Wednesday, 30 April 1997
Seanad Éireann Debate
I tabled this amendment because when we deal with the subject of adoption, we refer to the need for confidentiality. Allowing somebody who believes himself to be the father the right to enter into negotiations with the Adoption Board is not in keeping with what continues to be the experience of those who have been adopted. It is contradictory that those who are adopted are not allowed access to basic information while in this instance a man who believes himself to be the natural father of a child should be allowed enter into negotiations regarding the welfare of the child and, ultimately, the guardianship of that child.
Section 4 states “The father of a child may, by notice to the Board, advise the Board of his wish to be consulted in relation to—”. Why do we specify the father and not somebody who believes himself to be the father? Section 3, however, on rules states that the Principal Act is amended — to take account of the Keegan case — and refers to “the consultation that is required by this Act to be carried out with the father or the person who believes himself to be the father”. Before consultation is entered into with the Adoption Board, the man concerned should prove he is the parent of the child. Negotiations should only be entered into with somebody who is legally the child's father.
Minister of State at the Department of Health (Mr. Currie): The primary purpose of the Bill is to provide for the introduction of a new statutory procedure for consulting the father of a non-marital child before the child is placed for adoption by an adoption agency so as to afford him an opportunity to exercise his right to apply for guardianship and/or custody of the child, if he so wishes. The new provisions contained in sections 2 to 9 represent the Government's legislative response to the judgment of the European Court of Human Rights in the case of Keegan v. Ireland. In that case the European Court ruled that Irish adoption law discriminates against fathers of non-marital children in violation of the European Court of Human Rights.
I will explain the valid reasons for the inclusion in the Bill of the phrase Senator McGennis seeks to have deleted, although I understand what she said and the motivation behind the amendments. This phrase is designed to ensure a father whose paternity has not been formally established in a court or otherwise is not excluded from being consulted in relation to a proposed adoption. I consider that it would be unfair to disentitle a person who believes he is the father of the child being proposed for adoption from being consulted simply because he might not be in a position to prove he is the father.
Such an approach would be unduly restrictive and would not be in conformity with the  judgment of the European Court of Human Rights in the Keegan case which the relevant provisions of the Bill are intended to address. In fact, it would defeat their purpose. Mr. Keegan's own paternity had not been formally established by the time his child was placed for adoption. It is essential, therefore, that the new consultation procedures provided for in the Bill are sufficiently flexible in order to avoid a similar case arising in the future. In the light of what I said, I ask Senator McGennis to consider withdrawing her amendments.
Mrs. McGennis: The Minister and I are at cross purposes. I fully acknowledge the European Court decision on the Keegan case. I have much to say on the rights of fathers vis-á-vis their responsibilities, particularly non-marital fathers. Unfortunately, I did not get the opportunity to make that point on Second Stage. I have no problem consulting “non-marital fathers” as long as they are non-marital fathers. The Minister of State said that in the Keegan case paternity was not established prior to the child being placed for adoption. What I propose would not interfere with that.
There is an onus in this legislation to ensure, where possible, that the consent of the father is established. Because this issue is treated in a particular way for probably sound reasons, the only people who should be considered — the 1952 Adoption Act was specific in this regard — are the mother, the non-marital father and the adopting parents. Somebody who claims to be the non-marital father of a child being given up for adoption should have to prove paternity prior to the Adoption Board discussing the case or any matter pertaining to it. That is in keeping with the present position in relation to adult adoptees.
If the birth mother who gives up a child for adoption has the right to confidentiality and if the adult adoptee has the right to privacy, unless he or she states otherwise, that confidentiality should be extended to take on board the European Court's decision in the Keegan case. The only other party who should be involved in discussions is the non-marital father, which is how the Minister of State referred to him. He did not say somebody who claims to be the father. There must be continuity or fairness. The man must prove he is the non-marital father.
If my amendment was accepted, the paragraph would read: “governing the consultation required by this Act to be carried out with the father of the child.” This respects the judgment in the Keegan case and is not in conflict with right of the non-marital father to have a say in whether his child is adopted.
Mr. Currie: This legislation takes account of the Keegan case. The Senator's proposal does not conform with it, which is why we must retain the wording because, in the Keegan case, paternity was not proven. If the phrase is deleted, it could  lead to an agency refusing to consult with a father because he cannot prove he is the father. Paternity is normally established during court proceedings which follow consultation. If I delete the wording, I would be in conflict with the judgment in the Keegan case.
Mrs. McGennis: That is putting the cart before the horse. Much time, effort and money would be saved by enshrining in law the need for a father to prove paternity prior to embarking on court proceedings. If a case is taken and it is discovered the man is not the non-marital father, much time and effort has been wasted and someone has probably been put through considerable agony. I suggest it should be done the other way. When a man wants to stop the adoption of a child of whom he claims to be the non-marital father, the board should first arrange for his paternity to be proven.
Mrs. McGennis: I ask the Minister to re-examine what I proposed in my two amendments and return to the matter on Report Stage. I would be happy if he returned with an amendment achieving a similar result.
“(b) the adoption has, for so long as it is in force, substantially transferred, under the  law of the place where it was effected, to the adopters, the rights and duties of guardianship, or parental authority over the child,”.
I tabled this amendment to allow for the case of Paraguayan adoptions, which has been brought to the Minister's attention. Its wording might achieve the objective of those people who have adopted children in Paraguay to have those adoptions recognised as foreign adoptions. The section allows for revocation and this might be one of the problems the Minister mentioned to those families who have adopted Paraguayan children. However, I would be willing to withdraw my amendment, although I believe the wording might be better, if the Minister guaranteed that his wording in this section recognised the position of Paraguayan children and ensured they were entered in the register of foreign adoptions. The wording of my amendment probably achieves that, although I do not have the benefit of the Minister's support and legal expertise. However, if the Minister is willing to state the wording in section 10(2)(b) guarantees Paraguayan adoptions will be recognised and entered in the register of foreign adoptions, I will withdraw my amendment.
Mr. Quinn: I support the amendment on behalf of Senator O'Toole who is not here tonight. This amendment was not previously discussed during the Bill's passage through the Dáil. It is new and needs serious consideration. The parents of adopted Paraguayan children have been told by their legal adviser there is no constitutional or legal obstacle to compel the Minister to refuse to accept this amendment. If the will is there, it provides a viable way forward. I am sympathetic to the Minister's wish to do something to solve this problem and that was made clear on Second Stage. This amendment may solve it. It may not be the ideal solution and the Minister may well have a better one. The families of adopted Paraguayan children are deeply concerned about this. The objective is to ensure Paraguayan simple adoptions are entered in the register of foreign adoptions.
Given what we know of the nature of Paraguayan adoption law from the expert opinion obtained by the Department of Health, can the matter not be disposed of by legislation? What specific issues are involved which require a decision by the High Court? What procedures will be followed if the case is taken to the High Court because that is something about which people are concerned? What provision does the Minister propose to make for legal representation during proceedings in the High Court? What impact will that legal representation have on the preparation of a presentation case to the High Court?
I am aware of the deep concern of the parents and I am anxious to ensure their case receives all the attention it needs. This may not be the ideal amendment but it is tabled in an effort to solve  the problem. I look forward to the Minister's response to this to see if there is any other answer.
Mr. Currie: Both these amendments seek to provide for the recognition of a form of adoption known as simple or ordinary adoption. It is important to understand that such adoptions are fundamentally different in nature and legal effect from that of a full or plenary adoption. Our statutory system for the recognition of foreign adoptions is confined to adoptions effected abroad which have a broadly similar legal effect to that of an Irish adoption order. On the making of such an order, the birth parent loses all legal rights and is freed from all legal duties with respect to the child. These rights and duties are transferred permanently to the adoptive parents and the adopted child is regarded in law as their child, as if born to them within marriage.
The effect of the recognition of a foreign adoption under Irish law is to accord it the same legal status as an Irish adoption order. It follows that an adoption granted outside the State must have a similar legal effect as an Irish adoption under the law of the foreign country concerned in terms of permanently severing the legal relationship between the birth parents and the child in order to qualify for recognition here.
However, simple or ordinary adoptions are more limited in their legal effect than full or plenary adoptions in that the pre-existing legal relationship between the child and the birth parents is not completely severed. In countries such as Paraguay, where dual systems of simple and full adoption are operated, it is for the relevant adoption authority to decide which type of adoption decree is the appropriate one to make by reference to the provisions of its internal adoption laws.
I have been advised that we must respect that distinction and not seek to accord a simple adoption a legal status beyond that which it has under the law of the country where it was granted. I reiterate that our adoption laws have evolved on the basis that they protect the interests of the child and protect the rights of the birth parents as set out in the Constitution.
In the case of inter-country adoptions, it is right and proper that our laws give the same respect to the rights of birth parents abroad as they give to Irish parents. I have been advised that the amendments of the existing definition of a foreign adoption contained in section 10 are as far as we can go in extending our statutory system for the recognition of adoptions effected abroad. From a public policy point of view, it is not possible to modify the system further without completely undermining our credibility at international level.
Senators will recall that at the commencement of Second Stage on 19 February, I mentioned that I had received legal opinion from a lawyer in Paraguay on certain aspects of Paraguayan adoption law and that I had sought clarification from the lawyer on a number of matters. This clarification  has come to hand and, in accordance with the undertaking I gave to Senator Quinn, a copy of the entire opinion has been made available to the group representing the adoptive parents.
I have also consulted with the Attorney General on the legal opinion. While the opinion sheds new light on our understanding of the legal effect of an ordinary Paraguayan adoption, the Attorney General is of the view that such an adoption is unlikely to comply with the terms of the substitute paragraph (b) of the definition of a foreign adoption contained in section 10 of the Bill because the legal relationship between the birth parents and the child is not completely severed.
I am conscious that the parents claim to have received legal advice which supports the contention that their adoptions would qualify for recognition under the revised definition of a foreign adoption provided for in section 10. I am sympathetic to the position of these children. I ask Senators not to press their amendments on the understanding that I will look again at the matter before Report Stage.
Mrs. McGennis: A Chathaoirligh, I did not hear you say that both amendments were being discussed together. I thank the Minister. I do not claim to be an expert on foreign adoptions, but I can imagine that if I was the mother of a foreign adoptee I would be praying that the Minister and his advisers can come up with a solution to this problem. I know the Minister is sympathetic and I do not wish to be obstructive. However, there is a contradiction in what the Minister said. He said that foreign adoptions must have the same legal effect as Irish adoptions. However, subparagraph (b) gives the lie to that statement. It states:
“(b) the adoption has, for as long as it is in force, substantially the same legal effect as respects the guardianship of the child in the place where it was effected as an adoption effected by an adoption order,”.
In relation to foreign adoptions, we are acknowledging in law that they are not the same but substantially the same. The parents of the adopted Paraguayan children have pointed out that there are plenary and simple adoptions. However, they have told me that the effect of simple adoptions is the same except for minor differences. Revocation is not the problem. However, the only legal tie which remains between the birth parents and the child are limited inheritance rights.
In an attempt to ascertain whether the adoption is equivalent or equal to the effect of an Irish adoption, the Minister arranged to have various questions answered. The Department of Health asked: “On the granting of an ordinary adoption decree, are the adopters regarded as the legal guardians of the child? If so, is this to the exclusion of the natural parents?” The Paraguayan  expert replied: “After the adoption decree is granted, the adopters become legal guardians of the child. This excludes natural parents.”
If that is not equal to the Irish situation it is equivalent to it. The inheritance rights issue is the only issue which differentiates these adoptions from Irish adoptions. I do not wish to put this to a vote. I would be delighted if the Minister can come up with a solution. The parents are seeking assurances from the wording of subparagraph (b) which guarantees that Paraguayan adoptions will be recognised and entered in the register of foreign adoptions. If that is the case then we have no difficulties. I do not wish to change the wording of this section and cause more problems than are necessary.
My amendment to section 11 recognises revocation and limited inheritance rights. This was drafted by an experienced, learned legal expert. We need to set a precedent which will solve the problem for future foreign adoptions. People have a right to be protected by such a precedent. If one is excluded legally, one feels threatened and that one's child is not protected.
The parents want the Minister to come up with a solution. He has stated that there is a difference between plenary and simple adoptions. However, where there is a will there is a way. The Minister fulfilled commitments he gave on Second Stage. He has obtained legal advice. I am not always swayed by such advice, regardless of the Attorney General. If one seeks a legal opinion and one pays a lawyer, one can be represented on a charge of murder. The advice means little and, to paraphrase the Taoiseach, it depends on the questions one asks.
If there is the will to do so, this problem can be addressed. The parents have been given a good hearing by the Minister of State and they are optimistic. I ask him to go a step further than he did on Second Stage. I would hate to be in the position of the people in the Public Gallery or those at home who are giving homes and love to their adopted children but who do not have protection or rights under Irish law. There are difficulties, but I ask the Minister of State to give a commitment that, in so far as he can, he will arrive at a solution to this problem by Report Stage.
Mr. Quinn: The Minister of State appears to hold out a degree of hope. I agree with Senator McGennis' comments and I believe the Minister of State is struggling to achieve the same objective as the parents of the adopted Paraguayan children.
The Bill provides that Paraguayan adoptions must have substantially the same legal effects as regards the guardianship of the child in Paraguay as an Irish adoption has in this country. That is the aim. However, the expert consulted by the parents stated that “after the simple adoption decree is granted, the adopters become legal guardians of the child. This excludes natural parents”. That statement appears to destroy the legal  objection of incomplete transfer of rights on which the Department of Health has based its opposition to extending that recognition.
The Minister of State said he will continue to examine the matter between now and Report Stage. By not pressing the matter tonight, we will enable him to achieve what is being sought. It will be pressed on Report Stage, but the Minister of State will try to find a solution to this dilemma in the meantime. As Senator McGennis said, lawyers differ. The parents of the adopted Paraguayan children are confident their legal advice will stand up to challenge. Let us seek a way of solving this huge problem. It is possible to find a way, the problem is finding it. Senator McGennis has articulated the point we are making very well.
Mr. Currie: The problem can be stated in a few sentences. The legal relationship between the parent and the child must be completely severed. It is in the interests of the child and of the parents that this position be clear. Adoption requires permanence. If there is any doubt about an adoption, it could cause untold damage in the future. I must be satisfied that the legal relationship between the child and the parents is severed.
Senator McGennis said she did not pay much attention to the advice of Attorneys General. I am not in the same position. I cannot ignore the advice I am given by the Attorney General as easily as Senator McGennis, although when one considers some past Attorneys General it is understandable why she has difficulty in that regard.
Mr. Currie: I have been asking many questions because I want to find a solution to this problem. I do not like problems which hang in the air; I like to believe there is a solution to them. I would not have survived as long in Northern Ireland politics but for my belief that there must be a solution to every problem, no matter how intractable it is.
The legal advice I must heed is that the legal relationship between the parent and child is not totally severed, irrespective of what Senators have been told. However, I will examine the matter again and come back to it on Report Stage.
Mr. Fitzgerald: I do not doubt the Minister of State's sincerity in this matter. Senator McGennis was not specifically referring to the Attorney General but to lawyers generally. As she said, if a crime is committed one can get legal advisers to argue for both sides. The Minister of State is sympathetic about this matter. We will not press the amendment tonight but we reserve the right to bring it before the House on Report Stage when we will have more legal advice. In the meantime, I ask the Minister of State to solve the problem. I am aware his legal advisers are doing  their best in this regard. A solution might be found if we dig deep enough. Perhaps the Government's legal advisers and those of the parents could meet to try to find it. The case has been well argued by Senator McGennis and Senator Quinn. The Minister of State obviously wants to find a solution and I am grateful for his disposition. However, we reserve the right to deal with this matter again on Report Stage.
Mr. Currie: The Attorney General is of the view that such an adoption is unlikely to comply with the terms of substitute paragraph (b) of the definition of a foreign adoption obtained under section 10 of the Bill because the legal relationship between the birth parents and the child is not completely severed. Lawyers can differ, but I must heed the advice of the Attorney General. At the end of the day, only a court can give an authoritative ruling on this issue and that must be borne in mind.
Mrs. McGennis: I am not seeking to delay the House but I am trying to educate myself, which is probably laborious for the Minister of State. The Attorney General has advised the Minister of State that substitute paragraph (b), which is my substitute paragraph (b), is unacceptable for the reasons stated. Did the Minister of State get the advice of the Attorney General on whether the original paragraph (b) covers Paraguayan adoptions?
Mrs. McGennis: I thought the Minister of State was referring to my amendment. To provide a glimmer of hope for those in the gallery in case this is not dealt with before the election, will the Minister examine the possibility of testing a section of the Bill in the courts?
Mr. Currie: As I understand it, yes. I am definite about the opinion given by the Attorney General. I have made his advice clear. Senator McGennis referred to a glimmer of hope. I hope there is one. I have looked at all possibilities, including testing the matter legally. I cannot say any more about that because it is ongoing. I do not want to raise hopes too much. Hopes raised and then dashed can make a situation worse than it was at the beginning. I will continue to look at this matter in the hope of finding a satisfactory solution. That does not mean we will find one. At the end of the day, the main interest must be that of the children involved. I am responsible not only for adoption but the whole child care area and the interest of the child must be of paramount importance to me.
I am advised that I may have given the Senator wrong information. The Attorney General has not advised on the specific amendment being discussed. I cannot go any further than what I have already stated in relation to the Attorney General's advice.
Mrs. McGennis: I thank Senator Doyle for his astute intervention. The Minister has undertaken to look at a number of matters between now and Report Stage. Will he also refer the wording of this amendment to the Attorney General as it may stand?
Mrs. McGennis: I move amendment No. 3:
In page 13, before section 17, to insert the following new section:
“17. —The Adoption Board shall establish an active contact register to facilitate contact between mothers and adult adoptees.”
I have proposed these amendments out of absolute frustration and an inability to achieve an objective which I set in train in this House several years ago. I am not sure if this is the correct place in the Bill to insert these amendments. I looked at the Adoption Act, 1952, and wondered if that needed to be amended. If the Minister says the wording of any of these amendments is wrong or does not achieve the desired objective, I am willing for the Minister to substitute amendments.
My primary concern in the area of adoption and family law legislation is that of the children. I have stated on the record that if all legislation started from the premise of what is good for a child we would have a better society and legislation.
I have written to the Minister of State, Deputy Currie, the Minister for Health, Deputy Noonan, the Minister for Equality and Law Reform, Deputy Taylor, and any Minister who comes into the House to deal with legislation relating to the registration of births. The Minister, Deputy Taylor, has helpfully but in utter frustration, told me on a hundred different occasions that I am trying to amend the wrong laws and achieve the objective in the wrong legislation. I think the Minister knows what I am trying to achieve in these amendments to section 17.
 Amendment No. 3 seeks the establishment of a contact register. I presume the Minister receives the same level of daily correspondence as I do because it is a matter of public record that I am an adoptee. I receive heartrending and horrendous correspondence from people attempting to contact their birth parents and vice versa. The level of success in doing this through normal means such as the Adoption Board and the Adoption Society is very limited.
The route I took was not approved. It was not illegal but would not be recommended. People do the wrong thing out of absolute frustration. It is wrong for either an adult adoptee or a birth mother to arrive at someone's door. The Minister and I agree on that. This can cause untold psychological and practical problems for both sides. However, that is what happens, as it did in my case, and it will continue to happen.
There is a need for confidentiality. We all agree with and respect that. I took a cursory look at the Adoption Act, 1952, and I did not see any provision for this. I saw the procedures, regulations, the means by which adoptions are dealt with and legalised, and the establishment of adoption societies etc. Perhaps the Minister's advisers can correct me. I saw nothing which copperfastened the sacrosanct right to confidentiality. While the Minister and I respect this, unless we do something practical to facilitate those who wish to make contact, either adult adoptees or birth parents, this crazy state of affairs will persist.
My amendment proposes that the Adoption Board shall establish an active contact register to facilitate contact between mothers and adoptees. I know Barnardo's has stated it does not agree that the Adoption Board is the proper agency to do this. I am proposing the Adoption Board because if I stated Barnardo's, it will be legally incorrect. There is a need for a register. This evening I received a telephone call from someone who claims he or she has been given misinformation and has not been helped.
There is a need for an active contact register, not one which is announced overnight and claims to solve all our needs. The Minister gave a commitment to this House and to me in writing over a year ago that a contact register would be established on a pilot basis. He has done nothing since that day.
Mr. Currie: That is not true.
Mrs. McGennis: I hope to be corrected. I plead with the Minister, in the interests of fairness for all concerned, not to announce the establishment of a pilot scheme contact register here tonight or until such time as it actually exists. In the most recent letter I sent to the Minister I asked him not to reply saying that it was a matter to be considered in the context of a contact register. I want the Minister to address the problems being faced by the people who write to me.
When I speak of an active contact register I mean one which would include all the information  which the Adoption Board holds about mothers who gave up their children and about children who were adopted. That information should be on file in the Adoption Board. I am suggesting that the Adoption Board would contact those people individually, inform them of the establishment of a contact register and ask them if they would like to be included on it. I have also learned that there is a non-contact register in some other countries whereby people specifically state that they do not want to be contacted. I would welcome the establishment of such a register as it would solve many of the problems. Adoptees and birth mothers always feel they are prevented from getting information but perhaps there is an absolute determination by one or other of the parties not to be found. A contact register could be augmented by a non-contact register.
Minister Taylor introduced the Registration of Births Bill and I attempted to achieve my objectives in that Bill also. I was informed by the Minister at that time that anyone could walk in to the Registrar of Births, Marriages and Deaths and obtain their natural birth certificate. That is not true; if a person does not know their mother's name, they cannot do so.
Mr. Currie: If a person has sufficient information, they may do so. There is no discrepancy between what the Senator is saying and what I am saying.
Mrs. McGennis: There is a huge discrepancy.
An Cathaoirleach: The Senator should address her remarks through the Chair and allow the Minister to reply in due course.
Mrs. McGennis: The Minister could get a copy of my birth certificate if he had the necessary information. However, many of the hundreds of thousands of adult adoptees in Ireland have not got that most vital piece of information, the name of their birth mother, and nobody is going to hand such a person a copy of their birth certificate. I was able to obtain a copy but only because of an occurrence on my marriage certificate which provided me with information I did not have. That is another day's work. It is a person's fundamental right to have access to their original birth record. I am aware there is a concern that the confidentiality of the mother, which we spoke about throughout this Bill, would be put at risk because she might have put down her home address on the birth certificate. I know that happens and has happened in certain cases.
In Northern Ireland and the UK, adoptees have the right of access to records and the right to be given copies of their original birth certificates. I do not know why the Republic of Ireland should be any different from its near neighbours. The Minister has a vast amount of experience as a legislator in Northern Ireland and I ask him to bring that experience to bear on this legislation.  I have tried to achieve some of the objectives outlined in amendments Nos. 3 and 4 through other legislation including the Freedom of Information Bill.
Amendment No. 5 is more pressing. I will be happy to attend any press conference the Minister holds when this matter is cast in stone. I am very concerned about the records held by adoption societies. Senator Doyle, as a member of a health board, may be able to support me in some of these amendments. In recent years records turned up in the national archives, or some such place where they should not have been, in relation to American adoptions. Were it not for the vigilance of the archivist we would never have found those records. At the time, the Tánaiste gave a commitment that these records would be collated and that some 2,000 families would be facilitated in making contact. I received a letter this morning from a woman in America telling me that nothing has happened and that no contact has been made. I wondered at the time how contact could be made particularly as it could not be made if the people were adopted in Carlow. It was not consistent. A public announcement was made on this issue and there was a public expectation that something would be done about it.
The Minister said he did not want to raise hopes in relation to the adoption of Paraguayan children. Irish adult adoptees and birth mothers have had their expectations raised very time politicians open their mouths and give them hope. Nothing has happened in the 42 years I have lived here.
Mr. Currie: I have not been dealing with this issue for 42 years.
Mrs. McGennis: The Minister has not dealt with it in two and a half years.
Mr. Currie: The Senator should wait and see.
Mrs. McGennis: I will not wait and see. If the Minister takes my amendments on board I will withdraw everything I have said and I will say that the Minister is the greatest thing since sliced bread.
An Cathaoirleach: Will the Senator please speak on the amendment?
Mr. Currie: The Senator would only do me harm if she said that.
Mrs. McGennis: The Minister should not tempt me. The data which is currently being held by adoption societies is at risk of being lost, destroyed or altered. That is extremely dangerous and it is something the Government and politicians should not allow to happen. There are other things which I would like to see happen in the area of adoption but I have not tabled amendments on them. It is grossly unfair to people whose details have been and could be lost. I know  files have been lost, even through natural occurrences such as fire and so on. We should seek to ensure that the Adoption Board collates the information and makes it available on a central database. I am not talking about names, addresses and dates of birth; I am talking about the pieces of ordinary information which are of huge importance to adult adoptees. Such information might include details of medical history and the family size of the birth mother. This information means a lot to adult adoptees in their search. They do not always want to make contact but they crave information.
Some adoption societies are extremely helpful and work overtime and after hours to try to help those seeking information. However, the unhelpful ones receive all of the coverage. That is grossly unfair to people who are doing, and who did, a job that no politician or Government wanted to do. Voluntary agencies, and particularly the religious, did this work. Those of us who were fortunate enough to be placed in good homes with good families owe them a debt of gratitude as do politicians and legislators. I hope the Minister can see his way to taking these amendments on board and I sincerely hope he does something during his period as Minister with particular responsibility in this area.
There was a great hope that when a Minister was established with a specific portfolio in Health, Justice and Education these obstacles would be overcome and something would happen. I do not want to be critical of the Minister but announcements have been made and nothing has happened. In this Bill, the Minister had the opportunity to make a name for himself and go down in history as someone who made one of the most important amendments to adoption law since the original Bill was published in 1952. I hope that, in his last days in office, even if the Government continues until November, he will do something about this matter. I have made this case repeatedly in writing and personally to the Minister of State and I ask him to do something about it.
Mr. Fitzgerald: I support Senator McGennis's comments. However, the Minister of State passed a remark which I resented. He said Senator McGennis would only do him harm.
Mr. Currie: It was a facetious remark.
Mr. Fitzgerald: This is an emotive issue.
Mr. Currie: I thought the Senator had a sense of humour.
Mr. Fitzgerald: I heard the remark. When Senator McGennis said she would support the Minister of State in every way if he accepted the amendments, he said that she would only do him harm. I respect Senator McGennis as a woman who is very involved in the area of adoption. The record will show that I am correct. I am putting  down a marker for fair play; otherwise, there may be divisions.
Mr. Doyle: In fairness to the Minister of State, he accepted Senator McGennis's comments. It was a facetious remark.
Mr. Fitzgerald: The remark was made though.
Mr. Doyle: We are making progress on the Bill and we should accept that it was a facetious remark.
Does the first amendment mean that a choice will be given to the natural mother when her child is put up for adoption that she can be included or not included on the contact register if she wishes?.
Mrs. McGennis: Or even at this late stage.
Mr. Doyle: I accept that. The second amendment relates to copies of birth certificates. When mothers gave birth, their children were registered through a church on a baptismal registry before they were entered on the civil registry. The mothers were just asked for their legal name and address. The child was registered in whatever name and address was given, but factual information was not always provided. This difficulty arises in relation to birth certificates of adopted children. All the information that was registered, even if it was available to them, may be of no assistance because it is may be incorrect. However, if the information is correct, all adopted children should have access to the first baptismal or civil certificates on which their names were registered. Progress has been made in this area, because this was frowned upon years ago. However, there is a different view now in society that adopted children should have access to that information if possible.
Mr. Currie: I would not in any way detract from the efforts of Senator McGennis on this matter. Her personal experience shines through and it is of assistance to me and the House. I made a facetious remark. Senator McGennis's constituency is now Dublin Central but she still resides in Dublin West and she is a member of the council for that area. However, I find it difficult to imagine her lauding me to the sky in Blanchardstown.
Mrs. McGennis: It would never do the Minister of State any harm.
Mr. Fitzgerald: The Minister of State might be surprised.
Mr. McGowan: The Minister of State might need it.
Mr. Currie: It was a facetious remark.
This is a serious matter and I share the Senator's frustrations. I hope those frustrations will not last much longer. I recognise the necessity  for establishing a new and comprehensive legal framework for post adoption contact between parents and adopted persons and access to birth records. As I stated previously, the establishment of such a framework is a Government priority.
There has been a sea change in attitudes to adoption in recent years. First, there has been a huge decrease in the number of children put up for adoption as an increasing number of mothers choose to raise their babies themselves. Second, there has been a recognition that adoption is a life long process and that the bonds binding natural mothers to their children and the desire of adopted persons to trace their roots in order to complete that aspect of their identities cannot be extinguished by a legal adoption process. These factors have led to a position where adoption societies have become increasingly involved in tracing and support work with people whose adoptions they arranged many years previously and birth mothers who gave children up for adoption. A more open climate prevails with regard to adoption nowadays than existed heretofore. This openness is to be welcomed.
However, we must also be aware that it brings with it an element of fear for many mothers who gave children up for adoption in a less understanding age. Many of these mothers are now married with other children and have never revealed the secret in their past. Senator McGennis referred to telephone calls and letters she received. As she suggested, I also receive similar letters and telephone calls. However, it is not all one way traffic because I receive letters and telephone calls from women who are very concerned about this matter. They plead with me not to enable their children to get in touch with them because their husbands and other children do not know about them. If the children turned up on their doorsteps, they do not know what they would do. One woman told me that in those circumstances she would take her own life. I said I hoped she was exaggerating and I tried to talk her out of that feeling.
There is emotion on both sides of this argument. We should think carefully before putting through such trauma again mothers who gave up their children in such circumstances many years ago and who took a long time to come to terms with that experience. I have thought carefully about this matter and I have the greatest sympathy for people on both sides of the argument.
It is my intention that the necessary enabling legislation to establish a comprehensive post adoption framework which will take account of the issues I outlined will be brought forward as quickly as possible after a number of legal and constitutional issues have been clarified. The Circuit Court has stated a consultative case to the Supreme Court, dealing with the right of children who were informally adopted in this country prior to the enactment of adoption legislation to know the identity of their natural parents. The judge in the case has referred a number of questions to  the Supreme Court for decision. These include whether a child has a constitutional or legal right to know the identity of his or her natural parents and whether a natural mother has a constitutional or legal right to confidentiality. If both these rights exist, which right should prevail in the circumstances of the case?
Deputy Andrews appeared on a recent edition of “Questions and Answers” where this issue arose. It was interesting to note that he was of the opinion that the right of the natural mother should prevail. However, the legal and constitutional issues, which will be addressed by the Supreme Court, will have a direct bearing on the nature and scope of the framework which will be put in place. These are real issues in the context of Senator McGennis's suggestion of an active contact register. I hope Senators will appreciate that it would be prudent to await clarification of the constitutional and other legal issues surrounding the question of access to birth records before proceeding with legislation in this sensitive area of human relationships. To introduce legislation at this juncture would be to anticipate the findings of the Supreme Court. I understand that on 9 May a date will be set for the hearing of the case by the court. I therefore ask the Senator not to press her amendments and I will consider the matter further on Report Stage.
The Senator raised the American situation. My Department was contacted by the Department of Foreign Affairs this week to say that the approximately 1,500 files relating to passports for children sent to America and other countries have been indexed and put on a data base. The Department of Foreign Affairs has offered its full co-operation in regard to establishing a contact register. I hope this clarifies the situation referred to by the Senator.
Mrs. McGennis: I thank the Minister for his lengthy and indepth reply. I am very worried about the health of this Government when nothing has been done about a priority referred to several times by the Minister, namely, the establishment of a contact register. It is a priority of the Government since the first time I raised the matter with the Minister and nothing has happened. If this is the way priorities of Government are dealt with, and I hope it is not, it is very unhealthy.
Regarding tracing, the Minister is correct in saying that there has been a sea change in the way in which adoption is treated now in comparison with the forties, fifties and to a certain extent the sixties. Societies are spending much more time on tracing. I had a very positive reply from the Acting Chairman's health board in relation to a constituent in Donegal who was attempting to make such a trace. The reply, which I thought was excellent, was that the social workers would get to his case within six months. From my experience in other cases I thought this was record time. They were apologetic for the fact that due to a  lack of social workers they were no longer in a position to undertake the exact type of work referred to by the Minister in his reply. Now that there are no children to be adopted they are spending the bulk of their time picking up the pieces of post-adoption situations. However, they do not have the resources, facilities or social workers to do this. While we can be critical of the agencies, which I have been, those which have the will power, motivation and humanity do not have the staff.
I hope the Minister was not trying to suggest in any way that I would put any woman to the brink of suicide because of my desire or that of an adoptee to make a contact. That is not what I said.
Mr. Currie: I did not suggest the Senator said that.
Mrs. McGennis: We will have to read the record of the House to see how one might interpret the reply by the Minister.
Mr. Doyle: To be fair to the Minister, he did not say that.
Mr. Currie: I will not apologise for things I did not say or mean.
Mrs. McGennis: I am ensuring the record of the House does not imply otherwise. I am entitled to my say in this House. I am willing to be helpful in any possible way to achieve the objective of many people, but I am not willing to accept rubbish.
Senator Doyle quite rightly questioned me on my amendment and asked if I was allowing for cases where contact was not wanted. I thought I made it clear that I was allowing for this.
While the priority of this Government achieves nothing and while there are no structures in place, women throughout rural Ireland are on a daily basis sitting in their homes waiting for a knock on the door, which eventually comes. It comes by way of people who set out, find their birth certificate, find a townland and then arrive at the door. The Minister was critical of me for my suggestion to establish an active contact register. However, his inaction puts those women in fear and leaves them open to the dangers he spoke about. They are sitting and waiting in fear because everyday a knock comes on somebody's door. If the Minister has contact with the Adult Adoptees Association, the Adoptive Parents Association and the various other groups active in this area he will be aware that this happens every day because there is no structure in place. Those who do not wish to be found are being found on a daily basis. While women may be ringing the Minister on a daily basis saying they are living in fear, that fear becomes a reality because he has done nothing.
I pay tribute to those who took the Keegan case, the various other cases and the private citizens  who have forced changes in adoption law. Any changes which have occurred in adoption law have, by and large, been forced on the State by private citizens. I take my hat off to those who at great personal cost have taken cases for basic human rights. I wish the person taking the Keegan case well and I hope the right outcome is achieved, striking a balance between the rights of birth mothers and adult adoptees.
This Supreme Court case was not in the pipeline when the Minister took over responsibility for this area nor when he made announcements about contact registers. There was no Supreme Court case tying his hands in any manner. He had the flexibility and ability to make changes in the law if he had wished to do so. I presume the Minister knows the ins and outs of the requirements of both sides of the adoption debate. He knows what birth mothers know in terms of protection and contact and what adoptees want in these areas and by way of information. If he really wanted to do something in the morning he could introduce a Bill and test the constitutionality of any part of legislation he wanted to bring forward. That would be a very heroic and brave thing to do.
Mr. Currie: I am silly.
Mrs. McGennis: There are members of Fine Gael in Government who are not silly but who have brought extremely important and good legislation before this House, legislation which had been left open to constitutional challenge because they believed it was better to have it challenged than do nothing. I am surprised that a Government Minister in a three-party Coalition can make that kind of comment about other Ministers who have had the courage to bring legislation before both Houses of the Oireachtas and have seen them challenged. I am amazed at the Minister's arrogance.
Regarding the US files, I am glad that they have been indexed. However, nothing else has been indexed in relation to the files of Irish adoptees. I commend the Tánaiste for arranging the indexing.
I do not know what the Minister means when he says the Tánaiste will facilitate the establishment of a contact register for US adoptees and passport holders. What does that mean? We do not have a contact register. Is the Minister saying that because somebody was lucky enough to be adopted by an American citizen that they will get preferential treatment to those of us who stayed in Ireland? I would like this matter clarified.
I sincerely asked the Minister not to play politics with this issue and not to give commitments but to say something was going to be done. He has said and done nothing and that is his record in this Department.
Mr. Doyle: I asked Senator McGennis earlier about the contact register and she agreed that the  natural parents would be consulted about being included in the national register. I agree with that and we can start from that point. However, we cannot backdate that to children adopted 20 or 30 years ago.
Mrs. McGennis: We can.
Mr. Doyle: It would be very difficult. There are two fears regarding adoption. Firstly, there is the fear raised by those who rang the Minister. I understand that they are now happily married and want the past to remain in the past. That is their own personal business and, whether we agree with it or not, it is what they want and it has to be respected.
Another issue nobody thinks about concerns cases where people have adopted children and have treated them as their natural children without informing them that they are adopted. At First Communion they are anxious in case the children get the birth certificate with the name of the natural parents. They are more anxious when it comes to marriage. I dealt with these cases and these parents have real fears. These are the two fears with which we are dealing. We must protect the interests of the natural parents, the adoptive parents and, most importantly, the children.
Mr. Currie: It is alleged that I am arrogant. I do not know whether I am — one is not usually the best judge of that. However, I know I have the quality of patience because I have had to use it this evening when listening to political point scoring. I can give as good as I get in these matters.
Mrs. McGennis: The Minister cannot take it, he never could. We can stay here all night if we have to.
Mr. Currie: I understand the Senator's frustration——
Mrs. McGennis: The Minister of State does not.
Acting Chairman (Mr. Maloney): Let us not have this cross-talk, please.
Mr. Currie: ——and I share some of it, but the Senator has the audacity to point the finger at me and say no progress has been made in this matter. Considerable progress has been made. It is not only since this Government came to power or I became a Minister that this has been a big issue. When the Senator's party was in power it did nothing.
Mrs. McGennis: It did not make public pronouncements as the Minister did.
Acting Chairman: The Minister, without interruption.
Mrs. McGennis: I was not political but if the Minister wants to be, that is fine.
Mr. Currie: Obviously it is Senator McGennis who cannot take it. Progress has been made on what is an extremely emotive issue. I have indicated that there are strong emotions on both sides and Senator Doyle has mentioned another dimension. I have had to take these matters into consideration.
I could have been called arrogant if I had proceeded without consultation, so I consulted extensively with adoption organisations as to how to progress the establishment of a passive contact register and the wider issue of post-adoption contact and access to birth records. I have had detailed discussions with the Adoption Board, Treoir, the Council of Irish Adoption Agencies, Barnardos, the Adoptive Parents' Association and the Adult Adoptees' Association. Even yesterday I had informal discussions with Barnardos on this matter. That was the way I had to proceed. If I had not held the necessary consultation process and had not taken into consideration both sides of the argument, I would have done something which would be quite hurtful to many people who are unfortunately in this position. I was determined to approach this in the right way and that is what I have done. Progress has been made.
I am sorry the Supreme Court will not consider the case until after 9 May but, arrogant as I may be, I am not arrogant enough to dictate to the Supreme Court or to assume it will listen to what I say. Whether we like it or not, the Supreme Court is part of our Constitution, it decides issues of constitutionality and I must wait until it makes its decision. Given that the Supreme Court decision is so near, it would be silly of me to follow the route suggested by the Senator. I share her frustration but I hope it is near to the end for both of us. I await with great anticipation the court's ruling on the case; I have no alternative but to do so.
Mrs. McGennis: I agree that there is a time for consultation. Before the Minister, Deputy Taylor, introduced a Bill last week he consulted 80 groups, but then he took action. The difference is between doing something and talking about it. After one consults one should do something but the Minister has done nothing and I have no hope that he will. Had the Minister an active interest in this area he would have brought a Bill before the House and had it tested. He would not have done so a week before other people were awaiting the outcome of a case. The Bill before us has nothing to do with the Minister's work or any initiatives he took. It simply acts, interprets and abides by decisions handed down by the court because private citizens took cases, such as the Keegan case and the foreign adoption case. The Minister has done nothing. He is not responsible for wonderful, reforming legislation — the Bill comes as a result of private citizens obtaining a court decision, which legislators are bound to implement. The Minister should not fool himself or anyone else that he had introduced a ground  breaking Bill — he introduced it because he had to.
Nothing will happen while this Minister is in charge. I will not be so arrogant as to say nothing will happen while this Government is in office because there are people in this Government who would have attacked the matter with great vigour and might have introduced reforming legislation. All consultation and no action sums up the plight of adult adoptees and women who gave up their children for adoption.
I will not press the amendments now but I may resubmit them on Report Stage. I am still optimistic that, when we receive the Supreme Court decision, the Minister may do something before his term of office finishes.
Amendment, by leave, withdrawn.
Amendments Nos. 4 and 5 not moved.
Section 17 agreed to.
Section 18 agreed to.
Title agreed to.
Bill reported without amendment.
Acting Chairman: When is it proposed to take Report Stage?
Mr. Doyle: Next Wednesday, subject to agreement between the Whips.
Mrs. McGennis: I suggest that Report Stage not be taken until the Supreme Court decision is available.
Acting Chairman: We can order that Report Stage be taken next Wednesday but it does not have to be taken then.
Report Stage ordered for Wednesday, 7 May 1997.
Acting Chairman: When is it proposed to sit again?
Mr. Doyle: Tomorrow at 10.30 a.m.
|Last Updated: 21/05/2011 04:30:18||Page of 14|