Adoption Bill, 1974: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Mr. Cooney)

I was aware when I took office that there had been considerable criticism of the adoption legislation. Let me say for the record that, while some of the changes that were advocated were likely to be improvements, a lot of the criticism of the law and practice of adoption was being made by people on the periphery of the adoption scene here and was exaggerated and ill-considered mainly through lack of real knowledge. I have heeded what was said and written and I have consulted the Adoption Board, the adoption societies and individual social workers, and, armed as a result, I am glad now to be able to come before the House with the present Bill, which represents my considered views as to what is possible and desirable by way of change in the Adoption Acts at the present time.

Senators are aware that adoption in our law is a voluntary arrangement which is, so to speak, ratified by An Bord Uchtála, the effect of the ratification being that the legal relationship of the child to the other parties is changed. The board's function is not to settle disputes as to custody but to ensure that the particular adoption is in accordance with the Acts and that the adopters are suitable. It would almost certainly be contrary to the Constitution to purport to confer on An Bord Uchtála power to resolve disputes as to custody. Moreover any changes in the Adoption Acts that would be likely to increase the risk of disputes in regard to the making of adoption orders would be undesirable since public confidence in the system could thereby very easily be shakes.

In this connection I might say that over 20,000 adoption orders have so far been made and there have been no more than three or four cases when the action of the board has been challenged. This is a good record and we must be careful to ensure that it is maintained.

As I have said elsewhere, it is a distinct advantage that we have been able to establish and maintain a system whereby all adoption orders are made by a single board rather than by a multiplicity of courts or boards as in most countries. This does mean however that the members of the board have to work very hard and devote a considerable amount of their time to the work of the board. When it is realised that, apart from the chairman, these members serve on a voluntary and unpaid basis it becomes very clear that society is very much indebted to them for the excellent work they do.

I should also like to pay tribute to the adoption societies who have done great work down the years without any State subvention. I am convinced of the necessity for adoption societies to maintain high standards and to employ expert personnel. Societies are responsible for 80 per cent of all placements and their work is highly specialised and delicate. Some of them have highly professional personnel and have always maintained standards beyond any that could properly be insisted on by the board or by any other public agency. Early in my term of office I realised that the societies were in need of financial assistance to enable them to reach and maintain the high standards which they themselves aspire to. I am glad to be able to inform the House that annual grants for this purpose are now being made available. My basic aim is to enable the societies to employ professional social workers on a more extensive scale than they have hitherto been in a position to do.

The criticisms of the present law deal, largely, with the following points:—

(a) limitation on adoption arising out of the religion of the parties;

(b) withholding or withdrawing consent by the mother raising the question of a time limit on consents;

(d) the standards applied by adoption societies;

(e) private placements;

(f) the lack of provision for adopting a child who is neither illegitimate nor an orphan.

The Bill obviously does not go as far as some people would wish in dealing with the problem of the mother who withdraws her consent to her child's adoption or who withholds her consent even when she has parted with the child, perhaps for a considerable period. I am of opinion and have so provided in the Bill that this problem, involving as it does a question of custody, should be dealt with in the High Court and not by the board. It will be necessary to consider whether rules of court can be devised to enable such applications to be heard in such a way as to preserve the anonymity of the parties. It will also be necessary to consider the question of legal costs that might arise in order to ensure that the interested parties are not deterred from availing of the courts because of the cost. A "Family Court" of appropriate jurisdiction might be a suitable tribunal for such applications. This however, will have to await full consideration of the possibility of establishing such a Family Court. The proposal in the Bill in relation to custody is, I think, as far as we should reasonably go. We cannot lose sight of the probability that if a mother's position is too severely interfered with that she may not be willing to place her child for adoption at all.

The Bill provides that a consent to adoption may be given at any time after the child has reached the age of six weeks instead of the age of six months as is the case now. There may be some misgivings about this since in some cases the mother's capacity to give a fully rational decision so soon after the birth might be in doubt, but the prevailing view in adoption circles favours this change. Indeed it is contended that in most cases the mother in the months prior to the birth will have been giving thoughts to the idea of adoption. Again, looking at the problem from the point of view of the child, and I submit this is the right perspective, it is common case that the earlier a child can be placed the better. In any event the mother will still have the right to withdraw her consent at any time before the making of the adoption order. The provision that a consent shall not be valid if it is given earlier than three months before the application for adoption has been queried. This provision is, of course, already in the law. Its purpose is to encourage early applications to the board. In practice, of course, the vast majority of applications are made before the consent is given so that the provision has relevance only in a very small proportion of cases.

Perhaps the most widespread criticism of the present law was concentrated on the provision that, with relatively minor exceptions, required all parties to an adoption to be of the same religion. I had prepared a provision that would have met this criticism but it was preempted by the recent High Court decision. This decision has, in effect, swept away the provision in the Act completely. The Bill proposes formally to repeal the provision but it introduces the requirement that a person whose consent is required to the making of an adoption order must know the religion of the adopter or adopters at the time his consent is given in cases where the parties are not all of the same religion. An amendment was put down in the other House which sought to provide that an adoption order shall not be made unless the religion of the child is the same as the religion of the applicant or of one of the applicants. I was unable to accept this amendment. My principle objection to an amendment such as this is that I am firmly of the opinion that the law should not impose restrictions based on considerations of religion. I am doubtful also that the provision would be in accord with the Constitution. What I am proposing in the Bill is the furthest we should go in the matter of religion and is, I think, necessary. If the requirement in the provision were not present a mother would never know whether her child had been placed with a couple of a different religion from hers and this could have two effects. It could inhibit mothers from placing children at all where they might have conscientious objection to placement otherwise than with their co-religionists and, where a mother did consent, it could lead to problems of scruples for her in later years.

It has been contended on many occasions that abandoned or neglected children whose parents are living should be capable of being adopted. This is a strong emotional argument and I have much sympathy with it; but I am advised, however, that the inalienable and imprescriptible rights guaranteed to the family by the Constitution make it impossible to extend the benefits of adoption to children whose parents are still living. While these children cannot be legally adopted it is true that people take them into their homes and rear them as their own in the knowledge that the natural parents may sooner or later come to claim them subject to the overriding jurisdiction of the High Court to determine custody on the criterion of what is best for the child.

One of the most frequent criticisms of the Adoption Acts in recent times is that they have no provision enabling the board to make "regulations" providing for "standards" to be followed by adoption societies. This criticism discounts the fact that the board's powers in relation to societies are very wide in as much as, under section 37 of the 1952 Act, the board may cancel the registration of any society if satisfied that they are not competent to discharge the obligations imposed on them under the Act or if it appears to the board that the requirements of the Act are not being adequately complied with by the Society or if anybody engaged in the management or control of any such society or engaged in adoption work on their behalf, is not a fit and proper person so to act. In this connection it is essential to distinguish between procedure and standards. Guidelines have been laid down by the Adoption Board as regards preplacement examination, post-placement inspection, medical examination and so on. What legislation cannot do is to ensure standards. The law cannot prescribe the level of efficiency at which any individual operates any more than it can prescribe the adequacy of parents in looking after their children. I have discussed this matter with the Adoption Board and they have told me firmly that they do not need or want the power to make regulations binding on adoption societies, as the sanction of refusing registration to a society is adequate. I must accept that advice.

It is well recognised that placements by private persons are in principle unsatisfactory and ought to be discouraged. Adoption societies exercise great care in selecting adopters. They keep in touch with the board and they develop an expertise. Even the best motivated and most careful lay man is unlikely to be as competent as a society. In any case, private placements are usually made in the interests of the mother or of the adopters and only secondarily in the interests of the child. I consider that private placements should be made unlawful unless the placement is made by the parent of the child, who would usually be the mother, or unless the placement is with a relative of the child.

The possibility of amending the adoption legislation to enable the board to make an adoption order in respect of persons over the age of 21 years who were informally adopted has also been raised. The main purpose of this proposal would seem to be to safeguard a person's inheritance rights. The Adoption Acts are designed specifically to enable children with no family of their own to be taken into a family and integrated with it. I do not consider that they are an appropriate vehicle for dealing with the legal difficulties of adults. Indeed the informal adoptive parents of many of these adults would either be dead by now or the adoptive mother may be dead and one wonders in whose favour an adoption order could be made.

The question of the possibility of deleting all reference to adoption in the long form of birth certificate has also been raised. The short form of birth certificate does not distinguish between adopted and non-adopted persons and is acceptable in most situations where a birth certificate is required. In addition to containing the information supplied in the short form, the long form is also an official record of the ancestry of the person to whom the certificate refers. This additional information is necessary in some circumstances. The deletion of the reference to adoption where appropriate in the long form of birth certificate would make it necessary to provide a further record dealing with ancestry and, one way or the other, there would always be some form of certificate available to the non-adopted legitimate person that would not be available to the adopted person. The Register of Births is part of the official records of the State and must be factually accurate on its face.

As I have already mentioned, section 2 of the Bill proposes that the consent of the child's mother or guardian or any person having charge or control over the child to the making of an adoption order shall not be necessary where custody of the child has been awarded to any person by the High Court, though it is not proposed to repeal the provision that where a person is a ward of court the consent shall not be dispensed with save with the sanction of the court.

Section 3 of the Bill provides that an adoption order shall not be made in any case where the adoptive parents, the child and his mother are not all of the same religion unless every person whose consent is necessary to the making of the order knows the religion, if any, of the applicant or of each of the applicants when he gives his consent.

Section 4 provides that, in addition to existing restrictions on the making of arrangements for adoption contained in section 34 of the 1952 Act, private placements made otherwise than direct by the child's parent, or parents will be unlawful unless the placement is with a relative of the child.

Section 5 provides for the appointment of a deputy chairman to the board who may act for the Chairman in the latter's absence. At present whenever the chairman is unable to act it is necessary for the Government to appoint formally an acting chairman.

Section 15 of the Adoption Act, 1952, provides that a consent shall not be valid unless it is given after the child has attained the age of six months and not earlier than three months before the application for the adoption order. Section 6 of the Bill provides for the reduction of this period to six weeks. This does not affect the right of the mother to withdraw her consent at any time before the making of the adoption order. Section 15 of the 1952 Act further provides that, if the mother of an illegitimate child changes her religion either during the 12 months before the birth or within 12 months afterwards, her consent to the adoption of the child may not be given for 12 months after the change of religion or 12 months after the child's birth, whichever is the later. It is not proposed that this provision be re-enacted.

Section 7 proposes to empower the board to prescribe that a child must be in the care of the applicants for an adoption order for a specified period before an adoption order can be made. It also provides that the board may, having regard to the particular circumstances of the case, make an adoption order in respect of a child notwithstanding that the child has not been in the care of the applicants for the period prescribed. It has been the board's practice to insist that a child be in the care of the adopters for a probationary period before an adoption order is made. It is recognised that, generally speaking, a period of at least six months is needed for all concerned to assess whether the adoption is likely to be a success. The proposal is to give the board power to prescribe a probationary period.

Section 8 provides that the entry in the Adopted Children Register shall be in the form provided for in section 22 of the 1952 Act and set out in the Second Schedule to that Act or in such other form as may be approved from time to time by the Minister for Justice with the consent of the Minister for Health and shall contain the particulars required by such form. This technical provision has been included at the request of the Minister for Health.

Section 9 provides that where the Board are satisfied that in the particular circumstances of the case it is desirable to do so, they 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. It is recognised that the younger a child is when placed for adoption the better the prospects are for integration in the adoptive family. Nevertheless situations could possibly arise where it would be desirable to make an adoption order when a child is over the age of seven years. The board have asked for this power.

Section 10 provides for the payment of remuneration to the deputy chairman when he is acting as chairman.

Section 11 and the Schedule to the Bill provide for the repeal of certain provisions in the Principal Act and in the 1964 Act. Section 12 of the Principal Act and section 6 of the 1964 Act are the sections relating to religion.

Section 16 of the Principal Act sets out the persons entitled to be heard by the board before the board decide on an application for an adoption order. One of the persons listed is a priest or minister of a religion "recognised by the Constitution". This phrase has been made meaningless by the referendum which removed subsections (2) and (3) of Article 44 from the Constitution. I consider however that the phrase should be formally deleted from the Act. The other repeals are consequential.

I commend the Bill to the House and I look forward to the debate on a highly important and sensitive subject which is, I believe, entirely non-political.

Mr. Lenihan

This Bill provides for a very desirable social reform. It is an improvement on the Adoption Act which we have had since 1952 and which has worked very well. The previous Minister and the present Minister have distilled various points of view arising out of the experience of the working of the Act and the operations of the board to bring in this measure which contains very desirable reforms to match the changing social environment in which we live.

I should like to pay tribute to the Adoption Board. They have made more than 20,000 adoption orders since 1952 and tremendous voluntary service has been given by both the members of the board and by the adoption societies on whom the board, as the Minister's speech indicates, depend to a large extent. It is in this area again that I think a very desirable improvement has been made in strengthening the adoption societies. More than 80 per cent of the placements made in regard to adopted children are made through the agencies of adoption societies. One of the weaknesses at some stages in the past has been the lack of specialised staff in the case of some of the adoption societies. Grants are now being made available to them to ensure that specialised staff who are expert in this field can be employed by adoption societies and that, through that sort of professional specialisation and expertise, a broad uniformity of standards and approaches to this sensitive problem can be adopted.

I appreciate that there has been much pressure down through the years to have statutory regulations in regard to the registration and supervision of adoption societies. The Minister shows us that he has taken this matter up with the Adoption Board and that the Adoption Board are happy with the broad guidelines which they have already in statutory form under the 1952 Act. Provided that there is that overall monitoring of the adoption societies by the Adoption Board and provided sufficient resources are made available to the adoption societies to recruit the appropriate specialised staff, I presume this meets the case that is made for statutory regulations in regard to the registration and supervision of adoption societies.

I take it that is the approach of the Minister and his Department and I would like to have that view confirmed. At first sight there would appear to be a strong case for such regulations in regard to the registration and supervision of adoption societies. But if the Minister, the Department and the Adoption Board are satisfied that, through grant assistance, there is an upward levelling of standards of approach by the adoption societies, provided the Minister is satisfied that the Adoption Board have this situation well under control and well monitored, I would agree with the flexible approach of allowing the Adoption Board to maintain supervision within the guidelines that exist under the 1962 Statute. I would like the Minister to confirm that approach as it is the most desirable one as long as it works.

I should like to hear the Minister state that there is overall, as between the societies, a more uniform approach than there might have been in the earlier stages and that there is a higher standard of approach. This is very desirable. In practice it can be brought about by having a corps of specialised staff common to all the societies and thereby pursuing a more unified approach within the overall flexibility that is essential in this type of sensitive and personalised area.

The reduction from six months to six weeks in the time limit for consent by the mother may appear at first sight to be a radical innovation, but it is a change that I welcome. It emphasises the shift towards child care—an emphasis towards the welfare of the child, which again is in accordance with the thinking in society today. There has been sufficient change in climate in this respect since 1952 to warrant that change. We are now in the situation that children of six weeks can be adopted instead of being six months as was the procedure heretofore. It is highly desirable to use the phrase "the earlier the better" in this particular instance. Anyone who is a parent would agree with this and this is the case whether from the point of view of the natural parents or of the adoptive parents. I welcome the six weeks provision although I appreciate that some people think it is going rather too far, too fast. I do not think so as this change is in the interests of the child and of everybody else concerned.

The other matter which the Minister has introduced also in section 2 concerns the question of the custody of a child. At the moment the regulations governing applications to the High Court are not clear. I appreciate that there will have to be court regulations and procedures adopted in regard to this. I appreciate that we do not have family courts here as yet, but I presume that this matter is being examined. It is highly desirable that in all areas of family dispute, be it this area of child custody or the matrimonial area, we should have an overall family court which should be held in committee chambers. I would press that when regulations are being devised governing such applications to the High Court as envisaged under section 2 of the Bill, that they be applications in chambers of committee, that the procedures be as informal and as flexible as possible and that we avoid the heavy procedures that are associated with open court applications. We could perhaps make a start in this direction by ordering that the High Court in hearing any such application on section 2 of this Bill would act in chambers, in privacy, and seek to have as informal and inflexible a system of procedure as possible in dealing with such applications.

Another matter in the Bill which the Minister has introduced is the question of adoption orders. Again I want clarification from the Minister in regard to the six-months probation period. He says that experience suggests six months. Is is the view of the Adoption Board that six months is the appropriate probation period? There is no specific probationary period mentioned in the Bill. I think this is good. It is a matter for the Adoption Board to make such regulations. Am I correct in my reasoning that whatever regulation is made by the Adoption Board, it will not be a specific one, that it will be a flexible one dealing with each case? Or will it be an overall one of six months? Will we have a specific six-months period as the regulation period or will the Adoption Board be enabled to vary it for each particular case? I ask this because it is not quite clear from the Bill as it stands.

Personally, I think the more flexible the better, because situations vary. In some cases there might be an argument for having much less than six months. For instance, there might be an argument for having a three-month period. Therefore, one should not have a specific period covering all cases. I may be appearing to speak against the rights of the natural parents in this matter but from my practical knowledge I would say the rights in these cases are nearly always on the side of the child and the adoptive parents. I welcome the six-week provision and I would welcome an even shorter probation period than the six months.

This brings me to a further point which is following on the same lines as those to which I have just been addressing myself—that is the question of abandoned children. I shall not become emotional about this subject but any of us who have been in homes where there are abandoned children, any of us who know the human circumstances involving abandoned and neglected children are fully aware of this terrible social wrong. This is something on which one could wax very eloquent if one so wished.

In this respect there should be a move towards the child's interest. I agree and appreciate that this involves dealing radically with our Constitution. There is much talk of Articles in the Constitution involving matters which, in my view, however much they may make headlines, are far less important than the basic social matter involved here. I refer, of course, to Article 41 involving the family. This is an Article written in the context and in the environment of 1937. It states:

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

Sentiments of that kind are all right and all very well when they are written into a Constitution—it is excellent theology and excellent from many aspects—but I am concerned about excellent theology of that kind acting as an umbrella under which social wrongs are allowed to fester where, to put it in blunt terms, children are deprived from birth by reason of being abandoned, neglected; they live out their lives in homes or go to people who are kind enough to adopt them, but they have no rights themselves and the parents have no rights in regard to them. They are deprived people who have very little chance to make their way in the world. It would be a very salutary exercise for anybody concerned with this area to go to some of these homes, see these children and speak to the good nuns and the other people who are responsible for their welfare and recognise the hopelessness of their situation.

In that human context one sees the emptiness of constitutional phraseology or theological phraseology. If the minds of the Government are being directed towards constitutional change—the Minister for Posts and Telegraphs is very fond of addressing people's minds to this area—I should like to see them addressing their minds to amending Article 41 in some proposed manner and coming before us here with a Constitution (Amendment) Bill in respect of Article 41 and so phrasing the Article that the rights of the family would be delimited in some way by child rights, not just in this area of adoption but in some other areas that I can think of. It is a matter which I would urge the Government to examine in a very serious way and to come forward with a reasoned amendment, which I am sure would command the support of all sides of both Houses of the Oireachtas and of the people.

The adoption procedures in Ireland will continue to be inadequate so long as abandoned and neglected children are excluded from their ambit. I would not have any qualms about the rights of parents in the case of a child who had been abandoned for a period of more than 12 months. The parents of any child who has been abandoned or left without his or her parents for a period of 12 months or more have forfeited all rights in natural justice. I am not talking about theological or constitutional platitudes here: I am talking about natural justice. There can be no argument for insisting on parent rights in any case where a child has been abandoned for a period of 12 months or more.

I notice that the prohibition on adopting a child of more than seven years of age in the 1952 Act now goes. Again, within the discretion of the board they may permit the adoption of a child of more than the age of seven years. I am glad it is put in that way because while there may be particular circumstances that warrant it—again this is a flexible area and a sensitive one—I am glad it is being done in this way: the board may consider each case on its merits in respect of a child of more than seven years of age. I think that is the right approach rather than having any arbitrary year figure put in. I have had strong representations that the figure be raised to 14 years or 16 years but I think it is better to leave it flexible as is proposed here.

There are other matters at which we can look between now and Report Stage. The question of the religion has been settled, of course, by the recent High Court decision. It is being dealt with sensibly here in the Bill and there is the safeguard that the religion aspect is no longer relevant provided that the people concerned with consent to the making of the order know the religion of each of the applicants before the consent is given. That is a sensible approach. I think the High Court decision has been met and, at the same time, there is a basic safeguard that there must be at least a knowledge of the religion. That is a sensible way to meet the two points of view involved. That is another step forward.

Overall this Bill is to be welcomed. There are improvements which we can bring in on Committee Stage if we get some time to consider them. I would ask the Minister to give the House two weeks at least to consider it because there are improvements that might be suggested here for Committee Stage. The main point I should like to make is on the question of abandoned and neglected children. I would ask the Government very seriously to consider in what way the Constitution can be amended generally to emphasise child rights in this and other areas. Such a reasoned amendment, as I said earlier on, would command the support of both Houses of the Oireachas and the support of the public generally.

Mr. Horgan

We are all grateful for the effort the Minister for Justice has put into this Bill and for the careful way in which he has presented it to this House. He has identified some of the areas of criticism of the existing legislation but I do not feel that he has necessarily identified them all. What I propose to do first of all, in so far as this is a general amending Bill—in other words, a Bill which is amending various sections here and there in the two Adoption Acts under discussion—is to go through the original Adoption Act and suggest to the Minister a number of other points that he might consider adding to this Bill to make further amendments in the Adoption Acts and specifically the 1952 Act to bring it more in line with current thinking. Very few of these are matters of any very great moment but some of them involve important questions of natural justice. I then propose to examine the Minister's speech in relation to the Bill under discussion and after that to discuss ways in which the new Bill might possibly be extended.

Taking it in a linear way, I will start with the beginning of the 1952 Act. In the definition section there are a number of phrases that raise questions in the minds of people in 1974. For example, in section 3 the word "child" is defined as meaning any person under 21 years of age. We have had a lot of discussion in this House, and outside it, about the age of majority. It is now widely recognised that the age of majority is falling. For all intents and purposes it is now 18 in many important areas of life. Indeed it is even lower than 18 in many important areas. I am just wondering whether in an amending Act like this we should not at the same time, amend "21" to "18" in order to bring this section of the original Act into line with current thinking.

There may be arguments against this. One of them that I can see is that this would reduce effectively by three years, the period of time during which the Adoption Board could exercise their discretion with reference to the possible making of adoption orders for relatively full-grown children. I am just wondering whether it might not be a good idea to make the law conform a little bit more to reality and to make the age 18 rather than 21.

Again, in section 3 of the 1952 Act, we see that quite extraordinary definition:

"parent" does not include the natural father of an illegitimate child;

I am at a loss to find out the reason for this particular definition because the word "parent" hardly appears in the original Act. Indeed, the one occasion on which it appears is in a section which is being deleted by the Bill we are discussing today. It seems to me that if it were to mean anything at all the word "parent" should include the natural father of an illegitimate child. Indeed I should like to see the original Act amended in a way which would give the natural father rather more rights than he has under the present legislation. It seems to me that the original Act can treat the natural father as almost a non-person, somebody who simply does not exist with regard to the creation or the welfare of a child for which he is at least 50 per cent, perhaps even more, responsible. The considerations of natural justice would encourage us in the belief that a slightly greater case could be made in our legislation for the natural father to the child. Section 11 (5) of the 1952 Act reads:

An adoption order shall not be made unless the applicant or, if the applicants are a married couple, the husband is an Irish citizen or has been ordinary resident in the State, during the five years preceding the date of the application.

As operative at the moment, and there is nothing in the second Bill which changes this, no married couple resident in this State and no single person resident in this State who has had an illigitimate child and wants to adopt his or her own child can legally adopt the child unless he, she or they have been resident in the State for five years preceding the date of the application. Given the whole thrust of adoption legislation, the whole emphasis on the need to reduce the period of uncertainty and any necessary delays in the making of adoption orders, I think that this kind of division is now manifestly out of date. It causes, I am quite sure, unnecessary annoyance and perhaps even stress to the parents of illegitimate children or to married couples who want to adopt a child and who cannot fulfil the residence provision. I believe it is quite out of date in an age in which people's residence changes very frequently, in an age in which membership of the Common Market has contributed to a growing mobility of employment between the member countries. This five-year stay is very unfair on people who to all intents and purposes may have made a permanent home here. It could also be unfair to the child whom they wish to adopt.

I can see a case for some sort of limit. For example, it is fairly widely known that there are usually more parents willing to adopt children than there are children available. We would certainly want to avoid a situation in which people could come to Ireland, find it easy to pick up a baby for adoption here and then fly out of the country again. In a situation such as that the Adoption Board would have no effective say in the way in which the child was being treated. There is a case for some time limit, but five years seems to be Victorian. I think it could safely be reduced to one year, or perhaps two at the very most. This would involve a very small drafting amendment which I think would not affect a great number of people but still deserves consideration. It would help to tidy up the law.

Mr. Cooney

On a point of information, it was reduced to one year in the 1964 Act.

Mr. Horgan

I am delighted to be corrected on that point. I should like to turn now to section 16, which lists the persons who are entitled to be heard on an application for an Adoption Order. Again the natural father of the child is not included. Certainly the natural father of the child could be heard under section 16 (1) (i); "that is, any other person whom the board in its discretion, decides to hear". If the board, in their discretion, decided not to hear the natural father, it means that there are all sorts of people—eight categories of persons—who shall be entitled to be heard. The natural father is excluded from being heard on an application for an adoption order. The natural father should be added to the list of people who cannot be denied audience when there is an application for an adoption.

There is a general point also in connection with the adoption legislation. I do not know which section precisely it applies to. I should like to direct the Minister's attention to it in terms of age. As far as my reading of the Act goes, a married couple may not adopt a child if they are under 21. It could cause hardship, at a time when the marriage age is coming down, for somebody who is under 21 and married, or indeed under 21 and unmarried, to adopt a child.

We all know the dangers involved in this. It could be argued the younger an unmarried mother is the less mature she is and less capable of undertaking the very difficult task of bringing up a child in a one-parent situation. Are we going to discriminate against the people between 18 and 21 who may or may not be married and who if they are married may like to adopt a child, and if unmarried may like to adopt their own natural children? I would think that if we changed the section of the law which limits adoptions to people of more than 21 years, we could safely leave it to the discretion of the Adoption Board to decide whether any married couple or an individual person between 18 and 21 should be allowed to adopt a child. This would be in line with the falling age of marriage and in line with the fact that generally speaking people are maturing earlier. Another point in the original Act which may have been corrected by the 1964 Act—I stand open to correction on this—is section 25, which reads:

Upon an adoption order being made in the case in which the adopter (or, where the adoption is by a married couple, the husband) is an Irish citizen the child, if not already an Irish citizen, shall be an Irish citizen.

As it stands, this provision is a classical example of male chauvenism. Why should Irish citizenship be conferred on an adopted child only where the husband of the couple is Irish? It seems to me that this makes a mockery of people's rights before the law. I am out of order in referring to this but I am delighted to hear that this, too, has been done.

However there is one particular matter in connection with citizenship which I will refer to later. It is the question of children who are adopted by an Irish couple, or by a couple one of whom is Irish, outside the country. I think this is something which the Minister did not refer to in his speech. I will come back to it later.

The only other thing I want to refer to in the 1952 Act is Part IV which relates to the registration of adoption societies. I note from the Minister's speech that some 80 per cent of adoptions are handled through the various adoption societies. Section 34 (1) reads:

It shall not be lawful for any body of persons to make or attempt to make any arrangements for the adoption of a child under seven years of age unless that body is a registered adoption society or a public assistance authority.

I would be grateful for some more factual information from the Minister about the number and type of adoptions which take place other than through registered adoption societies. At the moment virtually all the adoption societies have been registered and are connected with one or other of the main religious denominations. It seems to me that there are and there always will be people who have no particular religious denomination who wish to adopt children. Things should not be made any more difficult for these people than it is for anybody else. I am clearly not suggesting that it should be made easier for them.

When you boil it down, my main queries about the original Act, in so far as it was not amended by the 1964 Act, relate to the question of the right of audience of the natural father of the child in connection with the making of an adoption order and also the whole question of age—for example, whether the age of a child as defined by the original Act, and the age limitation as to the adoptive parents as defined by the original Act are really in line with modern thinking.

I will turn at this stage to the Minister's speech. It was a good speech and a compassionate one. I was particularly pleased, as indeed, I think, was Senator Lenihan, by his reference to the problems of parents and others in conflict situations and his note about the question of costs and family courts. I believe that where the welfare of human individuals, especially children, is concerned, squabbling over physical property, stockshares, lands or whatever, costs should be minimal, and where they exist they should be borne cheerfully by the State. It seems to me that this is a very small investment to make in human happiness. As the Minister said, interested parties should not be deterred in availing of the courts because of the cost.

I am not fully aware of all the legal complexities in connection with this part of the Bill which proposes to allow adoption orders to be made in the absence of consent. This is very dangerous territory—if you like, it is a legal minefield. I think we can discuss this in more detail on the Committee Stage. Certainly, at first sight, the Minister has approached this in altogether a reasonable way.

The Minister then moved on to deal with the question of the religious phrases in the legislation and referred to the recent court decision. The decision he has taken seems to me to be a sane and sensible one even though there are a number of minor problems to which I can see it giving rise. When one looks at the original Act, we can see that it was written in a different society, a society which had rather different assumptions and, in particular, rather different assumptions about religion. The section in question, section 12 of the original Act made a number of provisions about the religion of the child and of the would-be adoptive parents which have now been more or less struck out by the court decision and which is now proposed to be replaced in the new Bill. I was particularly intrigued by section 12 (6)—which is no longer with us—which reads:

The Board should have discretion to dispense with the condition as to the religion of a parent if unable to ascertain it.

The key words here are "if unable to ascertain it". We can see in these words an unwillingness on the part of the draftsman and people who proposed this Bill to accept that there should be any parents so misguided as not to have religion at all. The assumption behind that section was that every parent has a religion. It may be difficult to find out in the case of some parents which precise religion they have; but the idea that a parent did not have any religion is something that would have struck the framers of the original Bill with shock and horror. Certainly it was something they did not want to entertain. It was a possibility which was almost excluded from the Act.

Most of the work that is done in connection with adoption in this society is by organisations connected with the various religious denominations. Religion in general plays a very large part in the lives of most citizens. I think this is a good thing and it is not a bad thing either that the law should give effect in various ways to this country's reality. On the other hand, it can be very easy to slide rather ideologically from one position to another—to slide from the agreed fact that religion means a great thing to most people in this State, to the assumption that people who do not have a religion are in some way second-class citizens. The Constitution effectively disposes of the idea that people who are of different religious denominations are in any way different with regard to citizenship.

There may still be somewhere lurking around the darker regions of our collective sub-conscious minds the idea that basically people have to have religion and that people who do not have religion are somehow not quite as good as the rest of us. This attitude can be discerned between the lines of the 1952 Act. The amendment which the Minister suggests here effectively. meets the objections to the 1952 Act by explicit recognition of the fact that there may be, and are people who do not have any religious affiliation or allegiance within the generally accepted meaning of the word. It is important that it should be stated that every person of every religious denomination is equal in this State but that people who have no religious denomination or affiliation are equal to those who have. It is a very small point but if we believe in our republican Constitution and our republican tenets we cannot escape this logical point of view.

To come down now to the nitty-gritty of what the Minister proposes with regard to religion, there is one query that I should like to put. The new Bill, according to the Minister's speech, introduces the requirement that a person whose consent is required for the making of an adoption order must know the religion of the adoptor or adoptors at the time his consent is given in cases where the parties are not all of the same religion. My question is that if a dispute arises about this—and God forbid that it should—what kind of proof of knowledge is envisaged? Is this to be left within the competence of the adoption societies themselves? Are they, for example, framing regulations or forms to be signed by the natural mother of the child which will include a positive statement of knowledge or are they simply to satisfy themselves that the natural mother of the child is aware of it? Is it going to be in the small print at the bottom of the form? There are all sorts of things like this which, without wishing to carp at the provision in the Minister's legislation, I can see as a possible source of worry and trouble, not least for the adoption societies themselves. How are they to protect themselves, the child and the adoptive parents against the natural mother of the child who after the adoption order has been made claims that she was not aware of all the religious information which she should have been aware of? This is something which has to be clarified in the simplest possible way.

I now go on to the section of the Minister's speech dealing with abandoned or neglected children. The Minister said:

I am advised that the inalienable and inprescriptible rights guaranteed to the family by the Constitution make it impossible to extend the benefits of adoption to children whose parents are still living.

I am entirely in sympathy here with what Senator Lenihan said. My reading of the Constitution is that it is rather imprecise on this point. It does talk about the inalienable and inprescriptible rights of the family. However it does not to my knowledge define the family in any completely exclusive or watertight way.

It might be possible for one of the courts in the land to define the situation, not necessarily hallowed by law but perhaps hallowed by custom, of the family within the Constitution. For the time being it seems to me that this is an area of ambiguity. I would have liked the Minister to take this ambiguity by the throat and, to put some sort of provision like this into the Bill. If necessary, let its constitutionality be challenged so that the courts can decide. I have little doubt about the way in which the courts would decide in such a situation. I am not, I hope, advising the Minister to pass unconstitutional legislation. I am saying that at least the Constitution is ambiguous here about the exact concept and physical attributes of the family. There is a sufficient area of ambiguity to encourage the Minister to take a careful step forward into the area of enlarging and, if necessary, redefining the whole word "family".

One particular point in that sentence of the Minister's speech referred to the children whose parents are still living. The Minister used the plural "parents". What, for example, is the situation of children one of whose parents may be alive and wishing to have the child adopted, the other of whom may simply have disappeared? Am I not right in thinking that under certain circumstances in other branches of the law there is a presumption of death?

For example, with regard to succession it seems to me that there are certain situations in which if a person has been absent for a certain number of years application can be made to have such a person legally defined as dead. I am wondering whether this sort of provision does not give some sort of precedent for extending the benefits of adoption to children who are abandoned or neglected. This is an important matter on which I would like to hear the Minister's comment.

I am glad to see that the Minister feels that the board's powers in relation to adoption societies are adequate. However the sanctions written into the 1952 Act for societies whose registration may have been cancelled by the board are not very substantial. If the cancellation of the registration is the only effective action that the board can take the sanctions for failure to obey the board in this matter should be very much larger.

I turn now to the question of the birth certificate. The Minister suggests that the official record of the ancestry of the person to whom the certificate refers in the long form is necessary in some circumstances. He did not tell us what the circumstances are. I would be grateful for more details of why this should be so. No birth certificate should have pretentions to being a genetic document. It certainly should be a legal document. While it is certainly true, as the Minister says, that the Register of Births is part of the official records of the State and must be factually accurate on its face, it seems to me that there is no conflict between this statement of the Minister and having the Register of Births state the legal rather than the genetic position. This is something which I feel is important and could be done without any great upheaval in the whole system of public administration. There are one or two other matters in the Minister's speech to which I refer. One is the question of the age ceiling. Section 9 of the Bill provides that:

... 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 on the date of the application for the Order.

This raises the question I mentioned earlier on as well, which is that of the upper ceiling for adoption. Which is the appropriate upper ceiling for adoption? As I read the original Act, it laid down 21 years. Would I be right in suggesting that 18 years would be more appropriate? I should certainly like the view of the Minister on the whole question of ages here. There are a few more items I should like to refer to with regard to adoption generally.

Mr. M.J. O'Higgins

I do not want to interrupt the Senator but if he is going on to a fresh portion of his speech perhaps I could make a suggestion. We have agreed to take the Northern Ireland Motion at 7 o'clock. If we broke for tea at 6 p.m. it would just leave one hour. As Senators know, when both Houses are sitting the restaurant is liable to become a bit congested. I suggest we might agree to break at 5.45 p.m. I thought I would mention that point at this stage. If the Senator was going on to another branch of his speech it might suit him to break now rather than in a couple of minutes.

Mr. Horgan

Yes. I would be prepared to move the adjournment now if the House agrees.

Debate adjourned.

Business suspended at 5.45 p.m. and resumed at 7 p.m.

Seanad Éireann debate - Wednesday, 3 Jul 1974