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Dáil Éireann debate -
Wednesday, 3 Jul 1996

Vol. 468 No. 1

Adoption (No. 2) Bill, 1996: Second Stage.

I move: "That the Bill be now read a Second Time".

The purpose of this important Bill is twofold. First, it contains the Government's legislative response to the judgement of the European Court of Human Rights in the case of Keegan v. Ireland. Second, it provides for certain amendments of the current law on the recognition of foreign adoptions.

Before dealing with the individual provisions of the Bill, it might be helpful to the House if I outline the background to the Bill. The judgment of the European Court of Human Rights in the Keegan case was in favour of the father of a child born outside marriage who was adopted against his wishes. The relationship between him and the child's mother lasted for two years, during one of which they cohabited. The pregnancy was planned and they were also planning to marry. However, early in the pregnancy the relationship broke down. Shortly after the birth, the child was placed for adoption by an adoption agency at the request of the mother but without the knowledge of the father. As soon as he discovered this, he sought to block the adoption by applying for guardianship and custody of the child. His applications, which went as far as the Supreme Court, were ultimately rejected and the child's legal adoption was finalised in 1990.

Mr. Keegan then brought an application before the European Court of Human Rights under the European Convention on Human Rights. On 26 May, 1994, the European Court delivered its judgment. The court found in favour of Mr. Keegan on two grounds. It held that his relationship with the mother of the child had the hallmark of family life for the purposes of Article 8 of the European Convention on Human Rights. The fact that Irish adoption law permitted the secret placement of the child for adoption without his knowledge or consent amounted to an interference with his right to respect for family life under Article 8. The court also upheld, as a violation of Article 6 (1) of the Convention, Mr. Keegan's complaint that he had no right to challenge the adoption placement and had no standing in the adoption procedure. The judgment did not affect the validity of the adoption order made in respect of the child, nor did Mr. Keegan wish it to.

In accordance with Article 53 of the convention, the State is obliged to make the necessary changes to our domestic adoption laws in order to bring them into line with the convention. These changes are provided for in the Bill now before the House.

I should mention at this stage that a number of important developments, aimed at giving greater recognition to the position of the father of a non-marital child, has taken place in Irish adoption practice since the Keegan case was determined by the courts here in 1990. These developments are designed to ensure that adoption agencies endeavour to consult fathers and ascertain their attitude before children are placed with adopting parents. While these changes occurred too late to benefit Mr. Keegan, they are acknowledged by the European Court of Human Rights in its judgment. These measures form the basis of the Government's legislative response to the judgment.

Central to the Government's approach is the introduction of a new statutory procedure for consulting fathers of a non-marital child, before the child is placed for adoption by an adoption agency, so as to afford him an opportunity of exercising his right to apply for guardianship and-or custody of the child, if he so wishes. Where a father raises no objections, the placement may proceed without further reference to him. However, if he is opposed to the adoption, the placement must be deferred for a short period to enable him to institute proceedings for guardianship and-or custody of the child. If the father's application for guardianship is granted by the court, then the adoption cannot proceed without his consent. If he is awarded custody of the child, then that will effectively be the end of the matter as the child will no longer be available for adoption.

The advantage of this approach is that, since the child would not have been placed with adopting parents, the question of the child developing bonds with a new family would not arise. This was a crucial factor in Mr. Keegan's case which ultimately militated against him.

The Bill provides for certain exemptions from the requirement to consult the father. It also provides for the prohibition of the direct placement by the mother of a child for adoption with non-relatives. I will address these two matters in some detail when dealing with the relevant provisions.

It has to be acknowledged that the introduction of a consultation procedure will give rise to some delays in the placement of children for adoption. However, this is unavoidable in order to facilitate the exercise by a father of his right to apply to court for legal rights in relation to the child which, if successful, would entitle him to veto the adoption. In this context, I must stress that the absence of such a provision in Irish adoption law is at the heart of the judgment of the European Court in the Keegan case.

At the same time, however, it is important to keep the sense of proportion in relation to the involvement of fathers of non-marital children in the adoption process. It is not envisaged that the introduction of the new statutory consultation procedure provided for in the Bill will result in any significant increase in the number of fathers wanting to take on legal rights and responsibilities. Experience since 1990 indicates that in the majority of cases, the father shows little or no interest in the child and does not seek to be involved in the adoption process. This is borne out by the statistics of the Adoption Board for 1994. Of the 199 adoption orders made during 1994 for children placed by adoption agencies, in 34 cases only was there contact between the agency and the father.

The Bill also provides for certain amendments of the Adoption Act, 1991, which contains the current law on the recognition of foreign adoptions. The main purpose of these amendments is to facilitate the recognition here of adoptions effected in countries, such as the People's Republic of China, whose adoption laws permit the termination or revocation of adoptions in particular circumstances.

Deputies will recall that earlier this year Deputy Woods introduced a Private Members Bill proposing to recognise Chinese adoptions effected in favour of Irish residents. While the Government was sympathetic to the overall objective of that Bill, it found itself in the position of having to oppose it because the proposals contained in it were fundamentally defective. If implemented, they would have created anomalies in our statutory recognition system and would have resulted in the inequitable treatment of different categories of adopters and of adoptions effected in different countries. At the time, I gave an undertaking on behalf of the Government that specific legislative proposals would be brought forward to address the difficulties that have emerged in the operation of the 1991 Act. The carefully framed amendments of that Act are contained in sections 10 to 15 of the Bill before the House.

The House will be aware that an appeal to the Supreme Court by the Adoption Board against a decision of the High Court to recognise Chinese adoptions is pending. I understand that this appeal is due to be heard tomorrow. However, irrespective of the outcome, the Government considers it desirable that the position generally should be clarified in legislation as the adoption laws of a number of countries, other than the People's Republic of China, permit the termination of adoptions in certain circumstances.

The opportunity is also being availed of to make certain other worthwhile changes to the 1991 Act. The most significant of these is the extension of the deadlines for the recognition of adoptions effected abroad in favour of Irish residents who had not completed the pre-adoption assessment procedures introduced by the 1991 Act. A small number of cases have come to light in which the adopters were unable to finalise the adoption process in the foreign country concerned until after the deadlines. The Government considers that it is in the interests of the children concerned that their legal status here be regularised.

I will now turn to the main provisions of the Bill. Section 1 contains definitions of key terms used in the Bill. Section 2 provides for the insertion of new and substitute definitions in section 3 of the Adoption Act, 1952, which is the principal Adoption Act. The revised definition of "relative" includes a member of the extended family of the father of a child.

Section 3 empowers the Adoption Board, with the consent of the Minister for Health, to make rules governing the new procedures for consulting the fathers of children being proposed for adoption. Section 4 inserts a new Part IA — sections 7A to 7F — in the Adoption Act, 1952, setting out various requirements to be followed by adoption agencies before placing children for adoption.

Section 7A provides that "father" for the purposes of the new Part IA includes a person who believes himself to be the father. This is to ensure that a father whose paternity has not been formally established will not be excluded from being consulted.

Section 7B imposes a restriction on the placing by an adoption agency of a child under the age of four weeks for adoption. This new restriction is necessary in order to ensure that a child will not be placed with adopting parents by an adoption agency before the father has had an opportunity, following the birth of the child, to notify the Adoption Board of his wish to be consulted. However, it should be noted that a child may be placed for adoption within four weeks of birth where the father has been consulted and raises no objections, or where the agency has been exempted by the Adoption Board from the requirement to consult him. At present a child may be placed for adoption immediately after birth, although the mother may not give her consent to the making of an adoption order until the child is as least six weeks old. As most children are not placed by agencies with prospective adoptive parents within the first six weeks of birth, this restriction will have little or no impact on present adoption practice.

Section 7C enables a registered adoption society, in accordance with regulations made by the Minister for Health, to arrange for appropriate care for a child pending his or her placement for adoption. This will give registered adoption societies specific statutory authority to make interim arrangements for the care of children. The health boards are already covered by the Child Care Act, 1991.

Section 7D contains a new statutory procedure to enable the father of a child to notify the Adoption Board of his wish to be consulted in relation to (a) a proposal by an adoption agency to place the child for adoption, or (b) an application by the mother or a relative of the child for an adoption order relating to the child. Such a notice may be given before the birth of the child.

Section 7E requires an adoption agency proposing to place a child for adoption to endeavour to ascertain the identity of the father, including requesting the Adoption Board to provide it with a copy of any notice received from the father. Where the identity of the father is known to the agency, it must take such steps as are reasonably practicable to consult him about the proposed placement. Where a father indicates he has no objection, the agency may proceed to place the child with adopting parents. If a father objects to the proposed placement, the agency must notify him and the mother that it is deferring the placement for a period of not less than 21 days for the purpose of affording him an opportunity to make an application to court for guardianship and-or custody of the child. If notice of such an application is not received within the deferral period, the agency may then place the child for adoption.

However, if at any time before the child is placed for adoption the agency receives notice of an application to court by the father, the agency will be precluded from continuing with the placement until the court proceedings have been concluded. Provision is made for the expedition of any such proceedings in the best interests of the child concerned.

Section 7F provides for exemptions from the requirement on an adoption agency to consult the father in the following circumstances: (a) where the agency is unable, after taking such steps as are reasonably practicable, to consult a father whose identity is known to it; (b) where the nature of the relationship between the father and the mother or the circumstances of the conception of the child are such that it would be inappropriate to contact the father, for example in the case of rape; (c) where the identity of the father is unknown to the agency and the mother refuses to reveal his identity; (d) where the mother makes a statutory declaration stating that she is unable to identify the father and the agency has no other practical way of ascertaining his identity.

The approval of the Adoption Board must be obtained to the placing of the child for adoption in the case of (a), (b) or (c).

As the House will appreciate, it would be impracticable to impose an absolute requirement that the father be consulted in every single instance. Cases will inevitably arise where it would be inappropriate to consult a father about a proposed adoption placement. Where, for example, a child is conceived as a result of a casual relationship during a holiday romance and the father is not even aware of the birth of the child, it would be unreasonable to require an adoption agency to contact the father since such a relationship could not be deemed to have the hallmark of a family life within the meaning of the European Convention on Human Rights. Similar considerations apply in the case of rape or incest.

Most difficulty will arise where the mother refuses to reveal the identity of the father. I have considered whether the placement of a child for adoption should be prohibited in such circumstances. However, I have concluded it would not be in the best interests of the child to deny him or her the possibility of becoming a member of an adoptive family where the mother does not intend to bring up the child herself, and it is clearly her wish that the child be placed for adoption. I am conscious of the effect a requirement to name the father could have on mothers. In an extreme case, a woman might opt for an abortion rather than allow the father to have any involvement in the post-birth situation. The Bill accordingly provides that where a mother refuses to name the father, the adoption agency must counsel her to attempt to obtain her co-operation. A mother cannot be compelled to name the father and this is as far as the law can go in the matter.

Section 5 extends the present categories of persons entitled to be heard by the Adoption Board on an application for an adoption order to include, among others, the child and the father or a person who believes himself to be the father. Conferring a statutory right on the father to be heard on an adoption application addresses the finding of the European Court of Human Rights in the Keegan case that he had no standing in the adoption procedure.

Section 6 sets out new consultation procedures to be followed by the Adoption Board where an applicant for an adoption order is the mother or a relative of the child and no adoption agency has been involved in the case. The board must take such steps as are resonably practicable to consult the father in relation to the application. It may arrange for a health board to assist it in carrying out its functions under this section. The board is exempted from the requirement to consult the father in the same circumstances as are provided for in section 7F.

Section 7 prohibits a parent from placing a child for adoption with a person who is not a relative of the child. It also prohibits a person from receiving a child who is not a relative of that person for the purpose of adoption otherwise than from an adoption agency.

The purpose of these measures is to ensure that private adoption placements cannot be used as a means of circumventing the new procedure for consulting the father in cases where the mother does not want him to have any say in the matter.

However, there are other compelling reasons for prohibiting the direct placement by the mother of her child for adoption with non-relatives. The Adoption Board, in successive annual reports, expressed grave concern about such placements because they lack proper safeguards for both the child and the mother. In the case of replacement arranged by an adoption agency, the prospective adopting parents will have undergone a detailed assessment of their general suitability. This pre-placement assessment provides an essential safeguard for the welfare of the child, a safeguard which is absent in private adoption arrangements. Indeed, it is not unknown for the adopting parents in such cases to have previously been turned down by an adoption agency. The involvement of an adoption agency also provides an important protection for the mother. She is assured of receiving non-directive counselling about the wisdom of adoption in her particular circumstances so that if she decides to have the child adopted, her decision is an informed one. In a private adoption, there is no guarantee that the mother receives objective counselling as to the appropriateness of adoption. In fact, experience has shown that the mother's position is often compromised.

A further disturbing feature of private adoption arrangements is the possible involvement of third parties, which is of course illegal. In a number of cases investigated by the Adoption Board, it emerged that the mother did not know the adopting parents prior to the pregnancy and that they were put in contact with one another by a third party.

If a child is available for adoption, there is a duty on the State to ensure the best possible placement for the child with a couple who have been properly assessed and who are considered by those with professional skills in such matters to be most likely to meet the child's needs. I am reinforced in my view by a letter I have received from Treoir, the Federation of Services for Unmarried Parents and their Children, which lends its unequivocal support to the prohibition on private adoptions provided for in section 7.

Section 8 provides that it shall be an offence for a person knowingly to make or furnish any false or misleading statement or information to the Adoption Board or an adoption agency. Section 9 deals with offences generally and provides, among other matters, for the prosecution of offences up to 12 months after they were committed.

Section 10 provides for certain modifications to the definition of "foreign adoption" contained in section 1 of the Adoption Act, 1991. This is intended to facilitate the recognition under Irish law of adoptions effected in countries, including the People's Republic of China, whose laws permit the termination of adoptions in particular circumstances.

Paragraph (b) of the existing definition of a "foreign adoption" requires an adoption effected abroad to have essentially the same legal effect as an Irish adoption order in relation to the termination and creation of parental rights and duties. This condition has given rise to most difficulty, particularly in relation to the recognition of adoptions granted abroad which are broadly similar to an Irish adoption in their legal effect, apart from the fact that they may be terminated in particular circumstances prescribed by the internal law of the country concerned. In order to provide for the recognition of such an adoption, the words "for so long as it is in force" have been incorporated into the substitute condition, "essentially" has been modified to "substantially", and "parental rights and duties" has been replaced by "guardianship".

Paragraph (d) of the existing definition of a "foreign adoption" provides that the law of the place where the adoption was effected required the relevant adoption authority, before effecting the adoption, to give due consideration to the interests and welfare of the child. While Chinese adoption law does not specifically contain such a requirement, it is founded on the principle that "adoption shall be in the interests of the upbringing and growth of adopted minors". Accordingly, the substitute paragraph (d) is designed to facilitate the recognition of adoptions effected in the People's Republic of China and in other countries whose adoption laws have as their fundamental purpose the promotion of the welfare of the child.

Section 11 provides for a technical amendment of section 2 of the 1991 Act. Section 12 extends the grounds for the recognition of a foreign adoption effected in a place other than that in which the adopters were domiciled or resident on the date of the adoption. At present, such an adoption will only qualify for recognition here if it is recognised in the country where the adopters were living at the time of the adoption. The new provision is designed to deal with cases where persons who, while living in an Islamic country or a country whose laws do not provide for the recognition of adoptions, adopt a child in some other country. I am aware that a number of Irish citizens have found themselves in this situation and the new provision will be of particular benefit to them.

Section 13 extends by 12 months the deadlines set out in the 1991 Act for the recognition of adoptions effected abroad in favour of Irish residents who had not completed the pre-adoption assessment procedures introduced by that Act. As I have already mentioned, a number of Irish residents were unable to finalise the adoption process in Romania and in certain other countries before the deadlines. The purpose of the extension is to ensure that their adoptions will qualify for recognition.

Section 14 provides for technical amendments to section 6 of the 1991 Act. Section 15 amends section 7 of the 1991 Act, which empowers the High Court to give directions in relation to entries in the register of foreign adoptions maintained by the Adoption Board. The amendments are designed to deal with situations where a foreign adoption which has been recognised here is subsequently terminated under the law of the place where it was effected. A person seeking to have recognition withdrawn must apply to the High Court for an order directing the board to cancel the entry in the register. The court shall not give such a direction unless satisfied that it would be in the best interests of the adopted person to do so. Where the court gives such a direction, it may make such orders as appear to it to be necessary, including orders relating to the guardianship, custody, maintenance and citizenship of that person.

Section 16 provides that sections 2 to 9 shall come into operation 90 days after the enactment of the Bill. This is to give the Adoption Board time to make the necessary rules governing the new procedures for consulting the fathers of non-marital children and to give the adoption agencies an opportunity to put in place arrangements for the operation of those procedures. Section 17 contains standard provisions regarding short title, collective citation and construction.

The Bill represents a major development in our adoption legislation. The provisions for improving the position of the fathers of non-marital children in the adoption process are a reasonable response to the judgment of the European Court of Human Rights in the Keegan case. The Government is satisfied that the provisions address the specific issues raised in the judgment and that they will bring our domestic adoption laws into line with the European Convention on Human Rights. While it cannot be guaranteed that a child will never again be placed for adoption without the knowledge of a father who has established family ties similar to those established by Mr. Keegan, the enactment of the new provisions will minimise as far as possible the likelihood of this happening in the future.

The amendments to the Adoption Act, 1991, are designed to introduce greater flexibility into our statutory system for the recognition of foreign adoptions. I am confident that they will be warmly welcomed by people who wish to adopt in countries whose laws provide for the termination of adoptions. I know that there will be an equally positive response from those adoptive parents whose adoptions will qualify for recognition once the legislation is enacted.

This is the first of a number of Bills that I propose to bring before the House to reform and update the law in relation to adoption. The establishment of a comprehensive legal framework for post-adoption contact between birth parents and adopted persons and access to birth records is a priority of the Government. The need for such a framework is fully recognised and I am currently engaged in wide-ranging consultations with the various interest groups.

It is my firm intention that the necessary enabling legislation will be brought forward as quickly as possible after the Supreme Court determines a case stated to it by the Circuit Court which will have a direct bearing on the nature and scope of the framework that will be put in place. In the meantime, I am proceeding with arrangements for the establishment, on an administrative basis, of an adoption contact register to assist adoptees and birth parents who wish to be put in touch with one another.

I also intend to bring forward legislation to provide for the ratification of the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption. The primary objectives of this convention are to provide safeguards to prevent the abduction, sale of or trafficking in children and to establish a system of co-operation amongst countries in order to ensure that intercountry adoptions take place in the best interests of the children concerned. The convention was signed on behalf of the Government on 19 June in order to demonstrate our support of the instrument and its objectives and to signal our intention of ratifying it in due course.

The Bill before the House represents a significant step forward in the evolution of our adoption laws. The progressive measures contained in it address satisfactorily two major issues. I commend the Bill to the House and I look forward to hearing the contributions of Deputies.

I welcome the Bill, I am angry at the delay in reaching this point. This is the second adoption Bill to come before Dáil Éireann this year. That is why it is called the Adoption (No. 2) Bill, 1996. It follows the Fianna Fáil Bill on adoption which I presented in Private Members' time on 12 and 13 March last. The Government voted against that Bill, saying it would bring forward its own Bill in due course. The effect of that decision by the rainbow coalition was to put back to the end of the year the time when Chinese babies and babies from other countries could have their adoptions recognised and registered in Ireland. If the Government had accepted the Fianna Fáil Bill on Second Stage, adopting parents would have been able by now to bring their children home to Ireland. Any proposed amendments to our Bill could have been dealt with in committee.

There was all-party agreement on the principle of our Bill. The Minister agreed with the principle of it and carried it forward into this Bill. While I am happy, of course, that the Government's Bill is before the House I am annoyed and angry at the callous delay that has occurred and at the disregard shown by the Minister for the plight of these unfortunate children and the unnecessary hardship suffered by the adopting couples. This is not the kind of response that people want from Dáil Éireann.

The appalling revelations about the plight of millions of children, mostly girls, abandoned in orphanages and other institutions in the Peoples' Republic of China touched the deepest emotions of the Irish people — perhaps more than any other humanitarian disaster in recent years. That the treatment of these children is a humanitarian disaster on a grand scale cannot be denied. Each year some 1.7 million children are abandoned and of these some suffer prolonged and agonising deaths in a socalled "Dying Rooms". As a people with a tradition of active concern for the suffering of all humanity we must respond in any practical way within our power and make a contribution to relieving the appalling plight of these children. It would be easy to feel overwhelmed by the sheer size of the problem and on that account do nothing on the basis that the little we can do would not have an appreciable impact on the problem.

Fianna Fáil was determined to seek out practical measures that would help even a small number of the children affected. Humanitarian aid and technical support are necessary for long-term solutions. Several voluntary groups have collected medical and other essential supplies to send to orphanages in China. The response to their appeals has been quite extraordinary. Again, this indicates that the plain people of Ireland want action, support it and are prepared to take action themselves. The work of these voluntary groups deserve our full support. In the meantime we can facilitate the generous response of many Irish couples who could adopt some of these children. Our Bill did this and this Bill will belatedly achieve that objective.

The law on foreign adoptions as set out in the Adoption Act, 1991, would not permit adoptions effected in the Peoples' Republic of China to come within the definition of foreign adoptions in section 1 or to be registered in the register of foreign adoptions set up by section 6. Because Chinese adoptions are not recognised here, the Chinese authorities will not allow Irish couples to adopt. We had several discussions with the Chinese authorities and they were very anxious to facilitate the adoptions and be helpful in any way possible. This restriction in our adoption law prevents Irish couples from adopting Chinese orphans.

We introduced a Bill to amend the Adoption Act, 1991, to enable Irish couples who were suitable and eligible under normal adoption criteria in Ireland to effect adoptions of Chinese children which would be recognised under our law. A large number of couples have been assessed and are anxious to proceed with the adoptions as quickly as possible. They can immediately offer loving homes to children who are living in appalling conditions. I was angry and upset at the delay because of these circumstances. I know this House can respond to urgent matters — Members on all sides were anxious to respond at the time — but memories fade very fast for many people, not for all.

People are still collecting medical and other necessary aid for the orphanages in China. It was not just an overnight phenomenon. They genuinely want to help and assist the children. That is why this House must be capable of responding to urgent needs identified by the plain people of Ireland. The House must be capable of responding urgently not only to the needs of big business, as we have done in the past when amendments were adopted very quickly to suit big business, but we have always regarded the individual as important. That is why I am annoyed and angry that we could not have adopted this measure at the beginning of March. At that time I told the Minister that whether he chose our Bill or produced his own he should do so then.

I predicted we would come up against the summer recess and would be affected by the delay that goes with that so that the House would fail to respond urgently. That is how politicans and this House get a bad name. People cannot understand the reason for delays in regard to issues which seem to be reasonably straightforward. If the technical advice was brought together and the problem urgently tackled the objective could be achieved more quickly.

The Government measures represent a restrictive formula. Sections 10 to 15 of this Bill seek to address the problems of recognising foreign adoptions effected by Irish couples who have been deemed to be suitable by the Adoption Board. The approach adopted is to change the definition of foreign adoption as contained in section 1 of the Adoption Act, 1991. The change proposed is to substitute a paragraph which permits the recognition of a foreign adoption where the duration of that adoption may not be permanent.

The Minister of State has made it clear that the amendment is designed to cater for the recognition of Chinese adoptions. As such, we welcome it. The formula used in the Bill, however, is restrictive and does not appear to be capable of catering for the various grounds on which other foreign adoptions are denied recognition, notwithstanding the fact that the adopting couples have been approved by the Adoption Board in advance as suitable adoptive parents and the adoptions have been effected in accordance with the laws of the country of the adopted child.

Under the present arrangements adoptions effected in over 20 countries have been denied recognition because they fail to meet the criteria set down in the 1991 Act. Deputies will be surprised to learn that, while ordinary adoptions effected in Taiwan, Vietnam and Malaysia have been recognised, amazingly the list of countries where adoptions are not recognised includes three EU member states, Belgium, France and Luxembourg. The remaining, countries include Paraguay, Peru, Boliva, Venezuela, Mexico, Liberia, Guatemala, China, Japan, the Lebanon, Nepal, Papua New Guinea, South Korea, Thailand, Poland and Russia.

We need to adopt a more flexible approach. Like other Deputies, I have received a letter from a Dr. Peter Murray on behalf of the Parents of Adopted Parguayan Children which states:

The Government's Adoption (No. 2) Bill, 1996 has now been published and is due to have its Second Stage taken on 3 July. Section 10 of this Bill proposes to deal with the foreign adoption recognition problem by amending the definition of a foreign adoption contained in Section 1 of the 1991 Act. However, it is not clear that such an amendment will provide the comprehensive and fully inclusive solution to the recognition problem that was promised on the Government's behalf last March.

Our particular concern is with Paraguay and our anxiety has been heightened by a letter written to us on Mr. Currie's behalf on 26 April. This stated that "the question of whether such [Ordinary Paraguayan] adoptions could be brought within the scope of the proposed extended recognition system raises complex issues which are currently being examined, and legal advice is being sought in the matter". We wrote to Mr. Currie seeking clarification of this statement but none has so far been forthcoming. After the Adoption (No. 2) Bill, 1996, was published we again wrote to Mr. Currie as follows:

We note the publication of the Adoption (No. 2) Bill, 1996. We are anxious to establish precisely how "Ordinary" Paraguayan adoption decrees will be regarded if the changes to the existing system of recognition for foreign adoption decrees contained in the Bill are enacted. As early as possible a clarification of this matter would be greatly appreciated.

Again, we have not to date received a substantive reply... In the Second Stage Debate we urge Deputies to ensure that the legal limbo surrounding foreign adoption is abolished outright and not merely reduced in size. Given the particular ambivalence surrounding the case of Paraguay, which we have described above, we urge you to demand that Mr. Currie provides the clarification of where "Ordinary" Paraguayan adoption decress will stand as regards recognition if this Bill becomes law, which we have so far sought in vain. The question to be answered is: "Is the Minister completely satisfied, on the basis of the legal advice he has sought and received, that in Payaguay an "Ordinary" Paraguayan adoption has substantially the same legal effect as regards guardianship of the child as adoption effected by an Irish adoption order does?"

They want a clear answer to this question. Presumably, the adoptive parents of children adopted in the countries mentioned find themselves in a similar situation and are also seeking clarification. If the Minister of State is not in a position to resolve these issues now, would it not be better to take a different approach? We do not want to place bureaucratic, legal, technocratic or other obstacles in the way, rather we want to be helpful. We want to ensure the Minister of State will have the flexibility he needs in solving any problems so that we do not have to come back to deal with a further Bill.

One of the problems is that the formula used in the Bill is too rigid and restrictive and will fail to permit the recognition of adoptions effected abroad by approved Irish couples. I have cited some instances.

In our Bill, which was voted down by the Government, we proposed to give the Minister of State the power to designate the countries whose adoptions we would recognise even though they fail to meet the strict criteria for recognition set down in the 1991 Act. In other words, we are prepared to give him the power by regulation to deal with these variations. He may in time decide to tidy up any outstanding matters. I did this many times. The question is whether one should put people or paperwork first. I have always believed that one should put people first and tidy up any outstanding matters later. We want to give the Minister that power. Minister are given power under various Acts by way of regulations which are subsequently laid before the House. If people are worried about the regulations stricter limitations can be imposed and the Minister can subsequently amend the legislation.

In our Bill we proposed to give the Minister the power to designate those countries whose adoptions we recognise even though they failed to meet the strict criteria for recognition in the 1991 Act. This flexible method could have readily been adapted to meet the needs to recognise adoptions effected abroad in future by Irish couples. While we welcome the Bill and will support its Second Reading, I record our dissatisfaction at the inadequacy of its core provision. I will table Committee Stage amendments which will give the Bill the kind of flexible approach contained in the Bill introduced by Fianna Fáil last March.

Will the Minister state whether and how adoptions from these countries, apart from China, will be affected by the Bill? The Minister confirmed that adoptions from China will be fully covered by the Bill, but what will be the position of adoptions from Paraguay? The Government is adopting a callous approach to the urgent and very sensitive needs of those people affected by the problem of non-recognition. We must not forget that if recognition is not available an adoption by an approved Irish couple cannot proceed. This is a harrowing experience for the couple but, more importantly, it deprives a child of a good home. It is astonishing that the Government has allowed unnecessary delay to create an avoidable hardship for these people. This was the inevitable result of the refusal by the Government to support, at least in principle, the Fianna Fáil Bill introduced last March and to amend it in Committee. This supposed open and transparent Government set up 22 committees so that we could discusss legislation in detail.

If the Fianna Fáil Bill had been reasonable we could have dealt with it.

The Minister says that about all Bills.

The Deputy should not accuse me of being callous.

The Deputy, without interruption.

It was a nonsense of a Bill and it must have been written overnight.

I tabled 300 amendments to a Government Bill and the Minister is totally out of order in stating that rubbish.

The Fianna Fáil Bill was a nonsense.

Every Bill worth its salt is amended.

That Bill was not worth its salt.

Acting Chairman

I appeal to the Minister and the Deputy to resume an orderly debate.

The Minister should learn about the purpose of a Second Stage debate, which is to approve the principle of a Bill.

I do not need any lectures from the Deputy.

If the Minister wishes to hide or obfuscate its purpose he can do so but he is fooling no one.

I do not need the Deputy's lectures.

The purpose of a Second Stage debate is to approve the principle of a Bill. When everyone in the House agrees the principle of a Bill the Minister is hiding when he pushes back to the end of the year action which could have been taken earlier.

In cases where adoptions go ahead in the absence of recognition the adopted child has no legal status here. Indeed, the status of the child is no better than that of any illegal alien. This is an intolerable situation in a caring and democratic society. This is why it is so important that the formula used to get over this problem of non-recognition is sufficiently adaptable to cater in the future for all properly effected foreign adoptions by Irish couples who have been approved by the Adoption Board.

On the question of giving the father of a non-marital child a say in the first stage of adoption, sections 1 to 9 deal with the consequences of the Keegan case in which the State was held by the European Court of Human Rights to be in breach of the European Convention on Human Rights by failing to have in its adoption law a provision which gave the father of a non-marital child the right to be consulted before his child was placed for adoption by the mother. Members on this side of the House are mindful of the extremely sensitive and anguished nature of the choices facing a mother who is contemplating giving up her child for adoption, but the choice is equally painful for fathers in this situation.

The Keegan case highlights this terrible human drama. We appreciate how difficult it is to establish procedures which give the father a meaningful chance of having an input to the future of his child and which at the same time enables an adoption to take place when it is the unequivocal wish of the mother and in the best interests of the child. Under the Status of Children Act, 1987, a father, although not an automatic guardian of the child from birth, can apply to the court to be appointed as a guardian. As a guardian, the father would be entitled to be heard by the Adoption Board in an application to it for an adoption order. The problem which led to the Keegan case is that the first stage in the adoption, namely the formal placement, normally takes place during the first few weeks of the child's life before the father has a chance to apply to the court to be appointed as a guardian. In most cases by the time the formal application is made to the Adoption Board the child has been in the care of the adopters for some considerable time and as a result has bonded with the adopting parents. In such cases applications by the adopters to the High Court under the 1974 Act to have the adoption order made, even though the birth mother refuses her consent to the making of the order, have usually decided in favour of the making of the adoption order on the grounds that at that stage in the child's life it would not be in his or her interest to be separated from the adopters. We are satisfied that the Bill will give the father a say before the initial placement.

The Bill contains elaborate provisions to deal with the variety of situations which can be predicted to exist in the difficult circumstances where either an established relationship is breaking down or where the father cannot be found, deliberately avoids contact or cannot be identified. We will examine the Bill in detail between now and Committee Stage to ensure that adequate safeguards are included to properly protect the interests of all the highly vulnerable people caught in these human dramas. We will support the Second Reading of the Bill and will, in the traditinal fashion, debate the provisions in detail on Committee Stage. My only regret is that the Minister was not big enough to do the same at the beginning of the year when the crisis occurred.

I welcome the Bill but, like Deputy Woods, I am disappointed the Minister did not accept the Bill introduced by Fianna Fáil earlier in the year. Regardless of how flawed a Minister thinks an Opposition Bill is, if it is necessary then it should be accepted and amended in committee. This is something to which Governments should be more open. I am pleased in relation to the crime issue that principle has been accepted by the Government.

I welcome this Bill which has a twofold purpose as stated in the Explanatory Memorandum, one of which was to deal with the findings of the European Court of Human Rights in the Keegan case. We have not had the happiest relationship with the European Court of Human Rights in regard to its findings. It took us a long time to implement the judgments relating to the Norris case and the Well Woman Centre case. Unmarried fathers waited for more than two years for this Bill following the European Court of Human Rights judgment. I welcome that judgment and that Mr. Keegan had the tenacity to pursue his case through the European Courts.

In these days of equality we should be aware that fathers have rights and responsibilities and we should do all we can to foster and encourage their involvement in the upbringing of their children. Children have parents, not just mothers. For years we have been familiar with the term "unmarried mother," now referred to as "lone parent". The truth is that in the vast majority of cases lone parents are what had formerly been known as unmarried mothers. Unfortunately, responsibility for raising children still tends to rest on the woman involved. We did not hear about unmarried fathers. We have come a long way since 1966. When I was doing some research in preparation for this debate I was interested to read the Nicolaou case when Mr. Justice Brian Walsh noted that:

When it is considered that an illegitimate child may have been begotten by an act of rape, by a callous seduction or by an act of casual commerce; as well as by association of a man with a woman in making a common home without marriage, except in the latter instances, it is rare for the natural father to take any interest in his offspring.

It was very rare for the natural father to take any interest at all. Those of us who are parents know that it is difficult to bring up children even with two parents. How much more difficult and stressful it is to bring them up with only one parent where the stress level could be multiplied by four rather than by two. We are all aware of the increasing pressures on families in our complex society. That is all the more true in the case of lone parents.

Under the Status of Children Act, 1987, unmarried fathers can apply for custody, access or guardianship of children. In 1993, 523 adoption orders were made and only in 11 instances had fathers contacted the adoption board to either oppose or give consent to the adoption of the child. Of the 199 adoption orders made during 1994 for children placed by adoption agencies, in only 34 cases was there contact between the agency and the father. There are two interesting points here: the reduction in the number of adoption orders made, which is a cause of concern, has much to do with the fact that there is more emphasis on foreign adoptions, and also that a small percentage of fathers have shown concern about what happens to their children. Since April 1992 the adoption board had issued a form called The Notification to Natural Father, requiring the natural father, if known, to be notified if he is not already aware of the adoption of his child and offered a hearing. To facilitate natural fathers all adoption agencies have been issued with letters and forms for correspondence and so on. Fathers must have a role in regard to their children. In some instances a father may influence whether an adoption is proceeded with. There are questions as to whether the father would be involved in the future or whether he would be guardian of the child. I hope the measures being put in place will ensure that natural fathers assume more responsibility which is their right.

On child care facilities, we should be concerned that the onus is not placed only on the mother and that the rights and responsibilities of fathers are acknowledged also.

The other part of the business before the House relates to foreign adoptions. We are disappointed the Bill introduced by Deputy Woods in March was not acceptable to the Government. It was a humanitarian response to the scenes brought to our attention in the television programmes showing harrowing pictures which were cited by Deputy Woods and which alleged the ill-treatment of children in Chinese orphanages. Even if it is somewhat belated we welcome this Bill in so far as it achieves the objectives outlined then. There were other aspects of Deputy Woods Bill which were particularly interesting and relevant to foreign adoptions.

It is natural that couples here, particularly infertile couples, would have reacted to the harrowing scenes depicting the position of the girl child in that society by expressing a wish to adopt them. While one could say we reacted to those scenes Irish couples had gone through the adoptive process in China before those allegations were made and those programmes were shown. During the previous debate on the adoption Bill in March I referred to a couple who had been in contact with me. They had been waiting some three years to adopt their baby from China and their papers were in Beijing. They had been told by the adoption board that everything was in order but their hopes were dashed when the Chinese authorities were subsequently informed by the Department of Foreign Affairs that the adoption could not be recognised as valid under Irish law. Naturally the Chinese authorities would not allow children to be brought into a jurisdiction where they could not receive the full protection of the law. This was heart breaking for that couple who had gone through all the proper procedures, had been deemed suitable adoptive parents and had been accepted by the Chinese authorities as adoptive parents. The couple met the child and held it in their arms only to have it taken away again.

We should be reluctant to be too critical of another country's record on the treatment of children in light of recent revelations about abuses here. We cannot condone abuse anywhere but we should be secure in the knowledge that our values and standards as a society are beyond reproach.

We must also deal with the difficulties surrounding cross cultural adoptions. While not discouraging Irish couples from adopting children abroad and bringing them up in a caring environment, we must deal with the emotional needs and behavioural problems that are intrinsic to cross cultural adoptions. We must take account of the caution expressed by the Adult Adoptees Association who stated that cross cultural adoptions are fraught with difficulties for the adopted persons. The closed adoption system here adds to the difficulties of foreign children and their original families who may want to reestablish contact in the future. Such children also face linguistic and cultural difficulties which are obvious when they return to their countries of origin.

Specialised training is required to integrate such institutionalised children into family life here. Due to a lack of resources for statutory support systems, some Romanian children were returned to their orphanages when difficulties became insurmountable for their Irish adoptive families. Of course Irish couples should have the freedom to adopt children from other countries, provided they go through the due process, but we must set up post-adoption facilities for families and children to cope with the strains imposed by cross cultural adoptions.

Members have already referred to the incompatible States which have allowed Irish families adopt children through their courts, but in most cases their status is not recognised here. The parents of adopted Paraguayan children want to know if the Minister is satisfied, on the basis of the legal advice he promised to seek, that an ordinary Paraguayan adoption has the same legal effect in terms of a child's guardianship as an adoption affected by an Irish adoption order. Similar difficulties are encountered by parents adopting children from many other countries. This matter can be discussed further on Committee Stage.

It is extraordinary that, having gone through the arduous and long assessment procedures involved in obtaining the Adoption Board declaration and the entry visa from the Department of Justice, the children could be regarded as second class citizens here and in the European Union. It is unfair that people are allowed go through such lengthy procedures when the status of the adopted children may not be recognised here. Putative adoptive parents should be treated as fairly as possible and support services put in place to help parents deal with the difficulties they encounter when adopting children abroad. It would be wrong to talk about adoption without referring to the need for after care services for parents and children.

There has been a great deal of talk about contact registers, the possibility of children contacting their birth mothers and vice versa. We are told of children who were secretly brought to the US for adoption. I know a woman who did not receive a birth certificate and when applying for a pension had to go through court records to prove she was a person. I am sure there are many similar cases. I want the Minister to adhere to his commitment to establish a contact register as soon as possible. The former Minister for Health, Deputy Howlin, promised to set up such a register. When will that take place? The Minister stated that this is the first of a number of Bills he proposes to bring before the House to reform and update the law in relation to adoption and that contact between birth parents and adopted persons and access to birth records is a priority of the Government. What does he mean by “priority”? We are all aware of the heartbreak and uncertainty some adopted people have experienced. I have a close friend who was adopted.

Many adopted children believe they were abandoned by their mothers, but nothing could be further from the truth. We know the climate of secrecy and shame that surrounded unmarried mothers in our society some years ago. Children were literally taken from their natural mothers. Many women, some as young as 16, had to give up their children for adoption. Many of those children subsequently believed they were abandoned and this caused great psychological damage to the mothers and children concerned. We have only recently come to terms with the human suffering of those people. I hope a contact register is set up sooner rather than later.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.