Dáil Éireann debate -
Tuesday, 12 May 1987

Vol. 372 No. 7

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

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

Mr. McDowell

On the last occasion I was indicating to the House the depth of the support which the Progressive Democrats give to the Bill introduced by Deputy Shatter as a Private Members' Bill. This Bill is a much needed and timely reform of the law relating to adoption. The present situation which prevents abandoned children of married couples, or abandoned children whose parents may be married but cannot be traced, from becoming members of a family secure in the love, care and confidence that can only come from full membership of a family, is in our view a grave defect in our law. It is, moreover, a defect the remedy for which lies in our hands as legislators. We owe it to children now in institutions, now suffering because of the present law, now having their lives blighted, to introduce this reform and to do so now.

The Minister's contribution on the last occasion to the debate was unconvincing, unresearched, unreasoned and unfortunate for the children who will continue to suffer if he has his way in delaying reform in this area. His arguments fall into three parts.

First, he said this was an important measure which should be carefully drafted and should come from Government. That is an appallingly shallow argument. The Bill is carefully drafted. It did come from Government. The fact that it bears Deputy Shatter's name is completely irrelevant to its merits and to the judgment of this House on its terms.

Secondly, the Minister says there are some possible amendments he would like to consider. Why does he not bring forward any such amendments on Committee Stage and let the House judge their merits? They will not be any better or worse because they are made on Committee Stage rather than at a preliminary drafting stage before another Bill is introduced. I would add that this Bill is preeminently a case for allowing non-party, unwhipped voting. There is no such thing as a Fianna Fáil foundling, a Fianna Fáil orphan, a Fine Gael orphan, a Progressive Democrat orphan, a Labour Party orphan, a Workers' Party orphan, or a Democratic Socialist Party orphan. All these children have rights which do not fall to be considered in the light of party political interest. I am asking the Minister, even at this stage, to reconsider the folly and the selfishness of the position the Government are adopting on this issue, and to look at this Bill on its merits and with regard to the interests of the people it purports to protect, namely, the children who are adversely discriminated against by our present laws.

Thirdly, the two miserable examples of possible changes which the Minister gave us last week showed what is, in my view, a desperate attempt to conjure up reservations for their own sake. The suggestion that the applications for adoption orders should be made only by health boards is one of the most silly proposals for the reform of family law I have ever heard from a serious source. The effect of such a proposal would be to give health boards an effective veto over the operation of the Act in relation to any child of would-be adopters. Why not leave the matter to the courts to decide and, if you must, give the health boards a right of audience as notice-parties to the application.

I notice in the text of the Bill that provision is made for the court making other persons parties to the Bill, presumably including health boards. Therefore, there is no question of excluding them from the judicial determination of the child's interests. However, what the Minister is proposing is to give them a monopoly of decision-making power because, as I said on the last occasion, if the health boards, the chief executive officer or whoever decides this anonymously within the deepest recesses of the health board, comes to the conclusion that a particular application is without merit then the parents' and the child's interest can never get to the court. That would be a scandalous deformation of our law against the people whose interests this Bill is designed to protect and would be without any legal rationale or constitutional merit whatsoever.

Whether we continue to have health boards at all is very much open to doubt, but the Minister's suggestion that the health boards be the only possible applicants is, in my opinion, nothing short of draft. If there were a free vote in this House on that proposal, it would only have the support of a handful of Deputies, if it even got that much support.

The Minister's views on the possible adoption of married people under the age of 18 seem to be entirely theoretical, and to come from the mind of somebody who, with respect, could never have had practical experience in the implementation of family law or the consequences of adoption. When one marries one becomes part of a new family of which the married couple are heads as far as the Constitution are concerned because they are potential parents in their own right. There is no point becoming the head of one family and, at the same time, aspiring to become a juvenile member of another family. I cannot see who would want to be adopted in those circumstances or why the effects of such adoption order, if it were made, would not be achieved by some other testamentary arrangement or deed of family arrangement. I cannot see the circumstances in which that exception could have any validity. This drives me to the conclusion that that objection was put up as a stumbling block or a trip wire to try to make respectable what is fundamentally a selfish attempted denial of passage to Deputy Shatter's Bill.

The Joint Committee on Marriage Breakdown proposed that the marriage age should be raised to 18 years. Therefore, why we are proposing to go in the other direction and start making absurdly complex arrangements for people between the ages of 16 and 18 years who may or may not happen to be married, is beyond comprehension. I wonder how many marriages the Minister thinks takes place each year between people in the 16 to 18 age group. There are only a very small number, and the number who would be illegitimate and even remotely interested in being adopted must be infinitesimal. Could the Minister's suggestion benefit more than one person in a decade or even in 30 years? I think it is an artificial point, without merit and without practical importance and I believe it is not presented as a real objection to the text of Deputy Shatter's Bill.

This attitude of the Minister is very disappointing. It evidences and uncaring, selfish and politically opportunistic approach to this issue. The people who will suffer most as a result of this attitude cannot vote, cannot lobby their Deputies and do not even know who to blame for their misery. In seeking to delay reform in this area, I ask the Minister if he wants to shoulder responsibility for their misery because that is what he will be doing in political terms.

If this Bill is voted down the Government will be saying to the Opposition that they do not want them to be constructive, innovative or positive and that they should confine themselves to futile, negative point scoring in the House. The Minister for Health, in particular, should know better because, as Opposition spokesman on Health, he spent four years indulging in point-scoring and irresponsible spendthrift rhetoric. Faced with reality, many words he said about health care during that period must now stick in his throat. However, his answer to the responsible attitude of the various parties on this side of the House is to treat the Bill with offhand disdain larded with a few perfunctory compliments to Deputy Shatter for his innovation in bringing it in. That simply is not good enough and fools nobody. It amounts to a contemptuous rebuff — not for the supporters of the Bill — but for the children whose lives are, in one sense, at stake. I use that phrase guardedly because I do not like abusing language but the lives of the children who will be affected by the passage of the Bill are at stake. It ill behoves the Minister at any stage to say that he will delay reform until he can have carriage of the Bill or until he can decide whether minor, theoretical amendments which he has in mind should be introduced.

The history of adoption law in Ireland is marked by inexcusable delay and conservatism often based on extraneous motives. Initially, the Catholic Church were afraid of adoption and some extreme Catholic activists oppose this Bill as a threat to the family. If the Constitution gives pride of place to the family which it recognises as having inalienable and imprescriptible rights antecedent to positive law and if, as has been held, it must be based on marriage, is it not curious that the Catholic Church are prepared to remarry people who are still married in the eyes of the State and whose marriage the State is bound to regard as indissoluble and possessing inalienable and imprescriptible rights? It is noteworthy in this context that, in limited circumstances, the Catholic Church can grant dissolution of marriage — such as the Pauline privilege — when the State cannot. There is also the problem of Church nullity decrees. What is claimed in the Constitution to be imprescriptible and antecedent to positive law is, in some cases, prescriptible by virtue of canon law — at least in the eyes of the Church — whose teaching is said to inform the wording of these articles.

If the family is such an important institution, it can be equally argued that a child has a very strong moral right to belong to an effective, loving and caring family, whatever the circumstances of his birth. You cannot say that the family is of huge importance and then say that it is irrelevant to foundlings, and children left in orphanages although they are not orphans, when they are deprived of their right to become members of a family. If it is all that important in theory it is equally important in practice. The present law prevents membership of a family being granted to certain classes of children and, therefore, it is wrong-minded to put preservation of the family as a reason for delaying the passage of this measure which is designed to accord all the privileges and natural advantages of membership of a family to those who are unjustly denied them at present.

The Bill should be debated now, not in a year's time which, as Deputy Desmond in his contribution on the second last occasion proved, would be the logical outcome of the Minister's attitude. It will be a year at least before any legislation which is not contained in Deputy Shatter's Bill can be introduced in the House. If this Bill is delayed for a year, will the Minister or anybody else be able to make up for the additional suffering, unhappiness and anxiety of the affected children? I suggest the answer to that is "of course not".

The Bill has a number of features which are debatable and the purpose of Committee Stage is to decide whether what is in it is right in the collective wisdom of the membership of the House. The great majority of the substance of the Bill is unexceptional and represents the vast consensus of the Members of the House, and therefore, should be passed. I have some doubts about section 9 in so far as it relates to costs and the same objective could be reached by different phraseology and concepts. However, that does not stop me from supporting the Bill and it does not relieve the Minister of his responsibility to support it and to bring forward amendments if he has any doubts.

Section 2 (3) of the Bill deals with the question of health boards and agencies. The treatment of health boards and agencies, as framed by Deputy Shatter, is far superior to the strange and recondite reasoning given by the Minister on the last occasion as an excuse for not supporting it. There is a provision in section 2 (1) which is unduly restrictive. I know Deputy Shatter's attitudes are liberal by disposition and that in so far as that section is restrictive, it is so because of an abundance of caution on his part to ensure that the matter will pass the Supreme Court without being challenged.

However, it is an unduly heavy onus to put on applicants who wish to have an adoption order made in their favour in respect of a legitimate child, proof of the fact that the parents of the child would not be in a position to resume their responsibilities as parents at any time before the child reaches the age of 18 years. The court should make the order, unless it considers it probable that the parents will be likely to resume their responsibilities, and the onus of proof could, with profit, be reversed in relation to that section.

The Fine Gael Party have not presented this Bill; Deputy Shatter has presented it in Fine Gael time. However, it is not a Bill based on party considerations. In this House it has received the support of Deputy Desmond of the Labour Party, Deputy Kemmy on behalf of the Democratic Socialist Party and the support of the Progressive Democrats. I presume it will also receive the support of The Workers' Party. These groups represent a very substantial variety of social outlooks and they are not joined in a pernicious plan to embarrass the State. Quite the reverse. They see themselves, when confronted by this proposed legislation, as morally and constitutionally bound to support it because not to do so is indefensible. When the arithmetic of the House finally shakes out in the way it often does, I wonder if this measure will be carried. Will Deputy Blaney or Deputy Gregory fail to turn up to support it? Will every Fianna Fáil Deputy dutifully respect the party whip and vote down the Bill. If there is a confrontation based on party lines, I appeal to the Minister, even at this late hour, not to have such a confrontation. I sincerely hope that the Minister is beaten and that the attitude exhibited by his contribution, in reply to Deputy Shatter's opening speech, is confronted by this House and rebuffed for what it is — posturing without substance.

This is not the time for ministerial effrontery, social small mindedness or political pettiness. For the sake of the children concerned, let us be generous. If we cannot be generous to each other in the House, let us at least be generous to those this Bill is introduced to protect, the children who, at present, are excluded from adoption. I reiterate the unequivocal support of the Progressive Democrats for the passage of this Bill on Second Stage and my heartfelt appeal to the Minister and the Minister of State to abandon their posturing at present and to be sufficiently open and generous to accept this Bill in the spirit in which it is proposed and supported by a diverse group of Deputies. They should stop the nonsense of saying that nothing good can come from the Opposition. This is the time to set a new tone for a new Dáil. If not, we will not become the petty, narrow-minded Opposition which that kind of behaviour might drive others to become; we will continue to be constructive but we will not let the Minister forget the inhumane, unChristian and ruthless consequences of this kind of political chicanery. I appeal to the Taoiseach over the Minister's head to change his attitude on this matter, to show a bit of common sense and to support this Bill. We emphatically support Deputy Shatter's Bill.

Mr. McCartan

A Ceann Comhairle, I thank you for the opportunity to contribute at this stage of the discussion on the Adoption Bill before the House. Let me say at the outset that it should be welcomed wholeheartedly by this House. While Deputy McDowell may have been very wide of the mark at the weekend in regard to his observations on the class politics of The Workers' Party, nonetheless he has got it right in respect of our position vis-à-vis the Adoption Bill. We will be unreservedly supporting the Bill. We argue it should be given the opportunity of moving to Committee Stage where, as has been pointed out, there are matters which could and would be addressed by amendments. However, we cannot understand how anyone could, in conscience or on any other basis, seek to block the progress of this Bill. We say it is timely, if not long overdue, that a basic inhumanity towards innocent children of this State, children who are discriminated against because of their status, should be addressed.

It is remarkable to emphasise, in contrast to the debates on various referenda, that on this occasion the discrimination is based on the status of legitimacy. It is remarkable that at this stage of our civilisation and development there is not available within the State the opportunity for legitimate children or children presumed to be legitimate who are left in the hands of our health authorities to be available for adoption where no other substitude of parental and home love is available.

The Bill must be welcomed even more so when one considers the inordinate delay in regard to law reform relating to children generally. I think I am correct in recalling that in the momentous International Year of the Child which ran from 1979 to 1980 the Fianna Fáil Government of the day promised not just a Bill dealing with any one aspect of children's rights but a veritable charter to deal with the upgrading and modernisation of the law. It was to be the gesture of the Government of the day as their contribution to the advancement of the interests of children and young persons in that important international year that a charter upgrading the law relating to children would be put before the House and put into operation. An important point was that the legislation dated from 1908 and that fact was to be corrected. However, since that year no innovative or reformative legislation in that area has been introduced into the House.

In some degree this Adoption Bill is a product of the fragmentation of the charter idea which was canvassed at that time. The legislators in time found that one aspect of the proposal was being delayed because of varying difficulties and, as a result, it was developed in a number of ways. As we now know, in the life of the last Dáil in response to review committees and the work of other agencies, the Government of the day introduced what is in effect the Bill now before us in the name of Deputy Shatter.

One of the major reservations expressed about the Adoption Bill is that it may have constitutional difficulties. At this stage I have to emphasise that this Bill is so carefully drafted —"restrictive" is not a word I want to use at this stage — that there could not possibly be one iota of constitutional reservation raised about it. This Bill is drafted so as to fit hand and glove within Article 42.5 of the Constitution. So as to remind the Minister of what the Constitution allows in this area, it is worth quoting Article 42.5:

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.

For that reason The Workers' Party support this Bill in principle. We say it is an effort to take Ireland out of the exclusive internation club of three in which we find outselves at present. We rank with Iran and Iraq as being the only countries which do not currently allow for the adoption of legitimate children or foundlings. That, in itself, speaks myriads for the rather backward position we find ourselves in, regrettably a position which the Government appear to wish to prolong for an indeterminate period of time.

It should be noted that in the Minister's response no indication was given as to when the Government will put the matter right. They say it needs further consideration but it must be remembered they promised this legislation in 1979. They were put on notice on 25 November last year that legislation in this area was in the offing when the former Minister for Health, Deputy Desmond moved the Second Stage. For someone on the Government side to say that they are somewhat taken by surprise is a little less than credible and should not be allowed go unremarked on.

As I said, the Bill seeks to deal with the needs of children who at present are not given the due regard, care, love and affection set down in our Constitution. The Bill also seeks to deal with the needs of couples who for very different reasons cannot have children of their own by giving them the opportunity to adopt. At this time there are upwards of 2,000 children who could benefit through the passing of this Bill. We also know there are long lists of couples who are on the waiting lists of the adoption societies looking earnestly for children to adopt but who cannot be facilitated because of the lack of children.

Having regard to the way the Government are dealing with the health authorities surely the attraction of the proposals in this Bill must commend them to a Government who are so earnestly looking to cut expenditure at health board level. It will be a great saving on a cost basis alone for health boards to be able to hand into the loving care of doting parents children for whom, at the moment, they must provide in institutions that are no doubt costing the tax-payer and the Government highly.

The Bill has very important implications, not just on the narrow singular level but with regard to many aspects which this Government, if they are genuine in the programme of budgetary sense they have been proposing during the past couple of months will pursue. I have already adverted to the Constitution and the particular provision included therein to allow for the exceptional type of legislation being put before the House at this stage. Deputy Shatter in his explanatory memorandum and then in his contribution to this House has explained at length the particular importance of each of the sections in the Bill.

The Minister has advanced reasons for the House not giving support to further consideration of the Bill at this time. These have been set out clearly by Deputy McDowell but one aspect must be answered at this point yet again. It is suggested that what needs to be put before the House will be something more carefully drafted, something that will have more safeguards, for some reason, in the context of the Constitution, if it comes from the Government side. It is only fair that one pay tribute to the promoter of this Bill. The Government should have due regard to the fact that he is perhaps the foremost proponent and exponent of family law and its provisions and operation in this State. I have no doubt that each and every one of the provisions in the Bill is based on the long number of years of experience of Deputy Shatter in the whole area of family and adoptive law. I have no doubt, equally, that the Government should be mindful of the fact that he is a foremost textbook writer in the area of family law. It is not to pass unremarked that any Minister should suggest that legislation drafted and promoted by somebody of this standard of expertise might not be so carefully drafted and might require further consideration.

Needless to say, there may well be aspects and points for clarification, of a minor nature or otherwise, in the sections. Deputy McDowell has referred to one or two about which he would have reservations. I believe that the Minister made some passing remarks on aspects of the Bill. These matters can clearly be addressed and put right on Committee Stage when all of us would have an opportunity to contribute. The same experts are available to the Minister as were available to the previous Minister when he moved Second Stage of his Bill on 25 November last. For somebody to suggest that the expertise is not there, and was not there when the Bill was drafted originally, again deserves criticism. It can lead only to the conclusion, as has been suggested, that there is an element of seeking to avoid some kind of one-up-man-ship, seeking to ensure that the Government are not seen in any way to be tardy or wrongfooted by some initiative on the Opposition side. I do not see that that is so.

It must be recognised that there was much useful legislation introduced by the previous Government that had gone a certain distance. The Government have already taken up a number of these Bills which were left in the stocks and not passed through all stages of the legislative process. The Government have sought for these to be promoted, such as the ACOT Bill, the Defence (Amendment) Bill at present under consideration and a number of others. I cannot understand why the Government are seeking now to put a stop to this Bill and to obstruct its passing further along the legislative process. It would be too easy to suggest, as has been suggested, that it is because those who are to be affected are so vulnerable as not to be a voice to be heard and so young as not to be able to raise their cause.

I earnestly suggest that whatever reservations the Government have about the contents of the Bill, these can be easily and very carefully dealt with on the next Stage. I invite the Government to consider allowing the Bill to pass to Committee Stage. In this way they would be seen to be responding in a caring and active way to what is a major social problem, an oversight and perhaps an indictment of all parties because it has not been addressed earlier.

One hopes that all Deputies on the Opposition side will be available here tomorrow night and that if I can be heard in Limerick and Dublin North Central and wherever else——

Miss Harney

And in Donegal.

Mr. McCartan

——we will have all our Deputies present here, being heard in unison in a plea to the Government to allow what is very useful, very carefully drafted and worked out legislation and what would represent a very humane act on our part, to move on with all speed.

Mr. Flanagan

I am pleased to have an opportunity of addressing the House on this Bill. At the outset, this is not a matter of extreme urgency as far as the present legislative process is concerned. There are many matters before us requiring the urgent attention of Members on all sides of the House. I urge the Government, and in particular the Minister for Health, to have a rethink on the lines of the 1987 Adoption Bill. In this regard I would refer to the reply of the Minister in response to a question tabled by one of my party colleagues on 30 April concerning a research programme on our existing adoption services. The Minister stated that he would consider such matters. Now he indicates his intention to draft his own Government legislation on this matter. I suggest that the Minister and the Government are needlessly playing for time on an issue of fundamental importance to a section of our community who cannot, by their very nature, rely on heavily financed pressure groups to fight their corner.

The Minister says he has a number of reservations from a constitutional point of view on certain aspects of the Bill. I would ask him, or somebody from the other side of the House, to state these reservations clearly and distinctly, if not this week, certainly on Committee Stage, when I hope we will all have an opportunity of discussing them. At one stage here the Minister said he felt unhappy with the Bill as at present drafted, that it concerned only the adoption of single children. The Minister is concerned at the absence of a provision to cater for married people. I ask the Minister to think seriously on this comment. If he checks the statistics, he will see that the number of people between the ages of 16 and 18 who are lawfully married is very small. If he goes further and checks the number of married people between the ages of 16 and 18 who would wish to benefit from the adoption services he would see that his statement is bordering on the ludicrous.

I would readily concede that the law on adoption and childrens' legislation in general is highly complex. It is an area that should be changed, broadened or amended only following full and detailed discussion and debate among all the parties concerned. However, many people fear — perhaps rightly — for one reason or another, any form of change in the family code. We in this House must always bear in mind the protection that our Constitution affords on these matters. Over the years Fianna Fáil appear to have been afraid to deal adequately with social legislation and it appears that their attitude has not changed in the last three months. I urge the Minister to have a rethink on this issue and allow us to proceed to Committee Stage when the fears of the Government, and other parties, can be voiced.

Articles 41 and 42 of the Constitution specifically state that parents are accorded inalienable rights as far as children are concerned. However, all must agree and accept that there are instances, which are on the increase, where parents for a variety of reasons fail in their duty towards their children. Legally married parents may fail in their duty to their children for physical reasons, illness or incapacity, or, in some cases, there may be clear negligence by parents in their duty. Unfortunately, the latter is proving more prevalent in our society. In such circumstances there exists a clear duty on the part of the State to permit adoption by parents where lawful parents fail in their duty towards their children for mental or physical reasons.

When one looks at the provisions of the Bill before us one realises that there is a need to reform our existing laws relating to adoption. Adoption is best described as a generic love of children that is in no way dependent upon consanguinity. Children have a right to grow up in their family of origin in so far as that is feasible and the State has a clear responsibility to facilitate this by preserving the integrity and wellbeing of the natural family. We must face up to the fact that in some unpalatable cases it is not possible to keep a family together in spite of the availability of some support services which are of the highest standard. While I accept that the Minister for Health has to deal with the problem of the general funding of the health services he should, as far as the provision of services for families in need are concerned, ensure that they are not curtailed in any way.

In some cases parents may decide that it is not fair to keep a child and that a child may have a better life with another family. In other cases the child's security and wellbeing may be at risk. I should like to stress the importance of having available a range of State supports for families in difficulty so that parents are not obliged to place a child due to economic difficulties which, sadly, is very prevalent in Ireland in the eighties.

The present law permits the adoption of orphans, illegitimate children and children legitimised by the subsequent marriage of his or her parents but whose births have not been registered in accordance with the 1931 Legitimacy Act. A child's capacity to be adopted should not be determined on the basis of the marital status of the parents. The present law excludes from adoption many children who may be in urgent need of the benefits which adoption can offer. As many speakers have said we are the only country in Europe that does not permit adoption of legitimate children.

The 1984 report of the review committee on adoption services quite rightly explained the trauma of adoption. It stated:

"There are few areas in the field of human relationships that involve the same degree of heartsearching and anguish and ultimately happiness as the adoption of a child. It affects those who are party to it in different but deeply felt ways. For some it means parting with a child, for others gaining a child. Difficult and agonising decisions have to be taken since the consequences are lasting and, in the final analysis, the life that will be most affected by those decisions will be the child himself."

In the opinion of the committee it is highly unlikely that amending the law as the Bill proposes so as to provide for the adoption of legitimate children would result in parents negating their parental duties and responsibilities in relation to their children. The committee have found no evidence to suggest that this has been the case in other countries where the adoption of legitimate children is permitted and long established. It is a natural instinct of parents to care and provide for their offspring until they are in a position to fend for themselves. I agree with the committee that adoption should be one of the options available to provide care for our children — whether such children be born in or out of wedlock — who cannot grow up in natural families. All children, irrespective of the marital status of their parents, should be eligible for adoption in certain clearly defined circumstances. We should remember that there will only be certain exceptional circumstances where the Constitution will permit adoption as envisaged in the Bill. Enactment of this legislation will enable the adoption of legitimate children whose parents have failed in their constitutional duty towards their children and in circumstances where there is an abandonment of parental consituational rights. The Bill also proposes to permit the adoption of an illegitimate child whose natural mother has abandoned her constitutional rights to such child, in circumstances in which such a child cannot be adopted under the law as it now stands. Such adoption will only be allowed where parents, or parent, for a long period, clearly failed in their duty towards such child and further that it is deemed likely that such failure will continue on an ongoing basis until that child reaches the age of 18 years.

The failure or otherwise, of the duty and care will be decided by the High Court, bearing in mind the circumstances of each case. The court must at all times be satisfied that, having due regard for the natural and imprescriptible rights of the child, it would be in the best interest of the child to make an order authorising the Adoption Board to make an adoption order in relation to the child in favour of the applicants. Before the court may make such an order due consideration must be given to the child's wishes having regard to his age and understanding.

Further stringent requirements are contained in sections 2 and 4 of the Bill where it is outlined that applicants must have custody of the child in their own home for at least one year prior to having the application processed. In cases where a child is under the care of a health board that board must at all times consent to the application and as far as the applicants are concerned the Bill provides that two separate applications must be made, first to the Adoption Board and thereafter to the High Court to authorise the Adoption Board to make the order. The High Court will at all times examine each and every case and must satisfy itself that the parents have failed in their duty and that such failure is likely to continue before any order is made. Under the Bill it is envisaged, and quite rightly so, that the court will be obliged to hear the evidence of the natural parents as long as their identity is known and provided that the natural parents wish to avail of the opportunity of giving evidence. The ultimate effect of the adoption order would be to terminate on a permanent basis the rights and duties of the natural parents with regard to that child.

In general I welcome the Bill and I urge the Government to support its provisions. We must take a serious look at the hundreds of children presently in long term care on a residential basis and while I feel that such institutions are providing an excellent service, they are not a proper substitute for family life available to a child in the home and environment of adoptive parents which the Bill if enacted will allow.

I urge the Government, in the strongest possible terms, at least to allow this Bill to be discussed on Committee Stage when we will be able to hear the reservations the Minister and the Minister of State have but on which they do not seem to be clear.

I welcome this Bill. I hope it will be enacted in 1987. It is now May, the House will rise in July and will not resume until October. So far as the Government are concerned the likelihood of legislation of this nature coming before the House before Christmas must be somewhat slight. I very much regret that that is the position. Until such time as the Minister clarifies the position, I feel we will all be in the House until sometime in 1988, not having passed adoption legislation because the Government will not have had an opportunity — because of the life of the Twenty Fifth Dáil — of producing their own Bill. Committee Stage affords Members the opportunity of expressing their reservations and of putting down amendments and having them discussed. This Bill is a firm basis on which to urgently reform our law so that the hundreds of people who are in difficult situations may have their plight alleviated.

An Leas-Cheann Comhairle

The Chair wishes to congratulate Deputy Flanagan on the occasion of his maiden speech.

Mr. Cowen

I join with you a Leas-Cheann Comhairle in congratulating my constituency colleague on his maiden speech.

When one reads last week's debates on this Bill it is clear that time is required by the Government to consider the various points that have been raised and to bring forward their own Bill in the light of the various discussions that have taken place in the Dáil since the publication of the Adoption Bill in 1986 by the former Minister, Deputy Barry Desmond. From reading the speeches which were made last week it is clear that certain issues raised by various Deputies give food for thought.

I bow to the expertise of Deputy Shatter in this area but there are a few matters which have to be cleared up. When the Joint Committee on Marriage Breakdown produced their report an all-party consensus was arrived at. Unfortunately, we did not proceed on that all-party basis for the purpose of implementing the various agreed proposals in that report. Instead we went for a divorce referendum which did not prove successful.

I do not think it is an unusual step in parliamentary procedures for a Government to require time to consider issues coming before them and to decide on what way they will proceed and order business. As has been recognised by previous speakers, there are various priorities which a Government set themselves. This is not in any way to demean the importance of an adoption Bill which will allow us, constitutionally and in legislation which will be in compliance with the Constitution, to permit the adoption of legitimate children whose parents have abandoned their constitutional rights under Articles 41 and 42 of the Constitution and as decided on by the High Court in any individual case.

There was criticism of this Bill last week by the Progressive Democrats. Deputy Mary Harney said she felt the Bill was too restrictive, that it was not liberal enough. She said there should be a wider ambit of categories of children who might be available for adoption. She also made the very sweeping statement that there were children who were sent out by their parents to commit crimes and children who stayed out too late at night. I found this statement most remarkable considering the fact that we are trying to bring forward legislation that would be in compliance with Article 42.5 of the Constitution. She may have been confusing this legislation with legislation which would impute to the parents of children who were involved in lawlessness some criminal responsibility for that behaviour. That is totally outside the ambit of what we are talking about.

She also said she felt that the High Court should not be involved in deciding on whether an adoption order should be granted and that there should be less of an adversarial atmosphere in family law tribunals. The problem with this sort of suggestion is that we are dealing with the constitutional rights of citizens and surely the High Court would be the proper arbiter as to whether an adoption order should be made in any given circumstances. In that regard the Deputy seemed to have been confusing the very restrictive parameters in which one must operate an adoption law under the Constitution with some global or overriding reform in the general family law area in relation to custody, maintenance or whatever. Her criticism that this Bill is not liberal enough is misplaced. That has been recognised by previous speakers such as Deputy McCartan and by Deputy Shatter who stated that we are faced with the fact that we have constitutional provisions which require very careful study and that as a result of that we must ensure that legislation based on those provisions is free of any constitutional flaw.

There is general agreement that perhaps previous Parliaments have delayed in bringing in this sort of legislation which is agreed to in principal by all of us. However, it is important that we ensure that we draft a Bill which will be within the ambit of the Constitution. The suggestion that once the Bill is passed that it go before the Supreme Court under Article 26 of the Constitution is a very good and commonsense suggestion in view of recent decisions and the remedial measures that have had to be taken by the Legislature as a result of certain legislation or treaties having been struck down by the Supreme Court.

There is no objection on this side of the House to the principle of the Bill. Many legitimate children have been deprived of the kind of family atmosphere to which they are constitutionally entitled. That constitutional entitlement was made clear by Justice Walsh to the Adoption Board, An Bord Uchtála, when he claimed that you could have an abandonment of your constitutional rights that the rights of parents are not totally inalienable; they are inalienable in the context in which they are exercised or they are not exercised.

We are in favour of the Bill. When the previous Bill was published we had a seminar in Trinity College at which eminent people spoke and very serious contributions were made. It is the duty of a Minister when he takes on an office of State to familiarise himself completely and be totally happy with the proposals and with his own Bill. That is a preserve and a right which he has. If the Minister Deputy O'Hanlon, decides to use it in this instance he certainly will not be the first and certainly he will not be the last regardless of who is on the Government benches. In his Second Stage contribution he said he will move for the production and the publication of a Bill to be discussed in this House as soon as possible. Deputy McCartan suggested earlier that he was putting it on the long finger and that he would not deal with it. The Minister has given a commitment on Second Stage and I am prepared to take him at his word.

We should try to get an all-party agreement on how we should proceed on these issues — an opportunity which was lost when the Joint Committee on Marriage Breakdown reported. It is the prerogative of Government to bring forward legislation. They have given a commitment that legislation will be brought forward as soon as possible when the Minister is satisfied with all the provisions in a Bill. If we do that there will be no need for party political arguments. It is a matter of timing. We are not talking about the next decade or the next five years, but as soon as possible. I think we will see the publication of a Government Bill very shortly and these issues can be discussed on an all-party basis with a view to rectifying the discriminatory position in which legitimate children find themselves who would otherwise be available for adoption.

Mr. Cooney

I am glad to have the opportunity to contribute to this Bill. It is clearly common case between all sides in the House and, indeed, has been common case in the community for many years that the plight of the abandoned legitimate child needed to be dealt with. It is a tribute to our adoption system that the method of dealing with the plight of that citizen was to look to our adoption code to provide the answer to the problem. Our adoption code can withstand examination as to its success or otherwise and clearly pass that examination with flying colours. There is no doubt that adoption as practised in this country has been outstandingly successful. I say that on the basis of empirical observation rather than as a result of any objective data that might have been ascertained through research. If there is one flaw in our adoption code it has been the absence of monitoring research from the beginning.

When I was Minister for Justice it was a contentious area being pressed on me by social workers who were interested in the adoption field that we should have research facilities so that the operation of the adoption code could be scrutinised and evaluated in a scientific and precise way. So far as I recall I provided funds for a scheme of research and I would be interested to know if that scheme was continued and is still continuing. By definition, research in the area of adoption is a long-term process because it involves monitoring the progress of the group and peer groups being observed over a considerable number of years dealing with childhood, the teenage period and probably young adulthood in order to make comparisons to see how the various groups fare out.

I recall that, when proposing an amending Bill, in 1974 or 1976, I gave figures of research analysis that had been done in another jurisdiction. There was an analysis of a group of adopted children, a group of illegitimate children who had not been placed for adoption, and a group of legitimate children. That analysis in the jurisdiction of the United States showed that there was little difference of achievement between the legitimate children and the adopted children, a slight edge in favour of the former, but there was a significant difference, or lack of achievement on the part of the illegitimate group who had not been placed for adoption and who had been kept by their mothers. It was an interesting piece of research, the results of which were not terribly popular, because they went against the then current thinking in the world of sociology that mothers should be encouraged to keep their children born outside wedlock. I will not comment on that aspect at this stage because it is a sensitive and difficult area. I just mention the results of that research carried out in the United States at that time. If Members are interested, I have no doubt they will pursue the records of the House to trace my words in 1974 or 1976.

As I say, on the basis of empirical observation in this country I think we can be satisfied that our adoption system has worked well. There have been literally tens of thousands of children placed for adoption and if a cohort of the population of that magnitude did not achieve normally, or did not fit normally into the social streams in which they were placed and become good citizens this would surely manifest itself in such a way as to be noticeable. That it has not done so and that there is general satisfaction on the part of the adoptive parents, on the part of society at large and on the part of those who are professionally involved in that area with the scheme as practised in this country, is proof that it has worked satisfactorily. Indeed, I would go so far as to say that it has worked outstandingly well.

A great tribute must be paid to those who were responsible for initiating our scheme of adoption, the officers of the Department of Justice who devised and implemented the original adoption scheme and who also were responsible for advising on the amendments which were subsequently made in 1974 and 1976 to cure certain defects which had manifested themselves in the scheme some 20 years after its inception. I want to pay tribute to the officials of that Department. The scheme was heavily scrutinised in the late seventies and there were calls for radical change in adoption procedures.

There was even a suggestion that adopted children should be entitled as of right to know their ancestry. Changes of a radical type were called for and were resisted, not to the point of being excluded, but on the grounds that they fundamentally affected a scheme that had worked well and required careful scrutiny and analysis. Because the changes did not come overnight, pressure grew for the transfer of the administration of adoption to the Department of Health. In due course that took place and it may well have been a good move. I think it was motivated on the basis of an assumption that the people in the Department of Health would be somehow more humane than those in the Department of Justice. I am sure the people in the Department of Health would be the first to agree that this would be a fallacious assumption. Possibly the real reason was that those who had been seeking reform thought they might meet less of the hard-nosed legal analysis which is part and parcel of the modus operandi of the Department of Justice and that they might not meet that to the same extent in the Department of Health. We will know whether that is true when the Minister produces his own Bill in due course.

The adoption scheme has worked very well. Proof is that it is now sought to solve the problem of the abandoned legitimate child by enabling that scheme to take that child into its ambit. When I was Minister for Justice and had charge of the adoption area I was bringing forward amendments to the adoption scheme. This problem was then as live an issue as it is today. Like every person with an ounce of compassion — and I would claim at least that — I was anxious to solve it and was taken by the arguments that the way to solve it was to expand the law so as to permit the adoption of legitimate children. I have to say that the advice I got then was that such a course was constitutionally extremely dubious and that it would require much consideration and possibly considerable evolution of case law before one could say it was constitutionally appropriate.

I am not sure even at this stage that case law has evolved to a stage where we can say that the proposals in this Bill are constitutionally secure and constitutionally safe. It is at least arguable when one considers the very clear provisions of Article 41 read in conjunction with Article 42.5 that what is proposed here may be in conflict with those Articles. I do not propose at this stage to become involved in a detailed analysis of what Article 42.5 means when it says that the State by appropriate means shall endeavour to supply the place of the parents. That can mean a lot of things; it can mean many things to many different courts. It might not mean what is proposed here. There may be other ways. I do not know.

The views expressed here on all sides display this underlying worry about the constitutionality of what is proposed. Deputies who have spoken have perhaps been slow to put undue emphasis on the legalities of an issue lest they might be accused of being heartless or uncaring about the immense human problem which the measure is attempting to solve. I can understand that and I was somewhat loath myself to speak in the terms in which I am now speaking. There is always the danger that one may be accused of being unduly legalistic and hard-hearted by paying attention to the law at the expense of the person. All I can say in answer to that is that there was no worthwhile family law reform of any sort introduced in this country in the past ten years except what I introduced as Minister for Justice.

I do not apologise to anybody for making the point that we must consider the legal context in which this Bill is being proposed. There has to be a doubt about it. It is not good enough to say that the House can rely on Article 26. As I understand it, there is an obligation on this House not to propose legislation unless it is sure it is constitutional. I understand that is a convention of our procedures, and a very proper convention it is, because under the Constitution we have a duty to conform to the Constitution as much as any other organ of the State and we are not entitled to put forward legislation about which there is a question mark and hope that the President in his wisdom may refer it to the Supreme Court. It is not even proper to hint that he should because that is a trespass by us into his domain.

I mention these points because they are real and serious and I wonder if this problem should be approached from a different perspective. In approaching the problem from the perspective of the adoption code and seeking to apply it to the case of the legitimate abandoned child, are we making a fundamental misjudgment of what adoption is? In my opinion adoption provides two things for the illegitimate child and it was in regard to the illegitimate child that it was first introduced into our legal code. It supplied two needs of that child: first, it gave that child the permanency of a home within a family, something which the foundling did not have — it had been abandoned to an institution; secondly, it gave that child — who in those days was a nullius filius and until we change the law will continue to be — a family, a name, parents, brothers, sisters, entitlement to succession rights and all the other attributes of being a full member of a formal family. That is what adoption was designed to do — to provide the two wants of the abandoned child.

The case we are dealing with in this Bill is not the case of the abandoned illegitimate child, with the exception of the illegitimate child where the mother had not agreed to its placement for adoption. That is a different and smaller category which can be dealt with adequately by the provisions of this Bill. The category that causes the difficulty is that comprising the legitimate abandoned child. If I am right in what I say is the nature of adoption, namely, that it provides two things, only one of those is necessary in the case of the legitimate child. By virtue of its legitimate birth that child already has the status of family, albeit a family that has neglected and abandoned him. Nevertheless the status is there and there is no need for an adoption code to give a status that already exists. What is required is something in our legal system that will give a permanent home and a guarantee of a system to look after the well-being, material and spiritual wants of the foundling. We should be addressing our minds to that aspect of our legal system because it would achieve what we all want. It would take these unfortunate foundlings out of care and give them the benefit of family life. They do not need the status of adoption to give them a family because they have that by virtue of their birth, but they need something to give them a permanent home where they will be safe from the danger of being reclaimed by unworthy parents who have abandoned them. Possibly in addressing this problem we should consider the question of fosterage. I have not researched this aspect but it might be an area where it would be possible to give permanency without at the same time coming face to face with the constitutional impediments which I see in the present measure.

I put forward these thoughts for the consideration of the House and the Minister. It is only right that we should have this debate and that it should be frank. While considering the immensely compassionate call made on us by this section of our society, we cannot answer that call by ignoring the constitutional system by which our society is governed. We can say what we like about our Constitution, and many people have had hard things to say about it, but it is there and as long as it is there we just cannot ignore it. We have to take all of its provisions into account. We have a constitutional duty here in this House to ensure that we do not propose or pass legislation which would be in conflict with the Constitution or even legislation which we think might be in conflict with the Constitution. One of our tasks is to act as upholders of the Constitution. That is a serious obligation on us and if we are careless about that obligation because the motive is excellent, the motive being to cure the plight of these unfortunate children, on another occasion the motive might not be so compassionate, so compelling or so popular and we will begin to be careless with our Constitution and end up in conflict with the courts with regard to its interpretation and implementation. That would not be desirable. We must be careful of the fundamental provisions of the Constitution which provide for the division of powers.

There was criticism in this House some time ago that the Supreme Court judgment on the Single European Act interfered in the area of the executive. That was a bad example. If one wanted to consider interference by one organ of the State in the affairs of another that was a bad example to use against the Supreme Court. Probably there are better ones to be got. If we look at section 2 and we see the immense burden we in this House are seeking to place on a court and all the things that a court will have to do to satisfy itself before it makes this judgment of immense consequence — taking a child away from its natural parents forever, the child they conceived and brought into the world. Unworthy though they may be, the court will have to decide that those parents have forever and ever abandoned their child and they must lose that child forever and ever. The court will have the immense burden of deciding that, looking over its shoulder at Articles 41 and 42.5.

Unfortunately, these are real problems which exist and will not go away. We must bear them in mind as we are considering this measure. That is why I urge the House and the Minister to turn their attention to another method of solving this problem. I have indicated a possible method. It is no more than that and it may be fruitless when examined, nevertheless it should be examined.

These are some views on this Bill. I welcome its introduction as it has enabled this debate to take place. It will bring into public focus again the plight of the children concerned. I support the Bill. I am not prepared to say that my doubts are less valid than the wisdom of those who put forward the Bill. In any event the Bill is a vehicle for this debate and those doubts will be teased out in greater detail on Committee Stage. I join with my colleagues who have urged the Government to take this Bill, accept it and let it get on to the next Stage when all these constitutional and legal doubts can be teased out. If they are shown to be of no moment, to have no weight or substance, they can be disregarded and this Bill can be enacted and bring about a very necessary, worthwhile and longawaited reform.

Should they turn out to have validity and the House cannot convince itself that the Bill is on all fours with the Constitution, obviously we will have to put our collective minds and collective wisdom towards devising an alternative method. I urge the Minister to accept this Bill and let this important debate continue because, as Deputy Flanagan said, there is no doubt that if it does not continue at this stage — I can speak from experience; the complexity of preparing a Bill of this nature is immense — the Minister will not have a Bill in this House before the summer recess. It will be the Michaelmas term before we receive the Bill, if then. I suggest that the Minister should accept this Bill and let us get on with this important work immediately.

Mrs. Taylor-Quinn

First I congratulate Deputy Shatter on bringing this Bill before the House. It was regrettable that the Bill published by the previous Government in November 1986 was not passed through the House prior to the dissolution of the 24th Dáil. The Minister would be very wise to allow this Bill to go through the House and see it through to Committee Stage. While I welcome the fact that we have an opportunity to introduce Private Members' Bills in Private Members' Time, I feel it could be seen as a waste of Dáil time if there is not some constructive follow up to the Bill by allowing it through to Committee Stage.

I hope the Minister will rethink what he has already considered over the past week because basically this Bill is very similar to a Bill drafted by the former Minister for Health, Deputy Desmond, and at that time that Bill was drafted with the assistance of the officials of the Department of Health and the legal Department of the Attorney General. The same mechanisms and the same assistance and service are available to the present Minister. As the officials who were advising the previous Government were very much the same as those who are advising the present Government, I do not think any legislation brought before the House by the Government will vary considerably from what is before us here this evening.

Leaving the more legal points raised by previous speakers, we should consider what the Bill is about. It is about children. It is about a certain section of children who at present do not enjoy the security of a family, the love of a mother or the goodwill and bond that exist within a family. Those are children who are deemed in law to be legitimate but who at the moment under the present adoption laws are not entitled to be adopted. In 1952 when the legislation that governs adoption today was introduced to this House, it was not seen as necessary to accommodate the adoption of legitimate children, but 35 years onwards we must realise that we are living in quite a different Ireland with a good many different social pressures on people. We have more marriage breakdowns. Many children are abandoned because of pressures be they social, economic or whatever and at the moment many legitimate children are denied the enjoyment of family life because of the non-existence of laws to cope with their peculiar situation. Deputy Cooney spoke about adoption which he said does two things: it gives to an illegitimate child the permanency of a home within a family and it caters for the nullius filius by giving that child a name, title and succession rights.

I suggest that adoption does far more than that. A child is not aware of status or title. He or she becomes aware of them on becoming older. A child is a youngster. He is aware of family and the love of a mother and a father and the security that that can bring. That is what we should address ourselves to and not to the fine legal titles that many have addressed themselves to here this evening. It is very important for the psychological development of a child that there is security around that child. We in this House will be found wanting if we do not take early action to ensure that the hundreds of children out there who do not enjoy that happy scene at the moment are provided with it as soon as possible.

The Minister for Health basically agrees with the Bill and has some reservations, one of which is ridiculous and which could be very adequately dealt with on Committee Stage. The Minister expressed concern at the fact that the Bill does not deal with the adoption of married children under the age of 18 years of age. That is a very weak argument on which to reject the Bill before the House.

An Ceann Comhairle

I hesitate to interrupt the Deputy but would the Deputy please move the adjournment of the debate.

Debate adjourned.