Dáil Éireann debate -
Thursday, 20 Jun 1974

Vol. 273 No. 9

Adoption Bill, 1974: Committee Stage.

Section 1 agreed to.

NEW SECTION.

Minister for Justice (Mr. Cooney)

I move amendment No. 1: Before section 2 to insert a new section as follows: "(1) Subject to subsection (2) of this section, where pursuant to an order of the High Court the custody of a child has been given to any person, the consent of any other person to the making of an order for the adoption of the child by that person or by that person and his spouse shall not be necessary. (2) The consent of a ward of court shall not be dispensed with except with the sanction of the court."

The section 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 the order shall not be necessary where custody of the child has been awarded to any person by the High Court. This was to meet the difficulty of the procrastinating mother or the mother who withdraws consent and refuses to do one thing or the other. The intention is that if the High Court makes an order for custody the Adoption Board may make an adoption order on foot of that. From the point of view of drafting, it has been necessary to introduce the amendment to ensure that if the person whose consent is needed is a ward of court, the consent of the court on behalf of that ward will not be dispensed with.

Mr. O'Malley

I take it it is where the mother is a ward of court rather than the child?

Mr. Cooney

Yes.

Amendment agreed to.

Section 2 deleted.

NEW SECTION.

Mr. Cooney

I move amendment No. 2:

Before section 3 to insert a new section as follows:

"An adoption order shall not be made in any case where the applicants, the child and his parents, or, if the child is illegitimate, his mother, are not all of the same religion, unless every person whose consent to the making of the order is required by section 14 of the Principal Act or by section 2 of the Adoption Act, 1964, knows the religion (if any) of each of the applicants when he gives his consent."

The section, as drafted, 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 each of the applicants when he gives his consent. During the Second Stage I proposed to amend the section on Committee Stage to make it clear that it is only in cases where the adoptive parents, the child and the mother are not all of the same religion that the mother must be informed of the religion of each of the adoptive parents at the time she gives consent.

The substance of the change is not very great; it is more a change of emphasis than of substance. In all adoption cases the question of the religion of the adoptive parents is brought into issue under the section as it stands. I intend that it be brought into issue only in cases where the adopting parents and the child are not all of the same religion. As a matter of practice, the question of the religion of the adopting parents will always come into issue because most children are placed by adoption societies and in this country most of them are organised by the churches.

The various churches will continue to endeavour to ensure that children of their religion are placed with parents of that religion.

Mr. O'Malley

I have no objection to the amendment which is necessary. The wording of section 3 as it stood originally was not desirable because it brought up the question of religion every time an order was made, on the assumption that the board would be precluded from making an order, as things stood, if there was a difference of religion.

The section should go slightly beyond what is proposed in this amendment. I know that in practice what I am going to talk about would rarely, if ever, happen particularly as the great majority of adoptions are arranged by societies, as the Minister has pointed out. However, there are occasions when they are not so arranged, and in particular the mother, who has to give her consent, is not precluded from arranging it if she so desires. She cannot be precluded. In order to safeguard the situation, I suggest to the Minister that in no case, even if the mother consented, should a child be adopted by a couple unless at least one of the prospective adoptive parents is of the same religion as the child.

Under the section as amended, in theory at least, provided the mother did not disagree, a child of a particular religion could be adopted lawfully by a couple neither of whom professed the same religion as the child. I do not think we should allow that to happen. It would only arise where the mother was not very caring about these matters, but there have always been safeguards in relation to religion in our adoption legislation and I think the religion of the child should be safeguarded, and continue to be safeguarded, even if the mother were of such a kind that she did not greatly care about religion, or in particular, her child's religion.

When I was originally discussing with officials the drafting of the kind of amendment to the 1952 and 1964 Acts that would allow adoption by a couple in what is called a mixed marriage—I referred to this in my speech in the Seanad on Senator Robinson's Bill in 1972—the form of amendment I had decided on was to provide that the board could make an order where the religion of the child was the same as the religion of one of the prospective adoptors assuming they were a couple, or the same as the religion of the prospective adoptor where a couple were not involved.

There is a slight loophole in the way the Minister has expressed it here and I think the way I had in mind originally would be preferable. It would ensure that in no case could there be a situation in which a couple would adopt a child but neither of the adoptors would be of the same religion. Under the section as amended and, provided the mother did not disagree, a child of a particular religion could be adopted by a couple each of whose religions was different from that of the child. It could only arise where the mother does not take the normal sort of care or interest one would expect a natural mother to take, but we must realise that the natural mother in a situation like this is frequently less intelligent than average, is frequently in considerable distress and under a far higher degree of emotional strain than a married mother would be after the birth of the child. Frequently the decision has to be made within a matter of days after the birth; sometimes the decision is made before the birth, often quite properly so. One of the reasons for that is that the natural mother never sees her child and that may be for the benefit of all concerned. Because the decision is made at a time of great stress the question of the child's religion should be safeguarded lest in the rather traumatic time that she is going through, the mother were to consent to the child's adoption by a couple, neither of whom professed the same religion as the child.

Mr. Cooney

I take the Deputy's point but in a situation like this all we can do is provide that the mother —the person whose rights are in question at this stage, along with the rights of the child—be informed if the adoptive parents are not of the same religion as herself. The Deputy envisages a situation where the mother is careless or not concerned about the child's religious upbringing. Of course a child cannot have any religion apart from the religion of its mother and if its mother has no religion or cares so little about her nominal religion that she is prepared to allow her child to be adopted by people both professing a religion different from that which he nominally accedes to, then I think it would be an interference for anyone to come in and say to that mother: "You cannot give your child to those two good people, you must give your child to a couple one of whom is of the same religion as you nominally profess". I do not know whether that would be proper. I think it would be an interference with the mother's right at that stage to ensure that her child was placed to its best advantage. This presumably can only happen in the case where the child is being placed by the mother personally because one would imagine that if the child is given to a society for placement, most of the societies are organised by the churches they will take steps to ensure that it is only their co-religionists who will be given the child for adoption. It would be only in a situation where the mother herself places the child for adoption and I think we fulfil our obligations to the child if we make it obligatory that the mother be made aware of the religion of the parties if the religion differs from her own and that of her child. Of course, a child cannot have any religion other than the mother's religion. I believe that is sufficient safeguard in the situation.

The Deputy made the point that the mother is in such a situation after a traumatic experience that her judgment might possibly be impaired. I concede that that may be so but nevertheless as a matter of adoption practice the Adoption Board generally allow a period of six months to elapse from the placement to the making of the adoption order and during that six months a mother can at any time withdraw her consent if she decides that the religious requirements for her child's future are in jeopardy. There is a safeguard there. I think we can only go as far as drawing the mother's attention to the fact that the proposed adoptive parents are not both of the same religion as herself when such is the case. I do not think we can go further and have a provision whereby the State says to a mother: "You can only place your child with parents one of whom is of a certain religion" on the basis that that religion appears to be the religion professed by the mother.

Mr. O'Malley

The Minister is implying that a mother who might act in this way is necessarily deficient in her duties and obligations. I tried when I spoke earlier to point out that the period before and after the birth of an illegitimate child can be very distressing indeed for the mother of that child, much more so than for a married woman, for a variety of reasons that are quite obvious. It must be recognised that not infrequently the mother of such a child at and around the time of the birth can have her judgment impaired. She is not necessarily deficient in her duties to her own religion or to general morality in acting in such a way. Perhaps she might not do it if she were in a different place and at a different time.

The reality of this section, as amended, is allowing couples in a mixed marriage to adopt because that is the net difference between what was the law and what is the law so far as religion and so on is concerned. I am fully in agreement with that. I announced it in 1972 but I announced at the time the way that I proposed to word the section which would allow that and that would have got over the problem that I have been talking about. The way I proposed to word it was that the board would have jurisdiction to make an order where the religion of at least one of the prospective adoptors was the same as the religion of the child. That would get over this problem.

I can see the possibility of this arising and I can see people who may not realise the potential difficulty here becoming very agitated perhaps in a year's time or so when a thing like this happens. It would be preferable that we would get over the problem now. I think we might get over it by simply adding a proviso at the end on the lines that I have indicated which would clarify the matter and prevent something which I think we are all agreed would be undesirable, in other words, that a child of a particular religion would, even with the consent of the mother, be adopted into a household in which that religion was not professed and presumably would, therefore, be brought up in a religion other than that into which it was born. There is, of course, a perfect right on the part of natural parents or of adoptive parents, after they get an adoption order to change their religion and correspondingly the religion of their child but that is only after the order has been made in the case of adoptive parents. I do not think that the child should be put immediately into the position that before he is legally adopted his religion has to be changed. I am not making this point on behalf of any religion. I am just pointing it out as a difficulty that I think exists that may not have been foreseen and that could cause some difficulty afterwards for some people in certain circumstances.

Mr. Healy

I appeal to the Minister to give sympathetic consideration to the case made by Deputy O'Malley. I do not think there is any great difference between us on either side of the House about this possibility. We are not legislating for the present time and we are certainly not legislating for the past. We are legislating for the future. We know how things have changed very rapidly in the recent past and they will change probably more rapidly in the future. If this is some safeguard for the sake of doing the right thing now rather than bringing in amending legislation later we should do the little bit asked for, if there is any possibility whatever of it happening.

Mr. Cooney

The position regarding the religious clauses has been changed completely by the recent High Court decision. I am not prepared to say now whether what the Deputies opposite asked is possible, having regard to the findings of the High Court. It may be that the findings of the High Court are an obstacle in that regard. I will consider sympathetically what the Deputies have to say. I am still strongly of the original view I expressed here that all the State should do is to draw the mother's attention to the fact that the religion of both the adopting parents is not the same as her own. I think the State's obligation is ended there.

We are talking about the mother placing the child herself. If denominational adoption societies place the child they place it with their co-religionists. All the State can say to the mother who is placing the child herself is: "Look these two people are not of the same religion as your child." That is the end of the State's obligation. If the mother decides she wants to place her child with two people, neither of whom professes the same religion as herself, and if she in her judgment considers that her child's future is best served with these people, notwithstanding the differing religions, then it raises the point whether the State is entitled to prevent that mother doing what she thinks best in conscience for her child. In other words, are we entitled to say that a mother must insist that her child be reared in the religion she professes whether nominally or really? If she really professes it the situation will not arise. We are dealing with the situation where she nominally professes it or, as Deputy O'Malley said, her judgment is impaired. If she only nominally professes it and she decides her child's best future is with those people, why should we interfere with her judgment? Is Big Brother entitled to say: "You are wrong, madam, your child's future is in jeopardy"?

On the other hand, if it is a question that her judgment is impaired, due to the proximity of the birth, there is a waiting period of six months during which she can withdraw her consent if on reflection she feels she made a mistake. These are the arguments why I would be very slow to accept what is said on the other side of the House. There is the further complication of the High Court decision. I appreciate the weight of the point and I appreciate it is one which will cause considerable concern. For these considerations I will consider the matter between now and the next Stage.

An Ceann Comhairle

Is the amendment agreed?

Mr. O'Malley

Yes. In view of the fact that this is a new section and I hope there will be an amendment to it on the next Stage could the section be recommitted at that Stage to allow a debate on it?

Mr. Cooney

I agree to that.

Amendment agreed to.

Section 3 deleted.

Section 4 agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill".

Mr. O'Malley

I take it that it is envisaged to appoint a kind of semipermanent deputy, that it will be the same man who is appointed to act as required but that he will only be paid in respect of such periods as he actually acts as chairman, that there will not be a salary for the post of deputy chairman as such?

Mr. Cooney

No. The Deputy can take it that the deputy chairman will be the same person and that he will only be paid for the time he acts. It is specifically provided for in a later section.

Question put and agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill".

Mr. O'Malley

This is something I spoke about at some length in the Seanad when I discussed the Adoption Bill, 1971, there. My proposal was to fix a period of either two or three months subsequent to the birth as being the earliest time after which a consent could be given. I know the Minister spoke about six weeks and I have no objection to that. However, I would point out to him that he has only in the last few minutes spoken about a waiting period of six months within which consent could be withdrawn. I do not think that is so, unless you take into account what is suggested in section 7 (1) that the board could prescribe a period of care, but that of course it would not be an immutable period.

A lot of people will be very disappointed if the Board prescribe a period as long as six months because many adopting parents to whom I have spoken about this matter spoke with horror of this terribly long waiting period. At the moment most of them wait a little over six months and they find that terribly long. Many of them were under the impression that when these amendments to the legislation were proposed the final order would be made after the child had attained six or seven weeks. I know in many cases it would be undesirable to do that because the prospective adoptors might prove to be utterly unsuitable.

It is no harm to point out that if a six month period is likely to be prescribed by the board what we are proposing to do in section 6 will not matter very much in practice anyway because the waiting period will be at least six months. It will not make in practice much difference to the present situation. If the mother gives her consent after six weeks but can withdraw it any time up to six, seven or eight months and if the board feel that the probationary period has been long enough and has been satisfactorily complied with by the applicants, then they are really back in the position in which they are at the moment. It has been a cause of great distress and worry to people who have grown extremely attached to particular children and who have seen these children they had come to regard as their own snatched away from them by what they regard as almost unnatural mothers. Happily, that has only happened in rare cases. The board appear to be given considerable discretion about fixing the period. I would suggest that they might well consider not having any set period but should judge each case on its merits and one of the merits would be the well-being of the new family.

Mr. Cooney

This section introduces quite a radical change. Up to now the board could not make an order until the child was six months old. Now they can make an order when the child is six weeks old if the mother gives her consent. The board can literally make the order for adoption when the child is six weeks and one day old. Under the previous position the child could not be adopted at under six months of age. The board will have discretion to shorten the period. There are two advantages in this. By shortening the period the board can remove the anxiety of parents in a situation where the board for a variety of reasons waives the normal probationary period. The second advantage is that, if the mother wants to get over this emotional experience of parting with her child, she can now give her consent to the adoption of the child when the child is six weeks old and go back to normal life again. From the mother's point of view that is an advantage.

I should not like to see the board reduce the six months probationary period as a general rule because it is well accepted adoption practice, and not only in this country but internationally, that a period of six months probation is usually required to ensure that a proper assessment of the adopting parents as to suitability and so on can be made. Likewise the child can be assessed to ensure that it is settling in well in its new home. Any shorter period would be a bit unreal and I anticipate that in future the vast majority of adoptions will still be subject to this six months delay before the final order is made.

I think this period is right. It is unfortunate that the adopting parents will have to go through this rather agonising period during which there is still a slight question mark in that the mother may withdraw her consent, but this is a risk that has to be taken. This agonising period has to be faced for the greater good of ensuring that the adopting parents are properly assessed and that the child is settling in in its new home. This is what we must aim at. In practice therefore while the law will permit earlier adoption the vast majority of adoptions will not take place until six months have elapsed. If there should be a situation in which in the judgment of the board the order could be made after six weeks, the mother having given her consent as she will be able to do under this legislation, the board can then and there make the adoption order. I rather imagine that will be a rare case. The change is not designed to obviate the agonising waiting period. That is not the purpose of the change. The idea is to allow the mother to consent at an earlier stage if she wants to place her baby finally and allow the board, where discretion permits it and where it thinks proper, to make an earlier order than the probationary period of six months.

Mr. Healy

I welcome this section. There is a case to be made for the family not adopting for the first time. In such a case the board is aware of the suitability of the family and there should be no need to have a waiting period of six months.

Mr. Cooney

The board will have discretion to make the order as soon as the mother gives her consent and she can give her consent when the baby is six months old.

Question put and agreed to.

Section 7 agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill".

Mr. O'Malley

I want to make a suggestion not in relation to the entry made in the register of adoptions but rather in relation to the entry made in the register of births arising from the entry in the register of adoptions. I am sure the Minister appreciates that problems arise from time to time in relation to some birth certificates and I wonder if those problems could be overcome in consultation.

Mr. Cooney

What sort of problems?

Mr. O'Malley

The fact that the child is adopted.

Mr. Cooney

The word "adopted" appearing on the certificate.

Mr. O'Malley

On at least one form of the certificate. It would be preferable if disclosure of that fact could be avoided.

Mr. Cooney

I know this argument and I sympathise with it. It is only in the long form of the birth certificate that the fact that the child is adopted appears. There is no mention of this fact on the short form. The latter is acceptable, of course, for nearly all purposes.

There are two reasons why I would be against changing the present system. I am advised very strongly, and the advice is unanimous, by people working in this field that the adopted children should be told as early as possible of their status so that they can adjust to it and grow up with it as part of their normal existence. Usually, if this is done, there are no emotional complications where the child is concerned. These arise only where the child is reared in the belief that it is the natural child of the parents and then learns the truth in mid-teens or later. The knowledge can then cause quite an emotional upset. Adopting parents are encouraged to tell the children as soon as possible what their status is. If that practice is followed the presence of the word "adopted" on the long form of the birth certificate on the rare occasions on which it has to be produced will not cause any embarrassment to or difficulty for the child. If adopting parents neglect to carry out this advice there can be hardship and emotional upset if the long form of the certificate becomes the cause of the child's learning its true status. Again we have to balance this against the fact that birth certificates are official documents, part of State records, and they must mean precisely what they say, so that if any question of ancestry or record-searching or anything like that arises those relying on State records must be able to rely on them implicitly, and they must therefore be accurate.

If the long form of birth certificate of an adopted child were not to have the word "adopted" on it, that certificate would not be an accurate record, and it would throw the entire public records of the State into some disrepute in an area where they can be of considerable importance where a question of ancestry for genealogical or succession purposes may be involved. I sympathise with the point of view put forward by the Deputy, which I have heard before, asking that the word "adopted" be removed from the full form but I think that for those two reasons it could not be adopted.

Question put and agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill".

Mr. O'Malley

When I was thinking about this problem of the age limit of seven years when I was considering amendments to the existing Acts, the argument was very strongly put to me by some societies and others that to remove altogether a pretty low age limit, such as seven years, would lead in their view, and had apparently led in the past prior to 1964, to the undue postponement of adoption orders or, more accurately, to the undue postponement of the making of application for orders. The board suggested that an amendment should be made to the 1964 Act which, while giving the board certain discretion, also limited them in some way. There is a danger that, if people feel they can adopt a child at any age, some of them at least will tend to put off the adoption until an age that is too late to benefit the child as adoption should.

The other point, although it is, if you like, the very opposite of this argument, is that there are still many people who are now old and who were informally adopted in the sense that when they were young and when they were actually adopted there was no procedure or legislation under which they could be formally adopted. A great many of those people for one reason or another have no birth certificates and are unable to obtain them. I know of at least one person who is now of pensionable age but has been unable to get a pension to which he is otherwise entitled because he has not got a birth certificate because he was informally adopted. Naturally enough, he does not know who his mother was, or where or when he was adopted, or where or when he was born.

I am making two separate and distinct points, one being not necessarily my own opinion but an opinion which was expressed pretty forcibly to me at the time, which was that there are certain undesirable consequences about raising the age. At the other extreme end of the scale I am referring to the problem of people of middle age and old age who did not have the advantages of this system and who are running into a lot of difficulty as a result. I want to inquire whether the Adoption Board would be able to do anything for people in these circumstances. Both their adoptive parents now being dead, presumably they could not. This is a serious difficulty which is very hard to resolve.

Mr. Cooney

There is no doubt that good adoption practice demands that babies be adopted at the earliest stage possible. Any research which has been done shows that those adopted earliest integrate best and turn out best in later life. Those who come later to the new home very often are children who experience emotional and other upsets in their 'teens and early adulthood. It is good practice and it is universally accepted that adoption should take place at the earliest possible time.

The power in this section was requested by the board. I had discussions with them on it and I raised this argument with them: would it lead to postponement of adoption? It is their collective judgment that it will not lead to any postponement of applications for adoptions. They feel that the balance requires that they should have this discretion to make an order where the child is more than seven years of age.

The other point mentioned by Deputy O'Malley with regard to older people has raised a question for me because, as drafted, the section merely deals with an adoption order in respect of a child who is more than seven years of age. That is not openended after seven years because the parent Act, the 1952 Act, defines a child as meaning, save where the context otherwise requires, any person under 21 years. In effect, what we are doing is giving the board power to make adoption orders up to a maximum of 21 years of age. Consideration now has to be given to whether we should change the word "child" to "person" to deal with the type of case mentioned by the Deputy. We will look at that between now and Report Stage.

Mr. O'Malley

The Minister or his officials might inquire from the board whether, even if that change were made from "child" to "person", they could do anything for a person who is so old that both his adoptive parents are long since dead.

Mr. Cooney

There cannot be an adoption order because it has to be in favour of adoptive parents. There is no cure for that situation.

Question put and agreed to.

Sections 10 to 12, inclusive, agreed

Schedule agreed to.

Title agreed to.

Bill reported with amendments.

An Ceann Comhairle

When is it proposed to take Report Stage?

Mr. O'Malley

In two weeks.

Mr. Cooney

That is a bit long. It has to go through the Seanad. Only one point is involved and that is the matter arising out of section 3. We will have our minds made up on that inside the next couple of days. I suggest that it could be ordered for next Wednesday.

Report Stage ordered for Wednesday 26th June, 1974.

The Dáil adjourned at 9 p.m. until 10.30 a.m. on Friday, 21st June, 1974.