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Dáil Éireann debate -
Wednesday, 11 Jun 1952

Vol. 132 No. 8

Adoption Bill, 1952—Second Stage (Resumed).

Mr. Byrne

Before the debate adjourned I was about to say that I gave the Bill my wholehearted support. The Bill does not seem to me to be altogether satisfactory, and I earnestly hope that, where the Minister finds defects in it and where he finds that it does not remedy the grievance which it set out to do, he will take steps to improve it until he makes it a success from the point of view of people who have adopted children. The Minister has made a certain number of people who have adopted children very happy as a result of this Bill. I congratulate him on accepting a measure which was very carefully thought out by the adoption society and by members of this House. I was one of the members of this House who, five or six years ago, found it extremely difficult to get anybody to take an interest in this matter. However, when it became public it was found that there were a very large number of people who had adopted children anxious that this Bill should be passed, so that the children would be protected. They found difficulty either in giving the children their own name or in procuring a birth certificate for them. The result was that where the adopting parents died the adopted child, where this child was looked on as one of the family, found himself in great difficulties. I have known of a case where a girl thought that she would share in a small property when the father of the family died. It turned out that she was an adopted child and that she was not aware of the fact. This discovery caused the girl great heartbreak and it also caused great heartbreak among the family. I earnestly trust that when the Minister comes across defects in the present Bill, he will remove them. It appears to me to be a step in the right direction and I hope that the House will give it unanimous support.

In company with other Deputies, I welcome the introduction of this Bill to the House, and its adoption by the Minister and by the Government. It is an important step, and an important move in the social legislation of this country. Indeed, a step in this direction has been long overdue. I feel that the Minister is wise in taking the line in this matter which he has indicated. Probably all that we would wish for is not in this Bill but, at least, it is a beginning, and progress will be made. The situation can be examined when the Act has been in force for some time.

There is one matter which I sincerely regret, and a matter to which I think the Minister should give further consideration. I am referring to the constitutional difficulties which he mentioned. I am not concerned with the neurotic demands of film stars so far as legal adoption is concerned, but with the urgent problems which we have in this country—problems arising from day to day, particularly in the part of the country from which I come. In that area there are migratory parents who have, in many instances, abandoned their children. These children have been left in the care of relatives. However, when the children are reared, and when the parents think they can make use of them, they reclaim them.

Some Deputies were speaking in this House about the psychological effect on some adopted illegitimate children of finding out, on reaching the age of 19 or 20, that the people upon whom they had looked as parents are not their parents at all. I would like somebody better qualified than I am from a medical point of view to explain to the House the psychological effect on children, who have been reared up to the ages of ten and 12 by their grandparents, of taking them away without their own consent and without the consent of the grandparents. I believe the psychological effect is, indeed, very dangerous in these cases, and I feel that some method should be adopted and some means found under this Bill of dealing with the problem. The case arises in this way down the country, particularly where the mother dies, in many cases in childbirth, leaving a few young children. The father possibly emigrates and these children are taken over by other relatives, by the grandparents or brothers and sisters of the parents of the children. As I say, these children are almost reared, and when they come to the age of 13 or 14 the parent who in many cases has not done anything to contribute to their support or taken any interest in them from the time they were left with their relatives, comes back to take them. As is quite natural where these children have been living with grandparents or other relatives, the relatives have become very much attached to them and have treated them, and are treating them as their own children; then one of the surviving parents comes along and upsets that position and insists on taking the children away.

We have also had a big increase in this kind of thing since the outbreak of the last war. I have come across a number of cases where children were sent back by parents, Irish citizens, who were temporarily resident in England, to relatives in this country at the beginning of the last war. In many cases after some three, four or five years, during which these people have failed to make any provision towards the support of these children, when the children have started to grow up, the parents are coming back here or trying to take the children back with them to conditions that possibly would be much worse than the conditions in which they now live. It is quite true that some provision is necessary on the lines that are in the Constitution. It is also true that this is a modern problem that is arising in these cases, and I feel that some provision could be made to deal with this issue outside the principle laid down in the Constitution to which the Minister has referred.

Another matter which strikes me about this Bill is that, going through it from end to end, I do not find any provision at all for naming the other type of children that this Bill deals with. I thought that one of the main defects in the law was that, unless the name was provided, people have to go to the expense of a deed poll in order to give those children a name. So far as I can see, there does not appear to be a provision here for naming them. There is a kind of negative section— sub-section (2) of Section 14: "A notice in regard to an adoption order shall not refer to the child's natural parents, former surname, place of birth or otherwise to his origin." Apart from that, I can find no provision under this Bill for legally naming an adopted child with the name of the parents. Surely, if these provisions are being made under this Bill it should not still be necessary for any purpose to put the parents to the expense and the trouble of acting through the form of a deed poll in order to name an adopted child. It is a matter which I feel will defeat the whole purpose of the measure unless some provision is made in Committee. If I am misreading the Bill, I am sure the Minister will inform me, but except in a negative kind of way that particular matter seems to have been overlooked. I compliment the Minister on having the courage to introduce this Bill and get it through this House.

Are you ashamed of it?

Reading the Bill I am ashamed of the Minister's predecessor who had not the moral courage to introduce it into the House. I do not see why this Bill should have been controversial. I do not see why any Minister for Justice who had the courage of his convictions should be either ashamed or afraid of introducing this type of Bill to the House.

You got the Bill only recently.

With all these smoke-screens that have been raised by some of the Deputies' colleagues in regard to this Bill one would think there was something extraordinary in it, that we as reasonable men and women in the House could not discuss the matter. When it was announced during the period of the Coalition Government by Deputy Dr. O'Higgins that that Government would not introduce a Legal Adoption Bill I thought there must be some extraordinarily insurmountable difficulties there. But this Bill, as presented to this House, seems to me to deal with a matter that badly wanted to be dealt with and, to my mind at all events, there does not appear to be anything in the Bill that should cause the House or any Deputy in the House any grave concern.

The only complaint that I really have about the Bill is that it does not evidently deal with the case of children whose parents have left them and the problems of some of those children. I hope that between this and the Report Stage of the Bill, the Minister will find some way of dealing with it. This is the first time this legislation has been introduced here, and when the Bill is on the Statute Book I am sure the Minister will find the House sympathetic if he finds in the working of this Bill any difficulty that needs to be dealt with by amending legislation. At all events the Minister has made a start, a start that is long overdue in connection with this matter in this country.

Is it possible for the children to have the name of the foster parents?

The Bill does not provide positively for giving the name of the foster-parents to the child. What I have suggested to the House is that positive steps should be taken under this Bill to enable the foster-parents to give their name to the child by virtue of this Bill.

I do not propose to deal with this Bill at any great length. I raise mainly to congratulate the Minister for bringing in this Bill. I personally feel that we have taken a great step forward in helping a lot of children who would otherwise not get the chance in life we would all like them to get. That is the underlying purpose of the Bill and whilst there may be, here and here, a point that will need to be dealt with at the Committee and Report Stages, I feel that, in the main, this is a Bill which gives great satisfaction to all sections of the community. I welcome it and propose to deal with certain minor points on the Committee Stage.

Mr. O'Higgins

Before the Minister concludes, I should like to make a few points. I have not had an opportunity of going through the Bill fully but I would like the Minister, in concluding, to deal with this matter that occurs to me in relation to the entire question of legal adoption. As a matter of fact, I had the benefit of reading, prior to its drafting, the original Bill which was introduced here as a Private Members' Bill, and I was concerned to find that under these provisions it was possible to have a natural mother or a father alienating their rights to a child under circumstances whereby their consent to alienation was not voluntary consent. I mean by that that a mother of an illegitimate child, by reason of hunger, want or poverty or matters of that kind might enter into an arrangement whereby she alienated her rights to her child and then, years later, perhaps her circumstances improving, set out to enforce her natural rights.

I have not had an opportunity of considering the Bill fully in relation to this, but I do notice that in Part II provision is made for the making of adoption orders, and in Part III, under Section 24, the effect of an adoption order is dealt with. In Section 24 (b) it is provided that the mother or guardian shall lose all parental rights and be free from all parental duties with respect to the child.

It is my personal view that no Parliament is entitled to destroy the natural rights of a parent in relation to a child unless there is a full and free consent. I can imagine circumstances in which such a full and free consent could not be given. It might be given verbally; it might be given in writing by a parent who, by circumstances, is driven to get rid of the child, but on examination later those circumstances would preclude the possibility of a voluntary consent. I hope the Minister will be able to satisfy me — I am sure he will —that care is taken under the Bill to ensure that every precaution is taken before a parent proceeds to deprive himself or herself of natural rights in that respect. Whatever good intentions might be behind our legislation here, we can never under any circumstances interfere with rights which exist anterior to this Parliament and which are natural rights.

I hope on Committee Stage to be able to explore this matter in detail and, if there are any defects in that respect, I am quite certain the Minister will consider sympathetically amendments designed to safeguard a situation such as that.

Apart from that, I, with Deputy Dockrell and other Deputies, welcome the proposition contained in the Bill of providing here some method for legal adoption. I do not think it is an occasion for Deputies to say across the House: "We are great fellows because we have done this". The facts are that for many years the want of this Bill has been felt in the country. The problem created by the illegitimate child did not start in 1948. People from another planet coming to the Strangers' Gallery in this Assembly, and listening to speeches such as we heard from Deputy Cowan and Deputy Moran, might perhaps think that this accident of birth was something that followed the events which led to the formation of the inter-Party Government. That, of course, is absurd, but it is the only way of dealing with some of the contributions on Second Reading of this Bill.

The facts are that we in this country in relation to many matters of this kind are far behind other countries, including our neighbours across the water. Our ideas in relation to legal reform are antiquated. There are many urgent problems of legal reform that require to be dealt with. Such reforms have been carried out in Britain as early as 1925 and in the period from 1925 to 1930. We are far behind them in relation to many of these matters.

The blame, if there is to be a blame, must be apportioned equally between succeeding native Governments from 1921 to date. Since, unfortunately, some Deputies speaking from the lefthand side of the Chair have sought to introduce a political element into this discussion, may I say that, as we all know, no credit for the introduction of this Bill should go to any Party in this House? The credit should go entirely to a hard-working conscientious body of people outside this House who for years back have advocated some measure of legal adoption. I refer to the Legal Adoption Society. It was merely because that society, week in and week out, month after month, year after year, continued to press their claims for such a measure that eventually the Bill was introduced. There are, unfortunately, other people, other sections, other classes that are affected by the need for legal reform that have not available to them a society such as that and who, accordingly, are unable to ventilate their claims for legal reform in other respects. I mention that because it is unhappy that matters of this kind should be drawn into the realms of political controversy.

Both sides have been equally to blame, if anyone is to blame. Both sides have been equally negligent, if anyone was negligent. Certainly, some 30 years after this Parliament was established, there is no Minister and no Government that can derive any satisfaction from the late entry of a Bill designed to bring about legal adoption.

The first step, and the only step so far, under our law in relation to legal adoption was taken in 1930 in the Legitimacy Act of that year. It was taken before the present Government came into office, when this country was ruled by its first native Government. That was a halting step but it provided that where the parents of a child born out of wedlock married, by a simple procedure the child could be declared to be legitimate and, having been so declared under the procedure set out in that Act, was entitled to all the rights accorded to legitimate children. That was a very considerable step, taken 22 years ago. It started the trend towards a more humane approach to these problems. It is a pity that the procedure initiated in the Act of 1930 was not carried on by the succeeding Government which came into office two years later.

They were too afraid of change.

Mr. O'Higgins

We have heard conservatism defined as "change in continuity and continuity in change," but maybe in matters of this kind we can be too conservative. We can maintain an undesirable condition of affairs merely because it has been always there and it is not a thing concerning which any one of us can derive any satisfaction. I am speaking purely as a person — I suppose I should not speak at all in the circumstances—who has not considered this Bill in any detail, apart from what I know of previous efforts to introduce a Bill of this kind. I do think that there are certain fundamental matters that must always be considered in relation to any measure of legal adoption. It is beyond our power to interfere with the natural law. In relation to children, natural rights can only cease in circumstances of full and free consent on the part of the natural parent. No legislation of ours can change that. I am sure that that particular matter was present to those who drafted this Bill. If proper precaution in that connection has not been taken in the Bill, I am certain that the Minister will consider the matter at a later stage.

I do want to say, in conclusion, that it is a rare thing for this House, even for an hour or two, to be asked to consider any measure of legal reform. An occasion such as this is far too infrequent in this House, and that fact, which is known to all of us, illustrates an extraordinary situation in this country, because the law — the common law, the statute law or whatever it may be — consists of the rules which regulate intercourse in society amongst all individuals in the State. It is of the utmost importance that these rules and regulations should not inflict hardship or injury upon any section of the community. We pass laws here from day to day and from week to week, and we get very bothered about them, but we leave unchanged and untouched an entire mass of legislation and of common law rules which are antiquated and out of date, which come to us from a period of 100 or 200 years ago, and which have no relation at all to the requirements and necessities of modern society.

Some of them go back 100 years.

Mr. O'Higgins

They go back further than that. I know that, in my experience of the last two years or so, I was interested to learn from the present British Home Secretary that, in the British House of Commons, some 15 years ago, there was established from amongst members of Parliament of both sides a particular committee in relation to legal reform. That committee has sat through different Houses of Commons and has considered regularly each quarter matters arising in relation to the problem of legal reform.

There is a dire necessity for it in this country.

Mr. O'Higgins

There is undoubtedly.

The Deputy is getting away from the question before the House.

Mr. O'Higgins

I only want to say that the work of that committee in the British House of Commons — it is an old bone of contention of mine — has led to the introduction in Britain in the last ten or 12 years of some of the most useful Bills dealing with injury and accident claims and a variety of other things which ordinarily would always be neglected in a Parliament more concerned with political and economic matters. I want to say, finally, that I welcome this Bill. I think it is somewhat belated in its arrival, but the fault is not confined to any side of the House. It is a good measure, and I think the Minister, who, by the accident of politics, happens to be the member of the House to introduce it, deserves every congratulation. Let us not forget that a tribute is due to the body who sponsored it outside, the Legal Adoption Society, a body who maintained public interest in this problem despite the rebuffs they got from both sides of the House. They kept the problem before the public until, eventually, this Bill was introduced. I hope that, at a later stage, we can go into the details of the Bill more carefully, but the principle of the measure is a praiseworthy principle, and I certainly welcome it.

May I say that I am also interested in the question of legal reform and I think before we left office we were about to set up a committee of the type to which the Deputy refers, a committee presided over by a High Court judge and with representatives of the Bar Council and the Incorporated Law Society? What became of that proposal I do not now know.

Mr. O'Higgins

I made a suggestion while the inter-Party Government was in office that if the lawyers on both sides of the House got together, perhaps some standing committee of Deputies might be formed.

Mr. Boland

I want to make it quite clear that, so far as I am concerned, I am claiming no particular credit for introducing this Bill. I have to admit that what Deputy MacEoin stated is true, that I did say on one occasion in 1943, although I did not recollect it at the time the statement was made, that there did not appear to be any demand for a measure of this kind. That was referring to an investigation which had taken place three or four years before —about 1939. We all know that there has been a demand for the Bill ever since. As I stated in my opening statement resolutions calling for such a measure were passed by the Dublin Corporation and the Cork Corporation and questions were asked here by Deputies in regard to the matter at various times. There cannot be any doubt whatever that there is a demand for the measure now, otherwise public representatives would not have concerned themselves so much with the question.

Undoubtedly, there were difficulties in the way and I think not the least valuable part of the work done by the adoption society was to take steps to have these difficulties largely removed. It was they who approached the Churches and asked for their views. I certainly join in the tributes paid to the adoption society. It is largely due to their activities and to the co-operation which they got from all sides of the House that it has been possible to bring the Bill before the House. I am aware that when we were in opposition, Deputies from all sides of the House were trying to find some way to bring in a satisfactory measure of this kind. As the Bill stands, I think it is fairly satisfactory though I agree that we shall have to amend it in certain details. Any defects that may be found in the Bill will get every consideration from my Department. All I want is to get as good a Bill as possible through the House. We all know that no matter how well we may try to do it we shall have amendments as time goes by when we find that provision has not been made for something which it is necessary to provide for.

Deputy O'Higgins raised the point about consent. I am satisfied that that is well covered by Section 15, which reads as follows:—

"(1) A consent shall not be valid unless it is given after the child has attained the age of six months and within three months of the application for adoption.

(2) (a) If the mother of an illegitimate child changes her religion within 12 months before the birth of the child, her consent to the adoption of the child shall not be valid unless it is given after the child attains the age of one year."

Mr. O'Higgins

That is in relation to religion.

That is generally the cause.

Mr. O'Higgins

I am imagining the case of a mother in dire circumstances, perhaps starving. We have all heard of the child left on the doorstep.

If the Deputy can find any way of safeguarding it better than we have done in the Bill, we shall be glad to hear it.

Mr. O'Higgins

We can consider it later.

I think religion is as well safeguarded in the section as it can be. I do not think there is any necessity for the provision which Deputy Moran thinks is necessary. The form of the Second Schedule is the same as that for a legitimately born child. Only the Christian name of the child is given. The name of the adopted parents will now be on the register and the Christian name of the child. We are satisfied, on the advice we have got, that that is all is necessary.

Most people were in agreement on Deputy Moran's point about legitimate children who are abandoned by their parents. I do not think there is any way of getting over that provision in the Constitution which says that the right of parents is inalienable. We are informed that we would jeopardise the whole Bill if we tried to take from the inalienable rights of parents. Although there may be the hardships which the Deputy mentions, I do not think we will be able to deal with them.

Mr. O'Higgins

Does Section 24 not seem to deal with that matter?

Deputy Moran raised the point about legitimate children who are deserted by their parents and who come back to them later on when they are grown-up and able to work and to be of use to them. I do not see how we can get over that difficulty once the children are legitimate. We would be afraid of interfering with the constitutional rights of parents.

I am glad of the reception which the Bill has received. I want to say again that I claim no particular credit for this Bill. The speed with which it was brought in was due, undoubtedly, to the introduction of the Private Bill. I had to declare my attitude when it came up for Second Reading. I went to the Government and told them that I thought that such a measure was long overdue. I was always keen on bringing in this Bill and I would have done so before when I was Minister for Justice if I could have got over the difficulties. We had to make a decision. I suggested that we should tell the Dáil that we would bring in a Bill which might be more satisfactory than the Private Members' Bill. That is the reason for the speed. I think I can say that if it had not been introduced I, personally, would have tried to bring in a Bill myself. I hope this measure will be successful and, as I say, I am glad that it has been well received. If, in the course of its operation as an Act, it is found to be wanting in some respect, then there is nothing wrong with some Minister's coming back and endeavouring to amend it in accordance with the steps shown to be necessary.

Question put and agreed to.
Committee Stage ordered provisionally for Wednesday, 25th June, 1952.
The Dáil adjourned at 4.25 p.m. until 3 p.m. on Tuesday, the 17th of June, 1952.
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