JOINT COMMITTEE ON HEALTH AND CHILDREN debate -
Tuesday, 8 Dec 2009

Adoption Bill 2009: Discussion with International Adoption Association.

Chairman

On behalf of the joint committee I welcome to the meeting Mr. Shane Downer and his colleagues from the International Adoption Association. Before we begin, I draw witnesses' attention to the fact that while members of the joint committee have absolute privilege this privilege does not apply to them. Members are reminded of the long-standing parliamentary practice to the effect that Members should not comment on, criticise or make charges against a person outside the House or an official by name or in such way as to make him or her identifiable.

The joint committee will first hear a brief presentation of, perhaps, five minutes from Mr. Downer following which we will have a questions and answers session. Members have been circulated with the relevant papers. It is hoped we can transact our business within 30 minutes or so. We are grateful to the delegation for appearing before us. The Adoption Bill will shortly move to Committee Stage and we are most anxious to engage with all interested parties to ensure the joint committee is fully informed as it undertakes the job of processing Committee Stage of that important legislation. I now invite Mr. Downer to introduce his team.

Deputy Alan Shatter

Before Mr. Downer begins, I do not wish people here to be misled. I do not know if these papers were furnished to members of the committee in advance of today's meeting. They were only put before me five minutes ago. I do not know whether papers distributed by other groups have been furnished in advance to members of the committee. If not, it is important the groups are aware of this because it may be that those who are here — there are not too many of us — have not seen this paper in advance.

Chairman

I can confirm that all members of the committee have received the full detailed submission provided to us. Deputy Shatter who is not a member of the committee would not have received them. I welcome Deputy Shatter to the meeting. I am sure he will partake in the proceedings. I now invite Mr. Downer to commence his summary.

Deputy Alan Shatter

When were the papers distributed to members of the committee?

Chairman

Immediately they were received, which was a week ago and some weeks ago in some instances. I would like if we could commence our business.

Mr. Shane Downer

I thank the joint committee for inviting us to this meeting today. I will first make a few brief introductions. My name is Shane Downer and I am accompanied by Mr. Brian Kearney and Ms Trish Connolly. We are all from the International Adoption Association, which is the largest support organisation of its kind in the country. We represent more than 1,300 families who have adopted or are adopting children into Ireland. Ms Connolly has adopted from China, Mr. Kearney has adopted from Russia and I have adopted from Vietnam.

The IAA welcomes the opportunity to appear before the joint committee in advance of its consideration of the Adoption Bill. We have already made a formal submission concerning some issues in the Bill and look forward to dealing with these in the questions and answers session. I would first like to comment briefly on the right to a family, the importance of the Hague Convention and the best interests of the child, before concluding with a reminder of the points made in our formal submission.

There has been much debate on the Adoption Bill dealing with transition measures, waiting times and so on. Some of the debate has focused on applicants, their experiences at the hands of the HSE and the current lack of bilateral agreements with particular countries. Let me be absolutely clear, in our opinion there is no absolute or otherwise right to a family on behalf of adoptive parents. As adoptive applicants, we do not have the right to be adoptive parents. In fact, the only person who has the right to a family is a child. This right is contained in the UN Convention on the Rights of the Child and is specifically referenced in the preamble to the Hague Convention. We do not, therefore, represent people who demand to be allowed to adopt children or who are desperate to have children at any cost. We do represent people who view the best interests of each and every child as the most important consideration in any decision concerning adoption or other forms of child care or protection. We, therefore, categorically support the ratification of the Hague Convention. There is a view in some quarters that our community is against Hague. We are often asked do we really want Hague? Please allow me to be unequivocal once more — we would pass the Bill in the morning if we could. It is not our job to do so, but that is our opinion. We have been asking for this Bill for several years. Ratification of the convention is the right thing to do and it is important that we do it as soon as possible.

This does not exclude our responsibility to identify shortcomings, if any, in the Bill. To be fair to the Minister of State with responsibility for children, he has engaged with our community in this regard. While we do not always agree, at least we have been able to discuss our differences and find some points of agreement. In addition, we recognise and applaud the efforts of the Adoption Board of Ireland in informing our community on matters relating to adoption in general and, more recently, its commitment, as illustrated by its work in preparation for the ratification of the convention.

This Bill is worthy of everyone's efforts to improve our system of adoption in the hope that we can provide more safe, secure and loving homes for children in need. It is unfortunate, therefore, when a representative of the Office of the Minister for Children and Youth Affairs states in front of the other 46 member states of the Council of Europe and representatives of the Hague Convention and the European Commission that there are lower standards applied in inter-country adoption into Ireland than domestically and, more seriously, that the passage of the Bill is subject to severe pressure from support groups seeking to water down future standards, as occurred last week in Strasbourg. Such representations are an insult to adoptive parents and applicants and, more seriously, disparage existing adoptions as well as future ones. The idea that our community operates with anything other than the best interests of the child is unworthy. The assessment of applicants for inter-country adoption in Ireland is rightly robust. Adoption should not be easy and not everyone is suitable to be an adoptive parent. For those who are approved, adoptions of children are conducted in good faith by committed, trained and suitable applicants who know what their responsibilities are.

This brings me onto the most important consideration in adoption, namely, the best interests of the child. While this concept is not specifically defined in the Bill and may be undefinable, it underpins every aspect of the Hague Convention. Adoption is and should only be a service for children. The challenge of how to determine the best interests of the child goes beyond separate legal, medical, social or psychological interpretation. It must be informed by a unique and holistic interpretation, including all of the above for each and every child. We should start by considering those children most in need who currently reside in institutions.

Let us consider one such child, who shares a cot with another child or two, who may receive one hour of one-to-one contact with a carer every 24 hours and who has learned the futility of crying because it brings no comfort. Orphanages can be silent places, as each of the three of us present can attest. Leaving children in such circumstances is not in their best interests and this should be to the forefront of consideration regarding the issues identified with the Bill.

While we do not seek any dilution of standards, we have identified five issues in our submission. The exclusion of adoptions from non-Hague or non-bilateral agreement countries is not a requirement of the Hague Convention. The convention requires that adoptions are conducted according to its standards, but does not exclude children in need based on their origins. The likelihood of children ending up in the High Court due to a failure to allow for appropriate transition from the existing system to the new regime is also a risk. The result could place 400 or 450 children in a legal limbo. We are all aware of the appalling waiting times for assessments, which effectively means that adopters can be as much as three years older than they need to be when welcoming children into their families. Adoptive parents require a certain amount of energy, so this is an important point.

The lack of a grandfather clause is an issue. If I was a child adopted from Russia, the grandfather clause would allow my adoptive parents to adopt another child from Russia, which would allow me to have a sibling from a similar background and birth culture. The continuing discrimination of sole applicants in terms of their eligibility to be considered as adoptive parents for children in need does not recognise the modern profile of Irish family structures. These issues should be discussed in the best interests of children. We look forward to doing so.

Chairman

I thank Mr. Downer for being so concise. Does Mr. Kearney or Ms Connolly wish to make a brief contribution at this stage?

Ms Trish Connolly

We concur with all of Mr. Downer's comments. We welcome the Hague Convention fully and support it, as it is in the best interests of the child.

Mr. Brian Kearney

It is also in the best interests of the adoptive parents. It safeguards the process.

Chairman

I thank our guests for their introductory remarks.

Deputy Alan Shatter

I thank the delegates for attending. Each of the issues highlighted are areas in which the legislation has fundamental gaps. Like our guests, I welcome the fact that we will finally apply the Hague Convention to Ireland, but the legislation is flawed in a number of respects. Mr. Downer highlighted some of them as they apply to inter-country adoptions.

The particular issue is that the Minister of State and the Government need to be persuaded that the legislation should be amended. I do not know whether Second Stage in the Dáil will conclude before Christmas. Irrespective of whether it does, Committee Stage will not be taken until the new year. As it will be taken in this committee, the Deputies present would be assisted were the delegates' group to consider what amendments it would like to have made. Fine Gael is already considering amendments.

Will our guests expand on one or two of the issues raised? It is my experience that, when one is being assessed for an inter-country adoption, the length of time it takes to complete the assessment largely depends on which part of the country one lives in. The procedure is outrageously slow and puts unnecessary pressure on couples and individuals. Nothing in the legislation addresses this matter. Do our guests agree that the legislation needs to be amended to impose a specific provision on the HSE, which undertakes the assessments, to ensure that a couple or individual's assessment is completed within a particular timescale? A reasonable health authority undertaking assessments should, while having room to manoeuvre, have the capacity to complete assessments within 18 months of receiving an application from a couple or an individual. I would be interested in our guests' response.

Have the delegates experienced difficulties of a nature that the Bill fails to address? I know of a number of people who have been adjudged to be unsuitable to adopt by the HSE for reasons that are unsustainable. Following hearings in front of the Adoption Board, it made declarations of suitability. The people in question found themselves in no man's land or no woman's land, whichever way one wishes to express it. They had the board's declaration of suitability, but the HSE's assessment report viewed them as being unsuitable. Armed with contradictory declarations from different arms of the State, they are expected to be able to adopt abroad. The HSE will not amend its report. Since the Bill contains no provision to address this anomaly, do our guests regard this situation as being acceptable?

I believe that I needed to raise these issues and get the delegates to expand upon them. I welcome their submission and agree with their comments.

Deputy Jan O’Sullivan

I welcome the delegation and thank it for this and the previous submissions. I wish to tease out some issues, as the witnesses raised a concern. Everyone welcomes the legislation's introduction and wishes to see its implementation as soon as possible, but there are areas of concern, the greatest of which relates to interim arrangements and what will happen to people already in the process. The original submission to the committee pointed out anomalies in the Bill, including conflicts between sections 63, 67 and 175 in respect of people who have already been assessed or are in the process. I do not know how precise the witnesses can be, but in what way does the legislation need to be changed with regard to addressing these issues?

None of us is sure of the answer to another question. What stage in the process should prospective adoptive parents have reached before being given permission to move ahead with the process following the legislation's implementation? I have in mind countries like Vietnam, Russia and Ethiopia, although the latter is a different case in that it will not be able to ratify the convention. Mexico also poses issues, as its type of adoption does not appear to be in accordance with the methods of Hague. If we have time, I would be interested in the witnesses' opinions on how to address these matters.

Where Vietnam is concerned, many Irish parents are a long way down the road, often years. As Mr. Downer rightly stated, some children are ready to be adopted by a welcoming Irish family, but issues have been raised in respect of Vietnam and elsewhere. Regarding interim arrangements that must be made before the Bill's full implementation and the convention's ratification by Vietnam, Russia and so on, what mechanism could be put in place to ensure the protection of the best interests of the child and also ensure a caring and welcoming family can provide a home? As this is the most difficult issue with which we are trying to grapple, I would be interested in the group's response.

How will the grandfather clause be implemented? If someone already has a child from a particular culture, it is understandable that he or she would like to be able to adopt another child from the same culture.

Deputy Rory O’Hanlon

I have two brief questions. First, what are the main amendments to the Bill that the delegates would like to see? Second, their key proposal relates to countries with which we have bilateral agreements. What can we do to improve the situation where there are difficulties with a number of those countries?

Deputy James Reilly

I welcome Mr. Downer and his colleagues, but I apologise because I must go to the Front Bench. Deputies Shatter and O'Sullivan covered most of the points I was going to raise. One of the major issues surrounding the grandfather clause relates to the length of time people need to wait to be assessed a second time, having already been assessed and in receipt of a declaration. Unless something terrible has occurred in the interim that shows people to be unfit parents, I do not understand the year-long gap. Perhaps our guests will comment.

We are fully supportive in respect of the other matters raised. In fairness to the Government, the Adoption Bill is important and is welcomed by us all, but there is an opportunity to refine it. A long time will pass until it is before us again. Spending the extra few weeks to get it right and to take on board the concerns of those who are at the forefront, namely, adoptive parents and the children in question, would be worthwhile.

Chairman

Quite a number of questions were raised. Our guests might want to share them out.

Mr. Shane Downer

We will try to go through them and share them out. I thank Deputies for their questions and interest. I will deal with the waiting times issue first as it is at the root of many of our problems and has implications for people who have been in the process for a long time. Deputy Shatter raised a good point that the Bill uses the term "as soon as practicable" regarding the requirement to conduct an assessment. The convention uses the word "expeditiously", so this is the first conflict. We would like to understand why we cannot adopt and use the convention's terminology in the first instance as a mechanism to encourage the delivery of assessments in an appropriate timeframe.

The bottom line is that we have been assessing applicants for a number of years. As was rightly pointed out, there are variances in the waiting times across the country. If one is lucky enough to live in County Donegal, for example, the waiting time from the start of an assessment is two to four months. If one lives in Dublin, however, the time is almost three years. To a certain extent, the situations in Cork, Limerick and Galway are similar. The majority of applicants wait two to three years just to start the process.

We have been engaging with the Minister of State in this regard and would like the Bill to reflect the fact that assessments should be carried out expeditiously. The suggestion of 18 months is just one option, but a reasonable timeframe for the delivery of an assessment, including preparation, is probably 12 months. We are not simply asking the State to resolve this issue. We are leading, in that the Minister of State has expressed interest in our proposal for an alternative independent, not-for-profit and clearly regulated solution. Given the extent of the problem under the HSE's management, ours is probably a better solution. While there are some issues in this regard, we will be proposing amendments before Committee Stage.

Regarding equitable standards in applications, the assessment is based on a standardised framework. Adoption should not be easy and the assessment process should be robust. Adoption is not to be entered into lightly. It is a lifelong commitment by applicants. A framework comprising five separate standards provides a useful and equitable model for assessment. A part of the problem is that it is not being applied in the same manner throughout the country, which causes some of the issues raised by the Deputy. If we have a clearly regulated and independent provider, we may be able to make some ground in this regard.

The transition measures comprise the single greatest issue as there is the potential to leave 300 to 400 applicants in limbo. This is so because of the conflict in the draft legislation between sections 63, 67 and 175. Another problem is separate from the legislation. We must consider amendments to create the opportunity for practical and effective transition measures, but the legislation does not include provisions on building the infrastructure to enable the convention's proper ratification. We will need improved arrangements with other countries, mediation agencies and information and education on the process. It is not just a matter of proposing an amendment to solve the conflict in the Bill. It is also a question of changing our current systems. We have taken the lead in this area given our proposal of an additional mediation agency. We provide applicants with a significant amount of information and education.

Deputy O'Sullivan asked what constitutes a definable stage. In the Minister of State's opening remarks, he mentioned a definable stage. In our opinion, the latest definable stage in the current application process is declaration stage. After an applicant gets a declaration, there is no consistent requirement for him or her to engage with the Adoption Board of Ireland until after he or she has adopted and returned home and seeks to register the adoption. Therefore, there is no definable stage after declaration. The other option, which is more progressive in some regards, would be the stage at which people commence or apply for an assessment. We would like to bring it forward, but there is no later definable stage than declaration stage.

Deputy O'Sullivan also asked about specific countries. We are conscious of the timeframes. We represent people adopting from all countries. We are actively examining the reports on Vietnam and are hoping to feed back to the Minister of State directly in this regard. We will be available to discuss specific countries after the meeting, but we were hoping to discuss the Bill at a top level.

Related to this matter is that of bilateral agreements, which in and of itself fits into the transition measures. The Bill provides that we will be able to adopt from Hague and bilateral countries. This provision is based on the concept that we are excluding non-Hague countries, but it is not required by the convention and is not the route taken by most countries. Our legislation has a strict interpretation. We hope we will be able to pursue bilateral agreements with a number of countries. According to our research, two thirds of all adoptions are conducted from non-Hague countries. The relevant figure in respect of adoptions into Ireland is well over 90%. Would Mr. Kearney like to add to this point?

Mr. Brian Kearney

In 2007 there was a total of 37,000 adoptions worldwide, 40% of which were from Hague Convention ratified countries. Of the receiving countries, this was the last to the table in signing the Hague Convention. Receiving countries have long-standing relationships with sending countries. In excluding non-Hague Convention countries we are excluding children most in need. This is evident from our membership which have adopted from 43 countries, most of which might be compliant but have not ratified the Hague Convention. Russia and Ethiopia are included in this group.

Mr. Shane Downer

To finalise that point, I will refer to an interesting statistic. In Africa there are 7.7 million double orphans, that is, neither parent is alive. If African countries want to place those children in loving families — all of the research states the best place for a child is in a permanent arrangement — they will need to increase the level of domestic adoption by a factor of 2,000. We are, therefore, dealing with large numbers.

Mr. Brian Kearney

To look after double orphans worldwide, the number of global adoptions would need to increase by a factor of 60. There is a considerable shortfall in the current level.

Deputy Alan Shatter

I agree with what has been said, but a related issue seems to have become lost. It was not until the introduction of the Adoption Bill 1990, with which I was involved in the Dáil, that legislation of any nature recognised foreign adoptions. The 2009 legislation will recognise adoptions effected with Hague Convention countries or countries with which we have bilateral relations.

In the context of proceeding in the child's best interests, we must address a concern. If one puts in place arrangements to facilitate the recognition of adoptions effected in countries which have not signed up to the Hague Convention, one must ensure minimum standards are applied within these countries. The State has failed abjectly in ensuring such standards apply in the small number of countries, including Vietnam, with which it has bilateral relations. A group composed of persons appointed by the Minister of State from his Department and Vietnam was created under the bilateral agreement to review the manner in which the process worked. However, the review group never met seriously or did anything that mattered. Only now have matters arisen in the light of the ISS report. The State's capacity to date to monitor our small number of bilateral arrangements has been poor and poses an issue for the legislation.

I do not know whether our guests addressed another issue that has been raised. Under the 1991 Act, we recognise adoptions if they are effected by individuals who are domiciled, habitually resident or ordinarily resident in a foreign country. In non-legal terms, this applies to, for example, an Irish couple who leave Dublin to live in London, Manchester, Birmingham or somewhere in Africa for two or three years. As long as the couple are ordinarily resident there and go through a proper assessment and adoption process according to that country's laws, we will recognise the adoption. That was not the case before 1991. Have our guests addressed the significant anomaly in the Bill, whereby an individual genuinely living abroad, who adopts abroad and will return to Ireland after the enactment of this legislation might find that the adoption will not be recognised?

Mr. Shane Downer

I will address the last point before reverting to the grandfather clause and the other issue raised. The Bill is 110 pages long and we have been studying it a lot. The area in question is one we are examining. We would be willing to try to draft an additional submission in recognition of the forms of adoption provided for in sections 2 to 4, inclusive, of the 1991 Act.

The point on bilateral agreements with non-Hague Convention countries relates to the grandfather clause. I will briefly cite what the deputy head, Professor William Duncan, said. Last week in Strasbourg he stated we could not create a perfect world through legislation. A strength of the convention is that it encourages receiving countries to work with sending countries in building their child protection systems. This places a keen onus on us and other countries. It is interesting that some of the most respected receiving countries such as some of the Scandinavian countries step forward in the process and place extra requirements on their adopters and mechanisms to ensure adoptions from non-Hague Convention countries are conducted to the standards set in the convention.

We were expecting the grandfather clause to be included, as promised by the previous Minister of State with responsibility for children, Deputy Brian Lenihan. The Adoption Board in its 2005 annual report stated there would be such a clause. This would create an opportunity for children to have siblings from their cultures and communities of birth. However, there is a problem with section 81(1)(c) in this respect. If a blood sibling of an adopted child becomes available in a country from which we can no longer adopt, it will be impossible for the family in question to adopt that sibling. The Bill states: “The prospective adopters are relatives of the child”. However, the relationship with the second child would be through the child already adopted. Since there is no grandfather clause, a serious issue is posed in terms of the preclusion of the reunification of blood siblings.

We have been studying the Bill for a while and will revert to the committee in respect of the position on some countries such as Vietnam and other questions. We hope to engage with the Minister of State concerning the position in Vietnam specifically, as per his request, and to submit amendments to the committee on this and other issues.

Chairman

Are there any other matters before we conclude? Perhaps everyone is happy. I thank the delegates for their presentation and dealing with——

Deputy Alan Shatter

There is one issue, in that the HSE's approach to applicants' ages depends on the area in which they live. Do our guests wish to make any observations in this regard? I have met people in their mid-40s who married late in life, did not have their own children and, wishing to adopt, had sought an assessment. It seems to be the ideological view of some social workers that, if even one member of the couple has reached 50 years of age, he or she is age-impaired and should not be allowed to adopt. This poses two problems. First, the approach in various HSE areas differs under the current legislation. Second, the Bill seems to elevate age as a greater issue of concern than was previously the case, copperfastening the perspective held. In Dublin someone who has applied for an assessment may wait three or four years, which means the clock is ticking. As a consequence, the HSE's delay in undertaking an assessment may lead to its report deeming applicants to be unsuitable on age grounds when there was no such difficulty when they first applied.

Chairman

Mr. Downer may deal briefly with this question before we conclude.

Mr. Shane Downer

As I said at the start, the waiting time is the cause of many of our problems. If we can get rid of this ridiculous three-year waiting period we will start to mitigate some of the other issues.

We come across the issue of age quite frequently. Many applicants and members have told us that social workers have indicated they are too old. The fact is that there is no age limit in today's legislation. It is about the best interest of the child. Every applicant should be assessed on his or her own merits. I have had this conversation with the HSE; there are 55 year olds who are young enough and 45 year olds who are too old. Every case should be taken on its merits.

Ms Trish Connolly

I reiterate that while we are sitting here discussing the age of applicants, there are children worldwide sitting in homes and institutions getting older. It is true that our applicants are getting older. The average age of a child coming into Ireland is 18 months to two years. We need transition measures to take those children home and give them a family.

Chairman

That is a good point on which to conclude. I thank the representatives for their presentation and we look forward to continuing communication from them.

Sitting suspended at 11.21 a.m. and resumed at 11.22 p.m.