An Bille um an Séú Leasú ar an mBunreacht (Uchtáil), 1978: An Coiste agus na Céimeanna Deiridh. Sixth Amendment of the Constitution (Adoption) Bill, 1978: Committee and Final Stages.

ALT 1.
SECTION 1.

Amendment No. 1 has been ruled out of order.

Tairgeadh an cheist: "Go bhfanfaidh alt 1 mar chuid den Bhille."

Question proposed: "That section 1 stand part of the Bill."

My amendment, on procedural grounds, has been ruled out of order. The points I make relate to some extent to the amendment I wished to introduce, but of course are related to the existing section 1 of the Bill.

In speaking on the Second Stage I took the view that the constitutional amendment before the House, although welcome and desirable, was much too restrictive. My attitude is that a golden opportunity is being lost. We have the opportunity in this generation to provide further constitutional guarantees for all adoption orders. We have the opportunity also to provide the constitutional framework for the development of our laws in regard to children in general and adoption in particular. It may be another generation before a similar opportunity arises. Therefore my approach is to appeal to the Minister to further copper-fasten existing adoption orders and, in addition, to provide the constitutional basis for the extension of our laws. I do not accept that the Bill, as presently framed, does this. It is widely considered that there are circumstances or exceptional cases where the adoption of legitimate children should be permitted. It is generally accepted that we need more child-centred legislation to be enacted and constitutionally guaranteed to cover the exceptional cases as mentioned in Article 42 of the Constitution:

where the parents for physical or moral reasons fail in their duty towards their children,. . . .

The Minister made it clear that the present Bill cannot guarantee that there never again will be a danger of an adoption order being held to be invalid. He stated that it was impossible to provide such a guarantee unless we provide a constitutional time limit. The Minister stated that there was no way realistically that we could offer to adopters an absolutely water-tight guarantee that an adoption cannot be challenged. I believe that this Bill and this section closes one door but that there are further doors which could and should be closed at this stage. A vehicle for so doing is an addition to Article 42, which I have suggested. Apart from the circumstances outlined in the McL. case there are dangers where adoptive parents may be exposed to harassing and distressing litigation after bonds of affection have been formed between them and their adoptive child. In that situation, of course, the position of the child has to have our careful consideration, sympathy and support. For instance, what would be the situation if a child genuinely thought to be or presumed to be illegitimate at the time of adoption subsequently was proved to be legitimate? Would the inalienable and imprescriptible rights of the family, as provided in Article 41 of the Constitution, then supersede the adoption procedure permitting an order to be made for the return of the child from the adoptive parents?

Any system is subject to human error. If administrative mistakes are made, surely we must make every effort at this stage to ensure that constitutionally the hands of the Supreme Court are not bound. There is also the situation that there is discrimination under our present system against certain children who are legitimate or presumed to be legitimate. As things stand under our present legal system their only options are institutional life, fostering, or removal from the State for adoption elsewhere. Surely this is not a situation we can accept. Surely it is a situation crying out to heaven for remedy. We will not be able to change our laws to deal with the situation unless we provide now the constitutional framework. This is our opportunity and I beg the Minister not to let it pass.

The Minister in his speech dealt at length with the difficulties associated with making the child's welfare the first and paramount consideration. In a closely-argued and well-researched speech he dealt with the legal obstacles to providing for this. The proposal which I am putting before the House informally and asking the Minister to consider will, I believe, overcome this problem.

I am allowing the Deputy to make his statement but I would point out to him that we cannot discuss an amendment that has been ruled out of order. All of the Deputy's statement is on that amendment. I am giving him the latitude to make his statement and then we will move on.

I appreciate that. If the Chair will allow me a few minutes I will cover the point I have to make. What I believe is important is that the Minister be committed to the course I have in mind. If he is, I have no doubt that the constitutional and legal means can be devised to achieve the desired objective. The proposal I make is one which, with all humility, I suggest is one way of achieving the desired result. I am totally open to any counter-suggestion from the Minister or otherwise. Basically we have to find avia media between the inalienable and imprescriptible rights of the family and the individual rights of the child.

All of us are unanimous on the value in our society of having the family as the basic unit. Clearly this principle must be supported constitutionally, legally and in our public attitudes. Therefore, the removal from the Constitution of the words "inalienable and imprescriptible" is not the way to tackle the problem. However, at this point I would refer to a common misconception in regard to these words. The rights are not conferred by the Constitution; they are recognised by the Constitution. There is a considerable difference here in reading Article 41. That Article is the constitutional recognition of a pre-existing position of rights which presumably are conferred on the family under natural law. These rights are not conferred by the Constitution; they are recognised by the Constitution. This is an important point. My proposal is to add a subsection to Article 42.5. This subsection already provides for the position where in exceptional cases parents fail in their duty towards their children. Therefore my proposal is to extend this section by providing that the machinery of Article 41 cannot be used to invalidate a law enacted by the Oireachtas expressed to be by virtue of existing Article 42.5. I believe this could be the answer to the search for a balance between the rights of the family and the individual rights of the child. The proposal, if accepted, would continue to provide recognition for the inalienable and imprescriptible rights of the family but would provide that such recognition would not invalidate laws dealing with adoption or otherwise with the child's welfare. The net result of my proposal is to continue the recognition of the family and its rights—in which I believe totally—but at the same time would permit us to guarantee and develop our laws in regard to children on a child-centred basis.

Finally, I should like to point out—-and I appreciate the indulgence of the Chair—in regard to this Bill, that this is 1979, the International Year of the Child. The brochure produced for the National Streering Committee under the auspices of the Minister for Health suggests that this is the year for the Government organisations and individuals of our country to examine the special problems and needs of children and to work together on a constructive and practical programme for their benefit both at home and abroad. I believe that this is such an opportunity which we should not let pass. While I accept that progress is being made in regard to this Bill in the section we are dealing with which incorporates the Schedule providing that adoption orders cannot be declared invalid solely because the Adoption Board is not in court, I would urge the Minister to use this opportunity to provide for the further copperfastening of adoption orders and, at the same time, to provide a constitutional framework which would permit our adoption laws and laws relative to children in general to develop.

So far as the Chair is concerned I gave the Deputy permission to read his statement. It was on the amendment and was not in order. If the Minister wishes to reply to that point he may do so but that finishes it at that stage.

I wish to thank the Chair for his indulgence in giving me the opportunity to reply to the comments of Deputy O'Keeffe. I must say that I am not at all sure that Deputy O'Keeffe is fully aware of the ramifications of what is involved in the amendments which he had hoped to move here this afternoon. If he were aware the Deputy would not be as anxious as he seems to be to speak on it. I find this amendment completely unacceptable because it would enable the Oireachtas to legislate in such a way as to abrogate entirely the rights of the family which are at present guaranteed by Article 41 of the Constitution. Any Act of the Oireachtas which professes to be made by virtue of what is now section 5 of Article 42 would not be open to challenge in the courts no matter how flagrantly it cut across the guarantees in Article 41. The Act might have very little to do with Article 42 even though it professes to be made by virtue of that Article and it would still have the effect of nullifying Article 41.

The amendment that Deputy O'Keeffe has commented on is modelled on Article 28 of the Constitution which frees from challenge as to its constitutionality any legislation passed by the Oireachtas in time of war or in time of armed rebellion which is expressly for the purpose of securing public safety and the preservation of the State. That provision, however, was intended to cater for exceptional circumstances where the life of the nation is threatened and is totally inappropriate as a headline for the provision in the Constitution for what is intended to have permanent effect. The amendment, far from guaranteeing any rights whatsover to any child or to any adult, would actually withdraw the constitutional guarantees which are already there and instead give the Oireachtas a free hand in a vital area. The approach represented by the amendment is in marked contrast to what was in the Private Members' Bill some months ago which sought to strengthen the control of the Constitution over the legislator and not to weaken it. The opposite would happen if we were to adopt this suggestion of Deputy O'Keeffe.

One could argue that the Oireachtas should not be trammelled at all by a written Constitution because the Parliament in the United Kingdom is not so trammelled but it would be entirely anomalous to have a written Constitution which provides very explicit guarantees indeed in an area which is basic to social life and then to provide that the Oireachtas is free to disregard those guarantees. That is why I say that I am not at all sure that Deputy O'Keeffe is fully aware of what would have happened if the amendment which he commented on were accepted and made part of this Bill.

May I say that Article 42 deals solely with those exceptional cases where the parents, for physical or moral reasons, fail in their duty towards their children. There is no question whatever of abrogating in any way the rights of the family. I specifically make the point that I wish to retain the inalienable and imprescriptable rights of the family. I am merely trying to find a solution to those exceptional cases as referred to in section 2 of Article 42. I put this proposal forward in that context only, totally accepting the need to retain the family as a basic unit of society but, at the same time, seeking to find avia media so that the individual rights of a child can be upheld. I am very much open to the Minister coming back with any further proposal if he is of the one mind with me that we need more child-centred legislation; that we need, in this International Year of the Child, to turn our thoughts more towards having legislation which is designed more for the child's welfare. I accept that any such proposal should not interfere with the right of the family. I would ask the Minister to put his mind along the same wavelength as mine and use his own brains and those of his Department to find such a proposal. Then I would be happy that I have done my job.

I accept that Deputy O'Keeffe is properly motivated in what he said here today. I am only pointing out to him what would have happened if the amendment, which we are not discussing, were accepted. I am quite prepared to examine fully what the Deputy says and if there is any way I can do anything about it by the time of Committee Stage in the Seanad I will have another look at it.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.
Aontaíodh alt 2.
Section 2 agreed to.
Aontaíodh an Sceideal.
Schedule agreed to.
Aontaíodh an Réamhrá.
Preamble agreed to.
Aontaíodh an Teideal.
Title agreed to.
Aontaíodh na Céimeanna eile a thógáil inniu.
Agreed to take remaining Stages today.
Tuairiscíodh an Bille gan leasú agus ritheadh é.
Bill reported without amendment and passed.