Vol. 274 No. 10
I move: "That the Committee agree with the Seanad in amendment No. 1."
Section 2: Before section 2 a new section inserted as follows:
In any matter, application or proceedings before the Board or any court relating to the arrangements for or the making of an adoption order, the Board or the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration.
One wonders about the efficacy of this amendment in legislation. It is a statement of intent, nothing more and nothing less. When I was speaking on the Second Stage I proposed that this Bill should be child-centred rather than mother-centred. I suggested that it should be discussed in that context, not dismissing the mother's entitlement and rights and having regard to her position. One wonders if this is a piece of legislative piety and if it is necessary in the Bill. It does not affect the Bill one way or the other. The legislation dealing with adoption was brought in with the Principal Act, 1952, amended by the 1964 Act and this is a consequential Bill. One must see this as a statement of intent and nothing more. It has no legal efficacy, as I understand it.
The board have been doing a very good job over the years. They decide the questions relating to the arrangements for the making of an adoption order. They keep in mind the welfare of the child as a first and paramount consideration. As I said, one wonders if this type of statement of intent is necessary in a Bill of this or any kind. In two pieces of legislation in which I was participating, the Prosecution of Offences Bill and the Contraception Bill, there were a number of sections setting out a given position. When it came to enforcing the sections there was no enforcement for the actual sections themselves.
When replying the Minister might let us know from what Senator or Senators these amendments came. Did the Minister propose the amendments himself, or did a Senator not a member of the Minister's party propose the amendments? I am not making an issue of this but it is as well to know the source of the amendments from the Seanad. For the general information of the Dáil I think the source of amendments, particularly from the Seanad, is important.
I have no objection to naming the Senator in this House but it strikes me as a principle which is somewhat odd. These amendments were accepted by the Seanad as a whole. It would be invidious to mention a particular Senator by name in this House.
What I really wanted to know was if these were the Minister's amendments.
No, this one is not.
I take the Minister's point.
I agreed to this amendment in the Seanad. It could possibly be of assistance to the courts in an interpretative sense. I cannot visualise in what actual instance it might be so but it could be of assistance to the court if the court had a choice. It could compel the court to lean in favour of the child. There can be no doubt about that. There is a precedent for this in the Guardianship of Infants Act, 1964. It is almost word for word with the interpretative direction given in that Act that the child's welfare must be paramount. I saw no good reason for not agreeing to accept it in the Seanad. It sets out what we all want and what I think is already effective in regard to the operation of these Acts, although they have been unjustly criticised as being mother-centred. In other words, this is expressing what is already a factual position.
It will not impose any additional burden on the Adoption Board or on the courts. It is no harm to have a clear expression of the Legislatures' intention contained in the Act itself. As the House is aware, the courts are by convention precluded from looking to the debates in this House for assistance in interpreting a statute. They are confined to the bare words of the statute. They cannot even look to the side note. In an area like this, lest there be any doubt, it does not do any harm to spell out to the court what the Legislature's intention was. That was the reason for the amendment. It does not conflict with the principle of the Acts. In fact, it confirms it. Deputy Andrews in his Second Stage speech said that this emphasis in favour of the child is the proper emphasis in the adoption code.
Since amendment No. 3 is consequential, on amendment No. 2, I suggest that we take them together.
I move: "That the Committee agree with the Seanad in amendment No. 2."
NEW SECTION: Before section 2 a new section inserted as follows:
"2. (1) In any case where a person has applied for an adoption order relating to a child and any person whose consent to the making of an adoption order relating to the child is necessary and who has agreed to the placing of the child for adoption either—
(a) fails, neglects or refuses to give his consent, or
(b) withdraws a consent already given,
the applicant for the adoption order may apply to the High Court for order under this section—
(2) The High Court, if it is satisfied that it is in the best interests of the child so to do, may make an order under this section—
(a) giving custody of the child to the applicant for such period as the Court may determine, and
(b) authorising the Board to dispense with the consent of the other person referred to in subsection (1) of this section to the making of an adoption order in favour of the applicant during the period aforesaid.
(3) The consent of a ward of court shall not be dispensed with by virtue of a High Court Order under this section except with the sanction of the Court."
Amendment No. 2 relates to the problems which this Bill sets out to cure, namely, the case of the mother who delays unduly in giving her consent or withdraws her consent and then does not do anything about taking the child into her care but leaves the child with the adoptive parents without finalising their position. The amendment has made it clear that the High Court has a jurisdiction on the application from the adoptive parents to make an order for the custody of a child in these circumstances. On the making of the custody order the Adoption Board are then free to make an adoption order. As originally drafted the section might not have enabled adoptive parents to have access to the High Court. This was drafted on the assumption that every citizen had as of right the entitlement to go to the High Court for relief in any matter. Lest there be any doubt about that, this opportunity was taken to clarify the position and a positive right was given in the section as redrafted.
Again, it was felt necessary to provide in this section that there should be a time-limit on the custody as given by the High Court. It is necessary to provide in this section that if the board wished to make an adoption order without the consent of the mother it must do so within the time specified by the court in the order. This is to avoid a continuance of the situation which the section is designed to cure, namely, an undue delay on the part of finalising adoption proceedings. That is bad for the child and for the parents.
I move "That the Committee agree with the Seanad in amendment No. 3."
Section deleted.
Amendment No. 3 provides for the deletion of the section in the Act as originally drafted.
As I understand it, this will become a new section 3 in the Act which deletes section 2 in the Bill we have before us. There is one matter which concerns me—and I do not know if the Minister has satisfactorily explained it—in relation to the second amendment, which sets out:
(2) The High Court, if it is satisfied that it is in the best interests of the child so to do, may make an order under this section—(a) giving custody of the child to the applicant for such period as the Court may determine,...
Is there not an element of uncertainty there? Would the Minister not agree with me that the purpose of giving custody of children to adoptive parents is that it is a once-and-for-all custody and that the child is adopted finally in relation to the adoption order which is made.
Can the Minister explain what the phrase:
giving custody of the child to the applicant for such period as the Court may determine,
means? Can the Minister explain in greater depth and to the satisfaction of the House what exactly that means? Having read it again and studied it at some considerable length there seems to me to be not the element of finality. Again, I may be misinterpreting what the Minister has in mind in relation to subsection (a) here. Perhaps the Minister could help me in this respect.
Of course the custody order is only the instrument to enable the adoption to take place. In that sense the custody order is not the be-all and end-all of the matter. It is merely the means through which the Adoption Board can make an adoption order. This situation is one where the mother has failed to give her consent or has actually withdrawn her consent having given it and before the adoption order was made. As matters stand at present the Adoption Board cannot make an adoption order for that particular child. We have had the harrowing situation of children with the adoptive parents, in the adoptive home, for months and even years, and the board being unable to make a final adoption order because of the failure of the mother to give consent.
What we propose now, in such a situation is that the adoptive parents will make an application to the High Court—not for an adoption order because that is not the function of the High Court; that is reserved to the Adoption Board—for an order for the custody of the child. The court is being empowered to order that the prospective adoptive parents shall have custody of the child.
On foot of that order the Adoption Board can then make an adoption order. I think that the High Court order has to be to give the custody of the child to the parents for a period certain rather than for a period uncertain because the whole purpose of this is to eliminate the uncertainty which caused the application to the court originally. If the court were to make a custody order without any time limit on it, it could mean further procrastination. I think it is in the child's interest that the custody order would be for a definite period. The parties could then proceed to the Adoption Board for an adoption order. To some extent this would also be a lever on the Adoption Board to ensure that matters will be finalised quickly—not indeed that I think any such lever will be needed because the mere fact that the adoption was hanging for so long as to justify the adoptive parents seeking the protection of the High Court will mean that all parties will be anxious to have it over and done with quickly.
The Minister certainly explained it clearly but I think the section itself could be tidied up somewhat.
I move: "That the Committee agree with the Seanad in Amendment No. 4."
NEW SECTION: Before section 4 a new section inserted as follows:
"4. (1) Notwithstanding anything contained in section 11 of the Principal Act (as amended by section 5 of the Act of 1964), in any case where—
(a) a child in the care of a married couple who have made an application for an adoption order in relation to that child, and
(b) the wife dies before the making of the adoption order,
the Board may make an adoption order relating to that child on the application of the widower: Provided that—
(i) the widower has, at the date of his application another child in his custody, and
(ii) every person, whose consent to the making of the adoption order is required by section 14 of the Principal Act or by section 2 of the Act of 1964, knows, when he gives his consent, that the applicant is a widower.
(2) In any case where an application for an adoption order is made under this section, any consent given to the making of an adoption order in respect of the child in favour of the married couple shall be disregarded."
This is a new provision in the Bill since it was introduced originally in this House. It is to meet a rather narrow case: to enable a widower to adopt. It was criticised in the other House on the grounds that it was excessively narrow. In introducing this new principle of allowing a widower to adopt, I think the safest course is to start from a narrow base and widen if experience shows it to be necessary. Provision is made for a widower to adopt in the narrow situation if a child is already in the care of that widower——
Of the married couple?
Perhaps if I approach it from another angle. It provides for the adoption of a child by a widower where the application had been made by him and his wife.
By a married couple.
But in circumstances in which, before the adoption order was made, the wife died. We could then have a situation—and there was an actual case—where the child stood to be taken back from that home, a home in which there was already an adopted child and where this other adopted child had come to look on the new child as a sister and, of course, the new child had adjusted to the new home. Considerable trauma would have been caused in that home if that child had to be taken away following the death of the wife, which is what would have to happen at the moment because if the order were to be finalised it would be finalised in favour of a widower and that is not possible under the law as it stands at present. Therefore we are changing it to provide that an adoption order may be made in favour of a widower provided two conditions are fulfilled : (a) there is already a child in the home——
Not necessarily an adopted child.
Not necessarily an adopted child and, (b) that the application for the adoption of the second child had been made before the death of the wife. In addition, the natural mother would have to be informed that the adoption is going to be made subsequently in favour of a widower.
Are her rights preserved?
Her rights are preserved; she would have to consent afresh. That is the purpose of this amendment. The number of cases that it will affect will be very few but I am aware that it will be in ease of that particular situation. I think the normal objections to allowing a widower adopt are met by the presence there already of a child and, within the family, of an established family unit.
Could the Minister tell us what would be the position where the husband died?
A widow is entitled to adopt already under the Act.
I agree that if the Minister is bringing in this section in ease of a number of cases which have been brought to his attention we should pass this section. Perhaps the Minister could clear this up for me. It seems to me to be unfair to say:
the widower has, at the date of his application another child in his custody,...
That seems to be unfair to the widower, or the widow, as the case may be. We know that the wife is entitled to adopt a child where the husband dies before the actual order is completed. Now it appears to be the case that we are enshrining in legislation that a widower or widow has, at the date of his or her application, another child in his or her custody. It seems unfair that a married couple who decide to adopt their first child should be prevented from so doing in the circumstances outlined in the Minister's proposed section. In other words, the section demands that the widower or widow has a child, be it their own child or an adopted child.
Not a widow; a widow can adopt a child even though she has not a child already.
Is this not unfair on the widower?
The reason why a widow is allowed adopt a child is that it is part of a feminine nature to be able to provide a household and domestic environment that a small baby needs, as well as the skills of attending to a small baby. Very few widowers would have such skills or would have the household where those skills would be available. They are more likely to be available in a household where there is already a child, where a widower has been attuned to a small child in the household and would be able to make these facilities available. If a widower were to be allowed to adopt a child without already having a child, I think it would be risky to expect him to provide the type of domestic environment, the nursing skills and other care that an infant of tender age would require. That is the first argument against allowing a widower adopt a child where there was not already a child in the household.
The second argument is one in relation to age, the age difference between the adopted child and the widower. The difference in ages at the time of infancy of the child might look vast and might not be such a material factor, but as the child grew the age difference would decrease in importance. In the case of a female adopted child there would be certain reservations in regard to such domestic situation and it would be imprudent for the law to permit such a situation to arise. Therefore it is important that there must be the nucleus of a family other than a single child family.
I still must express our concern at this section. It is extraordinary that where a young married couple have adopted a child and the wife tragically dies and the child is more or less in the custody of the widower that the law will now say that the widower, young, single, must hand over custody of the child.
Provided an order has not been made.
A widower is still at a disadvantage as against a widow. I accept what the Minister has said— that the male of the species has not the greater capacity in regard to looking after a child—but if a child is adopted and the young wife dies it is most unfortunate that the young widower should have to hand over custody of the child. In addition it is important to remember that a young widower might well marry again and have his own children.
That could be an adverse possibility.
We must take all considerations into account.
What the Deputy is arguing is in favour of the widower, so to speak, whereas we have agreed that the whole situation should be in the interests of the child. I have no doubt that a child in such circumstances would be best served in another home, for the reasons I have given, plus the complications in regard to subsequent remarriage by the widower.
These might not arise. I accept that the section is child-centred rather than fathercentred but for the widower there is the double tragedy, first of all the loss of his young wife and then the loss of the adopted child.
It counds harsh.
I wonder if subsection (2) is not also rather harsh on the widower who must go back to get a fresh consent. The whole question of consent by the natural mother is the trickiest area in the adoption procedure, the area where things are most likely to go wrong in respect of the child. There could be situations in which a recently widowed man with other children, either natural or adopted, might clearly be suitable for the retention of the child who has been placed with him and his late wife, but because the natural mother would have to be told six months after she had consented that the child was now proposed to be adopted by a widower, a new situation arises. Is this not to some extent an invitation or an incentive to her to withdraw her earlier consent? Presumably she cannot be told more than that it is a widower who is the prospective adopter. In such circumstances she may think it is an entirely new family and that the widower might not be able properly to look after the child. Is that not an incentive to her to fail to give fresh consent, as is required in subsection (2)?
One can see such a situation causing a great deal of difficulties. One of the original objectives of the Bill two years or so ago was to be less stringent with regard to consent by the natural mother because of the danger of hardship and consequent difficulties and disappointments for the child as well as the parents because of withdrawal of consent. Are we now wise to create a further situation in which a fresh consent would be necessary particularly when the extent of the information to be given to the natural mother would amount almost to encouragement to her not to give a fresh consent? The child at that stage might be a year or two years of age and might have become concious of membership of a family, having been with them for six months or perhaps nine months or more. Apart from the problems which it would create for the widower, more seriously it could create problems for the child.
I think this provision is necessary because we must have regard to the essential nature of adoption proceedings, which is that it is a voluntary arrangement whereby a natural mother gives her child for adoption. The mother's consent must be obtained except where the High Court intervenes, as provided for in the earlier amendments.
Because of the voluntary nature of the adoption procedure, it would be unjust and unfair if the mother were not informed of such a radical change, that instead of her child being placed with a married couple the child was being placed with a widower. It would cut across the voluntary nature of adoption if she were not informed of this change and given an opportunity to intervene. She is entitled to that opportunity. After all, she signed her consent on the basis of a certain set of facts and her consent could not be regarded as a real one if the facts were not as she assumed them to be. That would be innocent misrepresentation and her consent would be vitiated by the change of circumstances. A fresh consent would be necessary.
The amount of information to be given would depend on the adoption procedures and practices but she would be assured by social workers in whom she would have trust that the home was adequate and the welfare of the child guaranteed notwithstanding the death of the adoptive mother. It is assuming too much to say that, because she was asked for a further consent this would be tantamount to an invitation to refuse the second consent. I do not think that would be the case. In any event, for the consent to be real it would have to be given again in the light of the radically altered circumstances of the placement now being with a widower instead of with a married couple as originally agreed.
I move: "That the Committee agree with the Seanad in amendment No. 5."
In page 2, line 39, "(1)" deleted and "(2)" substituted.
