An Bille Um An Séú Leasú ar an mBunreacht (Uchtáil), 1978: An Dara Céim (Atógáil). Sixth Amendment of the Constitution (Adoption) Bill, 1978: Second Stage (Resumed).

Atairgeadh an Cheist: "Go léifear an Bille an Dara hUair."

Question again proposed: "That the Bill be now read a Second Time."

Mr. O'Keeffe

In opening my Second Reading speech I stressed my support for this Bill but I asked the Minister to consider making additions and extensions to it in order to provide the Constitutional framework for the overall development of our laws in relation to children. I take the view that the position of the family as the basic unit of our society must be upheld and supported. At the same time a child must be seen as an individual with individual human, constitutional and legal rights. This requires that our outlook on all matters relative to the child, whether from the constitutional, legal, social or any other aspect, be more child centred.

Therefore, I am seeking a new approach and a fresh initiative in this, The International Year of the Child, in all matters relative to children in general and to adoption laws in particular. By way of background to my approach my researches have lead me to a number of sources that I should like to mention in the course of this debate. I would urge the Minister strongly to consider the comments made by various people in regard to this problem and to follow the lines of their approach. Although that might be somewhat tedious the Minister would find material which I am sure would lead him to have second thoughts on this matter and perhaps might tempt him to seize the opportunity on 7 June next to extend the constitutional provision.

On the last occasion I mentioned the 1916 Proclamation which referred to the cherishing equally of all the children of the nation. I accept that the reference to children in that document may have had a broader meaning but it includes babies and children in the normal sense. I take the view that all our children are not cherished equally but that we now have an opportunity to lead our constitutional and legal developments in the direction of equality for them. There is reference also in Article 40 of our Constitution to all citizens, as human persons, being held equally before the law. This must include children and it should encourage us to look at the position of the individual rights of the child in order to ascertain whether in the context of this Bill we can help to lay the constitutional framework for the development of the individual rights of certain of our children in this State who are not equal before the law.

In his Encyclical Pacem in Terris the late Pope John XXIII referring to this aspect of the rights of children and of man said that we see that every man has the right to life, to bodily integrity and to the means which are necessary and suitable for the proper development of life, that these are primarily food, clothing, shelter, rest, medical care and finally the necessary social services. I would stress Pope John's reference to the right to bodily integrity and the means which are necessary and suitable for the proper development of life. It is accepted by all who have an interest in adoption that this, in many cases, can provide the means for the proper and suitable development of an infant in course of life. That must lead us to look at the situation in which, in this State, adoption is not possible. Then, we must look at the Bill and decide whether we can extend its provisions to cover these situations. I am very mindful of the difficulties involved in any such extension. These were pointed out in the Minister's speech which impressed me very much in terms of the obvious research that had gone into it. However, if the approach were towards trying to overcome the obstacles those very legal brains who helped the Minister to put the Bill together should be able to help him find a solution to the problems.

The Irish episcopal conference some years ago had a special sub-committee dealing with family law reform. The sub-committee was under the chairmanship of the Most Reverend Peter Birch, Bishop of Ossory. A wide variety of people, including sociologists, a professor of canon law, a member of the society for the prevention of cruelty to children, local government officials and so on, were on the sub-committee. In studying their report I felt there were a number of matters which would be worthy of mention in a discussion on the adoption situation.

The chairman, Bishop Birch, in the preface referred to the need for reform:

The need for examination by such a working party became increasingly obvious at meetings of the Council, as examples were noted of hardship in families where nothing permanent could be done because of defects, inadequacies or anachronisms in the law.

The more one delves into this subject the more one sees the truth of that comment. It puts the onus on us as legislators to seize any opportunity we can to provide that those very defects, inadequacies and anachronisms highlighted in this report are removed.

On June 7 next we have one of those rare and unique occasions when we have a referendum to amend the Constitution. I am worried that we will not use that opportunity fully, accepting entirely that the referendum will achieve one very necessary job. Let us apply our minds to see how it could provide a vehicle for a total development in our laws relating to children and adoption in general.

The report of the episcopal committee is worthy of comment in a number of areas. In their introduction, they referred to the position of family law in our society. They said:

In submitting the document we feel we are supporting the growing awareness in the community that there is a social dimension to our legal system, that Family Law is not solely concerned about rights and obligations, and that the quality of relationships between people, and between them and their environment, require to be taken into consideration when legal decisions are being reached.

The report highlights the fact that every child is equally entitled to love, care and adequate support and the right to be brought up by his family. It states, however, that this pre-supposes a variety of care services to support the family in order that breakdowns will be avoided. It mentions that children are primarily dependent on their parents for support but it refers to the position of the abandoned child and states:

It is a most destructive experience for a child to be abandoned by his parents. When a child is abandoned, whether by married parents or by single parents, or where they do not make reasonable effort to provide a secure home for him, then the interests of the child demand that an equivalent home environment should be created for him with, or even in extreme cases, without the consent of the parents.

Here it seems that the thinking of the committee is ahead of the Minister's. My purpose in highlighting this report is to encourage the Minister to go some way along the line to meet the problems outlined in the report.

The report deals with the problem of children left in care until they reach employment age and who are then taken back by their parents for the purpose of putting them to work. This is a deplorable situation and was quite common in urban areas in the past. The committee give their own viewpoint as to the position of children and how they stand when any question of their welfare has to be considered. They state:

Children should no longer be seen as objects of the law but rather as subjects with rights, and this concept of children's rights should be embodied in the law. In any conflict situation, the child's welfare should be paramount.

That is pretty strong beer in the context of the Minister's speech. On re-reading his speech, it appears to me that he was highlighting the legal difficulties in using the expression "paramount" when referring to children's welfare. I appreciate the difficulties that might arise as highlighted by the Minister. However, if we were of one mind as to what we wanted to achieve, these difficulties could be overcome. I urge the Minister and his advisers to apply their minds in the coming weeks to this. If in the light of the defects and inadequacies in our law we feel that a change should be made, surely it is not beyond the bounds of the legal brains of this country to provide the necessary guidance to help us to establish that change.

Paragraph 5.12 of the report states:

Modern social care thinking advocates that children services should be child centred and that there should be a shift of emphasis from stressing parental rights to giving at least equal stress to the right of the child to love and care and a normal home life.

That is relevant in the context of the Minister's speech where there was a reference to the rights and duties of parents. It is not a question of parents having no rights. It is a question of highlighting and emphasising more the rights of the child where its own future and welfare are at stake. In any position where a child is badly treated or abandoned by its parents, we must develop our laws so as to provide the necessary protection for that innocent citizen of the State.

This report also deals with the position and status of a child born out of wedlock. This was also dealt with in the Minister's speech. It is clear that the thinking in this report is towards the concept that all children should be treated equally whether born inside or outside of wedlock. There are recommendations that there should be no distinctions in the law between children, and suggestions that there should be voluntary acknowledgment of children born outside wedlock and that that voluntary acknowledgment should be extended to the wife who has an extra-marital child. This is possibly of growing importance in the context of another matter to which I will refer later. As I understand it, there are particular problems relating to that matter with the result that babies are not getting a fair deal.

That is a general summary of the outlook of the Council for Social Welfare, the committee established by the Catholic Bishops Conference. It provides food for thought. Reading it together with this Bill highlights the worry that we are not doing enough in the Bill. In regard to the suggestion that our laws should be more child centred Father James Good writing in 1971 said:

... an Adoption Act should be child-centred while not neglecting the rights of other parties like parents, adopters and the community ... adoption is not a technique of getting children for childless marriages, nor for relieving unmarried parents of their responsibility or even for saving the State the cost of keeping children in an orphanage. Adoption should be primarily and above all else a process for finding a home and family for the homeless and familyless child, but when we look at our Adoption Act... right through the Act the dominant idea is that the child is the property of the mother and that short of killing or physically maltreating it she can do just what she like with it.

The law has developed somewhat since 1971 but not sufficiently to justify us in saying that it is child centred, with the child holding, as it were, the centre of the stage.

This problem is dealt with in a legal text book on family law by Alan Shatter. He refers to the problem of the legitimate child and the fact that, barring exceptional circumstances, the legitimate child cannot be placed for adoption. The Minister should put his mind to this again, possibly not in the context of providing specifically now for the adoption of legitimate children, but he might wish to look into it further. In the context of Constitutional referendum let us not close the door on it forever. The suggestion is that the adoption of legitimate children would require a Constitutional change. This is dealt with in Mr. Shatter's book wherein he quotes the then Minister for Justice, Deputy O'Malley, speaking in the Dáil on 29 June 1972. He said:

The Government are advised that the proposal in section 5 (1) that legitimate children should be capable of being adopted is almost certainly contrary to the Constitution. This advice was originally given at the time when the 1962 legislation was being prepared.

There is a further reference later in the paragraph by Mr. Shatter where he states:

Thus it is possible that section 2 of the 1954 Act permitting the adoption of a legitimated child is unconstitutional.

That is one of the rare situations in which a legitimated child could be adopted. Let us not close the door on the possibility of the adoption of legitimate children. It is not necessary at this stage for a decision in principle to be made to permit the adoption of legitimate children but when we are having a constitutional referendum, let us take the opportunity to remove the constitutional obstacle. This will permit the development of our law as time goes on. If our society feels legitimate children should be capable of being adopted, the constitutional obstacle will have been removed.

There is quite a strong lobby or, to be more correct, a body of opinion which would favour such a development at present, not in the rather emotive way in which it has been presented from time to time. It is sometimes presented as being a question of whether it would be better for a child to be brought up in a well-off family rather than in a poorer family. That is not the thinking or the intention of anybody advocating permitting the adoption of legitimate children. In line with the Minister's thinking on this matter I totally agree that any provision which would permit such a course should be legally excluded.

There are situations in which the choice is between having a child, who in this context is unfortunately legitimate, condemned to institutional care possibly for 15 years instead of being adopted and reared by a loving and caring family. If an adult were faced with that choice and with that restriction, he would feel his rights were being denied completely from all points of view. The child is not capable of thinking about that position. It is up to us to think about it for the child.

I referred to the legal and human rights of the individual in our society, including children. My attention was drawn to an article by Professor John McKenna who is Professor of Psychology at the Royal College of Surgeons. He deals with this in an article in the magazine "Children First". He develops the point that inherent in the concept of democracy is the idea that every citizen in a free country has certain legal rights and that, in addition, there is the different but related concept of human rights. I quote:

Human rights are based on universally shared ideas which have the force of laws and are treated as if they were laws.

He suggested that we should study the ideas in this article. He points out that children have always been a powerless minority with no voice in decisions with regard to their welfare. Like all minority groups, their welfare depends on the responses of decision-makers to the exhortations, prohibitions and demands of the moralist.

What is really highlighted is the fact that children should have legal rights, constitutional rights and human rights. It is up to us to ensure that these rights are respected. It is up to us to ensure that our laws are developed so that the human rights of the child are fully respected.

That leads us to consider what should be done. What should our approach to adoption be? I thought it wise to look at the words of the people who are involved in adoption. Reverend Fr. John O'Mahony, Secretary of St. Anne's Adoption Society, Cork, and Vice-Chairman of the Central Council of Catholic Adoption Societies, writes in Children First on the meaning of adoption and the nature of an adoption service as follows:

I think adoption is best defined as the provision of permanent substitute family care for familyless children. It is distinguished from other forms of child care because it involves a complete severance of legal relationship between natural parents and child and the establishment of a complete set of relationships between the child and the adoptive parents. Adoption focuses primarily on the familyless condition of the child. As a service, its object must be to ensure that the needs and the rights of a familyless child to an adequate form of family life are met as far as it is possible. This is the foundation on which we must build our adoption service and all our policies and practices should follow that definition.

He then deals with the need for adoption and stresses the fact that the needs of the child must be met by his natural parents. He also stresses the support that society should give to assist in this matter. He points out that adoption should only be resorted to where there is no reasonable likelihood of the natural parents, with reasonable support, being able to provide an adequate form of family life for their children.

Having developed these points, Fr. O'Mahony deals with the need to extend legal eligibility for adoption. Here he deals with the position of the child who cannot be adopted under existing law. He makes the point that we must offer these children something better than the insecurity of a foster home or the impersonal atmosphere of an institution. He highlights the problems in regard to the adoption of legitimate children and goes so far as to suggest that not permitting such children to be eligible for adoption is a discrimination against legitimate children. Generally, his view and the view of everybody involved in adoption services, everybody who is close to the problem, is that there is a considerable need to extend the legal eligibility for adoptions.

We must approach the matter with an open mind, with the idea of doing what we can to improve our laws; doing what we can to remove the defects in our laws; principally doing what we can to help the innocent children in our society who are suffering because of the defects in our laws.

There are a number of matters that I want to refer to by way of highlighting some of these specific problems that are in our laws. One of them relates to the difficulty under section 3 of the 1974 Act and the possibility of it being unconstitutional. The procedure on adoption is that the child can be placed for adoption at any time after birth. The mother signs the consent to adoption and the child is placed with the adoption society who place it with the adoptive parents. After six weeks the adoptive parents can apply for an order to the Adoption Board. The mother signs the consent after the board have received the application from the adoptive parents. She, however, may withdraw her consent at any time up to the making of the actual adoption order. The position is then governed by section 3 of the 1974 Adoption Act. This entitles the adoptive parents, on the withdrawal of consent by the mother before the making of the adoption order, to apply to the court for a custodial order. As I understand it, in that situation the indications are that the adoptive parents would generally use such an application because of the constitutional situation. That is certainly a worrying factor because it may not be in the best interests of the child, which should be the primary basis on which the case should be dealt with, to have the child taken from the adoptive parents. I stress that such an application arises before the making of an adoption order in the intervening period. I am not talking about a situation that would arise after the making of an adoption order.

The procedure, as I understand it, is that normally the minimum time for making an adoption order is six months. In between there are visits from the social worker and the Adoption Board. I understand it is very rarely that the order is made within six months and that very often the period can be much longer thus extending the time during which the child is at risk of being taken away from its new home. I am advised that during that period the provisions of section 3 of the 1974 Act would apply, that the position of the adoptive parents—I do not know if it is correct to use that term at that stage; perhaps we should call them prospective adoptive parents; the child has been placed with them but the adoption order has not been made and I am using the term "adoptive" to cover that situation also—is that in dealing with this matter before the court on an application under section 3 of the Act of 1974 they may find themselves in the position where the child may be removed from the home which they have given it. It is a rather worrying situation and in this context I would quote from the judgment of the President of the High Court in the case of G v. An Bord Uchtála last September when he said:

By reason of the principles which I have already set out in this judgment I am forced to the conclusion that I must construe this section as one in which the court should not intervene unless the mother has capriciously or irresponsibly refused or withdrawn her consent or, by her conduct, abandoned or deserted the child or unless she has failed to establish to the court that she is a fit and proper person to have custody of the child or unless the overwhelming interests of the welfare of the child require that it should not be restored to her custody but that, subject to the approval of the Adoption Board, it should be left in the custody of the prospective adopters.

I would say that section of that judgment is somewhat worrying for anybody who would seek to have the matter approached on the basis of the welfare of the child—the reference to the court not intervening unless the mother has capriciously or irresponsibly refused or withdrawn her consent, the reference to the overwhelming interests of the welfare of the child. When language like that is used it indicates that the proper legal interpretation of the situation is that in applications under section 3 of the 1974 Act the child would probably be restored to the mother in virtually all situations.

That leads me on to the question of delay between the placing of the child with the adoptive parents, the application to the Adoption Board after the baby is six weeks and the final making of the adoption order. The procedure was that there would be a delay of six months during which visits would be paid by social workers and so on to the adoptive parents but I understand that this period of six months can be very much extended. I further understand that the staff of the Adoption Board are doing excellent work but that they are overwhelmed by the amount of work involved and the result of the understaffing leads to delays in the making of adoption orders. If it is so I urge the Minister to ensure that whatever additional staff is necessary should be provided. It is not fair to the workers who are doing so much in this field to be left in the position that they cannot cope with the number of visits that have to be made.

This is a fairly serious matter. Details given to me indicate that in a survey of the position carried out relatively recently adoption orders had been made in regard to only 10 per cent of children after seven months and in only half the cases after ten months. If this is so, and I believe the survey was pretty comprehensive, it must lead us to look at the causes of the problem. I accept that they could be many but in so far as it is within our power to eradicate those causes we should do so. If one of those causes is the fact that the Adoption Board have insufficient staff it should be a primary concern of the Minister to ensure that position is remedied straight away.

There is another problem which I am told is a growing one in our society concerning the position of children born to married women but conceived out of wedlock. I should like the Minister to deal with this in replying. I am not sure of the exact situation but I understand that up to relatively recently such children were automatically registered as illegitimate if that was requested by the mother, but that in the past 12 months this procedure has changed and the files are now all sent to the central office in Dublin and that, short of a court decision on the status of the child, it is not registered as illegitimate at the request of the mother and is presumed to be legitimate and so is not available for adoption. I am told on the strongest authority that this is a serious matter, that in fact about 10 per cent of all children being put into care in this category are now coming from such situations.

If that is so, and if such children cannot be adopted here in this State, surely we must turn our minds to this problem and find a solution for it. I am further advised that because of the presumption that these children are legitimate and in that situation they are not adoptable, the solution at present for some adoption societies is to have such children placed with voluntary adoption societies out of this State. If that is so I do not believe that we as legislators can stand over laws which actually force the adoption of babies out of this State on the basis that they cannot be adopted here. I am further advised that the percentage of children in this category is increasing. Somebody very closely involved in the adoption service suggested to me that the figure could be of the order of 100 children in a year. I can go only on the basis of the information given to me, but it was given by somebody who is very involved in the adoption service and who has suggested to me that about 10 per cent of the babies coming into care come from this category and that a large proportion of these are now being dealt with in this manner.

I noticed in The Sunday Press last Sunday an article suggesting that as a result of an inquiry it would appear that if this—what they refer to as a trade—exists at all it is confined to 10 babies or less a year. Glory be to God, if only one baby is involved surely that requires our attention. If a single baby is forced out of this State because our laws do not permit it to be adopted here, surely we cannot just sit back in our comfortable chairs and let that position continue. I am not going to take issue with The Sunday Press or anybody else as to whether the figure involved is 100 babies a year or ten babies a year. My point is that if it is even one baby a year we must put our minds to ensuring that such babies are not forced out of this State for adoption because of a refusal on our part to amend our laws so as to permit them to be adopted here. I have no reason to doubt that this is the situation; in fact I would go so far as to say that my investigations have led me to believe that this practice does exist at present in this State and that babies are being sent out of the State for adoption elsewhere because they are not capable of being adopted here. What sort of rights are we offering to the young citizens of our State in that category, young babies, when all we can suggest for their future welfare for their own benefit is to send them out of the State? It is a matter on which I feel very strongly and one to which we must apply our minds to find a remedy.

Unfortunately, the Bill presently before the House does not provide the Constitutional remedy to that situation or to many types of problems which are affecting adoption today. I understand that the recommendations of the Task Force on Child Care are due in July next. What will be the position if the task force make a specific suggestion in regard to the adoption of certain categories of legitimate children? We will have a referendum in June and we will have recommendations coming through in July. Let me be clear that I have no inside information as to what recommendations will be made, but it is not beyond the bounds of possibility that such a recommendation could be made. We may have the ridiculous situation that a month previously we had a referendum and then we will be having a recommendation which in effect will require a further referendum if it has to be implemented. This brings me back to the point that we should not miss the opportunity, now that we are putting the Bill before the people, to provide the Constitutional framework to enable our laws to develop. If this opportunity is missed it may be many, many years before this House will have the opportunity again of putting through legislation to remove many of the anomalies and defects in our present laws.

In general, in regard to the Bill before the House, I am glad that the Minister has taken the initiative to deal with the problem arising from the McL decision and others. Certainly the point which the Minister is now including will provide considerable security for adoptive parents and adopted children in the country in the light of the many problems that have arisen in our legal system out of Article 37 of our Constitution, but that is another matter. The proposal of the Minister in the Bill will put to rest many of the fears of adoptive parents on this point. It is only on this point—which has been highlighted very much in the last couple of years—that their fears can be put to rest. I do not want in any way to suggest that there are further fears which should be plaguing adoptive parents, but let us be clear on what we are doing. It is only in regard to the fact that we are providing, as it were, Constitutional coverage for the Adoption Board in the making of their decisions that we are taking any action.

The Minister dealt with the difficulties involved in establishing a time limit. I presume the Minister has read the joint opinion of eminent counsel, Donal Barrington and Colm Condon, ex-Attorney General, on this matter, where it was recommended that a Constitutional change should be made providing that adoption orders should not be challenged after a certain period unless it was shown that some fraud or irregularity attended the making of such order. That is a matter that the Minister has dismissed. While the Minister pointed out the difficulties of making adoption orders absolutely watertight, surely bearing in mind the advice of people like Donal Barrington and Colm Condon and bearing in mind the legal brain of his Department if there is a will to do that it can be done. Here is one suggestion in this joint opinion that would provide for making adoption orders watertight unless it is subsequently shown that some fraud attended their making. I accept that that is the exception, that there is not a 100 per cent guarantee but at least it is almost 100 per cent.

I welcome the Bill so far as it goes but I would strongly urge the Minister to rethink his position and to look at the other problems in adoption. I have highlighted some of them and others have possibly been referred to by other Deputies. The Minister should look at the problems and should not miss the golden opportunity he is being presented with on 7 June to enable us to have a Constitutional framework which will enable us to develop our laws so as to remove all the defects and anomalies in them so far as they relate to children.

Mrs. Desmond

In bringing this measure before the House the Minister has set out to effect the minimum reform possible under the circumstances and I submit that he has taken the maximum amount of time for it. The ruling in the case, on which the fears of adoptive parents were grounded, was given in June 1976 and the legal opinion was given on 8 March 1977, practically two years ago. It is inconceivable that such limited action as the Minister proposes should have taken two years to prepare and to bring before the House. There is nothing in what the Minister said in his Second Reading speech to indicate that up to now at any rate, he has given any thought to further reforms in the area of childrens' rights.

This is a very narrow limited measure but in so far as it is necessary, we welcome it. The only criticisms we have is that it is not enough. This measure will no doubt alleviate the terrible anxiety in which adoptive parents have lived for the past two years, and it is welcomed by all sides of the House and all the organisations concerned with children's rights. There is no dispute or controversy about that aspect.

The Minister has chosen a different formula to rectify the matter than that chosen by the Labour Party in their Bill which was before the House last October. Instead of amending Article 37 of the Constitution by writing into the Constitution a provision deeming adoption orders to be limited functions, the Minister has chosen to state that no adoption shall be invalidated by reason only of the fact that the body or the person exercising the function was not a court or a judge. I have no quarrel with the Minister in relation to the way he has chosen to go about this and I would not for a moment say that his is not a better approach. The Labour Party Bill was never advanced as the best or the only way of dealing with the matter or of dealing with the other matters which we proposed to deal with in our Bill. Our only criticism is that it stops there and makes no effort to deal with the other major urgent problems and issues which were covered by the Labour Party Bill which had the full support of all the bodies concerned with children's rights and their position before the law.

When replying to the debate would the Minister clear my mind with regard to the constitutional validity of the 1974 and 1976 Adoption Acts which put the child's welfare first in cases of custody disputes? Am I right in suggesting that in a case such as the McL case where the order was not effective, where the natural parents subsequently married, it is possible that Articles 41 and 42 of the Constitution give the parents the rights which would make the child's welfare of secondary importance? Can Articles 41 and 42 be interpreted that way? It appears to me that counsel's advice to the adoptive parents in March 1977 raises this issue and it also seems that the Bill makes no effort to deal with it. Is there any danger that these sections of the 1974 and 1976 Acts which place the child's welfare as of paramount importance can fall if tested in the Supreme Court? The Minister no doubt said in his opening address that he can never guarantee a system that would be totally secure constitutionally. Is this what he had in mind? If it is, this loophole should have been closed and this opportunity should have been availed of to close it.

It is to be deplored that a Bill of this nature which proposes to put the country to the expense of a referendum is not used to cover the other areas which were covered in the Labour Party Bill which placed emphasis on the welfare of children. These areas were covered by the provision to abolish the concept of illegitimacy and a provision to extend the facility of adoption to legitimate children in need of stable homes. The Labour Party Bill in addition to amending Article 37 proposed in section 2 to amend Article 41 and to remove the words "inalienable and imprescriptible" as they apply to the rights of parents and to add a new subsection setting out the special rights of children under the Constitution. Part of this new subsection stated quite clearly that equality of rights under the law shall not be denied to any child on the basis of his status at birth or on the basis of parentage.

The Labour Party set out to remove legal discrimination against an illegitimate child. This reform has been made in many countries, including New Zealand, Germany, Switzerland, Norway, Denmark, Sweden and Iceland. It is strange that we are still provided with the arguments advanced by the Minister. It should be possible for us to benefit from the experience of other countries and to avoid any pitfalls.

The concept of illegitimacy is one of the law's most shameful creations. It victimises children in order to discourage adultry and fornication, though there may be more materialistic reasons for it. There is no evidence whatsoever that the original purpose of discouraging adultry and fornication has been achieved; neither is there justification for using innocent children as tools for this purpose. The practical effect of the reform we sought to implement was to give children born out of wedlock the same rights of succession under the 1965 Succession Act as children born within marriage, provided there was proof of paternity either by admission and acknowledgement by the natural father or else by court proceedings. It has been said that because of Article 40 of the Constitution a test case may succeed, but it is most unlikely that such a test case would be brought by the people concerned. The unmarried mother and the child whom we deem to be illegitimate are the people least equipped to fight such a case and it is our job to cater for their needs. This was the thinking of the Labour Party in putting forward our Bill last October.

We also hoped in that Bill to extend the category of children who may be adopted. We want to extend the facility and benefit of adoption. At present children born to a married couple may be abandoned or seriously ill-treated and may be the subject of mental and physical violence but they do not qualify for adoption and spend their young lives in institutions or are fostered. They do not enjoy the comfort, security and love they could be given by adoptive parents. In our efforts to widen the category of children who may be adopted we had the support of all organisations dealing with the care of children. It is deplorable that the present Bill does not seek to deal with these issues.

Dealing with the rights of children under the Constitution, Report No. 2 of the Irish Council for Civil Liberties states:

The proposal to hold a referendum relating to the adoption process provides an opportunity for a more general re-assessment of the approach of the existing Constitution to children's rights. It is our hope that this paper will provoke a debate on this broader issue and persuade the Government in formulating its referendum proposals not to confine itself to the adoption issue but to consider a number of other possible amendments to the Constitution which would improve and strengthen children's rights under the Constitution.

Consideration of these broader aspects is both appropriate and necessary in the adoption context. The institution of adoption is one which is designed to promote the welfare of children. In its ideal, adoption is a procedure through which a child may be offered the security and protection of family life with persons to whom the child is not necessarily related by blood, where the child's biological parents are unable or unwilling to provide it. The rights of children and in particular the right to grow up "in an atmosphere of affection and moral and material security" are therefore central to the adoption process.

The report goes on to state:

We are concerned that the existing Constitution does not embody a statement of basic rights belonging specifically to children. We urge the Government to seize the opportunity provided by the forthcoming referendum to remedy this deficiency.

This Bill falls very far short of what we set out to do. It represents the minimum the Minister could have done. It merits from Children First the statement that it is a pathetic contribution to meeting the needs of certain categories of children in the International Year of the Child. On 30 January 1979 Children First issued the following statement:

While Children First welcomes the Bill because of the urgency of the issue, it nevertheless considers that it is a pathetic contribution to meeting the needs of certain children in this the International Year of the Child. Three other very urgent and major issues have been totally ignored. Firstly the Bill does nothing to alter the position of those legitimate children whose parents are unable to or unwilling to provide them with a stable home background. Such children are still it appears to be denied the advantages of adoption and are therefore in this respect still being discriminated against. A second area of discrimination still not rectified is that of the whole concept of illegitimacy. Why should a child be discriminated against because of the circumstances of his birth? Thirdly, the Bill neglects to deal with the question of the constitutionality of the principle that the child's welfare should be given priority in all adoption decisions.

The Labour Party did not advance their Bill as the last word on this subject but we are firm in what we set out to do. Perhaps the superior resources of the Minister could improve on it. We are happy that our Bill was approved by all the agencies concerned with the rights of children. Children First stated:

Had this Bill been approved by the Dáil, Seanad, and people, it would have met the oft-repeated recommendations of the various child care organisations, and would have made the basic legal document of the State a secure foundation on which to build at last truly child-centred children's laws. However, the Government refused to accept the Bill, so it was defeated in the Dáil at its second stage on October 25th. Instead, the Government introduced its much more limited Bill, thereby missing an opportunity to do something really important and far-reaching for our children on the eve of International Year of the Child.

There is general agreement that this is a limited measure. It fails to grasp the opportunities presented. A referendum to amend the Constitution is very rare. Having looked into all the aspects of it, if recommendations for the improvement of the rights of children are forthcoming from the task force and if the Constitution, because we neglected to carry out the changes that would render it possible, is an impediment to the implementation of those reforms, what will be the position?

This is a small Bill, the minimum the Minister can do in the circumstances, but it was heralded by a major introductory speech. I thank the Minister for that and for the attention he gave to the provisions put forward in our Bill. However, it is my view that the Minister set out to baffle us in introducing the Second Stage of this Bill with English and Irish case law and some selected judges' rulings. It baffled those of us who do not have legal training because we were given legalistic arguments of a rare kind. That was not his function in introducing the Second Stage of the Bill; it was more appropriate to Committee Stage of a far-reaching Bill. It was an excellent defence of the status quo, a defence for doing nothing about discrimination against illegitimate children, and doing nothing about the denial of a secure home for abandoned, ill-treated and unfortunate legitimate children.

As politicians it is our duty to decide on the changes we want to make in society and, having decided on the changes, to avail of the legal expertise available to ensure that the laws we pass will bring in those changes as we intend them and avoid the pitfalls that would occur if we did not have expert advice. It was not good enough for the Minister to put forward means of legal opinion as to why he cannot make the changes we suggested. It was a waste of his time, that of his officials and, perhaps, of the House. We never contended that our way was the only way but we wanted the changes made. Had the Minister the will to make the changes we feel are already necessary, he had the resources at his command to do so.

I have no doubt that this is a very difficult area and it is possible that those with legal training consider it difficult also but it is up to us to decide on the changes necessary. Lawyers have admitted that this is not their area. Two eminent lawyers in a joint opinion to adoptive parents stated that they did not have any special competence to advise on the changes desirable in our adoption system. They said that in so far as questions of social policy were involved they were issues on which they had no special competence to advise. They were competent to interpret the law as it stood and that was all.

The Minister referred to the case of G. v. An Bord Uchtála on which the five judges of the Supreme Court were divided as to whether the natural mother had constitutional rights or not. That division of opinion is an indication of the difficulty that exists with regard to the Constitution in relation to this matter. It is not too much in 1979 to ask the House to end for ever discrimination against children born out of wedlock. The Labour Party are committed to ending the concept of illegitimacy. We have put forward suggestions for doing so and we told the Minister that we were prepared to agree to anything, within reason, that the Minister thought necessary to give effect to this change. We told the Minister that we were prepared to withdraw our Bill in favour of one introduced by the Minister if he gave us a guarantee that he would make a provision for this. We announced that we would agree to submit the Bill to a Committee of the House. We were only concerned with removing the concept of illegitimacy in the State. We are supported by many organisations in our desire to do that.

Cherish, in their discussion document, Abolishing Illegitimacy, stated:

About 4 per cent of all babies born are categorised by the law as illegitimate and many will continue to have this status throughout their lives. Cherish considers that the time has come to abolish the legal status of illegitimacy altogether. It is not sufficient to abolish the word "illegitimate" but keep the concept by replacing it with such words as "extra marital". The status itself should be abolished, as should all the distinctions between the legitimate and illegitimate now contained in a multitude of statutes and cases. Of course, such a change in the law will not change public opinion overnight. But it will encourage a slow change by removing legal support for an outdated prejudice. With more and more children being brought up by single parents, it is essential that the law should no longer perpetuate the unjustifiable status of illegitimacy.

The Council for Social Welfare, 1976, strongly supports the case of the abolition of the term "illegitimacy". I quoted from that at length when moving the Second Stage of our Bill and I do not wish to repeat the process. There is general agreement among all organisations concerned with the rights of children that we should ensure that this concept is abolished. I should like to know if the Minister has had consultations with these organisations about this subject. While such bodies have usefully committed their views to paper, a discussion with the Minister would convince him of the need for urgent action in this area. While this Bill is vital it is not enough, because it disregards the wider issue of children's rights. We are signatures to the UN declaration on the rights of the child which was adopted 20 years ago but we have not taken any steps to give effect to what we profess to be our stance in relation to children. We are perpetuating a concept of legitimacy and illegitimacy in relation to human beings and for that reason there is no such thing as human rights and we cannot purport to uphold human rights in this Bill.

The Minister referred to the need to legislate for illegitimate children. He expressed sympathy for them but that is not enough. He is Minister and his job is to legislate. If there is a constitutional barrier to equality, and there appears to be one, he must accept that it must go. How it goes will require a great deal of teasing out and would be a subject for protracted discussion, possibly by a committee of this House which would be given advice by qualified people.

Deputy O'Keeffe referred to the promise of a Children's Act by the Minister for Health later this year. Children's rights are a very broad issue. When you talk about children's rights you can mean the hundreds of thousands of children living in poverty in this State, the 30,000 children who are on the waiting list for proper housing, the unequal and inadequate education and health systems which can mitigate very strongly against children and the right of every child to be free from abuse, from violence, at home or at school.

A case for separate legal representation for children has been made. The fundamental fact is that a child is a person in his or her own right with rights that are distinct and apart from their membership of the family and are entitled to individual legal representation. This brings us to the broader issue of free legal aid for all persons without means. May I avail of this opportunity to impress on the Minister the need to do something positive about the system of free legal aid? It is intolerable that the report has been on his desk since December 12 months. I know this is not very relevant and I am sure the Leas-Cheann Comhairle will rule me out——

An Leas-Cheann Comhairle

I am giving the Deputy the opportunity to raise this matter but it is not relevant to this Bill.

Mr. Kelly

You do not want to create a precedent.

An Leas-Cheann Comhairle

I do not want Deputy Kelly making a meal of it later.

Mrs. Desmond

This is one of the more pressing matters and is fundamental to the whole concept of justice within the State. The Minister appears to be making the case that the Labour Party want to undermine the family in the State. There is no question in the minds of the Labour Party of undermining the rights of the family. What we want to do is to strike a balance between the child's rights and the parents' rights and we understand a constitutional change is necessary to strike that balance. On page 3 of the Report of the Irish Council for Civil Liberties this issue was referred to. It says:

Parents' Rights and Children's Interests.

The parent-child relationship is a fundamental one in practically every society. Nearly everyone has had experience of it, and strong views are held as to what the relationship means, what are its values and what are its limitations. Extreme opinions are sometimes held. There are those on the one hand who see the relationship in terms of the rights which belong to the parent—the right to custody, the right to decide questions about the social, physical, moral, educational and religious upbringing of the child, the right to chastise, et cetera. On the other hand, there are those who emphasise exclusively the rights of the child—the right to a stable and loving home, the right to a minimum education et cetera.

The problem for the law and the Constitution is to find the correct balance between the claims of parents and the interests of children, and to define the conditions under which interference by society is justifiable for the protection of children. This is not an easy balance to draw. It is, however, reasonable to suggest that the greater the degree of interference by society the stronger need be the grounds justifying intervention. The complete removal of a child from his parents against their wishes and the transfer of parental rights to new parents is a drastic form of intervention which can be justified only by the most compelling reasons, that is, clear proof of conduct by the parents demonstrating beyond doubt their unfitness to act as parents. The temporary removal of a child or counselling without removal from the home are forms of intervention which may be reasonable in less extreme cases.

That is the balance the Labour Party set out to achieve. The whole question of the involuntary termination of parental rights raises great difficulty. We do not have any illusions about this but the overriding principle must be that the welfare of a little vulnerable child must be taken into account and the interests of a child who may have been abused must be looked after. This is the point of view the Labour Party put forward.

If the Minister accepts that principle and if we all work towards giving it effect, we can have a very useful and perhaps lengthy debate on the most appropriate way to go about it. As I said, it would be very appropriate to set up a committee of this House which could avail of the expertise of Members and officials. The pros and cons of the matter could be debated to ensure that each approach is evaluated and the best one is adopted.

I repeat that the Labour Party fully support the family based on marriage. Far from undermining the family what we set out to do is to stress the importance of family life for those children who are denied it and are condemned to spend their young lives in institutions and less secure forms of custody. We also want to extend adoption to legitimate children who have been abandoned and so on. That pinpoints the store we place on family life. We want to ensure that the Constitution does not raise artificial barriers to this. For instance, the unmarried mother and her child are not considered a family, or are they? Here is a case where judges differ. A church annulment and a remarriage is not a family with constitutional rights.

The Minister talks about the attitude of the Irish people to family life, with which I agree, but we want to extend the rights of family life to those units which may not be based on marriage as defined in the Constitution but who are, nevertheless, a family who should have all the moral and legal rights of a family. We all agree that this poses a problem. A child born out of wedlock has human rights and we must transfer those human rights to legal rights. If we have the will to do that we will find the means to do it. As I said before the Minister's sympathy is not enough. A solution must be found, difficult though it might be, but if the will is there we will find a way to reconcile the difficulties that arise.

There are pressures on a single mother about which we talked quite considerably during the course of the debate on the Labour Party Bill last October. The adoption code has swung over very much on the side of the adoptive parents, making it extremely difficult for the unmarried mother to make up her mind. Indeed the many aspects involved, such as the length of time she is given to make up her mind, should be looked into. Many facilities, such as the support services, should be improved to enable her reach a decision free from the financial and social pressures which are part and parcel of the lot of an unmarried mother in this State. If, having weighed up the whole question, she decides to keep her child she should feel secure in the knowledge that by so doing she is not discriminating against the child, that the Constitution and laws of the State will provide the same rights for the child under her guardianship as they would were she to give the child up for adoption. This is another very important aspect of what we are seeking in the abolition of the concept of illegitimacy.

I agree totally with Deputy O'Keeffe when he talks about the children of extra-martial unions who cannot be adopted. It matters not whether there are ten or 100; they have rights we should not define. Certainly it is a disgraceful situation if, because of an over-rigid Constitution, they are forced to leave the country. That is something about which the Bill does nothing whatsoever. The Bill does nothing about rendering adoption orders constitutional or rendering them secure under the Constitution. The whole field of adoption is one needing a lot of consideration and review. There has been no investigation, updating or proper review carried out of the field of adoption since the enactment of the Adoption Act, 1952. The case has been made that more resources should be made available to the Adoption Board.

Perhaps the time is opportune also for a wider review of the whole concept of adoption. The Minister talking about enacting legislation in regard to the whole question of the rights of illegitimate children and suggesting that the Law Reform Commission may deal with it does not meet the case at all because that commission, if anything, is overloaded with work. For instance, in this area they have issued a report on the age of majority. I do not think there has been any action taken nor is any action proposed on that in the near future. The whole question of nullity has been referred to that Commission also. There is no doubt but that any aspect of what we seek to do in this Bill if referred to them would take many years before it could be reached by them and perhaps many more years before any legislation could be enacted. That should not be the approach of the Minister. Rather there should be a commitment from him to do something about it now. The case for the abolition of illegitimacy has been made. Surely also there must be a commitment to extending the security and comfort of adoptive homes to those categories of children I have mentioned. If that commitment is accepted then the framework within which it can be done should be found.

In her series on adoption in The Irish Times of 4 to 7 December 1978 Olivia O'Leary quoted an ISPCC worker who obviously was sickened by a lot of the sentimental rubbish she had been reading or hearing about the soft-hearted Irish attitude towards children, their love for children. She concluded, on the contrary, that the Irish are a very callous race. I agree that we are not as soft-hearted as we would like to think we are. In a lot of our laws and actions we display a lot of callousness. But I do not think we are so callous as not to make a genuine effort at achieving justice for children. For instance, in this International Year of the Child the objectives at which we are aiming in the areas I have mentioned would I believe meet the approval of the Irish people were they advanced by the Minister for Justice, coming from a party with a 20-seat majority. I think the Minister could be assured of the whole-hearted support of our people to proposals for reform in this area.

I would appeal to the Minister to reconsider the fact that he has omitted so many vital aspects of children's rights from this Bill, that he has lost an opportunity of creating a framework within which that reform could be carried out. I would appeal to him to bring about the changes we want to see enacted, to bring about a charter for children in this State. I am not telling him to do it our way. We thought our way was the best way of doing it. He may be critical of that way and that criticism may or may not be well founded. However, it is the job of this House to decide on the principles. If the Minister accepts these principles, the onus is on him, having refused to give our Bill a Second Reading, to introduce an alternative Bill to effect the proposals we have in mind. I would ask the Minister to consider that very seriously indeed when I believe he will have the support of our people.

Mr. Kelly

The attitude of my party to the adoption issue has been put very clearly by Deputy O'Keeffe. I have nothing to add to what he said on the question of adoption. Instead I want to speak for a little while on the technique the House is using today, and intends that the people should use, in order to cure a difficulty which appears either to have arisen or is likely to arise. I want to draw the attention of the House to the fact that this is the first occasion in 42 years on which an amendment of the Constitution has been necessary, or appears necessary, as a plugging operation. It is the first occasion on which an ad hoc amendment has been undertaken.

There have been five constitutional amendments to date. The first, in 1939, the validity of which I strongly doubt, bore on the attribution of an artificial extended meaning to the expression "time of war" in Article 28. The second, in 1941, was a kind of tidying-up operation in which, marginal changes or only verbal changes were made. The third, fourth and fifth all took place in 1972 and effected, respectively, the excision from Article 44 of the special position of the Catholic Church, the permission to the State to become a member of the European Economic Community and the reduction of the voting age to 18. These were not ad hoc measures; they were all substantive changes of the Constitution for general purposes.

The Bill before us does not fall into this category; it is in a different category; it is an ad hoc plugging operation. While I sympathise with the Government's anxiety to carry out that plugging operation, and while only the unfortunate accident of the 1977 General Election prevented my Government from doing so, we ought to stop and look carefully at this technique—perhaps no very serious issue arises on it this time—and ask ourselves whether this is the right way to go about fixing a problem of this kind.

Before getting on to that technical matter I want to say this to the Minister in regard to his speech, the material he placed before the House and to which he adverted as the reason for this Bill. He read an excellent speech here last week. I hope he will not take it as an impertinence to him personally if I say that he is very well served by whatever official or officials put that speech together. It is very informative. Even though I might not agree with some of the points of view contained therein, it is an excellent and very helpful speech. On the very first page the Minister refers to the case in which the potential weakness of the adoption procedure first surfaced—McL. v. An Bord Uchtála. That case was decided by the Supreme Court in either April or July of 1976. I do not know if it will amuse or interest nonlegal Members of the House to know that there is, as yet, no printed report of that case available in the Irish Reports. In fact, there was not even a copy of that case in any shape or form in Leinster House until I asked the Library to get one. They got one by courtesy of the Chief State Solicitor's Office, who sent it across in a form pretty much like the Minister's speech. There is no western democracy in which it would be possible to find a Supreme Court decision on a constitutional point still not in print three years later.

I have often condemned our habit of taking our tone from the British; but at least in the jurisdiction next door to us they have a system whereby a case of this sort would be in print in a week. If the one I am talking about is printed in any shape or form I have missed it. So far as I know it is not in the Irish Reports or in the Irish Law Times Reports; I have only a newspaper clipping of it. If that were an isolated incident it would not be worth mentioning, but it is a bit strange that the House should be asked to approve the draft of a constitutional amendment on the basis of a case which nobody in the House has read or would find it very easy to get a copy of.

The Minister can go down to the Library of this House and he will find that the last issue of the Irish Reports in the Library bears the superscription 1977 Irish Reports, Part I. The 1977 Irish Reports Part I arrived in this House in June 1978 and carried decisions which go back to 1975. That is the last line of the Irish Reports which is available to this Oireachtas, which is one of the other organs of State along with the courts.

I know all about the difficulties. The difficulties, which are called "budgetary constraints", do not seem to worry semi-State bodies which are able every year to produce glossy reports designed by tweed tie-ed architects, graphic designers and so forth. There do not seem to be any budgetary constraints about that, but when it is a case of setting in type 400 or 500 pages of the law then suddenly the "budgetary constraints" drop on top of us out of the heavens.

Another problem is that the liaison between the Minister's Department, which provide some money for this, and the Incorporated Council of Law Reporting is not as satisfactory as it might be. I am not sure about this and I do not want to upset the Minister or his Department by making allegations about something I am not sure about; but I believe I have heard that personnel in that liaison situation have been changed around from time to time and there has not been a continuity of liaison between the Minister and his Department and the Incorporated Council of Law Reporting. That may be a situation which for Departmental reasons has been unavoidable, but I urge the Minister to see if he can do something about trying to improve the law reporting situation, which is undoubtedly the worst in Western Europe. It may be the worst in all of Europe, and other parts of the world as well.

The reason why we are getting this amendment in this form is a technical one. I hope the House will allow me to try and explain why this amendment takes the shape of adding a new section to Article 37. Under the 1922 Constitution, from which the 1937 Constitution was very largely copied, except for a certain number of innovations, most of which were detrimental, no problem of this kind would have arisen. That Constitution contained in its 64th article the same kind of expressions which the present Constitution contains in Article 34, namely, confining exclusively to the courts the administration of justice. It has always been a difficult matter to decide in any jurisdiction what is a judicial controversy of a type which must fall into the sphere of the courts and what is a controversy of a kind which can validly be decided by an administrative authority. That has always been a troublesome area, and I do not believe that anybody will ever draw a satisfactory frontier. But it was broadly recognised and it was quite a familiar situation, under the old Constitution and in the days of the British, that an increasing range of administrative operations had, and could not but have, judicial-looking outcrops, that there were operations necessarily incidental to the carrying out of administrative policy which meant that a Minister, a Department or a board would have to make up their minds one way or the other about a situation which, potentially, could affect people's rights.

It was understood that one could not run a modern state otherwise, that one could not be deciding every little dispute, every little issue which arose in administration by running to the courts. That was understood in 1922, in the days when the old Constitution was being drafted and it was well understood all through the 1920's. In the 1930's in litigation which is reported under the name of Lynham v. Butler (No. 2) in the 1933 Irish Reports, the point was powerfully raised against the Land Commission that in the carrying out of some of their functions, resuming holdings and making ascertainments of one kind or other, which they had to do in order to carry out the purposes of the Land Acts, they were discharging functions which were essentially judicial. The point was powerfully made that those functions under the Constitution of those days should have been left to a court and only to a court.

The counsel who most powerfully argued that in Lynham v. Butler was George Gavan Duffy. He was a signatory of the Treaty who subsequently became a judge about 1935 or 1936. He was one of the greatest judges the State has seen. I believe that, were it not for him, the whole system of judicial review of legislation here might never have got off the ground. I believe it is perfectly conceivable that a case like the McGee case, which Deputy Desmond and Deputy O'Keeffe know about—I mention it because it is a relatively recent topical one—or a case like Byrne v. Ireland, which established that the State was just as much liable to be sued in tort as any private citizen, might never have arisen or might never have been so decided had it not been for the judicial adventurousness, very independent and noble mind of Gavan Duffy. I have a great deal of admiration for him and think he is a very major figure in the history of the Irish Judiciary.

At the same time he had what I can only call, I hope with no disrespect to his memory, a bee in his bonnet on the subject of the usurpation as he saw it of judicial functions by administrators. He was the counsel who most powerfully argued against the Land Commission's function in Lynham v. Butler. In that case it seemed to be settled by the Supreme Court—by Chief Justice Kennedy, Mr. Justice Johnston and Mr. Justice Meredith—that it was permissible for administrative authorities to conduct operations, on the periphery of their main work, which were judicial in appearance.

The best judgment in this regard is the judgment of Mr. Justice Johnston, who said it was unavoidable that in a modern state, in carrying out administrative policy, administrators will have to make decisions. They will have to come down as to whether the farm should be given to X or to Y and they will have to make decisions as to who is entitled and who is not entitled. It cannot be otherwise. Anybody would have said after 1932—it was in that year the Supreme Court gave judgment after reserving their judgment for about 20 months—that this problem would not arise any more, that it had now been authoritatively settled here, that even a very drastic function, like the functions of the Land Commission, were not necessarily a usurpation of the sphere of the courts even though they were discharged by people who were not judges.

I strongly suspect that Gavan Duffy's influence on the incoming Government of Mr. de Valera was such that he persuaded them to include in the new Constitution which was drafted in 1936 and early in 1937 a clause which would specifically cover and legitimate something which Gavan Duffy never accepted to be legitimate, namely the discharge of a function of a judicial nature by a non-court. So, in order to accommodate the point of view of Gavan Duffy, Mr. de Valera produced in the Dail—the Seanad, I do not need to remind the House, had been abolished because that was Mr. de Valera's way of dealing with a House which would not do what he wanted—in June 1937 a draft Constitution which included a brand new article, to which nothing in the old Constitution had corresponded, and it was barely debated in this House. The whole Constitution passed through the House in 11 days—imagine how long it would take to debate one single contentious subsection in these days, because everyone has become so wordy— the whole thing went through the House in 11 days. But Mr. de Valera did say in the Dail debates, Volume 67, column 1511, when explaining about Article 37:

There were questions——

That was a typical de Valera-ism. The question had been settled by the Supreme Court but to Mr. de Valera it was still a matter of "there were questions". It had been settled so far as any instance in this State could settle such a thing.

There were questions about the Land Commission, as to whether their functions were of a judicial character or not ... so as not to get tied in the knot——

——the only people being tied in a knot were himself and his party because everybody else was completely in the clear about the powers of the Land Commission and their entitlement to carry out the functions which the Land Acts entrusted to them——

So as not to get tied in the knot that judicial powers or functions could only be exercised by the ordinary courts established here, you have to have a provision of this type.

I do not know, and I have no direct evidence to prove, that that was Gavan Duffy speaking through him, but I honestly believe it was; and that was the bee in Gavan Duffy's bonnet surfacing in here via the Constitution draft. I say that while repeating the enormous respect which anyone who has taken a look at the way law has worked here over the last 50 years must have for the memory of George Gavan Duffy. This is an instance in which he had a belief which I honestly believe was unreasonable.

Therefore, that Article became law; and there were several cases in the forties and the fifties in which the Article was mentioned, usually in litigation involving the Land Commission, and the courts never had occasion to rely on that Article. They were still able to say: "There is a visible distinction between, on the one hand, operations of a kind which are only proper and exclusively proper to the courts, and, on the other hand, administrative operations in which the administrator must, as the lawyers say, act judicially"; in other words, he is not administering justice, he is not discharging a judicial power or function, but he must act judicially; even though he is only acting as an administrator he must do so with the disposition of a judge; he must be fair, he must hear both sides, he must give a fair opportunity to somebody affected by his operations to make his case and to make sure that his case is understood. That is acting judicially, but it does not amount to administering justice. These two categories were well understood before the Constitution. But, in addition to these two categories which were equally understood after the Constitution, there was now apparently a third category, the Article 37 category, where a judicial function is being exercised by somebody who is not a judge, as distinct from an administrative function being exercised judicially by someone who is not a judge.

If Deputy Desmond was here she would accuse me of being guilty of legal labyrinthism or something of that kind. I admit that it is a difficult area, and I admit that one cannot draw clear objective boundaries around these categories; but the consequences of Mr. de Valera's Constitution, in Article 37, is that instead of having two categories which are difficult to define and delimit we now have three categories which are difficult to define and delimit. Except for the expression in Article 37 which forbids an administrative authority to exercise a jurisdiction of a criminal kind or of a kind that cannot be described as limited it is really hard to see what function Article 37 fulfils at all.

We are in a situation where we have this Article the only useful effect of which is to forbid the exercise of nonlimited—and nobody knows what non-limited is—or criminal functions by an administrative authority. That is the effect of the Article, but does it really work like that? The Land Commission is still functioning. Farms are still being resumed, I suppose, or the power to do so is still there. I would have said that was a very drastic function; it is not a limited function by any ordinary understanding of the word. Yet it is still going on. Article 37 has not stopped it. What about planning authorities? What about a local authority who refuse planning permission or grant planning permission only to find that the appeal board shoots it down? What is to be said of a man who has bought a piece of land or entered into a binding option to buy a piece of land, heavily invested in advice, who in reliance on the planning permission has perhaps entered into contracts of various kinds and finds then that the appeal board give a decision which reduces the land back to its agricultural value? Surely that is a very drastic and serious thing, and yet it has never been effectively challenged by reference to Article 37. This Article is a vague sword of Damocles hanging over the head of we do not know who, and we do not know what will cut the thread that will let that sword fall. Nobody really knows what the exact function of that Article is. Nobody really knows how far it is going to go, how far it can be evoked and, to cut a long story short, I am very far from convinced that it fulfils any function in the Constitution at all, like several of the other innovative Articles put in in 1937.

What are we doing here? Let me just read Article 37 because I want the House to know what it is we are adding a new paragraph to. It reads as follows:

Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or body of persons is not a judge or a court appointed or established as such under this Constitution.

We are now adding:

No adoption of a person taking effect... by reason only of the fact that such person or body of persons is not a judge or a Court.

Do not forget that in the editions of the Constitution which will be hereafter printed these two sections will be side by side and of course we will be supposed to administer that Article as one. The way a lawyer will look at the thing is as follows: he would say, I know there is a certain amount of unreality. We talk about the people who "enacted" the Constitution, but the reality is that what people did was to go out and vote for de Valera or vote against de Valera. I need not say that not 1 per cent of them had even read a single line of the Constitution that they were voting on, any more than that more than 5 per cent of the Deputies in here will have read all of Article 37 by the time this passes. Perhaps that is an exaggeration. But certain assumptions of a polite kind have to be made, namely, that the Oireachtas knew what it was about when it was enacting them. I know that might be a large assumption, but assumptions have to be made, for politeness' sake at least, and the same kind of assumption is made about a Constitution, that the people deliberately "enacted" it whether originally or by a referendum which inserts a new clause. That whole Article is going to be read as one piece. The effect of that is going to be that a court asked to look at Article 37 in order to test the validity of some administrative power that this House is not focusing on at the moment, that nobody has adverted to at this moment, is going to read it like this, and is going to be invited to read it like this, by a lawyer on one side or the other, and to take a view as follows: that the people of Ireland consider that the function of a legal adoption order is a non-limited function of a judicial kind. The argument will be raised, maybe successfully, that if the making of an adoption order is non-limited and of a judicial nature, a fortiori some other function is non-limited and of a judicial nature.

What we are implicitly admitting here is that adoption is a non-limited function and that an adoption order cannot be made without exercising a function of a judicial nature. By admitting that, we may be implicitly pulling the ground from under some other administrative function of which we are totally unaware. That may be a very salutary result. I cannot predict, I have not any idea; all I am saying is that we are doing more here today than merely validating, or shoring up, or plugging a gap in an adoption system which has been operating here for 27 years.

That is one implication of what we are doing here today. I realise that, just because I say so, the Minister will not run off and scrap this Bill and bring in another one. I just hope the thing does not have any ill effects, but I should like to put on record my suspicion that we will find that argument raised, perhaps effectively, and perhaps raised in a manner which will mean we will be rushing in with another amendment to plug some other gap. That will be the consequences of relying on an argument like that. Supposing that by reliance on an argument like that some function, like a planning function or a function of the Land Commission becomes hereafter invalidated, we will be running in here with some other amendment which will say that notwithstanding that the Land Commission are not a court or a judge or that An Bord Pleanala are not a court or a judge, all planning appeals since a relevant date shall be deemed to have been perfectly valid. We cannot go on like that.

The other consequences of what we are doing here is that it impliedly rules out, perhaps correctly—I think it is right—Indemnity Acts. Perhaps I am wrong in this—there may be indemnity clauses tucked away somewhere in other Acts, but the only full Indemnity Act we have had was the Act passed after the Civil War, in 1923, which effectively prevented actions from being brought in respect of wrongs which were alleged to have been committed on behalf of the Provisional Government or the Free State Government during the currency of the war. There was ample precedent in the laws of other common law countries for such Indemnity Acts—indeed they were the rule after wars.

But of course an Indemnity Act means, if it is law, if it is valid, that somebody who on Monday had a right of action in respect of, say, requisitioning or confiscation or an act of arson or of assault or an act of grievous bodily harm, or whatever it may be, on Tuesday had not any such right because his right had been taken away from him by an Act of Parliament. That is what the effect of an Indemnity Act must be.

The situation we are facing up to here is that somebody who—I do not want to be raising scares—potentially on Monday might have had a right to have an adoption order invalidated under Article 37, on Tuesday would have no such right because it would have been taken away from him. The point I am trying to make is that by adopting this technique we implicitly, tacitly, are saying that ordinary Indemnity Acts are no good, that they cannot be effective in this State from now on, and that their purpose can only be achieved via a solemn amendment to the Constitution. My belief is that that is right: I think that an Indemnity Act should not have any place under our Constitution; I do not think the Constitution allows Parliament arbitrarily to take away people's rights of action in that way. I am not quarrelling with that: I just want to draw the attention of the House to it, because we should know what we are doing when a Bill like this is going through, a Bill which is aimed only at a very narrow part of the field of law, aimed at plugging only a single gap.

I am not so sure it might not have been better, in trying to do what the Minister is aiming at, to have put a new

Article altogether at the end of the Constitution, quite separate from Article 37, and to have given it some name which would make it clearer that it was intended to contain merely ad hoc plugs. If I had sat down to think about it I might have thought of a name for such an Article. In my opinion it would have been better to have produced an appendix at the end of the Constitution, a kind of basket into which this provision could have been put, clearly labelled as an ad hoc provision not to be taken as containing any implication in regard to any other part of the Constitution, an implication which will now be there when we build this amendment into Article 37, which will have implications in regard to the interpretation of other parts of Article 37.

That is all I want to say except for a few brief observations in regard to the text of the proposed amendment. Why was it decided to write the Irish text of the new section according to spelling conventions which have been obsolete for 50 years? Rannóg an Aistriucháin in this House, which I have praised before for their work in regard to the standardisation of Irish spelling, were set up at the same time as the Oireachtas came into existence and they immediately got down to the business of simplifying and standardising spelling. They did not finally standardise until 1947, but attempts were made in that direction, as one can see when one opens the statutes of 1922 and 1923. In 1947, Mr. de Valera, intending to show that he was a more antique Irishman, more primeval than anybody else, went back to a spelling system which had not been used officially since the State had been founded, and the Constitution was not only put in draft in the so-called Gaelic script but in accordance with spelling conventions which had long since gone—though from which I still suffered as a schoolboy—which officially had been dropped since 1922.

At some stage in the fifties, I think, a text of the Constitution was published in which a revision of the Irish text, according to the spelling standardised by Rannóg an Aistriucháin was printed. I have heard a Supreme Court judge express the view that it is not within the power of the Taoiseach's Office—the Taoiseach is in charge of putting out these texts—to carry out any change at all, even the most minute spelling change, in the Irish text of the Constitution which must stay in the form in which the people adopted it.

I will not pronounce on this now. The changes which were made arbitrarily in the Taoiseach's Office consist not merely of spelling changes, there are some slight grammer changes too, all done without any referendum. My point is that we should keep an eye at what we are at. Here we have a proposal to insert in the Constitution—the thing has been done in Roman script—a clause in which I see the words "sainráidhte", "dhlighthe", "d'achtuigh", "sonruighthe" and "bunuigheadh". They have been all spelled according to conventions which were officially declared in 1947 to be obsolete, and which have in fact been obsolete since 1922 or 1923.

Is the Minister serious in putting into the Constitution a version of Irish spelling which is not used in the schools and which has not been used in this House since its foundation? In the existing Article 37 I find that the word "dlí" is spelled "dlí" but I find that in the Minister's amendment the word is spelled "dlighidh". Nothing can surprise me any longer in regard to the brazen and contemptuous indifference of the Irish State towards something it is supposed to love, cherish and revive; but is it not the frozen limit, assuming that this Bill will be enacted, that we are to have section 1 of Article 37 according to the 1947 standards and section 2 of Article 37 in the orthography of 50 years ago? In other words, we will have a section in which, within a half-an-inch of each other, the same word will be spelled differently. Surely enough insults have been perpetrated, and by Fianna Fáil in particular, to the Irish language without having this one.

Is it the Minister's intention to display a degree of romantic antiquarianism in tribute to the memory of the late Mr. de Valera? If, say, the Americans were to amend today their Constitution which was enacted in the 1780s, in the days when admittedly spelling did not differ very much to what was then conventional English spelling but in which words such as "music" were spelled with a "k", can the Minister visualise the Americans passing an amendment involving the word music and spelling it with a "k"? Were they to do so the American Congress would be laughed at, but what the Minister is doing is the equivalent of that. I trust that in that small respect at least he will think again before going ahead with the Bill.

Minister for Justice (Mr. G. Collins)

First, I should like to thank all those Members who contributed to the debate and who have expressed a welcome for the Bill. I should like to go further and thank Deputy Kelly for his appreciation of the efforts of the staff of the Department of Justice who were involved in this area. The Deputy knows it is not often that officials in the Department have such praise showered on them.

Perhaps I should deal first with the last point raised by Deputy Kelly regarding the Irish version of what is in the Bill. This was prepared by the Translation Branch of the Houses of the Oireachtas. Apparently the spelling was kept in line deliberately with what was in the original version. The version in the published revised text, when published, will be in the new spelling.

Mr. Kelly

I think the Minister's leg is being pulled.

Mr. G. Collins

I am prepared to check this but I understand that there is good reason for the spelling that is used and I can assure the Deputy that no insult to the Irish language was intended.

Mr. Kelly

The translators are the last people I would accuse of that. They are the ones who have done the Irish language credit but the fault lies with their political masters.

Mr. G. Collins

As I say, the spelling used was deliberate. There was no slipshod effort on the part of anyone concerned.

I thank Deputy O'Keeffe for his welcome of the Bill in general. He raised a number of points on matters that are not strictly speaking relevant to the Bill but I shall endeavour to reply to them. In regard to the question of children's rights, the Deputy would not appear to recognise something that is spelled out clearly in Judge Walsh's judgment in the recent case, that is, that children have rights which are recognised and protected by the Constitution. Those who insist, for example, that a neglected legitimate child has the right to adoption seem to forget that adoption would sever the rights and the duties of the natural parents in a family based on marriage, which the Constitution also expressly protects.

Regarding section 3 of the 1974 Act, I said earlier that I had misgivings because, taken with other provisions, it could lead to a serious infringement of the rights of the mother.

Mr. O'Keeffe

My misgivings were from a different point of view.

Mr. G. Collins

A point raised by Deputy O'Keeffe which, if left un-answered, might lead to concern, is the question of the staffing of the board. Although this is not relevant to the Bill I think I should refer to it. I assure the Deputy and the House that any request by the board for staff has never been neglected. I understand that before my time they asked for a number of extra posts and that these were sanctioned very promptly. Recently they requested additional staff and examination showed there were certain organisational and rationalisation changes that might be possible. I understand also that two new posts have been created and that a competition to fill these posts has been held. This is an area that we should be clear on.

The point raised by Deputy O'Keeffe that 10 per cent of all children in care are the illegitimate children of married women is one that has not been raised with me before by anybody. I do not know what the Deputy suggests should be done. In any particular case the presumption of legitimacy can be challenged in court and surely the presumption in any case is in the interest of the children generally.

Deputy O'Keeffe made a point, too, regarding the Task Force. I believe that this Force have a sufficiently wide field without going into the constitutional aspects of the adoption law. It was never intended that they should become involved in this field for the very good reason that this area is extremely specialised.

Deputy O'Keeffe made a point also regarding the time limit for the upset of an adoption order. The courts will have regard to the time that has elapsed before deciding to upset an order. I am convinced that a rigid time limit could be unjust in some cases.

I appreciate Deputy Mrs. Desmond's guarded welcome for the Bill and her stance on it. With regard to the McL case, Articles 41 and 42 appear to make the welfare of the child of secondary importance. She asks, then, are section 2 of the 1974 Act and section 3 of the Guardianship of Infants Act unconstitutional. I have dealt with this area at length in my opening speech. In a nutshell, I argued that the provision in the Guardianship of Infants Act was probably constitutional and that, even if it was not, no harm would result because the position would nevertheless be what it was always intended to be, i.e., at common law.

In the case of the Adoption Act, 1964, I had misgivings, but I did say that I would be looking at it again and examining it more closely. With regard to the rights of illegitimate children, I dealt with this at very great length in my opening speech. Deputy Mrs. Desmond made the accusation that my opening speech contained too much legalistic argument, but it had to. I understand Deputy Mrs. Desmond's dilemma in dealing with such an opening speech. Having made my speech I was glad that the time of the House brought about an adjournment so that interested Members would have an opportunity of going through it at their leisure instead of, as often happens, having to give instant comment on something that is extremely legalistic and a matter of great importance. There had to be legalistic arguments in my speech because there are fundamental legal questions involving rights and status involved in adoption. There is no point in saying "This is what we want" without going into the legal consequences and possible legal consequences of what we are saying. There is no other way to deal with it.

With regard to discussions with caring bodies and interested groups, I have had a number of meetings in the past 18 months with such groups. The Minister of State in the Department of Justice has also arranged a number of meetings for either this week or early next week.

As regards suggestions for the review of adoption, any criticisms that are made will be examined. The suggestion to have a commission to consider the whole matter and the difficulties regarding the Constitution of such a commission will be examined. However, we all know that people who offer themselves to be members of commissions investigating particular issues are not always necessarily the best people to have on such commissions. As experience has shown, reports of such commissions in the past have divided along personality lines or lines of interest of those who constitute the membership of them.

I would like to thank Deputy O'Keeffe, who spoke on behalf of his party, and Deputy Mrs. Desmond, who spoke on behalf of her party, for their welcome for the Bill. Naturally, there is certain disagreement between us as to what should be in the Bill. I have given at great length good reason why certain matters that were raised cannot be incorporated in the Bill. I hope the general public when they are asked to change the constitution in this regard will do so and that every Member of the House will help to bring about the change which we need.

I would like to say to Deputy Mrs. Desmond that at no time did I mean to imply that her party would want to upset or break down certain structures in Irish society. What I did say I said deliberately because of the consequences of suggestions, perhaps not seen then and perhaps not seen yet, which were voiced by members of her party in the past in this area. I say that with all due respect and do not wish to appear to be point-scoring in this. I am not. I have the same legitimate interest in adoption as I am sure other Members have. I thank the House for the way in which they received this legislation.

Question put and agreed to.

An Leas-Cheann Comhairle

When is it proposed to take Committee Stage?

Mr. O'Keeffe

The Minister produced a very comprehensive statement of the difficulties involved in any further additions to the Bill. He suggested that the Bill might have been studied carefully in the leisure time since last week. I did not have the opportunity of studying it in detail.

Dáil Éireann debate - Wednesday, 14 Feb 1979

An Bille Um An Séú Leasú ar an mBunreacht (Uchtáil), 1978: An Dara Céim (Atógáil). Sixth Amendment of the Constitution (Adoption) Bill, 1978: Second Stage (Resumed).

Dáil Éireann debate -
Wednesday, 14 Feb 1979