Thursday, 2 April 2009
Seanad Eireann Debate
Senator Frances Fitzgerald: If my amendments have been deemed out of order as involving a charge on the Revenue is it the intention to pay members of the authority? The principle is a good one, that people who have been adopted should be represented on the board. It is in line with our thinking about consumers, that the people most affected by a board or authority would have some representation. I ask the Minister of State to take account of this. Unless the idea that this involves a charge concerns expenses for board members I do not believe the amendments should have been ruled out of order and they could have been considered.
I wish to raise another matter on this section. I will be bringing forward an amendment to this section on Report Stage. This arises because the register of medical practitioners referred to in section 98(3)(d) which was established under section 26 of the Medical Practitioners Act 1978, has been replaced by a new register established under section 43 of the Medical Practitioners Act 2007, as amended by the Health (Miscellaneous Provisions) Act 2007. The relevant section was commenced on 16 March 2009.
Senator Frances Fitzgerald: There is no possibility for representation of a person who has been adopted in either a domestic or international adoption. It would be a good and useful thing to bring the voice of the consumer, the experience of someone who has been adopted, to the board. There are many agencies, organisations and networks in which people who have been adopted participate actively and they want their voices heard. The Minister of State should consider this.
Deputy Barry Andrews: That would be to assume the various other appointments, specifically, a social worker with experience in adoption practice, a social worker with research expertise in child welfare and protection, a barrister and solicitor with experience of practice in the law relating to families and children, a medical practitioner and a person trained in psychology, would not have sufficient experience to represent adopted persons and that there would be a gap in that experience needing to be filled by the appointment of a person who has himself or herself been adopted. I hope those five persons, not to mention the chair, vice chair, chief executive and other staff, would be adequately able to represent the interests of adopted persons and ensure the adoption authority functions properly and carries out its functions as well as possible.
Senator Frances Fitzgerald: The voice of the lay person, the one who has direct experience of the service, is a valuable asset. This has been developing in the legal and medical areas for example, in the new medical practitioners Bill. One cannot underestimate what the direct voice of experience would bring to a board or authority. When the Government moves to establish bodies we should try to incorporate this as a general rule. It would be very valuable to have the personal experience of adoption heard. It has been ruled out of order because of the expenses, which are probably not very much, paid to board members. The Minister of State might consider this in the future, as well as the provision of a mechanism to involve people who have been directly affected. This is good practice. Obviously, the social workers, barristers and psychologists will be expert in the area. The direct voice of a person who has been through the experience would be a valuable one to have on the authority.
Deputy Barry Andrews: The point was made to me that in some jurisdictions adoption orders are made by courts and because of the quasi-judicial functions of the board, expertise is obviously required at that level. If we were to go down the road suggested by the Senator it would be wrong not to include a natural parent.
Deputy Barry Andrews: It would be wrong not to include an adoptive parent and many others who are affected by adoption. However, the adoption authority is intended to be the body responsible for the making of adoption orders and the expertise required to carry out that quasi-judicial function would be of a high level. The interests of adopted persons and of other categories of person I have described will be and have been represented adequately by the current board.
Senator Frances Fitzgerald: I shall not labour the point but I speak of a different quality of experience that is apart from the quasi-judicial nature of the board. This is not an adequate reason not to include the voice of the person who has been through the direct experience, which might be in turn a representative voice for the other groups the Minister of State mentioned.
The amendment has been ruled out of order but I make the point that we must get away from the more hierarchical model of representation. We ought to look at it from the ground up and with the voice of the consumer. This is an appropriate place to have the voice of the consumer represented. There has been a move in that direction when the Government appoints bodies and boards, namely, to have the voice of the person directly affected involved in the decision-making structures. It is a good move, one we should try to develop more generally and which would be beneficial in this area.
This amendment relates to advertising. Some international associations, for example, the International Adoption Association, IAA, are concerned that this section would create some unenforceable restrictions and would interfere with their representation. In addition, amendment No. 62 deals with funding. The organisations had some concerns that they would be unduly restricted by amendment No. 61. Is this the amendment we are discussing, or is it amendment No. 62?
There is some concern about this and it is a very delicate area. I am interested to hear what the Minister of State will say about it. Some of the international organisations felt that their fund-raising would be interfered with if this section contained the words: “with the prior approval of the Authority”. It is a delicate issue because one does not want advertising put into the Bill that would suggest there is a market in respect of children or adoption. The concern expressed by the organisations was that straightforward fund-raising might be interfered with by having this section included. They made the point that if other voluntary organisations such as the Society of St. Vincent de Paul, the ISPCC or Barnardos were restricted in this way, they might not be able to get on with their work. The amendment addresses the anxiety that the normal fund-raising a voluntary body might engage in would be interfered with unnecessarily. Perhaps the Minister of State might say whether this is a genuine concern or he might tell us there is adequate opportunity within the Bill for bodies to engage in legitimate fund-raising. The concern expressed was that this right might be taken away.
Deputy Barry Andrews: Financial probity is one of the most important tenets in inter-country adoption. The measure contained in the Bill is intended to ensure there can be no question of funds of any kind being made available to accredited bodies in a manner that might give rise to questions about the management and execution of responsibilities in respect of making arrangements for adoption. This measure is protective of such accredited bodies. It does not rule out such gifts but ensures any such gifts must by law be the subject of notification and approval of the adoption authority. In this area, I am of the view that any measure that prevents improper financial gain at any stage of the process and that emphasises the importance of financial probity is essential to the process.
This section reflects Article 8 of the Hague Convention and is one of the cornerstones of the development of inter-country adoption. Achieving higher standards of financial probity is one of the challenges of inter-country adoption. It does not interfere with fund-raising in any way but merely ensures there can be no question marks over conflicts of interest.
Senator Frances Fitzgerald: Perhaps the Minister of State could offer some clarification. I am in complete agreement with the Minister of State about the international obligations we would rightly have in this regard. It would clearly be a safeguarding of children to have inappropriate financial donations forbidden by our legislation. Is permission required for each and every donation or can they get on with legitimate fund-raising events which could be anything from selling tickets or holding sales of work? Would prior approval be required or is this just to cover anonymous donations?
Deputy Barry Andrews: Although it indicates prior approval of the receipt of the gift of money, there is no bar on fund-raising and therefore if a person bids for an item at a fund-raising auction, there is no requirement to seek the prior approval of the authority before receiving the cheque. It is simply that when one fund-raises, one must notify the authority of any overall receipt. There is no bar on existing fund-raising. Rather, the measure is to ensure there is an accountability for the source of funding so that this very sensitive and developing area is above reproach in terms of financial probity.
Senator Dominic Hannigan: I move amendment No. 63:
The current section states: “Without prejudice to the generality of section 150, the Minister shall make such regulations as he or she thinks appropriate for the purpose of ensuring that the activities specified in sections 4 and 5 are carried on only by accredited bodies.” We propose substituting from the word “ensuring” to the word “bodies” the phrase “promoting the carrying out of the activities specified in sections 4 and 5 by accredited bodies”.
Deputy Barry Andrews: The purpose of the section is not for the Minister to promote any activities on the part of accredited bodies but simply to regulate their activities and, as such, is a standard clause in this type of legislation.
An Leas-Chathaoirleach: Is the amendment being pressed?
Senator Dominic Hannigan: Not at this stage but we reserve the right to revisit it at a later stage.
Amendment, by leave, withdrawn.
Section 151 agreed to.
Sections 152 to 175, inclusive, agreed to.
Schedules 1 to 4, inclusive, agreed to.
Senator Dominic Hannigan: I move amendment No. 64:
I have been led to believe that the word “done” is technically the correct word. The Bill states on page 116: “Done at The Hague, on the 29th day of May 1993”. In addition, once the convention is done and open for signature it can be signed by any state at a later date. The word “signed” could be not just inaccurate but also potentially misleading. Could I have the Minister of State’s view on that?
Deputy Barry Andrews: This is fairly esoteric. It is outstanding to spot that, whoever informed the Senator.
Senator Dominic Hannigan: I have plenty of time.
Deputy Barry Andrews: It is the practice in Irish parliamentary drafting to use the word “signed” rather than “done”, although the word “done” is used in the reference to the convention. I am advised this has been the practice, in the same way as Senator Hannigan has been advised to the contrary. That is the phrase used in parliamentary drafting.
An Leas-Chathaoirleach: Is amendment No. 64 being pressed?
Senator Dominic Hannigan: Not at this stage but we will reserve the right to revisit it. I thank the Minister of State for that clarification.
Amendment, by leave, withdrawn.
Question proposed: “That the Title be the Title to the Bill.”
Senator Frances Fitzgerald: We have come to end of Committee Stage of the Bill. The Minister of State has indicated that he will consider the suggestions and amendments for Report Stage. The issues of the bilateral agreement, especially with Vietnam, and its current state and reassuring the many parents who were concerned about it, is critical. From what the Minister of State has said, I know that he and his Department are working hard to ensure this agreement is signed as soon as possible. I hope that before the Bill is completed in the House and when Report Stage is being dealt with that he will have good news on that.
Will the Minister of State consider also the points made in the House about tracing? Some good comments were made yesterday on this matter, including the need for the tracing mechanisms to be put on a statutory footing. Will he consider as well the development of post-adoption services? Adoption does not end when the adoption order is made and a range of issues continue to arise. There is a need for statutory provision for the development of post-adoption services. The question of open adoption, which was discussed, and the changing face of adoption, both national and international, should be reflected to some degree in the legislation and some provision made to deal with the issues that arise.
We have made many of these points on Second Stage and Committee Stage discussions. I hope the Minister of State would be open to bringing back some amendments to the Bill at a later stage. It is the mark of a mature Minister or Minister of State to be open to amendments arising from discussions. We have seen increasingly that where amendments are worthwhile, they should be incorporated at a later point.
This legislation is very welcome because it brings Ireland into line with the Hague Convention. It is very overdue. Many people have been waiting for it for a long time because our adoption law has been outdated and has allowed confusion, insecurity and inconsistency to develop. This is major legislation and I congratulate the Minister of State and his officials on the work that has gone into it. I ask him to consider the discussions and amendments that were put forward, most of which have been withdrawn with the intention of resubmitting them on Report Stage and awaiting the outcome of the deliberations by the Minister of State and his Department on them.
Senator Jim Walsh: I have a request for the Minister of State on the same line of thought as Senator Fitzgerald. I mentioned this to him privately but I got delayed at a parliamentary party meeting which disabled me from being here to put it forward. I ask the Minister of State to examine section 121 for Report Stage. It raises a most serious issue. It deals with an employee of the authority who is immediately seconded from employment where he will lose his salary and, if I am interpreting it correctly, his pension rights for the period if he is elected to the Oireachtas, the European Parliament or a local authority. There may be a case regarding the Oireachtas and the European Parliament, which would be classified as full-time positions. However, if we are saying a person elected to a local authority is automatically seconded and therefore displaced from his or her employment for the period of local authority membership, we are sending an alarming signal for democracy. It says to all private sector employers that this should perhaps be a template for them and anybody elected to a local authority would not be able to hold down a full-time position. That would be a serious retrograde step. We are saying to local government that only people who are retired, unemployed or self-employed can participate in that very important arm of democracy.
If my interpretation is correct, I would express much opposition to that section and I ask the Minister to examine it closely. There is an anomaly in it because it specifies an employee of a local authority at a level below chief executive officer. If I am reading it correctly, that implies that a chief executive officer can run for the Seanad, the European Parliament, the Dáil or a local authority and still hold down his or her job but people below that level cannot do so. I do not see why that should be there, certainly regarding a member of a local authority.
I thank the Leas-Chathaoirleach for indulging me to allow me to make the point, given that I missed the section when it was discussed here.
Senator Ivana Bacik: I welcome the opportunity to comment on the Bill at the conclusion of Committee Stage and I look forward to making further contributions on Report Stage. As I did before, I welcome this Bill, as did people on both sides of the House. The debate on it has been extremely worthwhile and has, I hope, contributed to what will be an improvement of the Bill on Report Stage. I would like to mention some points the Minister indicated he would examine and about which I hope we can continue the debate on Report Stage.
There has been a great deal of discussion in the House on the bilateral agreements about the difficulties with Vietnam in particular and we will talk more on that on Report Stage. My colleague, Senator Norris, and I proposed amendments on eligibility to adopt for same-sex couples. During the course of the debate on that the Minister was open to the issue of same-sex couples and in particular to examining some way to accommodate those same-sex couples who already have children where adoption may not be the most appropriate procedure to give the child of that couple rights in respect of the non-birth parent. I hope the Minister will explore some other way, perhaps not in this Bill, to ensure the rights of children of same-sex parents are protected and that the rights and responsibilities of the non-birth parent are recognised in law. That is an important gap in our legislative system.
Another amendment I hope to make on Report Stage, which I raised a number of times on Committee Stage, is on long-term foster carers and making provision for children who are in long-term foster arrangements to ensure they have some protection beyond the minimum protection in the foster relationship in law. I am grateful to the Minister for expressing openness to examining the solution adopted in Britain in the 2002 Act, which was of special guardianship. In this country the special guardianship mechanism, which has been recommended by expert groups over a number of years, would give a facility for a more secure legal status for a child in long-term foster care short of the absolute cut-off from the birth parents that an adoption order entails. It is a different measure from adoption but it would allow a protected status for children in long-term foster care to have more security than they do now without cutting ties with their birth parents. I ask the Minister to examine that for Report Stage. There are some provisions in the Bill concerning foster carers and it would be appropriate to introduce some special guardianship through this Bill.
Many other issues were raised on Committee Stage and I will not rehash them all but I look forward to further debate on Report Stage. I thank the Minister for his openness to accept points made and agree to review issues and come back to us on Report Stage.
Deputy Barry Andrews: I thank all the contributors. I agree with Senator Bacik. Committee Stage has been extremely valuable to me in developing a deeper understanding of the legislation, and I am honest enough to admit that. We have considered and will consider all points and everything is being debated in the right way in the democratic process. It underlines the value of having two Houses of the Oireachtas. I am a fairly new Minister of State and when legislation is prepared there is no question that a genuine added value is provided by the analysis given by the Seanad with its unique voice and outlook in examining legislation — I am sure that is the case with all legislation.
I thank Senator Fitzgerald for her forbearance on the very sensitive issues we are trying to tackle regarding the Vietnam bilateral agreement. It is not something one can speak about as openly as one would like because of the international nature of the negotiations. I thank Senator Alex White for tabling many insightful amendments. I thank all the contributors, including Senators Mary White, Walsh, Bacik and others who made very valuable contributions over the past long few days. I also thank my officials who put such enormous work, dedication and insight into this.
Senator Mary M. White: Hear, hear.
Deputy Barry Andrews: I thank the Leas-Chathaoirleach for supervising the Bill.
Question put and agreed to.
Bill reported with amendments.
An Leas-Chathaoirleach: When is it proposed to take Report Stage?
Senator Mary M. White: Next Tuesday.
Report Stage ordered for Tuesday, 7 April 2009.
An Leas-Chathaoirleach: When is it proposed to sit again?
Senator Cecilia Keaveney: At noon next Tuesday.
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