Dáil Éireann debate -
Thursday, 26 May 1994

Vol. 443 No. 3

Adjournment Debate. - Adoption Procedures.

Ms McManus

I welcome the decision by the European Court of Human Rights to uphold the case of the unmarried father, Joseph Keegan, who presented his case that he should have an automatic right to be consulted in the event of his child being adopted and that his consent should have been obtained before placement of the child.

This landmark decision has major implications not only for the adoption laws of this State but for the role, rights and obligations of unmarried fathers. Despite the fact that illegitimacy of children has been abolished the reality for unmarried fathers has been that under the Guardianship of Infants Act, 1964, a married father is automatically the guardian of his children while an unmarried father is not.

In the case of Mr. Keegan, the High Court ruled that the natural father had a right to be a guardian. However, the Supreme Court overruled that decision in 1989 and clearly stated that the rights of unmarried fathers varied greatly depending on the circumstances of the case.

The European Court of Human Rights has now upheld that this is a breach of human rights and has vindicated the rights of all unmarried fathers to be consulted in the case of adoption of their child.

We live in a time of growing awareness of the importance of the role of fathers in a child's physical and mental health. We also live in a time of changing family patterns where far greater numbers of unmarried people are having children. Yet our laws have not adapted to keep pace with these changes. The unmarried father, under the Guardianship of Infants Act, 1994, does not have the automatic right to be a guardian.

I was surprised to hear the response earlier today from the Minister for Finance that no legislation was being considered as a result of this particular milestone decision. I hope that this view has been altered by the Government following thoughtful consideration. The Law Reform Commission in its report on illegitimacy in 1982 recommended that the mother and the father of a non-marital child should automatically be joint guardians of their child.

However, the Government of the day did not see fit to accept this recommendation. It is important that, if there is a serious effort to bring about equality, the present injustice be addressed.

The rights of the non-marital child are surely equivalent to those born within a marriage. Why should we, as legislators, presume that a child of a marriage should have two joint guardians while a non-marital child must make do with only one? Surely, a child has the right to the automatic guardianship of his or her father unless there are good grounds for denying that right.

At a time when marital breakdown is occurring at a significant rate and where many children are born in non-marital relationships we have to look at the legislation in place. For example, the Status of Children Act, 1987 states that a father includes a male adopter under an adoption order but does not include the father of an infant who is not married to that infant's mother.

The Act also states that the mother while living shall alone be the guardian of the infant unless an order is enforced under section 6 (a). That means that the relationship between a natural father and his child begins with no legal recognition of parentage. This is automatically guaranteed to a father of a child within marriage. It is time this anomaly was abolished.

We must encourage fathers to take their role as parents seriously. We must recognise their right as fathers to exercise their role as parents and that requires that attention be paid to the Law Reform Commission's proposal. I welcome the fact that the Adoption Board revised its arrangements with regard to unmarried fathers. That does not obviate the need for legislators to ensure that the rights and responsibilities of unmarried fathers be recognised in law. There are, as has been stated, arguments in the Law Reform Commission report against this proposal:

In our view the principle of equality remains that no distinction should be made in the legal rights of guardianship on the basis of marital status and accordingly we recommend that both parents of children should be the joint guardians of the children whether they are born within or outside marriage.

Clearly, the spirit of the European Court decision is such and, in the interest of equality and in recognition of the reality of modern Irish life which is that we have a sizeable proportion of non-marital children, we should follow up on the implications of this decision. The Government should set its house in order to ensure there is no further breach of human rights relating to the unmarried father.

It must be remembered that we are talking about a large number of children. The number of births outside marriage has more than doubled in the ten years up to 1992 and is now the third highest in Europe.

When we talk about the Irish family, for many children that means a non-marital family. The failure to recognise the role of the unmarried father as guardian is a failure which must be addressed to meet the demands of equality but, more important, for the thousands of children today whose needs are central to this debate.

Mr. Shatter

Under our adoption laws, the father of a child born outside marriage has no legal right to be consulted prior to his child being placed for adoption by the child's mother. There is also no legal obligation imposed on the Adoption Board to afford the natural father a hearing prior to determining an adoption application. Under our adoption laws the local parish priest is given greater legal recognition than is the role of the natural father.

In the vast majority of cases where a child born outside marriage is placed for adoption by a natural mother, the natural father has shown little or no interest in his child's future and has not sought to intervene. There have been instances of children being placed for adoption, having been born to a couple outside marriage, where the couple have had a stable relationship but whose relationship had collapsed prior to or shortly after the birth of a child. This is the factual background to the case determined today by the European Court.

The law is open to abuse to the extent that a mother can secretly place her child for adoption without the natural father being given any say in the matter and subsequent legal intervention by the natural father can prove futile, in circumstances where his child has formed bonds of attachment to adopters with whom it has been placed. The law is unfair both to natural fathers and to adopters. Any change in the law must preserve balance so as to ensure that the best interests and welfare of children are fully and properly protected. It must also ensure that mothers are not placed in an invidious position by fathers who are unwilling to accept their responsibilities but who merely wish to use the law and the legal system to make the lives of the mothers more difficult and to impose on them a greater burden in circumstances where they believe it is in their child's interest that he or she be placed for adoption.

The European Court today held our laws to be in breach of Articles 6 and 8 of the European Convention. It held that the fact that Irish law permitted the secret placement of a child for adoption, without a father's knowledge or consent, leading to the bonding of the child with the proposed adopters and the subsequent making of an adoption order, amounted to an interference with the father's right to respect for family life. It emphasised that a fair balance had to be struck between the competing interests of the individual and of the community as a whole. It accepted the view of the European Commission that the obstacles under Irish law to a natural father establishing a relationship with his child constitute a lack of respect for family life and a violation of democratic principles.

It also held that the fact that a natural father had no specific legal right under our adoption laws to challenge the placement of a child for adoption, either before the Adoption Board or the courts and the fact that he was denied any standing in the adoption process generally, was in breach of a father's civil right to a fair and public hearing on a matter of such importance.

It should be noted that the court's decision appears to distinguish between the legal position of the natural father in circumstances where a child is born of a casual relationship and that of the natural father in circumstances where a child is born as a result of a stable ongoing relationship. This judgment has profound implications for our adoption laws.

It is clear, if we are to comply with the European Convention, that urgent reform is required. Under the Treaty on European Union we have an international and constitutional obligation to respect the fundamental rights guaranteed by the European Convention for the protection of human rights and fundamental freedoms. Any changes made by the Adoption Board by the issue of non-statutory guidelines to adoption societies do not affect our legal obligations as a result of this judgment. They do not affect the need for new urgent legislation.

I ask the Minister for Health immediately to take all essential steps to ensure that no difficulties arise in completing adoptions currently being processed as a result of today's decision and to ensure they are not open to legal challenge following finalisation. I ask him to reassure those who have completed adoptions that today's decision, about which there is a great deal of public unease, will not affect their validity.

The Minister should ensure that in future our laws and adoption procedures comply fully with the criteria laid down in the European Convention on Human Rights in accordance with our international and constitutional obligations.

Minister for Health (Mr. Howlin)

I thank the Deputies for raising this important matter. I have only just received a copy of the judgment delivered by the European Court of Human Rights in Strasbourg earlier today in the case brought against the State by the father of a child born outside marriage who was adopted against his wishes. I hope the Deputies will appreciate that, pending a detailed examination of that judgment, I am not in a position to comment on the implications for our domestic adoption laws and procedures. The issues raised by the European Court ruling require careful consideration and I shall be consulting the Attorney General in relation to them. As the European Convention on Human Rights is not part of our domestic law, there is no question of today's judgment having any direct effect on the validity of adoptions completed to date. I am anxious to stress this point in order to allay any fears adoptive parents may have in the matter.

It would appear, from a preliminary reading of the judgment, that the essential problem which the court identified with existing Irish law is that it permits a child to be placed for adoption without the knowledge or consent of the father. In the light of this finding, it will be necessary to consider what changes need to be made to give fathers of children born outside marriage a greater say in the adoption process.

A number of important developments have taken place in adoption practice since the case in question was finally determined by the High Court early in 1990. A comprehensive memorandum issued by the Adoption Board to the adoption agencies in April 1990 deals specifically with the position of the natural father of a child who is being placed for adoption. That memorandum stresses the desirability of ascertaining from the mother and, where practicable, the father himself, the attitude of the father towards the proposed adoption. Where an adoption agency is given an indication by the father that he opposes the proposed placement of the child for adoption, the Adoption Board advises that the agency should consider the prudence of delaying the placement for a period. The board's circular also makes it clear that where a father has applied to court for legal rights in respect of the child, under no circumstances should the child be placed for adoption pending the determination of the court proceedings.

In 1992, the Adoption Board issued a further circular to the adoption agencies advising them of new procedures in relation to natural fathers. These require an adoption agency, in any case where the father is named on the child's birth certificate and is in a continuous relationship with the mother, to notify the father — if he is not already aware — of the application to adopt his child and to offer him a hearing by the Adoption Board itself on the application.

These measures have helped to promote a greater awareness among the adoption agencies of the position of the natural father in the adoption process. I am pleased to note that these developments in our domestic adoption practice are acknowledged by the European Court of Human Rights in its judgment.

The question of whether these procedures need to be extended is one of the matters about which I shall be consulting the Attorney General in the context of a full and careful examination of today's ruling by the European Court. In the meantime, I want to reassure adoptive parents that today's ruling has no direct effect on the validity of their adoptions.