I move amendment No. 28:
In page 24, line 20, after "couple" to insert "or the spouse of the parent of a child".
I wish to be of constructive assistance to the House.
Adoption Bill 2009 [Seanad]: Report Stage (Resumed)
That would be good.
It would seem to make sense — subject to agreement from the Minister of State — to take amendments Nos. 28 and 30 together. Essentially, they both relate to the same issue. I do not wish to take the Minister of State short in respect of this matter so I will give him a moment to consider it. I am of the view that it would make sense to discuss these amendments together. They are not grouped on the list circulated to Members.
I am advised that amendments Nos. 71 and 72 are related to amendment No. 30.
One of those amendments is in the name of Deputy Jan O'Sullivan and it would be up to her to agree to Deputy Shatter's proposition.
I do not have a problem with the amendments being grouped.
Is the Minister of State happy to proceed on that basis?
Yes.
That is fine. Deputy Shatter may proceed. We will be taking amendments Nos. 28, 30, 71 and 72 together by agreement.
That makes sense, otherwise we would be covering the same territory unnecessarily.
Amendment No. 28 relates to an issue we discussed yesterday, namely, family adoptions where, in some 99% of instances, a biological mother marries someone who is not the father of her child and where the latter wants to acquire parental rights and responsibilities in law in respect of that child. We discussed an amendment which would have facilitated the adoption authority conferring guardianship rights on the father. I made reference to the pleas of the Adoption Board to the effect that a different procedure be put in place to deal with these issues.
The Minister of State and I had some words in respect of the amendment to which I refer when he stated — as his excuse for not accepting said amendment — that guardianship issues are an issue for the Minister for Justice, Equality and Law Reform and that this is an adoption Bill not a guardianship Bill. The Government opposed what I believed to be a very sensible amendment.
Amendment No. 28 offers an alternative way of dealing with the same issue. I previously pointed out that as matters stand a biological mother who marries a person who is not the father of her child and who wishes him to acquire parental rights and obligations in respect of the child is placed in the anomalous position of being obliged to jointly adopt her own child with her husband. This makes no sense. I do not believe a mother should be obliged to undergo a process which, under Irish law, results in her ceasing to be the biological parent of a child and becoming his or her adoptive parent.
The Minister of State indicated that he wants to confine the Bill to matters relating to adoption. In such circumstances, the amendments I have tabled are designed to deal with this matter in an adoption context.
Amendment No. 28 proposes that after the word "couple" the phrase "or the spouse of the parent of a child" be inserted. This would allow the adoption authority to make an adoption order in favour of the husband, without the mother being obliged to become an adopter. In effect, this would give rise to structure whereby a mother would retain all of her guardianship and other rights and the husband would acquire guardianship and other rights as an adoptive parent. A proper assessment would be undertaken in respect of the husband in order to ensure his suitability to have such legal rights conferred upon him. All of the procedures we previously discussed with regard to notifying the biological father and seeking his views, hearings being held in front of the adoption authority and the Minister of State's added adornment of, where necessary, applications being made to the High Court would all be in place. However, the artificial mechanism whereby biological mothers are compelled under our law to adopt their own children in order for their husbands to acquire rights and obligations of a parental nature in respect of their children would be removed.
Amendment No. 28 relates to the section in the Bill which specifies the persons who are eligible to adopt. Amendment No. 30 is what I would describe as the supplementary, substantive measure that would be required. It proposes to insert, in page 24, between lines 31 and 32, the following into section 20:
"(4) On the application of the spouse of a biological parent desiring to adopt a child to acquire the same rights and responsibilities with regard to the child as the biological parent.
(a) The adoption order shall confer the same rights and responsibilities on the spouse as vest in the biological parent.
(b) Shall not affect the rights and responsibilities of the biological parent.
(c) Where the biological parent with whom the child does not permanently reside continues to have regular contact with the child, the Authority may make an order conferring guardianship rights and responsibilities on the applicant to so act jointly with the child’s existing guardian or guardians instead of making an adoption order.”.
Paragraph (c) is the part of this amendment the Minister of State will not like. That is because it allows for the alternative option of the guardianship order being made. However, this could still operate despite the Minister of State’s disagreement with the more detailed amendment we addressed previously. If he were willing to take on board amendment No. 30, I would be willing to amend paragraph (c) in order to facilitate the adoption authority to make an access order in favour of the biological father who agreed to an adoption, without the necessity of this only applying when a guardianship order is made.
Many hundreds of biological mothers are being placed in the position I have outlined. I do not believe a biological mother should ever be obliged to adopt her own child. Nor do I believe that an artificial legal relationship of adoptive parent should be created in circumstances where someone is the biological parent. That is not in the best interests of the welfare of children, particularly in the very many instances where the biological father has absolutely no involvement nor interest in the life of his child born outside marriage, in the very many cases where the biological father is making no financial contribution by way of support or maintenance for the child, and in the very many instances where the biological father has essentially abandoned the mother and child. It is clearly in the best interests of the welfare of a child that the spouse of the mother, where she wishes this to occur, where there is a good relationship between the spouse and the child and where the spouse is a thoroughly appropriate person, be allowed to adopt. This is even more the case where there are subsequent children born of the marital relationship. Why should the child born prior to marriage, parented by a different father who has no interest in the child, be left in a sort of legal limbo or an anomalous situation where one of two things happen — either his or her biological mother is turned into an adoptive parent or, if that is not done, no real legal relationship is acquired with the step parent. I cannot fathom why we should preserve this type of provision in our law.
Over the years of my practice as a solicitor dealing with family problems — I constantly make declarations of interest in this regard — I have represented many mothers in circumstances where the fathers of their children have failed to make support payments, resisted making support payments and, after court orders have been obtained against them, have simply disappeared and the support payments become unenforceable. I have also represented biological fathers who have a genuine interest in their children and who continue a role in the lives of those children in circumstances where they will never marry the biological mothers. However, I have to say — I am sorry if it goes against certain levels of political correctness — a large number of mothers who give birth to children outside marriage find that the fathers have no interest, that no provision is made for support and that they will do as little as they can to provide any assistance. Unfortunately, the majority of such men never play a role in the lives of their children, not because they are obstructed from doing so by the mothers, but simply because that is the attitude they take.
It is right that we recognise the rights of fathers and put in place protections for those fathers who genuinely want to play a role in the lives of their children. While we must recognise that it is absolutely in the interests of the welfare of children that they have a full relationship, where that is possible, with both their biological parents, let us not lose sight of the reality that a large number — far too many — men in this State father children, fail to take responsibility, fail to involve themselves in their children's lives, fail to provide adequate supports and, more often than not, it is the mother who bears the burden and the pleasure of real parenting. While there was a perception in the past that this was always the case and that the father was always the villain, which was unfair, we are now going to the other side. Now we are assuming that all fathers are supportive and always do the right thing. I wish that were so. Sadly — for many women and children, very tragically — it is not the case.
We must make, within a proper legal structure, appropriate arrangements to facilitate mothers bearing the burden and the pleasure of bringing up their children born outside marriage and to have legal relationships conferred on their husbands which recognise them as full parents without the mothers having to adopt their own children. I referred to the statistics on this yesterday. In between 99% and 100% of cases, depending on which year one looks at, where a family adoption involves a biological parent and a spouse who is not a parent, the biological parent is the mother.
We discussed this issue on Committee Stage and I welcome the fact that the Minister of State has listened to some of what we said in some small areas and has tabled some of his own amendments. However, what I find extraordinary about this process — it is quite different from my experience prior to 2002 — is that I have not seen a single Opposition amendment taken on board. I do not want to personalise this in regard to the Minister of State, Deputy Barry Andrews, because it is the ethos of a political party that has been in government for too long. The ethos of the Fianna Fáil Party, which has apparently been distilled into the Green Party's genetic system at an extraordinarily fast rate, is that one does not simply accept an amendment as tabled by an Opposition Deputy. I do not know whether Ministers fear that this will affect their political CV, undermine their political pedigree, undermine their ministerial authority or make Ministers of State the butt of jokes by their senior colleagues. I do not know what psyche has entered into the political process to produce this outcome.
We are not going to finish the debate on this proposal but I urge the Minister of State to look seriously at what I am proposing. It is in the interests of the welfare of children. It is not inimical in any way to children or to biological parents. It does not undermine the rights of biological fathers. What it does is provide a more logical legal structure to address an issue that is of importance and which is the dominating issue in domestic adoptions. Too much of the focus of this Bill has been exclusively on inter-country adoption. I understand the reason for that, with so many people anxious to adopt abroad because there are so few children available to adopt in Ireland. However, if we focus on domestic adoption, the primary concern of the Adoption Board is family adoptions, the majority by mothers adopting their own children. Can we not put in place a more sensible structure to facilitate this happening in a manner that is in the best interests of children, does not create artificial legal relationships and does not put a biological mother in the demeaning position where she has to ask the Adoption Board to make an adoption order in her favour? That is lunacy. What if the Adoption Board refuses because it does not consider the mother appropriate? She remains the mother of the child. The procedure is quite bizarre.
This debate started an hour and a half later than we thought and will finish at 1 p.m. I have probably talked too long. There is a real concern in regard to this issue. If the Minister of State does not like the terms of the amendments I have tabled, will he, between now and when we come back to deal with Report Stage, table his own? Let us make one or two real reforms to our adoption law that make sense based on the real issues being dealt with in the area of domestic adoption.
Before calling Deputy Jan O'Sullivan, I remind her that there is only one minute remaining before we must adjourn the debate.
I will begin my contribution now and continue when the debate resumes. Deputy Shatter's proposals are sensible, are in the interests of the child and address real issues, particularly the issue of natural mothers having to adopt their own children through the Adoption Board, which makes no sense whatsoever.
In the short time remaining I propose to address the issue raised by Deputy Shatter regarding the rights and responsibilities of fathers. In practical terms he is probably right that the majority of fathers in the circumstances in which he described, where there is no relationship with the mother, do not participate very much in their children's lives. However, I am strongly of the view that we must challenge and change that culture. We must give fathers both the opportunity and the responsibility to involve themselves in their children's lives. That is the cultural change towards which we must work. We should not accept the situation as a given and simply move on from there.
There are many fathers who would love to have a say in their children's lives; I have met some of them. There are two sides to this and the father's side has not yet been given the type of protection in law, in respect of the rules regarding lone parent's benefit and so on, that is required in the interests of the child. That may be a debate for another day.
It is an important debate. I support Deputy Shatter's amendments. Amendment No. 72, in my name, addresses a slightly different situation. As it is approaching 1 p.m. I will wait until the next occasion to speak to it. What I am speaking about is the rights of people, previously involved with a child, to some possibility of access following the adoption order.
Before the debate is adjourned I wish to put on record that the fathers of whom I was speaking are not fathers who are part of a couple who are cohabiting with each other. I was speaking about circumstances where children are born outside of marriage and where the couple are not cohabiting.
I hope I clarified that matter.
I do not wish to be misunderstood on that issue.
Debate adjourned.