Adoption Bill, 1974: Second Stage (Resumed).

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

When the debate was adjourned on the last sitting day, I was referring to a document which had been sent to me and, I suspect, to other Members of this House on the adoption legislation by an organisation called Children First. I do not propose to go into it in any detail except to say that in many respects I found their arguments compelling and certainly worthy of attention. I should like to place on the record of the House my appreciation of the work they have and are doing for children in our society.

As I said on the last occasion, this Bill is a good one so far as it goes, but it does not by any means go far enough. This is probably the last occasion for a long time on which we shall have an opportunity of amending adoption legislation—legislation which was thought to have been adequate when it was passed first and amended in 1964 but which still is a very conservative piece of legislation. It needs a certain number of important loopholes so that the situation with regard to adoption generally can be improved.

There are three main areas which I will leave at this stage to the House's consideration, while serving notice that I intend to put in some amendments to cover them for Committee Stage. The first of these is the rights of children who cannot at present be adopted owing to the unsatisfactory state of the law. These are children whose parents are still alive or are presumed to be alive and who are in many cases, almost universally in the case of the children of whom I am thinking, in institutional care. I ask this House whether it is right and just that we should have healthy children cooped up on the basis of a legal technicality while there are capable and willing adoptive parents only too anxious to give them a home. This is not said in criticism of the institutions concerned. They are administering the law as it exists. They have no option in the matter. If it were not for them the situation of these children would be a great deal worse, but my point is that it can be better. The law as it stands needs to be changed in order to improve it. The present Bill does not, unfortunately, propose to amend the law in order to make these necessary changes. That is the first main area.

There are two minor areas which I would also bring to the attention of the House and which can be the subject of appropriate amendments. The first is concerned with children who are adopted legally abroad by parents, both of whom or one of whom is Irish. Under the present law if they were adopted in Ireland these children would become Irish citizens de facto and de jure; but as the law stands at the moment, if these children are adopted abroad, no matter how legal the process of adoption through which they go, they are not entitled to this Irish citizenship. I believe that what is sauce for the goose is sauce for the gander. It we are going to give Irish citizenship to legally adopted children of Irish couples in Ireland, we can without any difficulty at all extend this to include legally adopted children of Irish couples living temporarily or even permanently outside Ireland.

The third area is the area which concerns the natural father. The present adoption legislation almost totally ignores the natural father. It virtually excludes him from serious consideration. Indeed there is a section which would enable the Adoption Board to exclude him from any considerations regarding the future of the child which he has fathered. It seems to me we are unlikely to be accused of fostering licentiousness if we make some change, however modest, to recognise the role and perhaps even the rights, if they can adequately be defined, of the natural father of any illegitimate child which is in an adoption situation.

These are the three areas in which the Bill, for all its good intentions, is seriously deficient. I propose to table amendments at the appropriate time to attempt to deal with these deficiencies.

I should like to welcome this Bill. The original Adoption Act was a very important piece of legislation. It is more than 20 years ago since that was passed. It was inevitable that certain defects and omissions should have disclosed themselves over that period. It was also evident that an evolution of thought should have taken place as to what is appropriate in regard to adoption at present. Consequently this Bill is an important Bill in bringing the Adoption Act up to date. In so far as it does that it is a very worthwhile Bill.

There are a number of amendments which I think should be considered, but I propose only to deal with one. This is one to which Senator Horgan has already referred. It is in connection with the complete omission of the rights of the natural father in cases of adoptions.

Section 16 of the Adoption Act, 1952, says the following persons, and no other persons shall be entitled to be heard on an application for an adoption order:

(a) ... the applicants,

(b) the mother of the child,

(c) the guardian of the child,

(d) the person having charge of or control over the child,

(e) a relative of the child,

(f) a representative of a registered adoption society which is or has been at any time concerned with the child,

(g) a priest or minister of a religion recognised by the Constitution...

(h) an officer of the Board or

(i) any other person whom the Board in its discretion decides to hear.

In case one might be under the impression that the father was omitted through inadvertence or just forgotten, it is quite clear that the original Act very positively has excluded the father from any consideration. In section 3, which deals with definitions, it says that:

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

Again, a relative is defined as a grandparent, brother, sister, uncle or aunt, whether of the whole blood, half-blood or by affinity, relationship to an illegitimate child being traced through the mother only. Therefore there was a very definite policy decision to completely exclude the natural father from consideration when an adoption was taking place, not only to exclude any rights he might have to consent to the adoption, but even the right to be heard when an application was being heard. It seems to me that this was a rather Victorian attitude. It was based on the impression that the fathers of illegitimate children are, first of all, unwilling to admit that they are the fathers, or, even when it is clear that they are, that they are completely unconcerned with the fate of the child. While this may be true in many cases, it is something which should not be taken for granted. It is entirely wrong that the Act should have prevented the father from even being heard in such an application.

There was a very important and interesting case dealing with this point heard in the courts in 1966. It was the case of The State (at the Prosecution of Leontis Nicolaou) v. An Bord Uchtála. It is reported in The Irish Reports for 1966 and I quote from page 567. The facts of the case are briefly set out in the head note which says:

The applicant, Leontis Nicolaou, was the natural father of a child born in London to a woman of Irish parents who was a citizen of Ireland. The applicant wished to marry the mother of the child but for various reasons out of his control and not of his desire he was unable to do so. Most of these reasons flowed from the mother's unwillingness to marry the applicant for various reasons. The mother, with the applicant's consent, took the child to her parents' home in Ireland and then commenced making arrangements to have the child adopted. The applicant was at first unaware of this but when he became aware of it he indicated very strongly that he was not agreeable to having the child adopted and that he wished to provide for the child himself. He wished to have the child with him and was ready and willing to give the mother a home with himself or else to marry her, whichever she wished. Notwithstanding the applicant's views on the matter the mother arranged for the child to be adopted and an adoption order was made, unknown to the applicant, who, after some considerable difficulty, obtained information as to the adoption order. He thereupon applied to the High Court for a conditional order of certiorari to have the order brought up and quashed...

Subsequently the case was heard, not only in that particular action, but in further proceedings in the High Court, and was argued in the Supreme Court.

The argument was that, as a matter of natural justice and equity, the father should at least have been heard and that the Adoption Board failed to exercise their discretion in a reasonable way by failing to hear the father, even though they knew the father wanted to be heard and that he disapproved of the adoption order. Even though he was not in the list of those who must be heard, in fact he should have been heard. However the fact of the matter is that the Supreme Court eventually held that the Act did not provide for a natural father to be heard, that the board in the circumstances were not obliged to hear him and that the Act was not unconstitutional, a matter which was argued among other points made in the case.

The fact is that the Supreme Court held that that was the position. That does not mean however that the Supreme Court agreed with the Act or agreed that the father should not have a right to be heard in such circumstances. They were merely dealing with the law as it stood. I am quite satisfied that it would be clear from the Supreme Court decision that they were not expressing any decision as to whether in ideal circumstances the father should have the right to be heard. In my view, there is no doubt that he should be heard. Obviously it is not a situation which will arise often but in so far as it is going to arise, the father should have the right. Consequently section 16 should be amended to deal with that.

It is clearly equitable and natural justice that where a father not only admits to paternity but claims paternity, is a fit person to keep the child and objects to its being adopted, he should have the right to do so. This, of course, would be a matter for the board and a matter for very serious consideration, but at least he should have the right to be heard by the board on such an application and put his point of view forward. It is arguable—but perhaps this is going too far—that he should also be included under section 14 in the people who must give consent to an adoption. However that is something that is perhaps going a bit too far. In my view it is quite clear that he should be included under section 16 and the matter of whether he should be included under section 14 is open to some discussion. My point at this stage of the Bill is merely to give notice to the Minister that I intend to put down an amendment to deal with this point and to give him an opportunity to have a look at it in the meantime, but I do intend to put down an amendment under section 16.

I welcome the fact that there is an Adoption Bill before the House because it gives us an opportunity to resume a debate which was in a sense postponed over two years ago, to be precise on the 29th June, 1972, when the Second Reading debate on the Adoption Bill of 1971, sponsored by Senators Horgan, Owens and myself, was withdrawn in favour of the promise of a Government measure. I am glad that now at long last we have this Government measure before the House. Although I shall be critical of it, although I regard it as inadequate in many respects, although I will join with other Senators in putting down amendments to it, I am glad that there is a Government proposal to amend our adoption law. Nevertheless, I differ from the view put forward by the Minister both in introducing this Bill and in statements outside the House, that all is reasonably well in adoption in Ireland and there is not much of a problem.

In his Second Reading speech the Minister said:

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 in 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.

In a speech in Limerick at a seminar in April he made much the same point at slightly greater length. The speech was given to the Irish Adoption Workers' Conference in Limerick on April 25th, and I quote from a text issued by the Government Information Services. On page 9 of this speech the Minister said:

There have been almost 20,000 adoption orders made in this country since 1952 and, while we cannot say on a scientific basis or on the result of research that our system is successful, we can as a matter of subjective judgment by those who work in the field say that it has worked well and that our society is better for having it. If our system had not been successful the volume of adoptions—20,000—would surely have produced adverse social consequences that would have been apparent long before now. This may be a simplistic approach but I would suggest that it is one of commonsense and I think too it can be taken as a proper basis for congratulating all who have been involved in adoption work, the members of the Adoption Board, the officers of the board and the members and workers attached to adoption societies.

I have to say that I do not share the Minister's complacency. I do not share his general satisfaction that adoption is working well in Ireland. Many voices have been raised including the voices of social workers, of members of adoption societies, of adoptive parents and even of members of the Adoption Board, who went to the point of resigning from the Adoption Board in disgust when proposals that they made for reform were not considered and were not going to be implemented. The numbers of people directly involved who have been dissatisfied with our adoption law and the number of those who expressed concern were far from the periphery, far from voicing either emotional or unsubstantiated grievances. However, if this is the way in which the Bill is being put before the House, that there are only a few minor problems and that this Bill deals satisfactorily with them, I think the only way to counteract that is by trying to give some case histories of what has happened. In my view many such cases will continue to happen even after we pass this Bill unless it is substantially amended.

The reason that one has to rely on case histories to try to show the way in which adoption is working in this country is because there has not been an overall study of adoption procedure. Before looking at the specific histories I should like to refer to The Irish Times of April 1st, 1974 and quote from a man who has been very closely involved in adoption and in calling for reform of adoption in this country, namely, Rev. John O'Mahoney, vice-chairman of the Central Council of Catholic Adoption Societies. In this quotation from The Irish Times he calls first of all on the Government to implement the recommendations of the Kennedy and Devlin Reports and, in addition, to set up a child care section to deal with adoption. Let us note this call to implement the recommendations of two Government reports, not directly on adoption but which touch on adoption and both of which recommended that adoption should be taken out of the Department of Justice and put into the Department of Health and Social Welfare and that it should be treated as part of our child care services with a radically changed approach. There is no reference of this in the Minister's introduction of this Bill. It was as though neither the Devlin nor the Kennedy Reports had made these specific recommendations, because it would be my submission that if the Minister did not accept them he might at least have referred to them and given us the reason for not accepting them. I continue with the quotation from Fr. O'Mahoney:

It is quite extraordinary that the Department of Justice or the body appointed by it to supervise adoption work, namely the Adoption Board, has not been able to see fit to institute any type of research into the adoption services. One must take it that the view of the Department and the board in this matter is that expressed by the former Minister for Justice last year in the adoption debate in the Senate. He was so certain about the success of our adoption procedure that in reply to a demand for research on the lines carried out in England he could say that while research might be necessary in countries like England he was satisfied there was no need for it in this country. This view was later described in the English adoption magazine, Child Adoption, as "living in cloud cuckoo land."

If the Senator would read the rest of my speech in Limerick to see my views on research——

Yes, in fairness to the Minister he does now appreciate the need for research and he——

I always did.

—and indeed, more importantly, he is also prepared to provide moneys to the adoption societies. But I would put it to the Minister since he makes this point, this research is a long time coming. The adoption procedure is 22 years in existence and there has not been any governmental research. When the Minister became Minister for Justice he did not immediately set up a departmental committee to look into the question. The Adoption Bill before us is not the subject of a detailed survey at governmental level. It is not adequate for the Minister to say that he is interested in an academic sense in research. One has to be more convinced in practical terms of the acknowledgment of the very real deficiencies in our present adoption law and of a genuine intention to both set in motion the necessary research and also bring about much more radical reforms than we have here.

Again the Minister gives the impression that it is a tiny vocal lobby of rather emotional people who are concerned about reform in adoption. I should like to refer the House to a letter which we all received from the Joint Committee of Women's Societies and Social Workers, dated April, 1974. I shall just quote the first paragraph:

Dear Senator,

The joint committee of women's societies represents at least 50,000 women. This committee was responsible for the first move towards pressing for legal adoption long before the passing of the Adoption Act, 1952. Since then the committee has followed progress and when amendments to present legislation were needed sought the opinions of affiliated societies. The results of the survey show an urgent need for...

It lists 14 amendments. Many of these are not included in this Bill. The first one I will deal with in great detail later—"Statutory Regulation for the registration and supervision of adoption societies". There are a number of others that I may refer back to in a later context. Any committee representing 50,000 women in the country who feel as strongly as the wording of that letter suggests are not an emotional fringe on the periphery of something they do not understand. They reflect a very deep concern for reform in our adoption code and reform which goes a good deal beyond the terms of this Bill.

I should like to refer to some case histories of what happens in our adoption code about which there has been so much complacency and satisfaction expressed. The first of these illustrates a problem of an adoption which did not go through any adoption society. It shows what can happen in relation to adoption practice even where there is goodwill. It concerns the adoption of two children aged 12 and nine years who were born before the marriage of the mother. The mother subsequently married a man who was not the putative father, but he was anxious to adopt his wife's two children who were living with them. This was therefore a straightforward adoption which did not need to come through an adoption society.

To illustrate the inadequacy of the system, the case took over two years for the adoption of the mother's two children to be completed. This caused much unnecessary suffering to the older child, who was very upset. That is a long time lag, given that there were no real problems involved. Secondly, the mother related that a visitor came from the Adoption Board at 7.0 p.m. one Friday evening without any appointment or forewarning. The prospective father was in a public house and this visitor forced the child to take her there in order to contact him. She then stayed in the house talking to them for a few hours. She took the older child aside and discussed with her about her being born before the marriage of her mother. The mother was very angry on hearing of the questions she asked and felt she had intruded on them and had exceeded her position. Both the mother and her husband as well as the older child were upset. This visitor from the Adoption Board is not a qualified social worker. The case illustrates the vital need for using only trained professional people in this delicate region of human relations. That is an example of a problem which can happen in the least complex case of all—where the children had been for a long time with their natural mother who married and it was their joint intention to adopt the children.

Another case history illustrates the insensitivity of some workers in registered adoption societies to the adoptive parents' feelings in some cases. I am using initials to preserve the anonymity of the parties concerned, and I am grateful to a social worker working in adoption for providing me with these cases. I make no apology for putting them on the record of the House. Unless we have specific examples of what goes wrong in our adoption code, we do not know where the real need for reform is, and since we do not have any overall governmental research we must rely on the case histories, and also on a private survey which was made, and from which I intend to quote later.

In 1971 Mrs. W was very upset by the attitude of an adoption worker, when the child she hoped to adopt needed to be hospitalised during the statutory probationary period. The child was with the adoptive parents during the probational period when it became ill and needed hospital attention. Mrs. W telephoned the adoption society which had placed the child with her in order to inform them of the child's illness. She was immediately told "There is no need to worry about this, if the baby is not healthy, we will take it back and give you another". Mrs. W was very upset at this attitude and was unable to discuss her feelings with the adoption worker and needed help. When the social worker contacted the adoption worker on Mrs. W's behalf in order to communicate to the worker the adoptive mother's feelings about the child's illness and her wish to adopt the child, she was again told "There is no need to worry. If the baby is not healthy we will take it back and give Mrs. W another". This callous attitude was very traumatic for the adoptive mother. This is not the only example of such an incident as this social worker had another case this year in which precisely the same thing happened involving an adoption society and causing the same trauma and hurt to the adoptive mother.

The next case illustrates that there is not always adequate selection of adoptive parents carried out by the particular adoption societies. Mr. and Mrs. X attended as psychiatric outpatients with their only child aged three and a half years of age as they needed help in handling behaviour problems arising from conflict in the mother and child relationship. These parents wished to have a larger family, and as no further children were born to them, they discussed the possibility with the social worker of adopting a child. However, Mrs. X expressed serious concern about this because she was having a difficult relationship with her own child. In spring 1969 Mr. and Mrs. X were out driving one afternoon and called to a registered adoption society in order to make general inquiries about adoption procedure.

The person whom they met there talked with them for a short time and before they left told them that a baby would be placed with them. Mrs. X was disturbed by the situation as she had not fully decided that she wished to adopt a baby. A number of weeks later Mr. and Mrs. X were informed by the adoption society that a baby had been selected for them and awaited collection. Mrs. X took the baby despite her reservations. She did so because she feared that by refusing to do so they might deprive the baby of a home and jeopardise their own chance of adopting a child later on if they wished to do so. This family were known personally to the social worker who gave me the case history in a professional capacity and freely discussed the situation step by step as it took place. Again, this showed an inadequate approach to this complex and delicate problem of adoption.

Another case study illustrates that registered adoption societies do not always show an awareness of basic child psychology when placing older children for adoption. Mr. and Mrs. Y sought professional help with their eight year old adopted child's behaviour problems. They described the circumstances of the adoption: They had no natural children. They adopted their first child as an infant from a registered adoption society. It was some years before they were in a position to adopt another child and when they applied to do so, it was suggested that they would adopt an older child so that that child would be close in age to the first child adopted. When, in 1967, Mr. and Mrs. Y were informed that a child had been selected for them, they went to the adoption society and met, for the first time, the three and a half year old child whom they took to live with them.

The child's behaviour, as described by the adoptive parents, seemed very disturbed. The adoptive parents do not recall any discussion with the adoption worker of the difficulties involved in adopting older and institutionalised children. The parents did not have any supervisory visits from the adoption society before the adoption order was made, and they had only one statutory visit from the Adoption Board. This was a totally inadequate approach to the extremely difficult problem of an older child who has already spent a considerable amount of time in an institution being adopted by parents who had no preparation for this, no awareness of the child's psychology and of the problems involved and where there has been no back-up help and support by the adoption society concerned.

Another case history, which should make us in this House very concerned at the manner in which adoption is working in this country, is that of parents who had three children who died shortly after birth from congenital deformities. A social worker was in touch with the family frequently during the third baby's lifetime—the child died at the age of five months. The mother had many problems in caring for the child and there was the physical problem of overcrowding in the home and the presence of a difficult and alcoholic grandparent.

The mother had taken the child home from hospital for a time before it died but she was herself very depressed and the child was very ill all the time. Following this baby's death the social worker kept in occasional touch with the mother and the mother had mentioned that she would like to adopt a baby. However the social worker concerned was very distressed to find that less than five months after the baby's death the mother was given a baby through an adoption agency. The social worker felt that from every point of view the mother was not a fit person to undertake the adoption of a child. She was still upset and depressed. The conditions of the home were not at all satisfactory from a physical point of view and also the grandparent was still there, ill from a terminal condition as well as being an alcoholic.

This is a concrete example of what happens when there is a complete lack of proper pre-placement supervision. It is a factual situation which can arise, and which is not catered for under this Bill, because of the absence of a proper system of creating and maintaining standards and of controlling and monitoring our adoption code.

The next case history to which I should like to refer is well-known to many of us. It reached the news media for the saddest reason some time ago. Nevertheless, I wish to put it on the record of this House while we are discussing adoption. It may be a long time before we get another opportunity to reform our adoption code.

This is the case of a husband and wife who wished to adopt. They approached an adoption society in October, 1968. At first it was doubtful whether they could get a child to adopt, but when they went back a month later, in December, 1968, they were told they would probably be given a child to adopt. In January, 1969, a social worker from the adoption society concerned phoned them and said they had been accepted as prospective adopters and asked them if they would consider adopting triplets. They were somewhat doubtful about this, but when they went along to the adoption society in January they fell in love with the triplets and decided they would adopt them.

They brought the children home when they were ten weeks old. They were given at that time a very firm assurance that the mother would sign the adoption papers. In April, 1969, they had a visit from the social worker who left the adoption papers with them but told them not to fill them in until the babies were six months old. They were given a further assurance that the mother's consent would be forthcoming. In May they signed the papers and waited for news. After two weeks they commenced a series of telephone calls to the society. The society said they had lost contact with the mother and that the adoptive parents must be patient. In January, 1970—when the children had been with them for almost a year— they continued to ask why the mother had not signed, what were happening, what the adoption society was doing and so on and they were told that the mother wanted the children back. They were deeply shocked and upset at this news and were left very much on their own to worry about what would happen to the three babies.

I now quote from the case history as written by the adoptive mother:

Over the next 18 months we never quite knew what was happening. We had very little news from the society and contact only seemed to be made by them after we had become particularly firm in our request for a decision. A particular nun had been to England twice to see the mother— the natural mother—who by this time was married and had two more children. She said she wanted them back but never did anything positive about it. We wrote to His Grace and visited Monsignor Barrett who both said we had no claim and could not do anything about it.

August 24th, 1971: 18 months later we had a letter from the person involved saying the mother wanted the children back and was coming to Dublin to get them.

The mother in fact claimed the children and the adoptive parents were asked to take the children to the adoption society so that the mother could see them. They were given the following assurances:

She only wanted to see them and we could bring them home again. She was capable of looking after three more children. She was in a very sound financial position and could afford domestic and necessary help to enable her to cope with five children under three years of age. She would see a psychiatrist and discuss the problem of uprooting three two-and-a-half year olds from all they had ever loved and known. She would have a few days' rehabilitation in the convent to enable her to get to know the children and, more important, for them to learn to trust her.

I continue with the report written by the adoptive mother:

August 24th, 1971: We took our little ones to the convent. We had to leave them with a social worker and were taken to a room where I could hear the screams of my babies.

Her husband was taken out and she was allowed to see the natural mother but the natural mother would not listen to her.

Broken-hearted we returned to our home. Our family was shattered and the other children were also desolate.

On the next day, August 25th, we went to Dublin to discuss any possibilities of having the children returned to us.

They agreed to the £5,000 bond. They phoned the adoption society but there was no way of getting the children back. In September, 1971, they were phoned by a priest who broke the news:

One of our babies had died and the other two were very badly beaten up and desperately ill. Because the mother had reverted to her original name we did not know which of the children had died. On September 22nd we flew to England. On arrival in England we were driven to the inquest of the little girl who had died and identified her. We went to the hospital and found the other children lying in bed. One of them had an arm in plaster, broken nose, black eyes, sores, burns and appalling malnutrition; a pathetic wee scrap.

Then we saw Elizabeth bruised, beaten and emotionless. Only then did we know which of the children had died.

Eventually, they managed to bring the children back to their home. As from then they had problems.

Louise was hysterical and Elizabeth was shocked. They were heavily sedated night and day for many weeks. They cried out loud all the horror they had seen and endured. They cried for their little sister and they looked for her everywhere.

In spring 1972 we commenced our weekly visits to Dr. McQuaid. Now, 12 months after the tragedy, Louise and Elizabeth are much improved but still far from their normal selves.

At the end of this statement there is a little note:

Now it is June, 1974, and the 1974 Adoption Bill is being heard in the Dáil and this particular point of ours has not even been mentioned. We hope that in the Seanad there will be more interest and sympathy for adoption reform.

I now wish to refer to another case on the same theme—illustrating the great difficulty in obtaining consent— and to discuss whether this problem is adequately dealt with in the Bill before us. In this case a child was placed with her adopters at the age of six weeks after the mother had assured everyone that this was what she wanted. She wrote a number of letters to the social worker involved saying that she would consent to the adoption. However, she refused to do so and demanded the child back. The home to which she demanded the child back was under the supervision of the ISPCC officer. There were 13 children in the house including another illegitimate incestuous child whose father was the father of the family. He was, in fact, in jail for two years having been convicted of that crime. The natural mother of the child had been reared in an orphanage herself and worked away from home. She did not intend staying at the home but left her child there and disappeared. Once again, despite all the efforts of those involved, there was no way of getting the child away from those conditions and no way of getting the consent when the consent was not forthcoming.

The final case history I want to give is one which happily can no longer arise because of the recent High Court decision in another case, which found that the provisions of section 12 were unconstitutional, both in relation to the impossibility of a child being adopted unless the child is of the same religion as the adoptive parents and also in allowing any forcing of religious consequences, a finding of importance in the judgment of Mr. Justice Pringle, so that this example would now be clearly regarded as unconstitutional.

This case history does not involve adoption between parents of different religions, but is one where the adoptive parents were of the same religion. The natural mother was Church of Ireland. She had a child and subsequently married another man, who was also Church of Ireland but was not the putative father of the child, so that here the adoptive parents were of the same religion. However, the adoptive mother had not baptised the child because she was not religious. She did not wish to baptise her child and she wished to leave it to the child if the child subsequently wished to become a member of any church. In November, 1970, they went along to the Adoption Board having filled in the various papers. The child in question was old enough to be very excited about the idea of being adopted. She was seven or eight years old, and was all dressed up for the occasion.

However, the Adoption Board refused under any circumstances to make an adoption order unless the child was baptised. There were 45 minutes of very distressed and distressing argument and protest and pleading by the parents to allow the adoption order to be proceeded with despite the fact that the child had not been baptised. Eventually the Adoption Board agreed to make the adoption order if there was an oath by the parents concerned that they would baptise the child at the first available opportunity. This is one case where I have spoken to the husband concerned and he said: "We had to balance our own conscience and the effect on the child". Because of the feelings of the child at that time—it would have been so traumatic for that child, who was excited about the idea, to have been refused an adoption order— they took the oath and subsequently baptised the child.

We must be aware in examining the adoption laws we have drawn up, that these are not isolated examples. These are the case histories of one social worker and of one other contact who also works in an adoption society. I am afraid that they are the regular type of problem that arises rather than the exception.

If case histories cannot take away some of our complacency then perhaps we can refer to the report on adoption in Ireland prepared by Miss Vivienne Darling in the Social Studies Department in Trinity College. I understand that this report will be published by CARE and will be available soon. It is a very valuable report indeed. It is admitted that the scope of the study was a fairly narrow one—with its focus on how adoption works essentially. It illustrates the very different pattern around the country: the different standards and, on the whole, the inadequacies of the overall administration and procedure in adoption in this country.

I should like to quote one or two brief extracts from this report, particularly at page 24, dealing with pre-placement procedure and office interviews. The report refers to the Guide to Adoption Practice, the guide issued for adoptions in England and says:

In the Guide to Adoption Practice it is recommended that adoption workers should have several interviews by appointment and that these assessment interviews need skill, patience and persistence. The interviews should include at least one joint interview and a separate interview with both husband and wife. One of these could be combined with the home study. In the course of my investigations I discovered that 25.9% of the adopters in my survey claimed to have had no office interviews before placement but this proportion varied from 19.6% in Dublin to 30% in the country. This variation is understandable as some of the rural societies only interview in applicants' homes because of the distances involved and the difficulties in travelling. As 82.5% of the adopters in my sample survey had used an adoption society and 7% a local authority and only 6.3% and 0.7% were third party or private placements, it would appear that not all applicants are interviewed in the societies' offices.

It goes on as follows:

It emerged that 48.3% of couples had one office interview only, while 12.6% had two interviews and 10.5% three interviews. Only 35% of the couples interviewed were seen both separately and together.

Throughout this report, particularly in relation to the pre-placement visits to the home mentioned on page 26, it was disturbing to note how the practice varied dramatically around the country, and especially between Dublin, Cork and rural areas. This is hard to understand in the light of the claim made by all adoption societies that at least one, and possibly two visits, are made in each case.

I could take up more time, except that it would be unfair to others who are listening and who want to contribute, in showing that this report is an indictment of standards in our adoption services. I hope that when it is published we will have a more realistic awareness of the many problems involved. I shall refer back to the report on Committee Stage in moving amendments to this Bill.

To summarise the points made so far, the first is: why have we not accepted the recommendations of the Kennedy and Devlin Reports to change the whole control of adoption from the Department of Justice to the Department of Health, and with that to have a better emphasis on the child care aspect of it? Secondly, in the light of the sort of evidence that I have been trying to give, can we be as complacent as was suggested? The third point that I want to discuss is the question of the category of children who are eligible to be adopted.

I should like to introduce an amendment to broaden the category of children to include abandoned children or children neglected and illtreated by their parents who are not fit to have the custody and control of such children, in cases where the parents were married and the children were born during marriage. The first prelude to this would have to be a section— which again I would hope to introduce as an amendment—that the welfare of the child in all adoption procedure is paramount. I believe that this ought to be stated, showing where our emphasis is and allowing the courts—as they do in the Guardianship of Infants Act, 1964—to interpret constructively a statement in the Bill itself to this effect.

In his Second Reading speech and in Limerick, the Minister said he has been advised that to broaden the category to include abandoned or neglected children of a married family would be unconstitutional. I would submit that no judgment of the High Court or Supreme Court has ever made a finding on this exact point, nor do the existing cases allow for an obvious inference that this is the case. There are clauses in the Constitution pointing indeed the other way, and in a moment I shall attempt to elaborate on this a little.

If that be the case, if there is at least a doubt about the matter—if not, as in my submission, a very strong case for extending the category of children who may be adopted in quite a constitutional manner—I believe there is an onus on us as legislators to draft the appropriate section and to include it in this Bill and, if necessary, to have the Bill itself referred to the Supreme Court by the President under Article 26. If there was some doubt, surely the proper course is to take the necessary legal steps to extend the category of children who may be adopted to include abandoned and neglected children and to clarify the constitutional issue by referring the section of the Bill to the Supreme Court under Article 26, for determination as to its constitutionality.

It is argued that the difficulty arises from the wording of Article 41 of the Constitution. I will not deal with this point at great length now. To begin with, I anticipate that another Senator will deal with it—though perhaps not in the same way—and in any case it would be more appropriate to argue the point at length on Committee Stage in the light of the amendment proposed. Very briefly, Article 41 deals with the family and section 1 provides as follows:

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

The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Nothing in that section lays it down in an authoritative way that parents have, for all time and in an absolute manner the right to custody and possession of their children of which they can never be deprived. Nothing there says that if a mother and father, reject the child from the moment of its birth, put it in an institution and never want to see it again, that they nevertheless have inalienable and imprescriptible rights. The truth is that the courts have never interpreted this section in its direct sense and have never set out what are these "inalienable and imprescriptible rights". I would suggest that subsection 20 of the Constitution:

The State, therefore, guarantees to protect the Family in its constitution and authority...

is a guarantee against legislation either abolishing or interfering with the family. It is not any authority for what it is being put forward as authority for. It is being put forward as authority to say that in some strange way, which is out of line with a great deal of legislation in other countries, there is a natural right in parents—no matter what they do to their children—to the custody and control over those children and that no laws we draft can prevent that. I cannot accept that. Senator Ryan has referred to the Nicolaou case. I have read with great care the judgment in that case and I do not believe that there is provided any authority for this point. Rather than dwell on the point here, I shall come back to the argument when moving an amendment.

I reject emphatically—and it is a part of this whole question of how the family provisions in the Constitution are being interpreted—any possible line of development which would tend to suggest that the single mother and her child are not a "family" under the Constitution. This would be very bad and would be a most cruel and perverse way in which to develop our family law. It is the family based on marriage which is referred to in subsection 3º of Article 41:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack,

and then:

No law shall be enacted providing for the grant of a dissolution of marriage.

But that section must be confined precisely to what it says, which is:

The State pledges itself to guard... the institution of Marriage, on which the Family is founded...

It does not say that it is only when you have a family based on marriage that you have a family. We must not fall into the trap of drawing a conclusion when no such conclusion ought to be drawn. The common law has never confined the family to a family based on marriage. We would not just be a cold, callous society but a blind one in this modern day and age if we were to say that our reading of these phrases is that the family is confined so far as the Constitution, and constitutional rights are concerned to the family based on marriage. I will return in more detail to these arguments when drafting an amendment to broaden the category of children.

We hear too often that there are more adoptive parents wanting to adopt children than there are children to be adopted. We forget that the reason for that is because the category of children is so narrow. There are many children who lead an institutionalised life in this country or at best are involved in a system of fosterage which may or may not be successful and in which they do not have the full legal rights which they ought to have. When we have broadened the category to comply with social justice then there will be many more children who will be suitable for adoption and able to avail of the hopes which adoptive parents would provide for them.

The overriding constitutional consideration in that context is the guarantee in Article 40, section 1:

that all citizens shall as human persons be held equal before the law.

The citizens who have been abandoned and rejected by their parents and who have been put in institutions or in fosterage on a temporary basis are not being treated equally as human persons before the law, because we are not allowing them to avail of adoption into a substitute family thereby giving them what they are being denied by their natural parents.

In looking at this question of the child to be adopted we must consider in much more detail the relationship between the single mother and the child. That is very much a family relationship. The child who is loved and desired by the single mother is a lucky child. It will have love and affection and will be brought up, probably against the odds in this country, in an environment of love and affection. I should like to pay tribute to the members of "Cherish", the organisation formed by single mothers in their concern to help one another, for the way in which they have argued their case, often against the odds and without much public sympathy. I should like to encourage them in what they do and to support their line of argument. They are not given a real choice in economic and social terms. They say that they are willing to see reform in the adoption consent procedure provided society will give them a real choice: a choice either to keep the child and bring it up with the love and opportunities which they want to give it or, alternatively, to place the child in adoption in order to give it the advantage of a better life in that way.

Looking at the problem from this overall context, I should like to refer briefly to the question of the figures for illegitimate births and the number of children who are kept by their natural mother. These particular statistics are slightly out-of-date. There is now a much stronger move by single mothers, helped by the provisions of the Social Welfare Act, 1972, to retain their children. I wish to quote from an article in This Week of 12th February, 1971:

In 1970, there were some 1,800 illegitimate births registered in Ireland. That represents close to 3 per cent of all live births. Some 400 of these girls entered Dublin's National Maternity Hospital at Holles Street to have their children. These were the girls who did not choose to enter homes and had kept the fact of their pregnancy a secret until the last moment. During 1970, some 400 girls gave birth in Holles Street. Of this number some 42 per cent were under the age 20 and 24 per cent under 18. Of the general hospital population of married mothers, only five per cent were under 18. One in six of all births in the hospital to mothers under the age of 20 were to unmarried mothers. Girls who entered the hospital were in general simple but poorly educated girls, 70 per cent of them were in domestic service of one sort or another. The most serious factor concerning the 400 girls treated in the National Maternity Hospital was that 20 per cent did not receive any medical care until labour pains had begun. Presumably, many of them were not even sure they were pregnant. Some 50 per cent received no ante-natal care until the last four weeks of pregnancy. Less than 17 per cent received any care before they were five months pregnant.

The same report in This Week goes on to point out that:

In 1969, a total of 1,638 illegitimate births were registered in the State. The adoption rate at almost 90 per cent of these represents as near as nothing the maximum possible adoption level.

Later on there is reference to the position in Scandinavia. Let us look at the position of the single mother in some of the Scandinavian countries with their advanced welfare state systems: "In Denmark some 93 per cent of unmarried mothers keep their babies." In 1969 90 per cent of Irish unmarried mothers gave them up, while 93 per cent of Danish unmarried mothers kept their children. That is an extraordinary reflection on the way in which the system can determine social conduct. What can be more crucial than the decision by a single mother whether to put the child in adoption or not? I cannot believe that you can explain that by saying that in Scandinavian countries, where there is more advice on family planning, the child is likely to be a wanted one. This is true to some extent, but it cannot explain the extraordinary variation in the graph that in 1969 in this country over 90 per cent of single mothers put their children in adoption and in Denmark in the equivalent year over 93 per cent kept the children. The report goes on to say that

In Denmark the single mother must identify the father and then legal efforts are made to ensure that the person named is the father and that he accepts his responsibilities to the child.

A good deal more of this information is more relevant to the Illegitimate Children (Maintenance and Succession) Bill, which I still hope may be moved before the end of this session. Despite what was said by the Leader of the House when this was mentioned on the Order of Business, I should argue very strongly for having that Bill taken before the Recess. It is very difficult to see how we can convince ourselves that we are reforming the adoption code unless we also reform very dramatically the position of the so-called illegitimate child. I regret that we must use a word like illegitimate, because it has a pejorative sense; but, forgetting any such meaning, it is essential that we redress the existing balance of society against the single mother and her child.

It is essential that we give her the legal machinery and protection by improving the affiliation proceedings. It is essential that we give the child concerned equality before the law as a human person and as an Irish citizen which at the present moment that child is denied. It is essential that the illegitimate child have the same property rights, inheritance rights and rights of identity, as any other child. It is essential to know who the father is and to have a relationship with the natural father in the circumstances. It is high time that our society got rid of any stigma or any reproach against the single mother with her child. It is time we had a much greater willingness to explore the ways in which the community, where the single mother wants to bring up her child, can make it easier for her to do it. It is only when there is this balanced relationship that we can talk about having an adoption code which has any regard for the principles of social justice.

I made the point that I propose to broaden the category of the children to be adopted. Also, no discussion of adoption can be a balanced one unless there is either firm Government intent to accept the Illegitimate Children (Maintenance and Succession) Bill or to bring in a Government Bill in order to improve the situation of the single mother who wishes to keep her child and improve the status and rights of that child.

I now wish to look at another matter. That is the question of the role of the Adoption Board in controlling adoption societies. I am very disappointed that the Minister has expressed a view that the Adoption Board do not "want" to have the power to make regulations governing adoption societies and that he is content that they are right and that there is no need for such power. I believe that there is a very strong need for the statutory authority to make regulations which would be binding on all adoption societies. I propose to introduce an amendment to that effect.

Anybody reading Miss Darling's Report could have no doubt of the need for regulations imposing standards on adoption societies. The Minister has expressed the view that it is not possible, through legislation and regulation, to impose standards. At least one can create standards. Then, by a proper system of supervision and, if necessary, of de-registering adoption societies, one can go a long way to imposing standards. Reading the cold print of Miss Darling's Report, nobody with concern for adoption procedure could deny the need for improving these standards. I would ask the Minister why he made no reference to the fact that—not in his time, admittedly, but in the comparatively recent past—three members of the Adoption Board resigned on this issue. They resigned, among other reasons, because the Minister for Justice of that time would not bring in legislation giving the Adoption Board the statutory power to make regulations.

It is worth examining what happens in other jurisdictions. In this context I wish to make reference to another jurisdiction about which we talk at great length in another context, namely, Northern Ireland. It is always interesting to see the many areas in which we can learn from the legislation, particularly in the family law area, which exists in Northern Ireland. Also, Northern Ireland has the latest Adoption Act of these islands, the Adoption Act (Northern Ireland) 1967. Section 32 of that Act provides:

The Ministry may make regulations—

(a) for regulating the conduct of negotiations entered into by or on behalf of registered adoption societies with persons having the care and possession of infants who are desirous of causing the infants to be adopted, and in particular, for securing—

(i) that, where the parent or guardian of an infant proposes to place the infant at the disposition of the society with a view to the infant being adopted, he shall be furnished with a memorandum in the prescribed form explaining, in ordinary language, the effect, in relation to his rights as a parent or guardian, of the making of an adoption order in respect of the infant, and calling attention to the provisions of this Act, or of any rules made thereunder, relating to the consent of a parent or guardian to the making of such an order, and to the provisions of this Act relating to the sending or taking of infants abroad; and

(ii) that, before so placing the child at the disposition of the society, the parent or guardian shall sign a document in the prescribed form certifying that he has read and understood the said memorandum.

It goes on:

(b) for requiring that the case of every infant proposed to be delivered by or on behalf of a registered adoption society into the care and possession of an adopter shall be considered by a committee (to be called a "case committee") appointed by the society for the purpose, and consisting of not less than three persons;

Some adoption societies have case committees in this part of the country. Many other do not. Here there is a statutory requirement for case committees

(c) for prescribing, in respect of every such infant as aforesaid, the inquiries which must be made and the reports which must be obtained by the society in relation to the infant and the adopter for the purpose of ensuring, so far as may be, the suitability of the infant and the adopter respectively, and, in particular, for requiring that a report on the health of the infant signed by a fully registered medical practitioner must be obtained by the society...

I will not continue reading the relevant provisions of the Northern Ireland Act. I only want to refer to it as a jurisdiction where it is thought necessary and desirable to have statutory authority to make regulations. These statutory regulations were made as the Adoption Regulations (Northern Ireland) 1969. They are very detailed and comprehensive and undoubtedly create standards. By doing so they ensure that it is more likely that these standards will, in fact, be maintained. Despite the Minister's indication that he is satisfied that the Adoption Board do not wish to have statutory power to make regulations, I feel that is a very narrow base from which to conclude it is unnecessary to give the Adoption Board the statutory power. Those involved, particularly the adoptive parents and social workers, feel the need exists for statutory regulations. If there is a need—and the case histories which I have just put on the record and conclusions of Miss Darling's Report emphasise it—then it is up to us as legislators to insert in the Bill the statutory power to make regulations.

Another matter which I want to mention is the consent of the mother. It may come up again on Committee Stage. This Bill proposes that the mother can consent after six weeks. An organisation like "Cherish" and those who are concerned about the imbalance at present in our adoption procedure will say that we cannot in conscience put in a cut-off limit of six weeks— which for so many reasons is desirable— unless we improve the position of the single mother; unless we give her the sort of help and support, leading to the real choice in economic and social terms which she ought to have.

I am greatly in favour of the provision which allows an application for custody to be made to the High Court. In the light of that application an adoption order can then be made without consent. But once again, who would be objecting to that application being made to the High Court? In very many circumstances it would be the single mother. As the law at present stands, what position is she in to dispute custody in the High Court? What does she know about it? Where is she going to get the advice about it? How is she going to be able to pay for legal advice about it? In this respect the intended provision of the law is in social terms a very inadequate one. For it to be realistic, there would have to be a guarantee of adequate and free legal advice in the matter. There must be the possibility of hearing in camera, a provision which the Minister, himself, mentioned in his Second Reading speech.

I should like to support the Senators who raised the problem of the nationality of the adopted child. I have been approached on several occasions by Irish citizens who adopted a child in England, or indeed it could have been any other country. When the adopted child who had lived for most of his life in this country applied for a passport he was told he was not an Irish citizen and was requested to take out naturalisation in order to become an Irish citizen. It is a very shattering experience for one who has already come to terms with the idea of being adopted, who has Irish parents and has lived all his life in this country, to get a letter from the Department of Foreign Affairs to the effect that he is not an Irish citizen. I believe it would be possible, if we amend the relevant part of the 1952 Act, which talks about the legal rights of the adopted child to remove this anomaly. We ought to extend the existing section so that it would apply to the case where the parents are Irish and adopt outside the country. I am confident the appropriate section can be extended to cover that.

Another matter which I want to touch on briefly is the question of the role of the local authority in adoption. I think the local authority should be brought in under any provisions for making regulations and creating standards. Section 39 of the Adoption Act, 1952, should also be extended to cover local authorities.

Above all, provision should be made for the situation where the Adoption Board had decided not to complete the adoption order. In other words there is a problem where the adoption order is not finalised, although the child has been for some time during a probationary period with the adoptive parents. At present there is no machinery for getting that child out of that situation. The inference to be drawn from the fact that the adoption order is not finalised is that they are not suitable adoptive parents. However, in many circumstances, the child just stays there. No final adoption order is made, and the child is at risk in a family environment which is considered unsuitable for processing an adoption order. At present the board have no function in this sort of circumstance. I believe that it should have a function of ensuring that the child is removed from the adoptive home which was not found to be suitable and where a final order would not be given. It should have power to ensure that the child either be returned to the adoption society or, in cases where it is relevant, to the care and custody of the local authority.

I should like to support Senators Horgan and Ryan on the question of giving a statutory right to the natural father. I believe that once again it would be a most retrograde step to continue to deny in our legislation the right of a natural father in these circumstances. I should like also to include widowers in the category of potential adopters. I note that widows are already included. I think widowers should also have the possibility of adopting. They should not be excluded from even being considered, as they are at the moment.

A final point which I should like to raise and which has been mentioned many times by those concerned with adoption is the question of why it is necessary to have a different birth certificate for the adopted child. Can we go as far as other jurisdictions have gone, particularly America, to remove any difference between the adopted child and the natural child of parents, so that the long certificate does not give rise to hardship later on when the child has to produce such long certificate and therefore admit to being adopted and even risk being discriminated against on that ground?

I notice that in Northern Ireland the Hague Convention on Adoption of 1965 was ratified by legislation in 1969. I should like to ask the Minister whether it is intended that we would also adhere to this convention?

The possibility of the adoption of children is a splendid new feature of modern social legislation in securing as fully as possible the admission of a child into that enterprise of charity known as the family and securing for him as fully as can be secured the benefits, the encouragement and love that are there to be experienced. We were not early in the day in the introduction of that legislation. It came a quarter of a century later than its introduction in the United Kingdom. There have been criticisms of the legislation and its operation and there has been praise of it, too. In particular a feature which has received praise is the benefit of the centralised administration made possible under our code which is absent from that of Britain.

I am quite unable to make an assessment of the sort of matters to which, at a certain point of her contribution, Senator Robinson referred. I simply limit myself to noting that the Adoption Law Reform Society on the whole praised the operation of adoption legislation in the formal report and memorandum it submitted to the Minister. I wish also to note that it expressed criticism in its recommendations.

The first two of its main recommendations have been received by the Government and are reflected in this legislation. These are the sections removing the provisions relative to the religion of the parents and the religion of all the parties involved, which of course featured in the Act of 1952 and has been since retained—understandably featured in that Act having regard to our history. That particular affair led to a great deal of injustice to which attention was drawn. The Bill removes the ground for that type of injustice. It also deals with another matter for complaint—the provisions relative to the lower and upper age limits for adoption.

I should like to just say these words of welcome for these provisions because I intend today to direct my remarks to an area where there is a weakness in the legislation. It is an area to which Senator Robinson has referred, a weakness which—I think it is common case—exists and which arises from the fact that under our code only illegitimate children and orphans and, in certain circumstances, legitimated children can be adopted. The benefits of adoption, the full admission to a family and all the rights attendant on that, are not being extended to all the other children—and we have no estimate as to how many there may be— who might benefit from adoption but who are in the position that one or both of their parents live, and who by this apparently happy circumstance are deprived of the benefits of the social legislation of the Legislature.

It seems to be common case that this is a weakness. It is argued on behalf of the Government by the Minister that the weakness is one which cannot be removed. It cannot be removed because of the provisions of the basic document governing our affairs. We cannot here extend to children whom we can assume are in need the benefits of the legislation which can be extended in other countries because we have here a document preserving the fundamental rights of Irish citizens. As a result of this view children who are abandoned by their parents, grossly neglected by them, or who are in circumstances where one or other or both of the parents cannot financially or because of psychological reasons provide a happy stable environment for them— these children are so positioned that they are denied a possibility of experiencing and enjoying the normal home and upbringing and enjoying financial, social and psychological security.

If there are these children in need, the evidence is that there are, side by side with these children, people who seek in all the ways of their daily lives to obey the maxims of their Lord, who seek to assuage the need of these people, who themselves have a compensating and correlative need for the company of these children. Is it to be the position of this Legislature when we find in our laws—even if it be in our basic document—an obstacle to love, that we are to stand idly by and do nothing about it, that we are not to challenge in any way the provision which it is thought may exist creating this obstacle? It seems to me a very heavy burden to impose for a principle, a very heavy burden to impose for a doctrine.

To raise immediately the question of the truth or the falsehood of the principle, to raise questions about the obliging nature of the doctrine, I do not think my own position would be other than this, that if our Constitution so provides, our Constitution should be changed. But what I say today I hope will prove to be a little more helpful than that. Should we not first challenge by the legislation we enact in these places what may be a wrong and narrow interpretation of the Constitution which, in the name of personal and fundamental rights, deprives many children perhaps of their rights to life and happiness—as these words can be profoundly understood—which in the name of the sanctity of the family refuses entrance to that reputedly happy circle to many who will suffer for the rest of their lives by that refusal and make others suffer too? We do not do our duty here if we do not legislate to meet the needs, as we see them, of our society. And if we do enact legislation declaring an observed need such as this with, if necessary, the unmistakable language of a preamble which describes it and contains a scheme for its removal, is the fact of our enactment of such legislation not relevant to, in the interpretation of what are the rights of our citizens, if we here legislate for the good, the common good?

We are dealing with human beings, and the judges of the Supreme Court are human beings too and must take account of the decisions made here. If we recognise in particular circumstances the right to the benefit of adoption, of all its security and potential for good, as one of the inalienable and imprescriptible rights of the child, his right in justice to have his welfare regarded as paramount by this Legislature and our courts, is this piece of legislation not legislation which the judges themselves would have to take account of?

I venture to suggest that the narrow view of what these Articles 41 and 42, which speak of the inalienable and imprescriptible rights of the family and of the child, mean is not necessarily correct nor do I believe it necessarily follows that the Irish people sought, when they enacted the Constitution, to provide that all the children of the nation are not to be cherished equally.

The Supreme Court has not so pronounced. It has not held that these words "inalienable and inprescriptible rights" are not capable of another wider, stauncher and more useful meaning in particular, in the context in which these words occur. I think it is possible to argue in relation to this, first—I ask the House to be patient with me as I set these points out one by one—that the Supreme Court must apply, if our liberties are to be preserved, the undoubted truth that the Irish people have no right to do wrong, that they did not seek to do wrong and that the Constitution must be so interpreted that they are not seen to have done wrong.

Secondly, as the Supreme Court has ruled that, while it was extremely slow to depart from its own previous decisions on constitutional cases, it may do so. The whole range of judicial decisions at Common Law and equity, which stretch back very far, with regard to the family and welfare of children need to be judicially reviewed in the light of this new social institution of legal adoption, which was not there when these principles were applied to all the different sets of facts that came before these judges but in entirely different circumstances to those existing in 1974.

Thirdly, it is not to be assumed that there is a necessary clash between the Common Law and the constitutional provision for the protection of fundamental rights. The Constitution, it has been held by Judge John Kenny, a very learned judge, in one of the most important decisions ever handed down, does not exhaust in its statements the number of personal freedoms it exists to protect. The Common Law after all— and it is worth reminding ourselves of this—is only a body of law which established what were the common practices and customs and rules of Christian peoples. In the ascertainment of what are these rights to be protected by the Constitution regard can properly be had to the provisions of the Common Law itself. The Constitution should not displace or correct the Common Law but clarify its meaning and strengthen the protections that the citizen is in any case entitled to look to it for.

The Constitution should be seen as a dynamo for human progress, an inspiration in a way in its statement of right principle, not be experienced by this House or the other House, not be experienced by the citizens in need as the Procrustean bed prohibiting improvement. Our laws must not be like the laws of the Medes and the Persians which change not. They must be constantly renewed. The Constitution itself contemplates a constant renewal, a constant readaptation to new economic and social institutions of which, incidentally, legal adoption is one.

Fourthly, it is possible to argue that the Constitution is a notable and quite noble statement against the spirit of the age in which it was adopted. I would remind you that it was adopted in 1937 when tyrants, with the support of multitudes, held sway all over our old Europe. It restated and challenged by its terms the old Stoic and Christian notion of the natural law according to which laws, positively enacted by tyrants however numerous—and the Plebs can be a tyrant too—and not binding in conscience as they seek to deprive man of essential liberties which, by natural reason, he can discover he must have and which he enjoys by virtue of a fundamental law, that law, antecedent and superior to all positive law. The Constitution cannot be used to justify the deprival of the right to join a family—the natural, primary and fundamental unit group of society. If it were so used—and the Supreme Court has not so held—it would become a positive law and stand rebuked by its own robust and wholly acceptable claims.

Fifthly, the finding of Judge Kenny provides a further avenue of escape from the restrictions of the narrow view. The Constitution contains no definition of what are the inalienable and imprescriptible rights, either of the family or of the child. They both need interpretation and each must be construed in harmony with each other. The rights of the family cannot be given a definition which deprives a child of his basic right in justice to have his welfare considered as paramount.

Sixthly, these words appear in Articles which are set in the context of fundamental rights generally and the spirit and tone of the context in which they appear make it difficult to sustain a narrow interpretation, restrictive of rights, rather than enlarging their scope and increasing their reality.

Seventhly, it is in the interpretation of ordinary documents usual, helpful and proper to construe words most strongly against him who uses them. This Legislature and the Government's law officer should contend that the rights here recognised, these inalienable imprescriptible rights, are rights which the family and the child have against the State, against all institutions, agencies and powers which lie outside the family and the child, which entitle the family not to be interfered with or obstructed in any way in its constitution or authority. It can be contended, and I so contend, that a personal right which may be alienated freely by its possessor is greater than one which cannot be. If a right is sought to be exercised by free alienation—no one is arguing for a non—consensual deprivation or an alienation—if a right is sought to be exercised by alienation, and alienation is a mode of exercise of a right, under the constitution and authority of the family is it not an obstruction and interference with the family to prevent it, if it can be shown that this is the manner best open to the family to perform its duty to have regard to the welfare of the child?

Eighthly, is it not a monstrous inversion of true values to cite the Constitution as an obstacle to this Legislature legislating as well for the welfare of children, one or both of whose parents are living, as for the welfare of illegitimate children and orphans? The misery and the sin—call it what you wish— which lead to the birth of the one and the tragedy which leads to the bereavement of the other become then happy faults which exalt and elevate the hopes and prospects of the illegitimate and the orphan over the hopes and prospects of those excluded from these experiences, the legitimately-born who can only win their future happiness on this view if death deprives them of their parent or parents. Natural law should not be so adumbrated as to lead to so unnatural a conclusion.

Ninthly, it is true that there is legal difficulty as to what is a family. Senator Robinson has referred to this. There is the difficulty caused by the terms of Article 41.3. One of the worst criticisms which we levelled against it—and there are many others more frequently voiced —the one relative to the dissolution of marriage, is that it purports or may purport to deprive natural children of the protection of natural law as if their rights at nature can be lessened by some lack of solemnity, some legal impediment to the union which led to their being. Despite this difficulty as to what is a family caused by this language, I do not think that the Article can properly be used to justify the denial to the adoptive parents of the adoption of an altogether suitable child both of whose parents are not dead—a denial of their opportunity to complete their family where they are, through some mishap, childless and the area of whose authority spoken of in the Constitution can only thus be naturally expanded.

Tenthly, the Constitution recognises in the terms of Article 2.5 that the State may, in exceptional cases where the parents fail in their duty towards their children, endeavour to supply the place of parents. If the State can do this for the lesser matter of the formal education of children, can it not permit dutiful parents to do the greater matter of securing for their own children a proper home.

For these, among other reasons, legislation should be introduced forthwith and referred to the Supreme Court relative to the constitutionality of legislation extending to children other than orphans and illegitimates. I understand why the Minister in his anxiety to bring these worthwhile improvements —I congratulate the Minister on introducing the legislation which contains them—does not wish to delay further their coming into effect while this Bill is being examined by the Supreme Court. Would he introduce a separate Bill dealing with this point or give a welcome to one if I introduced it and received the necessary support of the two Houses?

In conclusion, I should like to refer to a few other matters so that I may if necessary deal with them in Committee. I resent and think it wrong that the category of persons who can adopt is so limited. Under our law the Blessed Virgin before her marriage could not adopt. It would be no surprise to anyone in the House to hear that Mary Magdalen could never have adopted and Jesus Christ Himself would not be acceptable under our code as an adoptive parent of any of our children.

I share the criticisms which have been expressed with regard to the absence of a provision entitling the natural father to be heard. The Nicolaou decision itself was one of the least tacit decisions of the Supreme Court. That decision presumably would have been different if we had legislation entitling him as a right to be listened to.

I am unhappy about the provisions of section 40 of the Principal Act. I think I am correct in understanding that this Bill does not contain any amendment—I am always afraid of assuming anything —of section 40, but its provisions will be well known to the Minister. If somebody else has referred to this section, I shall not continue, but I heard no reference to it. Subsection (1) provides as follows:

No person shall remove out of the State a child under seven years of age who is an Irish citizen or cause or permit such a move.

Subsection (2) says:

That subsection shall not apply to the removal of an illegitimate child under one year of age.

It does if the child is over one year of age, so it is a bad moment when he moves to his second birthday. It does not apply to such child removed by, or with the approval of, the mother or, if the mother is dead, of a relative, for the purpose of residing with the mother or a relative outside the State. Neither does subsection (1) apply by virtue of the provisions of subsection (3) to removal of a child not being such a child—that is illegitimate and under one year— where it is by or with the approval of a parent, guardian or relative of the child.

The effect of this is that an illegitimate child in the custody of its foster parents or prospective adoptive parents cannot leave the country. If, for example, a foster father, having custody of the child, is offered employment abroad, he may have to make up his mind between refusing employment or abandoning the child. Of course there is no doubt about what happens: he commits a crime and takes the child. Should we have on our Statute Book the law creating such an unnecessary criminal offence if there is some other way of securing the elimination of the abuse or the dangers which the section desires to combat and prevent?

What of the position of a child who needs medical attention that is not available here? I do not know what may be the experience of other Senators in this matter, but I know of people who are alive and well today because they could go out of the country to get skills not available in the country. Is this to be the fate of such a child? What about a nervous, timid, perhaps craven doctor who is afraid of what might be the consequences of co-operation in this situation? I do not know how real these situations may be, but that they can exist is clear. A child under one year may go to stay temporarily or permanently with a relation of his mother; he could not go after his first birthday. Could he go at any age, if this is not the object of his visit? I should like the Minister to give thought to the possibility of improving that particular section.

Finally, I do not think anyone has expressed unhappiness about the provision—a new provision—in the present Bill which disallows private adoptions. I hope that the full implications of this have been measured. I have been written to—perhaps others have received a like representation—by the Joint Committee of Women's Societies and Social Workers. The Assistant Honorary Secretary signed that letter and I should like to quote from what she has written:

... the Bill disallows third party— that is private—adoptions. Natural mothers and adopters in the view of this Society——

I am presuming it is the society's views she is expressing—

—should be free to choose between the Society and private placement. The latter is often their doctor who knows more about the background of both parties than most of our adoption societies would.

No research has yet been carried out, so it cannot be said that one has been more successful than the other, especially where our adoption societies are not governed by regulations.

I shall end with that, with an invitation to the Minister to reconsider the section and express a view on it.

After the songs of Apollo the words of Mars are harsh. Therefore after that, what only can be called noble speech by Senator Alexis FitzGerald, I propose to adopt a very low profile by being extremely brief indeed. But among the very admirable things in that speech, which is the kind of speech I think brings credit to this House—and I am sure others did, too— was the manner in which he dealt with natural law, a concept which has been so badly abused and eroded in recent years, and has been largely brought into disrespect by a very narrow and arid interpretation of the whole concept which has grown up in modern life. He has humanly and charitably interpreted in terms of both constitution and the law. The point I want to make is this. I think I am right, but the Minister will correct me if I am wrong. We recall the old days when illegitimacy was stamped on the birth certificate. We then had the introduction of the short certificate. But I am strongly of the view that it should not be mentioned at all on the birth certificate. The only person who has the right to appeal is the child himself when he grows up.

I should like that as far as possible— and I mentioned this in reference to the Maintenance Orders Bill—the words "illegitimate child" be removed from our vocabulary. As I pointed out on that occasion, of the three parties involved in his coming into the world, the child is the one who is totally innocent and he is the only one who gets a pejorative label attached to him. That is only a small point, but a point in which our language often reflects our morality and our sensitivity. Very often, perhaps as in the case of an English speaker, the use of language frequently corrupts and coarsens the quality of thought. I do not know how far a word such as "illegitimate child", which is so immersed in the whole web of law, could be withdrawn. We should constantly be on our guard against genuflecting to such a concept.

I welcome the Bill absolutely. However, I recognise—as does the Minister, because one cannot wait forever—slight defects. I think in terms, particularly of Senator FitzGerald's suggestion of a Bill which might run parallel to it. If the Minister needs my support, I now solemnly pledge it to him at every point.

Legislation in itself is good but it cannot succeed just by being voted into existence. I should like to reiterate a point I made in reference to the Maintenance Act, that is, that the good effects of this Bill will require a great deal of social service on the ground. Everybody knows, and the Minister has expressed himself as knowing, that the number of social workers we have in the entire field of married life, family life, dealing with the unmarried mother, the absconding father, the neglected or derelict child is not adequate, but this is not because we do not produce excellent social workers. I would urge the Minister to increase the whole base of social advice and supporting activity for the unmarried mother and for everybody involved in what Senator FitzGerald called the misery and pain which accrues from unwanted children.

"Unwanted children" is a phrase wrongly used. There are very few parents who do not want their children but social circumstances frequently force them to abandon their children. If we could alter these social circumstances the phrase "unwanted child" would disappear from our vocabulary. If we are to cherish all the children of the nation equally the phrase "unwanted child" should be as repugnant to us as the phrase "illegitimate child".

I should like to draw attention in this connection to the growing discussion of the whole area of abortion which became involved in the area of contraception. This is not irrelevant. Like Perry Mason in court, I hope to make all this evidence relevant to the issue. The point I am making is that some years ago, when the Abortion Bill had been passed in England, the Catholic Bishop of Shrewsbury said that all the resources of his diocese would be put at the disposal of any girl of any denomination, in any circumstances and from any place, who wanted to come and have her child rather than be subjected to the social pressures involved in the Abortion Act. That illustrates the point I am making: that this whole notion of social service and social back-up is the true and charitable approach to adopt towards children coming into our society.

It should be enshrined in active social support work that no social or moral pressure would be put on an unmarried mother either to have her child adopted or not or to put her child into an institution or in care. In other words, the support I am speaking of is, first of all, the support for her own conscience to choose freely and, secondly, the ancillary support to help her in her choice, so that no woman would be expected to abandon her child through any pressures which might arise from a defective social service within our community. That is the point I am making. It is one which is absolutely essential to a Bill such as this. You can enact Bills until the cows come home but it is even more important to devise means by which the good effects of these Bills can accrue to the common good of society.

I should like to say merely a few words on this Bill. Much of what I would have liked to have said has been said already and I do not wish to be repetitious at this stage of the debate.

I, too, welcome the Bill and congratulate the Minister for having introduced this measure which, as some Senators have rightly said, is now long overdue. It is understandable in a country such as ours, which has the reputation of being a child-loving one, that we should have particular regard to our laws concerning children. This Bill deserves the closest and most constructive scrutiny by the two Houses of the Oireachtas.

I read through some of the debate in the other House and I was greatly impressed by the way in which the Deputies responded to the Minister's appeal to treat the Bill as being above politics and by the way in which they accepted his invitation to make constructive proposals for the improvement of the Bill. I hope the Minister appreciates that the Bill is being accepted in a similar spirit in this House. From the speeches I have heard this afternoon it was the wish of every Senator who contributed to the debate to be sympathetic and helpful while at the same time rightly criticising certain aspects of the Bill which they thought required amendment.

It is inevitable that after 22 years some important amendments should now be made to the 1952 Act, one which notwithstanding its limitations—now highlighted by the hindsight of some critics—worked well on the whole and helped to find a good home for some 20,000 children. I should like to join with the other Senators who paid tribute to the Adoption Board and to the various adoption societies who have performed such wonderful work down through the years to help solve a very human and pressing problem. Nobody could commend them too highly for their charitable and Christian work. Public representatives should avail themselves of the opportunity to pay them a well-merited tribute.

I am glad that the Minister has been guided largely by experienced organisations such as those I have referred to and by persons experienced in dealing with adoption cases. It is proper that the views of organisations which claim to represent a significant section of our society should be heard. In the final analysis it is proper that those who speak with the voice of experience should be the guides of the Minister's proposals to amend the Act of 1952.

It is fair to say that in criticising the 1952 Act and seeking to improve the 1974 Bill we should take into consideration the changing attitude to adoption in a generally conservative and almost entirely Catholic State. It has been said of the earlier Act that it was too mother-centred and therefore, that, the new Bill should be more child-centred. It is proper that the Bill should give primary consideration to the rights of the child and the great need to provide it with a good home and loving parents, legal if not natural. We should not emphasise too much or exaggerate the urgency of finding a home for an unwanted child—I hesitate to use that expression and I agree with Senator Martin that it is time it was abolished from our vocabulary—and we should not be over eager in trying to encourage a woman, perhaps in distress, to part with her child. Before this stage is reached every possible encouragement through State, local authorities, private organisations and experienced personnel should be given to the mother to keep her child. While we rightly talk of making the adoption of a child easier, both on the mother and for the child in after life, I emphasise again the necessity of making it easier for the mother to keep her child in after life, of making it easier for the mother to keep her child in comfort and ensuring that it will have the same opportunities as any other child in our society. It is most important that we ensure that the mother's rights are protected and that she is given full and ample opportunity to make one of the most difficult decisions of her life—the decision to part with her child to another woman, to other parents.

The Minister has referred to the indecisive or procrastinating mother whose case it is proposed to deal with in the High Court. He has acknowledged that this is a difficult and emotive situation, involving a mother who may not be entirely capable of making a rational decision, for various reasons such as mental strain, desertion by the father or perhaps the knowledge that the child she may offer for adoption is the last child she will ever have.

As the Minister stated, family courts would be the ideal tribunal to deal with such situations. In their absence some other agency must be used. Possibly a solution might be to set up small consultative committees on the lines of family courts—consultative or advisory rather than having any legal standing— comprised of experienced persons including people who themselves have adopted children and whose advise would be available to the court.

I agree with Senators Ryan and Horgan, who stated that no provision appears to have been made in the Bill for at least consulting the father. No doubt the Minister will refer to this. It seems strange that one party to the birth of the child is not consulted, at least when the transfer of the child from its natural parents to adoptive parents is under consideration and arrangements are being made which will affect its whole future life and career. I am glad the Minister has decided to assist adoption societies financially and to provide funds for research into the whole field of adoption in this country. Obviously more specialists and social workers are needed.

Perhaps the greatest need is the continuing involvement of ordinary, kindly, child-loving people who are prepared to give their services freely, gladly and without any desire of recognition on the committees of various adoption societies. I hope the Minister, while finding a rightful place on the Adoption Board for qualified personnel, will continue the policy of having voluntary workers represented on it also. Among the provisions of the new Bill, it is proposed to pay a deputy chairman when he acts on behalf of the chairman. I suggest that the vice-chairman also be paid a salary. Perhaps his services could be availed of in provincial centres, having regard to the amount of work available outside Dublin.

These are the only comments I wish to make. At this stage I should like to congratulate the Minister on introducing such a Bill. I hope we will not have to wait another 22 years for an opportunity to help the adopted child by way of legislation. I hope the Minister will take cognisance of the comments made in this House. I think he will agree that they were helpful and constructive. They were given in a manner which ensured that we all have —what Irish people have a great reputation for—a love for children and a desire to do our best for them.

I should like to thank all the Senators who spoke for their views which were very constructive, and deeply researched and thought out. They were given in a completely non-partisan, non-political fashion. What was said was of immense interest to me and has been an education in many ways. That, of course, is the purpose of having a Legislature and debates in both Houses.

The Bill ranged over the whole field of adoption. I will deal with the various points, not necessarily in the order in which they were raised. Some of them overlap and it might not be possible to deal tidily with each of them. The first one here is the question of the standards to be applied. A point expressed by some Senators, but principally by Senator Robinson, was that the opportunity was not taken in the legislation to provide for statutory regulations for the procedures to be adopted by the societies and by the Adoption Board. This is a matter to which I gave a lot of thought during the lead-up to the preparation of this Bill. It is a matter on which I had discussions with the board, with representatives of the adoption societies and with individual social workers. I was well aware of the call for the introduction of statutory procedures, of the insistence of that call and of how loud it was. I was anxious to tease out its validity with those actually operating in the field.

Lest it might be thought that I consulted only with what I might term the conservative elements in the adoption field, I want to say that that is not so. I had discussion with workers of all shades of opinion in this area. Views were wide-ranging, but the view that I formed has been the very positive view of the board themselves, the people who for the past 20 odd years have been operating adoption in this country and who would be best qualified to know the requirements; and that view is that statutory procedures would be a mistake. I am satisfied that there are sufficient checks present in the existing code to ensure good procedures and, more important, good standards. As I said in my opening speech, good standards cannot be prescribed by a statutory instrument. They depend on the training, education and supervision of the people in this field and on the level of efficiency at which the individuals operate. I am satisfied that in the system as we have it there are sanctions, conventions, checks and balances present which ensure that high standards of procedure are being implemented.

Senator Robinson in the course of her contribution gave several case histories of adoptions that went wrong. I do not know how old those case histories were or how far back in the history of adoption they were dredged up from. Unfortunately, in the experience of more than 20,000 cases of adoption there were some that went wrong. We do not have the research facilities to know precisely why they went wrong or what was the error in the placement procedures but it is a matter for regret that some adoptions went wrong. Implicit in arguing from case histories is the old fallacy of arguing from the particular to the general.

I have no way of knowing how old these case histories were. I am well satisfied from the discussions I had within the adoption world that the procedures which are being implemented nowadays are satisfactory to ensure a uniformly high standard of adoption procedures. This is secured in two ways: the adoption societies and the Adoption Board have certain procedures and the board have to be satisfied that these procedures are followed. Should there be any fall from this level the board have the sanction of withdrawing registration to the society in question. The threat of this sanction being present in the background is adequate—it has not been necessary in a serious way—to ensure that procedures are followed. There is also a new sanction available to me: subventions are now being paid by the Department to societies. I have indicated that I would like to see these subventions spent on the employment of social workers so that a high standard of protection and expertise will be available in adoption procedures. This is something that can be monitored. Should I be of the opinion at any time that the money is not being spent in the way I believe it should be spent, there is thus an implicit sanction available to me.

I am perfectly satisfied that for these reasons there is no need to have statutory regulations to ensure proper procedures. The procedures at present being implemented are being observed consistently and uniformly throughout the country. The adoption societies are based mainly on the churches. Use is made by one society of the social workers of another in another part of the country. For example, in the case of a child being adopted by parents in Donegal and placed with them by a society in Cork, the Cork society might call on a society in the north-west to carry out the visiting and pre-placement and post-placement inspections. Co-operation of this sort is common and has led to a uniformity of standards. The standards are supervised by the co-ordinating bodies and societies and by the Adoption Board. I am satisfied that the procedures being implemented are of a high standard.

Criticism has been made from time to time that the workers working for the societies are not always professional social workers. My answer to that is that the subventions now being made available to societies are geared to enable them to employ people of a high expertise. I do not want to enter into an argument as to the relative merits of a graduate as against the non-graduate. Adoption is a very specialised field and expertise is only acquired by working in it under proper supervision. It is probably correct to say that expertise would be picked up more quickly by the person with a diploma or degree in social work. That criticism is now answered by the unspoken condition attached to these grants.

Despite what was said here today I am satisfied that the decision not to have statutory instruments regulating procedures is the proper one. Let me say that these Acts are not immutable. Granted it has been 20 years since the Principal Act was passed and it has been ten years since it was amended. I would hope that if the experience of the amendments now being debated shows that the Acts require further changing, we would not be slow in coming back to the Legislature for authority to make these changes.

Linked with this question of standards is the question of research. No research has been carried out in this country, except one private piece of research referred to by Senator Robinson. That was carried out by Miss Darling of the Social Science Department of Trinity College. She deserves our best thanks for her energy and initiative in doing that particular job. Miss Darling admitted that her research was necessarily narrow, possibly because it was private and she did not have the access to information that an official research project would bring with it. Nevertheless in her research she discloses some very interesting facts. Research in the field of adoption is difficult because of the time element involved. It would have to take place over a number of years—five, ten or perhaps even a longer number of years. The conclusions reached at the end of that period might no longer be valid for children becoming available for adoption at that time because of differing social mores or any other reason that might pertain at the time. Therefore research is difficult but nevertheless essential. There has been no official research in this country. As I indicated, I am keen to see that this is rectified and that research projects get under way. Such projects will possibly confirm what has been discovered by research in other countries.

In this context I should like to refer to the position of the illegitimate child, adopted and non-adopted. When I addressed social workers in the adoption field in Limerick some months ago I made the point that on the whole, in my opinion, adoption was better for the illegitimate baby. I was criticised for this sentiment on the grounds that we should encourage single mothers to keep their babies and rear them themselves. I am well aware of the good work the organisation "Cherish" are doing in this regard. So well aware of it am I and my colleagues that in the Social Welfare Act, 1973—not 1972 as Senator Robinson said—for the first time provision was made whereby the State would give financial assistance to the unmarried mother who was rearing her child.

However, I am of the opinion that for the good of the child—and we keep constantly preaching that our attitude should be child-centred and not adult centred—it should be placed for adoption. Of course the reason for this is that the illegitimate child is still marked in our society and the dilemma is how to remove that mark and at the same time cater for the welfare of the child, because in removing that mark it would be necessary that the single-parent family should become a norm rather than an exception. In my opinion, and I have some research findings to support it, the good of the child is normally not so served. Naturally there may be exceptions to that, but by and large I think that is a valid proposition.

What I said in Limerick is that the consensus of opinion in our society is to the effect that adoption is better for the illegitimate child. I said that there might be some weakening in that consensus by virtue of improving community attitudes towards the unmarried mother and her child. But I pointed out—and I think I am correct in this—that this is marginal and that for some time to come one-parent families will raise eyebrows in this Christian society of ours. That is not just my personal opinion. What research has been done validates it.

Research has been done in England in a study entitled Born Illegitimate— Social and Educational Implications. It was carried out by The National Foundation for Educational Research. A second study was done called Growing Up Adopted by the same foundation. The findings of that study were quite clearly in favour of the adoption of the illegitimate child. The study showed the fate of adopted children to be basically better than that of those not adopted. A large sample number of children were taken and they were surveyed over a period of seven years. Comparisons were made between illegitimate and non-adopted children, illegitimate adopted children and a control group of legitimate children. Quite clearly the finding was in favour of adoption. The children were materially, culturally and psychiatrically better off than their counterparts who were not adopted.

So, while I sympathise with the bravery of unmarried mothers who wish to keep their children and feel they should be encouraged to do so in the hope that the mark of the illegitimate will disappear from our society, the fact is that adoption is available and should be availed of.

Senator Robinson mentioned the fact that in this country the vast majority of illegitimate children were adopted. She contrasted this with the position in one of the Scandinavian countries, I think she mentioned Denmark, where the opposite is the case and the vast majority are kept by their mothers. I do not know the position in Denmark but I came across the position in Sweden when I attended a conference for Ministers for Justice there last year. A paper was presented by the Swedish delegation on Family Law and I think the experience in Sweden would probably be comparable to that in Denmark. The paper explains why so many illegitimate children are kept by their mothers there. It is a different society.

In Sweden, it is interesting to note, marriages fell from 60,000 in 1966 to 40,000 in 1971. The number of illegitimate children in Sweden increased from 11 per cent of all children born in 1960 to 21 per cent in 1971. Two-thirds of unmarried mothers lived with the fathers of their children. The two situations are not comparable. In Sweden marriage as an institution appears to be declining and the family as we know it is declining, because while there are informal marriages, if we may call them that, there are fewer and fewer formal marriages and those that are formalised are susceptible to divorce. Marriage and the family as we understand it in our society are different here and I think this explains why, on statistics, there is the difference mentioned.

The question of abandoned children was raised in very strong and moving terms by Senator Alexis FitzGerald. I made the point in my opening speeches in this and the other House that there was a constitutional bar against affording the benefits of adoption to abandoned children, that is, children who are neither orphans nor illegitimate. Before discussing it further we would want to consider what, in fact, adoption is.

Adoption is giving to what were foster children in the old days a new legal status. It need not affect the care that is available for them at the hands of their new parents. It does not affect their spiritual, economic, material or psychological situation. What adoption does is to formalise their legal status as children of that household. It is a legal change and in so far as it is a reassuring legal change it may affect the physical well-being of the child in the new home. To that extent it is peripheral to the welfare of the child. The child's welfare is determined by the standard of care and love afforded to it in the new home and the amount of security it has in the new home.

One must concede that the very fact of adoption may strengthen the sense of security and in that sense may increase the physical well-being, but it is not essential to it. Stable parents can provide that sense of security without the necessity of a legal act because the sense of security comes essentially from the relationship that is established between the parents and the non-blood child and the general stability of the domestic environment.

Adoption, then, is not the be-all and end-all for the child's happiness. It is a contributory factor, but it is essentially a formal legal act. The human area behind the formal, legal act does not depend on the law. It depends on the relationship established between the parties. Prior to the Adoption Act of 1952 illegitimate children could be taken by adoptive parents—we use the term as it is familiar to us. The children could be reared by and spend their lives with the adoptive parents. This is still the position in the case of legitimate abandoned children. They can be taken into a new home and given all the love, care and attention which their natural parents failed to give them. They cannot be removed from that home if it is in their interest to stay there. This is provided by Statute by the Guardianship of Infants Act which directs that the welfare of the child shall be permanent. Should feckless natural parents seek to recover a child they had previously abandoned and it is in the child's interests that he should not be returned to them, that child will remain with his foster parents and have all the benefits of security and whatever material comforts are provided. It will also have the benefit of real affection.

Those who deprecate the constitutional bar—indeed I have sympathy with them—want to add to the benefits enjoyed by that child the legal benefit of status. This is important, but it is a legal matter on the periphery of the child's welfare. The abandoned child can be taken into a home, given all the security and all the comfort and love of an illegitimate child capable of being adopted under the Adoption Act.

I have listened closely to the arguments put forward. I sympathise with the argument which asks: what kind of a Constitution do we have if it gives rights which prevent justice being done to these children? This is an argument which is difficult to resist. One answer would possibly be to seek an interpretation from the Supreme Court on the Bill, suitably amended to cover this point, before it becomes law. I will give this matter consideration. There will be a question of delay but, as Senator FitzGerald stated, that might be overcome by a separate Bill dealing with this point.

I foresee a serious drafting difficulty. When one talks of a drafting difficulty one is inclined to dismiss it as a legal technicality, but in this case I suggest it is more. When is a child abandoned? When is the act of abandonment final and complete? At what stage can the law or society say to the natural parents "You have now abandoned your child forever"? Is society entitled to say that to natural parents who, possibly for reasons beyond their control such as financial, psychological, physical, had at some stage to part with a child either to a foster home or to an institution? If it should happen that the causes which provoked such parting with the child were removed or disappeared and that a stable home was then available for the child with its natural parents, possibly with brothers and sisters, who are we to say that that child would not be better off back in its own home rather than to be left in the foster home?

This is a serious problem and it may not have been adequately teased out by people who say: "It is inhuman of you to say that abandoned children can never be adopted". I ask those who say that to bear in mind that abandoned children can have all the benefits of security, stability and love in a foster home without the legal formality of adoption. This is the other side of the coin and these are two sides which we must consider when deciding if it is feasible to set about seeking to overcome the constitutional inhibition, indeed setting out to see if there is in fact a constitutional inhibition. If it should be ascertained that there is, we then face a more difficult situation still. I am not insensitive to the case made for the abandoned child. Who could be? Even at the risk of being accused of being insensitive, I state it is important to point out that there is another side to that particular picture.

Another point made during the debate concerned the rights of the father of the illegitimate child. Senators Ryan and Horgan mentioned that it appeared wrong to fail to give the same rights to the father as the mother has. No reasons were advanced to support this case. The existing law is probably adequate as it does not exclude the father: it permits him to be heard if the Adoption Board so decide. I do not know if it would be a good thing that he be entitled as of right to be heard. In stating this I am conscious of the natural reaction: "Surely the father has rights?" Let us not forget that the mother, because of the illegitimacy of the child, must have the rights and if we were to put the father in the same position and allow him to be heard as of right we would be cutting down her position in relation to that child in this adoption situation.

It is questionable if the natural father is entitled to be placed exactly on a par with the natural mother in that situation. It would be difficult to differentiate between worthy and unworthy fathers. One could begin by stating that all such fathers are unworthy, but this might not necessarily be the case. Who would argue that the father of a child who was the result of a casual commercial union should be entitled to have the same rights as the natural mother? The Act as it stands is adequate. The father is not excluded and the board can hear him if the board in their discretion wish to have the full picture in relation to that particular adoption before them if they so decide.

The question of birth certificates was raised here and in the other House— why should the long form of birth certificate have any mention of the word "adoption" and thereby announce a stigma to a stranger who might have occasion to inspect that certificate? At first, let me say that for most purposes the short form of birth certificate is acceptable. It does not contain any reference to adoption or illegitimacy. For some purposes the long form of the certificate has to be insisted upon. If a child does not know that he is adopted it can be upsetting, and even shattering, to learn his status is not that of the natural son of his parents. This should not be so because good adoption practice demands that adopted children be informed as early as possible of their status. When people who have adopted children inform those children from the beginning that they are adopted, the children have no difficulty or hang-ups in regard to their status. Therefore, if care is taken by parents and if the proper adoption procedures are involved, the fact that the certificate carries the word "adopted" should not cause any difficulties.

There is a further reason. It is a legal reason and whether we like it or not we have to consider legal reasons. The birth records of this State are part of the official records of the State and they must, in my opinion, be factually accurate on their face. Birth records have to be searched sometimes to prove ancestry for genealogical or inheritance reasons. It is important that anyone coming to search such records should be able to do so with confidence that they are factually accurate because blood descent could be important. I think it is essential that the records of the State be factually accurate on their face. If we were to exclude the fact of adoption from the birth records our records could be impugned and would be unreliable. This is a legal reason, and I am always conscious that putting up a legal reason as an argument for not conceding an emotional request of necessity appears insensitive. However, it is an occupational risk.

Another question that was raised was that of consent—the prevaricating mother or the mother who delays unnecessarily in giving her consent or who withdraws her consent just before the adoption order comes to be made. It is proposed, as I indicated, to deal with this by allowing the adoptive parents to seek a custody order from the High Court. If this order is granted by the High Court the Adoption Board may then make an order for adoption notwithstanding the absence of consent on the part of the mother.

This was criticised by Senator Robinson who asked how on earth could a mother contest such an application—how could she get into the High Court to contest it unless there was legal aid available? I assumed in that that Senator Robinson accepts that the principle is correct but the mechanics have to be looked at. As she knows, the committee to advise me on the institutional system of legal aid are in being and have had their first meeting. I have no doubt that sooner or later we will see a system of legal aid in civil cases in this country and that should remove that difficulty.

Where the question of custody is involved, the High Court is the proper tribunal. Hopefully at some stage we will have, as many people want, a family court where questions of the custody of children, separation and maintenance between husband and wife can be dealt with. When it comes, I think it will have to be a court of superior jurisdiction because these things will be serious legal matters. In the meantime, pending the setting-up of such a court, I have no doubt that the High Court is the proper tribunal. This is the best way to deal with this question of the prevaricating mother. I do not think a committee could deal with the matter because it is a question of custody of a child. This is a serious matter and constitutionally it would have to be done in a court established under the Constitution.

Senator Lenihan raised the question of the period of probation—the period from the time the board or the society placed a child with its adoptive parents until the adoption order is made. There is no statutory period. It is a matter for the board to decide what is proper in the circumstances of each case. As a general rule the board insist on a probationary period of six months. In exceptional cases this may be shortened or lengthened, but generally the probationary period is six months. Experience has shown that this is a reasonable period to wait, a reasonable period to allow the child and the parents to adjust to each other and to enable the social workers to observe the adoption in practice and see if the signs are that it will be successful.

The period can, of course, be shortened. As a result there is provision in this Bill for reducing to six weeks the age at which consent can be given. It could be that the Adoption Board might make a final order for adoption seven weeks after the birth of a child. That would be unusual but it could be done.

Senator Horgan raised the question of the age at which a married couple may adopt. He was anxious to reduce this to 18 years—in other words, to provide that a married couple aged 18 years would be entitled to adopt. I do not think this is practical. While young people are becoming more and more sophisticated and marrying at earlier ages, I do not think it would be right to allow a couple as young as 18 years of age to adopt. I think a couple should be married for a number of years before they could adopt so that the marriage can be seen to be stable. Again, if there are to be natural children they should be born: it would be known to the couple that they were capable of having children and in that light they could make the decision as to whether they wanted to adopt children in addition.

Senator Horgan was anxious about the definition of "child". Under the Adoption Act a child is any person up to the age of 21 years, but Senator Horgan felt this should come down to 18 years. This is not a matter of great importance in the context of adoption but I think we should leave it at 21 years. It is still the age of legal majority and I think it should be the age up to which children can be adopted.

Another point made by a number of Senators was the citizenship of children adopted abroad by Irish citizens. Unfortunately, I think we would have to maintain the position where they have the citizenship that is conferred on them by the laws of the country where they are born and adopted. I do not think we could intervene here to give them a citizenship other than that given to them by the domestic laws of that place. It could be embarrassing for us to attempt to do that and wrong for us to do so. It would be an interference in the domestic affairs of another State. There is no difficulty here because as soon as an application for naturalisation of such a child is made it is granted virtually automatically. Indeed I understand that in the case of children who find themselves in this situation no fee is charged by the Department of Justice for the service.

That covers all the points that were raised in the Bill. I hope I dealt with them adequately, but possibly not to the satisfaction of everyone who made them. At least I have given the arguments against some of the motions also, which is what debate is about. I shall be giving them more consideration between now and the next Stage and I look forward to seeing the amendments which have been indicated. I wish to thank Senators again for their constructive approach to the subject.

Question put and agreed to.
Committee Stage ordered for Wednesday, 17th July, 1974.
Business suspended at 6 p.m. and resumed at 7 p.m.