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Seanad Éireann debate -
Thursday, 29 Jun 1972

Vol. 73 No. 2

Adoption Bill, 1971: Second Stage.

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

This Bill was given its First Reading and ordered to be printed on 22nd July, 1971 and since then, its proposers, Senator John Horgan, Senator Owens and myself have been urging that time be given for a Second Reading. We believe there is a great need for a full scale parliamentary debate on adoption in this country. We are heartened and encouraged by the widespread feeling among those involved in adoption from all angles, members and ex-members of the Adoption Board, members of the Adoption Society, social workers, adoptive parents and unmarried mothers that there is an urgent need for reform in the law.

We should like to thank the House for giving time to debate this important issue and we hope this Second Reading will establish the principle of the necessity for reform. If this principle is accepted, the Second Stage may be passed and the specific amendments and the text of the Bill may be worked out on the Committee Stage as would be appropriate. For that reason, before discussing the actual substance of the Bill, I would like to spend some time discussing the purpose of a Private Members' Bill in this context. In doing so, I am aware that there is a precedent for activity by a private member in relation to adoption in that the original impetus for the introduction of legal adoption in this country was by way of a Private Member's Bill, which had been sponsored and advocated by the Adoption Society (Ireland) at that time, in an endeavour to introduce legal adoption in Ireland. This Private Bill was tabled in the Dáil on 8th November, 1951.

The second point to be noted about the impetus coming from a Private Bill is that the sponsors of this former Private Bill were Mr. "Pa" McGrath of Fianna Fáil and Mr. Percy Dockrell of Fine Gael. It was not regarded as a party issue. I hope that this House, in looking at the question of adoption and in examining firstly the principle of whether there is a necessity for reform in adoption and then the specific suggestions made, would approach it, not on a party basis, but on the basis of a piece of social legislation which ought to be discussed seriously in a debate on the record. It is not a matter on which there ought to be party stands just for the sake of having them.

There is then a good precedent for the role of a Private Member's Bill and for the argument that adoption is a social and not a party issue. It is up to the personal judgment of Members of the House. In 1951, the Government at the time had encouraged the introduction of the Private Bill because it was unclear at that time what the attitude of the Catholic Hierarchy was in relation to the whole concept of adoption and whether it would accept the idea of legal adoption in Ireland. When this became clear, the Government decided to introduce legislation and the Minister for Justice at that time—Mr. G. Boland—informed the Adoption Society of his intention to do so in January, 1952. The resulting legislation was the Adoption Act, 1952, which is the parent act with which we are concerned.

This Adoption Act, apart from some small changes in the Adoption Act, 1964, which was a minor amending Act, is the basis of adoption in this country. As a country, we were late in accepting the legal concept of adoption. It was introduced in Northern Ireland in 1929 and much earlier in Britain. This parent or enabling Act setting up the whole system of legal adoption is now 20 years old. It was brought in at a time when there was a good deal of controversy. There is a strong argument for the need for review, the need for assessment of how it has been working and the need for change.

It is our contention that, if the general principle of the need for change and reform in the law which is now 20 years old is accepted, then the Second Stage ought to be passed by this House and the Bill should go on to its Committee Stage to iron out any parts of it which are unacceptable in their present form. The proposers of the Bill are aware that it is not as complete as it might be in the reforms it recommends. It could be expanded to include some matters which are not in the Bill at present.

The Second Reading Stage deals with the question of the principle of a need for reform and is not an argument as to the acceptability of the details. The present text of the Adoption Bill which is before the House is the work of private members. We did not have the resources and the ability of a department of the Civil Service nor the expertise of parliamentary draftsmen. As a result, we are modest in our claim. This Bill was put forward in the certainty of the need for reform, not with the idea that it is a blueprint which must be acceptable in every dot and comma to every Member of the House. We would be surprised if it represented to perfection the views of the House on the actual content of the reform of adoption. If the principle of the need for reform is accepted, then the Second Stage ought to be passed and the House ought to address themselves at the Committee Stage to see how this Bill may be improved.

Although the impetus came from a Private Member's Bill, it was a Government measure which introduced the legal process of adoption into our law. This was appropriate in the initial stage since it brought a new concept into our legal system. It is quite proper that an amending Bill introduced as a Private Member's Bill could go through the Houses of the Oireachtas. It would require the support of a majority of Members of both Houses, but if the principles were adopted, what would be gained —this is the vital point in making this argument—is time. This Bill has now reached its Second Stage. It could go on to Committee Stage and pass relatively quickly through the Seanad and go on to the Dáil.

If the Minister for Justice were to accept the principle of the need for reform but come back with the formula "the Department have the matter under consideration and they will be introducing legislation in due course" the result would necessarily be a loss of time. The question would have to take its order of priority in the Department of Justice and in that Department, which is producing a good deal of legislation at the moment, it could not be very high in the order of priorities. Time would pass before a draft Bill was introduced in whatever House it was to be introduced and the whole process would have to start again. This would be a great pity. I am concerned to stress the urgent need for reform in certain aspects of adoption, the consensus about some of these areas and the fact that if there are other areas on which there is disagreement this could be worked out at a Committee Stage.

The Bill, as entitled, is wide enough for any amendments. The Bill is an "Act to amend and extend the Adoption Acts, 1952 and 1964." Any matter relating to the parent Act of 1952 or the amending Act of 1964 is relevant. Any matter could be introduced at the Committee Stage. Any of the sections of this particular draft of the Bill could be modified or changed if that is the desire of the majority of the House. The Second Reading Stage is a stage on the principle of the need for adoption which I shall try to illustrate.

The first point to note is the fact that the Ard Fhéis of the Government party this year passed a motion in favour of changing the adoption law so it would appear that the Fianna Fáil parliamentary party is aware of the principle of the need for change. I can use this as an illustration of a very widely held view around the country of the fact that our adoption law needs to be updated. It was a very important and significant piece of legislation 20 years ago. It suffered from some difficulties in its introduction. It does show these defects more markedly as the years go by.

Our motivation in introducing this Bill was, first of all, a personal conviction of the need for reform in certain aspects of the adoption law, secondly, because of the widespread and informed public debate which has taken place over the last two years. The agitation for legal reform has been reflected in a large number of public meetings, in some of which I have been involved and some of which I have read about in the papers. There have been newspaper reports and articles on adoption, letters to newspapers, radio discussions and numerous questions in the Dáil relating to adoption as well as serious articles in magazines in this country and elsewhere.

Another reason for introducing the Bill was because the people we approached who had expertise in adoption because of their involvement in the process were unanimous in the hard core of need for reform which I shall deal with later. As soon as the Bill was printed we were approached by a large number of people, again involved in different ways, all urging the crucial need for reform and the urgency of this need. The extent of these deliberations and the consultation procedure persuaded us that two things were necessary. First of all a full-scale parliamentary debate on adoption and how it was working after 20 years. Secondly, specific reforms in the adoption law to remove the particular defects in so far as this could be done by legislation. These two objectives, it is to be hoped, can be attained by this process.

There is a further objective which cannot be legislated about and this is the necessity for an examination of the adoption procedure over this period of 20 years. For that we would require, firstly, a special commission set up by the Government to survey the whole field in detail. I will refer later to what has taken place in other jurisdictions in Britain and in Northern Ireland in this context as an example of what we might do. Secondly, the question of whether adoption would be better, as the Devlin Report recommended, transferred from the Department of Justice to the Department of Health and if there could be a rationalisation in that area.

Looking at the background to the adoption position the whole process was introduced very late in this country, not until 1952 as compared with 1926 in Northern Ireland. The background, as the House will be aware, was a difficult one, and, rather than go into it in detail, I would refer briefly to the account given in Church and State in Modern Ireland by Dr. J.H. Whyte when he traced the work of the Adoption Society of Ireland in promoting the concept of legal adoption and the reluctance of both the Coalition Government and the Fianna Fáil Government, which followed it, to introduce adoption law until it was clear what the position of the Catholic Hierarchy was in this respect. I quote briefly from page 276 of this book when he states:

The last remaining difficulty was cleared away by this statement, and Mr. Boland now decided to introduce legislation himself. During the drafting his Department kept in close touch with the authorities of all denominations, and in particular, with those of the Catholic Church. The Archbishop of Dublin and his delegate, Father (now Monsignor) Cecil Barrett, went over every clause, and the text of the Bill bore out the closeness of the consultation, for regard was had to all the limits and safeguards for which the committee of the hierarchy had asked. Adoption was restricted to illegitimate and orphan children between the ages of six months and seven years. The adopting parents were to be "of the same religion as the child and his parents or, if the child is illegitimate, his mother". The administering authority was, before authorising an adoption, to satisfy itself that "the applicant is of good moral character, had sufficient means to support the child and is a suitable person to have parental rights and duties in respect of the child". Provision was made for the registration and supervision of adoption societies. Perhaps the provision that adopting parents were to be of the same religion as the natural parents was the most important because, in one stroke, it removed the bogey of proselytism. There could be no question of Protestant parents adopting Catholic children (or vice versa) and, since legal adoption has been established, proselytism has practically ceased to be an issue in Ireland.

He continues to give an impartial and very fair comment on the background in 1952. He states:

Opinions can differ about the significance of this episode in Irish Church-State relations. On the one hand it could be argued that it showed how an energetic pressure group could stimulate bishops as well as Ministers into re-examining questions which they had hitherto been reluctant to handle. But on the other hand there was no question of the hierarchy being obliged to accept a measure which it did not want. It was not opposed to legislation in principle but was anxious only that certain safeguards be included. The Minister for his part did not even take the decision to legislate until the committee of the hierarchy had spoken and closely consulted the Archbishop of Dublin during the drafting. The episode seems better evidence of the strength than of the limits of episcopal authority in Ireland.

In filling in the background I should like to quote a brief comment from Fr. James Good in an article on legal adoption in Ireland which was printed in the magazine Child Adoption, No. 3 of 1971. He states:

Ireland's first Adoption Act was passed in December, 1952, and became law on the 1st January, 1953. In addition we have the Adoption Act, 1964. In practice, however, we can talk about the Adoption Act in the singular because the 1964 Act was merely a matter of plugging a few small gaps in the 1952 Act, including a few gaps discovered by amateur lawyers like myself when it suited our purpose.

It is accepted that social legislation dates very quickly. My suggestion is that our Adoption Act, like a car 20 years old, needs not merely a new engine, but a trip to the scrap heap. In addition, as is pointed out clearly before, the Act was conceived and born in a time of sectarian mistrust and even bigotry. This is reflected in its provision, many of which are now totally out of date. That view is widely shared by those involved in implementing the Adoption Act.

My next point is the necessity for a survey of how this adoption procedure has operated over the last 20 years. At the time it was a matter of controversy. It was a very important extension of our social legislation, a new social code looking after the problems of children in the State. I find it extraordinary that—given the background and given a period of 20 years —there has never been a Government survey. There has never been a committee of a Department sitting on adoption and reporting how it has worked—a comprehensive Government survey. Neither has there been a full scale private survey on how it has worked. Therefore, anybody who is interested in adoption, looking at this country can well ask, "How is adoption working in this country?" Who can actually say with any authority how the process is working, what the problems are, how the placement of children in adoption works, how many children remain with their adopted parents, how many unmarried mothers recall their children and so on. There are minimal statistics available on this and no real attempt is made to examine the position.

It is appropriate on the Second Reading of a Bill to stress this point. It is not a matter of legislation, but it is a matter of urging the Government to set up either a departmental committee or an independent committee to look into the whole field of adoption. In this context, it is appropriate to look briefly at the position, both in Northern Ireland and in Britain in relation to adoption, and in relation to the many Acts of legislation, regulations and Government surveys which have been introduced in these two jurisdictions.

Take for example, the case in Northern Ireland. The first adoption legislation in Northern Ireland was the Adoption of Children Act (Northern Ireland), 1929, which followed three years after the English Act in 1926. This original Act was incorporated later in the Northern Ireland Adoption Act of 1950. This again was very similar to the English Adoption Act of 1950. The 1950 Act was in turn incorporated in the latest piece of legislation in Northern Ireland—the Adoption Act of 1967.

As well as the actual legislation, there are rules and regulations and I quote briefly from the most recent regulations under the 1967 Act. There were also regulations under the 1950 Act. The Adoption Societies Regulations (Northern Ireland) 1969, County Court Rules of 1969, No. 279, and Supreme Court Rules of 1969, No. 268 all relate to adoption.

The Adoption Societies Regulations (Northern Ireland), 1969, are statutory instruments which cover the procedure of adoption societies in placing children for adoption. The Irish Adoption Board, as I will be referring to later, has no statutory authority to issue regulations in the form of statutory instruments and there is no mandatory control through regulations over adoption societies in this country.

However, aware of the need for a similar process and similar regulatory procedure, in September 1969 an Bord Uchtála, the Irish Adoption Board, submitted to the Minister for Justice at that time a memorandum of suggested amendments to the Adoption Acts which included this recommendation that the essential procedure to be followed by all agencies placing children for adoption be clearly set out and be made mandatory in order that there would be control and uniformity in the practice of adoption societies. The Minister rejected this memorandum of the Adoption Board and the suggested amendments in it and shortly afterwards, certain members of the Adoption Board resigned. Their proposals for amendment were not considered to be acceptable or even important.

Looking very briefly at the position in England, the first Adoption legislation there was in 1926 and was followed by an Adoption Act in 1929. In 1933, the Secretary of State in England appointed a departmental committee on the adoption of children and as a result of this report a major change was made in adoption in the 1958 Act. Since that there has been a Government survey for the Home Office and various other surveys such as a Guide to Adoption Practice, published by the Advisory Council on childcare in 1970; Adoption of Children, which is a working paper containing the proposal of the departmental committee on the adoption of children appointed by the Secretary of State which was published in 1970; and again Adoption Policy and Practice, by Iris Goodacre, a paper of research on adoption orders made from 1955-1958 and taken by the author on behalf of the National Institute for Social Work; a survey of Adult Adoptees by Dr. A. McWhinney; Adoption by Margaret Kernitzer, and so on. I am referring to these to show the completely different attitude, the immense amount of both governmental and private survey of the adoption procedure, the importance of up-dating the legislation. When there have been reports of committees, these have been followed very shortly afterwards by changes in legislation. I would submit that a similar process is necessary here.

I will just refer very briefly to some of the more important of these reports. The first on the Adoption of Children is a guide to adoption practice issued in 1970 by the departmental committee on the adoption of children, known as the Houghton Report. This committee was set up in July, 1969, and it was to advise on the whole practice of adoption and make recommendations for reform. The report is a very extensive one and contains many recommendations and also a consolidated list of propositions for consideration. It has had a significant impact on adoption as a report which was a survey of the whole field of practice in adoption and also of difficulties arising from the Adoption Act, 1958. Ten years after the Act, in April, 1968, there was an assessment of the defects which had arisen in this Act.

The immense amount of study of the problem shows an awareness that adoption is something which cannot be left to lie, but which must be constantly surveyed and assessed. Another report is the Report to the Home Office on Difficulties Arising from the Adoption Act, 1958.

Finally, I want to refer to Adoption of Children, a report by the Northern Ireland Child Welfare Council in 1963 set up by the Ministry of Home Affairs to examine the position of adoption there and assess both the actual position in Northern Ireland and on a comparative basis with the position in England. The adoption legislation in Northern Ireland differs substantially from that in England.

The point can very well be made that we have failed as a country to appreciate the importance of adoption as part of our social legislation; that there is an absence of information on how the legal apparatus of adoption is working; that there is a failure, both to examine legislation as such, to see whether it has endured the 20 years —whether it has survived in proper form or whether it is defective and not working very well—and to examine the much broader aspects—the part which local authorities play in adoption and that which private placement agencies play; the situation with regard to the question of unmarried mothers, whether they have a real choice as to whether they want to have their children adopted or not—are they given this real choice in an economic as well as in a social sense?—whether our society is prepared to treat them in this way; also the need for the modern ideas which have been adopted in other countries in relation to the subject should be introduced here. Therefore it is quite extraordinary that, although the Adoption Act itself is 20 years old —with only very minor and technical amendments in the 1964 Act—there has not been this sort of survey and assessment of the field.

An Leas-Chathaoirleach

May I interrupt the Senator for a moment? It is now 1 o'clock. I presume it is the intention to adjourn.

Business suspended at 1 p.m. and resumed at 2 p.m.

Having this morning argued the need, in principle, for a change in our adoption law, based on the fact that this law is basically 20 years in operation now and was brought in in very difficult and controversial circumstances, and also having argued the case for the necessity for a departmental committee or an independent committee to review the whole working of adoption involving more than just the legislation—it involves the social environment, the different agencies and people involved in it—I would like to move on to the substance of the Adoption Bill, 1971.

Taking first of all section 4 of the Bill, which relates to the welfare of the child being paramount, this is in line with other similar legislation such as the Guardianship of Infants Act, 1964, and attempts to get away from the undue emphasis on the position of the mother in our adoption code, particularly in the 1952 Act, and to make our legislation child-centred rather than mother-centred. Section 4 provides:

In any matter, application or proceedings before the Board or any court relating to the arrangements for or the making of an adoption order, the Board or the court, in deciding that question shall regard the welfare of the child as the first and paramount consideration.

I should like to quote briefly from the article by Fr. James Good, "Legal Adoption in Ireland" which was printed in Child Adoption, No. 3, of 1971, where he says:

I suggest to you that an Adoption Act should be child-centred while not neglecting the rights of other parties like parents, adopters and the community. It has taken some people much time to understand that adoption is not a technique of getting children for childless marriages nor for relieving unmarried parents of their responsibility, nor even for saving the State the cost of keeping children in an orphanage. Adoption should be primarily and above all else a process for finding a home and family for the homeless and family-less child but when we look at our Adoption Act we find that it is not child-centred but mother-centred. Right through the Act the dominant idea is that the child is the property of the mother and that short of killing or physically maltreating it she can do just what she likes with it. She can give it for adoption and reclaim it at will. She can give it for adoption again and again reclaim it at will and having reclaimed her baby she can again do just what she likes with it.

He goes on in that article to stress the utter lack of any procedure or formalities. Whenever the mother wishes to reclaim the child from a prospective adoptive home she just expresses the wish to have the child back and that is it. The dangers and lack of safeguard for the child are quite apparent in this procedure.

The importance of section 4 is to make the adoption code a child-centred code and also to introduce a formula which is now familiar to the courts—"the welfare of the child is the first and paramount consideration." If I may refer to another Irish authority on adoption, Fr. O'Mahoney of Cork, speaking in a debate in Cork on some aspects of adoption in October, 1971, where he makes this point:

Adoption, I suppose, could be defined as a process of providing substitute permanent family care for a child. It is essentially directed towards the welfare of the child but the process also involves others whose welfare must be considered but only in a secondary way to the welfare of the child. Adoption legislation must consider the welfare of the natural parents, the adopters but above all the child. This, I am afraid, is not the order of priority in Irish adoption law. The child is treated as part of the parents' goods and chattels, as something with no rights of its own. Nowhere is our knowledge of the emotional needs of a child reflected in this legislation, in fact sometimes it seems to totally disregard the needs of the child. So a complete overhaul of our adoption legislation is called for. This should not surprise anybody because England produced its last Adoption Act in 1958 and now in the Houghton Report proposals for a complete new Adoption Act have been submitted for consideration by all adoption interests in England. This report will inevitably lead to a complete new Adoption Act.

Anybody who has a knowledge of the working of the adoption code would agree that it is not sufficiently child-centred and would, therefore, welcome a proposal such as that contained in section 4.

Section 5 provides, first of all, for an extension of the category of child who may be legally adopted in Ireland. At present children who may be adopted are either illegitimate children or orphans. It appears again from the knowledge of people involved in adoption that this cuts out the case of the child abandoned from birth and leaves this child to spend its young life in a series of homes or possibly in fosterage. I am given to understand that even fosterage is declining in the country because there is not the same economic necessity to adopt children in order to get money. This is a deplorable basis on which to take a child in any case. The present position is that these children will spend their lives in homes, even though they have been abandoned by their parents, because their parents are known and they are not either illegitimate or orphans.

Section 5 (1) would purport to amend the 1952 Act—

"‘where the board is satisfied that in the particular circumstances of the case it is desirable to do so, it may make an adoption order in respect of a child who is neither illegitimate nor an orphan.

I have heard it argued that this may be slightly wide in its wording and that it might be better to write in "provided the child has been abandoned". That is the sort of qualification which could be discussed on the Committee Stage. The main idea here is to broaden the category of children who may be adopted.

Section 5 (2) relates to the age of the child. At present, under our adoption law, children may only be adopted if they are between the ages of six months and seven years, which is a very short period indeed. We would propose—

Notwithstanding anything contained in section 10 of the Principal Act and section 11 of the Act of 1964, where the board is satisfied that in the particular circumstances of the case, it is desirable to do so, it may make an adoption order in respect of a child who was more than seven years of age at the date of the application for the order provided that such child had not attained the age of eighteen years at the date of the application of the order.

There is a misprint in the last line of that subsection. It should read "the application for the order" instead of "the application of the order". In many cases the child could be a number of years with prospective adoptive parents and have reached the age of eight, nine or ten years before the prospective adoptive parents seek adoption, in terms of giving the child the advantages and security of a formal legal adoption. If this happens, under our artificially low age limit such an adoption would not be possible. The introduction of the figure 18 years was an attempt to remove the age limit but to leave a real safeguard "where the board is satisfied that in the particular circumstances of the case it is desirable to do so." Otherwise the adoption order would not go through, and this would remove the possibility of an abuse of the process of, say, adopting children for the sake of having cheap labour, or some other possible objections. Again, whatever the actual age —whether it be 16 years or 18—there is no disagreement that seven is an artificially low age and that it has prevented what would otherwise be very desirable adoptions of children.

Section 6 was introduced in an attempt to meet what I think is the greatest defect in the present Irish adoption law. That is the inability to get consent from the mother, or to do away with the necessity for this consent, if it has been unreasonably withheld. I was speaking recently to one authority on Irish adoption law. He said if you can do only one thing, that is put a guillotine on the consent period where the mother has to consent, or else her consent will be considered to be unreasonably withheld in the circumstancese, then you will have achieved most of what people involved in adoption want to see achieved. This is the greatest defect and the greatest hardship. The wording of section 6 is again an amendment of section 14 of the principal Act—the 1952 Act—laying down the conditions under which there can be a consent to adoption. In subsection (2) of the relevant provision it provides as follows:

The board may dispense with the consent of any person if the board is satisfied that that person is incapable by reason of mental infirmity of giving consent, or cannot be found.

Therefore, under the present law there are only two ways in which a consent can be obtained other than in a totally voluntary manner: if a person is insane or cannot be traced. It is standard in the legislation of other countries, such as in Britain and Northern Ireland, that if the consent is unreasonably withheld and the child has been living in his adoptive home for a number of years, so that there is a stable relationship there and the mother is, in fact, depriving the child of the advantages of a legal family, this consent will be by-passed because it has been unreasonably withheld. Our amendment is to the effect that: "or in the opinion of the board, such consent has been unreasonably withheld, or in any case where it is in the interests of the child".

Again, it has been argued that the phrase "where it is in the interest of the child" may be too wide and may raise other issues. The importance of the attempted amendment was to solve the problem where the consent has been unreasonably withheld. In support of this point—I think it is one of the really vital issues in the whole attempt to get reform in adoption—I should like to refer to an article in Reality of April, 1972, again written by Father James Good. In it he talks about the crisis in Irish adoptions. The crisis in Irish adoptions to which he refers is the number of times that mothers have reclaimed the children before an adoption procedure has been formalised which gives rise to great hardship. He says that one reason why this is on the increase is that unmarried mothers are unaware that, although they sign a preliminary form to have their children handed over either through an adoption society or through a private placement to prospective adoptive parents, they cannot legally consent for six months and that the society will come back to them for their consent. In fact, they let the child go to the adoptive parents for a period and then either refuse to answer letters, do not co-operate in letting the consent come through, or even after the six months reclaim the child and then put it to adoption again, starting the whole process once more.

This is an intolerable position for the child who has no possibility of having a stable home at the time. It is also intolerable for the adoptive parents who in good faith took the child and it causes immense hardship. This is the issue on which anybody who has been involved in the adoption process, where the child has been reclaimed before the process has been finalised and before the legal consent has been secured, will know that it is equivalent to the death of a natural child. It is equally traumatic and equally shocking.

I should like to quote from the article in Reality of April, 1972, by Father James Good. He devotes the entire article to this crisis in Irish adoptions. On page 20 he states:

Right through the Irish Adoption Acts the dominant idea is that the child is the property of the mother, and that, short of killing or physically maltreating it, she can do just what she likes with it. She can give it for adoption and reclaim it at will; she can give it for adoption again, and again reclaim it at will, and having reclaimed her baby, she can again do just what she likes with it.

I would like to stress that under Irish Law there are no formalities whatever for a mother to reclaim her baby from an adoptive home. She merely says she wants it back and she gets it. In Irish Law, where the mother adopts a dog-in-the-manager attitude and refuses either to complete adoption formalities or to take the baby into her own care, there are no facilities for compelling her to complete the legal process and no provision for declaring her withdrawal or refusal of consent to be unreasonable.

The law takes the view that she owns the baby, and that adopting couples, no matter how long they have the baby in their care, have no rights whatever to it until such time as the mother agrees to complete the legal requirements—or can no longer be found. This in turn means, of course, that adoption workers often find themselves in a position of being anxious to lose touch with the mother in the hope that this will replace her consent, for there is no other way in which the adoption process can be completed without the formal written consent of the mother.

In December last there was a case before the High Court which gave a rather broad interpretation of this question of consent due, I think, to the very real problem that exists. This was a case where the Adoption Board were unwilling to consent to an adoption order in the particular circumstances and under the provisions of the Act referred the case stated to the High Court. Judgment was delivered by Mr. Justice O'Keeffe on 18th April, 1972, as follows:

The mother of the child with which the present case stated is concerned abandoned the child shortly after birth and has not seen the child for seven years. In 1969 she expressed her unwillingness to consent to adoption and her intention of taking back her child. She has taken no active steps to do this. If the Adoption Board are satisfied that all reasonable endeavours to locate the mother have been made it is in my opinion open to the board to dispense with the consent of the mother, if they think fit, notwithstanding her expressed opposition to adoption in the year 1969.

In this case the judge advised the board that they could consent to the adoption order. That was a case where originally there had been a withdrawal of consent, the mother had not taken any action; she had disappeared and they failed to locate her. Despite the evidence of lack of consent by the mother, the fact that she could no longer be located was sufficient in the opinion of this High Court judge.

That would be a minority of the cases covered by this provision, where the mother, after withdrawal of consent, has disappeared. Had she still been able to be located, but still was not taking any active steps to reclaim her child or make other provision for it, there is nothing anybody could do under the present state of Irish law, which is the crux of the problem.

Various suggestions have been made as to how the position could be improved. One of these is that form 10 under the Adoption Acts, 1952 and 1964, could be amended, where the wording is "In order to ensure therefore that you would be informed of any proposal to have the child adopted, you should notify the society of any change in your address. If you do not do this, it would not be possible to trace you and the Adoption Order may be made without your consent". The suggestion is to add to that wording, the following clause:

I understand all the effect of an Adoption Order on my parental rights and with this knowledge I request you to make arrangements for the adoption of my child.

There should be just one consent procedure and one consent only. There should not be the necessity to go back for a legal consent after the expiration of the six months, with the possibility of a refusal of consent by the mother at that stage.

The next section is of a relatively minor nature in that it amends the provision relating to the persons who have a right to appear in the case of an adoption in section 16 of the principal Act. It deletes part of this, namely the words "recognised by the Constitution, (or in the case of any such religion which has no ministry, an authorised representative of the religion. This is partly an attempt to remove the recognition procedure of the Constitution from this legislation. It is not a major point. It could be discussed at the Committee Stage.

Section 8 is a very important one in that it would attempt to place an obligation on the board to make regulations controlling adoption societies. The amendment is to section 36 of the principal Act and it introduces this concept because it is not contained in the 1952 Act. It is as follows:—

The board shall draw up regulations for the proper administration of registered adoption societies, in particular these regulations shall lay down minimum standards concerning the placing of children by such standards concerning the placing of children by such societies with prospective adopters, the supervision of such places and related matters.

This should be a standard part of the legislative code. In other jurisdictions there are many regulations in the form of statutory instruments which govern adoption societies. This is a very effective and important control. The type of regulations contained under the legislation in Northern Ireland relate to the duties imposed on the society. For instance each parent or guardian who place a child at the disposition of the society shall be furnished with a memorandum explaining the nature and effect of an adoption order and shall sign a certificate to the effect that he has read and understood the memorandum. The form is set out in the schedule to the Statutory Instrument.

Other requirements are that the society will make certain enquiries and obtain certain reports regarding each adoption which they arrange and each adoption must be considered by a committee of not less than three persons appointed by the society for the purpose. This is the institution of the case committee which is standard practice in adoption both in England and Northern Ireland. You have a case committee and not just a local authority official, without any particular experience in adoption being the person who goes along and supervises the parents in pre-placement inspection. A proper case committee involves at least three persons—preferably one with legal and one with medical experience. This was strongly advocated in England and was adopted in the legislation there. There are provisions for the supervision of registered adoption societies and for the submission of annual reports and audited statements of their accounts and various other provisions. The present Adoption Board sends out socalled recommendations to the adoption societies, but these are not of the same importance or effect because they are not mandatory on the societies. The societies can decide whether they will comply with this particular form of practice or not. This is not sufficient. The only control that the Adoption Board would have on the adoption would be to cancel registration of an adoption society, which is too big a stick for this particular purpose. So that you do not have any equality of standard in adoption practice in the adoption societies in this country. We are dependent on the good will of the adoption societies to what extent they wish to comply with whatever suggestions are made by the Adoption Board as to placement and standards of control.

Another problem in relation to the Adoption Board is that if an adoption order is refused the Adoption Board has no authority to take custody of the child. The Adoption Board notifies the local authority in the area that the adoption order has been refused and it is up to the local authority to take custody of the child under the Childrens Act. This is a very unreal process because, as I understand it, in many cases the local authority leaves the child with the people who have been considered unsuitable adoptive parents. The child stays there probably for a considerable time—remaining on in an environment which the Adoption Board consider unsuitable. The child will find it more traumatic to move later. This is because the local authority does not know what to do with the child. It may well be that there is not either a suitable home or institution in that particular area.

Another problem in the Irish context is that there is an inequality of adoption agencies around the country, whether it be voluntary adoption societies or local authorities geared as adoption societies. In some cities, such as Cork, there are active adoption societies. In other regions there is no particular adoption society and no local authority activity either in this field. Therefore you do not get an equality of opportunity to adopt around the country.

Section 9 of the Act gives teeth to the regulations by amending section 37 of the principal Act and allowing the board to revoke the registration of the Adoption Society if it fails to abide by the regulations of the board as well as by the actual adoption legislation itself. Section 10 is a consequential amendment by substituting the age of 18 to seven. The final matter of substance in the Bill relates back to section 3 which repeals the matters specified in the Schedule of the Act. Section 12 of the Adoption Act, 1952, is contained in the Schedule of the Act and this is the section relating to the mixed marriages provision which was influenced by the particular atmosphere in 1952 when this legislation was introduced. Section 12 of the 1952 Act provides that the adoption order would not be made unless the conditions of the section in regard to religion are fulfilled and required that the applicant or applicants shall be of the same religion as the child and his parents or if the child is illegitimate, his mother. The net effect of that is that it makes it impossible for parties in a mixed marriage to adopt a child because the child can never be of the same religion as both of them in the circumstances. Subsection (3) makes a certain concession to some of the various minority religions in the country by providing that:

The board may, having regard to special circumstances of a particular case, make an adoption order, although the persons referred to in subsection (2)—the parents and the child or the child and his mother—are not all the same religion provided each of them is a member of each of the following denominations—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 Plymouth Brethren.

There are exceptions from that limited list of minority religions.

It was extended in 1964.

As Senator O'Higgins has mentioned this was extended in the 1964 Act by section 6 and this also we propose to repeal as part of the principle of removing this religious dissability which I hope reflects the thinking in Ireland in the 1950s rather than the sort of legislation which we should be passing in the rather critical circumstances of 1972. It is arguable and may, in fact, be argued before long in the courts that this prohibition of adoption by Irish citizens who are married and from a family merely on the grounds of their mixed religion is unconstitutional in view of the guarantee of equal treatment of all citizens, under Article 40, section 1, and the further guarantee under Article 40, section 3 that the State will defend and vindicate the personal rights of citizens.

A very strong case could be made that one of the personal rights of citizens is the personal right to adopt children and to avail themselves on equal terms with other citizens of this possibility. It is necessary in a political sense in Ireland at this time to show we are no longer governed by the same climate of opinion as prevailed in the early 1950s and that we are prepared to legislate for a pluralist society and to allow full participation in our social legislation to persons of mixed religion without their feeling they have been discriminated against or are in any way second-class citizens or distrusted because they have entered into mixed marriages. The other section which is being repealed in the Schedule is section 15 (2) (a) and (2) (b) of the 1952 Act. This provides for the position of the mother of an illegitimate child changing her religion. Section 15, subsection (2) (a) provides:

If the mother of an illegitimate child changes her religion within 12 months before the birth of the child, her consent to the adoption of the child shall not be valid unless it is given after the child attains the age of one year.

And secondly: (b)

If she changes her religion within 12 months after the birth, her consent shall not be valid unless given at least 12 months after the date which the board accepts as the base of her change of religion.

The curious aspect of sub-paragraph (b) is that it appears to be a way of negativing the adoption consent. In the normal course, if the child was placed in adoption after birth and the legal consent was obtained after six months, any mother could invalidate that by changing her religion within 12 months! This is an absurd reading of it but it is a valid reading on the face of it. The reason for this is the unnecessarily paternal provisions in subsection 2 (a) and (b) which are in many ways an insult to unmarried mothers and are unnecessary.

That is the substance of the Bill. I should like to refer briefly to some comments on the Adoption Board and its operation, since this is a general debate on adoption. I have become aware of the relationship between the board and the Department of Justice over the last few years and it does not appear to have been a very happy one. In September, 1969 when the board submitted their recommendations, the then Minister for Justice said they were not acceptable, thus causing the resignation of three of the members. This was only the tip of the iceberg showing that the relationship has not been very good.

As a result of this, the board has not shown the commendable performance one would like to pay tribute to during a debate on a Bill of this sort. In support of this I should like to quote from this article in Child Adoption No. 3 of 1971 by Fr. James Good. On page 26 he states:

There are, however, a number of other serious complaints about the Adoption Board. The board has shown little initiative over the years in taking positive action to have cases brought before it completed. Applications have been allowed to drift on over the years, until in some of them the child was over 21 years old and ceased to be eligible for adoption. If my estimates are correct, something around 1,000 cases have not been completed since the Adoption Act came into force, and would now appear to have little or no chance of being completed. Further, since the very beginning, there have been serious complaints about the method of home inspection adopted by the board. Despite numerous requests for an adequate inspection system, the board still has a patch-work system, using local officials of various kinds to do the work of home inspection. The functions and powers of inspectors appear to be inadequately defined, and consequently there have been cases of protest by adopters and by adoption societies against the manner and mode of inspection. The board has recently been assuring adoption societies that this problem is now within range of solution, and many people will fervently wish that this is so.

One must also point out that for a board which processes over 1,000 adoptions every year, an annual report of four pages seems particularly inadequate, especially when two of these four pages contain information which is available in each of its predecessors for the last 18 years, at least in its general outlines.

This is a sad comment on an Adoption Board. One would like to be able to pay a more warm tribute to it for its activity particularly as the members of the Adoption Board are voluntary, apart from the legal chairman. I should like to comment on the question of the birth certificate involved in adoption. This is not a matter for the Legislature. It is a matter to bring to public notice so that there can be a change made. The long form of adopted children's certificate identifies the adopted child immediately as adopted. I have a copy here, which gives the number of entry, date and country of birth, Christian or first name, name and address and occupation of adopter or adopters and date of adoption order, etc. There is no doubt in the long certificate that this is an adopted child. Although there are few cases in which the long certificate can be demanded, it is often demanded in circumstances where the short certificate should be sufficient. The long certificate in other countries does not disclose that the child is adopted. There is no distinction of this sort.

The baptismal certificate which derives from the Synod of Maynooth on behalf of the Catholic Hierarchy in 1956 is a very inadequate certificate and also unnecessarily discloses the fact of adoption. It states:

Certificate of Baptism.

I hereby certify that..................

was baptised on...day of.........19...

Signed by Parish Priest or Curate and address.

Dated:

There is no mention of the date of birth of the child. No mention of parents' names. This identifies the child as illegitimate and as having been baptised in the process of adoption. There is no mention of sponsors' names and it is resented greatly by adopting parents and adopted children that there are no god-parents.

The only jurisdiction with which I could compare this is the American one where the certificates of baptism for adopted children carry all these details and do not differ from the ordinary baptism certificates. It is not a matter of holy writ. It is a matter of practice in a country. It is proper to comment on this on the Second Reading of a Bill in order to try to get the change in the baptismal certificate which, for those involved in adoption, can be a real source of hurt and discrimination, because people who have no business to do so discover that the particular person involved is adopted and may take a prejudicial attitude towards him.

Another point which is contained in some of the suggested amendments put forward by the members of the Adoption Board in relation to adoption is the question of the placement agencies. They would be in favour of limiting the number of placements to adoption societies, local authorities and relatives of the child, to eliminate private persons other than that in an attempt to control some very tragic situations which have arisen. Those are the points which motivated us in introducing this Bill and I commend the Bill to the House and thank them for listening to the points outlined.

Dr. West rose.

I agree to allow Senator West speak. I understand he will be only about ten minutes. Perhaps the Minister would facilitate him also.

In the circumstances I agree as long as it does not create a precedent. The Minister is entitled to reply to the debate on the Bill.

I will be very brief because I have a tight deadline. I should like to thank the House for accommodating me in cutting short the luncheon break. I should also like to compliment Senator Robinson on her very sweeping review of the necessity for changing the legislation involved in the adoption procedures which exist at the moment, and on her powerful advocacy for the changes included in this Bill. I wish to speak on one particular aspect and that involves mixed marriage couples who, as matters stand, are not allowed to adopt children. This is one of the delicate areas in which our legislation intersects with the problems of family morality and impinges on our religious views and beliefs. It is one of the areas which we will need to examine closely in the near future.

I am heartened that we are now able to examine these problems from an objective point of view. One of the encouragements to do so is a recent agreement between Anglican and Roman Catholic Churches on interpretation of the Eucharist. I have consistently tried, since I become a public representative and before then, to sit down with my friends from other religions and to discuss our differences in a frank way, to see that there is a problem and to recognise the problem. I have no doubt that we can come up with solutions to this problem which will not offend sensibilities and which will be agreed solutions.

Could I just illustrate the problem by referring to my own case? As an unmarried Protestant living in the south of Ireland the chances statistically of my marrying a Roman Catholic partner are 95 to five, or 19 to one. That, statistically, is a very high chance. There are certain handicaps already to be faced, one of which is the Ne Temere decree. It is not a statutory matter and I do not intend to refer to it. Another considerable handicap to making a successful marriage is the fact that my future wife and I would not be able under the existing law to adopt children if we so wished. This is something that should be examined and after close examination almost everybody would agree that this particular piece of legislation should be changed. That is one of the most crucial parts of the proposals put forward by Senator Robinson.

I should also like to refer briefly to the other major changes which the Senator envisages. Section 5 changes the category of children who may be adopted to include abandoned children. That is important. Subsection (2) of section 5 raises the age for children in respect of whom an adoption order can be made. In regard to section 8, as Senator Robinson has said, it is very important that we should draw up regulations to apply uniformly to the registered adoption societies in the administration of their duties, because I have been aware of certain irregularities of procedure owing to the fact that societies differ considerably in the way they operate. This is unfortunate in that it leads to certain children being adopted by certain parents in specific cases through one society where it would not happen through another. It is important that we should agree on standards, that they should be set down statutorily, that we should have a uniform pattern of adoption and that the societies should act in a regular way.

With regard to Senator Robinson's suggestion that the legislation for our adoption procedures should be child-centred rather than mother-centred, thinking has changed on this problem over the last 25 or 30 years. Even in a delicate area such as this, legislation soon gets out of date and the views and mores that applied 20 years ago do not apply now.

Senator Robinson has done a tremendous amount of work and has made a very powerful case. She has put an amount of effort into trying to elicit serious responsible debate on this very delicate problem and her work is highly to be commended. The efforts she has made should be welcomed by this House and I hope that the Bill which has been placed before us will be accepted with certain amendments and that we can change our adoption laws in this responsible way.

Over the last few years there has been a considerable amount of criticism of the Adoption Acts in the news media and elsewhere. Many people must have been led to think that our adoption system is full of serious defects. In particular, they must have been led to believe that it is discriminatory in the matter of religion.

I welcome this opportunity of saying at the outset and quite categorically that there is no foundation whatsoever to the suggestion that the Acts are in any way discriminatory, either in favour or against any particular religion. Equally categorically, the present law relating to the religion of the parties does not result in children being left unadopted in institutions while there are suitable couples anxious to adopt them. The reality of the situation is that there are waiting lists of would-be adopters for children who are eligible for adoption. Furthermore, while there are a few provisions in the Adoption Acts, that ought, on the balance of argument, to be changed, the problems which the changes would deal with are in practice for the most part related to a tiny minority of actual or potential cases. On the question of religious discrimination, as far as I am aware, no organisation or body with any practical experience of the Acts and their operation has ever made or joined in the kind of criticism to which I have referred.

The Acts have been variously described by the critics as discriminatory in the matter of religion and as what is called sectarian. It is important to recognise that these terms, in fact, signify two vastly different things. There is no sense in which the Acts can truthfully be described as discriminatory in the matter of religion. In particular, they are not discriminatory in the sense in which the term is coyly used to imply that there is discrimination against the minority religions in this State.

When the critics allege that the Acts are sectarian, they are talking about an entirely different matter. In recent times the highly coloured word "sectarian" with its overtones of bias and prejudice has been used by some, not to describe or condemn discrimination, but to describe, and by verbal sleight-of-hand to condemn, any legal recognition whatever of religion as a factor in the life of the community or of the existence of religious differences as a fact of life. Their object, as of course, many of them freely concede, is not to eliminate discrimination, real or imaginary, but to eliminate religion altogether as a factor that could be taken into account or recognised by the law of this country.

The situation which these critics seek to achieve is one which, I am happy to say, does not exist even in those other countries whose laws are frequently held out to us as a example of what Irish law and the Irish Constitution should aspire to. Many of those who have criticised the Acts have started from what is in principle a genuine difficulty, though in practice it arises only rarely. I refer to the fact that a couple of different religions may not adopt. Some people conclude from this that the Acts discriminate against particular religions. I regret that this interpretation should have gained currency and it it is utterly without foundation. I shall revert in a moment to the question of religion in the context of the proposals contained in the Bill.

The Bill deals with several distinct aspects of adoption law. The principal proposals in the Bill are ones that are not acceptable to the Government. I refer to subsection (1) of section 5, which proposes to empower the board to make an adoption order in respect of a child who is neither illegitimate or an orphan; to section 6, which proposes to empower the board to dispense with a consent which, in the opinion of the board, has been unreasonably withheld or where it is in the interest of the child to dispense with it; and finally to the proposal in the Schedule to repeal in full section 12 of the 1952 Act, which is the section which contains provisions relating to religion, thus creating a situation in which religion would be completely excluded as a relevant factor. Some of the other proposals in the Bill are ones which the Government can in principle accept, though not necessarily in the terms of the Bill.

I shall now take the provisions individually. The Government are advised that the proposal in section 5 (1) that legitimate children should be capable of being adopted is almost certainly contrary to the Constitution. This advice was originally given at the time when the 1952 legislation was being prepared. Even if it were to be held that the Constitution permitted the legal adoption of legitimate children, it would be necessary to take the greatest care in determining the circumstances, if any, in which as a matter of public policy and in the interests of the common good, the law could contemplate an arrangement that permanently and irrevocably authorised parents to hand over to others one of their most fundamental moral and social duties. Accordingly, even if there were no serious constitutional impediment, the Government would not be prepared to accept the present proposal, at all events without the most serious investigation of the social implications.

Section 6 of the Bill refers to consents to adoption, but, in practice, it relates to disputes, actual or potential, about the custody of the child and it proposes in effect to give the board power to determine such disputes. This proposal too raises a fundamental constitutional problem. It is extremely doubtful whether the power to determine the right to custody of a child in case of dispute is a limited power within the meaning of article 37 of the constitution. It is only if it were held to be such that the power could lawfully be entrusted to a body other than a Court of Law.

A decision about a disputed question of custody is, in relation to the people concerned, a matter of fundamental importance. Even if this Constitutional difficulty was surmounted, however, it would in my opinion, be quite unthinkable that the board should be given the task of determining disputes, actual or potential, as to custody. The change would introduce an element of contention and potential controversy into proceedings before the board which would be liable to have a damaging effect on the whole system. The basis of our system of adoption is that the board gives a formal seal of approval to an arrangement voluntarily entered into by the interested parties, provided the board is satisfied that the arrangement is suitable. It would be dangerous to introduce any element that would be inconsistent with that. I am, of course, aware that a general problem arises in a small number of cases where children are placed with a view to adoption and the mothers refuse to give consent or withdraw consent already given. Moreover, the problem extends beyond the actual cases in which this happens. There is the fear in other cases that it might happen.

It is, however, a many-sided problem and proposals that may at first sight appear to be in the interests of the children directly concerned could be potentially damaging to the interests of a far greater number of other children. I have certain ideas for modifying the present position and I hope in due course to bring forward proposals to provide a practical solution. Broadly speaking, the approach I am thinking of would be to empower the board to make an adoption order without the consent of the mother if the prospective adopters had secured an order from the High Court for the custody of the child. The matter will, however, need to be scrutinised very carefully for possible adverse side affects and also with a view to devising a procedure that would be relatively simple and inexpensive. I also have in mind making a change in the law to permit a mother to give her valid consent to the adoption of her child, either three month or four months after the birth, rather than six months after the birth, as at present. It is generally accepted that after three or four months, a mother has recovered sufficiently from the effects of the birth to be able to make a valid decision to place her child for adoption. Moreover, she has had by then a reasonable amount of time in which to consider the alternatives open to her.

By proposing the repeal of section 12 of the 1952 Act, the sponsors of the Bill are, in fact, asking that the religion of the parties to an adoption agreement should be totally ignored by the law. I regret that they have made such a sweeping proposal. It is a proposal which is unlikely to find general favour. I do not think that there are many in this country who would be happy to have an adoption code which totally ignored the religious factor. In Britain, the mother of a child being placed for adoption has a right, under law, to specify that her child should be brought up in the religion of her choice. I have already said that, in practical terms, the existing provisions in relation to religion do not result in any children remaining unadopted in institutions; because the fact is— and I would hope that this is generally recognised by now—that there are waiting lists of suitable would-be adopters of children of any religion. It is true that a married couple in a mixed marriage cannot adopt and that an orphan child of parents who were in a mixed marriage cannot be adopted. The latter, however, is not a real problem, though I readily concede that I would not care to have to justify the principle if it affected any children in practice.

Certainly there are couples in a mixed marriage who want to adopt but the reality which, in the interests of honesty, we should face, is that the calls for a change in the law to permit couples in mixed marriages to adopt have nothing whatsoever to do with the interests of children, for whom legal adoption is supposed to exist. They are concerned with the interests of adults, who for their own personal satisfaction—I do not mean this in any critical sense—want to adopt a child. Nevertheless, I have decided to include in a Bill which I will promote, a provision that would permit such couples to adopt if one of them is of the same religion as the child and its mother, if —but only if — the mother consents to adoption by such a couple. I propose to make a provision of the same kind in the case of orphans of parents of different religions.

I should like to refer now to the other provisions of the Bill. Subsection (2) of section 5 provides that the board:

If satisfied that, in the particular circumstances of the case, it is desirable to do so, may make an adoption order in respect of a child who was more than seven years of age at the date of application for the order, provided that such child had not attained the age of 18 years at the date of the application for the order.

I regret that I regard the proposed provision as most undesirable. Expert opinion is that if legal adoption is to have a good chance of success, the placement of the child with a family should take place at a very young age; in fact seven years of age is regarded as well above the ideal placement age.

The most significant long-term effect of raising the age-limit is not to increase the number of adoptions but to facilitate people in postponing, to the detriment of the child, a firm decision whether to adopt or not and to increase seriously the risk of unsatisfactory adoptions. I appreciate that the proposal in the Bill is intended to cater for exceptional cases but I have no doubt that once any flexibility of the kind suggested was introduced, there would be a tendency for applicants to rely more on it to avoid taking a decision to proceed with their application to adopt. All this is not just a theoretical analysis on my part. Some years ago the board was faced with a very similar problem in dealing with a cases under section 19 of the 1952 Act, which allowed some flexibility in the handling of cases which had existed before the introduction of legal adoption. The board's experience was that the discretionary power vested in it led to prospective applicants postponing a decision from year to year. Finally, the board asked for the repeal of the provision. This was done in the 1964 Act. There is no pressure for such a change as is proposed in the Bill from any organisation directly concerned with child-care.

Section 4 of the Bill, which appears to be based on section 3 of the Guardianship of Infants Act 1964, proposes that

in any matter, application of proceedings relating to adoption, whether before the board or the Court, the welfare of the child shall be regarded as being the first and paramount consideration.

I fear that in proposing this provision, the sponsors of the Bill have accepted rather wild allegations to the effect that the Acts were—as it has been put—"mother-centred" rather than "child-centred". Nobody working in the adoption field regards adoption otherwise than as a system intended for the benefit of the children concerned. In any case the proposed provision would have real meaning in practice—only if the sponsors' intention was—I am certain it was not—that the board should be capable of overriding specific restrictions enshrined in the Acts themselves. This however seems to be the only meaning which the provision could have. I hope nobody is under the impression that the board's function is, or ought to be, to determine what is the best possible arrangement which can be made for the children with whom it deals. Its function is to determine whether the applicants for adoption orders are qualified and suitable to adopt the children who have been entrusted to them.

The proposal in section 7 of the Bill is to the effect that a minister of any religion should have the right of audience before the board in relation to an application for an adoption order. The position at present is that ministers and representatives of any religion recognised by the Constitution have that right. In addition, the board has a residual power to hear any other person whom, in its discretion, it decides to hear. There has never been a complaint that a minister of a religion not recognised by the Constitution had been excluded from a hearing by the board. However I see no objection to the particular amendment proposed in the Bill which—as far as I am concerned—is totally innocuous. If it were to make anybody any happier, I would not oppose it.

Sections 8 and 9 of the Bill provide for the drawing up of regulations for the proper administration of registered adoption societies by the board and for the cancellation of the registration of an adoption society for non-compliance with such regulations. The fact is that, under the present law, the board has virtually unlimited powers in the matter of registering or refusing to register adoption societies and of removing from the register, any society which does not carry out its functions properly.

The board has set out what are called "recommended procedures" to which societies are required to conform and to which they can be made to conform, on the penalty that if they do not do so and a placement is made carelessly, they can be removed from the register. I wish to say—for the record—that this was done at the urgings of the societies themselves. There has never been any question of the societies seeking to evade supervision by the board.

I consider accordingly, that there is no real need for the amendments proposed in sections 8 and 9 but they are, in principle, unobjectionable and might have some limited value in certain circumstances. Therefore I would be prepared to include a similar provision in legislation to amend the Adoption Acts.

The Schedule to the Bill proposes, inter alia, the repeal of subsection (2) of section 15 of the 1952 Act, which provides that, if the mother of an illegitimate child changes her religion either during the 12 months before the birth or within 12 months after it, her consent to adoption may not be given for 12 months after the change in religion or 12 months after the child's birth, whichever is the later. This provision was introduced, I understand, as a precaution against possible undesirable “missionary activity”. As far as I am aware, this is a diminishing problem and has now almost disappeared in this country and I would be prepared to propose the repeal of the subsection in amending legislation. I might add that Senator Robinson's reference to the fact that a mother had 12 months, under this subsection, in which to change her mind and thereby upset an existing order does not apply where a final adoption order has been made because that final order could not be upset under this provision.

To sum up, what I have described as the major proposals in the Bill, namely, the proposal to permit the adoption of legitimate children who are not orphans; the proposal which would, in effect, confer on the Adoption Board the power to decide disputed questions of custody; and the proposal which would abolish entirely the references to religion in the Acts are not acceptable to the Government. As for the rest, it is my intention to have a Bill prepared to amend the Adoption Acts. The Bill will contain provisions on matters not touched on in the present Bill. It will, I hope, include some provision to deal with the problem of consent, a provision to permit a married couple of different religions to adopt where one of them is of the same religion as the child and its mother, if the mother consents to adoption by such a couple, and a similar provision in relation to orphans of a mixed marriage.

The Bill will also contain provisions on the lines of sections 7, 8 and 9 of the present Bill and will provide for the repeal of section 15 (2) of the 1952 Act, which is also proposed in the present Bill. I regard these latter matters as ancillary and not worth legislating for in themselves. At this stage I would hope that I might be in a position to introduce a Bill before the end of the autumn session. However, I want to emphasise that very careful consideration will have to be given to the drafting of proposals to be embodied in the Bill. As none of the problems to be dealt with is of pressing urgency the measure will have to take its place behind other urgent matters. For that reason I am not in a position to say definitely that the legislation will be introduced before Christmas although I shall, of course, do my best to ensure that this will be done if possible. It is my intention to consult with the members of the Adoption Board before I formulate proposals for amendments to the Acts. Indeed, some preliminary consultations have already taken place.

There are one or two other matters arising out of what Senator Robinson said that I would like to refer to before I conclude. The main one was her references to certain events which took place in relation to the Adoption Board in 1969. Some very unfortunate remarks were made in the Dáil on 12th April by Deputy Fitzpatrick (Cavan) in relation to those affairs and I am disappointed to find that some of those unfortunate and terribly hurtful remarks about particular individuals who are unable to defend themselves were repeated here today by Senator Robinson. I completely reject the implication that there has been any interference by me or by my predecessor or by my Department in the working of the board.

I reject, in particular, any allegation that either the chairman or the registrar have in any way, at any time, exceeded their functions. I have no doubt that the board would unanimously agree with me on that and while, unfortunately, I cannot spell out why I know that that is the unanimous view of the board, I have very good reasons to be aware of the fact that this is the unanimous view of the board. The allegation was made today by Senator Robinson that in some way the work of the board was affected—that it was not as efficient as it might be—because of their alleged unhappy relationship with the Department of Justice.

Why did three members resign?

I can most assuredly put Senator Robinson's mind, and anyone else's mind, at rest on this point by saying that I am absolutely satisfied that during the time I have been Minister for Justice the relations between my Department and the board have been absolutely cordial. While there is very little contact, as a general rule, between my Department and the board —the board are completely independent in their functions—over the last two years whatever contact there was was absolutely amicable.

Senator Robinson made reference to the fact that a great deal of research has not been undertaken with regard to adoption here. She made a complaint that is not often heard these days; that we did not have a commission or a committee sitting on adoption. The normal complaint one hears nowadays is that there are too many commissions and committees sitting on too many problems, Senator Robinson gave the House a long list of inquiries, both public and private, into various aspects of adoption in Britain and Northern Ireland but she neglected to tell the House that our adoption procedure, if I may say so without in any way being critical of what it is elsewhere, is, in my view, superior in an important aspect to the procedure in many other countries. We have a single Adoption Board and there is absolute uniformity of the application of our law and procedures in relation to adoption. The procedure in Britain is different. There are different courts to look after adoption matters and the views of a county judge in one area may not be at all the same as the views of a county court in another area. The need for research and inquiry into the adoption procedures is far greater in countries with such a system than it is here.

Nearly 19 years have elapsed since the setting up of the adoption system here and, although the system has been very successful, I see no objection in principle to some sort of research into the work of the board over the past 19 years. Such research might be carried out in conjunction with the amendments which I propose to the existing enactments. In conclusion, I feel bound to say that the major proposals in this Bill seem to be totally unacceptable and could not be regarded as anything but detrimental in the context of adoption in this country.

I have enumerated certain amendments which might profitably be made to the law but they are not on the lines of the basic provisions of this Bill. Although there are a couple of innocuous sections in this Bill to which I have no objection, I feel that the House would have serious objection in principle to the basic provisions in it, one of which is a proposal to remove religion entirely from the adoption system. For these reasons I would ask the House not to give this Bill a Second Reading.

I agree with Senator West that the House should compliment Senator Robinson for the vast amount of work and research which she obviously put into presenting her case in favour of this Bill to the House. I am glad to say that so far as my party is concerned, we are able to respond to one of the suggestions which she made, that is, that this Bill should not be treated from the party political point of view. We in the Fine Gael Party take the view that the Bill is not one in which there should be rigid party attitudes. The three Fine Gael Senators here are perfectly free to express their own individual points of view and their own personal arguments, for or against, the proposals which are contained in this Bill.

Senator Robinson did show not merely a very deep interest and concern in the subject matter of this Bill but she also showed that she had taken the trouble to do a tremendous amount of background work in relation to her contribution to the discussion here today and to try to satisfy herself with regard to the kind of changes which are proposed in the Bill.

Having paid that compliment to her, and it is one which she certainly deserves, I also think a compliment should be paid to the Minister for his forthright approach to the Bill. He was talking on behalf of the Government. I would have hoped that he might have felt free to say what I am saying on behalf of my party, that is that the members of the Fianna Fáil Party who are Members of this House should be free to express their own individual views with regard to the Bill.

They always do anyway.

I do not know if the Minister intends by that to say that they always agree with him.

The last day I was here I remember Senator Nash did not.

In speaking for myself, I do not regard the existing legislation on adoption as being in any way sacrosanct or not amenable to amendment. As both Senator Robinson and the Minister have pointed out, it is true that the principal Act is now nearly 20 years old. Subject to the modifications that were made in the 1964 Act, it has been in operation now for nearly 20 years. It is also true to say that at that time it was introduced as a measure which was considered largely as experimental. It had the goodwill of all parties in the Oireachtas but it has been in existence for a long time. Amendments were introduced in 1964 and I would not dismiss some of those amendments as being entirely trivial. However, by and large, the structure set up in 1952 has continued since then. Consequently, I do not consider it surprising to find that, by means of a Private Members' Bill on the one hand, or by means of a Ministerial announcement on the other, that amendments to the adoption code are being considered.

So far as this Bill is concerned I am bound to say that the Minister has already expressed largely the point of view which I had intended expressing with regard to a number of the major proposals tha have been put forward. Senator Robinson said—and I think that she was extremely courageous and frank in her honesty—that her approach to this was to admit quite readily that the Bill, which she was sponsoring together with other Members of the House, had its imperfections. She approached that by suggesting that whatever the imperfections or faults might be in the Bill, if it was accepted that reform in the adoption code was required, then the right approach for this House to take in the matter would be to pass the Second Reading of the Bill and to iron out any difficulties that there might be, to get rid of imperfections, et cetera, in the Committee Stage discussion. I could not go along with Senator Robinson in that approach, because it is not a question of establishing on the Second Reading of this Bill merely the principle that changes and reform might be necessary in the adoption code. Anyone who supports the Second Stage of a Bill must satisfy themselves that the particular reforms and the specific changes being proposed as matters of principle are principles that are acceptable. I have given this Bill the best consideration possible and have tried to approach my consideration of this Bill in as sympathetic a frame of mind as I could.

On that basis there are four major proposals in the Bill, along with some others. Firstly, the proposal to delete section 12 of the 1952 Act and, as a consequence of that, section 6 of the 1964 Act. Secondly, the proposal in section 5, subsection (1) of the Bill to extend the adoption code to additional categories of children, to go outside the categories of illegitimate children and orphans; thirdly, the proposal to extend the age for adoption from the present limit of seven years to 18 years; and, fourthly, the proposal contained in section 6 of the Bill to give power to the adoption board to dispense with the consent of the child's mother or guardian, if the board is of the opinion that the consent is being unreasonably withheld or in any case where it is in the interest of the child.

As regards the first of these major proposals—the deletion of section 12 of the 1952 Act—when I first read this Bill I understood that all that was involved here was a proposal that the adoption of children should be open to a mixed marriage. When I looked at it in that light I felt that there probably would be a great deal of sympathy with the argument. I could understand partners through a mixed marriage who are childless feeling that they were being treated more severely than anybody else. I could see them having a heartfelt desire for children, being nevertheless childless and being unable to adopt children under the adoption code as it stands, and asking —in the case of a mixed marriage to which no legitimate objection has been taken and which, if the union has been blessed, could have produced children —why in such circumstances the law steps in and says: "Nevertheless you cannot be allowed to adopt children."

I can understand that argument and I thought that was what was involved here. I felt that when the 1952 Act was being passed—and Senator Robinson quoted some literature which corroborates my belief in this —there was the deepest and fullest consideration and discussion not only with the Catholic hierarchy but with various other churches concerned. The code, as eventually established in section 12 of the 1952 Act, was a code which to all intents and purposes was agreed by the various religious denominations. When I thought the only thing involved in the proposal contained in section 3 of this Bill and in the Schedule was to allow for adopttion by mixed marriages, my reaction to that was that the same kind of consideration and discussion as took place prior to the 1952 Act could take place again and that it would be worth while doing it to try to solve this problem.

There are people who will ask why should there be discussion. They will say that we are one of the Houses of the Irish Legislature, that it is our business to consider and pass legislation, and ask: why should the churches come into it at all? I feel that it is the business of the churches where religion is concerned, to put it in the vernacular, that that is their job and it is only right that the kind of consultation which clearly took place previously should take place in connection with any proposed alteration.

On considering the matter further and the Minister's interpretation of the Bill, I feel it goes far beyond dealing with the question of adoption for mixed marriages. I do not know whether what was proposed here was fully considered by the proposers. What the proposal seeks to do is to obliterate completely from the adopttion code any requirements as regards religion and to have an adoption code which contains no safeguards whatever as regards the religion of the child.

The Minister is right when he adopts the attitude that people in this country profess religions. It is true to say that 99.99 per cent of the people in this country profess a religion and to me it would seem to be legislating in blinkers not to recognise that fact. To recognise that fact and ignore it would be to legislate at least incompletely, if not perhaps dangerously and, possibly, provocatively. Therefore, the proposal contained in this Bill that any reference to religious requirements or conditions in our adoption code should go by the board, I would find unacceptable. This kind of thing can be exemplified on a personal basis. Fortunately, I am blessed with a large family, some of whom are still under the age for adoption. If my wife and myself were killed in a car crash I would not look with any equanimity on a situation where it would be possible to have my children adopted without having any regard whatever to my religion or wishes or to their religion or their wishes.

If there was acceptance of that proposal, the door would be opened to that situation. It ought to be conceivable that this position might arise for a child established in a particular religion, even on the basis of the existing age of seven years. Before the age of seven years a child can be firmly rooted in a particular religion. If any consideration of religious conditions or requirements were to go out of the adoption code, it would be possible for a child to be adopted in a particular religion to be adopted by adoptive parents of another religion, or of no religion at all. If the child is adopted by parents of another religion, one could foresee the mental torture and distress which might be occasioned to the child if he or she were put under any kind of duress to change his or her religion. There would be nothing to prevent that if this provision were carried.

No one could seriously contemplate allowing such a situation to arise. The proposers of this Bill did not intend this to happen. I am just saying that it could arise, as I see it, if the Bill is adopted as it stands without the kind of safeguards which exist now. An argument could possibly be up against what I am stating. It could be suggested that there is no need for the mother or the guardian to give consent to the adoption unless she is satisfied that there will be proper safeguards for the religion of the child and that there will not be any mental stress imposed on the child in an effort to change the child's religion. This would be a valid argument if it were not suggested in the Bill that there should also be provision for an extension of the powers of the board to dispense with the consent of the mother or guardian if they decide it is in the interest of the child or if they decide that the grounds on which the consent has been refused are unreasonable. I do not suggest that a board would come to the decision that a mother's refusal to give consent would be unreasonable because she feared an attempt to proselytise the child. It would be open under the terms of the Bill as proposed for that decision to be taken on those grounds.

The second proposal in the Bill is to extend the adoption code to apply beyond the categories to which it applies at present, that is, orphans and illegitimate children. I could understand the reason for this proposal when it was explained by Senator Robinson. What was in mind was to endeavour to deal with the case of abandoned children. There would be ready sympathy for a proposal which would deal in a proper manner with such cases. Unfortunately, the Bill, as drafted, again goes far beyond that. Outside the limited scope of abandoned children there are other categories who are neither orphans nor illegitimate where there would be ready sympathy for the idea of providing adoption.

We can take the example of a mother who dies leaving a young family and the father may have to emigrate to earn his living. He would feel it was better for the children if they were adopted. We are up against a Constitutional difficulty in relation to this proposal. The Minister referred to this in his speech. I had a quick look at Articles 41 and 42 of the Constitution both of which have an effect on this. Article 41 refers to the inalienable and imprescriptible rights of the family. If those rights are inalienable they cannot be alienated. Article 42 also refers to the inalienable right and duty of parents.

In trying to arrive at a solution for cases such as abandoned children or other similar cases, it would seem that the proper course is to allow adoption. The amendment needed here would not be an amendment to the adoption code but possibly an amendment to the Constitution.

The third major proposal is to extend the age for adoption to 18 years. Here again there probably would be fairly widespread support for the idea of extending the age. In my view, 18 years might be a bit too old. The Minister has given some reasons as to why 18 years would be regarded as too old to be an appropriate age. If there is an extension of the age limit into an age group where a child could have reasonable personal views and preferences, any question of adoption should only be on the basis of proper consideration being given to the wishes of the child. A provision of that sort did apply under section 19, subsection (4), of the Act of 1952. This was the section which applied to then existing adoptions where an adoption order was made within two years. If those provisions of section 19 were there and could apply in the case of people of, say, nine, ten or in their early teens, then the kind of thing I am talking about would be covered, because subsection (4) of section 19 of the Act of 1952 provided that the board should give due consideration to the wishes of the child having regard to his age and understanding. But section 19, in its entirety, was repealed by the Act of 1964 as from 1st January, 1966, so that it would seem that if you contemplate an extension of the age limit the Bill as proposed at the moment would not be sufficiently strong as it stands. It would be necessary also to incorporate into the Bill some such provision as existed in the repealed section 19 of the Act of 1952.

The fourth major proposal in the Bill is the proposal to give the Adoption Board power to decide if consent is unreasonably withheld and power to dispense with the consent if they decide that the consent is unreasonably withheld or in any other case apparently where they come to the conclusion that it is in the interests of the child. My reaction to this particular proposal would be one of total opposition. Senator Robinson advanced a number of arguments on this point. Having heard her arguments, I do at least understand the reasons why this proposal was contained in the Bill. But no matter how well meaning or well motivated an Adoption Board might be in its approach to a decision which it would be empowered to make under section 6 of this Bill if it became an Act, I would not willingly give to any board the right to take away a child from its mother merely on the opinion that the mother is unreasonable in withholding her consent. I doubt very much if that proposal would have any substantial support at all if it were examined, particularly the last six or seven words of the suggested addition to be made by section 6 "in any case where it is in the interests of the child."

There are some other provisions also suggested in the Bill. The four I have dealt with are the major principles involved. The question also arises in section 4 to make the legislation child-centred rather than mother-centred, in other words, to make the welfare of the child the first and paramount consideration. There is a great deal to be said here. It might be a question of defining more closely what we mean by the welfare of the child. As a general guideline it would seem that some such expression would not do any harm.

The Minister indicated in relation to section 7 of the Bill that he did not see any particular objection to it. I should like to direct the attention of Senator Robinson and the Minister to a consequence which I would see as following if section 7 of the Bill, as proposed, stands. Section 7 proposes that subsection (1) (g) of section 16 of the Act of 1952 should be amended by deleting the words "reorganised by the Constitution or in the case of any such religion which has no ministry an authorised representative of the religion". The purpose of section 16 of the Act of 1952 was to set out the rights of persons to attend on the hearing of applications for an adoption order. One of the categories of persons who were entitled to attend at such a hearing is set out in subparagraph (g) of subsection (1) as being a priest or minister of a religion recognised by the Constitution or, in the case of any such religion which has no ministry, an authorised representative of the religion.

If the words "recognised by the Constitution in the case of such religion which has no ministry and authorised representative of the religion", were omitted, it would seem to me that, while you are getting rid of the references to religions recognised by the Constitution, you are also incidentally precluding a religion which has no priest or ministry with any right to attend before the hearing. That is a matter which would have to be taken into account particularly in reference to the Minister's indication that that was an amendment which he apparently was disposed to accept in the legislation which he proposes introducing.

I go a long way towards agreeing with Senator Robinson in relation to section 8 of the Bill, that is, the question of empowering the board to draw up regulations for administration and so on of adoption societies. I have looked at the Bill as closely and as sympathetically as possible and I feel that there are four main proposals in it. There are two main proposals to which I feel strongly opposed. There is another one of the four which to my mind is doubtful on constitutional grounds and, therefore, I would find myself in a position of only being able to agree with one-quarter of what seems to me to be the main principles of the Bill. With that fraction, I do not see that I would be justified personally in supporting the Second Reading of the Bill, notwithstanding the cogent arguments and I am not saying that in a cynical sense.

It was a reasonably cogent argument put forward by Senator Robinson that, if it were accepted that there should be changes, then the Second Reading should be accepted and problems and difficulties ironed out on the Committee Stage. I do not feel I could go along with that. I am making my attitude quite clear, partly because my Whip here facilitated a member of Senator Ó Maoláin's party with my consent, in having me "paired" today, so that if there is a vote on this I am precluded from voting. I think that, if I were free to vote, I would not support the Bill. I would probably vote against it, although I might be talked into abstaining.

After the comprehensive reply of the Minister to Senator Robinson's introductory statement on the Second Reading, there is very little I need say in support of his case against the Bill. I should like to express my satisfaction at the assurance he gave us that he intended to introduce a measure, if possible, before the end of this year, which would deal with points which many of us have taken an interest in, in connection with this whole problem. I was also very glad to hear his assurance that, after 20 years' experience of the Government Acts, he could see no objection to a review of their working.

I hope that in due course a survey of the working of these Acts will be made and efficiently carried out, because the first adoptees under the Acts are now reaching the age of manhood. Therefore, he should be able to get a good idea of the operation of the legislation as a result of an inquiry or an investigation into the position.

I am very sorry to have to spend a little time in drawing attention to something which I do not like and which has crept into the debates on two issues here to-day. Earlier in the day on Hospitals Regulations, Senator West referred in passing to something which, taken by vicious and hostile people, could be twisted and used as propaganda against the democratic system which obtains in this part of Ireland.

In this Bill which we have before us now, Senator Robinson in her introduction also used words in relation to events of some historical importance which could be twisted by evil-minded people to substantiate the case made by certain sections of bigoted individuals in relation to the freedom which exists in this part of the country and the liberty of conscience that has obtained here at all times. I do not like to have to refer to it but in the interests of historical accuracy, and for the record, it should be stated quite clearly so that there can be no ambiguity about it and so that it is not open to misrepresentation at this time.

Senator Robinson referred to the genesis of the adoption legislation. It was first introduced as a Private Member's Bill by Deputy "Pa" McGrath, Fianna Fáil, and Deputy Percy Dockrell, Fine Gael, in 1950. The Bill was not entertained. It was then followed from what I understood from Senator Robinson by a period of waiting until such time as the Catholic Hierarchy made their position clear.

Senator Robinson quoted from a book by Mr. Whyte, which was published last year and which I have not read, but if she is relying on the statements made in that book to substantiate the case which she made, then I should like to tell her that it is entirely wrong and not in accordance with the facts. What happened in 1950 and 1951 was entirely different to the impression which she has given in the course of her introductory remarks.

When public discussion of the proposal for an Adoption Bill began, objection was taken by some people to any attempt to introduce legislation. The idea was dropped by the then Government. In 1951, the proposition for an Adoption Bill was revived. At the time, Mr. Gerald Boland—to whom Senator Robinson referred—was Minister for Justice. He was one of the most competent and courageous Ministers in any Government in this country, He was the last person to be overawed by a rifle or a crozier. He would not take dictation from a mailed fist or a bishop. The idea that, when the Adoption Bill was propounded, Gerry Boland would have to wait or go cap in hand to any clergy or any representatives of the clergy to get permission to do what he considered was his duty as a civic leader is too absurd to need any further rebuffal by me.

In case there is any misunderstanding, the sequence of events was as follows. The Bill was drawn up by the Government and the Department of Justice. Far from the hierarchy— by that I mean the Catholic hierarchy —being asked for permission to introduce an Adoption Bill, indication was given to them, to the head of the Church of Ireland and to the Chief Rabbi that such a Bill was being introduced, that the headings of it were as follows and the main outlines of the Bill were submitted to each of them in turn for his observations. They were told that if any of them had any suggestions to make for its improvement, they would be entertained. There was no question of asking permission from any church to introduced the Bill. As citizens and representatives of religious communities, the churches were given the opportunity, before the Bill was passed in the Dáil and Seanad, to give an indication of their views on the clauses of the Bill. The Bill was passed and enacted, not by prior permission of any church, but with the approval of the Members of the Dáil and Seanad, the elected representatives of the people, who can give permission for legislation in this part of the country. Outside the Houses of the Oireachtas, there is no other body which can give permission—or need be asked—for legislation to be introduced or to have it enacted.

Would the Leader of the House give us a short point of information on the quote I gave? He may have read too much into the quotation. I note, on the part I quoted, that "The Archbishop of Dublin and his delegate, Father—now Monsignor—Cecil Barrett went over every clause." In the footnote there is "Information from the Archbishop of Dublin" himself. The authority which Dr. Whyte is relying on is the authority of the Archbishop, that is the former Archbishop, Dr. McQuaid.

That was the sequence of events as I knew them.

Senator Robinson also referred to the difficulty in regard to the birth certificate and suggested that the long certificate would identify the adopted children. I do not think there is anything mandatory in regard to the long certificate. There is no reason why short birth certificates should not be used. The question of the issue of short birth certificates seems to be a matter for working up a general feeling of public support. If Senator Robinson would work on that basis—and also in regard to the baptismal certificate— which requires nothing but public support and demand, she could remedy that position without much difficulty.

Senator West referred to the difficulties in regard to his marriage prospects because of the Ne Temere decree. Unfortunately we have nothing to do with this decree in this House. As far as I am aware it has been abolished in most parts of the civilised world and therefore I do not see any reason why it should not be abolished here. If Senator Robinson and Senator West can influence this action they will have my full support.

The question of adoption has had a very good airing from the comprehensive review which Senator Robinson went to so much trouble in preparing, as was mentioned also by Senator O'Higgins. I must compliment her on this work in regard to the introductory speech of this Bill. I regret I cannot support the Bill but she will be pleased to know that many of the items contained in her own Bill will be included in the Bill which the Minister has promised to introduce in the Seanad in due course.

This Bill proposes to amend radically the existing adoption code, and I cannot—like the Minister—understand why. The present adoption code is one of the finest pieces of legislation which was enacted since the State was founded. None of the changes would increase by one the number of children to be adopted or would give any child greater happiness or security. I should like to refute Senator Robinson's statement that we have failed in the field of adoption. We have failed neither as legislators, adoption societies or as a board. The fact that 18,000 adoptions have been made since the first Adoption Act—and not even one of them was challenged successfully in court—is sufficient proof that our adoption code is working excellently.

I intended speaking at length but the Minister has dealt with the whole Bill so excellently that it would be impertinent of me to add anything further. I should like to compliment him on his understanding and approach to adoption and on the changes which he intends to make. Each one of these changes safeguards the interests of the child. The central idea of this question is that any Act we have in this regard should be child-centred.

I was very surprised that Senator Robinson has included section 5, which is unconstitutional, even to somebody like myself who knows very little about constitutional law. As the Minister has said many of the matters in the Bill are already dealt with by the Adoption Board. They must ensure that the adopting parents are of good moral standards; that they have sufficient means; that they are suitable people to be in loco parentis,

In section 5, Senator Robinson wants the age raised beyond seven years. A great deal of research was carried out before it was decided to fix the age at seven years. It was not a decision that was taken lightly. As Senator O'Higgins has said, a child of seven years is fairly old to fit into a family unit. I totally disagree with raising the age beyond seven. People who foster children and relatives of the children are allowed to adopt them at an older age.

Senator Robinson wants to give a very sweeping power to the Adoption Board where consent is withheld unreasonably. I can assure the Senator that no board wants such a power and we should leave it where it should rightly be, with the High Court. The board and all adoption societies have very high standards laid down. As the Minister pointed out, registration of an adoption society can be refused or withdrawn, or a group can be registered as an adoption society if they are considered suitable. There is one matter which I think the Minister should look into and that is private placements. There would be no need for an adoption board or adoption societies if we can have people freelancing and, as Senator Robinson has said, we know that there have been several abuses in the matter of adoptions.

The most controversial section of the Bill is, undoubtedly, the wiping out of religion from our adoption code. I am glad that Senator O'Higgins pointed out that religion forms a major factor in Irish life and I hope it will always remain so. We do not want a secularised adoption code in Ireland because there is no public demand for it.

I wish to compliment the board, the adoption societies and their staffs and I also want to compliment the many unknown people, the voluntary dedicated workers, attached to those societies. I met several of them over the weekend and I discussed this Bill with them. All the points made by the Minister were in agreement with the views of those people.

I have greatly benefited from all the contributions made here today. I thought that both the Minister's speech and Senator Robinson's speech were excellent speeches of their kind. Even though there may appear to have been a clash between them, we are ending the day on a much more enlightened note. Having heard the lengthy case placed before the House by the proposer of the Bill and by the Minister we genuinely feel that we are not in a position to have much further advance in this field of legislation today.

Even if Senator Robinson feels that she is being hard done by, she is not in any way being hard done by on this issue by the attitude of the Government and this party; she is being hard done by the machinery of Parliament. I would share the Minister's view that there are many important items of legislation which are matters of high priority—I can think of one Bill to which I would give a higher priority than this Bill—which are at present in the pipeline and it is unlikely that they will be dealt with before the end of this year. While the Minister is not here at the moment, I should like to suggest that the Minister's chairmanship of the committee which is at present looking into Dáil procedures is of some relevance in that I would hope that the report of that committee might lead to improvements in the parliamentary machinery which would facilitate the Minister in introducing speedily his legislation in the field of adoption and in the realm of legislation generally.

I welcome the Minister's indication that he will be introducing legislation to deal with the most important matters in this issue. I came into this Chamber feeling that I had much in common with Senator Robinson, but the Minister's arguments, particularly the points he made with regard to law and constitutionality, made me reassess my views on many of the matters raised here today. Senator Robinson mentioned, during her contribution, that there had been a resolution passed at the Fianna Fáil Party's Ard Fheis this year calling for a change in adoption law. That resolution was quite specific: the Ard Fheis called for the amendment of the law to provide for the legal adoption of children by parents of mixed marriages. This, of course, is one of the items the Minister indicated he proposes to deal with in his legislative proposals.

The Minister was quite right in saying that adoption should be a child-centered process and that the professional standards of the social work and social welfare involved should be of the highest calibre. That goes without saying and is something which can never be guaranteed or assured by legislation. Even as things stand at present, this must and should be the way in which adoption is regarded and handled. In the correspondence which I have had in connection with adoption, some of which has come from Northern Ireland, no sectarian bogey was ever raised, whereas some concern was expressed—in relation to some unfortunate cases in the past—about the professional standards involved in the placement of children with adoptive parents. The professional standards and requirements, under our existing legislation and without changing one letter of the law, are set at the highest level. It should be the concern of all of us to see that the highest professional standards of social work and social care are found in adoption societies.

Another point which was brought to my attention through correspondence I received from Northern Ireland was the point in connection with mixed marriages. The Minister has assured us that he will meet this problem in his legislation and I am quite happy to leave it to him. I have been very disturbed and saddened—this is part of the enlightenment I received from the Minister's contribution—by the increasing number of broken homes. This seems to result in a number of legitimate children who, perhaps, could greatly benefit from adoption but I accept the point the Minister made about the constitutional difficulties created by this situation where the rights of parents have to be taken into account. It is very serious if people feel that there is room for a measure of advance here. It must have more detailed treatment and consideration than it had here today and it is certainly a field for further study.

I wrote to the Minister when this Bill was first circulated indicating my sympathy with some of its suggestions. Even at that time I saw that the proposal in connection with consent was a rather dangerous one and my views would certainly be ad idem with those of the Minister. I completely accept what Senator Ahern and others had to say about the crucial part which religion plays in our society. I am not sure if Senator O'Higgins's figure was accurate but the business of adoption would concern 99 per cent of the population.

If Irish experience turns out to be similar to that in other countries, it may show that in future our legislation will have to reckon with the existence of a small number of people who practice no religion. This may be the situation within a united Ireland. Nevertheless, I hope that our avowals of the importance of religion and our recognition that it is a matter in which 99 per cent of the population have a very clear idea will not make us blind to what may turn out to be a fact of social life which we should take account of.

If it is a fact that the numbers of people who practice no religion are increasing, one factor in creating people with an attitude of this kind is that, particularly in discussing sensitive social problems such as we are discussing today, some young people feel that those who present a point of view, as leaders of the churches, may not in practice appear to be applying a truly Christian spirit towards social problems. Hence, young people are very sensitive to anything that may see as a clash between what is claimed to be the religious viewpoint and the sympathetic view given to a human situation. For that reason I am anxious to make this point personally: it is very important that, no matter what our avowal of the overwhelming majority view of religion is here, as legislators in the future we must be prepared to look at the situation which may arise if we have any significant numbers in our community who are people of no religion.

I tried to state in a rather different way what may have been the intention behind the section in Senator Robinson's Bill to exclude from adoption legislation references to religion. I understand the difficulties Private Members face when putting forward legislation, but this may be a way of making a proposal which may inhibit the very reforms which Senator Robinson is seeking to advance. There were similar proposals in a previous Private Members' Bill which she introduced. I think this too sweeping an approach to things is something that may inhibit fair discussion of the situation and may appear to be an attack on a generally held point of view which is not intended. This is a good reason for not agreeing to the Second Stage today and for waiting, now that this debate has taken place, to hear what the Minister's proposals will be. I hope he will place these proposals before the House before the end of the year.

First of all, I should like to thank those Members who have contributed to the debate. I should also like to thank the Minister for the consideration he has given to it. I noticed that, as regards those who listened and those who participated, it was the Government side who were in the majority in this. The absence of my two supporters on this Bill was due to the unfortunate fact that one of them is out of the country and the other, I think, is lost on an island in Donegal, but did intend to be present. Therefore, it was an accident, rather than lack of enthusiasm on their part, which has left me alone with this Private Members' Bill.

Returning to the points that were made on the Bill: it was hoped that it would fulfil two functions. The first one was to provide a general debate in the House on the subject of adoption, which is a very important one that needs to be aired in a parliamentary debate for the record. Secondly, I had hoped that by persuading the House of the necessity for reform, the Second Reading of the Bill would be passed and that it would go on to Committee Stage. However, it seems to be the first objective—the debate—that has been gained at this stage. At least, it was a worthwhile contribution to try to get changes made in adoption laws, particularly as the Minister for Justice, in replying, seems to accept quite a number of considerations in the Bill.

As I listened to him, it was the aggressive tone in which he spoke rather than any real difference of opinion in many of the matters he mentioned which, unless one listened very carefully, tended to be slightly misleading. I was very glad to hear him say that he will be introducing legislation before Christmas, and that this legislation will meet a number of the points mentioned in this Bill. It is expected to bring in a variation on the section which proposed to repeal section 12 and cater for the parties to a mixed religion; that they will be enabled to adopt a child, and that a child of parties of mixed religion will itself be able to be adopted. As most Senators have appreciated, this was the major consideration in the repeal in the Schedule.

It was not an attempt to eliminate religion from the subject of adoption. I agree with other Senators that it would be unreal and a distortion. It is, of course, a very real factor in the whole process. It was an attempt to remove the legislative incumbrance of it rather than religion itself. The mother would always be in a position to specify in what religion the child was to be brought up. No responsible adoption board would consent to an adoption if the parties were not of the same religion as the mother.

It is an over simplification to say that by removing the legislative provision, which is a very rare one—I do not know if it exists in this form in other jurisdictions, certainly not in the United Kingdom or Northern Ireland— you are thereby removing religion from the whole subject. On the contrary. You are enabling the mother to determine the child's religion and the safeguard would be that the adoption board would not consent to an adoption unless this was being done. Although the Minister made a strong case that the present situation does not discriminate in the matter of religion and does not discriminate against any religion, it does discriminate against the minority who have entered into a mixed marriage.

In some of the proposals in this amending Bill other aspects of the Constitution were queried as to whether they were constitutional. I query whether section 12 is constitutional on the grounds that it does not treat citizens of this country equally. Since the Minister has accepted that principle, and he will be introducing that reform, I will not say any more about it.

The Minister was particularly critical of section 5 in that it proposed to extend the category of children to be adopted to include children who are not illegitimate or orphans. I stated that the idea was to meet the case of children abandoned at birth—where the parents never assumed any responsibility for them. I believed that the wording of section 5 subsection (1) could be tightened up to make this clearer than it is at the moment. The board would have to be satisfied in the particular circumstances of the case that it was appropriate to do it. This is one of the substantive reasons why section 4 was a necessary part of the scheme in that if the board and/or the court, in relation to an adoption procedure, are given the guidance that the welfare of the child is the first and paramount consideration, this may balance the other possible constitutional considerations. This is only a subjective view.

Since this matter will come up before the House again in a short while, perhaps before Christmas, it is worth putting on the record. That would enable the board or court to consider that the welfare of the child would be the paramount consideration. The child will be a citizen of the State and one could look to the protection of the rights of the citizen, the treatment of all citizens equally and the personal rights of the citizen in considering the case of a child who had been abandoned at birth and had no possibility of a legal family unless that child could participate in the adoption procedure. One often gets a conflict between Articles of the Constitution and this might override what are rather vague provisions of the Constitution in relation to the family, that the family have "inalienable and in-prescriptable rights antecedent and superior to all positive law."

In other countries it is possible to adopt a child which is neither an illegitimate nor an orphan and it is not considered terrible or appalling or open to substantive abuse. With the supervision of the adoption board or the courts in certain circumstances it can be a way of preventing the situation arising where the child will spend a time in homes or fosterage with no security where otherwise that child could have the equal rights that other children have—the right to a legal family, the right to security, the right to the love and stability of a home environment.

At this point I want to comment on what the Minister said about there being a waiting list for adoption. This is so in many parts of the country, particularly in Cork. There is a waiting list for suitable children for adoption. Part of the reason for this is because the categories of children who may be adopted and who are physically and mentally fit to be adopted, are not very numerous. There are other problem children who have either minor defects, or who are not illegitimate or orphans, or who are over seven years of age, who are still spending their time in these homes for young children. If the Minister was accusing the sponsors of this Bill of oversimplifying in that instance he was oversimplifying himself by suggesting that a waiting list proved that there were no children in circumstances where it would be possible for them to be suitable children for adoption provided the legislative facility was there.

The Minister thinks that the age of seven is high enough. He considers it old as it is for adoption. This is not the point. Seven years is old to place a child in a family, but in many cases the adoption procedure does not start until the child is a long time with a family. The child may have gone to the family from between the age of three months and three years and be there ten years before that family decide legally to adopt the child, because they have not thought about it. It is not a matter which would inevitably be before the minds of those people. We are not talking about the phychological problems of trying to take a child over the age of seven out of another environment and place him for adoption, which would raise difficulties, but of providing the facility of adoption for a child who may well be there before that age, but because of having gone beyond the age of seven years, could not be adopted. In some cases this has been a hardship and the board should be given certain discretion here that if in the particular circumstances of the case the board consider it desirable they could make an adoption order in the case of a child older than seven because in many cases it is due to the neglect of the parents to finalise the adoption or due to their lack of appreciation of the necessity for legal action in the form of a legal adoption order.

I mentioned that the wording of section 6, where the consent of the mother could be overridden if it was unreasonably withheld, or in any case where it was in the interest of the child, I felt on reflection, that this was rather wide and it would be a matter for a better formula on the Committee Stage. After listening to the Minister I confess that I was persuaded to some extent by his point that this would be giving a substantial power to a board rather than to a court in the circumstances, and that this might go beyond the limited powers under Article 37. I am glad to know that he is thinking of a formula which would involve a court order for the cases where the consent has been unreasonably withheld. This is one of the major problems in adoption procedure, the fact that the mother can call the tune completely and can call it rather irresponsibly in not consenting to the legal adoption, in refusing to sign the legal consent, in reclaiming the child and in letting it go again for adoption.

I want to emphasise this point because in each case it seems as though one is making a total point at the expense of any other consideration. My attitude towards the case of an unmarried mother who is placing her child for adoption is that too often in Ireland she does not have a real choice. I would like to see more unmarried mothers keeping their children if that is their real choice. They should be given that choice both in an economic sense by having a special category of social welfare benefits for unmarried mothers and also in a social sense that this would not be a matter of scandal and horror in the community, but a matter for particular consideration in view of the fact that this young mother will be bringing up a child and be mother and father to that child. This is becoming the attitude in Ireland. Things have improved very much in this respect, but still in certain parts of rural Ireland the unmarried mother does not have a real choice to keep her child. I am not referring to this problem in the section, but to the situation where the mother has made that choice, decided to place that child in adoption but because she cannot legally consent for six months she then vacillates in relation to the consent.

I agree with the Minister's point that the six months' period is too long. There ought to be a shorter period to allow the legal consent to go through. During the six month period the mother has often moved from one part of the country to another or has gone to England and is difficult to trace. It is a psychological shock after six months to reopen the proceedings again if the mother thought she had already given her consent.

I was sorry the Minister did not consider section 8 to be as important as I think it is in assessing the substantive nature of the amendments. It is important that the board have a duty to make the regulations relating to registered adoption societies, that these regulations be published as statutory instruments, that they create a standard for the adoption society. It is a most inadequate supervisory procedure that the Adoption Board can only either refuse to register an adoption society or cancel the registration of an adoption society.

The board should be able to make regulations so that, unlike with the existing power to make recommendations, the adoption societies could not pick and choose those they wished to uphold or otherwise. In commenting on this provision in section 8—and section 9, which is tied in with it— the Minister stated we have the best adoption procedure in the world and Senator Kit Ahern echoed this later on.

We have potentially an excellent adoption structure. The idea of a central adoption board composed of a legal chairman and citizens is a better procedure than having the piecemeal court procedure. It has not been operating as the best adoption procedure during the last 19 years. We have no comprehensive report of what has taken place so we are each entitled to have our subjective views. I hope the indication the Minister has given that he may consider having a survey made in relation to the proposed legislation is a serious thought on his part. We should have a comprehensive government survey of the working of adoption as it affects the board, the adoption societies, the adoptive parents, unmarried mothers, social workers and particularly with a view to introducing procedures such as case committees which are standard in adoption practice in other countries.

I appreciate the detailed consideration given by Senator O'Higgins to this Bill and his attitude that it was not a party issue. It is a pity in our parliamentary tradition that there is not more of this attitude, particularly in relation to a piece of social legislation, which should be assessed on its merits rather than on a particular party line as to whether all legislation must come from the Government and they must get credit for any legislation which is introduced. This appears to be the attitude, and a Private Member might feel discouraged from introducing Private Bills in this House. Despite that attitude I intend to persist in introducing them if there are matters which I feel require such action.

In relation to what the Minister stated regarding section 12 and the attitude of the various denominations towards adoption by parties in a mixed marriage, I refer him to the recent report of the committee set up by the Irish Theological Association, which is an inter-denominational body. This committee were looking at the elements in the Constitution which could be alleged to be divisive on religious grounds, to legislation and also to practices such as the Ne Temere Decree. I join with Senator Ó Maoláin in hoping this will be changed as soon as possible. This sub-committee recommended that section 12, in so far as it prevents parties to a mixed marriage from adopting, should be changed and this was the essence of the repeal in the Schedule: to remove the legislative reference to religion is not to remove religion.

In relation to section 7 of the Bill, Senator O'Higgins stated it would cut out the case of a religion which has no ministry. This was a piece of bad draftsmanship. I welcome the Minister's statement that he intends introducing new legislation and that there will be a survey of how the adopting procedure is working.

In view of the attitude of the Minister in relation to adoption, his intention to bring in an Adoption Bill before Christmas, his statement that the Department were already working on it and that we may expect a survey of how the procedure has worked over the last 19 years, I think it is appropriate for me as a Private Member, to withdraw this Private Bill and to wait in anticipation the Government Bill.

Motion, by leave, withdrawn.
Bill withdrawn.
The Seanad adjourned at 5 p.m. until 3 p.m. on Wednesday, 5th July, 1972.
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