In recommending this Bill to the House, I would like to begin, as I did in the Dáil, by stressing that the amendments it proposes are not radical and are entirely in the nature of modifications to a statute which has worked exceptionally well and which has already, in the course of ten years, enabled the benefits of legal adoption to be brought to nearly 7,000 children. I think it right, also, that I should again take the opportunity to say that the success of the Act has been due, not only to the sound principles on which it was based, but to the excellent, and indeed indispensable, work that has been done in giving effect to the Act both by the Adoption Board and by registered adoption societies.
Everybody concerned with the welfare of children will readily acknowledge the importance of the work done by the Board but, in acknowledging its importance, we may perhaps be inclined to overlook the fact that the work is also very time consuming and that it is a voluntary Board. The time devoted by members of the Board to adoption work is very considerable incline deed. As I said in the Dáil, this country is well served by people who sacrifice their time and leisure to voluntary work on various Boards of this kind but there can be few Boards, if any, which make such demands on the time of their members as An Bórd Uchtála.
The other vital factor in the successful operation of the system of legal adoption has been the work of the Registered Adoption Societies. Most adoptions in this country are arranged by these societies and the proportion is increasing: they now deal with nearly 80% of all placements. They care for and maintain unwanted children, including children who can never be legally adopted, and, where children are eligible and suitable for adoption, the society concerned has the task of seeking and finding families willing and able to adopt them. These societies, therefore, do all the basic work and the Board's rôle, indispensable though it be, is supervisory only.
During the debate in the Dáil, I was asked for some further information about the registration of these societies, so perhaps the House would wish me to refer to this matter here now. The first point I should like to stress is that all adoption societies are, and must be, purely charitable organisations. More specifically, the requirement, set out in Section 36 of the 1952 Act, is that—
"the Board shall not register any body of persons unless the Board is satisfied—
(a) that the body is one which exists only for the purpose of promoting charitable, benevolent or philanthropic objects, whether or not any such object is charitable within the meaning of any rule of law, and
(b) that the body is competent to discharge the obligations imposed upon Registered Adoption Societies under this Act."
I should say, in passing, that the decision of the Oireachtas to restrict this function to charitable organisations, while undoubtedly prudent, was quite possibly unnecessary for it is not an activity which shows or can hope to show a material profit or which any group of persons would be likely to undertake and keep up except as a charitable or philanthropic undertaking.
The Board is entitled, by Section 37 of the 1952 Act, to cancel the registration of a society on any ground which would require or entitle the Board to refuse an application for registration or if it appears to the Board that the requirements of the Act are not being adequately complied with by the society or if an offence under the Act is committed by the society or by any person acting on its behalf. Finally, registered adoption societies, and every officer of such society, are obliged to give, at any time, at the request of the Board, full information in regard to the constitution, membership, employees, organisation and activities of the society and at all reasonable times to permit a member or authorised officer of the Board to inspect and make copies of all books and documents relating to adoption in the possession or control of the society.
It will be seen, therefore, that the Board has comprehensive powers of control over adoption societies. It is quite evident that the Board, in the 10 years or so that it has been in existence, has been generally satisfied with the standards observed by the societies, and I say this not just because the societies have been kept on the register by the Board but because, as I understand, the Board has never, as far as the Board can recall, had occasion even in a single instance to reject, on grounds of unsuitability, an application for an adoption order sponsored by an adoption society or in respect of a child whose placement was arranged by a society.
This does not mean that the Board, or indeed the societies themselves, do not realise that there is room for improvement. The societies would be the last to suggest otherwise and I have no doubt that they, more than anybody else, are concerned to achieve a gradual improvement in standards over the years.
Turning to the provisions of the Bill itself, I think I can say that it received a very good reception in the other House. Some points which I myself had regarded as of little importance were a cause of concern to some Deputies and, as members of this House may have similar doubts, I should like to refer to them in particular as I go along.
Section 2 of the Bill proposes to allow the adoption of legitimated children in certain circumstances—but not where the birth has been formally re-registered under the Legitimacy Act, 1931. As the explanatory memorandum points out, the main object of this section is a practical one, in that it will relieve the Board of the need to have last-minute inquiries made, as they frequently have to do at the moment, as a safeguard, to satisfy themselves beyond doubt that the mother of the child has not married the father between the time she gave her consent to the adoption and the day the application comes formally before the Board. In all but the rarest cases, these inquiries serve no purpose other than to give everybody concerned an assurance that the adoption order is valid and cannot be called in question in years to come on the grounds that the child had been legitimated and was therefore ineligible for adoption.
Apart from that practical problem, there have been some cases where a child who was eligible for adoption when it was placed with the prospective adopters became ineligible because the natural parents married before the adoption order was made. In some such cases, the natural parents find themselves unable to acknowledge the child and the barrier to legal adoption has no other result than that the child is kept by the prospective adopters without the benefit of legal adoption or is even sent back to spend its childhood in an institution. It is not in the general interests of legal adoption that a situation could arise in which a couple take a child into their home with a view to its adoption, having been fully satisfied that it was legally eligible for adoption, only to find that at a later stage the child becomes ineligible but is still unwanted by its natural parents who are not prepared to recognise it.
Section 3 of the Bill proposes to allow the Board, at its discretion, to extend by up to two years the time for making an application for an adoption order. Under existing law, the application must be made before the child has reached the age of seven: the amendment will permit that limit to be raised to nine, but only where the child has been in the family since before its seventh birthday. The object of the amendment is to cater for the occasional case where, perhaps through an oversight, an application for an adoption order is deferred too long or in which an adoption society has not quite satisfied itself as to the suitability of a prospective adopter.
This section, of course, raises the general question of the desirability, or otherwise, of setting age limits for children who may be adopted. I think it can be said that practically everybody agrees that adoption while a child is very young, rather than at the age of ten or 12, should be the norm. On the other hand, most people also will agree— certainly I would agree— that there are exceptional cases in which legal adoption of an older child might take place with complete success. The question, then, is whether it is desirable to try to make provision for these exceptional cases.
My attitude is that we should not try to cater for these exceptional cases and that to attempt to do so would endanger the whole structure and I think it is right that I should make clear to the House that my attitude in this regard is, to my certain knowledge, shared by many qualified persons with long experience of this kind of work.
In explaining or defending this attitude, I think it is important to make a distinction. There is a fundamental difference between the problems that arise in relation to the legal adoption of an older child who has been with the family from its early childhood and the adoption of an older child who has been placed with the family much later. Where a child has been with a family since early childhood, it is quite probable that in many cases an adoption order could be made without any significant risk and with benefit to the child and indeed the Board recommended that that should be allowed provided the child was taken into the family before its seventh birthday.
We cannot, however, consider an individual case in isolation or by reference only to the conditions that obtain at the particular time the application for the adoption order is made. If provision for adoption in such a case were made, we must have regard to the probable repercussions on other cases and, unfortunately, experience has shown very clearly that if the law allows adoptive parents to defer indefinitely the making of an application for an adoption order, quite a few of them will neglect to apply while the child is still young and the child spends most of its early years without the security which an adoption order brings and without having available to it a birth certificate in the surname of the adoptive parents. It is one thing to make provision for cases that arose in the past, such as was made in Section 19 of the 1952 Act and is proposed again in Section 3 of this Bill, but, for all future cases, the strict statutory provision that application may in no circumstances be deferred until the child has passed its ninth birthday is, I submit, most definitely desirable in the general interests of all children placed with families with a view to adoption.
When we come to consider the question of legally adopting children who were not taken into the family at an early age, much more serious problems arise. All the experts are agreed that there are special difficulties and dangers associated with the adoption of older children. In the Dáil, I quoted extracts from a document produced by the European Seminar on Inter-country Adoption, prepared under United Nations auspices, and while that document dealt primarily with inter-country adoption it stressed repeatedly that legal adoption of an older child, even in its own country, is fraught with so many dangers that it should not be contemplated except under the guidance of the most highly skilled experts in this field. If any Senator would like me, at a later stage, to quote these extracts again, I shall be glad to do so but in the meantime they are available in the Official Report of the debate in the Dáil.
There are two points about this that I would like to stress. The first is that we have not yet developed in this country any substantial body of specialists in this particular field, even though progress is certainly being made. The second, and perhaps more important, point is that, unlike most countries, where the law permits the adoption of legitimate children and, consequently, the re-adoption of adopted children, an adoption order, once validly made under our law, is final. This means that if a mistake is made, it cannot be rectified but that is the price that we have to pay for the permanence of legal adoption with the benefits that it brings to the general body of adopted children who are placed in the same legal position as if they had been born into the families into which they have been adopted. Since there can be no going back on an adoption order, there is no room for mistakes and, consequently, no significant risk can be taken in individual cases. It would require only a very few failures to cast a shadow over the whole structure of legal adoption.
Section 5 deals with age limits of the adopters. The present minimum age limit for adopters, other than relatives, is 30 years. The Bill proposes to reduce the limit to 25 years where a couple have been married for at least three years. This was recommended by the Board and has, I think, been generally welcomed.
Section 5 also proposes to drop the present requirement that an applicant for an adoption order must, unless he has resided here for five years, be an Irish citizen. This proposal caused some criticism in the Dáil and, as Senators may have seen, from some organisations outside. I am quite satisfied that these criticisms are based on a misunderstanding of what is involved and I hope to convince the House that there is nothing whatsoever objectionable in the proposal.
I would like to stress that, apart from this particular provision, there is a provision in the law—Section 11 of the 1952 Act—to the effect that applicants for an adoption order must be residing here at the time of the application. It is not proposed to alter that provision. There is, therefore, no question whatsoever that this provision will mean that foreigners can fly in here, put up in an hotel, obtain an adoption order and fly out again in a week's time. They have to be residing here, and that means having their home here. What the proposal does mean is that foreigners who transfer their residence to this country will not be barred from adopting a child during the first five years of their residence here. There is no reason why they should be.
This provision in no way modifies the strict obligation on the Board not to grant an adoption order unless they are satisfied as to the suitability of the applicants, and if the Board are satisfied that a foreigner resident here is suitable—may I stress that it is only if he is resident here that the provision has any application—there is no reason why he should not be allowed to adopt a child. I would like to mention, too, that not only is the existing prohibition arbitrary in that it excludes quite suitable applicants but it has no merit as a safeguard. Irish citizenship has no direct bearing on a person's contacts with this country and in no way assists or facilitates the Board in deciding whether the applicant is suitable. In fact an Irish citizen may have been born abroad and may have lived abroad all his life. And, of course, under the 1952 Act, only the husband need be a citizen.
It is significant that, when this country was represented recently at a Council of Europe Conference on legal adoption, and a proposal was made that countries should never forbid legal adoption merely on the ground that the applicants were not citizens, it turned out that no country in the Council, apart from ourselves, prohibited resident foreigners from adopting a child. Admittedly our law does not prohibit them completely. They may adopt after five years, but this concession is practically valueless since by then they are eligible for naturalisation anyway.
Section 6 of the Bill relates to religion. Section 12 of the 1952 Act provides that an adoption order may not be made unless the applicant, or applicants, the child and the child's mother are all of the same religion. The Board may, however, having regard to the special circumstances of a particular case, make an adoption order although all these persons are not of the same religion, provided each of them belongs to one of the following religions: the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, the Baptist Union of Ireland and the Brethren, commonly known as the Plymouth Brethren.
This provision in the 1952 Act was inserted at the joint request of the authorised representatives of the religions that I have mentioned. Those representatives and the representatives of the Salvation Army have now jointly requested that the Salvation Army be added to the list. I am sure that the House will readily agree to this request, and Section 6 proposes accordingly.
Section 7 is only a drafting amendment, to clear up a possible defect in those provisions of the 1952 Act relating to the fixing of a date of birth for a foundling or other person whose date of birth is unknown. The law as it stands enables the Board to fix a date of birth in such cases and that date of birth is accepted for all purposes, but it is not certain that if the actual date of birth subsequently becomes known the Board is entitled to amend it in the records and to authorise the Registrar of Births to amend the register. Section 7 proposes to make it clear that the Board has this power.
In moving the Second Reading of the Bill in the Dáil, I described what is now section 8—it was then section 7— of the Bill, relating to interim orders, as merely a drafting amendment. I was challenged on that, so, to avoid an unnecessary controversy on words, I would like now simply to explain what the section does. Under the 1952 Act, the Board is entitled to make an interim order where, but only where, it would be lawful for them to make an adoption order, that is a final order. It is, however, lawful for the Board to make an adoption order only where they are satisfied not only that the adopters and the child are eligible as to age and in respect of matters capable of being proved by documentary evidence, but also that the adopters are persons of good moral character, have sufficient means to adopt the child, and are generally suitable persons in whom to vest parental rights.
The generally accepted function of an interim order, not only in this country but elsewhere, is that it serves as a provisional approval by the competent authority, but subject to the further test of a trial period. In other words, it is envisaged that an interim order may be granted where the competent authority is fairly well satisfied but may have some doubts on some aspect of suitability—perhaps it may be the health of the adopters or it may be the ability of the adopters and the child to establish a parent-child relationship. It was suggested in the Dáil that the Board should never make an interim order unless absolutely satisfied as to the suitability of the applicants, and that the function of the interim order should be to resolve some doubt about some such matter as the environment, but that is an unreal suggestion, in my opinion. "Suitability" of the adopters does not mean suitability in the abstract, but suitability in relation to the particular child in respect of whom the adoption order is sought and it includes such matters as health and environment in so far as these are relevant to the Board's decision whether or not to grant an adoption order. There is no doubt whatsoever that an interim order is designed precisely to test the suitability of the adopters and that, as the 1952 Act is worded on this particular point, it may very well be that the Board could never lawfully make an interim order.
Section 9 of the Bill is merely a drafting point to remove a doubt about the Board's power to adjourn applications. Section 10 of the Bill is an important section, which has caused some little controversy, much of which is based on a misunderstanding of its implications and, it may be thought, insufficient acquaintance with the realities.
In recommending this section to the Seanad, I would like to repeat that what it proposes is to remove an obstacle to legal adoption that was imposed, quite unwittingly I am certain, by the Oireachtas when passing the Children (Amendment) Act, 1957. The relevant provision of the 1957 Act was introduced by way of amendment in response to some suggestions that were made in the course of the debate, and it is quite clear that the Oireachtas was not thinking at all in terms of the effects on children placed with a family with a view to legal adoption.
In fact, it is no exaggeration to say that, in its present form, section 2 of the 1957 Act, if consistently enforced by local authorities, would have gone a long way towards bringing the work of legal adoption to a halt. It would have meant, not only that prospective adopters would have been subjected to two quite distinct systems of inspection and supervision, one by the local authority and one by the Board, not to mention supervision by an adoption society as well, but that prospective adopters would have been obliged by law to ascertain and pass on to local authorities particulars which in several cases they do not know themselves, that they do not want to know, and that could, if known to them, be a source of constant anxiety.
Senators will no doubt have seen, from the newspapers, that certain organisations have been condemning this section. I have no desire whatsoever to appear to be critical of the members of the committees of these organisations but, when I find that letters published by them are being quoted by members of the Oireachtas as arguments against the section, I do not think I have any option but to point out that they do not seem, even yet, to understand either what the implications of the present law are or what the effect of the proposal in the Bill will be.
It has been alleged that the only criticism that I have made of the Children (Amendment) Act, 1957, is that it would compel prospective adopters to furnish information to a local authority which it is plainly undesirable that they should be asked to furnish and which, if they were required to furnish it, could very well place the particular adoption in jeopardy. The validity of this criticism has been accepted by the organisations concerned, but it has been suggested that the way to meet it is to let the 1957 Act stand, omitting the obligation to furnish the personal particulars specified.
That, however, was merely one of several serious criticisms of the 1957 Act. I mentioned it, and possibly stressed it, not as the only or the major objection but as an objection which was so self-evident that even those who appeared to be irrevocably committed to the idea of local authority inspection should recognise its force. But there are, as I say, other and more fundamental objections.
Under the Children (Amendment) Act, 1957, it is necessary to notify the local authority where arrangements are made for the placement of an illegitimate child with a family, even though the family taking the child are receiving no payment. That provision applies only to illegitimate children. Consequently, the mere fact of notifying a local authority of a placement, where there is no question of reward, immediately identifies the child as illegitimate even if no personal particulars are supplied. It is, of course, a fact that a majority of adopted children are illegitimate but, in the ordinary way, there is no evidence that any particular adopted child is illegitimate and, as those with practical experience in this field have pointed out to me, it can be very important in some cases that prospective adopters should not be forced to know with certainty that the child they are adopting is illegitimate.
They may have perfectly valid reasons for this attitude. For instance, if the adopted child wishes later on to ask them for information about his origins, the adopters may feel it important to be able to tell him truthfully that they do not know. But, quite apart from that, most reasonable people would agree that it is wrong that prospective adopters should, even if they themselves have the information, be forced to disclose to the local authority, which often in practice means disclosing to persons known to them personally, that the child proposed to be adopted is illegitimate.
Even if the linking of legal adoption procedures with procedures designed to protect unwanted illegitimate children from exploitation did not cause these serious practical problems, it is difficult to see how anybody could seriously contend that prospective adopters who are offering a home and security to an unwanted child should be subjected, not just to one system of official supervision—we all accept that that is necessary as a safeguard against possible abuses—but to two separate systems of official supervision, one under the auspices of the Adoption Board and the other under the auspices of a local authority, not to mention the checks and enquiries carried out by the adoption society.
It has been suggested also that there is a practical objection to these proposals on the grounds—so it is alleged —that the contribution which local authority officers, such as public health nurses and children's officers, can make, both from their local knowledge and their training, are being thrown overboard. The answer to that is, simply, that they are not being thrown overboard. There is nothing in this Bill to interefere in the slightest degree with the arrangements which already exist whereby the Board can, whenever and in so far as it wishes, ask these officers to carry out inspections and make a report.
Not only does the Bill not prohibit such an arrangement but there is no intention of abolishing the arrangement in practice, though the need for it may become less over the years if it is decided to expand the Board's inspectorial staff. But even then these local officers are almost certain to be asked for assistance in many cases. The essential point, however, is this: that they would do this work, as they have already agreed to do it, as agents of the Board and under the aegis of the Board, and their reports will come to the Board and will not be filed in the local authority's records or indeed submitted to the local authority at all. In other words, we can have the full benefit of the services of these officers without bringing the local authority, as such, into the picture, with all the attendant disadvantages of this latter course.
It has also been suggested that what is now proposed will mean that the child will lose the "protection" of advance inspection by the local authority. I must make clear that I, for one, would not support the proposition that those who are devoting their lives to the charitable work of finding homes for unwanted children should be subjected to the serious obstacles that I have outlined for no more solid reason than that there was a theoretical possibility that some of them, sometime, might make an error which local authority inspection might possibly prevent. But it is, in any event, a fundamental error to confuse the functions of a local authority under the Children Acts with those of an authority concerned with legal adoption. A local authority can insist only on minimum standards—they can hardly interfere unless there is positive neglect, provable cruelty or grossly inadequate accommodation.
If an adoption society were to place children in homes that were so obviously unsuitable that an advance inspection by a local authority would rule them out under the Children's Acts, then that Society would not only be unfit to be registered but so unfit that it is absurd to suggest that they could be kept on the register by the Board. To imply, in legislation, that the minimum standards enforceable under the Children Acts have any relevance to what is appropriate for legal adoption would set an entirely false headline, would establish a standard that is quite inadequate and would, therefore, degrade the whole concept of legal adoption.
Finally, I would like to make clear that this section has been considered by the Board who agree with it, as indeed they do with the entire Bill with the minor reservation that I mentioned earlier about section 3.
I think that I have covered most of the points that arise in the Bill and I recommend it to the House.
