Adoption Bill 2009 [Seanad]: Second Stage.

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

Before beginning this important debate I wish to acknowledge the difficult year this has been for everybody involved in international adoptions because of uncertainty about some countries and delays that have occurred. I acknowledge in particular the delay, frustration and upset that prospective adoptive parents have experienced. It is regrettable and I am distinctly aware of it because I meet such prospective adoptive parents weekly. I also wish to acknowledge their forbearance and that of the representative groups and the International Adoption Association, and the assistance of the Adoption Board and the Health Service Executive in this difficult year. I reaffirm that the Government and I are committed to international adoption as a legitimate form of alternative care, although some of the commentary in circulation might cast doubt on that commitment.

Adoption was first introduced into Ireland through the enactment of the Adoption Act 1952. Prior to that, there was no provision in law for adoption in this State. There were, of course, many informal adoptions in this country and before the enactment of the adoption legislation many Irish children were sent abroad for adoption by Irish American families in the United States.

In the years following the enactment of the Adoption Act in 1952, most children adopted in Ireland were children who had been placed for adoption by their mothers within the Irish State. Today, a very small number of Irish children are placed for adoption each year and the vast majority of domestic adoptions are family or step-parent adoptions. Many Irish people have, therefore, looked to overseas to adopt a child into their families.

It is against this background that this Bill seeks to create a legislative framework which reflects the changing nature of adoption and the growth in intercountry adoption. The Government's aim in bringing forward this legislation is to support and protect the children for whom adoption services are devised and provided.

The Bill, which was passed by the Seanad earlier this year, has been designed with four main objectives: first, it brings the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption into Irish statute law; second, it provides for the making and recognition of intercountry adoptions in accordance with bilateral agreements; third, it establishes the Adoption Authority of Ireland; and fourth, it provides for the repeal of the Adoption Acts 1952 to 1998 and for the bringing forward, restating or updating of the provisions of those Acts, as appropriate.

The objective of ratifying the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption is at the core of this legislation. Ireland signed the Hague Convention in 1996. A fundamental principle of the Hague Convention is that intercountry adoption should be child centred. That is, in all stages of the process, the child's interests must be paramount. The provisions of the Adoption Bill 2009 will ensure that all intercountry adoptions, recognised in this country, meet the standards of the convention. The text of the convention is included in Schedule 2 to the Bill and section 9 of the Bill gives the Hague Convention the force of law in this State.

The Bill also provides for the State to enter into discussions with states which are not party to the Hague Convention, for the purposes of making bilateral agreements on intercountry adoptions. The legislation requires that any such agreement entered into by the Government shall be laid before each House of the Oireachtas. The standards that apply to intercountry adoptions under a bilateral agreement will accord with Hague standards.

On that note, my office has been in negotiations for some time with the Vietnamese Government regarding the drafting of a new bilateral agreement between this State and Vietnam. I await the finalisation of the International Social Services report on intercountry adoption in Vietnam to be fully informed before making further decisions regarding the next steps. I am mindful of the difficult position many prospective adopters find themselves in at this point and I assure them that my office will, in so far as possible, ensure that they are informed of the up-to-date position with regard to adoptions from Vietnam. Both Governments are working to achieve the highest standards in intercountry adoptions and we are both committed to ongoing dialogue to advance this goal.

In addition, the Adoption Board has already advanced the process of reviewing the adoption laws and adoption practices of several countries which have already ratified the convention with a view to establishing closer working relations with these countries to support Irish adopters. The board advises me that it hopes to be in a position to approach the first such country shortly to initiate discussions.

The Bill also provides for the establishment of a new adoption authority which will take over the functions of the existing Adoption Board and which will act as a central authority for the purposes of the Hague Convention. The Adoption Board was established under the Adoption Act 1952 at a time when domestic adoption was being formalised for the first time in this country and when intercountry adoptions into Ireland did not take place. The adoption authority's role will be an expansion of the current role of the Adoption Board, taking on new functions under the Hague Convention and with significantly improved governance and accountability structures.

There have been six amending Acts since the first Adoption Act in 1952. This Bill repeals all those Acts and provides for all adoption legislation in one Bill. This will greatly help those working in the area of adoption and child law.

Overall, the Bill provides safeguards for children who are being adopted into new families. It sets out a common standard for adoption procedures, both in this State and for intercountry adoptions. It will provide greater assurance for adopted children and their families that appropriate procedures have been followed and that, in all cases, the adoption was effected in the best interests of the child.

Part 1 of the Bill comprises sections dealing with the Short Title and commencement, interpretation, references to making of arrangements for adoption, establishment day, repeals and revocations of existing legislation and for expenses arising in the administration of this Act to be provided by the Oireachtas.

Part 2 provides for the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption to have legal effect in this State and for judicial notice to be taken of the explanatory report on the convention prepared by G. Parra-Aranguren. Thus, the Hague Convention is being brought into Irish statute law.

Part 3 provides for the placing of a child for adoption and provides for the care of a child pending placement. It also provides that an accredited body shall not place a child for adoption unless the child is at least six weeks old. Adoption societies will be known as accredited bodies under this Bill. The accredited body must provide the mother placing the child for adoption with a written statement explaining the effect of an adoption order and the consents necessary for the order to be made. A signed statement by the mother of her understanding of the import of the written statement is required.

The Bill also sets out the right of the father of the child to give notice to the authority of his wish to be consulted about the placement of the child for adoption, or for an application for an adoption order to be made in respect of the child, and outlines the pre-placement consultation procedure required. Where the accredited body is unable to consult the father, or where the authority is satisfied that it is inappropriate for the accredited body to contact the father, the authority may, with the approval of the High Court, authorise the accredited body to place the child for adoption. The requirement for High Court approval before proceeding with an adoption where the father has not been consulted is a new safeguard provided in the Bill and is a further recognition of the father's rights in the adoption process.

In circumstances where the mother refuses to, or cannot, identify the father, this part provides that the mother be counselled and that she be advised of the possibility that the adoption may be delayed and of the possibility of the father contesting the adoption, and that the absence of knowledge of the medical, genetic and social background of the father may be detrimental to the welfare of the child into the future. Following such counselling, the authority may, with the approval of the High Court, authorise the accredited body to place the child for adoption.

Part 4 deals with the authority's power to make adoption orders and provides that in relation to adoption, the welfare of the child is the first and paramount consideration. Adoption orders may not be made in respect of a child unless the child resides in the State, is not more than seven years of age and is an orphan or born of parents not married to each other. However, a child of married parents may be adopted in exceptional circumstances where the parents have abandoned the child. There are also exceptions to the seven year age limit. If the child is over seven years of age, due consideration is to be given to his or her wishes having regard to the child's age and understanding. This part also deals with the required consultation with the child's father and with the consent requirements from the mother or guardian before an adoption order is made and it sets out the circumstances in which the High Court may authorise the making of an adoption order in the absence of such consent. There is also a requirement to provide relevant information about consenting to adoption and the requirements for a valid consent are set out.

The categories of people who may apply for an adoption order or for the recognition of an inter-country adoption include a parent of the child, a married couple living together or a person who satisfies the authority that the adoption is in the best interest of the child. It is provided that the authority will not make an adoption order or recognise an inter-country adoption unless it is satisfied with the suitability of the applicants who are required to be of good moral character, in good health, of an age to have a reasonable expectation of being capable throughout the child's childhood of fulfilling his or her parental duties, with the capacity to promote the development and well-being of the child, and to have adequate financial means to support the child.

Part 4 also provides that a person or married couple may apply to the Health Service Executive for an assessment of eligibility and suitability to adopt and sets out the procedure to be followed by the executive following receipt of such an application. This Part also sets out the functions of adoption committees established by the Health Service Executive and provides for the preparation and delivery by a committee of a recommendation to the authority to issue a declaration of eligibility and suitability. It also provides for the issuing, or the refusal, by the authority of a declaration to applicants. The expiration and the withdrawal of declarations of eligibility and suitability are also provided for in this Part.

Part 5 lists the persons who are entitled to be heard by the authority on foot of an application for an adoption order. The circumstances in which an interim order for custody of a child may be made by the authority are also set out. The authority's power to summon witnesses, acquire documents and take evidence on oath or on affidavit is set out. It is also provided that the authority may refer any question of law, arising from either an application for an adoption order or from an application for recognition of an inter-country adoption, to the High Court for determination. Any question of public policy arising with respect to entries in the register of inter-country adoptions shall be referred to the High Court for determination.

Part 6 provides that an adoption order, an inter-country adoption effected outside the State or an entry in the register of inter-country adoptions that relates to an inter-country adoption shall not be declared invalid if such a declaration is not in the child's best interest. It is also provided that if the adoption order is declared invalid, the court may on application make a custody order in the same proceedings, subject to section 3 of the Guardianship of Infants Act 1964.

Part 7 provides that the High Court may authorise the authority to grant an adoption order in favour of applicants if it is satisfied the child's parents — whether married or not — have, for physical or moral reasons, failed in their duty towards the child for a continuous period of not less than 12 months and that such failure is likely to continue without interruption until the child is 18 years old, and where that failure constitutes an abandonment of their parental duties. Legal costs incurred by the parents and by the applicants for an adoption order under this provision shall be paid by the Health Service Executive. It should be noted that Part 7 mirrors the provisions of the Adoption Act 1988 which will be repealed on the enactment of this Bill.

Part 8 covers the recognition in the State of adoptions effected in another state, either in accordance with the Hague Convention or under a bilateral agreement between this State and the state of origin of the child. The competent authority of the state of origin must certify the adoption has been made in accordance with the Hague Convention or the bilateral agreement. The adoption must also be in accordance with the public policy of this State. Provision is also made for deeming as valid those foreign adoptions, as defined in the Adoption Act 1991, effected before and after the establishment day, unless such deeming would be contrary to public policy.

This Part also provides that if the pre-existing legal parent-child relationships are not terminated by virtue of the adoption order, the birth parents are not freed of all their parental rights or duties. Part 9 deals with converting such adoptions into ones which have that effect.

Part 8 also provides that the validity of an adoption order is not affected by the subsequent marriage of the child's birth parents to each other. However, if the child has been adopted by one of his or her birth parents and their subsequent marriage legitimates the child in accordance with the Legitimacy Act 1931, the adoption order ceases to have effect. If an adopted person or an adopter dies intestate, his or her property shall devolve as if the adopted person were the child of the adopter.

A transitional provision allows for adoption proceedings commenced under the Adoption Act 1991 to proceed as if commenced under this Act. Accordingly, it will not be necessary for applicants to re-apply under the new Act but rather they can continue their applications in compliance with the provisions of the new Act.

Part 9 deals with inter-country adoption and the role of the adoption authority as the central authority for the purposes of this Act, the Hague Convention and bilateral agreements. This Part provides for the adoption authority to recognise certain adoptions effected in another state, provides for procedural arrangements in recognising such adoptions in this State and for the conversion of adoptions from ones which do not have the effect of terminating existing legal parent-child relationships into adoptions which do have that effect.

Provision is also made for arrangements to be entered into by the authority, in exceptional cases, to allow for the adoption of a specific child who is a relative of the prospective adopters from a state of origin that is not party to the Hague Convention or to a bilateral agreement. The standards of such an adoption must accord with those of the Hague Convention. The Bill provides that the Health Service Executive must be informed in three months of a child's first entry into the State following his or her adoption or of a child's entry into the State for the purpose of being adopted in the State.

Part 10 provides for the adopted children register and the register of inter-country adoptions. An tArd-Chláraitheoir is required to maintain a register of adoption orders made by the authority and an index to that register shall be available for persons to search. Certified copies of entries will be available from the register for a fee. A separate index will also be kept by an tArd-Chláraitheoir to make traceable the connection between each entry in the adopted children register and the register of births. This index will not be available for public inspection and information will only be released following a court order to that effect.

Provision is made for the register of foreign adoptions, previously maintained by the Adoption Board, to be continued by the adoption authority and to be known as the register of inter-country adoptions. There is a requirement for the adopters to ensure an application is made to the adoption authority to have the adoption entered in the register not later than three months after a child first enters the State after his or her adoption by parents habitually resident in the State.

Part 11 deals with proof and registration of adoptions effected outside the State. It provides that where an adoption is effected outside the State, unless the contrary is shown, it shall be deemed to have been effected in accordance with the law of that state. It also provides that regulations may be made by the Minister for the proof of inter-country adoptions effected outside the State and the regulations may make different provision for different states and different classes of adoptions.

Part 12 provides for the establishment of the adoption authority. The authority's functions will include performing functions previously carried out by the Adoption Board; performing as a central authority under the Hague Convention; providing general advice to the Minister about adoption; undertaking or assisting in research; compiling statistical information; maintaining the register of accredited bodies; maintaining the register of inter-country adoptions.

This Part provides that membership of the authority will consist of seven persons, being the chairperson, deputy chairperson and five ordinary members appointed by the Minister. A person is not eligible for appointment as chairperson or deputy chairperson unless that person is, or was during the preceding two years, a judge or a solicitor or barrister of ten years standing. The five ordinary members must include two social workers, a medical practitioner, a barrister or solicitor and a person with training in psychology. The authority is required to hold at least 12 meetings each year.

Part 12 also provides for the appointment of a chief executive officer and for the establishment of committees to provide assistance and advice to the authority. Governance arrangements for the authority, including codes of conduct, annual reports, business plans and financial reports are provided for in this Part.

It also sets out the accountability requirements for the adoption authority to the Minister and Oireachtas committees and the standards of integrity to be maintained by members of the authority and its employees. Arrangements for the recruitment of employees to the authority are also provided for in this Part.

Part 13 provides for the Adoption Society's register to be continued and to be known as the register of accredited bodies. It provides for the registration, renewal, cancellation or amendment of registration and for appeals to the District Courts against a decision by the authority in this regard. This Part sets out the arrangements for such bodies which are required to furnish the adoption authority with information in regard to their constitution, membership, employees, organisation and activities and permit the authority to inspect and make copies of all their books and documents relating to adoption.

Making arrangements for the adoption of a child is an activity restricted to an accredited body or the Health Service Executive. However, a parent may place a child with a relative, or the spouse of a relative, for the purpose of having the child adopted by that person. The authority is responsible for issuing certificates of registration to an accredited body specifying the activities in respect of which that body is registered.

Part 14 covers the dissolution of An Bord Uchtála and the transfer of its employees, property and liabilities to the authority. This Part deals with the arrangements for the transfer of employees from the Departments of Health and Children and Justice, Equality and Law Reform to the adoption authority. It also deals with the transfer of records, property and liabilities to the authority and includes provisions dealing with pending adoption proceedings and other legal proceedings and the transfer of all rights and liabilities by virtue of any contract.

Part 15 provides for offences and prohibits certain advertisements about adoption and receiving, making or giving payments and rewards in consideration of the adoption of a child. Making false or misleading statements to the authority or to an accredited body is also an offence. Accredited bodies may receive reasonable costs and expenses and donations with the prior approval of the authority. The penalties for offences under the Act are set out in this Part.

Part 16 provides for the making of regulations by the Minister. It covers various regulation making provisions whereby the Minister for Health and Children may make regulations in respect of adoption, including regulating the activities of accredited bodies. Part 17 provides for consequential amendments to other Acts and for transitional arrangements in respect of applications made under the Adoption Acts.

There are four Schedules to the Bill. Schedule 1 provides that the Adoption Act 1952 and its amending Acts are repealed and that certain statutory instruments are revoked. Schedule 2 is the text of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoptions. Schedule 3 provides for particulars of adoptions to be entered in the adopted children register. Schedule 4 provides for an amendment to the Second Schedule of the Civil Registration Act 2004.

As already mentioned, the Bill will give force of law to the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption 1993. A core principle of the Hague Convention is that intercountry adoption should be child-centred, namely, in all stages of the process the child's interests must be paramount. The convention puts in place the equivalent of a contract between states to regulate the standards that will apply in each jurisdiction. This provides a safeguard for children being adopted into Ireland regarding the standards that are being applied in their country of origin over which we have no jurisdiction. As a country which has a growing rate of intercountry adoption, it is especially important for us to have confidence in all aspects of the intercountry adoption process.

The issue of further transitional measures for prospective parents who are at a definable stage in the adoption process when the Bill is enacted and who wish to continue to adopt a child from a non-Hague, non-bilateral country, is being examined. Prospective adoptive parents have waited a long time and it is my intention to be as flexible as possible in relation to applicants. I am consulting with the Permanent Bureau of the Hague Conference in relation to this matter and I will keep the House updated on this issue during the course of the debate on the Bill. It is important for this State to continue to develop the appropriate regulatory system for intercountry adoption. If we want to protect the interests of children and their families, we need to ensure that a robust regulatory framework is in place to underpin safe and secure adoption.

The Bill provides a much improved framework for intercountry adoption and is badly needed legislation. While current law and practices regulate the process of assessment and the registration of adoptions, the Bill clearly sets out every aspect of the process and brings the Hague convention into Irish statute law. I am hopeful that Ireland will be in a position to ratify the Hague Convention early in 2010. Following ratification of the convention in Ireland, a number of countries which are already signatories to Hague, will, I understand, be more willing to consider Irish applicants. I have asked the Adoption Board to examine the adoption codes of Brazil, the Philippines, South Korea and Thailand with a view to commencing discussions to put in place administrative arrangements that would facilitate intercountry adoption with Ireland.

It is important to have in place a rigorous adoption system in which we can have confidence. The Adoption Bill 2009 ensures that the welfare of the child is given first and paramount consideration and promotes the best international ethical and legal standards throughout the adoption process.

I commend the Bill to the House.

I welcome that we are finally debating this Bill in the House. I commence by saying that central to any arrangements with regard to adoption is the best interests of the child. I agree with the Minister of State that our legislation must be child-centred and intent on protecting the welfare of children on all occasions and in all circumstances.

The Bill has been portrayed by the Minister of State as a major reforming measure. This is true in the sense that we are finally going to incorporate within our law the Hague Convention in regard to intercountry adoptions, which I welcome. The Hague Convention which has long awaited incorporation into our law prescribes minimum standards that must be complied with to ensure adoptions are properly effected, that children's best interests are properly protected and a protection to ensure that children who are made available for intercountry adoption are done so in circumstances in which proper procedures are applied and all proper consents are obtained from the biological parents where they consent to adoption or from other guardians or institutions taking care of children.

The convention is a crucial part of our international architecture with regard to adoption to ensure minimum standards. It is deplorable that it has taken so many years for this legislation to come before us. I welcome the introduction of legislation to deal with this issue. Aside from dealing with the issue of intercountry adoption, replacing the Adoption Board with an adoption authority and recalibrating some of the procedures with regard to the steps that must be taken by prospective adopters in the area of domestic adoption, the Bill is not merely a disappointment but is fundamentally flawed and deficient. I say this because we have been promised for more than 20 years a major reform in our adoption laws. There are reports dating back to 1974 detailing major difficulties and flaws in our domestic adoption laws and making recommendations for reform and a plethora of reports published by the Adoption Board which annually detail gaps and inadequacies in the adoption laws and suggesting the need for reform.

I find extraordinary that this legislation deals with little other than incorporation of the Hague Convention into our law and essentially ignores much of what has been said about the need to reform our adoption laws. It is extraordinary that what we are now doing is incorporating within our adoption laws a consolidating piece of legislation which is essentially based on the philosophical and statutory approach taken to adoption in 1952. This is not a reforming Bill other than in the area of intercountry adoption in regard to which there are particular flaws, to which I will come later and of which I believe the Minister is now aware as a consequence of the multitude of letters, e-mails and representations received in this regard. In the context of our domestic adoption law, this is basically consolidating legislation. Even more extraordinary, in the context of the Bill's reference to protecting the welfare of the child, is a basic flaw in terms of a failure to define the concept of welfare in the definition section.

I want first to address the issue of intercountry adoption. The reality today is that the majority of couples and individuals who succeed in adopting do so outside this State as a consequence of there being fewer children available for domestic adoption than was previously the case. In the 1980s and early 1990s, approximately 1,000 domestic adoptions per annum — the figure is in excess of 1,000 for some years — were granted by the Adoption Board. Currently, fewer than 200 domestic adoptions are granted each year. In 2007, some 187 domestic adoptions were granted, 144 of which are termed family adoptions, namely, adoptions effected by a biological mother adopting jointly her own child with her husband who is not the biological father of that child, an issue to which I will return later.

The scale of intercountry adoption and the number of people who seek to effect an intercountry adoption is well detailed in the context of recent declarations of suitability to adopt made by the Adoption Board. In 2006, the Adoption Board made 406 declarations of suitability; in 2007 it made 436 declarations of suitability and in 2008, it made 490 declarations of suitability. I do not know whether the figure for this year will exceed 500. This means there are currently in the region of 600-800 couples and-or individuals who have obtained declarations of suitability who may be on the path of completing a foreign adoption or are hoping to do so. The Minister of State will be aware that serious difficulties have arisen in this area. Everyone in this House is aware of these difficulties. The first difficulty that arose relates principally to adoptions in Vietnam. Irish adopters have completed a substantial number of adoptions in Vietnam. In terms of the number of adoptions, Vietnam features among the top six countries from which Irish couples have adopted. The previous bilateral agreement expired on 1 May 2009, which has left many couples in limbo. These people have spent between two and four years — some even more — going through the labyrinthine HSE assessment process with the intention of adopting in Vietnam. There are hundreds of couples in this position. They now find they have been blocked from proceeding with their adoptions because the bilateral agreement has expired. The Minister of State has failed these couples particularly. Perhaps it is unfair to lay this entirely at the door of the present Minister, as his predecessor must share the blame.

Why am I saying this? The Minister is right to say that if there is a new bilateral agreement we must ensure the procedures that apply in Vietnam are appropriate and the children's welfare is protected. However, it seems it was not until March 2009 that the Government got around to sending to the Vietnamese a new proposed bilateral agreement. That should have happened much earlier. I presume if the decision was made in March 2009 to send a new proposed draft bilateral agreement, it was decided it was reasonable at that stage to enter into new arrangements with Vietnam. However, those arrangements ran into difficulties. The Minister, in good faith, visited Vietnam and the deputy premier of Vietnam recently visited this country. The reason the Minister is now giving for the lack of progress in a bilateral arrangement with Vietnam is a draft ISS report — which I understand he is not able to publish as it is in draft form — which apparently raises disturbing issues that need to be addressed.

My criticism of the Minister is that if there is disturbing content directly related to adoptions being effected by Irish couples or individuals in Vietnam, why did it take so long — until this report was published in draft form and furnished to the Minister in August 2009 — for the Minister and his Department to discover the nature of the difficulties? If there were difficulties, this should have been known. Under the bilateral agreement there was provision for the establishment of a review group jointly composed of people appointed by this State and, in particular, the Department and the Vietnamese to review how the bilateral arrangements were working.

If there were problems, alarm bells should have been ringing during the currency of that agreement. The Minister and his predecessors should have been aware of them before March 2009. If there were problems, couples going through the assessment process should have been given some warning that they could run into difficulties if that was the route they were going to travel. However, they were given no warning. They were led to believe the arrangements between Ireland and Vietnam were by and large working and that there was no structural difficulty with regard to their continuing. This has caused major concern to many couples who now find themselves in limbo.

It is unfortunate that the Minister of State is still not able to tell the House when this issue will be resolved. I am asking the Minister to tell us whether he still intends to enter into a new bilateral arrangement with the Vietnamese. Is it his intention simply to let matters drift, let the legislation be enacted, and wait until Vietnam becomes a party to the Hague Convention, perhaps in late 2010 or in 2011 or 2012, before any new arrangements are established to allow Irish couples to effect adoptions in Vietnam that Ireland will recognise? The Minister owes it to the couples and individuals who hope to adopt in Vietnam to clarify the position. We know there are 20 couples who had reached a point at which, it was understood, even in these circumstances, they would be allowed to continue with their adoptions. What has happened with this? It seems also to have ground to a halt.

There are couples and individuals in other circumstances who want to adopt. More than 100 adoptions have been effected in Ethiopia and are recognised in this State. What is the Minister's intention with regard to Ethiopia? This needs to be clarified. There are couples who have adopted previously in Vietnam or Ethiopia who are concerned that if they want to adopt a second child from those countries, this legislation will not facilitate their doing so. They are seeking special provisions in that regard. I ask the Minister to clarify his intentions.

There is a series of countries in respect of which we have received representations. Another is Mexico, with which we have no bilateral arrangements. A number of Mexican adoptions have been effected by Irish residents. How does the Minister propose that future adoptions from that country be addressed?

An important point was mentioned by the Fine Gael leader, Deputy Enda Kenny, at the opening of business, as well as by the Taoiseach and by the Minister in his opening speech. If this legislation is enacted and we become a party to the Hague Convention, what transitional arrangements will be put in place? I wish to be fair to the Minister. It is clear from the legislation that some transitional arrangements were envisaged. Section 63(2) states: "If, immediately before the establishment day, a foreign adoption described in the Adoption Act 1991 is not yet effected but is still in process as provided for under that Act, the adoption may proceed under this Act as if it were commenced under this Act." What is meant by "still in process"? If we have 400 or 500 couples with declarations of suitability on the day of commencement of this legislation, all of whom have gone through the adoption assessment process with an intent to adopt in a particular country, such as Vietnam, but who have not yet been allocated children, is this regarded as being "in process"? Will this legislation cover such a situation?

The problem with the phraseology of the legislation in dealing with any possible transitional arrangements is that it is utterly unclear how it will apply in practice. Provision must be made to ensure people understand how the legislation will work. There is an essential need, in the best interests of children and in fairness to those who have gone through the assessment process, to provide some meaningful transitional arrangements and not to leave people who, in good faith, have gone through a lengthy assessment process in an unclear situation. I ask the Minister to clarify how the transitional arrangements envisaged in this brief subsection of the Bill will work in practice, because that seems particularly unclear.

I was disappointed the Minister did not refer to the process for assessment of suitability to adopt in his speech, although he has mentioned it on other occasions. Be it domestic or inter-country adoption, everyone must undergo the same process now, although things were somewhat different originally. Everyone must obtain a declaration of suitability. It is simply not fair to any couple or individual that it can take up to three or four years to be assessed. This is an extraordinarily long period. This is particularly the case nowadays, when people marry and adopt at a later age. The HSE and its social workers appear to have an almost theological view on the age of prospective adopters. If a husband or wife has hit 50, no matter how suitable he or she may be, the HSE will recommend against adoption.

I am aware of people who sought assessment in their mid-40s and did not come through the process until they are 50 or 51. The age issue looms larger in the minds of social workers, with regard to unsuitability to adopt, as time passes. It is not the fault of the couples that the process takes so long. This legislation prescribes no specific timescale within which the adoption assessment process must be completed by the HSE. The wording it uses is "as soon as practicable", which is a meaningless phrase. It should never take longer than 18 months for an assessment process to be completed in a reasonable way. That gives the HSE an opportunity to order its business in a reasonable way and gives a reasonable timeframe to couples and individuals who in good faith seek to be assessed for adoption.

The Minister of State has acknowledged the timeframe is unfair. It also varies. A person who lives in one part of the country might have the assessment completed within 14 to 15 months but for a person living in Dublin this might take four and a half years. It is unacceptable that this is the case and there is a need to specifically address it.

Another issue the Minister of State does not address in this Bill is the procedures that are prescribed. I do not talk only from a position of theory but should make a mild declaration of interest. As a family lawyer, over the years I have represented prospective adopters in hearings before the Adoption Board. Currently, when a person has gone through the initial assessment process and the social worker produces the assessment report the case goes before a HSE adoption committee. That is what happens in practice although there is no statutory provision for it. For the first time, the Minister of State is making statutory provision for the HSE adoption committee, which has no statutory function of any description at present. This committee sits behind closed doors. Under this legislation, as is currently the position, no criteria are specified as to who might qualify to be placed on such a committee. No procedures are prescribed as to how the committee should operate. No provision is made as to whether prospective adopters are entitled to any legal representation. What happens? A social worker presents a draft assessment report to this committee and it is the committee that determines whether a prospective adopter or couple be deemed suitable.

I do not know, and I suspect neither does the Minister of State, how many instances there may have been where the social worker said a person or persons were unsuitable and the committee said they were. Or it might be the other way round — the social worker says the person or persons are suitable and the committee says they are unsuitable. I have talked to a number of couples who found themselves in situations where there were personality clashes and difficulties with social workers. We have some fantastic social workers but down the years there were some working in the adoption area who may not have been as well trained or suited to dealing with it as they should have been. I know of individuals and couples who found themselves before these committees. They have reported to me — I do not know if this is fair or unfair — that it is like being before the Star Chamber. A group of people associated with the HSE, about whose qualifications one knows nothing, throw questions at one. A person was asked if she would have a dog in the house with the adopted child. She felt a judgment would be formed that depended on whether she was pro or anti the canine.

This Bill is deeply flawed in so far as it provides for the establishment of these committees without prescribing any eligibility criteria or anything procedural. I do not know what their purpose is. If a properly qualified social worker produces an assessment report detailing whether somebody is or is not suitable, that is the report that should go to the Adoption Board. I do not understand the function of filtering it through a committee that sits in private. I suspect the way these committees work — and may work under this legislation — is unconstitutional because a decision made by this committee can have a fundamental impact on a person's entitlement to seek an adoption, make a determination as to their suitability and affect his or her right to family life as defined under Article 8 of the European Convention.

The other difficulty that arises which this Bill does not address is the question of what happens when a report states one is not suitable. Ultimately, the Adoption Board determines whether a couple or an individual is suitable. Unfortunately, I do not have time to give the Minister of State examples of the type of circumstances I have seen in cases coming before the Adoption Board. One paediatric nurse who retired just after the age of 50 had been involved with children and had nephews and nieces. She was deemed unsuitable by a social worker who feared that because of her age, she might not live long enough to bring up a child. Another question concerned whether she had appropriate family members to name in a will as custodian of her child in the case of her death. Clearly she had. There was a hearing of such a case before the Adoption Board whose decision was that the person was eminently suitable. The board disagreed with the view of the social worker. The Adoption Board would say that over recent years behind closed doors such things occur.

Over the years those who sit on the board have dealt with these cases and applications with great insight, understanding and sensitivity. This is not, in any respect, a criticism of the Adoption Board. However, it is not widely known that there have been a number of cases where social workers have given a report stating people are unsuitable, on grounds that are unsustainable and lack credibility. Having heard the social worker and the prospective adopters and read the various reports and background information, the Adoption Board makes declarations of suitability. At that point a real problem arises because a number of couples and individuals who have got declarations of suitability and seek to adopt abroad also have a family assessment report from the HSE that says they are unsuitable. The HSE will not amend that report and the Adoption Board has no statutory power to require it to do so.

The Minister of State preserves that system in this legislation. If the adoption authority determines a person or persons as suitable and the social worker or the HSE says they are not they then have a declaration of suitability in one hand and, in the other, a family assessment report stating they are unsuitable. That creates huge difficulties in practice for completing adoptions. The Adoption Board has tried to get over that administratively by issuing a letter detailing its disagreement with the HSE report.

There is a need to amend this legislation. In circumstances where there is a declaration of suitability from an adoption authority a proper report should be made available to prospective adopters which confirms their suitability. They should not be placed in the position they are today.

I return to an issue that relates to foreign adoptions. This legislation repeals in its entirety the 1991 Adoption Act. However, Part 11 tries to preserve some of the circumstances in which we recognise foreign adoptions under the 1991 Act. The main provisions on foreign adoptions in the legislation are designed to address the issue of persons habitually resident in this State who adopt outside the State, and the recognition of those adoptions. Over the years many people have established domicile or ordinary or habitual residence in a vast number of countries across the world. There will be more of this in the current economic climate. Irish couples go to England, live in London, Manchester, Birmingham or Liverpool for up to ten years, adopt there and then come home. At present we recognise those adoptions. The 1991 Act, which I introduced to this House as a Private Members' Bill, provided for the recognition of adoptions effected in states where couples or individuals were domiciled, habitually resident or ordinarily resident. I assume it is the Minister of State's intention to retain that provision within the legislation but that is not clear in the Bill. He is repealing the 1991 Act but claiming the State will continue to recognise adoptions in some of the circumstances prescribed in the 1991 Act.

This issue must be teased out because there will be huge question marks as to what the position will be, for example, in 2012 when an Irish couple, habitually resident in London, adopt a child and return to Ireland. They want the registration of that child in this country to confirm the adoption is recognised.

I turn to domestic adoptions. It is extraordinary that a whole raft of issues that should have been dealt with in this legislation have not been. The legislation continues the current situation — I made mention of it earlier — where the biological mother of a child marries someone who is not the father of her child but she wants her husband to have parental rights with regard to that child and acquire parental obligations. In many such instances the biological father has long since disappeared over the horizon. The only way this can happen at the moment is in the context of an adoption by the biological mother of her own child. This can create all manner of problems. When the child hits his or her teenage years and starts contemplating such adoption, he or she may wonder whether the mother is the biological or adoptive mother.

A biological parent should not need to go through an adoption process to allow his or her spouse to acquire rights and obligations to a child who is a part of the marital family. For 30 years, successive Adoption Board reports have asked Governments to address this issue. I remember writing about it in the first edition of my family law book, which was published in 1977. I have with me the 2007 report of the Adoption Board. It states: "As noted in recent Annual reports, it remains the Board's view that adoption is not always the ideal solution in step-parent situations". The procedure in question is adoption by both the biological parent and his or her spouse. It went on to state: "Some other legal means should be devised to establish the rights and responsibilities of a birth-natural mother's husband without extinguishing the rights and responsibilities of the birth-natural father". As has been recommended and is the case in other countries, our legislation should allow guardianship rights to be conferred on the husband in those circumstances. There should not be a necessity to go through an adoption process. I do not know why this remains the position.

In practice, there has been a movement in domestic adoptions over the years to what is referred to as open adoptions. The couple adopting may meet the biological parents or, more usually, just the biological mother, get to know one another and adopt the child. There may be some arrangement to facilitate the biological mother maintaining contact with her child. On occasion this also applies to the biological father. In other reports, the Adoption Board has referred to such agreements and stated that there is a need for a legal mechanism to protect an arrangement in which the biological parent has formal access to or contact with the child post-adoption. I have given legal advice where required in circumstances in which natural mothers consented to the adoptions, but wanted to maintain contact with the child. Post-adoption, such agreements have no legal force. They only work if trust is maintained between the parties. I do not understand why this issue is not being addressed.

I will conclude and I appreciate the Acting Chairman's forbearance. This legislation has missed a golden opportunity to modernise our domestic adoption laws in the necessary manner. It provides for a series of possible and unnecessary High Court applications which will create unnecessary adoption litigation. When the new adoption authority should be dealing with various matters, it is being proposed that it instead be brought before the High Court. Under Article 37.2 of the Constitution this is not necessary. I hope that the Minister of State will take a constructive approach on Committee Stage and agree to allow the Opposition to work with him to improve this Bill radically, address its many gaps and inconsistencies and flesh out some of the problems that have been part and parcel of our adoption process for a long time. For example, Barnardo's offers a tracing service in a particular framework. The Adoption Board facilitates a contact register _ but this has no statutory provision despite the fact that legislation on it has been promised for 20 years.

The Bill is missing a great deal, but it provides a foundation——

I must ask Deputy Shatter to conclude, as I must bring in Deputy Jan O'Sullivan before lunch.

——upon which we can build. I hope the Minister of State will agree that Committee Stage is a construction phase in which there can be cross-party work to ensure that the resultant Bill is right.

For the sake of everyone seeking to adopt abroad, will the Minister of State further clarify when he intends to make commencement orders in respect of the Bill? In the intervening period, this matter will be key in facilitating those who are currently trying to complete foreign adoptions to know where they stand. It would also allow those who have received declarations of suitability to know whether they can progress foreign adoptions in states from which they have the opportunity of obtaining a child.

The Labour Party welcomes Ireland's long overdue ratification of the Hague convention on inter-country adoptions. We signed the convention in 1996, but will be the last of the receiving states to ratify it. We fully support its ratification. It has the safety and welfare of children at its core, which is as it should be. Everyone who has contacted us and every Member in the Chamber would agree that such concerns must also be at the core of the legislation.

However, some issues, many of which have been outlined by Deputy Shatter, are not adequately dealt with in the legislation as framed. I refer in particular to the need for transitional arrangements while we move from our current situation to the situation that will pertain. According to the Minister of State, we will ratify the convention in early 2010, which is quite soon. Article 41 states: "The Convention shall apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin." It would be cruel to leave the hundreds of children and receiving families whose futures are invested in mechanisms that were the only option available to them prior to this legislation with no pathways to completing their adoption processes.

We need clarification on this matter, as section 63, to which the Minister of State referred in his opening contribution, refers to transition arrangements. It states: "If, immediately before the establishment day, a foreign adoption described in the Adoption Act 1991 is not yet effected but is still in process as provided for under that Act, the adoption may proceed under this Act as if it were commenced under this Act." However, the Hague good practice guide recommends that states should not apply new procedures to cases already in process. They must clearly indicate which cases will be considered in process when the convention enters into force. In addition, they are encouraged to announce specific dates on which cases must be filled to be considered in process, determine clearly what is meant by "in process", perhaps by determining which documents should have been filed or which actions should have occurred, and communicate those decisions officially to other states and concerned parties. Clarity is vital, particularly for the families concerned. There is considerable confusion between what the Minister of State has said today, what is contained in section 63 and what is in the Hague good practice guide.

I concur with Deputy Shatter on the importance of getting this right. I hope and, given his comments, believe that the Minister of State will listen to the constructive contributions of the Opposition and people on his side own of the House if we are to make the situation clear to the families concerned and, more importantly, the children and their birth families.

Adoption is a process that involves the deepest of human emotions, instincts and rights and we must address the issue with compassion and understanding. The welfare and rights of the child must be paramount. Second to theirs are those of the birth parent, who must never be coerced or pressurised by financial or other gain to surrender his or her child. The Hague convention is a response to the sad fact that baby trafficking and the selling of children has been and, in some cases, is still a feature of international adoption. For this reason, it is an important international agreement. It is imperative that countries from which children are adopted raise their standards of protection to the point at which they can ratify the convention and implement its rules.

It is essential that we get all of the elements right. Since many families in Ireland want to provide a safe, permanent and secure home for children in need, we must ensure that they are considered. We have all received a variety of communication. In each item of correspondence that I have received, that the interests of the child are paramount has been fully recognised. This needs to be acknowledged.

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