I move: "That the Bill be now read a Second Time."
When I took office I was very conscious that there was and that there had been for some time a persistent demand for changes in the Adoption Acts. I knew that my predecessor had announced his agreement with the need for change. As time permitted, I studied the representations that had been made and that continued to be made and I consulted the Adoption Board, the adoption societies and individual social workers. I say "as time permitted" for Deputies will, I am sure, appreciate that over the last year a great number of urgent matters have made demands on my time. I am glad, however, to be able to come before the House now with the present Bill which is the result of my study and which fairly represents the consensus of the views I listened to on the subject. I do not expect that this Bill will satisfy all the critics of the present law nor do I believe that it is necessarily the last Bill that will be introduced in relation to adoption.
I think that it is well to make the point during the debate on this Bill that adoption in our law is a voluntary arrangement which is, so to speak, ratified by An Bord Uchtála, the effect of the ratification being that the legal relationship of the child to the other parties is changed. The board's function is not to settle disputes as to custody but only to ensure that the adoption is in accordance with the Acts and that the adopters are suitable.
It would almost certainly be contrary to the Constitution to purport to confer on An Board Uchtála power to resolve disputes as to custody. Moreover, any changes in the Adoption Acts that would be likely to increase the risk of disputes in regard to the making of adoption orders would be undesirable since public confidence in the system could thereby very easily be shaken. In this connection I might say that over 20,000 adoption orders have so far been made and there have been no more than three or four cases when the action of the board has been challenged. This is a good record and we must be careful to ensure that it is maintained. As I have said elsewhere, it is a distinct advantage that we have been able to establish and maintain a system whereby all adoption orders are made by a single board rather than by a multiplicity of courts or boards as in most countries. However, the strain on the members who, apart from the chairman serve on a voluntary, unpaid basis, is considerable, and we are all much beholden to them. It is not generally realised that members meet three or four times in the week or that they can be called on at short notice to travel to provincial venues. I am glad to have this opportunity of paying tribute to them for too often they have to suffer inaccurate criticism from persons on the fringe of adoption work who have not a full realisation of the complexities of the subject. The proposal in the Bill for the appointment of a deputy chairman is intended to relieve the chairman of the necessity of having to be present at all meetings. This will give him more time for administrative and research work.
The criticisms of the present law deal, largely, with the following points:—
(a) limitation on adoption arising out of the religion of the parties;
(b) withholding or withdrawing consent by the mother raising the question of a time limit on consents;
(c) the low upper limit (seven years) on the age of a child eligible to be placed for adoption;
(d) the standards applied by adoption societies;
(e) private placements;
(f) the lack of provision for adopting a child who is neither illegitimate nor an orphan.
The Bill obviously does not go as far as some people would wish in dealing with the problem of the mother who withdraws her consent to her child's adoption or who withholds her consent even when she has parted with the child, perhaps for a considerable period. I am of opinion and have so provided in the Bill that this problem, involving as it does a question of custody, should be dealt with in the High Court and not by the board. In the case, therefore, of a procrastinating or indecisive mother, the adoptive parents may seek an order for the custody of the child and, if granted to them, the board may then make an adoption order on foot of it and notwithstanding the refusal or failure of the mother to make up her mind.
It will, of course, be necessary to consider whether rules of court can be devised to enable such applications to be heard in such a way as to preserve the anonymity of the parties. This is a difficult area because it is full of emotion involving the dilemma which must face every mother who considers adoption for her child. This provision seeks to resolve this dilemma in favour of the child and I am satisfied this is the correct approach in spite of the apparent harsh overriding of the mother's instinctive doubts. Family courts would be the ideal tribunal for such applications, but until we have such an institution, the High Court appears to be the most appropriate forum. I think it would be unsafe to go further than this, for example, by laying down absolute time limits, not least because to do so could, in some cases, have the effect of frightening off the mother from allowing her child to be placed with a family at all.
The Bill provides that a consent to adoption may be given at any time after the child has reached the age of six weeks instead of the age of six months as is the case now. There may be some misgivings about this since in some cases the mother's capacity to give a fully rational decision so soon after the birth might be in doubt, but the prevailing view in adoption circles favours this change. Indeed, it is contended that in most cases the mother in the months prior to the birth will have been giving thoughts to the idea of adoption. Again, looking at the problem from the point of view of the child, and I submit this is the right perspective, it is common case that the earlier a child can be placed, the better. In any event the mother will still have the right to withdraw her consent at any time before the making of the adoption order.
Perhaps the most widespread criticism of the present law was focused on the provision that, with relatively minor exceptions, required all parties to an adoption to be of the same religion. As I had told a conference of adoption workers in Limerick some weeks ago I had prepared a provision that would have met this criticism and, which, incidentally, would have covered the case that was before the High Court recently. This Bill was actually first ordered for the day on which the High Court judgment was pronounced, but it had to be withdrawn to enable the relevant provision to be redrafted in the light of the judgment.
The High Court decision has, in effect, swept away the provision in the Act completely. The Bill proposes formally to repeal the provision but it introduces the safeguard that a person whose consent is required to the making of an adoption order must know the religion of the adopter or adopters at the time his consent is given in cases where the parties are not all of the same religion. Section 3 as drafted might appear to go further than this and I will be proposing an amendment on Committee Stage to make it clear that it is only in cases where the adoptive parents and the child and its mother are not all of the same religion that the mother will be informed of the religion of each of the adoptive parents at the time she gives her consent.
This requirement might appear to some as having the effect of inhibiting placements with couples of differing religions by drawing the difference to the attention of the mother. It could also be objected to as allowing the mother something she has never had, an exclusion basic to adoption principles, that is an influence, though slight, in the choice of adoptive parents. The contrary view is that if this requirement were not present a mother would never know whether her child was in a mixed marriage or not and this could have two effects. It could inhibit mothers from placing children at all where they might have conscientious objection to placement in a mixed marriage or where a mother did consent it could lead to problems of scruples in later years for the mother. I will be glad to have the views and assistance of Deputies on this point.
Experience in the 21 years since the original Act came into force has thrown up cases, such as the case that resulted in the recent High Court judgment, where it was clearly anomalous and unfair that there could not be an adoption. These cases have been rare and unusual, however. The criticism levelled at the Acts in this connection has usually related to the fact that a married couple of different religions could not adopt. But this, in itself, did not represent a problem in so far as the welfare of the children was concerned, since there are always far more would-be adopters than children available for adoption. It could be then, that some modification of the present law in this regard might have served to eliminate the anomalous situations and be in conformity with the Constitution. The Government, however, have decided to accept the situation as it now is following the High Court judgment.
It has been contended on many occasions that abandoned or neglected children whose parents are living should be capable of being adopted. It is difficult to answer the criticism that an abandoned or neglected child is better in a new home than in an institution neglected by its natural parents. I sympathise completely with the humanity of that plea. I am advised, however, that the inalienable and imprescriptible rights guaranteed to the family by the Constitution make it impossible to extend the benefits of adoption to legitimate children whose parents are still living. While these children cannot be legally adopted it is true that people do take them into their homes and rear them as their own in the knowledge that the natural parents may sooner or later come to claim them. Of course, under our law, they can only successfully claim them if it is for the child's welfare that it be returned to its natural parents. If the contrary should be the case, the foster parents may seek to retain the custody of the child under the Guardianship of Infants Act which prescribes that the child's welfare shall be paramount. This would not have all the legal consequences of adoption but nevertheless would secure the wellbeing of the neglected or abandoned child. The Constitution in conferring inalienable rights and duties on the natural parents in a family has drawn a line in respect of permanent severance of those rights to the extent that it does not permit the extinguishment of those rights and duties in any formal way such as by an adoption order. This is an important principle and one whose validity is not necessarily impugned by the occurrence of some cases where parents quite clearly cannot or do not wish to exercise those duties.
One of the most frequent criticisms of the Adoption Acts in recent times is that they have no provision enabling the board to make "regulations" providing for "standards" to be followed by adoption societies. This criticism discounts the fact that the board's powers in relation to societies are very wide in as much as, under section 37 of the 1952 Act, the board may cancel the registration of any society if satisfied that it is not competent to discharge the obligations imposed on it under the Act or if it appears to the board that the requirements of the Act are not being adequately complied with by it or if anybody engaged in its management or control, or engaged in adoption work on its behalf, is not a fit and proper person so to act. In this connection it is essential to distinguish between procedure and standards. Guidelines have been laid down by the Adoption Board as regards pre-placement examination, post-placement inspection, medical examination and so on. What legislation cannot do is to ensure standards. The law cannot prescribe the level of efficiency at which any individual operates anymore than it can prescribe the adequacy of parents in looking after their children. I have discussed this matter with the Adoption Board and they have told me firmly that they do not need or want the power to make regulations binding on adoption societies. I must accept that advice.
It is well recognised that placements by private persons are in principle unsatisfactory and ought to be discouraged. Adoption societies exercise great care in selecting adopters. They keep in touch with the board and they develop an expertise. Even the best motivated and most careful layman is unlikely to be as competent as a society. In any case private placements are usually made in the interests of the mother or of the adopters and only secondarily in the interests of the child. I consider that private placements should be made by the parent of the child, who would usually be the mother, or unless the placement is with a relative of the child.
As I have already mentioned, section 2 of the Bill proposes that the consent of the child's mother or guardian or any person having charge or control over the child to the making of an adoption order shall not be necessary where custody of the child has been awarded to any person by the High Court, though it is not proposed to repeal the provision that where a person is a ward of court the consent shall not be dispensed with save with the sanction of the court.
Section 3 of the Bill provides that an adoption order shall not be made unless every person whose consent is necessary to the making of the order knows the religion, if any, of the applicant or of each of the applicants when he gives his consent.
Section 4 provides that, in addition to existing restrictions on the making of arrangements for adoption contained in section 34 of the 1952 Act, private placements made otherwise than direct by the child's parent or parents will be unlawful unless the placement is with a relative of the child.
Section 5 provides for the appointment of a deputy chairman to the board who may act for the chairman in the latter's absence. At present whenever the chairman is unable to act it is necessary for the Government to formally appoint an acting chairman.
Section 15 of the Adoption Act, 1952, provides that a consent shall not be valid unless it is given after the child has attained the age of six months and not earlier than three months before the application for the adoption order. Section 6 of the Bill provides for the reduction of this period to six weeks. This does not affect the right of the mother to withdraw her consent at any time before the making of the adoption order. Section 15 of the 1952 Act further provides that if the mother of an illegitimate child changes her religion either during the 12 months before the birth or within 12 months afterwards, her consent to the adoption of the child may not be given for 12 months after the change of religion or 12 months after the child's birth whichever is the later. It is not proposed that this provision be re-enacted.
Section 7 proposes to empower the board to prescribe that a child must be in the care of the applicants for an adoption order for a specified period before an adoption order can be made. It also provides that the board may, having regard to the particular circumstances of the case, make an adoption order in respect of a child notwithstanding that the child has not been in the care of the applicants for the period prescribed. It has been the board's practice to insist that a child be in the care of the adopters for a probationary period before an adoption order is made. It is recognised that, generally speaking, a period of at least six months is needed for all concerned to assess whether the adoption is likely to be a success. The proposal is to give the board power to prescribe a probationary period.
Section 8 provides that the entry in the Adopted Children Register shall be in the form provided for in section 22 of the 1952 Act and set out in the Second Schedule to that Act or in such other form as may be approved from time to time by the Minister for Justice with the consent of the Minister for Health and shall contain the particulars required by such form. This technical provision has been included at the request of the Minister for Health.
Section 9 provides that where the board is satisfied that in the particular circumstances of the case it is desirable to do so, it may make an adoption order in respect of a child who was more than seven years of age at the date of the application for the order. It is recognised that the younger a child is when placed for adoption the better the prospects are for integration in the adoptive family. Nevertheless, situations could possibly arise where it would be desirable to make an adoption order when a child is more than seven years of age. The board have asked for this power.
Section 10 provides for the payment of remuneration to the deputy chairman when he is acting as chairman.
Section 11 and the Schedule to the Bill provide for the repeal of certain provisions in the Principal Act and in the 1964 Act. Section 12 of the Principal Act and section 6 of the 1964 Act are the sections relating to religion.
Section 16 of the Principal Act sets out the persons entitled to be heard by the board before the board decide on an application for an adoption order. One of the persons listed is a priest or minister of a religion "recognised by the Constitution". This phrase has been rendered meaningless by the referendum which removed subsections 2 and 3 of Article 44 from the Constitution. I consider, however, that the phrase should be formally deleted from the Act. The other repeals are consequential.
I should like to say that my study of adoption laws convinced me of the vital necessity for adoption societies to maintain high standards and to employ expert personnel. Societies are responsible for 80 per cent of all placements and their work is highly specialised and delicate. I should like to pay a tribute to the societies, big and small, who have done great work down the years without any State subvention. Some of them have highly professional personnel and have always maintained standards beyond any that could properly be insisted on by the board or by any other public agency, indeed to the extent of causing disappointment to many would-be adopters by the care they take to select for the children entrusted to them the most suitable homes from among the many available. Early in my term of office I realised that the societies were in need of such a subvention and I very easily persuaded my colleague, the Minister for Finance, to provide me with the resources to make an annual grant to any society that made a case for it. My basic aim is to enable the societies to employ professional social workers on a more extensive scale than they have hitherto been in a position to do.
Finally, let me return again to a point I mentioned earlier, namely, research in the field of adoption. Regrettably there has been little or no research in the field in this country despite the advantages for the purpose afforded by our centralised system. Now that our system has attained its majority it is appropriate that research should be undertaken to establish its particular strengths or weaknesses as well, of course, as the strengths and weaknesses of adoption in general. It is my intention to encourage such research and I shall be prepared to seek any necessary financial backing for suitable projects.
I commend the Bill to the House and I look forward to a constructive debate on a highly important and sensitive subject which is, I believe, entirely non-political. I shall consider carefully all ideas and suggestions that Deputies put forward.