Before we adjourned for Question Time I had raised the issue that it is essential that there be a degree of certainty in the area of adoption. I drew to the Minister's attention the fact that the Fine Gael Private Members' Bill introduced a year ago to provide for the adoption of legitimate children abandoned by their parents dealt with the constitutional issues in a way similar to a way the Minister deals with them. I said that so as to ensure that, many years after an adoption order was made pursuant to the terms of my Bill as it was when introduced and many years after an adoption order is made under this Bill now before the House, no problems can arise as to its constitutional validity and that there was a need to have at an early date a decision as to the constitutionality of the procedures provided for under this Bill in permitting the adoption of abandoned children born to a couple within marriage.
The Minister in his speech did not indicate whether he favoured such a constitutional decision taking place at an early date. I repeat it is my belief that this Bill should be referred by the President to the Supreme Court under Article 26 of the Constitution so there can be a once and for all decision as to its constitutionality. If that is not done we will discover after the Bill comes into force, on the first two or three occasions when an applicant for adoption makes application under this Bill to the High Court for permission to adopt a child who has been with the applicant in fosterage for some time, that the constitutional issues will have to be fought out between the applicants and the natural parents if they are opposing the application. Even if there is no opposition from the natural parents to an adoption order being made, the court may of itself on its own volition raise the constitutional issue and the first adopters who seek to adopt under the provisions of this legislation, through no fault of their own and without wishing to be so involved, could find themselves involved in a constitutional action in which they have to ask the courts to determine the constitutionality of this measure.
It is preferable that this issue is disposed of before we start working the provisions of this Bill. Accordingly, I urge the Minister, using whatever influence he has, to publicise the fact that not only Deputies on the Opposition benches but also the Government Minister and the Government themselves would like the President when he has this Bill before him for signature to consult with the Council of State with a view to having a decision as to its constitutionality.
It is worth mentioning that this Adoption Bill, like its predecessors, including the Fine Gael Private Members' Bill, has had to follow a very tortuous and difficult legal route in laying down the criteria applicable and to be determined by the courts in ascertaining whether a child should be made available for adoption.
The Minister, quite fairly, during the course of the Seanad debate indicated that in the context of the criteria laid down, the High Court must have regard to such criteria when making a decision. However, he could not fully explain the meaning of the criteria or fully set out the circumstances in which the court might regard parental failure as constituting an abandonment on the part of parents and all parental rights under the Constitution or otherwise. The Minister said it must be left to the courts to determine when there is such a failure and the wording of the Bill follows that of Articles 41 and 42 of the Constitution in this regard.
The previous measures which came before the House in dealing with this area also had to follow this route. The difficulty with this legislation in practice is that until the courts impose their own interpretation there will be some degree of uncertainty as to the exact parameters of its application. It is most regrettable that that uncertainty remains because we have not yet faced up to or tackled the constitutional issues that need to be resolved in this area. The need to resolve them was highlighted not just by the somewhat prolix provisions contained in this Bill but also by the provisions in the Bill dealing with child care which will be debated on another occasion, which seeks to tread over constitutional glass in trying to ensure that children at risk can properly be afforded care and protection without health boards violating constitutional rights.
Our Constitution is grossly defective in this area. There is a need for a clear statement on the rights of children and parents without the ambiguity that exists by reference to inalienable and imprescriptible rights, which are referred to in the Constitution. In effect, it is left to the courts to decide what those rights are and how they should be applied. I am not suggesting that parents or children should be deprived of their rights but it is unfortunate that there is a constitutional grey area in which no one can be certain of the rights of parents and children in particular circumstances, how such rights should affect adoption or where a child is at risk as a result of parental misconduct. We need a charter of rights, not merely under our ordinary law but under the Constitution, in relation to children. Emphasis should be laid on the rights of a child, as very much the vulnerable and dependent person, and at all times to ensure the child's welfare.
The Minister, when introducing this Bill in the Seanad in July 1987, said that he would have preferred, if possible, the powers which the Bill confers on the High Court to have been conferred on a family court. Almost ten months later there is still no sign of the Government doing what the Minister would like to see done. It bears repeating that there is agreement on all sides of the House that there is a need for family courts to deal with contested issues in the area of adoption, issues that arise under this Bill and the whole plethora of problems that arise in the contentious area of family law. Nevertheless, the Government have turned their back on enacting legislation to provide family courts and, considering the statement made by the Minister in the Seanad in 1987 that he would like to see family courts, it was expected that some time early this year the Government might have implemented the recommendations of the Oireachtas Joint Committee on Marriage Breakdown to provide such courts. We will go some of the way in that in the Judicial Separation and Family Law Reform Bill but we will not provide a unified system of family courts as a separate and totally different court system from that currently operating because that cannot be done in a Private Members' Bill. It can only be done by the Government because the establishment of such a court would constitute a charge on the Exchequer.
I invite the Minister for Health, when responding, to indicate to the House what steps he has taken since he spoke in the Seanad in 1987 expressing a preference for a family court to deal with all these matters. It is noteworthy that the Minister made no reference in his speech today to the desirability or need for family courts. Perhaps he will confirm that it is now the case, as has already been suggested by the Minister for Justice, that the Government have no interest in providing family courts and no commitment to them. Will he confirm if the Government intend to do anything about providing family courts?
There is another major disappointment in the Minister's approach today. When the Fine Gael Private Members' Bill was introduced by me, the Minister indicated that not only would he produce his own Bill to deal with the issue but that he would introduce legislation to implement widescale reform in the area of adoption law. Indeed, in reply to a Dáil Question on 30 April 1987 the Minister stated that in the coming months he intended to study the report of the Review Committee on Adoption Services with a view to introducing reforming legislation. It is now almost 14 months since the Minister gave that reply in the House. It is also noteworthy that in his speech today he made no reference to the wide variety of reforms which the Review Committee on Adoption Services suggested were necessary. There is no indication from the Minister as to whether he has completed his study of the report. I presume he could not still be studying it because it is not a particularly complex document and it has been around since 1984.
Will the Minister indicate whether he intends to introduce further legislation in the area of adoption, some of the comprehensive reforms to our adoption laws and practices and to implement all the reforms recommended in the report of the Review Committee on Adoption Services, or even a portion of these reforms? If he intends to implement some and not others, will he indicate which reforms he will provide for and when the House is likely to see comprehensive legislation dealing with the whole area of adoption.
The Minister would not have introduced this Bill if Fine Gael had not brought in a Private Members' Bill this time last year. He has not given any positive indication that he intends to implement some of the many necessary reforms to modernise our adoption laws and if this continues to be the case, Fine Gael will bring before the House a further Private Members' Bill dealing with other aspects of adoption law that need to be reformed. If necessary, we will force the Minister to take action on badly needed reforms. They have been documented for a long time. They did not originate with the Review Committee on Adoption Services. Many of them have been referred to by groups working in the area of adoption before that committee produced its report in 1984. I could list some of them as an indicator of the reforms necessary to bring our adoption laws and practices up to date to confront the many problems that the law currently ignores.
For a long time it has been said that there is a need to enact a statutory provision so that there would be a code of uniform procedures and practices applied by all adoption societies within the State. We do not have a statutory provision which allows, for example, the Adoption Board to ensure that minimum codes of practices and procedures are applied by the different adoption societies we have. The differences of approach of the adoption societies in the area of adoption has been commented on by a variety of groups over the years. Some societies are better than others, some are more efficient than others, some have more qualified personnel than others and some adopt different practices that bear no relationship to the law. For example, there is no provision in our adoption Acts which sets down any statutory maximum age for adoption though as a matter of practice, the adoption societies for some years would not allow a couple to adopt where both the husband and wife had exceeded the age of 40.
We now have a shortage of children being made available for adoption. More mothers who have children outside marriage are keeping them and caring for them. At one time we had in the region of 1,200 to 1,400 adoption orders made each year but that figure has dropped to between 600 and 800 adoption orders per year. As a result a number of adoption societies have closed their doors on adopters. They will not entertain any new applicants on their list because they have many people waiting for adoption placements and insufficient children to place with them.
Taken with that we now have adoption societies, and health boards, unilaterally, and without legislative force, imposing age limits on couples who can adopt which are a good deal lower than the 40 years that previously applied. There are some adoption societies who will not place a child with a couple for adoption where either the husband or the wife is over 33 years of age. The age limit has gone that low. Some are applying an age limit of 35 years. Those limits do not have any statutory force, and it is in such areas that we should have minimum codes of practice and procedure, ensuring a uniformity of approach. Couples are being deprived of access to adoptions under Irish laws because of unilateral decisions taken as a policy matter by adoption societies as to the age of couples with whom children will be placed, due to the shortage of children available.
There is also a need for a more integrated approach between fosterage and adoption. Currently, health boards largely deal in the area of fosterage and do some adoption work. Some do a little adoption work while others do a lot but then we have denominationally based adoption societies who largely and solely work in the area of adoption. There is a need for the breaking down of the barriers between adoption and fosterage into a more integrated approach. It is quite illogical at this stage that we have one agency dealing with adoption and a totally separate agency dealing with fosterage because there are overlapping considerations in those areas. Obviously, short term fosterage is quite distinct from adoption.
