The main provisions in the Adoption Bill, 1987, extend the categories of children who may be legally adopted. In particular the Bill provides for the adoption of legitimate children who are destined to remain in either residential or fostercare for all or most of their childhood and whose parents have failed in their contitutional duty towards them. The Bill will also permit the adoption of an illegitimate child abandoned by his or her natural mother in circumstances in which such child cannot currently be adopted. Other changes are also made in the Adoption Acts which derive from a recent judicial decision determining that widows and widowers cannot be treated differently in the area of adoption and from the lowering of the age of majority to 18 years.
The adoption of children currently is governed by the Adoption Acts of 1952 and 1976. Under these Acts an adoption order can be made only in respect of a child who (i) is an orphan, or (ii) is illegitimate, or (iii) has been legitimated by the marriage of his parents after his birth but whose birth has not been re-registered.
A child's mother or guardian or any person having control over him must consent to his adoption. In the case of a legitimated child whose birth has not been re-registered, the consent of both mother and father is required. There is a two stage procedure involved in the adoption process. There must be an initial agreement to place the child for adoption and there must be a subsequent consent given to the making of an adoption order after a child has been placed with prospective adoptive parents, before the Adoption Board can make such order. This latter consent can currently be dispensed with in certain circumstances by direction of the High Court. These circumstances would normally relate to a situation where the court considers that the mother has unreasonably withheld her consent to adopt or has withdrawn a consent already given and where the court believes that the child has bonded with its proposed adoptive parents and it is in the best interests of the child that an adoption order be made.
Children who are not eligible for adoption at present are: 1. A legitimate child with a parent or parents alive; 2. An illegitimate child whose mother has not agreed to its placement for adoption. 3. A foundling infant where it cannot be established that such infant is illegitimate.
For many years there have been calls to amend the law to permit the adoption of such children in circumstances where they have been separated from or abandoned by parents who are unlikely to resume or incapable of resuming their parental roles. The majority of those children for whom a change in the law is required are legitimate children in long-term residential or fostercare, placed in such care by or with the assistance of a health board or voluntary body. There are also children who fall within this category who have been placed directly by parents with relatives or friends without the formal intervention of any health board or other body or organisation.
In 1980 a survey carried out by the Federation of Services for Unmarried Parents and their Children among its member organisations which comprise statutory, religious and voluntary bodies dealing with child welfare showed that 100 per cent of the respondents to the survey favoured the adoption of legitimate children. Whilst the majority of the members of the Task Force on Child Care Services inexplicably in their final report to the Minister for Health in September of 1980 did not make any recommendation to reform the adoption laws, a minority of the members of that body formed the view that adoption fell within the area to be covered by their report and referred expressly to the need to extend the possibility of adoption to children currently excluded from it. Emphasising that adoption is one of the alternatives which must be considered when the future care of a child who has no family of his own to care for him is being planned they stated "we do not think the law should continue to discriminate in relation to eligibility of children for legal adoption on the basis of the marital status of the childs parents". They emphasised that a result of the current law in so far as it prevents the adoption of abandoned legitimate children is "that some children will stay in care throughout their childhood who could instead be growing up happily in adoptive families" and recommended that the law should be changed to permit the adoption of legitimate children.
The need to change the law was again emphasised by the Review Committee on Adoption Services in their report published in May of 1984. In their report they state:
We are firmly of the view that a child's eligibility for adoption should not be determined on the basis of the marital status of his parents. A major defect of the present law is that it excludes from adoption many children who may be in need of the benefits which it can offer. There are children in the care of the Health Boards and religious and voluntary organisations who have never experienced the happiness of growing up in a stable home environment with legal security and who, under our present laws, are denied the likelihood of ever being able to do so. These are children born legitimate with a parent or parents alive; some have been abandoned by parents unable or unwilling to discharge their parental obligations; others have been left effectively parentless as a result of the chronic illness of a father or mother or both. There are some such children who may be in fostercare and who will therefore usually have the benefits of a settled home. The disability in this instance is that they cannot be legally integrated into their foster family or into another family who might like to adopt them.
The committee further on in their report make the startling disclosure that while such children cannot be adopted in Ireland, in order to circumvent the law and to extend the possibility of a normal family life to such children in submissions made to them, the committee were "informed that some legitimate children are being sent out of the jurisdiction — that is, out of this country — because of the present restriction on their adoption here".
It is noteworthy that the members of the Adoption Review Committee who recommended that the possibility of adoption be extended to abandoned legitimate children consisted of a cross-section of persons involved with children in care, particularly the adoption services and including health administrators, social workers, an adoptive parent, legal experts, a child psychiatrist and a priest. Following publication of their report, this recommendation received widespread support from bodies and individuals interested in child welfare, including the Central Council of Catholic Adoption Societies, the Adoptive Parents' Association, Cherish and the Irish Association of Social Workers. There is consequently general agreement on the part of all those working in the child care area and, I believe, general agreement across the community that the law should be amended in the way provided for by this Bill.
I now turn to outline the specific provisions of the Bill as published. The Bill will permit in certain severely restricted circumstances the adoption of a legitimate child with a parent or parents alive or of an illegitimate child whose mother has not agreed to its placement for adoption. It will allow such adoptions only in those instances where for a continuous period of not less than 12 months immediately preceding the time of the making of the adoption application, the parents of a child, for physical or moral reasons, have failed in their duty towards the child; that it is likely that such failure will continue without interruption until the child attains the age of 18 years and that such failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child.
On the question of failure of duty, it will be a matter for the High Court to interpret each particular instance. In this regard the wording of the relevant section reflects the wording of Article 42.5 of the Constitution which permits the State to supply the place of the parents in certain exceptional circumstances.
Sections 2 to 5, inclusive, establish the procedures for the adoption of those children to whom this Bill is relevant. The procedure outlined is as follows: persons making an application for the adoption of such a child must have had custody of the child in their home for a continuous period of not less than 12 months immediately before the making of the application. This is provided for under section 2 (1) (b). Secondly, where a child has been placed in foster care by a health board, the board must give their consent to the application for an adoption order, in accordance with section 2 (1) (d). Thirdly, the applicants must make two applications, an application to the Adoption Board for the making of an adoption order and an application to the High Court to authorise the Adoption Board to make an adoption order.
The Adoption Board will deal with the matter first. They will examine the application for an adoption order using the same criteria as applies at present to normal applications. For example, they will look at the eligibility of the proposed adoptive parents, their suitability as adopters, whether the child has successfully become part of their family and other matters of relevance. If the Adoption Board are satisfied that an adoption order would be appropriate, they will make a declaration stating that they would be prepared to make such an order if the High Court approved of the application before it.
The High Court then examines the matter and if it is satisfied that the parents have failed in their duty and that the failure is likely to continue without interruption until the child is 18 and that having due regard to the natural and imprescriptible rights of the child it would be in the best interests of the child that an adoption order should be made, it authorises the Adoption Board to make such order. The court will be obliged before the making of its authorisation to hear the evidence of the natural parents if they are willing to give such evidence. If their identity is unknown, of course no such evidence will be available. If such parents refuse to give evidence or simply cannot be found, it will also be possible for the court to make the appropriate order. It will also as far as practicable give due consideration to the wishes of the child. This will be a matter of particular importance in the context of older children.
On receipt of the High Court order the Adoption Board are empowered to make the adoption order. If, however, in an exceptional situation, the board find that the circumstances of the prospective adopters have changed to the extent that they are no longer suitable or eligible, the board need not make the adoption order.
The effect of the adoption order, as is the case in regard to all adoption orders, would be to terminate permanently the rights and duties of the natural parents in regard to the child. Effectively the procedures I have described are laid down in sections 2 to 4 of the Bill.
Section 5 provides for other changes. Under the present statutes a child cannot be legally adopted until he is at least six weeks old. There is an upper age limit of seven years but the Adoption Board can, in effect set this limit aside and make an adoption order in respect of a person currently up to the age of 21 years. Many such orders have been made in respect of children over seven years of age. The new Bill will confine adoption in all future cases to single persons up to the age of 18 years, in line with the new age of majority. There will be a transitional provision to cover applications pending under existing legislation in respect of persons up to the age of 21 years.
Section 7 of the Bill seeks to provide for an equality of treatment as between men and women. The Adoption Act, 1952 provided for widows to adopt but did not make provision for adoption orders to be made in favour of widowers. The Adoption Act, 1974 permitted widowers to adopt in certain restricted circumstances but in so far as different criteria were held to apply to widowers than applied to widows these were held by the High Court to be unconstitutional in the case of T. O'G versus the Attorney General and others, reported in Irish Law Reports Monthly, 1985, page 61. The provisions contained in section 7 make the necessary consequential amendments to the Adoption Acts to take into account the decision of the High Court made in this case and to place both widows and widowers in a position of equality under the Acts. It is, of course, unusual for either a widow or a widower to adopt. In the vast majority of instances adoption orders are made in favour of married couples. Nevertheless, the changes proposed in this Bill bring the statutory provisions into line with the decision of the High Court in that case and remove a provision in the statutes which is at variance with the Constitution.
Section 9 seeks to deal with problems which arise both under the main subject matter of this Bill and with difficulties which arise under the Adoption Act, 1974. Section 3 of the 1974 Act currently permits prospective adopters to apply to the High Court for an order dispensing with the consent of a natural parent or guardian of a child adoptable under the existing Acts, where an agreement to place for adoption has been signed and such parent or guardian has either refused to consent to the making of an adoption order or has withdrawn a consent already given. Such an order can only be made by the High Court where it is the best interests of the child. In circumstances where a consent is either withheld or withdrawn, prospective adopters, through no fault of their own, may be forced to become involved in legal proceedings in order to finalise the adoption precess. Since 1974 about 50 such cases have come before the High Court. The risk of incurring legal costs may in many instances inhibit the initiation of court action under section 3 of the 1974 Act, even where such action is in the best interests of the child and where the social workers and the health board or adoption agency believe such action should be taken.
While the State has in practice frequently discharged all or a portion of the legal expenses incurred by persons who have been party to such proceedings by way of ex-gratia payments through the Attorney General's office, following a court recommendation that the Attorney General meet such legal costs, there is at present no formal statutory provision to ensure that such costs will be discharged. The Review Committee on Adoption Services recommended that the current informal arrangement should be given a statutory basis and the provisions of this section so provide.
The section also provides for legal costs incurred by applicants for adoption to be similarly discharged where an application is brought in good faith in the best interests of a child pursuant to section 2 (a) of this Bill. Thus applicants to adopt a legitimate child in the circumstances prescribed in this Bill would be placed in a position whereby they could process the adoption application without being placed at risk of incurring large and unnecessary legal expense by having to seek a High Court authorisation to complete the adoption process. The section further exempts adoption court proceedings from payment of court fees. At present all such proceedings when they arise before the courts result in prospective adopters and natural parents of children being subjected to charges which many of them can ill afford and which I believe are indefensible in the context of court proceedings seeking to ensure that the welfare of children is safeguarded.
I now turn to the constitutional implications of the provisions of this Bill. The Review Committee on Adoption Services in recommending that the possibility of adoption be extended to legitimate children note that there are conflicting views as to whether to allow the adoption of such children in any circumstances of any nature whatsoever may be in violation of the Constitution. Section 2 of the Bill as drafted is designed to ensure that legitimate children will only become eligible for adoption in constitutionally permissible circumstances. The constitutional issue that arises derives from Articles 41 and 42 in which both the family and parents are stated to possess inalienable and imprescriptible rights. It has been argued by some that if parental rights are inalienable they cannot be totally extinguished by an adoption order in any circumstances. A contrary view, however, is that parents may by their behaviour surrender or abandon their rights to their children and where they do so the State has a duty under Article 42.5 "to supply the place of parents" by appropriate measures "where the parents for physical or moral reasons fail in their duty towards their children".
The latter view has been endorsed by Mr. Justice Walsh in the Supreme Court on the only occasion on which this specific issue has been averted to comprehensively by a member of the Irish judiciary. In the case of G.v. An Bord Uchtála—(1978) Irish Reports—he stated:
In my view there is nothing whatever in the Constitution to prevent a member of a family passing out of that family... I do not see any impediment in principle to a child's passing out of one family and becoming a member of another family in particular circumstances... parents are the natural guardians of the children of the family. Guardianship may be surrendered or abandoned provided that doing so does not infringe any constitutional rights of the child and is not inimical to the welfare of the child.
Further on, adverting to this issue, Judge Walsh said:
"Article 42.5 of the Constitution speaks of the case where parents fail in their duty towards their children for physical or moral reasons; it provides that the State as guardian of the common good by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. Under that section the State may very well by legislation provide for the failure of the parents, and in appropriate cases it may very well extend the law beyond simple provisions for a change of custody. A parent may for physical or moral reasons decide to abandon his position as a parent or he or she may be deemed to have abandoned that position, a failure in parental duty may itself be evidence of such an abandonment... Where there is a complete abandonment of the parental right and duty, the State may be justified in taking measures by statute or otherwise to protect the rights of the child; these measures may include the enactment of adoption legislation."
On the basis of the view expressed by Mr. Justice Walsh not only is adoption permitted in circumstances prescribed in this Bill but I would suggest that there is a duty on the State pursuant to Article 42.5 of the Constitution to extend the possibility of adoption to such children and it is arguable that the failure of this House to do so to date is in violation of the constitutional duty imposed on it by Article 42. In this context, the State's failure to do so to date can be seen to be in violation of the right that each legitimate child has to be part of a martial family and to grow up in a secure and certain environment in a family which it can call its own and with which it can identity by acquisition legally of that family's name.
The only extensive reference of any nature made by the Irish Judiciary to the constitutionality of legislation permitting the adoption of legitimate children is that already referred to by Mr. Justice Walsh. It should also be noted, however, that in the recent Supreme Court decision delivered in a case entitled K.C. & A.C. v. An Bord Uchtála (The Adoption Board) which is reported in 1985 Irish Law Reports Monthly and can also be found in 1985 Irish Reports under the name in re J.H. a Minor, the court accepted that the State can intervene to protect the welfare of children where there are “compelling reasons” for it to do so or where “it is satisfied” that it has been established that pursuant to Article 42.5 parents have failed in their constitutional duty towards their child. Consequently it appears clear that the proposals contained in this Bill which seek to provide for the adoption of legitimate children within the context of Articles 41 and 42 of the Constitution fall fully within the parameters laid down and described by those Articles.
It is, of course, essential that any legislation providing for adoption be constitutionally sacrosanct. It is essential that if this Bill is passed through this House and children are adopted pursuant to its provisions, no doubt can arise as to the constitutional validity of any adoption orders made pursuant to it. Whilst I am satisfied that this Bill fully accords with the constitutional provisions laid down in Articles 41 and 42, in the light of recent experiences of this House in seeking to predict the outcome of court constitutional pronouncements, it is in the interests of ensuring a secure and certain law that upon the passage of this Bill by both the Dáil and the Seanad it be referred by the president to the Supreme Court pursuant to Article 26 of the Constitution so that its constitutionality might be tested and determined. It is to be noted that the Review Committee on the Adoption Services recommended that such a course of action be adopted with regard to any Bill containing measures such as that contained in this Bill.
In the context of referring to the Review Committee on Adoption Services it is worth stating that a vast number of worthwhile recommendations are contained in the report published by that committee. This Bill seeks to implement only a small portion of those recommendations and there is no doubt that there is a need for a comprehensive overhaul of our adoption laws and adoption services taking into account the comprehensive recommendations for reform made by the review committee. It is hoped that upon this Bill passing both this House and the Seanad and becoming law this party will have an opportunity again, through a further Private Members' Bill, to bring before this House other necessary changes required in our adoption laws.
I also welcome the fact that in reply to a Dáil question the Minister for Health on 30 April 1987 indicated that in the coming months he intends to study carefully the changes in the present adoption laws proposed by the review committee with a view to introducing appropriate amending legislation. Any further or additional legislation that is required or any reviews that are required of the report of the review committee should not be an excuse or reason for postponing the introduction of legislation to extend the possibility of adoption of abandoned legitimate or illegitimate children as provided for in this Bill.
The Fine Gael Party, like other parties in this House, attach great importance to the principle that children should, wherever possible, grow up in their natural families and that families should, where necessary, receive help to enable their children to do so. Many parents have their children placed by health boards in residential or foster care because of emotional, financial, health or environmental difficulties of a temporary nature. The State must, of course, continue to provide such temporary care where required and do everything possible to assist families in short term difficulties to resolve their problem and to enable children temporarily living apart from their families to return home. There are, however, a considerable number of children in long term residential or foster care who have long since ceased to have any relationship of any nature with their natural parents and who have to all intents and purposes lost contact with them. Ireland is the only country in Western Europe that does not permit the adoption of such children. I believe that no logical or rational reason can be given for refusing the possibility of adoption to an eight or nine year old child who has spent all or most of his or her childhood in care and who finds himself or herself living in a residential institution with no prospect of again returning to his or her family. No logical or rational reason can be given for denying to a child in long term foster care the right to become a permanent part of a family caring for him or her and for denying to such child the security that adoption can extend. I have not at any stage in this House since becoming a Member of it heard of a Member on any side of this House argue that abandoned children should for all time be confined to residential or foster care or arguing the merits of retaining the anachronistic and Dickensian approach that currently forms part of our legislation. The central provisions of this Bill extend to abandoned legitimate and abandoned illegitimate children the possibility of a secure family life in the home of adoptive parents, something that the current law at present makes impossible. It is my hope that this Bill will have the full support of all Members of this House regardless of party.
