessary, subjecting a biological mother to it in circumstances where we have not done so to date, adding nothing of value to the process because all the High Court will know is what the adoption authority knows. At least if the adoption authority is dealing with it, there will be some consistency, but with the High Court, there can be a revolving system with different judges sitting in the High Court every few weeks. A different judge may take a different view as to what circumstances are appropriate. How do we provide consistency? Is there any guarantee that there will be written published judgment about this so that one judge is guided by a decision made by a previous judge. All these cases will be heard in camera. What detailed types of hearings will take place? Will the High Court, for example, direct that if an application is made to it some lawyer should be appointed amicus curiae to the court to argue the opposite case as to the why the father should be told just so the judge hears a balanced argument?
I do not think this has been teased out. I am not saying this to be awkward. It will add stress to mothers placing children for adoption. In the context of family adoptions of the type I described, this will create difficulties. It will add unnecessary expense to the process. There will be a lack of consistency between different judges. The legislation does not even require that the decisions delivered of this nature are published and made available and that there is sufficient detail included in them to provide guidance to, for example, social workers working in the adoption area, lawyers advising in the adoption area, counsel dealing with cases and, more important, judges to ensure there is a consistency of approach. I believe bringing in the High Court in this respect is a serious error. I have tabled a series of amendments to take the High Court out of the process. I will say no more about it but I believe this is an issue that will come back to haunt this House in the future.
In the area of domestic adoption, of which there are far fewer instances now because of the numbers of adoptions that are, essentially, family adoptions of the type I described, there has been a considerable problem. There are cases where a mother has agreed to the placement of a child for adoption, the child is placed with prospective adopters at a very young age and starts to attach to the prospective adopters and becomes settled in their home and sometime after the placement the mother may change her mind.
I take the view that a mother must be given some opportunity to change her mind, having gone through the trauma of making decisions about giving up her child. The child may be given up by the mother who, within a few weeks, may regret deeply the decision she has made. Therefore, there must be some degree of flexibility.
However, if we are going to protect the welfare of children, children cannot become parcels transferred between natural mothers and prospective adopters. I have been aware of cases over the years, which, though a minority, where children have been placed for adoption for a number of months, the mother has changed her mind and the child comes back to the mother. The mother changed her mind again two or three months later and the child is again placed with the same adopters. We had a plethora of court cases running through the 1970s, 1980s and 1990s -the numbers are fewer since 2000 — where this has given rise to a problem.
I make a declaration of interest in that, as a lawyer, I have represented in the courts natural mothers on occasions and, on others, adopters in cases of this nature. One of the difficulties mothers have on occasion when they place their children for adoption is that, having made the decision finally, the issue revisits and haunts them. They are asked over and over again whether they agree or consent. We need a procedure that brings a closure to the process that is in the best interests of children.
I go back to the report published in 1984 in which this issue was addressed. The issue of children and attachment has been addressed in a number of very learned books, starting from that published by Bowlby. We now know a great deal about attachments. When a young child aged two or three months, younger in some instances, has been placed with adopters, by the time the child reaches 12 or 13 months very serious attachments have developed. If the child is taken out of that environment, not only can it cause short-term detrimental implications for its development, but it can create major long-term problems in the capacity of that child when an adult to form attachments and maintain them. A great deal of study has been done in this area.
In a nutshell, I propose that where a child has been placed for adoption, 12 months after the placement — it has to be a minimum of 12 months after the mother has agreed to place — that agreement should become irrevocable. The mother cannot simply decide she has changed her mind. That is to preserve the integrity of the placement in the best interests of the child, in circumstances in which the child has clearly attached to the adopters. It also gives a reasonable timeline for the mother, having agreed to her child being placed for adoption, to consider whether she really wants that adoption to go ahead.
I do not believe this should be an open-ended procedure. On some occasions, for reasons to do with social workers falling ill or communication failures between adoption agencies and the Adoption Board, it has taken between one to three years from the time when the child was placed with adopters for the adoption to be finalised. That is not in the best interests of children.
The other amendments I tabled are related. The first amendment deals with the issue of the agreement to place a child for adoption. The others — perhaps the Acting Chairman will remind me of their numbers so that I can find them.
Deputy Alan Shatter: The other amendments deal with the issue of consent. Our process of adoption is a two-prong one when it comes to domestic adoptions. The mother signs an agreement to place, the child is placed with the adopters and after a reasonable period of time has elapsed and all assessments as to how the child is getting on have been completed, the mother is then asked to sign what is termed the final consent. Even after the final consent is signed she can still change her mind but it is only after the final consent is signed that the Adoption Board make the adoption order. My proposal states that where there is a final consent, it may be withdrawn within four months of being given but it shall be irrevocable thereafter. There would not be an open-ended period.
The final consent comes after the agreement to place. I suspect, frankly, that if the Minister of State was willing to accept the amendment with regard to the agreement to place we might not need the second amendment. On the basis that he probably will not accept the first amendment, I tabled the second one in any case so that the consent issue and the entitlement to withdraw a consent already given are not open-ended. It must be borne in mind that by the time four months have passed after the so-called final consent, which is a euphemism because it is not final until the adoption order is made, a minimum period of at least 12 months and possibly two to three years will have elapsed since the agreement to place. Very often it is 18 months.
I suggest that we should not have open-ended agreements and consents, all of which can be revoked, regardless of the time that passes. One of the reasons that adoptions have been delayed on occasions has been simply because mothers have disappeared and consent has not been signed. That prolongs the issue of the agreement. If a mother disappears, she needs to know that after 12 months her agreement cannot be revoked.
Deputy Barry Andrews: I oppose the amendments on the basic principle that consent to adoption must be given freely. The period of 12 months selected by Deputy Shatter is absolutely right. It is a very long period in the life of an infant. As the Deputy noted, a great deal of work has been done on the issue of attachment to carers which occurs very quickly in the early years of life. Later on in life 12 months is not such a long period and when an adoption occurs at the age of five or six, 12 months might seem slightly capricious or arbitrary.
I made the point on Committee Stage and reiterate that if a child finds out later in life that the mother wanted the child back after 12 months, perhaps because there had been reasons of an episode of depression or infirmity of some sort that took her out of the picture, if she comes back and expresses a wish not to place the child after all, it would be very tough to explain that to a child in subsequent years. There could have been an episode of depression or infirmity of some sort that took the mother out of the picture. If she returns and expresses a wish not to place the child after all, it would be very tough to explain to a child in subsequent years.
The points Deputy Shatter makes are genuine and come from his experience in practice. He detailed problems in prolonged periods for different reasons, with consent being withdrawn. For example, he spoke about consent being withdrawn with the mother disappearing for a period or going overseas. It is for that reason that section 31 allows a scenario where a person with whom a child is placed for adoption can apply to court for an order dispensing with consent. That is trying to safeguard the issue raised by Deputy Shatter.
Equally, section 26 provides that the requirement for the mother or guardian consent to the making of an adoption order may be dispensed with in certain circumstances. However, the adoption authority must again obtain High Court approval before dispensing with such consent.
This inserts a provision for the rights of the child. Section 24(2) refers to the child but it only refers to those over seven years. I am attempting to include the voices of all children as appropriate. The amendment is self-explanatory.
Deputy Caoimhghín Ó Caoláin: I rise to support Deputy Jan O’Sullivan’s amendment. What she is proposing in this amendment is reflective of one of the core objectives of the children’s referendum committee with regard to the voice of children being heard and the right of the child to be heard. That is one of the central tenets of what we have agreed on an all-party basis should be reflected in the rights of the child from the constitutional amendment that we hope to have presented to the Irish electorate in the current year.
It is entirely appropriate and a requirement that this is reflected in the current legislation. Commensurate with age and ability to offer respective views, children should be given this opportunity and that is what we hope will be achieved in conjunction with other changes in the rights of the child that we wish to see achieved in the course of this year. I hope that as a staging post along the way to the presentation of the facilitating legislation, the Minister of State will accede to Deputy O’Sullivan’s proposition.
Deputy Barry Andrews: The Bill allows an exception for a child older than seven years to be adopted. The view and practice has been that a child under that age would not understand the concept of adoption and all flowing from it. A child may be adopted before the age of seven. Section 24 requires the authority to give consideration to both age and understanding to a child aged seven years or more, and age and maturity are used in international conventions. The use of the word “understanding” is consistent with section 24 of the Child Care Act 1991, which provides that in any proceedings relating to the care and protection of a child, a consideration having regard to age and understanding should be given to the wishes of the child. The Adoption Board has given its view on this and argues that the word “understanding” in section 24 should be retained.
With regard to those under seven, adoption is a profound concept. This is one of the youngest age groups in which to statutorily allow the child’s voice to be heard, and it is an appropriate age to ensure this happens in certain cases.
Deputy Jan O’Sullivan: I disagree with the Minister of State. I know many children under seven years who are well able to express their views and opinions, and who have a right in this fundamental adoption issue to have their voice heard. I do not know why the arbitrary age of seven has been identified in the legislation. Some children are more mature than others at that age but children tend to be well able to express themselves long before they reach that age.
We are at a very late stage in the Bill now for the Minister of State not to be of the mind to accept the amendment. We will not win a vote but this amendment would not cause much difficulty if accepted. Anybody would understand what we are trying to achieve and consider it appropriate. We cannot expect children to speak in sophisticated language but they can speak their mind. They have strong feelings. Certainly, any child in such a situation would have strong feelings on this matter. I ask the Minister of State to reconsider his decision not to accept the amendment.
Deputy Caoimhghín Ó Caoláin: The critical principle is that the child must be at the centre of consideration. For the life of me, I cannot understand why there would be any question as to the ability of children under seven years of age and certainly between the ages of five and seven years to express themselves and their views. This should be seen as part of the natural engagements that need to occur in association with the consideration of the child’s future. The notion that this could happen at a remove from the child or that the child would not be engaged with it in any way is incredible. I am a parent and do not need to remember too far back to when my children were pre-seven years old. I have an eight year old who could offer strong opinions. This is real.
We are making a mistake, in that we are failing to complement properly a stated objective of a committee that has deliberated for some considerable time. The right of the child to be heard is not prescriptively suggested by the children’s referendum committee to apply to those over seven years of age. As Deputy Jan O’Sullivan’s amendment suggests, the regard to the views of the child as appropriate to his or her age and understanding is crucial in the arrangements that would apply. The amendment is reasonable and would have a practical application. It would not only enrich, but improve the entire process. I strongly commend it to the Minister of State.
Deputy Barry Andrews: This section and the entirety of the legislation are governed by the principle of the best interests of the child. The welfare of the child should be the first and paramount consideration.
Unlike Deputy Ó Caoláin, I do not need to remember back. He is right about children having strong views at a young age, but I submit that sections 23 and 24 are read together. Section 24 provides an exception to the rule that a child must be not more than seven years of age to allow for adoption. In those circumstances, it is obligatory that consideration be given to the wishes of the child. Arguably, the amendment would allow for circumstances in which an eight, nine or ten year old might not be consulted because there would be greater vagueness in terms of the discretion of the authorities to consult. Section 24 makes the obligation mandatory in respect of all children over seven years of age.
According to the Minister of State, the Bill is about the best interests of the child, but adults can sometimes believe they are acting in those interests without listening to the child. If the child has something to say, his or her opinion should be a part of the consideration of what is in his or her best interests, which is the fundamental aim of this amendment. The more I listen to the Minister of State, the more I am convinced my amendment is necessary. Six year olds have a lot to say about what they think and feel about things. I do not see why there is a paternalistic view to the effect that, if a child is under seven years of age, he or she does not know what to think and that someone else should act in the child’s best interests without what the child has to say forming part of the judgment. I will be pressing the amendment.
My party and I feel strongly on this section and I will press the amendment to a vote. The matter is essentially that of post-adoption services, tracing and the rights of people who have been adopted to know about their backgrounds, to know they are adopted and to have their birth certificates stored and provided in the same way as every other citizen. It is about a statutory tracing system as opposed to the non-statutory system currently in place. We have argued this point in detail on Committee Stage, but the only argument the Minister of State has given us against supporting these amendments is that he intends to produce separate legislation to address the issues. I disagree with his decision.
The Bill before the House is substantial adoption legislation. The Bill implements the Hague Convention and adds it to the old adoption legislation that has been on the Statute Book for many years. The discussion around this Bill began in 2003, at which time there was widespread consultation. I have some of the papers from the Adoption Rights Alliance and other bodies with me. The minutes of meetings held at the time clearly indicate that the intention was to include this matter in the Bill, not to introduce separate legislation. I accept that the Minister for Finance, Deputy Brian Lenihan, and not the current Minister of State was in office at the time, but the former indicated the interests concerned during the consultation process that these issues would be addressed in this Bill. They are in despair because the provisions have not been included in this legislation and people do not believe the area will be dealt with in a reasonable timeframe. They believe they will need to wait for years more before this mechanism and its various elements are put in place.
People who are adopted need to have available to them as much information as possible. They need to be able to find out about themselves. We have heard of the various issues concerning medical records and so on, but this is fundamentally a human rights issue. People have a right to know about themselves and their backgrounds. Where the current tracing mechanism is concerned, issues like mutual consent by the natural mother and the person seeking to trace his or her origins have been teased out at length and all of the interests concerned have agreed on them. If the Minister of State included this provision in the Bill, he would not need to contend with any fundamental issues of disagreement.
My colleague, Deputy Burton, also wishes to address this issue. She has a great deal of experience in this regard, so I will not go on at length about it. That the area is dealt with is important. It can be dealt with by means of the fairly simple language of our proposed amendments. Long, detailed sections and subsections are not necessary. The Bill needs straightforward language to the effect that people have a right to post-adoption services, tracing mechanisms and the storing and accessibility of their birth certificates in the same way as is the case for every other citizen. I urge the Minister to accept the amendments that have been tabled on behalf of the Labour Party.
Deputy Caoimhghín Ó Caoláin: I am moving two of these amendments jointly with Deputy O’Sullivan, as well as the stand-alone amendment No. 87. I strongly support this group of amendments. It is essential that the adoption authority established by this Bill promotes the development of post-adoption services and that this is understood in the widest context. This is omitted under the functions of the authority as set out in section 96. The authority should be tasked with promoting the development of services to assist people who were adopted to trace their birth parents. It should also promote the development of services for people who placed children for adoption and who wish to trace them. These are the key post-adoption services and it is important that the responsibility in respect of the adoption authority is explicit in the Bill.
This is not just about everybody’s right to get an answer to the now popular question: “who do you think you are?” Yet that is also a very important part of why people feel strongly that they want to know the answer to such a question. I am sure it has crossed the minds of many people and not just those who have been placed for adoption. It also has other important features, such as the need that applies to me personally and to my family to know and to understand one’s family medical history. It is a very important area that people need and have a right to know when making all sorts of arrangements that affect their lives. One’s respective family medical history is a very important area to which every citizen should have an absolute entitlement. That facilitation needs to be provided as part of post-adoption services. It is not just about wanting to know who we may be, but also about having the critical information that can inform important decisions about ourselves and about future generations of the adopted person.
Deputy Joan Burton: I thank Deputy O’Sullivan for putting forward these amendments. They would provide a comprehensive structure in Ireland for the first time that would allow adopted people obtain information about their origins. Much of it is a desire for family medical information for themselves and for their children.
I am disappointed at the response of the Minister of State and his approach to this area. I expected him to be a person of greater courage than he has shown to date in respect of the arrangements on post-adoption services. There is a great deal of literature from around the world on post-adoption services, ranging from Australia and New Zealand to British Columbia and other areas, including the UK. In these countries and regions there has long been a structured system to provide post-adoption information and it has been the norm for a long time to give children access to that information and their original birth certificate, or details of that certificate, when they become adults. These arrangements have been studied and reported on for at least several decades. It is very clear what they show.
Many people who are adopted, especially women, want to get information about their background, their parentage and their medical history from the time they are older teenagers or young adults. This desire increases when they get married or enter into a long relationship and it increases even more when they become parents. These are the critical points in life where people want to get information about their backgrounds. Anyone who has been to school in the past 20 years will know from the UN Convention on the Rights of the Child that the right to information about one’s origins and medical history is part of a fundamental set of human rights. The Minister of State owes an explanation to this House on why Ireland continues to have a patriarchal, secretive approach to the fundamental rights of a particular group of people in Irish society. UN conventions and international best practice endorse that entitlement to the information.
Most girls who are adopted seek the information at some point. The evidence on adopted men is different. Many men do not want to have that information. International studies show that men tend to want that information somewhat later, if at all. It is the right of an adopted person to decide whether he or she wants the information.
We are looking for a solid foundation which was set out by the amendments put forward by Deputy O’Sullivan. They are not unduly prescriptive. They are extremely sensitive to the issues affecting all of the people in the adoption process. There are at least five people involved in the adoption process, namely, the birth parents, the adopted child and the adoptive parents. In my experience, the majority of adoptive parents, who love their children to such a degree that it may be difficult for natural parents, for whom parenthood may come much easier, to understand how terribly important their adopted children are, completely endorse their adopted children being given this information. The international evidence supports this.
It may have been done with their consent. I have helped many people. It was the custom in Ireland approximately 50 years ago that if a couple, particularly a couple from farming families, intended to get married but jumped the gun and had a baby before marriage that the baby, on the diktat of local clergy, do-gooders and busybodies, was given up for adoption because of what was deemed to be the shame associated with it. In many cases, that couple successfully went on to marry and have other children. One speaks to people in that situation — a child who has searched and to the parents who gave up a child — who only want reconnection to find out what happened to each other.
Nobody expects a fairy story with a happy ever after ending. A child is given up for adoption based on a decision made by a birth mother; she may have been badly advised on it but she has made the decision. The adopted child moves on to another life, usually with very loving adoptive parents. What we want in this legislation is recognition that this society has come of age and that like other societies we can deal with the complexities and the human intensity of this issue for all of the parties to it. I have been helped by people in a number of the organisations referred to, including the Adopted People’s Association and the Adoption Rights Alliance and they all have one message for the Government.
We are having this debate in the context of the Ryan and Murphy reports. We must remember that adoption here was almost exclusively designed by and dictated by the Catholic Church, and by the Church of Ireland in the case of people who were Protestant. The churches had a somewhat negative approach to adoption. If one reads the Oireachtas debates at the time of the Adoption Act, the big issue was whether a child would be placed in a home of the birth mother’s faith or would he or she be potentially lost to the Catholic Church. Various Senators spoke about the fear of strangers going into a house. We have moved on so far from that, and the Bill and statements made by the Minister of State recognise that.
This is the last step the Minister of State has to make. In the late life of the Government — we are more than three years into its term of office — there is no way, even if the Minister of State laid siege to the Cabinet room, that he will produce another Bill that will deal with adoption in the lifetime of the 30th Dáil. I can tell him about legislation that is waiting seven years in the queue. If he thinks his Cabinet colleagues will give him another Bill in the maximum two years left in the life of this Dáil he is wrong.
I ask the Minister of State to be courageous and to go with it. I can tell him what the experience is like and I am sure others have told him. I am one of those people and I went in to the offices when I was in my twenties. I went in when I was getting married to ask whether a letter could go to my birth family just to say that I was getting married, that I was alive and that I was all right. The answer was “No”.
The very simple position of the traditional adoption societies of all faiths was to tell one to be happy, that one was adopted, that one had two arms and legs and what more did one want. The answer is that people want to know. That may seem unreasonable to the people in the Department of Justice and Law Reform who ran the Adoption Board, to social workers who think they know better than people who have been adopted and, in particular, to the religious orders who still have issues with adoption arising from their role in dealing with children who in various ways ended up in institutions. For the most part, people allowed to trace their relatives find that it gives them the information they require. In a percentage of cases very good connections are built up with birth families. In other cases the contact does not really work out and it is informational only. That is life; there is no guarantee of a happy ever after.
I do not generally speak about this in the House but I have listened with increasing concern for the people who contact me. A woman contacted me last week and commented that I had been through it. She has been diagnosed with a particular condition and she wants to know whether it is hereditary and whether other members of her birth family have suffered from it so that she can be helped with the difficulties she faces. Under this rule and the lack of action in the Bill, it is not possible for her to proceed because although she has some contact with the birth family there is no mechanism by which to reach a conclusion.
I plead with the Minister of State to take his courage in his hands and address this issue. Other countries with an English legal tradition have done this very successfully for decades. People who are adopted are realistic and do not expect a magic wand solution. It is so important for children who have been adopted in recent years from overseas countries that there is absolutely full commitment, as there is in most modern adoption arrangements, to continuing reports and feedback on how the child is doing. In open adoption there are very good arrangements for periodic contact and information sharing between the adopting family and the original birth mother and that is as it should be. The people involved in adoption administration in Ireland, with the number of overseas adoptions in this country over the past 20 years, are perfectly familiar with these arrangements and they know how good arrangements can work very well to the benefit of everybody involved in adoption, namely the child, the adoptive parents and the birth parents.
Until relatively recently it was always nuns who decided that children could not have information. It is a product of the era of secrecy that arose through the Catholic Church’s control of institutions and the adoption process. We have much information from birth mothers who say their consent was not fully given and that they, if approached now, would wish to have contact and information about their birth children. We have good models from many countries of how that can be managed and it is at the choice of the various individuals. I have had nuns tell me, with regard to my situation and with regard to people I helped and advised, that they gave solemn oaths to mothers giving up their children. I do not know whether they really did give solemn oaths; maybe that is what many of those nuns were made to believe, and in their time they believed it was the best thing for the children, but it is not appropriate now. The Minister of State has it within his power to address this issue.
The biggest problem in Ireland now is that we have more than 5,000 children in foster care. Modern adoption is infinitely better than it was and because we have quasi open adoption there is a huge amount of information. However, there is a backlog of 40,000 to 50,000 people and their parents, although many parents are now dead, and extended families who want information. I have told the Minister of State previously that the voluntary contact register established some years ago at God only knows what cost was effectively useless. Everybody in the country was written to and 10,000 or 12,000 people made contact with it. That money was spent because it was available at the time.
I plead with the Minister of State to address this issue now. The business of lack of post-adoption contact in Ireland belongs to our secret past. It is not about privacy; everybody has a right to privacy and to structures around privacy.
There is a difference for many people who are adopted when it come to secrecy about some of the information that is vital to their social and health well-being. That is the net issue. The Minister of State should take courage from the countries where this has been handled successfully. We have more than two or three decades of experience of that.
The Minister should have a look at Mike Leigh’s film “Secrets and Lies”, which is probably the best film ever made about adoption and the most famous work on the subject. It will tell him what it is like. It is like life itself. It is good and bad, but that is how people live life. They do things, they want to find out things and they want to express themselves as human beings. The amendments tabled by Deputy O’Sullivan give that opportunity. It is then up to the Minister of State’s Department to have appropriate regulations and structures.
This is long past being done in this country. I am shocked that the Minister of State has not reached to do this now, because if he is telling us he will draft a Bill in a short period of time he should forget it. That is dishonest. We are now three years into this Dáil and there is no way the Minister of State will get Government time for another Bill on adoption.
Deputy Alan Shatter: I support the amendments. We are revisiting, yet again, an issue we discussed on Committee Stage. In the context of the amendment, greater detail was needed to establish the type of structure we need. The difficulty I had in drafting it was that it was going to be ruled out of order as imposing an expense on the Exchequer. I hoped that after Committee Stage — I suppose it was a vague hope — the Minister would come back with amendments on this issue. Really, the speakers who have spoken already have well put the position. This is something which has been promised for years. The Minister, Deputy Brian Lenihan, went through a consultative process on this as Minister of State at the Department of Health and Children. The consultation seems to have lead us all up a cul-de-sac with no result.
I do not take seriously the Minister of State’s promise that we will see legislation during the lifetime of this Government on this issue. There has been a decade now of promises. There is a whole backlog of legislation on the children’s brief. The Minister of State does not have a hope in hell of producing legislation this side of next Christmas on the vetting issue to allow for the use of soft information. I hope I am proved wrong; I would be delighted to be proved wrong. However, the Joint Committee recommended that be published by December 2008 and here we are in June 2010 and we do not have it.
We were to have legislation to give statutory effect to the child protection guidelines. The Minister promised we will see that Bill before the end of this year. The reality is there is no chance of legislation on this issue. What I do not understand, and I am sorry to repeat a constant critique of this Bill, is why major issues that have been the subject of substantial reforming recommendations over the years and pleas from the Adoption Board that they be addressed are being entirely ignored in a Bill which is consolidating legislation and, in some places, retaining in force outdated, anachronistic provisions which go back to 1952.
I want to put something on the Dáil record because I think it is informative. I suppose the group of experts at the coalface, who are neither adopters nor adoptees, dealing with adoption all of the time is the Adoption Board. Its annual report addresses this issue. Mr. John Collins is the chief executive officer. In page 12 of the report it states:
This is a statutory body, established by the Government to make adoption orders and deal with our adoption service within the limits of existing legislation who said, not just in 2008, but in earlier years as well that there was a necessity for a statutory framework to facilitate adopted persons and the biological parents of adopted persons to trace each other.
Why would a Government produce an Adoption Bill that has within it 176 sections and entirely ignore that issue and re-enact legislation which is grossly inadequate and goes back to 1952? I just do not understand why; I do not take seriously the constant promises of reform. This is not rocket science. This is an area which has been addressed right across the world and in our neighbouring countries.
I hope people will not accuse me of being indulgent if I quote from the fourth edition of Shatter’s Family Law published too long ago now, 11 years ago. It deals with this issue and referred to a particular thing. It states:
This is not rocket science. This has been addressed in all our neighbouring jurisdictions. Someone who was adopted across the Border in Northern Ireland has substantially greater rights than one has in this State.
I do not believe we comply with Article 8 of the Convention which we should comply with. I find it beyond comprehension that this issue is not being addressed. Other Deputies have referred to all of the reasons it should be addressed. It is not just the issue of tracing origins or facilitating people making contact with each other. There is the whole issue of preserving records, an issue which should have been better dealt with in this legislation. There is the whole issue of getting health histories. There is a broad range of issues that this Bill utterly fails to address that it should have addressed. There is no excuse for it.
Quite simply, for whatever reason, this Government and its predecessor decided that this was an issue which was too hot to handle. They feared controversy and difficulty. I accept there are two different groups of people involved in this and we have to be realistic. There are biological parents, primarily mothers, to whom promises of privacy were made in a different era. There are adopted people who want to know about their origins. We know much more today about the importance of people knowing their origins, accessing medical information and knowing the implications of that for them for the future but the State cannot stand on the sidelines and be paralysed and do nothing.
What is even more extraordinary is that, whatever the difficulties of dealing with it historically, the legislation does not even deal with it prospectively. This is an amendment that we will come to that I have tabled on behalf of Fine Gael. Why does the legislation not expressly contain a provision which says anyone who is adopted in Ireland and who is the subject of a domestic adoption from the date of commencement of this legislation will at the age of 18 have an absolute right of access to his or her birth certificate? That will not create difficulties with the court judgment that was delivered because it means any person who places a child for domestic adoption or consents to the making of an adoption order will be informed that his or her child will gain access to an adoption certificate at the age of 18. There will be no conflict of interest and the privacy issue will not arise. A balancing exercise will not be needed.
In this day and age we have to recognise the vital interest that adopted people have in gaining access to information that could in some cases mean the difference between life and death. Why does the legislation fail to deal adequately with the maintenance by accredited bodies of the health records of both biological parents in so far as that information can be gleaned and is available? Instead of enacting a modern code of adoption, we are consolidating anachronistic legislation based on a value system from a bygone age which utterly failed to address the real problems we have been discussing for more than a decade.
Deputy Kathleen Lynch: I do not for one minute believe the Minister of State or his officials are deliberately setting out to be obstructive or heartless. They are people who live much the same lives as the rest of us. This is why I am puzzled about what is left out of the Bill before us.
I cannot understand why we are not dealing with the issues of tracing and medical records. If we want to buy a mobile telephone, we are asked for a medical history. Before we can open a bank account or get a loan from a credit union, we are asked about our history of heart attacks, epilepsy or diabetes and, if our parents are dead, what caused their deaths. Why is this not the case for a child who is adopted? All that is needed is the history and we would not even need to share names. People are driven by the desperate need to know where they came from, their family histories and their genetic predisposition.
The Minister of State should reconsider this section. If he thought about it for any length of time he would realise that the bogey men who scared us in our youth no longer exist. The church no longer plays a dominant role in adoption or in other areas of our lives. I have yet to meet a person, whether adoptive parent or adopted child, who would object to this provision. Will the Minister of State explain why he is rejecting these amendments? Where is the obstacle and who is objecting?
This evening, I spoke to a group of ten women from Cork who have been following the debate on the Bill from the Visitors’ Gallery. They thought the arguments were very clear and understandable. One of the women, who was in her 50s, told me separately about the difficulties she faced in getting information on her adoptive parents. She named the adoption agency involved — given that she is from Cork it would not be difficult to identify it — and told me that she fought unsuccessfully for years to retrieve the information she needed. Who does not want that woman to know where she came from or what happened to her parents? I am sure her parents and their family are long past caring at this stage. The adoption agency in question no longer exists. Clearly somebody is making the argument that people should not have information that is critical to their well-being. As Deputy Burton correctly noted, there is no way separate legislation will be introduced before the Government falls.
The last occasion this Bill was debated, I sat down with a group of people in the restaurant to discuss open adoptions, transparency and traceability of medical records. Of the five people sitting at the table, one was adopted and another was married to an adopted man. This is not a small issue or one which affects only a few people. The two people in question saw no difficulty with providing medical records. Why should they not have this information?
We could put safeguards in place. If an adopted child who turns 18 decides to trace his or her parents but the parent does not wish to make contact, protections can be given. However, the option should remain open because someone may have an entirely different view of the world at the age of 18 or 23.
What organisation or individual is preventing this from happening? I do not believe the Minister of State or his officials woke up one morning and decided they would not allow this to happen. Somebody made a cogent argument against this proposal and the Minister of State needs to tell us who it was. It is interesting that seven years will be the age at which a child’s opinion about who he or she wants to live with will be respected.
I urge the Minister of State to reconsider. Usually when we ask Ministers to amend legislation, we urge them to be brave but this matter does not even require bravery. It is a question of saying that we need to grow up and act like adults. Adoption is not the secret that it used to be. It is evident in today’s Ireland who is adopted because usually foreign adoptions are involved. Domestic adoptions have become very rare. People are open about fertility treatment and adopting. Whose secret is the Minister of State keeping? Who argued against allowing people, even those in their 50s, to know who they are? I ask the Minister of State to reconsider his position on this issue. It is not a case of showing bravery but one of growing up, being adult and allowing people to find out what they need to know without having to go through the awful trauma of constantly being pushed back by the organisations that have control of the information. Those days are long gone.
Deputy Barry Andrews: I am pleased to address this matter, having given it serious consideration in the course of my work on the Bill. This issue has been used to characterise me as not having guts. Every Deputy in the House has beaten a path to my door to raise the issue of inter-country adoption and allowing adoptions from Vietnam to proceed in the face of evidence that it would not be in the best interests of children to do so. Despite complaints from constituents, I took a child centred decision to suspend the operation of an agreement about which a doubt had arisen. Some of the same Deputies are now arguing in this Chamber that the issue must be considered from the other side.
There are two dimensions to this issue. In the past, our actions were governed by the stigma associated with births outside marriage and single parenthood. Having moved on from that position, we must reflect this in legislation and I have given a commitment to do so to the best extent possible.
I reject the view that the Government has not done anything since 2003. While I do not recall the precise circumstances, a Bill introduced in 2003 was rejected out of hand by all interests in this area because it proposed to criminalise anyone who sought to breach privacy in circumstances in which a natural parent did not wish to be contacted. Since then the national contact preference register has been established. Fewer than 10,000 people have applied to the register. While Deputy Burton described the register as next to useless, I am informed that the rate of matches is not dissimilar to the rates one finds in other jurisdictions, although I stand open to correction on that.
In 2007, a framework was established for the national information and tracing service. The framework was piloted throughout 2008 and as recently as last year, information about how it was working was still being gleaned. If we are to move to statutory provision in this area, surely we must have proper information about how the contact register and information and tracing service are working with respect to all the agencies that are supposed to take advantage of it in dealing with applications for tracing. As recently as last year, studies on the service were being completed but we have the information we need at this point.
One area about which we need a little more information — I referred to this matter in committee — is tracing in the context of inter-country adoption. The first inter-country adoptions were from Romania. Many of the children adopted at that time are coming of age and are interested in tracing.
We cannot ignore the 1998 Supreme Court judgment to which Deputy Shatter referred. The judgment sought to balance the right to privacy against the right of an individual to know who his or her parents were. I remember one of the judges stated that there could not be a clearer example of a case on which the right to privacy had to be adjudicated and balanced against other rights, in this case the right of a person to know his or her natural parent. The case in question was a non-1952 adoption, an illegal adoption if one likes, and the Supreme Court ruled that the right to privacy had to be protected. In the opinion of most commentators, a 1952 type adoption would attract even greater protection because such adoptions were completed in the manner in which we have understood adoption in this country for many years, namely, as clean break adoptions.
A comparison has been made with the United Kingdom. As Deputy Shatter noted, the UK does not share our tradition of clean break adoption and has always considered adoption in a different light. As far back as 1975, the UK Children Act allowed for contact orders in relation to natural parents. This provided for an open adoption situation, which could be preordained and governed by counselling in advance in order that applicants understood the consequences of meeting natural parents before a contact order could be made. The difference between Ireland and the United Kingdom is that we never had an open adoption system. The Supreme Court has given its judgment on how it balances constitutional rights in this area and we must respect its ruling. We cannot legislate outside the Constitution. The parameters have been set down by judges of the Supreme Court in this case.
Deputy Barry Andrews: My point is that considerable work has been done on this type of legislation. That such legislation was introduced underlines my point that it was always our intention to introduce a separate Bill. The legislation before us consolidates existing adoption legislation and transposes into Irish law the Hague Convention.
On obtaining birth certificates, the Adoption Board’s annual report for 2005 indicated that 95% of applications for birth certificates were granted by the board. In the case of the most recent annual report for 2008, although not all applications for birth certificates submitted in 2008 had been processed by the time the annual report was made, as far as I recall from examining the matter a couple of weeks ago, only two of approximately 100 applications were rejected in that year. We must be careful in this respect given that birth certificates are provided in the vast majority of cases. The Adoption Board can judge whether to proceed on the basis of the criteria set down by the Supreme Court in the 1998 case, which was an assessment and balancing of constitutional rights. The only way to circumvent the court’s judgment is by way of a referendum. To go beyond the parameters of the 1998 interpretation would require more than legislation.
On medical records, while I stand to be corrected on this issue, I have never seen a form which asks for details of family medical history, in other words, the medical history of one’s parents. I have filled out many forms which asked whether I have this, that or the other condition.
I restate my commitment to legislate in this area. With two years remaining in the life of the Government, it is pessimistic to suggest that legislation could not be completed before the end of this term.
I have received e-mails from individuals who have been adopted. Deputy Burton is correct as I have also noticed that it is primarily females who wish to look behind the privacy issue. In the e-mails I have received from males, the correspondents are not interested in doing this as they wish to protect their relationship with their adopted parent or parents and believe it would somehow be a breach of trust to look into the issue further. They do not want to know their natural parent. We must respect that this group of people are silent because of the nature of what they wish to have protected.
Deputy Barry Andrews: The Deputy is absolutely correct. We want to introduce legislation to allow people to obtain the most information possible while respecting the limits set down by the Supreme Court in this area. I have met representatives of many groups, including the groups to which Deputy Burton referred. They are looking for very basic information. It does not even need to be identifying information. It is information such as the relationship the mother had with the father, how long the relationship continued and where he went. It is basic information that gives a family history to allow someone to flesh out some questions. It does not need to be identifying information. This kind of basic information is what is sought as a minimum. Very few people want to knock on the door of somebody who does not wish to be met. I have never really come across that inclination. I am determined to respect that in legislation. Work has been done on it before in respect of the 2003 Bill as far as I know.
The amendments before us at the moment relate to post-adoption services. Much later we are supposed to deal with the tracing elements, including amendment No. 77 and others. I want to address my comments to the amendments before us which relate to post-adoption services, which is quite different. Post-adoption services are listed in Article 8.9 of the Hague Convention as being one of the matters the central authority has a duty to provide for. Section 9 of the Bill confirms that the Hague Convention has the force of law in the State. The central authority, the adoption authority, will have the function to ensure the promotion of post-adoption services.
At the moment the HSE has a service level agreement with Barnardos on the provision of post-adoption services. As I said in committee, the general services available to any child here are available to adopted people in the same way. Just as children with Asperger’s syndrome or autism should not get ahead in the queue because of categorisation, in this case the access to services should be based on need. We could have another debate about availability of services for children who need speech and language therapies who have attachment difficulties and have all sorts of other problems. However, to favour one group over another would defeat the general principle that the best interest of the child should govern that issue.
Deputy Jan O’Sullivan: I am bewildered by that answer which does not provide clarification, particularly the last point. Let me first deal with a factual point. Amendment No. 86 is in this group of amendments. That amendment states:
We are not saying that any of this is compulsory. We are saying we want to enable people who want to trace and enable people who have been adopted to get the information they seek. It is not just adopted persons or natural parents who have approached us on these issues. Barnardos, the Council for Irish Adoption Agencies, the Children’s Rights Alliance and the Ombudsman for Children have all argued for the right to information and tracing. There is wide acceptance that we need to provide for this right. I know the Minister of State argues that he wants to introduce separate legislation. What Deputy Burton has said is true. There is no way that will be achieved within the next two years of the life of the Government. I was first elected to this House in 1998 and at that stage there was an intention to introduce legislation on the exchange of soft information where children were considered to be at risk. That legislation is still on the list of promised legislation. With the best will in the world, I do not believe the Minister of State will get these provisions into law unless he accepts the amendments presented today. The amendments are presented in a way that avoids being prescriptive about the mechanisms that need to be used in this regard. They are very general enabling provisions. I cannot see any reason for the Minister of State not to accept them.
We live in a very different time from the time when women were put into Magdalene Laundries in order not to cause scandal. We locked away people who got pregnant out of wedlock. We live in a very different world. If the Minister of State can provide for what we request he will find that practically nobody would feel he was doing something wrong.
Deputy Caoimhghín Ó Caoláin: I again appeal to the Minister of State to look on these amendments favourably. For a significant body of people these represent some of the most important issues for them at this point in their lives. In trying to understand where other people are coming from we sometimes need to pause for a moment and imagine ourselves in their shoes, and try to understand that very strong inner need to know just who we are. That is not a major difficulty for anybody here to try to understand. I do not believe that I, the Minister of State or anybody else here could go through life knowing that he or she was adopted without wanting to know who he or she was.
I refer to the issues of knowledge vis-à-vis health. There is a footprint in the sand of time in terms of our people on this island, the neighbouring island and across parts of Europe that tells us much about who we are and from where we have come. There are significant high incidences of various conditions in the Irish physical make-up, including presentations of haemochromatosis and coeliac disease. These are markers in time that many of our people have inherited and would not understand why they feel so fatigued and have such great difficulty in digesting certain prepared foods. All of these matters are critical, including information on who a person is, who his or her parents were, what they experienced and know to have occurred in their respective families, and are very likely to form part of what that person is. These are important issues for people today.
It is therefore very important for us to recognise that this is not just a need, as I indicated earlier, but a right that should be included in this instance. Just as I argued in an earlier amendment about children’s voices being heard, for people with this strong and very understandable need, it is their right. I warrant that this legislation is the last chance the Minister of State will have as Minister of State with responsibility for children and youth affairs. It is most unlikely that after the next general election he will still be in that position regardless of the make-up of Government here. We do not see people continuing in their respective portfolios, even if it were the electorate’s choice to allow them all to continue — pray God they do not. However, that is a different issue.
Deputy Caoimhghín Ó Caoláin: The Minister of State is wrong in suggesting that he intends to introduce further legislation to address this need. This is his only opportunity and we want to support him. We ask him to accept the amendments and ensure this understandable need is affirmed in legislation as a right.
Deputy Alan Shatter: I accept the futility of continuing with this discussion. Although I do not think we will ever see an additional Bill, will the Minister of State let us know the timeframe for producing it? Will we see it next October or December or what priority has it in comparison to the other legislation we expect on the important issues of vetting and child protection guidelines? Can he give us a timeline for the legislation?
I would like to raise another issue that is relevant to post placement services. Couples who have declarations of suitability who want to adopt in Russia have experienced difficulty because the Russian authorities have indicated they are closing down adoptions in Russia by prospective Irish adopters because of the failure to furnish the Russian authorities with post adoption reports on how children have been getting on with their new families. Some of the problems and delays in this regard related to the HSE because it did not have a statutory obligation to provide these reports. There have been reports that the Russian authorities were preventing adoptions by other countries as well, including the United States, but that has been contradicted. It seems we are the country in difficulty. Many prospective adopters who hoped to adopt in Russia have had an obstacle placed in their way. There should be a statutory obligation to provide this post adoption service. In the context of dealing with post adoption services, will the Minister of State update the House as to what contact he has had with the Russian authorities and when he thinks individuals and couples who have been deemed suitable for intercountry adoption and who aspire to adopt in Russia will be allowed to proceed with such adoptions?
Deputy Joan Burton: Does the Minister of State realise how offensive and devastating his remarks and response are? He is defensive of his and the Government’s position, but he ought to have regard to the people and families involved in adoption — the individual person, birth parents, birth siblings, with whom adopted children could build up a good relationship if they could make contact with them, and their adoptive families who love them to bits and fully support their search for information. We have made it clear that we are not being prescriptive but providing this as an option. We seek to provide an enabling function. I just cannot understand what it is the Minister of State has to fear.
The people who set up adoption here set it up in the context of a confessional State controlled by the churches, where being adopted was a sign that the person had been born out of wedlock and was a lesser person than others. That is not the case now. It never was the case. Deputy Andrews, as Minister with responsibility for children, should be here to vindicate rather than frustrate the rights of people who have been adopted and the people involved in the complexity of adoptions.
On the issue of medical histories, I do not know what hospitals the Minister of State has visited or where he has had his pulse taken and although he has never had a baby, his wife had children and he is a parent. I would like to remind him of some of the questions that are put to people attending hospital. If they have children, they are asked about their previous medical history. If someone suffers from epilepsy, it is important to know the family medical history to access information on prognosis, outcome and treatment. It is important to have access to the medical history if someone is bipolar. When dealing with diabetes, hypertension or heart conditions it is very important as part of modern medicine to have access to the medical history, as in terms of prevention, these conditions are all very much influenced by the family history. I do not know what hospitals or clinics the Minister of State attends, but medical history is a core part of modern medicine and is an important issue for people who are adopted and their children.
I am utterly disappointed with the Minister of State’s response. Is he still trying to protect the Catholic Church? Is he still trying to protect the adoption agencies that owned the children who were given up and which still want to continue their control over people’s lives, long after many of the people who made these arrangements have gone to their graves? Practice has changed everywhere else in the world. Why is the Minister of State standing against reasonable change?
Deputy Barry Andrews: To clarify what I said on the issue of family history, I was responding to a contention made by Deputy Kathleen Lynch that insurance forms, or something of that nature, required these histories. I am well aware family histories are needed in medical situations. Where medical information is sought, the Adoption Board has informed me that it deals with those issues as humanely as possible.
Deputy Barry Andrews: I will give heed to the Deputy’s information. I am sorry if I seemed overly defensive, but I am being portrayed in a certain light in this Chamber. I am entitled to defend myself. I am absolutely sympathetic to the points being made so articulately by Deputy Burton and have no argument with what she has said. I want to proceed on the legislation in question as soon as we are finished with the Adoption Bill, which was designed to deal with the question of the consolidation of the old legislation and the Hague Convention. I propose to move on the issues and Deputy Shatter asked when that would happen. I will begin straight after completion of this Bill, but I cannot give a categorical date for when the new legislation will be completed. It is overly pessimistic to suggest that if there is an election in two years, it will not be completed by then.
On the question of adoptions from Russia, I met Russian authorities in my office about three weeks ago and discussed what was required. Every effort is being made to ensure that post placement reports are provided by every couple who signed affidavits to say they would provide them. I have made announcements in that regard and the HSE and Adoption Board are working hard to try to secure them. The Russian authorities, that is the embassy officials here in Dublin, are anxious to sort the problem out and we will continue to work with them to achieve that.
|Allen, Bernard.||Barrett, Seán.|
|Behan, Joe.||Breen, Pat.|
|Broughan, Thomas P.||Bruton, Richard.|
|Burke, Ulick.||Burton, Joan.|
|Byrne, Catherine.||Connaughton, Paul.|
|Coonan, Noel J.||Coveney, Simon.|
|Crawford, Seymour.||Creed, Michael.|
|Creighton, Lucinda.||D’Arcy, Michael.|
|Deasy, John.||Deenihan, Jimmy.|
|Doyle, Andrew.||Durkan, Bernard J.|
|English, Damien.||Enright, Olwyn.|
|Feighan, Frank.||Ferris, Martin.|
|Flanagan, Charles.||Flanagan, Terence.|
|Gilmore, Eamon.||Hayes, Brian.|
|Hayes, Tom.||Higgins, Michael D.|
|Howlin, Brendan.||Kehoe, Paul.|
|Kenny, Enda.||Lynch, Kathleen.|
|McCormack, Pádraic.||McEntee, Shane.|
|McGinley, Dinny.||McGrath, Finian.|
|McManus, Liz.||Mitchell, Olivia.|
|Morgan, Arthur.||Naughten, Denis.|
|Neville, Dan.||Noonan, Michael.|
|Ó Caoláin, Caoimhghín.||Ó Snodaigh, Aengus.|
|O’Donnell, Kieran.||O’Dowd, Fergus.|
|O’Keeffe, Jim.||O’Shea, Brian.|
|O’Sullivan, Jan.||Penrose, Willie.|
|Quinn, Ruairí.||Rabbitte, Pat.|
|Reilly, James.||Ring, Michael.|
|Shatter, Alan.||Sheahan, Tom.|
|Sheehan, P.J.||Sherlock, Seán.|
|Shortall, Róisín.||Stagg, Emmet.|
|Stanton, David.||Timmins, Billy.|
|Tuffy, Joanna.||Upton, Mary.|
|Ahern, Bertie.||Ahern, Dermot.|
|Ahern, Michael.||Ahern, Noel.|
|Andrews, Barry.||Andrews, Chris.|
|Aylward, Bobby.||Blaney, Niall.|
|Brady, Áine.||Brady, Cyprian.|
|Brady, Johnny.||Browne, John.|
|Byrne, Thomas.||Calleary, Dara.|
|Carey, Pat.||Collins, Niall.|
|Conlon, Margaret.||Connick, Seán.|
|Coughlan, Mary.||Cregan, John.|
|Cuffe, Ciarán.||Curran, John.|
|Dempsey, Noel.||Dooley, Timmy.|
|Fahey, Frank.||Finneran, Michael.|
|Fitzpatrick, Michael.||Fleming, Seán.|
|Flynn, Beverley.||Gogarty, Paul.|
|Gormley, John.||Grealish, Noel.|
|Harney, Mary.||Healy-Rae, Jackie.|
|Hoctor, Máire.||Kelleher, Billy.|
|Kelly, Peter.||Kenneally, Brendan.|
|Kennedy, Michael.||Killeen, Tony.|
|Kitt, Tom.||Lenihan, Brian.|
|Lenihan, Conor.||Lowry, Michael.|
|McDaid, James.||McEllistrim, Thomas.|
|McGrath, Mattie.||McGrath, Michael.|
|McGuinness, John.||Martin, Micheál.|
|Moloney, John.||Moynihan, Michael.|
|Mulcahy, Michael.||Nolan, M.J.|
|Ó Cuív, Éamon.||Ó Fearghaíl, Seán.|
|O’Brien, Darragh.||O’Connor, Charlie.|
|O’Dea, Willie.||O’Donoghue, John.|
|O’Flynn, Noel.||O’Hanlon, Rory.|
|O’Keeffe, Batt.||O’Keeffe, Edward.|
|O’Rourke, Mary.||O’Sullivan, Christy.|
|Power, Peter.||Power, Seán.|
|Roche, Dick.||Ryan, Eamon.|
|Sargent, Trevor.||Scanlon, Eamon.|
|Smith, Brendan.||Treacy, Noel.|
|Wallace, Mary.||White, Mary Alexandra.|
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