That the Bill be now read a Second Time.
Deputies will be aware of the background which has led to the preparation of the Bill. In a case decided early this month the Supreme Court declared an adoption order made in 1971 to be invalid and awarded custody of the child to its natural parents. The court decided that the board had not discharged the statutory onus that is on it to be satisfied that the mother of the child was informed of her right to withdraw her consent to the making of the adoption order up to the time the order was actually made. The fact that the board did not ensure that the mother was aware of what in one of the judgments is called the date of the hearing was also criticised by the court. The point also arose that the mother did not know or may not have known her rights and that she was entitled to know them—this point being distinct from the board's duty to satisfy itself that this was the case.
While, as was emphasised by the Chief Justice in his judgment, the combination of factors in the case decided by the Supreme Court was a very unusual one, some of the defects on which the decision of the court was based may have been present in some of the adoption orders that have been made. The intention of the Bill in this regard is to validate all of the orders concerned to the extent that they may be invalid by reason of the defects in question. Accordingly, the first substantive provision in the Bill—section 2— is that, provided a consent was duly given, the board shall be deemed to have discharged the onus I have mentioned notwithstanding that it had no evidence that the persons who gave their consent were aware that they could withdraw it at any time before the adoption orders were made or that they knew the dates on which the board proposed to make the orders. I might add that the board's practice not to seek information in respect of these matters was based on the assumption that it was unnecessary for it to do so. A further provision in the Bill, linked with the first, proposes that the fact that a person who gave consent to the making of an adoption order was not aware that he could withdraw it up to the time the order was made or was not aware of the date on which the board proposed to make the order or of his right to be heard by the board shall not invalidate the order.
As regards future cases, the problems that arose in relation to the case recently decided probably could be completely avoided by changes in procedure on the part of the board, but the difficulty is that the changes in procedure that would appear to be necessary if the board were to be sure that it was fully complying would be changes that virtually everybody involved in adoption work would undoubtedly regard as very undesirable. Consequently the Bill has to authorise the board to adopt procedures which the present law, according to the courts decision, would not allow. The main difficulty arose from the obligation which, on my reading of the judgments, the Supreme Court consider lies on the board under the existing legislation to inform a consenting party of the date of the hearing.
I think I should explain at this juncture that there are, in fact, no proceedings before the board at which the various parties to an adoption arrangement are present or represented. The board's practice is first of all to scrutinize the formal documents —application form, consents, and so on—and then to seek and study various social reports on the placement. These include reports from inspectors who have visited the home and so on. Towards the end of the procedure, all going well, the board interviews the prospective adopter or adopters. This interview takes place in all cases. If any other interested person has indicated his wish to discuss the case or if the board wishes to interview some other person, the interview takes place on a separate occasion. The board, for obvious reasons, wishes to maintain this practice. The intention is to permit the board to continue its practice in this regard, but section 3 provides for the giving of additional information to persons who consent to the making of orders.
Section 4 provides that the board may authorise suitable persons to make inquiries on its behalf and may act on the basis of their reports. It would appear from the Supreme Court decision that it is not sufficient for the board to have before it the sworn affidavit of consent and that, even if the consent form were to show on its face that the person giving consent fully understood the nature and effect of an adoption order and of the consent, including the fact that he or she may withdraw the consent, it would still be necessary for the board to have that fact confirmed independently.
The provisions I have mentioned are intended to deal with the problems raised directly by the decision of the Supreme Court. There are, however, two further provisions which deal with wider issues. Section 5 provides that in proceedings for a declaration that an adoption order is invalid, the High Court, having regard to the interests of the child and to the rights under the Constitution of the persons concerned, may decline to make the declaration if it so thinks proper, and section 6 is intended to ensure that if, nevertheless, in a particular case an adoption order is declared invalid, no order relating to the custody of the child will be made without adequate notice to the adopter or adopters and then only on the basis that the decision will be made in accordance with the provisions of the Guardianship of Infants Act, 1964, which specifies that the welfare of the child is to be the first and paramount consideration.
The Supreme Court decision has generated considerable interest and quite an amount of emotion. Some people's reaction has been to denounce our adoption laws in toto and to call for a completely new approach. I hope, however, that this Bill will be accepted as an adequate response to the immediate problems. It has obviously been prepared quickly to meet a proven need. I have an open mind on the question of the desirability of some further changes in the adoption code and it is a subject which will be receiving my attention. I have, however, already announced that the Government intend to bring forward proposals for an amendment of the Constitution to ensure that in any adoption situation the interests of the child shall prevail. I think that the present Bill serves a useful purpose and I would ask the House to accept it and to give its approval with the minimum of delay.