Dáil Éireann debate -
Wednesday, 6 May 1987

Vol. 372 No. 5

Private Members' Business. - Adoption Bill, 1987: Second Stage (Resumed).

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

Minister of State at the Department of Health (Mr. Leyden)

To continue my contribution on this very serious and most important social issue, I would like briefly to reiterate the Government's position in relation to this legislation. We are most anxious that the Government's intentions be made perfectly clear so that there can be no misunderstanding in this House.

The Government agree in principle with the general thrust of this Private Members' Bill. However, as I indicated in my contribution to the debate last night, I am of the view that, because of the complex constitutional issues surrounding the proposal, it would be more appropriate that legislation along the lines envisaged would be brought forward by the Government.

The Minister, Deputy Rory O'Hanlon, and I have already been considering Deputy Desmond's Adoption Bill, 1986, and the various comments and submissions made following its publication last November. I said last night that any legislation of such major significance to children and to families required the most careful consideration which, given sufficient time, can, I believe, best be provided by the full machinery of a Government Department and the office of the Attorney General.

The position indeed, as stated in the House last night, is that a Bill had been prepared by Deputy Desmond when he was Minister for Health. He had at the time the advice and guidance of experts in the Department and in the office of the Attorney General. This is yet another reason that the Government of the day should steer the legislation through both Houses of the Oireachtas. A valuable team of advisers with recent experience in the matter, is available to the Minister, and myself, in framing the Government's Bill.

The Minister, last night, mentioned that there were a number of options which we were considering. We will, of course, be availing of the expertise within the Department of Health and the Attorney General's office in taking decisions on the options to be included in the Government's Bill. My comments are not intended in any way as a reflection on Deputy Shatter or on Private Members' time. I have no doubt whatsoever that the contributions from all sides of the House to this debate will be of considerable value to us in framing appropriate legislation.

What I am saying, however, is that this legislation requires the most meticulous attention to detail and careful scrutiny by a number of legal, administrative and other experts before it can be assured of meeting the most strict criteria necessary if it is to be in accord with the relevant articles of the Constitution.

I would now like to turn to some of the comments made in the House last night about the proposed legislation. Deputy Harney referred to Deputy Shatter's Bill as cumbersome. She cited the provision which suggests that the onus of proof of neglect by natural parents lies with the prospective adopters. She also referred to the provision that a child should be resident with foster parents for at least a year and that it will be necessary for the High Court to be satisfied that failure on the part of the natural parents will continue until the child attains the age of 18 years.

I fully agree with the Deputy that the Bill, which attempts to achieve a long overdue social reform, has to embrace very complex conditions. Deputy Shatter's Bill is, or course, in almost all respects identical to the Adoption Bill, 1986, which was introduced by the previous Government. Sections 2 and 3, which contain the main provisions of the Bill, remain virtually unchanged. I can assure Deputy Harney that having examined Deputy Desmond's Bill in detail I am now acutely aware of the many complex technical considerations which led to the final draft of the Bill as introduced in the previous Dáil. These considerations sprang of course from the interpretation of the relevant articles of the Constitution in so far as they refer to the twin issues of the rights of the family and the natural rights of the child.

I have no doubt, had it been possible, that Deputy Desmond would have been more than happy to introduce a short Bill to allow for the adoption of legitimate children. I can now fully appreciate, however, that this was not possible in the light of the constitutional considerations. In so far as the descriptions of "complex" and "cumbersome" apply, these are but a reflection of the intricacies of the Constitution in these vital areas.

Whereas the Minister and I will be giving further thought to Deputy Desmond's Bill, we would envisage that the fundamental framework will remain intact for the very reasons I have outlined. We will indeed be considering whether the provisions need to be strengthened further to take account of the rights of the family as enshrined in our Constitution. We will be doing this in close consultation with our own advisers and the legal advisers in the Attorney General's office.

With regard to the options under consideration by the Minister and myself, one to which the Minister referred last night and which I would like to touch on briefly in this contribution, is the option that health boards should be the applicants in each case taken under the proposed new legislation. The suggestion that health boards would be most appropriate as applicants came from a number of individuals and organisations following the publication of Deputy Desmond's Adoption Bill, 1986.

Some of the reasons given for proposing this amendment were as follows: It is very important, in the interests of good practice in foster care, that there should be a positive relationship between natural parents and foster parents. Even where natural parents are no longer in contact with these children, foster parents should not assume a negative attitude to them. It could be argued, however, that the provisions in both Adoption Bills already published might create an unnecessary adversarial scenario by virtue of the fact that foster parents would be making the appropriate applications to the High Court. Deputy Harney, in her contribution last night, referred to this dilemma when she said that she was not in favour of the provision in Deputy Shatter's Bill which put the onus of proof on foster parents concerning the failure of natural parents. As I have said, somewhat similar views were expressed in comments made following the publication of Deputy Desmond's Bill last year.

A further point was also made which is that health boards are the primary agents involved in placing children in foster care. Such placements are, in fact, covered specifically by regulations made under the Health Act, 1953, which are known as the boarding out regulations. Furthermore, in any case where legitimate children are taken into care by health boards, because, for example, of neglect or ill-treatment, there will have been intensive case work carried out by health board personnel over a considerable period of time. In an exceptional case where it was considered that a child in such a situation might be the subject of an application for an adoption order, the case work would, of necessity, be very thorough.

If the foster parents were to be the applicants to the High Court it would seem to follow that they would require to have the maximum amount of information covering the natural parents. Much of the information would in all probability be in the possession of the health board already. I do not, however, consider that it would always necessarily be appropriate, or indeed desirable, no matter how meritorious the application, that all information in relation to the natural family should be made available to the foster parents. This is one of a number of sensitive areas which, as I have said, the Minister and I will be considering in the context of our Adoption Bill.

I would like to say also that I have taken note of the comments made in the House last night to the effect that health boards should not be in a position to veto applications by foster parents. I have, in general, every confidence in the health boards in the discharge of their duties relating to child care. Indeed, given the limited resources at their disposal in this area of the social services, they have in many instances, through their social worker staffs, made very impressive advances over recent years in the whole area of foster care and other forms of substitute care for deprived children. However, I have been considering whether in the interests of all the parties involved some additional appeal provisions might be appropriate. I can assure the House that it is a further matter on which we will be consulting with the Attorney General.

One final point I would make is that in the event that health boards are the applicants the question of costs will not arise for the foster parents as the prospective adopters. Deputy Shatter's Bill provides that the Adoption Board would be charged with meeting the full legal costs in cases which would arise under the proposed new legislation and in cases which arise under current adoption law and which are commonly referred to as section 3 cases, that is, section 3 of the 1974 Adoption Act.

These latter cases arise where adoptive parents apply to the High Court for an order dispensing with the final consent of a natural parent or guardian of a child adoptable at present.

I am not entirely happy with this proposed new practice which would place the Adoption Board in a completely new position. It would have implications for their unique and special status as an independent statutory authority with a central role in the whole adoption process. The Minister and I will be discussing this issue with the Attorney General.

Finally, I would like to assure the House that the Minister, Deputy O'Hanlon, and I intend in the coming months to devote time to considering in depth the recommendations of the Review Committee on Adoption Services which was referred to a number of times during the course of last night's debate. As indicated in a reply to a Parliamentary Question last week, it will be our intention to introduce comprehensive legislation as soon as possible which would take account of many of the committee's recommendations. We must, however, with the range of pressures on us from all fronts adhere to a priority list of legislative proposals in my Department. It is the Government's intention at this time to introduce the first new adoption Bill as quickly as possible. The Bill will encompass the main areas covered in Deputy Shatter's Bill. There will be no undue delay on our part in ensuring that this is achieved at an early date. When this legislation is brought forward we will be seeking the full support of the Oireachtas to have it passed as quickly as possible because we are very anxious to see it on the Statute Book. The Minister, as already announced, intends to introduce a major new Children (Care and Protection) Bill which will update and extend the provisions of the 1908 Children Act.

We will also be pursuing the necessary groundwork for a comprehensive adoption Bill as time permits. As I stated last night, the Department are extremely busy and it is difficult to concentrate on the necessary legislation. I assure Deputy Shatter and others interested in this legislation that it is our intention to put the Bill through as quickly as possible. In the circumstances, the Bill should not be pursued at present because there are so many constitutional issues involved. The right of the family is a fundamental part of the Constitution. The adoption of legitimate children is a highly sensitive area and, therefore, it should have the full rigour of the Attorney General's office to decide on its merits from a constitutional point of view. We do not want to see legislation of this kind held up in the Supreme Court and then perhaps found unconstitutional. It would be preferable to have the Bill prepared by my Department and scrutinised by the Attorney General. The wishes and views expressed on all sides of the House will be considered when the final draft is prepared and approved by the Government.

I appreciate the genuine concern expressed here by Members of the House in relation to this area. The future of many children will be affected by this legislation; we are their voice and the Minister, Deputy O'Hanlon, and I will give this matter a very careful and thorough examination with the approval of the Attorney General. The former Minister, Deputy Jim Mitchell, realises how important it is to have legislation scrutinised by all sections of the Government.

Mr. J. Mitchell

I am very glad that at long last a Bill dealing with these important and sensitive matters has come before the House. I am told — I cannot guarantee the veracity of the statement — that no Private Member's Bill has been passed in this House since 1930. Certainly, I cannot remember such a Bill being passed and it leads one to ask why we have provision for a Private Members' Bill if matters which are totally non-political, of a non-party political nature not affecting a huge political vested interest or lobby groups, cannot be dealt with by the House and not by the Government.

One of the main causes of the problems besetting the country is that the Government take on too much. They must do everything and that was the thrust of what the Minister for Health said in his extraordinarily brief contribution yesterday. He treated this House and the subject to five minutes of contempt. His Minister of State has spoken at greater length but in a repetitive manner. He repeated that we should leave this matter to the Government because it needed the rigorous attention of the Department of Health and the office of the Attorney General. However, later on in the speech he said that the Bill is the same, more or less, as that which came before the House last November from the Department of Health and the office of the Attorney General. Presumably, it had already been given rigorous consideration by the Department of Health, the parliamentary draftsman in the office of the Attorney General and then by the legal side in the Attorney General's office. That is the procedure which has to be gone through before Bills are introduced in the House.

Why is the Minister of State contradicting himself? Why will the Government not admit that this is an issue affecting a very small, politically insignificant, group? They are a voiceless group with nobody to represent their interests and they have been in Limbo in orphanages for years. There are hundreds of children who, if we delay much longer, will be too old to be adopted. Many children have been denied, by the lack of attention to this matter, the comfort and safety of a secure and loving home. There is no reason for further delay. As consideration has already been given to this matter by the Department of Health and the Attorney General's office, it is clear there is agreement in principle on the Bill from all sides of the House. Second Stage is about agreement in principle with the main objectives of a Bill. Why not pass Second Stage and proceed to Committee Stage where the detailed attention to which the Minister and the Minister of State referred can and will be given so that all the very important and sensitive issues will receive microscopic attention. That is how we should proceed. If we have to wait for another Bill, clearly we will not have it before the House this side of the summer recess. When the House resumes after the summer recess, there will only be a seven week session to the Christmas recess. Are we going to have the Bill before Christmas? In the New Year, we will have the budget debate. That is how matters of great importance to a small number of people can be delayed for years and years.

It is shameful that we have allowed this matter to be delayed so long. As Deputy Shatter has pointed out, we are the only country in the EC who do not make provision for the matters now proposed in this Bill. I plead with the Minister to forget the out-of-date practices of this House in matters of this kind. There is no need for legislation on matters of social concern and on which there is general agreement to be sponsored by the Government. In fact, a great case can be made to encourage more and more Private Members' Bills on important but non-contentious issues of this kind not only from the Opposition benches but also from the Government backbenches. There is a great need to involve more Members of this House in its legislative and parliamentary practices. The days should be gone when a Minister feels he has to sponsor every Bill affecting areas covered by his Department, to defend every dot and comma of such Bills and to allow for no improvement on Committee and Report Stages.

It would be wrong of me not to accept that the subject matters of the Bill before us are ones of great sensitivity affecting very basic rights and issues. I agree that we should go to great lengths to avoid making errors but if we should err we should err on the side of the defenceless child. We adults can speak for ourselves but there is no one to speak for the child or to represent his interests. During the past 20 years I have had a great deal to do with two orphanages and I have admired the wonderful work which has been done in those institutions by the religious orders and staffs concerned. It is right that we should compliment the health boards also for their work in this area.

It has grieved me all those years to see those orphanages peopled by innocent children. It has grieved me to see prospective adoptive parents, their names on long waiting lists, waiting to adopt children and being denied the opportunity because of the lack of children to adopt. It has grieved me to see young children growing into older children and older children growing into adulthood having spent all their lives unnecessarily in institutions. That is because the Oireachtas has failed to legislate for the matters this Bill seeks to legislate for. This is urgent legislation. If we do not enact it speedily more young children will grow into older children and more older children will grow into adults and still be in institutions while we languish in old, irrelevant and uncaring ways.

I appeal to the Minister to break away from the old ways and be the first to grasp new ways, to say that this Bill is urgently needed, that he fully agrees with its principles and that we can trash out any differences in detail on Committee Stage. If he takes this attitude there are a couple of thousand young children in orphanages at present who will be eternally grateful to him and there will be many more thousands of young children in the future who will not even know that they have cause to be thankful to him as they will not have to languish in orphanages but will have access to the comfort, security and happiness of loving and caring homes.

Mr. T. Kitt

At the outset I would like to pay tribute to Deputy Shatter for drafting this Adoption Bill and for the contribution he has made on this most important issue. Also, it is only fair that I pay tribute to the former Minister for Health, Deputy Desmond, for introducing an Adoption Bill in November 1986. Unfortunately, that Bill lapsed when the Dáil was dissolved. The Minister's approach is reasonable and correct. While I appreciate what Deputy Mitchell had to say, it is an interesting statistic that the last time a Private Members' Bill was successful was in 1930. In my short experience of the workings of this Dáil and having watched the constitutional problems which have already faced this Dáil, I feel that this approach is correct.

The principal concern of this House is, no doubt, the bar on legitimate children being adopted. So far as I am aware, we are the only country in Western Europe where this position prevails. I have been impressed by some of the positive developments in the adoption services in recent years, in particular, the transfer of responsibilities in this area from the Minister for Justice to the Minister for Health in 1983. That was a positive and correct development. The review of the adoption services initiated by the then Minister for Health, Deputy Desmond, was a very positive move and the review committee recommended the adoption of legitimate children. I would like to see these positive developments being extended. While we must always be concerned with and aware of the needs of childless couples and of the rights of unmarried mothers in legislation which comes before this House we must place particular emphasis on the needs of the child. The adoption services and others have also made this point. It is a good one. We must introduce child-centred legislation.

Deputy Shatter's Bill is almost identical to the Bill introduced by the previous Government but the Minister for Health, has already suggested one change which might be made in relation to the procedure for applying for an adoption order so it is obvious that there are differences in this Government's approach.

The two Bills already published provide that the foster parents with whom a child has been living for a continuous period or for at least one year could apply for the necessary order for his adoption. The Minister said he believed it would be more appropriate if the health boards were the applicants in every case. I would be inclined to agree with his viewpoint. It is appropriate that the Government introduce the Bill without delay. I wish to put on the record of this House my own sincere anxiety that there be no delay in bringing forward a new Bill. I accept the assurance given by Minister's yesterday that there will be no undue delay in bringing appropriate legislation before this House.

It is an important constitutional matter and the Bill must be carefully drafted. I am aware that many submissions have been forwarded to the Department of Health on the former Minister's Bill. The Minister will obviously take account of these. The Government agree in principle with the main provisions of Deputy Shatter's Bill. Members of this House will accept that a considerable number of children are being deprived of the opportunity to be adopted because they are legitimate, as Deputy Mitchell has quite rightly pointed out. Whether they are children in long term foster care, in residential care, or foundlings — in other words, children who were simply found on the street — these children will not thank us if we do not legislate quickly to accommodate their human needs.

I welcome the Minister's statement that the Government Bill will be tested constitutionally in the Supreme Court pursuant to Article 26 of the Constitution, as suggested yesterday by Deputy Shatter. Since becoming a Member of this Dáil, I have noted the continuous reference in the House to the Constitution. It could be said that it has become essential bedtime reading for Members; I have seen many copies of the Constitution around the House being referred to continously and quite rightly so. One shudders at the consequences of an adoption that is not legally watertight. It would obviously be shattering for adopted children and their new parents if it were found that the adoption process was unconstitutional. In any case, the review committee on the adoption services recommended this course.

Over 34,000 children have been adopted since the first Adoption Act in 1952. I urge the continuous development of family support services which would prevent or diminish the need for parents to part with their children. I should like to acknowledge the work of Dublin County Council housing department, of which I am a member, and that of the Eastern Health Board. I acknowledge the support they give unmarried mothers in housing estates. Recently they established a back-up service in the new council housing estates. In Ballyboden, where there are 900 county council houses and in a new housing estate, the Eastern Health Board have allocated one house in which they can advise young parents on child care and provide much needed play school facilities. They are there as a very important back-up service at all times. This is important for young married couples and single parent families.

There is an ongoing reduction in the numbers of adoption applications as indicated in the Adoption Board report. This reflects the continuous decline in the number of children being given up for adoption. Nevertheless, there are legitimate children who have been abandoned or ill-treated, children whose parents are unfit to care for them. The Government have stated that they agree in principle with the proposal to provide for the adoption of legitimate children in exceptional circumstances. It should be carefully drafted with, I stress, the back-up of State services to accord with the Constitution. This is a reasonable approach and in thanking Deputy Shatter for his contribution to this debate I ask him to accept that the Minister will bring a new Bill before the House without delay and also to accept that this is the correct approach to this most important area of legislation.

Mr. Kemmy

It has been said with much truth that silent suffering evokes little sympathy in our time in our society. This statement is especially apposite when applied to the issue of adoption. Because of our difficulty as a people in dealing with adoption in the past, a great deal of suffering has been caused to the people involved, the children, the natural parents, the adoptive parents but, above all, to the children. In short, because of our inabilty as a people and a society to confront this question, we have been responsible for much unnecessary suffering, hardship and injustice. It is for these and many more reasons that I support the Private Members' Bill brought before the House by Deputy Shatter. Indeed, I would go further and say that not only is this Bill long overdue but it is an attempt to come to terms with an issue which has been a problem in our society for a very long time.

This Bill has been influenced and informed by a good deal of compassion and intelligence. It could be said that it is an indictment of and a reflection on successive Governments who have failed to come to terms with the need to introduce a civilised adoption code. In my philosophy a child is a child for all that, to paraphrase Robert Burns. This viewpoint should influence and inform the thinking and policies of all parties and politicians in dealing with the issue of adoption. Such an attitude permeates this Bill. Our record in this field is not a good one; indeed, we have much to be ashamed of in our refusal to deal with this issue in a constructive and comprehensive way. We have adopted a piecemeal, cautious and cowardly attitude to it. Despite the noble, high sounding and even grandiose claims made in our Constitution about cherishing all the children of the nation equally, we have failed dismally children who have not been able to speak and act for themselves.

Before I speak of the contents of the Bill, I should like to look briefly over the past 35 years and our efforts as a people to put into place adoption laws. Adoption legislation was first enacted here in 1952 and it provided for the adoption generally of children born out of wedlock and of orphaned children. The only legitimate children who can be adopted currently are orphans. Consequently, if a married couple abandon their children and if they are taken into care due to the parents' total incapacity to look after them, even when such a couple cease to have any contact with the children and fail to support them or even inquire after them, they cannot be adopted under our present legislation. It is sad to note that Ireland was the last country in these islands to provide for legal adoption. The provision of adoption laws was originally opposed on the basis that to permit the adoption of children born out of wedlock would lead to promiscuity and that to permit the adoption of legitimate children would encourage married couples to have children for the purpose of selling them. It was also suggested that the adoption of such children was contrary to Articles 41 and 42 of the Constitution.

There is much more that I could say but I promised to be brief to allow Deputy McDowell to follow me. I am not too impressed with what has been said by Ministers and others who have spoken on behalf of the Government. Deputy Shatter's address covered many of the points made by these speakers. There is an element in the attitude of the Ministers and other speakers of playing for time and kicking for touch. It has been said in the course of the debate that the Government Bill would improve on Deputy Shatter's Bill and Deputy Leyden, the Minister of State, today said that same thing. It is said to be a very sensitive area which needs time for the bringing in of a proper Bill. We have had all this before in the past 35 years and I for one am not taken in by that. There has been ample time for the Fianna Fáil Party in Government and the Coalition to bring legislation before this House.

The Government have been influenced in their attitude by that of the previous Government and of Deputy Desmond. I am not impressed at all by the delaying tactics of the Government. This Bill is before this House and should be given a good passage through it. It should not be thwarted by pernickety and dishonest arguments. It should not be distorted by anything that is happening outside. It is not generally known that a foundling infant left in a basket in a doorway cannot be adopted if it cannot be established that such a baby was born out of wedlock. That is nonsense and it reflects on us as a people that we should allow such nonsense to influence our attitudes to adoption.

I was not impressed by the Minister's reply to the debate. If we are foolish enough to allow this Bill to be put on the sideline it will be a long time before a similar Bill is introduced because I do not think it would get the urgent attention it deserves by the Government. The Minister of State said that this is a sensitive area. Of course it is a sensitive area but this is no reason for running away from it. Many sensitive areas in our society have been run away from in the past by various Governments. It is all the more reason to deal with it because it is sensitive. I urge the Minister of State, the Minister and the Government to pass this important Bill. It deals with a problem that will not go away. In many parts of our society there are people who cannot speak for themselves, who have no clout and who do not represent vested interests. Sadly for all of us vested interests have ruled our society for a very long time.

As a lone Deputy in this House I support this Private Members' Bill. It is a very compassionate and civilised response to a problem which has existed in our society for a very long time.

Mr. D. Ahern

I congratulate Deputy Shatter on his initiative in bringing forward this Bill. It is a genuine attempt by him to close up the gaps which have appeared in the area of adoption during the last number of years. It is a well structured Bill dealing with the extension of categories of children who may be adopted, the making of the necessary changes to take into account the recent decision in T.O'G. v. the Attorney General and Others and the recent Age of Majority Act.

This country was slow, in comparison with other western countries, in bringing in adoption laws. The Adoption Act, 1952, was the first piece of legislation in this regard. It has been amended on a number of occasions to take into account the problems which have arisen from time to time. All in all the adoption laws, taken together, have served this country very well.

Thirty-four thousand children have been adopted since 1952. I should say at this juncture that great credit must go to the various agencies involved in the adoption system whether they be health board, religious or voluntary agencies.

Articles 41 and 42 of the Irish Constitution deal with the family and education, respectively. Articles 41.1.1º states:

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

Article 42.1 states:

The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

These Articles form the whole basis of the family and parents in society. Article 42.5 states:

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

The emphasis during the last number of years has changed from the position that adoption was a means to provide a childless couple with children around to the view that it was a means to provide a child who has no parents or whose parents have neglected it with a proper family to grow up in.

We hear much about the phrase that the "interests of the child are paramount." This phrase has become the norm in legislation dealing with children during the last number of years. It is important that this trend continues, bearing in mind that the natural parents also have rights. The report of the Review Committee on Adoption Services which was published in 1984 recommended that all children should be eligible for adoption irrespective of their parents' marital status. They also made a number of other suggestions which are not in this Bill. The Minister in his speech stated that there were a number of other areas which he would like to examine before he would bring forward a Government-sponsored Bill. I ask him to look very carefully at the recommendations of this report because it is quite detailed and goes into the various aspects of adoption.

The Bill as presented clearly shows that it has the best interests of the child in mind. It proposes to allow a child who has been permanently abandoned or a child who has been neglected by its parents to be legally adopted. At present these children have no chance of living a normal life: they are destined to be institutionalised for the rest of their minority. Surely this latter situation is not in the best interests of the child. All efforts should be made to change it. Efforts have been made during the last number of years to change this but these have failed for one reason or another.

It has been suggested that this type of legislation might be contrary to the Constitution. I do not agree with this. Article 42.5 of the Constitution deals with this. It does not make any distinction between legitimate and illegitimate children. In the case of G. v. An Bord Uch-tála, Justice Walsh confirms that legislation allowing for the adoption of a child would not be contrary to the Constitution provided the natural parents, for physical or moral reasons, decide to abandon their position as parents. Why then should there be a distinction whether children are legitimate or illegitimate?

Justice Walsh also referred to the fact that guardianship laws allow a member of a family to pass out of that family. I note that Deputy Shatter has suggested that if this Bill is to be passed into law it should be examined by the Supreme Court as to its constitutionality. I agree with this because it is important that whatever law is passed, whether it be Government or Private Members, that it be copperfastened into our legal code so that there would be no bad cases coming before our courts. Such cases are not in the best interests of the child and also not in the best interests of the parents.

This Bill as presented to the House is not detailed enough to prevent a situation which could arise whereby the parents knowing full well that this legislation is in being could indulge in collusion with proposed adoptive parents so as to feign neglect and abandonment. The Bill further erodes the concept of free consent of parents, a process which was first started in 1974. There is a very thin line between the best interests of the child and the rights of the parents. We would not want to go too far over to one side of the line. While the child's interests must be the paramount consideration, we must also bear in mind the anguish that has been experienced by natural parents over the years in the placing of their children for adoption. I can foresee, if the Bill is accepted, hearings before the High Court with the natural parents being brought before it in frightening circumstances to give evidence. I have come across cases, mainly in the area of guardianship, where mothers have fought hard to keep their children rather than have them institutionalised by a health board or fostered out. Will that type of scene be the norm after the passing of this legislation?

I do not think there is enough regard in the Bill for the rights of natural parents. An official who feels that a child is being neglected could push through an adoption order. That may turn out to be a travesty of justice and because of that we should proceed with great caution. The Bill seeks to take care of the problem that has arisen out of a recent decision of the High Court in the case of T. O'G v. The Attorney General and others. In that case a couple obtained custody of a child expecting to get an adoption order once the mother's consent was granted but before the adoption order was made the wife died and the plaintiff — the husband, as a childless widower — was no longer a person who could get an adoption order despite the fact that all evidence showed that he would have been a very good parent. It was held in the High Court that ineligibility of a childless widower to adopt a child already in his custody was unreasonable and unjust and that the proviso in section 5 (1) of the Adoption Act, 1974, was repugnant to Article 40.1ºd of the Constitution.

Section 7 of the Bill before us provides for the required changes to take into account the court's opinion. I do not think anybody can argue with that change. The rationale behind section 9 is to be applauded. The effect may have far-reaching consequences particularly in view of the tight budgetary position we are in. We have often heard of ambulance chasers in America, and I wonder if we will have adoption chasers if this section is adopted. It may be that the best way to deal with this would be to leave it to the court to decide the issue. The section would have the effect of giving free legal aid to prospective adoptive parents in particular situations and I have no doubt that the Government will want to examine that closely.

Primarily, because of the implications of the Bill in regard to the extension of the categories of children who may be legally adopted, we should have a more indepth look at the whole area. I suggest to Deputy Shatter that he withdraw his Bill and allow the Government to bring in a more comprehensive Bill taking into account some more of the recommendations in the report on the adoption services.

Miss Flaherty

I have great pleasure in calling on the House to support the Bill. I should like to compliment Deputy Shatter for bringing it before us and for his work in this field. He has been committed to this area for a long period. The Minister of State suggested that Deputy Shatter, and his party, might wish to reconsider the Bill but I suggest to him, and the Minister for Health, that they should reconsider their position in view of the fact that there is a unique consensus in regard to it. It appears that a majority of Members are in favour of the Bill. A sizeable body of opinion has been clamouring for this reform since a consensus developed in 1980. Groups such as the Federation of Services for Unmarried Parents and their Children, St. Anne's Adoption Society, the Association of Workers with Children in Care, the Irish Fostercare Association and the Adoptive Parents Association since 1980 have consistently sought to have this reform implemented. Those groups have indicated that it is unacceptable that children should be deprived of the right of being part of a stable family or should be neglected after they have been abandoned by their natural parents. That principle has been accepted in the House.

A lot of work remains to be done in the area of adoption. Deputy Shatter is seeking to focus on a small area in a comprehensive and intelligent piece of legislation. His attempt to deal with it in a compassionate fashion deserves the support of the House. We should not play games with this issue and I appeal to the Minister not to abide by the sad and often irrelevant traditions of the House that lead us into disrepute with the public. In many cases this is an initiative he should accept and we should move to Committee Stage where further improvements can be made. The position is very bad and must be dealt with.

The Minister of State told us that there are, unfortunately, and will continue to be unhappy, abused and neglected children from inadequate and broken families with multiple problems and I took it that in that statement he was referring to the need for short term care. The Minister should follow the care he has expressed through to its conclusion and allow us to act now. I am perturbed by the impression he has given about the way he proposes to deal with this matter. I understand that in the first week of the new Dáil Deputy Shatter asked if it was the Minister's intention to reintroduce the Bill produced by the Department of Health under Deputy Desmond and that the answer given on that occasion was in the negative. Why did the Minister decide not to proceed with that Bill which was a product of the Department of Health? Had he adopted that measure there would not be any need for us to table the Bill before the House. I wonder what great knowledge has emerged in the past three months that will be incorporated in the next Bill. It is my belief that the Minister does not appreciate the urgency of this matter. Tonight the Minister of State asked us to appreciate that the Government had to deal with terribly pressing problems and were up to their necks in dealing with cutbacks and so on. He gave the impression that he did not want us to expect him to give too much time to this issue.

The reply given by the Minister to a question by Deputy Shatter on 30 April indicated that he had no sense of urgency about this matter. After the Bill was published the Minister said he intended in the coming months to study carefully the changes in the present adoption laws proposed by the review committee with a view to introducing appropriate amending legislation. With all due respect the report of the review body was available since 1984 and I am sure that in Opposition the Minister's party gave consideration to social legislation and to this area. If the Minister is commencing his study now, and if it took the Department two years to study the matter, the indications are that we will not see any Government legislation in the near future. The Minister has also indicated that his Department will be tied up with other matters for a long time. The whole area of children's law has not been legislated on in any substantial fashion since 1908. Since 1982 the Department have been struggling with the Children Bill. It was originally intended to be a single comprehensive Bill to deal with all areas under the care of the Department of Health but it has emerged in two tiny snippets, namely, the Children (Care and Protection) Bill, 1986, and the Adoption Bill, 1986. This indicates that the task of carrying out reform in children's legislation, without taking from the excellence and commitment of the staff, is too much for a Department who are hard-pressed in supervising, managing and overlooking an enormous health service. Indeed they need help and if help is forthcoming from those on the backbenches, the middle benchers and the front benchers of this House it should be accepted. There should be more avenues for using those talents constructively.

When I was a junior Minister in the Department of Health for a brief six months in 1981-82 I was in the unique position of being given direct responsibility for the children's area. I was able to meet twice weekly, or even more often, with the officials in the children's section. At that stage in this House I indicated there would be a Children Bill before this House in the following session which would include all the areas of concern. I believe that could have been done but I do not believe it can be achieved in a Department without some concentration on the area involved. Indeed, in any further reorganisation of responsibilities this matter should be given priority because it is quite clear that without concentration, without somebody specialising in it, nothing will happen other than in a piecemeal and unsatisfactory fashion.

One of the big problems in legislating adequately in this area to protect the children of this nation and to give them the legal supports which they need is our Constitution. I am keen to see this issue resolved openly. If this Bill goes to the Supreme Court and it is found that we need a referendum I would be pleased to have a referendum which would, for once and for all, establish the rights of children in our society. This would ensure we would not have, as happened when dealing with the Children (Care and Protection) Bill, 1986, a watered-down Bill. In the end it achieved very little of what we set out to do which was to ensure that children's rights and welfare were legislated for adequately. By this I mean welfare in the broadest sense and a proper environment in which they can develop and grow as full human beings intellectually, emotionally and socially. The odds are against unfortunate children in our society as a result of the inadequacies of our laws. This is one glaring example and we have shown no ability to deal with it. It is not the Minister's responsibility — that responsibility goes back to the previous Government as well — but the indications from the Minister of State in his speech tonight are that we have more important matters to deal with at present and we should not expect this matter to be given much time. That is the attitude and the reality because of the demands on the Department. Therefore, I suggest we make this small step. I would argue that the Minister of State could do this and continue to work towards the further improvements which are required. During the election campaign we were lobbied — as I am sure the Minister was also lobbied — by the Adoptive Parents' Association to ensure that the Adoption Bill, 1986, would return to the Order Paper. Those most concerned were anxious when the Dáil resumed after whatever changes might take place that the Bill would remain on the Order Paper. That Bill is necessary but it is quite narrow.

In 1980-81 following a review, Father John O'Mahony who was secretary to St. Anne's Adoption Society at the time, made a submission which went to the review body and was taken into account. In it he said:

There is no doubt but there are a considerable number of children in the care of the State, either in institutions or in foster homes, who could benefit considerably from adoption if it was legally possible to have them adopted. Such a proposal tends to be resisted as it appears to be taking children away from their parents, but the question has to be asked, have these children anything more, in some cases, than parents in name.

As the Minister of State, Deputy Leyden, may know, in many cases the parents may not be in this country, or may not have seen their children for many years. Yet, we continue to argue for their rights over the needs of the abandoned child. We are failing to act. The Minister appears to be indicating he will continue to refuse this opportunity to act in this most major area of reform for children in need. I will quote further from Fr. O'Mahony's contribution where he talks about children who have what is termed; "no meaningful contact with their parents and are unlikely to have such for their whole childhood and adolescent life". He states:

It must surely be wrong that parents have such absolute control over their children that they can prevent anybody providing the children with a family life. It must also be said that if the concept of illegitimacy is abolished—

this is another issue we are waiting to deal with and it must also be dealt with in the adoption area. If children are to be treated equally in this one area, it is the children who are currently defined as legitimate who are being discriminated against.

—and fathers are given equal rights, the numbers of such children in the care of the State will grow considerably unless there is a legal means of dealing with such consenting parents.

Fr. O'Mahony further indicates that when he carried out a survey on behalf of the Federation, he got case histories from social workers of children who had spend their whole life in care and who had never seen their parents, but under no circumstances, would these same natural parents allow the foster parents rearing these children to legally adopt them.

Those points cover a couple of areas but it indicates the great level of need there is and this Bill deals with that narrow area. If the Minister is concerned about the area of adoption, this Bill could be allowed to go through and still have years of work to do in the adoption area. Based on the findings of the review committee there remains a great many decisions to be taken in the adoption area. I suggest the Minister should let this Bill go through and get on with the very valuable work that needs to be done. Do not have it that the next stages of that reform will take place from the backbenches of the House. The Minister should let it go through and encourage and support it and work with it. What is really important is that the laws should be reformed in the way that is required.

The issues that still have to be considered in the area of adoption and the areas on which the Department can concentrate knowing that this Bill on which there is a clear agreement in principle is going through the House, are who may adopt, and one element of that, the problem of widowers, is dealt with in this Bill.

However, there are other persons who may have unique relationships with children, and who, if the principle of the welfare of the child is to be the guiding principle of all children's legislation might, though not falling within the category of relative, be the correct person to be the adoptive parent. That is a whole area to be considered. It is something that the Department could usefully spend time considering rather than trying simply to outmanoeuvre the Opposition and delay the legislation for months longer, which is clearly the implication of turning down this Bill tonight or next week.

There is also a problem with the machinery of adoption and that whole area is a minefield which needs to be examined. There are many submissions with the Department, many of which were heard by the review body, about the slow, cumbersome, repetitive nature of adoption procedures. There is anachronism that one society has entirely different rules from the other and if you have contacts you may do better than if you have not. It is an area of conflict and confusion. There is a major need to look at that area to try to bring into it some coherence and fairness in relation to parents.

There is also the very important matter of the need for information about natural parents both by the adopted person and by the adoptive parents. Developments are taking place in this regard which could do with legislative support. Information about the natural parents has become crucial in relation to medical history. Decisions on whether a child should be given various injections, which may have a bearing on whether they live or die at a future stage, must be made without adequate information about the natural parents. At a minimum there should be an obligation on adoption societies to have medical records. That sort of thing is being done more and more but it depends on the way the adoption societies approach the matter. This is entirely unsatisfactory and must be looked at.

There is the very difficult issue of how much information young people who have been adopted should be entitled to and how to balance the right to privacy of the natural parents in that situation. Where adoptions are successful this is less important to the adopted child but where they are not successful it can mean a great deal to the happiness and security of the adopted person if he or she can explore the possibility of developing a relationship with the natural parents. There is also the whole question of birth certificates and whether there should be access to the full information. All of this work remains to be done in the adoption area. In view of the fact that so many major reforms will have to be dealt with, I find it difficult to understand why this Bill might not be allowed go forward to Committee Stage. The issue of constitutionality must be faced. I believe the people would respect the rights of children to proper care and a proper home environment and would vote for that in a referendum, if required. More and more our Constitution is tripping us up and we must have it corrected by referendum almost each year.

I welcome the fact that the welfare of the child is the primary consideration in this Bill. I firmly support this principle and strongly believe that the whole emphasis in our Constitution and our legislation is seriously defective in achieving a balance between parents' and children's rights. It goes overboard in favour of the parents and children are sacrificed in many ways throughout our society as a result. I do not see it as a matter related to religion or to constitutional law. It relates to the needs and rights of children. It is a matter we will have to address otherwise, legislation dealing with children will barely touch the essential problems children face.

The Bill deals with major areas, all of which I would be happy to support. Certain people have expressed reservations about details but we could deal with these on Committee Stage. Section 5 deals with the important matter of the adoption of older children. Children in this category are becoming more and more available for foster care and a special scheme is being run for them. Clearly it is desirable in the long term that they should have the option of a stable home with adoptive parents. The provision allowing a widower to adopt is clearly an improvement of the scheme. The improvements regarding costs are also welcome. The setting out of the arguments in relation to the constitutional issue is welcome. I support entirely the interpretation referred to by Deputy Ahern and Deputy Shatter. They referred to Mr. Justice Walsh's judgment, which could be interpreted as indicating that there is a duty on the State pursuant to Article 42.5 to provide for parental care for children where the natural parents have failed to provide that care. Although we are not dealing with it here, we would all agree that the ideal situation is that children are cared for in a natural family environment. We are talking about exceptional cases which have been clearly specified — cases of need and abandonment. Nobody should oppose moves to deal with these problems. I believe the issue should be dealt with along the lines set out in the Bill before us. The other issues I would commend to the Minister's attention are decisions about persons who may adopt, the adoption processes and the question of information. The Minister might discuss with his colleagues in the Department of Justice the question of family courts.

Finally I want to make a particular plea for reforms which will recognise the need of adoptive parents to have a certain amount of leave from work at the point where they take on the care of an adopted child. Parents who have none of the psychological preparation which natural parents have during the nine months pregnancy are suddenly landed with an infant. They have had very little training and have not been given classes in a maternity hospital in how to change nappies and so on. They have to cope with it all from scratch. The six weeks' post-natal leave which is available for natural parents should be available for adoptive parents. This is something which could usefully be taken up by another Department.

I ask the Minister to look at the pressure his Department are under in trying to deal with legislation of this scope. If the Minister were to go outside to seek expert help he might go to somebody like Deputy Shatter. In that context he could usefully trust this House to allow this Bill to go through Second Stage and not to oppose it. I am satisfied that it has the support of the majority in this House from indications of support since its publication and during the debate. In that context he would be wise and democratic to proceed to Committee Stage, to initiate such amendments as he sees appropriate and to allow the Members of this House to participate fully in seeing this Bill passed in this House and allowing children who up to now have had no opportunity to have a permanent family home to have that opportunity.

Mr. McDowell

I thank Deputy Lawlor for making time available to me to speak on this Bill. At the outset I join with other Deputies in complimenting Deputy Shatter for bringing this Bill before the House but I do not want to do so in an empty way as was done by each of the Government speakers. I believe this is an extremely well thought out Bill which has already gone through the process of honing and refinement which many Bills introduced in Private Members' Time have not gone through. It has already been produced in major part by a Government Department in the term of the previous Dáil. It has had useful additions made to it by a person of Deputy Shatter's intelligence and experience in this area which are worthwhile changes to the previous Government's Bill. No feature of this Bill gives rise to major anxiety.

I turn then to the attitude betokened by the Minister's response yesterday. As a Deputy of only a few weeks' standing in this House I wondered what his reaction would be when he came in to speak after Deputy Shatter had opened the debate. It seemed to me that there was no logical basis on which any person who was in broad agreement with the principles of this Bill — as I think nearly everybody in this House is — could say it should not be proceeded with now. To my disappointment, having gone through the few statutory compliments to Deputy Shatter, the Minister disgraced himself by suggesting that there were some problems with the Bill, none of which he could articulate or define at all. That was what worried me. He was willing to stand up in this House and make vague reference to difficulties, none of which he was willing to outline either because the advisers who prepared his script for him were not willing to articulate them or because he was not sure he accepted those reservations himself.

Faced with a proponent of a Bill who had the experience and intelligence to meet any reservations, if the Minister genuinely entertained them, all he could do was put up a smoke screen of ifs and buts which meant nothing when I heard them delivered and some of which left me boggle-eyed. Although I have not the same experience of family law as Deputy Shatter has, I have spent a few years as a practising lawyer. Some of the remarks the Minister made yesterday demonstrated a degree of legal confusion which I found bewildering. I could not follow them, and I should have been able to follow them.

The Minister came up with a very remarkable suggestion which should not be a reason for rejecting this Bill on Second Stage which was that the Department had been throwing around the idea amongst themselves apparently and had convinced the Minister, not that it was a good idea but that it might be a good idea, and therefore nothing should be done until he was convinced to the contrary. The suggestion was that an application to adopt a legitimate child should be made by a health board rather than by the couple concerned. That is a remarkable suggestion because, stripped of all the nonsense that the Minister spoke, with all due respect to him, it means that it is not for a would-be pair of adopters to persuade the High Court that they are suitable people and that it is in the child's interests to be adopted. First of all they must go through a court of first instance, that is, an anonymous health board official or committee.

I am quite certain, having listened to the Minister yesterday, that he suggested that all applications should come from a health board. That means that if the health board do not agree, no application at all occurs. Therefore, if the would-be adopters cannot persuade a nameless official, a statutory body with no character or responsibility at all in the issue, of the rights of their case they fail ad limina. They can go no further with their proposal to adopt a child and to offer that child a home. That is a silly point for the Minister to bring up. It is based on what I can only say is totally misguided advice. I do not mean any insult or injury to the people involved, but only a bureaucrat of many years' standing could come up with that suggestion as an objection to Deputy Shatter's Bill.

Mr. Leyden

It has been a tradition in the House that public officials are not criticised. I would like to remind the new Deputy that that tradition should be observed.

Mr. McDowell

I merely said that only a bureaucrat of a certain character could come up with the suggestion in question. I do not know what official put this idea into the Minister's mind. It may have been an adviser——

An Ceann Comhairle

The Minister is responsible and no blame should be attached to officials or anyone outside the House.

Mr. Shatter

You should give the Minister the kudos for his own administration.

Mr. McDowell

Then I am forced by the Minister's logic and your ruling, a Cheann Comhairle, to lay the responsibility for this rather stupid suggestion to the House directly on the Minister's doorstep and if he accepts responsibility for it so be it. I do not believe it was written into the Fianna Fáil programme that only health boards should be allowed to make these kinds of applications. I am surprised that the Minister has in his own ingenuity thought up this peculiar objection to Deputy Shatter's Bill. Irrespective of whether the convention of the House is forcing me to make an error in this matter, if that is a legitimate change to make in this Bill there is what is called Committee Stage. When we are not discussing high points of constitutional law we are supposed to consider reasoned amendments and even foolish amendments such as the Minister is apparently minded to bring if the matter goes to Committee Stage, and that is the time to deal with that kind of point.

Yesterday evening Deputy Desmond addressing the House on this Bill made a very good point that, with the best will in the world, if the Minister has not yet had a Bill prepared no Bill will be ready in 1987 and it will be well into 1988 before any Bill can be produced even if the Minister has the wording of a Bill now in contemplation. It seems that the words Deputy Mitchell spoke here about the urgency of this matter and the suffering it is designed to obviate and end are falling on very deaf ears.

The law on adoption has been characterised by extreme conservatism. A good deal of it has been religious conservatism arising from religious worry as to the implications of adoption laws. The wording of the Constitution which places so much emphasis on the family should at least be turned on those who use it as a conservative weapon on this occasion. If the family is so important, if it is the basic unit group of society, a moral institution with inalienable and imprescriptible rights, then why, oh why, are we denying membership of such a valuable and important institution to children who through no fault of their own are cast into orphanages? Why, if it is all that important, do we suddenly say that some people will be excluded from it through no fault of their own?

A great deal of humbug is spoken on this and much humbug has been spoken on it tonight. All the epithets and plaudits given to Deputy Shatter are shallow and hollow because there is no real determination to put through a Bill on this matter. There is a determined effort to stamp on this Dáil the disgraceful attitude that Opposition TDs have no business in bringing valuable legislation before this House and to force us into the position other Deputies often occupied in the past, that is, the position of being mindless and foolish opponents rather than constructive legislators. That is a disgraceful situation. The people do not want it. They do not want the Government to have a monopoly on the introduction and passage of legislation. The Government in attempting to break down Deputy Shatter's Bill are deliberately contriving to prevent Opposition Deputies from having any constructive role in this House.

Debate adjourned.