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;
(c) the low upper limit, seven years, on the age of a child eligible to be placed for adoption;
(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.