Adoption (Amendment) Bill 2016: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.

Seanad amendments Nos. 1, 4 and 5 are related and may be discussed together.

Seanad amendment No. 1:
Section 9: In page 11, lines 21 to 23, to delete all words from and including “shall,” in line 21 down to and including “child” in line 23 and substitute “shall determine how best to ascertain the views of the child, in so far as practicable,”.

These are Government amendments brought forward in the Seanad to amend section 9 of the Adoption (Amendment) Bill. Section 9 of the Bill amends section 19 of the Adoption Act 2010 by substituting a new section 19 to reflect Article 42A of the Constitution. This section provides that in the resolution of any matter, application or proceedings referred to in the section the Adoption Authority of Ireland or the court, as the case may be, shall, in respect of any child who is capable of forming his or her own views, ascertain the child's views and such views shall be given due weight having regard to the age and maturity of the child.

Section 9(4) provides that the Minister may make regulations prescribing the procedures by which the authority or the court shall determine how best to ascertain and give due weight to the views of the child in any matter, application or proceedings. As initially drafted, it is possible to interpret this provision as attempting to provide that the Minister has the power to regulate how a court reaches its decision by prescribing the weight to be attached to the views of the child. This is not my intention. The policy intention of these amendments is to prescribe the mechanisms by which the views of the child can be ascertained so that the authority or the court, as the case may be, can give those their due weight in its deliberations.

Amendment No. 1 proposes to amend section 19 of the 2010 Act to clarify that the regulations made under this section shall only prescribe the mechanisms by which the views of the child shall be ascertained and that it is a matter for the court or the authority to determine the due weight that is to be attached to the child's views.

Section 9(6), as inserted into section 19 of the 2010 Act, provides that in determining for the purposes of subsection (3) how the child's views shall be ascertained and heard and how such views shall be given due weight having regard to the age and maturity of the child the authority or the court, as the case may be, shall have regard to the regulations made by the Minister under subsection (4). Further consideration has been given to this subsection and it has been decided that it is not required. In these circumstances amendment No. 5 proposes to delete subsection (6).

Amendment No. 4 is a technical amendment following on from the deletion of subsection (6).

Seanad amendment agreed to.

Amendments Nos. 2 and 3 are related and may be discussed together.

Seanad amendment No. 2:
Section 9: In page 11, line 27, to delete "in person or in writing" and substitute "in person or in writing or by other means (including by electronic means)".

Amendments Nos. 2 and 3 are Government amendments introduced in the Seanad. They both amend section 9 of the Bill. Section 9 provides that the Minister may make regulations to make provision for the procedures that are to apply to enable a child to present his or her views in person or in writing to the authority or court, as the case may be. It also provides that the Minister may make regulations to make provision for the procedures that are to apply to enable a child to nominate an appropriate person to present the child's views orally or in writing to the authority or court. As initially drafted, the child is restricted to expressing his or her views in person or in writing. The amendment to the section attempts to future-proof the legislation to ensure a child who may wish to use other means, including electronic means, to give his or her views to the court or authority may do so. The provision will also apply in cases where the child nominates an appropriate person to present his or her views to the authority or court.

Seanad amendment agreed to.
Seanad amendment No. 3:
Section 9: In page 11, line 31, to delete "orally or in writing" and substitute "orally or in writing or by other means (including by electronic means)".
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 9: In page 12, line 29, to delete "the regulations." and substitute "the regulations.".".
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 9: In page 12, to delete lines 30 to 34.
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 24: In page 20, between lines 6 and 7, to insert the following:
"(a) by the insertion of the following paragraph in subsection (1):
"(a) if the Child and Family Agency is satisfied that every reasonable effort has been made to support the parents of the child to whom the declaration under section 53(1) relates,".".

Amendment No. 6 was tabled by Senators Lynn Ruane and Frances Black on Committee Stage in the Seanad. It is an amendment to section 24, which inserts a new subsection (a) into section 54(1) of the Adoption Act 2010. This provision will present challenges and we have been working with Senator Ruane on it. Following the enactment of the Bill, I will continue to work with my officials, Tusla, the Adoption Authority of Ireland and the Office of the Attorney General to address these challenges. I agree with Senator Ruane that we need to make sure parents are supported. In doing this, we must also ensure there is no risk posed to the adoption when it is in the best interests of the child. I thank Senator Ruane for the considerable time and effort she put in to engaging with me and my officials on this amendment.

Seanad amendment agreed to.
Seanad amendment No. 7:
Section 42: In page 26, between lines 5 and 6, to insert the following:
"Review, consultation and report
42. Not later than 10 months after the passing of this Act, the Minister shall initiate a review and consultation in respect of the potential introduction of open or semi-open adoption in Ireland. Such a review shall include public consultation and legal and policy analysis. A report on the findings of this review and consultation shall be laid before the Houses of the Oireachtas not later than 18 months after its initiation.".

I accepted Senator Alice Mary Higgins's amendment No. 7 in the Seanad. Like the Senator, I support the principle of open adoption and acknowledge its benefits. The amendment requires the initiation of a review and consultation process in respect of the potential introduction of open or semi-open adoption. Open adoption generally means a form of adoption in which the biological or adoptive families have access to varying degrees of each other's personal information and an option for contact. However, we will need to reach a better understanding of what we mean by these terms.

My Department's overriding approach to any change in adoption policy is that primary focus must be given to the child's best interests. This relates to all decisions about a child's future. Any consideration of open adoption must have a child-centred approach, that is, not what is desirable for either set of parents but what is in the best interest of the child. It must take account of the voice of the child in that process.

The review will also require a full examination of a number of issues related to its retrospective application, having regard to the legal basis of existing adoptions and the constitutional and legal rights of those involved; possible implications of inter-country adoption; the operation of arrangements with other countries; and circumstances where it may not be in the best interests of the child to be subject to an open adoption.

I have given a commitment to embark on a full review of adoption policy and legislation next year and this will include examining the concept of open adoption. An initial scoping exercise has already taken place. As the outcomes of this review will be influenced by a wide range of issues, undertaking this work within the timescale will be very challenging. Notwithstanding these concerns, I acknowledge the importance of this work. I extend my thanks to Senator Alice Mary Higgins for this helpful and constructive amendment which is a further step in modernising our adoption practices.

Seanad amendment agreed to.
Seanad amendments reported.