Before we commence I would like to ask permission of the House to share my time with Deputy Dan Wallace.
Private Members' Business. - Recognition of Foreign Adoptions Bill, 1990: Second Stage (Resumed).
Is that satisfactory? Agreed.
Yesterday evening I was in the throes of accusing the Members of the Opposition with regard to the need for this legislation but I will go beyond that tonight. Over the last number of weeks I have read great criticism of the professions involved in adoption. I am speaking mainly of social workers and many of the adoption societies who are reluctant to participate in home study assessments. What I have gathered from those people is not that they are against foreign adoptions per se but they are anxious that the high standards which we have reached in relation to adoption would be maintained and that particular safeguards in relation to inter-country adoption would be built into any legislation that would come before the House.
The work of adoption agencies in this country has been commendable. I hope, as I am sure does everyone in the House, that in any legislation in relation to adoption those high standards will be upheld. I hope we can reach some harmonisation of our laws with the laws of any country in which we wish to adopt children. I have learned from many of my legal colleagues that this harmonisation will be very difficult to achieve. It certainly will not be an easy task for the committee who will be dealing with this matter, but I am sure they will have all the necessary back-up to ensure that the best possible legislation is put forward, that the interests of all involved are protected and that in some way harmonisation will be achieved.
The move by the Romanian Government recently to establish a centralised committee for adoptions is most welcome. It will allay the fears of many people who feel that immoral or wrong practices take place in adopting children, for example, as Deputy Shatter outlined, buying children. That is a totally immoral act which I am sure none of us would condone. I hope we will be able to build into the legislation some safeguard to prevent that. Liaison with Romania will be very important and I hope we will be able to reach some compromise with the Romanian authorities when this Bill is passed.
I welcome the Minister's initiative in asking health boards to co-operate and provide services for home study assessments. I have met many people who are distressed because there is no lifeline for them to seek advice on home assessment studies, on how to go about adopting, what the laws are in Romania and how to go to Romania and find a child that would be suitable for adoption. Those fears are paramount among couples who have tried to adopt children in Romania. I know many of these people have been very successful but from stories I have heard from people returning from Romania that is due to the fact that they had a strong heart and a great will to continue. I hope that greater liaison with and advice from health boards will help people who wish to adopt foreign children.
Legislation to facilitate foreign adoptions must be framed having regard to a number of aspects. First, the rights of the child must be protected because they cannot speak for themselves. We must look beyond five or ten years and consider what will happen when the children reach 18 years of age and want to find out about their natural parents, why they have been brought from Romania and to know about their culture. This information should be provided to them, and I hope we will consider that aspect. We also have to consider the prospective adopters and make sure they are the best people to adopt children.
A very difficult process has to be gone through when adopting children in this country. There is an initial assessment to see whether or not adoptive parents are suitable, then the placement of the child and, if the child is not fully adopted for a certain period of time, there is a followup study and supervision. People will also have to go through that process when adopting children in foreign countries. I can see a slight difficulty in the assessment of the natural parents and also perhaps the adoptive parents, but I am sure it is not insurmountable. We also have to look at the country of origin and consider that perhaps in a few years time life in Romania will become more realistic and progressive. Will those people feel then that those adoptions are an insult to their country? All those matters must be considered. We also have to look at our own country and make sure that we will be able to facilitate the additional children who come here. They should have inheritance rights and access to education and all the services to which children born in this country have access. Several anomalies have arisen here because people have brought Romanian babies to Ireland. We have not facilitated adoption by single parents here and we will have to examine that matter, not only in the context of foreign adoptions but, indeed, within the context of our adoption laws.
From what I can ascertain, there are couples who have brought in Romanian children who are over the normal age for adopting here. That problem will also have to be dealt with. Furthermore, something else which might prove difficult — but I am sure the legal brains in the House will be able to get over the problem — is the limited laws under the Adoption Act, 1988, where children born within marriage are not allowed to be adopted. Most children who have come here from Romania have mothers and fathers. I hope all these anomalies will be teased out on Committee Stage so that, in ten years' time, there will not be a plethora of court cases because the legislation was not tightened. I hope the legislation will be watertight and that the rights of everybody involved will be fully protected. I would be especially concerned that Romanian parents are fully aware of what adoption means here and that they will be giving up their rights to their natural child. They must be fully aware of the situation in that regard and I hope there will not be problems in future which would involve a child being removed from a normal family. I do not want to see adoptive parents being absolutely destroyed because natural parents think they should have access to — what they see — as their own child.
I am hopeful that the good work of the proposed committee will allay the fears of Members and ensure that the best possible legislation is brought forward. I very much welcome the introduction of the Bill by Deputy Shatter. I remember, when we were going through the Child Care Bill, I asked him why he did not bring in a Private Members' Bill. Before I left the Chamber I was given a copy of it; he is a most progressive Deputy and always has the best interests at heart of the people whom he represents.
I am pleased that all parties are very supportive of this legislation. It shows that it is not just a political football but that people are aware of the situation and would like to provide the best possible protection. Fundamentally, we must ensure that we do not create second class citizens by applying different standards for foreign adoptions as opposed to adoptions in this country. I hope we will make progress as quickly as possible to facilitate those whose children are in a kind of limbo and that it will be easier in future for those who found it difficult to adopt children.
I warmly welcome this Bill which has been brought before the House by Deputy Shatter. While there are detailed, technical legal matters which may necessitate amendments to the Bill, I am pleased that the Government have agreed not to oppose it on Second Stage.
I have had a number of meetings with Cork people who adopted Romanian babies and there is no doubt they feel they are caught in a very difficult situation. They adopted their babies in Romania and find that they do not have the constitutional protection which other children have. The parents have pointed out that the children do not have succession rights, and cannot be put on an Irish passport; their status within the family until is unclear. This Bill aims to give official recognition to foreign adoption orders and requires health boards to assist Irish persons seeking to adopt children in foreign countries.
Adoption consists of the establishment of a legal relationship between a parent and child where this relationship does not necessarily depend on natural ties. Over the centuries a complex range of adoption laws have existed in different countries. The policy of adoption has sometimes been directed towards benefiting the adoptive parents as in Greece and Rome where family ties were strengthened and the name and property of ancient and noble houses were preserved from extinction. Adoption was to help the parents continue the family name and maintain their property. This policy seems to exist at present in some African and Asian countries but in Ireland, in other European countries and in North America, the policy of adoption is to promote the welfare of the child.
There are, however, significant differences in a number of countries in the legal effects of adoption. In many countries, including Ireland, it puts an end to the legal relationship between the natural parent and the child who is adopted. In others it does not; in some countries adoption is by private agreement and in others it must be formally approved by a public agency.
Adoption only became a part of our laws with the passing of the Adoption Act, 1952. An adoption order may be made where the child resides in the State and where the proposed adoptive parents ordinarily reside in the State. There is no legislation in Ireland setting out circumstances in which a foreign adoption order is recognised here. The absence of such legislation has become a major and critical issue for many people here. It is crucial that we in Dáil Éireann fulfil our role as legislators by introducing suitable legislation to tackle this very important and sensitive social issue.
Deputy Shatter has responded very quickly to a problem which had become a social issue here following the dramatic changes in eastern Europe over one year ago. The plight of the children left in deplorable conditions in orphanages in Romania was brought home very clearly to us by television pictures beamed into our homes. Many Irish families responded very quickly and, to date, there are about 150 Romanian children in Ireland who were adopted in Romania in 1990. Their numbers are being added to by between two and four children each week.
Adoption is an extremely complex area of law and is closely tied to the constitutional protection of the family. There was particular difficulty regarding adoption which had to be dealt with by amending the Constitution. The Adoption Act, 1988 was referred by the President to the Supreme Court to test if it was in keeping with the Constitution.
Under Irish law only certain categories of persons can adopt, namely married couples living together and where the person seeking to adopt is a sole applicant. There must be a natural parent, a relative or widow or, in certain circumstances, a widower. Our law is based on the principle that the welfare of the child is the main consideration. It is considered that a child should be adopted into a family unit with a father and a mother. For that reason, there are limitations on adoption by single applicants. Adoption by unmarried couples is prohibited by Article 6.1 of the European Convention on the Adoption of Children, which Ireland has ratified.
Some of the children available for adoption in Romania were born within marriage; in Ireland such children can only be adopted where the High Court is satisfied that they have failed in their constitutional duty to care for their children. In this connection the Supreme Court have emphasised that factors such as poverty would not amount to a failure within the meaning of the Act. Again, our standards differ from those applied in Romania.
The question of whether we should recognise foreign adoption decrees was considered by the Law Reform Commission in their report issued in May 1989. However in that report they did not deal with or provide solutions for the problems which were being experienced by those who had adopted children from Romania. The Government and the Attorney General have been giving serious consideration to the need to introduce comprehensive legislation which will deal adequately with the problems being faced by those who have adopted children from Romania. While Deputy Shatter's Bill is very welcome we need to consider in the legislation the eligibility of the child for adoption, the consent of the natural parents and the eligibility and suitability of the adoptive parents. These are matters which will be considered by the special all-party committee of the Dáil which is to be set up to deal with this Bill. I look forward to a successful conclusion to their deliberations and to the enactment of this Bill into law.
I wish to pay tribute to the many families who have taken it upon themselves to adopt children from Romania. I have visited the homes of some of these families and there is no doubt that these adoptions have led to a transformation in their homes. There is much happiness with the fact that they have given a child a decent home having regard to the environment from which they have been taken. There is a responsibility on us to ensure, despite the constitutional and legal constraints, that every effort is made to regularise their position given the many other difficulties they will face in rearing those children. They are to be complimented and I have no doubt every support will be forthcoming from this side of the House in ensuring that the amending legislation will provide for their needs.
With the permission of the House, I wish to share my time with Deputy Cotter.
Is that satisfactory? Agreed.
I wish to congratulate my colleague, Deputy Shatter, for introducing this Bill which will recognise foreign adoptions. To him alone belongs our praise and respect for facing the problems relating to foreign adoptions and, more importantly, for taking a positive step to ensure that foreign adoptions are recognised by the State. I welcome the news that the Government in the past 24 hours have decided to put their pride in their pockets and support the Bill. I could never understand how any person could have contemplated blocking such an important and compassionate Bill. I am glad that Fine Gael have compelled the Government to act responsibly and with maturity on this very human issue.
The debate on which partner in Government convinced the other to make this responsible and welcome decision we on this side of the House gladly leave to you. However the fact remains that nobody, either within Fianna Fáil or the Progressive Democrats, did anything to solve the problem. Deputy Shatter with the support of the Fine Gael Party was the only person to take the initiative and seek a solution. But for his initiative I believe that the children concerned would have been allowed remain in a legal limbo and that the heartbreak and trauma for adoptive parents would have been allowed continue as there was no urgency on the part of the Government to do anything about foreign adoptions.
Foreign adoptions have become the reality in our society today and have succeeded in attracting much media attention due mainly to the recent tendency to adopt Romanian babies. The number of people making the journey to Romania to adopt babies is due primarily to the decreasing number of babies available for adoption here at home. Many Irish couples with no possibility of adopting here, and touched by the plight and deprivation of Romanian babies, have grasped this last opportunity to have a family of their own. We must remember that the procedure for such adoptions is not an easy or a simple one. Indeed, apart from the financial demands involved in traveling to Romania and being prepared to stay there for a number of weeks many procedures have to be carried out before their departure from Ireland. Sadly, there is a belief that no standards exist in relation to Romanian adoptions but this is not the case.
Every couple have to get a character reference from the Garda Síochána, financial statements from the bank, medical reports, employment information, a letter from the Department of Justice to allow the adopted child enter the country and a family study report. Having spoken to some adoptive parents I regret to say that they met with many difficulties. I can only conclude that it was their enormous personal commitment and determination to succeed that eventually allowed them to take the flight to Romania. The sacrifices made by many of the couples only added to the depth of their determination to have a family of their own. I expect, however, that with the number of children coming up for adoption in the State continuing to decrease, an increasing number of Irish parents will seek to adopt children abroad. We must and should help them in their endeavours and should not hinder or place obstacles in their way.
I welcome in particular section 12 of the Bill which will impose an obligation on health boards to co-operate in the carrying out of a family assessment for the purposes of a foreign adoption. This was a real problem area for many of the couples when they failed, sadly, to get the co-operation and support of social workers in carrying out a home study report. It is surely in our own interests that a genuine family study is carried out because our concern for a secure, healthy home is not confined just to children adopted in this country but to all children wherever they come from and wherever they are adopted. We must demand the same standards for all adopted children and ensure that every child will find themselves with suitable adoptive parents and in a secure and stable environment.
When the sad, heart-rending television pictures of the Romanian babies in overcrowded orphanages flashed across our screens, thankfully many people were touched and moved by such appalling human conditions and travelled to Romania to rescue babies from that hell. In south Tipperary alone 16 Romanian babies have found homes among us. I salute and admire the parents who opened their hearts and their homes to those children. This legislation then will ensure that they will be recognised as the legal children of their adoptive parents. Until Deputy Shatter took the initiative and introduced this Bill these adopted children who had been given a second chance to find happiness by caring Irish families would have been confined to a cruel legal limbo where their adoptive parents would not legally have been their parents in this country. Could we honestly watch these loving and caring couples face such a severe human heartbreak? Without the status of a legal adoption questions such as inheritance rights, passports, foreign travel and immigration could present legal nightmares for the children later on.
I have fully supported the campaign of the parents, and gladly support this Bill, to have the law recognise these adoptions. After all, compelled by a sense of Christian duty and love Irish families decided to rescue these children from a system which had been brutal to them, which had marginalised them and denied them love and proper care. Surely these adoptive parents cannot be blamed for acting according to their hearts and consciences while the innocent children certainly cannot be blamed for the legal no man's land in which they find themselves today. It is time that our legislation conferred on these babies the same legal rights that are conferred on every other Irish citizen so that we can truly say we cherish all the children of the nation equally.
I agree with the Minister when he says that there should not be uncertainty surrounding the status, under domestic law, of adoption decrees granted in other countries. However, I cannot concur with some of the reservations expressed about the legality and acceptability of some of the measures included in the Bill. The Minister, Deputy O'Hanlon, claims that the section dealing with the recognition of foreign adoptions is based solely on the nationality and residence of the child with the result that it may be unconstitutional. This is complete and utter nonsense. It would not, as the Minister claims, result in a complete open-ended system of recognition as the adoption would be based on the child being a citizen, a national, of the country in which the adoption order is being made and the adoption would have to fulfil the conditions laid down in that country.
The Minister also questioned the omission from the Bill of the eligibility of the child and the consent of the natural parents. However, the consent of the natural parents and the eligibility of the child for adoption would surely be the responsibility of the foreign country making the adoption order. Yes, I accept that we must ensure that we are satisfied with all the regulations in the foreign country in this regard, but this is how private international law rules work in all other areas of the law.
The Minister referred to Articles 41 and 42 of the Constitution which guarantee to protect the family and to respect the rights and duties of parents, the law here does not permit married parents to voluntarily surrender their children for adoption. However, the Law Reform Commission say these Articles do not prevent the recognition of foreign adoptions and are, indeed, of limited relevance. The Minister further pointed out that a flaw in the Bill is that it does not require the eligibility or suitability of the adoptive parents to be taken into consideration. This, I must say, is an extraordinary claim in the context of Deputy Shatter's Bill. On the contrary, the Bill tries to ensure that where a couple wish to go abroad for the purposes of adopting a baby, the health board will be involved in determining the suitability of the parents. At the moment they do not co-operate and, sad to say, in some cases they deliberately obstruct the carrying out of assessments. As I have pointed out, section 12 of the Bill deals with this matter.
We on this side of the House welcome constructive comments and opinions on this Bill and any amendments that will further improve the safeguarding of the rights and status of children adopted abroad. I hope sincerely that on Committee Stage some of the Minister's reservations will be withdrawn and that this Bill will be what it is intended to be, a recognition of foreign adoptions.
I believe the Bill fully and properly addresses the issues to which it relates. Nevertheless, as Deputy Shatter stated, appropriate amendments can be incorporated in the Bill on Committee Stage. However, we must all remember that this Bill is an important legal response to a major social need to protect the welfare of children and ensure that all children adopted by Irish couples are equally treated under the law.
Once again I congratulate my colleague, Deputy Shatter, on the introduction of this Bill. I welcome too the positive and sympathetic approach of the Government on this issue in supporting Second Stage, but a united effort must now be made to ensure a speedy passage of the Bill, thus ensuring an end to the anxiety and stress of the parents and then ensuring legal status for those foreign adoptions.
I hope, Sir, you were looking at the 6 o'clock news this evening. It gave me great pleasure to witness the joy and happiness of parents and children in a village very near to both of us, Kilsheelan, in my constituency; their joy and happiness were due entirely to the initiative taken by Deputy Shatter and the Fine Gael Party.
I begin by paying a compliment to my colleague, Deputy Shatter for bringing this very important legislation before the House. In doing so, he has displayed considerable ingenuity and made it possible for the House to provide a solution to problems which were in urgent need of resolution. When moving Second Stage last night Deputy Shatter provided indepth background information, particularly with regard to the Romanian situation. A couple who are close friends of mine adopted in Romania, and I can clarify that Deputy Shatter's account of the circumstances in the orphanages is entirely accurate.
I want to add a little anecdote of my own. My friends had with them a few packets of "Smarties". They adopted two children, one almost three years of age. They discovered that the little three-year-old could not chew a "Smartie". He had never chewed anything in the three years of his less than satisfactory existence. His diet was a kind of watery porridge — that is how it was described to me; I suppose you would call it gruel or something of that nature. He had spent most of his time lying, sitting or standing in a steel-framed cot. Not alone was he starved of good food and proper nourishment, but he was emotionally starved. Until recently he never knew what it was to be hugged or cuddled. I had the pleasure of walking the streets of Castleblayney with that little fellow about three weeks ago. He is now a very happy, secure little fellow, thriving on a good diet and on the love and affection of a very dedicated adoptive mother and father. Had he not been adopted one shudders to think how his life would have evolved. Now he is living in a happy, secure home, it is our duty to offer him full protection under the Constitution. On his behalf — he is not here to say "thanks" himself — I want to say to Deputy Shatter and to the Minister, "thank you for initiating legislation to bring this about.
The United Nations Convention on the Rights of the Child was signed on behalf of the people of this country by the Taoiseach in September 1990. However, the convention has not been ratified. Its ratification requires legislation to give effect to the protection of the rights of children. The Child Care Bill which was initiated in 1988 and is now in the Seanad is an example of the type of legislation which needs to be enacted. The Bill we are now dealing with will enact legislation envisaged by Article 21 of the UN Convention.
I spent some time today examining the Minister's various objections to different parts of the Bill and I found considerable misunderstanding in relation to what the Bill proposes. There is a grave danger that confusion will arise — it has arisen already — between our own legislation for home based adoptions and this Bill which provides for the recognition of foreign adoptions. For example, we cannot supervise adoptions which are carried out in foreign countries. It would be impossible and undesirable that we should do so. What we must do in every case is ensure that adoption procedures in foreign countries are followed to the letter of the law. For example, we have to ensure that the procedures which exist in Romania are followed exactly and precisely and this Bill takes all that into account.
I want to refer to the Minister's speech to reveal to the House some of the difficulties that have emerged because of the confusion that has arisen between our own legislation for home adoptions and what is proposed in this Bill. The Minister said: "However, in fairness to people who have adopted in Romania recently, it has to be emphasised that recognition based on domicile or habitual residence would be of no benefit to them or to other people who travelled to a foreign country for the sole purpose of adopting a child." That is completely and totally unfounded. This Bill deals comprehensively with that, and I quote from section 4 which deals with recognition of adoption orders based on nationality and residence of the adopted child:
(1) An adoption order made by the lawfully designated authority of the country of which the person adopted was at the time of the making of the adoption order—
(a) a national, and
(b) ordinarily resident,
shall be recognised in the State.
All we are doing is recognising foreign adoptions provided they are carried out under the law of the country of adoption. Section 4 deals completely adequately with that. The confusion runs right through the Minister's speech. I will give a few more examples and quote the Minister again:
Deputy Shatter's proposal for dealing with this kind of foreign adoption is to provide for their recognition based solely on the nationality and residence of the child.
This time he referred to Irish couples resident here who were carrying out an adoption in Romania or in some other foreign country. Again we are confusing home law with what is provided for in this Bill: to be adopted a child must be a national and a resident of the particular country and the adoptions carried out must conform to the law of that country. There is no difficulty about that. The Minister went on to say:
Under the Deputy's proposals the adoption of a child born within marriage would be entitled to recognition. It is not clear whether this is constitutionally permissible.
There is a very clear case there of absolute confusion between our existing law and the law that will be enacted under the Bill before us. What is envisaged in what the Minister says there is that there may be a clash between the regulations which we have — which would prevent adoption of a child born within marriage — and a case like that which would happen, for example, in Romania. Of course, if that particular circumstance is allowed in Romanian law all we have to do is ensure that the adoption, when it was taking place, was in fact carried out to the letter of that law. There is no difficulty whatsoever with that. Then the Minister went on to say:
...the law here does not permit married parents to voluntarily surrender their children for adoption.
I have to repeat, that does not matter; it is the law of the foreign country that matters. The Minister then had this to say:
The Bill contains no reference whatsoever to the consent of the natural parents.
I must repeat there is no need whatsoever for the Bill to refer to that; it is something which does not arise. It is a matter for the law of the particular country where the adoption is taking place. The Minister goes on to use that sentence to justify the creation by him of a whole lot of problems he sees with the Bill. For example, he has this to say:
A further flaw in the Bill is that it does not require the elegibility of suitability of the adoptive parents to be taken into consideration.
Again we have confusion. We do not have to be concerned with that; it is the foreign country that determines the suitability of the parents. Indeed section 12 requires that health boards, when asked to do so, must co-operate in carrying out assessments of parents. If the Minister is extremely worried about that part of the Bill would it not be possible for him to table an amendment to the effect that parents who wish to adopt abroad must have their assessments carried out through the relevant health board when we would have some control over the suitability of parents? Again there are no grounds whatsoever for that objection. The Minister then said:
The Bill would also entitle a single person who adopts abroad to have the adoption recognised here...
That is the same old conundrum, the confusion between the two sets of circumstances. Anyhow at present we do allow that: in certain circumstances, single people can adopt here in the case of relatives and so on. We must bear in mind throughout our consideration of this Bill that we are recognising foreign adoptions and are not so much concerned about our law in this respect as we are about the law of the country in which the adoption is taking place. For example, if we have an objection to single persons adopting we must ask ourselves: what would we achieve by not recognising such an adoption? I might also quote these remarks of the Minister:
I would also point out that the provisions of the Bill are not restricted to Irish citizens or even to people who are resident here. Thus, an adoption order granted in, say, Brazil to an English couple who are domiciled in England would be entitled to recognition here even though Brazilian adoptions are not recognised in England.
The Minister goes on to express deep concern that this country could be used as a sort of back door for foreign parents who might want to circumvent the adoption procedures in their home countries. In that type of case — should it arise — all we are concerned about is that Brazilian law would have to be fully and completely satisfied. If Brazilian law was fully and completely satisfied, then we would recognise that adoption if the family unit came to reside here. Of course, if Brazilian law was not followed properly, then obviously we would not recognise it. For example, if the parents were found to have purchased the child, then surely we would not recognise an adoption in such circumstances?
At this point I might point out that we recognise foreign divorces if granted by a country where either the husband or wife is domiciled. Therefore there is a precedent there. Then the Minister had this to say:
However, there is one essential condition absent, that is whether the adoption was made with the consent of the natural parents or whether their consent was dispensed with by a competent foreign authority on appropriate grounds.
The Minister again expressed grave concern about that aspect. If one looks at it carefully, again one finds that it is not our concern whatsoever; we do not have to be worried about whether a parent gives consent or not. I repeat ad nauseam— because this is central to the whole business — that all we are concerned with is that the law applicable in the particular foreign country is followed and obeyed to the very last letter; then that worry vanishes into thin air. The Minister then had this to say:
The Bill provides for the withholding of recognition where recognition would be contrary to public policy. This means that the recognition of any adoption under any of the procedures contained in the Bill could be set aside at any time by the courts.
One would have to say that this concern of the Minister would apply to every adoption, whether it be an adoption by an Irish couple in Ireland or by a couple in any country. At some stage a mother might decide to make certain allegations and, in that event, the courts would have to decide on the basis of the evidence they can obtain relating to the method of adoption in the country where it was carried out.
In this country at this time if an issue with regard to adoption arises, courts, if they are asked to do so, deal with it. In the same way if an issue arises with regard to foreign adoption the courts would have the power to deal with that and they would be able to make a decision based on the evidence they would collect and on the way the adoption was carried out in the country where the adoption happened. I have demonstrated to the House that there is a grave danger that we will have an enormous amount of confusion between adoptions carried out in Ireland under Irish law and adoptions carried out in foreign countries under the law pertaining in those countries, which is dealt with comprehensively under the terms of this Bill. All I want to do at this stage is commend the legislation to the House.
There is not a great need for a huge number of amendments. However, seeing that we have agreement with the Minister I am sure that any imperfections will be dealt with in the course of the discussions that will take place. We on this side of the House would point out to the Minister that he must look at this legislation apart completely from Irish law governing adoptions here and as brand new legislation standing admirably on its own.
The debate on this issue so far has clearly demonstrated that we are in a very complex area. Many complex issues need to be teased out and that is why I particularly welcome the fact that this legislation will be dealt with through the committee system of this House. The contributions I have heard so far have been well researched and well thought out and have not been given to extreme statements of any kind. The contributions have been genuine and are obviously influenced by the necessity to produce legislation which, when it becomes law, will do the job it is intended to do by all sides of the House. It should ensure, with reference to foreign adoptions that the rights of the child and the adopting parent or parents will be fully safeguarded. That is one of the crucial elements essential to this legislation if it is to fulfil its role.
Like many others in this House, I have had an opportunity to meet adopting parents, particularly parents who are either going to or coming from Romania. They were able to recount the difficulties and trials of such a journey. They were going into a society which they did not understand having regard to social background, political ideology and so on. Many of the parents who spoke to me told me of the great difficulties they experienced on entering Romania and beginning the adoption process there. It is a very trying time for prospective adopters apart from the situation at home. When one considers parents involved in the foreign adoption process one can understand the difficulties and complexities and the sometimes harrowing times of such parents.
If we are to ensure that legislation of this kind is to benefit such parents, we must pursue the debate in a calm and rational manner and on Committee Stage we should tease out the details and bring the best available minds to bear on the legislation to ensure ultimately that we put on the Statute Book legislation which will protect the rights of adopting parents and adopted children. It is for that reason that I welcome the Government's decision not to oppose a Second Reading of Deputy Shatter's Bill. The decision reflects the Government's sensitivity to the difficulties being encountered by Irish people who have adopted children abroad and their commitment to finding a workable and lasting solution to those problems.
There is agreement on all sides of the House as to the desirability of setting out in legislation the circumstances in which foreign adoptions should be entitled to recognition in the State.
A number of speakers have referred to the fact that in recent years there has been a steady decline in the number of children available for adoption within the State. There are a number of reasons for this. There is now a generally more sympathetic attitude to single mothers which has encouraged more of them to keep their children. The availability of improved social welfare benefits and other support services has also helped many single parents to rear their children rather than place them for adoption. These developments are to be welcomed. No one will deny that the best place for a child to grow up is within the love and security of its natural family, wherever possible.
The fact that more single mothers are now keeping their children has had a big impact on our adoption services. It has resulted in an increasing number of childless couples wishing to have a family through adoption looking abroad in their quest for a child. Over the years a small but steady number of Irish couples have adopted children from Third World countries. Since early last year the situation has altered dramatically on account of the appalling situation that came to light in Romania following the revolution there. This issue has been touched on by a number of contributors to this debate. We were all deeply saddened and shocked by the information that emerged from Romania in the light of recent political developments there.
The upsurge in interest in the adoption of foreign children is by no means unique to Ireland. This has also been the trend in the other developed countries. Indeed, in some countries the stage has been reached where inter-country adoptions now outnumber national adoptions annually. This is the background against which this Bill must be viewed.
While the Government are in agreement with the overall objective of this Bill, they have, as my colleague the Minister for Health outlined last night, serious reservations about the advisability of some of the provisions contained in it.
The first point I would like to make in relation to the Bill is that it is not confined to Romanian adoptions. Rather it seeks to provide a legal framework for the recognition of foreign adoptions effected anywhere in the world. It is important that this be made clear. Some of the reports in the media may have given the impression that the Bill deals exclusively with Romanian adoptions. This is not the case and in examining the Bill it has to be borne in mind that its provisions will apply to adoptions in countries throughout the world, some of which have very reputable systems of adoption whereas in other countries, unfortunately, the buying and selling of children is not unknown. We have to ensure that our legislation does not facilitate trafficking and exploitation of vulnerable children.
The second point I would make is that if the recognition of a foreign adoption means granting it the same status as an Irish adoption, it seems to me a prerequisite that the nature and effect of the foreign adoption must be the same as that of an adoption under Irish law. In other words, the legal consequences of the foreign adoption must involve the complete termination of all the natural parents' rights and duties with respect to the child and the transfer of those rights and duties on a permanent basis to the adoptive parents.
The Bill fails to address this fundamental issue. It seeks to provide a number of mechanisms by which an adoption order made in a foreign country would be entitled to recognition in the State. However, the term "adoption order" is not defined in the Bill. This is a grave omission. It totally ignores the fact that some countries operate systems of adoption which amount to no more than long term foster care where the child retains its original name and its succession rights to its natural family. Under Deputy Shatter's scheme, those arrangements would be accorded a status here beyond that which they enjoy in the foreign country where they took place. The question of what constitutes an adoption order for the purposes of the Bill is one of the matters that will need to be examined at the Special Committee.
A further matter which must be considered is the competence of the foreign authority to make an adoption order. The Law Reform Commission recommended that recognition should be confined to adoptions effected under legislative provisions only. Again, the Bill gives no guidance on this important matter and it is one that will have to be addressed by the Special Committee.
My colleague, the Minister for Health, has already drawn attention to the absence of any reference in the Bill to the consent of the natural parents. I must say that I was very surprised by Deputy Ferris's apparent rejection of the importance of parental consent in the adoption process.
Deputy Cotter teased out this matter somewhat. I cannot understand how one can in the adopting process dismiss the essential element of consent by the natural parents. Since consent is essential to the validity of any adoption order, the absence of consent must have a bearing on whether a foreign adoption order is entitled to recognition. If we were to do otherwise, we could find ourselves facilitating the trafficking of children for adoption, for example, children who had been abducted from their parents or who had been arbitrarily taken from them and placed for adoption by a dictatorial regime.
As regards section 9 of the Bill, which would entitle the adoptive parents or the adopted person to apply to the High Court for a declaration that their foreign adoption is valid here, I think it is regrettable that there is no provision for the court to make a custody order where it refuses to recognise a foreign adoption order. The court has this power when dealing with other applications relating to children and I consider that it would be desirable to extend it to proceedings under this Bill.
It is essential that the defects in the Bill be rectified when it goes before the Special Committee of the House. I cannot over emphasise the heavy responsibility that rests on all of us as legislators to ensure that we produce a piece of legislation that will stand up in law. In an area as delicate as adoption, which involves the termination of legal relationships and the creation of new ones, it is vitally important that there should be no uncertainty about the validity of the legislation.
Having said that, I share the Minister for Health's confidence that the Special Committee will effect the necessary improvements in the Bill. Many of the points covered in the debate will have to be teased out further. That is the purpose of the Special Committee. All contributions have been made in the interest of doing what is right and proper and what is needed, particularly by the adopting parents.
I should like to share the remainder of my time with my colleague, Deputy O'Donoghue.
There is a precedent for such a request. Does the House agree? Agreed.
I thank the Minister for allowing me to share his time. It is regrettable that the political rumour machine has become entwined in the passage of this extremely important legislation. The latest suggestion is that only for the Progressive Democrats the Bill would never have been referred to a Special Committee. This is akin to the argument made during the passage of the Judicial Separation Bill when it was also argued that the Bill would never have seen the light of day if Fianna Fáil had not been in a minority position. I would ask the critics to take note that Fianna Fáil were in Government on the only two occasions in the past 30 years when a Private Members' Bill was accepted. Some of the credit goes without question to Deputy Shatter, who drafted both Bills.
All the credit.
Credit also goes to the Government. Most of the socially enlightened legislation passed in this State since its foundation was passed when Fianna Fáil were in Government. We need no push from the extreme Right and we need no nudge from the extreme Left to do what is best for the people.
All they need is a nudge from the Progressive Democrats.
In any event, the basic principles set forth in Deputy Shatter's Bill will always be acceptable to Fianna Fáil. The reason the Bill must be deeply considered is that this is a very complicated and difficult area. This is best illustrated by giving examples and I mean in no way to demean Deputy Shatter's drafting when I mention some of the serious difficulties with which the Special Committee will be faced.
Under Deputy Shatter's Bill a child adopted in a foreign country would have his or her adoption recognised solely on the basis of the nationality and residence of the child. It would have no regard to the consent of the natural parents, for example, and would allow a regime in a foreign country to give away its citizens — children — irrespective of whether the parents of the child consented. Neither our Supreme Court nor our civilisation could countenance that. Under Deputy Shatter's Bill no regard could be had to the suitability of the adoptive parents. Literally anybody would be entitled to take a child from a foreign country into their care. Nobody could seriously suggest that this would be acceptable. It is acceptable in this country at present but within very narrow constraints. Accordingly a child born within marriage could be given up for adoption if the parents were impoverished and, from my reading of the Bill, this could be done in certain circumstances without their consent. I do not believe that scenario can be countenanced.
I could give other examples if time allowed but there is one common thread running through each of the examples given: it is that a different set of standards would apply in the case of foreign adoptions from those pertaining in our own adoption law. This has serious constitutional implications and illustrates the difficulty and perplexity of the task facing us. I believe that the Supreme Court would unquestionably return a child to its natural parents, regardless of his or her origins, if it was established that they had not consented in the first place to the adoption. Accordingly the foundation stone upon which we must build this Bill is the recognition and acceptance of the fundamental principle that except in the most exceptional circumstances the natural parents must consent to the adoption. To do otherwise would be to fly in the face not just of our Constitution but of civilisation itself.
Deputy Shatter does attempt to build in safeguards but since for the most part each section is mutually exclusive of the others, even the safeguards do not apply in all situations. Where the safeguards do apply, he suggests that the Minister designate the country whose adoptions would be recognised and that recognition should not be forthcoming where it would be contrary to public policy.
He also sets out the criteria to which the Minister must have regard in deciding whether to recognise a foreign adoption. However, in all cases not covered by the safeguards he ignores the requirement that the natural parents must consent. Presumably, therefore — and I do not think it would be Deputy Shatter's intention, not am I saying that — under the terms of the Bill as at present constituted, it would not be contrary to public policy in certain situations to recognise foreign adoptions where the natural parents did not consent.
To turn specifically now to the Romanian babies, there are specific issues to which the Special Committee will have to have due regard. The first is whether the Legislature will decide to confer recognition on adoptions effected in Romania by Irish people who are ineligible to adopt here. For example, a number of single women have adopted children in Romania. Adoption by unmarried couples is prohibited by Article 6.1 of the European Convention on the Adoption of Children which Ireland has ratified. So we will have a difficulty not just in recognising the adoption of a child by a single person but we will also have a difficulty in getting around the ratification of the convention itself. I believe that we should do that if at all possible but it will be extremely difficult and we had better realise that now.
The second scenario to which I would like to refer in relation to the Romanian situation is whether the Legislature will decide that it is proper to confer recognition on adoption decrees made in a country which does not require the adopting parents to have lived there for any length of time. The law here requires adopting parents to be ordinarily resident in the State for at least 12 months. Accordingly, the law would have to be amended in this regard also.
The next question I would like to raise is whether there are constitutional objections to the recognition of foreign adoption orders relating to children who are ineligible for adoption under Irish law. It is really open to question in the final analysis whether our courts will accept that the low standards of living and general backwardness prevailing in Romania or elsewhere are of themselves sufficient grounds to justify the adoption of foreign children here under the 1988 Act. This grave human problem must be addressed and where defects appear in the Bill, as I am sure Deputy Shatter will accept they do, these will, of necessity, have to be closed off.
It will be crucial to ensure that the standards applying to foreign adoptions will be the same as those which apply in Ireland. We must insist when giving detailed expression to the principles enunciated in the Bill that all human beings within the terms of the Bill are treated equally irrespective of nationality, creed, colour or class. Those wonderful people who went to Romania and brought home children deserve no less than that this Bill be a testament to their courage, their valour, their love and their humanity.
I believe that what Deputy Shatter has presented is commendable, as was the Judicial Separation Bill and, accordingly, I commend the Bill. I do foresee a situation where will run into extremely complex legal difficulties and these difficulties will be compounded by the ratification of the European Convention to which I have referred and the UN Convention which was recently signed by the Taoiseach. Added to these problems will be the difficulty of reconciling the legislation as presented and as agreed in the final analysis with the conventions concerned and with the Constitution itself.
In the final analysis, it appears from a cursory reading of this Bill — and I will of course accept that I, no more than anybody else, am not omnipotent — that we are facing grave difficulties in passing the legislation into law. I would go so far as to say that it is my view at present that the passage of legislation for the recognition of foreign adoptions, because the laws in other countries are very often not broadly similar to our own, will ultimately mean that the Constitution itself will have to be amended. If the Constitution itself has to be amended to recognise foreign adoptions, and I believe this is certainly on the cards, then and in that event I certainly would not stand in the way of amending the Constitution. There are numerous imponderables in drafting the necessary legislation and, at the very least, it is quite obvious that any legislation in this area which is so deeply complex will, in all probability and indeed justice, have to be referred by the President to the Supreme Court for consideration.
I would again like to commend Deputy Shatter for presenting the Bill, but I think it is now apparent to everybody that the reason the Government seemed to some to be procrastinating was the enormous difficulties which were envisaged at all times by the Attorney General and the Government themselves in drafting legislation in this extremely difficult and complicated area. It would have been very easy for the Government to have drafted the heads of a Bill having already seen that Deputy Shatter was to present a Bill, but the Government did not do that for the simple reason that they wanted to present to the House a comprehensive Bill detailing, examining and questioning the enormous complexities involved. This issue must, under no circumstances, become a political football. No political party should seek to claim that it was the reason the Bill was introduced to the House in the first instance; and no political party, by innuendo, rumour or otherwise should suggest that just because it had a minority role in the Government, the Bill would be referred to a Special Committee.
In my humble opinion the Bill as presented to the House by Deputy Shatter requires radical amendment before it can be tested in the Supreme Court. It will have to be tested here, and following that there is every chance that we will require a constitutional amendment in order to recognise foreign adoptions. In all justice and fairness to the wonderful people I mentioned who went to Romania, we should do everything in our power to bring this legislation onto the Statute Book.
I believe as well that it is absolutely essential that we have a law relating to foreign adoptions. It is equally clear that nobody has or nobody could have a monopoly of knowledge in this extremely difficult area. It has to be recognised as well that what we are faced with is to a large extent a legal minefield which has to be walked around extremely carefully. I sincerely hope that we will end up with the type of Bill which Deputy Shatter envisages and that it will be to the benefit of those who have brought home children from Romania and the generous Irish couples who choose in the future to adopt children from abroad.
It gives me great pleasure to welcome this Bill and to commend my constituency colleague, Deputy Shatter, for the work he has done on it. Before I commence my contribution I would like to refer to the remarks of the previous speaker. I have a great deal of time for this Deputy, having served on committees with him; I realise he has a great deal of expertise and knowledge of the law and that he has used this to very good effect. I regret to say, however, it seems to me that he has not read the Law Reform Commission report and I do not think the complexities he sees are reflected in the report.
May I suggest that the Fianna Fáil speakers study that report in detail? It will not be easy. It is very difficult for lay people to read these legal reports but it is a fundamental document and very important and useful for the work we have to do for the debate on this legislation. I do not for a minute suggest that anybody in the House believes that this legislation will be put through lightly or without great consideration. The Bill, no more than other social legislation, particularly legislation dealing with children or anything that verges on a constitutional matter, needs to be scrutinised carefully and given an indepth analysis and examination in this House so that we can be quite certain that the legislation is as perfect, as good and as long lasting as it possibly can be before it leaves this House and the other House. I feel reassured that this is what will happen to this legislation.
I would like to comment on what, in my opinion, is a political breakthrough. Once more we are discussing a Bill which has been introduced by Deputy Shatter in Private Members' Time, and which has been accepted by the Government. It must be a cause of relief and satisfaction to all in this House, particularly those of us who from time to time have felt frustrated at the antediluvian nature of this political structure and how it has tended to make many Members politically impotent because we have so little power. There are so many things that we want to do but cannot because of the archaic structures. This should not be the case. Everybody elected to this House has talents, skills and the motivation to improve the society he represents and the diffuse interests from their constituencies. It is wrong that so many Members are powerless to bring forward legislation. Ministers and Ministers of State only can initiate legislation, that is, 30 out of 166 Members, a very small minority. This is unworthy of any democratic institution.
Some value may have accrued over the years from the way in which Private Members' Bills were treated. The Bill was published and passed First Stage but it was then blocked or voted down and disappeared. I have always felt that this was most regrettable and a terrible waste in terms of research, drafting and speaking time. I felt that, whether I was in the Government or on the Opposition benches.
This Bill, now being agreed by the Government, is a sign of growing maturity. Of course, it must have been painful to those on the Government benches to have to come to grips with this initiative and to have seen the Fine Gael Party run away with an issue as important as this and on which there is such great public concern. I hope and trust this will lead to fundamental change and, perhaps, we will get used to this so that the voters will know that anyone alone, or with the support of his party, can initiate and bring a Bill through this House. I do not care whether this was the result of PD influence; it matters not a jot who decided in their wisdom to accept this Bill. In my opinion it was the right thing to do.
I suggest that we should formalise what we are doing to very good effect, and I am sure the public would appreciate it. I suggest that we adopt if not the system then a version of it, that exists in Westminster in which they have regular lotteries of Private Members' Bills, perhaps three or four times a year. Various time constraints govern the lottery but Members can put in their Bills and some are taken. Something similar would be a very progressive step and one for which we are ready. Very good and worthwhile legislation on issues which are important to people on this side of the House could be brought forward and developed. This would be very useful, and perhaps this suggestion could be considered.
Before I discuss the proposals in the Bill I must say that I am one of those people who have very mixed feelings about adoption in general. I support the consistent trend under which single mothers can retain and rear their own children. I have to say that this is my instinctive gut feeling, and it probably relates far more to the welfare of the mothers than to the welfare of the children. I am quite sure that anybody could show me that children who are adopted into good, loving, caring homes will in many instances have a better life and a better future than many of the babies who are kept by school girl mothers, young or poor mothers or mothers who are not ready for motherhood. I believe, however, that mothers who have given up their children in the past have paid a very high price; and many of these mothers have emotional scars in later life.
I recognise that this is a gut feeling and is probably not a good reason to argue against adoption because I feel that, in most instances, adoption is better for the welfare of the child. I have to admit to that feeling. I am fortunate that I have three children and never needed to try to adopt a child, but perhaps I would feel differently if I was one of a couple desperate to have a child. It was this desperation that sent so many Irish couples to Romania to adopt a child against enormous odds and they are not the first group of Irish people who have gone abroad to adopt because they could not adopt at home.
My first contact with people who sought to adopt abroad was with an Irish couple who were outside all the normal parameters even if there were children available for adoption here. They were of a mixed marriage and both were over 40 years of age, but they were a very loving pair and they very much wanted a child. They went to Brazil on two occasions. The first time they stayed there two months — they were living in Spain and having the child accepted legally was not an issue — but when they returned to collect the child the adoption became unstuck. The sad thing about this was that the so-called lawyer who arranged the adoption in Brazil was a crook and had been involved in very shady business placing children. The most recent contact I have had was of a friend who adopted in Peru. He gave me a rundown of what he had to go through to get there, to have the right papers and to get people even to listen to him. He said he did not know where to start. He had done some work in Peru and was familiar with the system there. He decided to go to Peru because he knew there were many abandoned children of single mothers for adoption but nobody here would help him.
I regret I have to interrupt the Deputy and I invite her to move the Adjournment.