Vol. 78 No. 14
Before we proceed to the Committee Stage I might indicate that since amendments 5, 11 and 12 are cognate, it is suggested that they might be debated together, but this is a matter for the House to decide.
Agreed to take amendments Nos. 5, 11 and 12 together.
I move amendment No. 1.
Before section 2 to insert a new section as follows:
"In any matter, application or proceedings before the Board of any court relating to the arrangements for or the making of an adoption order, the Board or the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration."
I am moving this amendment in the very momentary absence of Senator Robinson who has gone to fetch a copy of the Official Report of our last sitting day which contains the winding-up speech of the Minister for Justice. She and other Senators have, perhaps, been slightly discommoded if they were not here on that occasion by not having had copies of the debate until today. I have her authorisation to proceed with the amendment, if that is in order.
This is basically a very simple amendment. It states a principle and while in general the idea of inserting principles into an Act as opposed to fairly detailed legal procedures seems to me to be unnecessary, in a matter as important as adoption, dealing with such sensitive and delicate matters, it is in order to write a principle like this into legislation. The welfare of the child is the first and paramount consideration that should be in an Adoption Bill and I would be interested to hear the views of the Minister for Justice on it.
I apologise for not being here to move the amendment and I thank Senator Horgan for having done so.
This section is modelled on section 3 of the Guardianship of Infants Act, 1964, and it is introduced here for very similar reasons. In legislation of this sort it is necessary that the legislative intent be clear and the legislative intent in the Guardianship of Infants Act made it clear that the welfare of the child must be paramount. That is a good section and it has been interpreted positively by the courts; it has been useful to the courts and it has been referred to in many custody cases. I have been present in court when applications were made for custody and I have heard the judge refer to that section and interpret that it is the welfare of the child that is the most important consideration.
In a sense, in relation to the Guardianship of Infants Act there was a neutral situation, whereas in adoption we have to go from a bias of quite a different sort. One of the main criticisms that has been made down through the years about our adoption legislation is that it has been mother-centred. That phrase is subject to misunderstanding and it could be a hurtful phrase because the way in which it has been used suggests that it is the intention of the Legislature to take away all the rights of the unmarried mother who places her child for adoption.
Perhaps it might help to indicate that I would be prepared to accept this amendment. I agree that the tenor and the whole emphasis of these Acts should be in favour of the child, that they should be child-centred. I have always felt that was the proper approach to them. It was a misunderstanding that caused them to be considered as mother-centred. The legalities involved in adoption procedure have to involve the mother. She is the person who is there on the scene and this has led to these misunderstandings, but the whole emphasis behind all the Acts in the beginning has been in the direction of the child. It is good that it now be spelled out.
I would like to thank the Minister for accepting this amendment. I agree with him that the paramount consideration ought to be the welfare of the child. The criticism that legislation is mother-centred has resulted from a very real underlying problem which related to the consent procedure. The climate of opinion at the time of the introduction of the Adoption Act, 1952, and the way in which it was debated at that time did not proclaim in the way we are now prepared to proclaim in a clause such as this that the welfare of the child is the paramount consideration. A similar phrase has been useful to the courts in the Guardianship of Infants Act. I welcome the fact that the Minister has accepted the amendment.
Section 2 of the Bill proposes that the consent of the child's mother or guardian or any person having charge or control over the child, should not be necessary in the making of an adoption order where custody of the child has been awarded to any person by the High Court. Section 14 (3) of the Principal Act provides that the consent of a ward of court shall not be dispensed with except with the sanction of the court. This is in respect of those cases where consent, under the law as it stands, may be dispensed with where the person whose consent would otherwise be necessary is of unsound mind or cannot be found. The proposal in the Bill is that even in cases where the High Court has awarded custody of the child to the prospective adopters the consent of a ward of court may not be dispensed with, save by leave of the court. If the person whose consent was necessary was other than a ward of court then the consent could be dispensed with without the leave of the court but if that person is a ward of court the consent is still necessary. This is a drafting amendment and it is put down for the purpose of clarification. I am advised that the section as it stands may not enable adoptive parents to have access to the High Court. It was drafted originally on the assumption that this right would be implicit in the provisions of the section but I am advised that that is not necessarily so and the amendment is to cure that possible defect. The amendment makes it clear that they have this right of access.
Custody of a child is never awarded indefinitely. Consequently it is necessary to provide in the section that if the board wish to make an adoption order without being obliged to have the consent of the mother they must do so within the time specified by the court in the custody order. Therefore, the purpose of this amendment is to clarify the position in the case of a mother who unduly delays giving her consent or withdraws her consent and leaves the matter hanging indefinitely. It is to clarify the right of the adoptive parents to go to the court and to confirm that they have in fact this right of access to the High Court and to provide that the custody order must be for a definite period.
I have one question to ask the Minister in relation to the second subsection of the new section 2, paragraph (a) where the High Court may give custody of the child to the applicant for such period as the court may determine. What sort of situation does he envisage where such an order is made for a determinate period—what happens to the child at the end of that determinate period?
If at the end of that period the adoption order is not made, which would be a most unlikely event, the whole point of the court procedure is to enable the adoptive parents to get this order, armed with which they can go to the Adoption Board. So I do not think there would be many cases where the adoption order would not be made and the child left in Limbo, so to speak. The informal custody would continue in such cases and the child would be liable to be taken by the mother who had refused or failed to give her consent up to that point.
I welcome the amendment. It is an improvement of the original section 2 as drafted. One of the problems that might have arisen in relation to section 2 as drafted was, in my view, where we permit in section 6 a final consent to be made by the single mother after six weeks rather than six months as has hitherto been the rule.
I should like some clarification of section 2 (1) (b). If the single mother should withdraw her consent before the adoption order has been finalised is the Minister satisfied she would be protected? It is a very short period in which to give her final consent. When the six weeks have elapsed, I take it if she wishes to withdraw her consent, the adoptive parents would apply to the court for custody under this procedure. It seems to me to be a situation in which the single mother would not be adequately aware of her rights or her position. Perhaps the Minister would care to comment.
It would be a matter for the court. The rights of the child would have to be of paramount importance. It would be up to the court to decide whether to make an order for custody. It would seem to be most unlikely, in the situation suggested by the Senator, that the court would make an order for custody, if the mother, after such a short period, wanted to withdraw her consent. What we want to deal with is the long unreasonable periods of delay in giving consent and also where an unreasonable length of time occurs between withdrawal of consent and action taken by the mother to take back her baby. In the situation described by the Senator I think the court would not have any choice but to refuse an application for custody.
I would like to thank the Minister for that clarification. It may not be a satisfactory procedure for single mothers to have to defend custody proceedings in the High Court. I am not sure if the situation can be met through legislation, but it could be helped by having a system of free legal aid. We are creating a position in which the single mother would not be either alerted or able to make her views known to the court in these proceedings unless she were assisted more than we appear to be assisting her in this particular section.
If there is a question of legal aid I hope legal aid will be available and overcome any difficulties there may be in that regard. The obligation on the mother of having to go to court to defend her position is unavoidable once we decide the court is the tribunal that is to be used to decide the custody of the child. This is unavoidable. It is a handicap implicit in the right of any citizen to have the court's litigation to solve his or her dispute with a neighbour. That is what the courts are for. It is an inherent part of our system, one that we cannot change but we can ease it by providing legal aid.
The situation which this section is meant to cure is one in which the mother will not be available to take part in the proceedings. In a case where the mother has failed or refused to sign a consent, and her whereabouts are unknown, the court proceedings will take place in default of an appearance by the mother but the court will have to satisfy itself that proper efforts were made to ascertain her whereabouts and to serve notice of the proceedings. If the mother is available, and her address is known, she will be served with notice of the proceedings and will have the option, like any citizen of appearing. I do not think we can go further than that.
There is just one matter; it flows from what Senator Robinson has said. I am totally in favour of the Minister's amendment. I think it improves the section. There is one matter I raised on Second Stage about which I feel very strongly and in relation to which I agreed to an amendment in this House on the Succession Bill. Disputes involving family relationships should be heard in chambers or in committee. This leads on to something the Minister referred to in his Second Stage speech— some kind of family court to deal with this whole area of family relationships, be it in the adoption area, succession area or the matrimonial area. I do not think that this whole area of dispute is one for open court procedures. I should like to hear the Minister comment on that. I believe much of what Senator Robinson has just said in regard to the mother in that situation would be met if we had a more easy, informal type of court procedure rather than the conflict system of open litigation, which is ideal in matters not so subjective or personalised as this area is.
I sympathise with Senator Lenihan's point; much of the litigation that arises from family disputes should be heard in chambers. I think the High Court will have an overriding right to decide that these applications may be held in chambers without any need for us to give them that power specifically in this section. I shall check on that. If I find that such power would have to be given specifically I will consider the position between now and the next Stage. I shall also have it considered from the point of view of its general desirability. I can see the absolute desirability of it in a case of desertion, maintenance proceedings, or separation proceedings where intimate matters relating to an existing marriage will be discussed and where children could be affected by the publicity. It might not necessarily be as vital in a situation such as this, but I mention it as another point of view that would have to be considered between now and the next Stages. It would arise from the case Senator Robinson has made of the need to inform the parties and to make sure that the mother is represented and present in court. We want to avoid any suggestion that the adoptive parents, because they may be stronger financially and psychologically, would have an advantage by reason of proceedings in private. I do not think they would but it is just another point of view. I will certainly have a look at it between now and Report Stage.
Acceptance of this amendment involves the deletion of section 2.
SECTION 3.
I have two points to make. I would like the Minister to tell us if he is satisfied that this very necessary change in the law will meet the needs of married couples of mixed religion in the matter of adoption. The huge majority of adoptions are made by adoption societies with fairly rigid denominational affiliations. I have been looking at the list in the last report of the Adoption Board. There are only three registered adoption societies who do not have a specific religious denotation. They are the Dairdeas Adoption Society, which only arranged five adoptions last year; the National Maternity Hospital Adoption Society which arranged two adoptions last year and the Rotunda Girls Aid Society which arranged 45 adoptions last year. Apart from those three—I suspect the Rotunda Girls Aid Society may be to some extent Protestant oriented—there are only the adoptions which are arranged by the health authorities or those arranged by third parties; these came to a total of 100.
We are, in this Bill, trying to dispose of third party adoption completely. We have a situation in which it is very unlikely, for very strong conscientious reasons, that any of these religiously affiliated adoption societies will want to place a child belonging to their denomination with parents of mixed religions or, indeed, with parents of no particular religion at all. I am just wondering whether the Minister has had any indication from societies like this that they are prepared to treat married couples of mixed religions or of no religion if you like, as fairly and squarely married couples of their own particular denomination. Otherwise, the only access people in this position have to children for adoption is through the health board or, perhaps, through one or two of these other very very small societies which do not appear to do a great deal of adoption work at all. I am just wondering about that and, in my Second Stage speech, I asked for information, which I now find in the report of the Adoption Board, about the extent to which adoptions are arranged through religious agencies and the extent to which they are arranged through non-religious agencies. It seems to me that the figures in this report would point to the advisability of extending local authority adoption services through the health boards or, perhaps, in some other way. I am not quite sure how this could be arranged. It seems to me, if something is not done, we could find ourselves in a situation in which it is legally possible for people in this situation to adopt children but, de facto, they will find many doors are closed in their faces.
The only other point I want to make on this section is a very minor drafting point. It relates to the second line where we read the phrase "the child and his parents, or, if the child is illegitimate, his mother...". To my mind, this phrase "the child and his parents" in a context in which it is contrasted with illegitimacy, gives the very distinct impression of the child with married parents, a legally born child with married parents living, which, I am quite sure, is not the Minister's intention. I am just wondering whether, for the purpose of clarification, he might consider on Report Stage bringing in an amendment to meet what I think is the situation he is covering here, the situation of a child who is an orphan. There could certainly be the situation in which the child of a mixed marriage was an orphan and that might create problems. It seems to me that, if what you mean in this phrase "the child and his parents" is that the child is an orphan, then this should be clearly written into the section.
I would like to ask the Minister two questions. First, if, when mothers are placing their children for adoption, they have any objection to placing their child in a mixed marriage and, secondly, do they specify the religion they wish that child to be brought up in?
In reply to Senator Ahern's query, the question would only be put to the mother if, in the case of the proposed adoptive parents, they were of different religions from the mother or if either one of them was of a different religion from that of the mother. It is provided in the section that, if they are not both of the same religion, then the mother must be informed of this and it is in that context that the question of information would arise.
Senator Horgan's point is in ease not of children but of adoptive parents because it is well known that there are more adoptive parents than there are children for adoption. To suggest making a case here for adoptive parents of mixed religions—I sympathise with their predicament—is not in any way in ease of the child. No child is being deprived of adoption because the parents proposing to adopt are of differing religions. I do not know what the practice in adoption societies is with regard to whether they prefer a mixed marriage to people of the one religion, but I am sure it is a factor that is taken into account and, if societies are oriented to the churches, as they are, I have no doubt that that fact is taken into account. Of course, it is incidental. The important thing is the suitability of the parents as adoptive parents. This is the main consideration of adoption societies. There is no way that I know, of ensuring, so to speak, that a certain proportion of children are made available to people of mixed marriages. People of mixed marriages will just have to hope, like any other parents applying for a child, that they will be able to get a child to be adopted by them.
As I say, the emphasis in this legislation is in favour of the child and, if we were to attempt to do anything in this section to meet the point put forward by Senator Horgan, we would be departing from that principle. One must naturally sympathise with parents in a mixed marriage; they will, undoubtedly, have more difficulty, because of the religious affiliation of societies, in getting children for adoption. The recent High Court case showed the demand for such adoptions. As far as the children are concerned that law, as it stands, is in their interest and does not in any way prejudice any child from being placed for adoption.
Would the Minister deal with the drafting question I raised?
I am sorry. There was a High Court decision. The 1964 Act provides that a child who is legitimated, that is an illegitimate child who has been legitimated but whose birth has not been registered in the name of the natural father can be adopted.
I would like just to take up the Minister on that particular point; I think it was a High Court decision rather than a Supreme Court decision.
I think it was High Court the Minister said actually.
Was it? In any case, it is to do with the adoptive parents being of different religions. Without necessarily losing our faith, I hope we will soon be able to move away from categorising people by their religious faith or their differing religious faiths. I was given an illustration of this recently by the sort of problem experienced by a very distinguished father working in Nigeria—an Irishman married to an Irish girl of a different religion who wishes to have his children educated in an Irish school. He filled in the application forms and, when the school saw the forms, they rejected the children because the religious denomination of the children was put down as "Christian". The father would not specify further because he wished to bring them up as Christians and he was not prepared to specify whether they were Protestants, Catholics or what-have-you. If you look at the religious base for these divisions, the father was in the right, but the school, which happened to be a Protestant school, rejected the children and said they could not accept them unless they were put down either as Protestant, with the Protestant domination specified, or Roman Catholic. In that case they would be prepared to consider the application but "Christians" were out. I hope we can move towards the day when "Christians" will be in and denominations will be out.
I am not so sure that the problems are solved by the decision of the High Court, because I think that perfectly good adoptive parents of differing religions will find it extremely difficult to adopt children, not because they are not legally suitable or because they are not sociologically suitable but just because our adoption societies are all attached to one or other Church. I know that there are other methods of adopting where one does not necessarily have to go through a society but I believe the great majority of adoptions are carried out through adoption societies. I think that the problem will still arise because of our complex about denominations. I hope that the day will soon come when we talk about people being Christians, when that will be the category in which we are interested and not whether someone is a Roman Catholic or a Presbyterian.
The Minister indicated in his last part of the speech that the obstacles had been removed. He gave me the impression that there had already been a successful adoption as a result of the High Court decision. Maybe I am putting words into his mouth, but does he know?
I do not know. I was referring to the case in question.
The case in question! Just because they have brought the action and the case has been adjudicated in their favour does not mean they will be able to go ahead and adopt. People have been to see me recently about this and said that the adoption societies were not interested. Could the Minister for Justice say something about the procedure for people who do not go through adoption societies? There is a perfectly legal channel for people who do not go through adoption societies.
First of all, might I say that we cannot, in legislation, provide that a certain percentage of children must be made available to people of differing religions. This cannot be provided for in legislation. Even if we did make the provision in legislation, it could not be enforced because who has the right to say to a mother that her child should not be placed with parents of differing religions, and that the child should be placed in a home where both parents are of the same religion as herself? The mother has this right and she must continue to have this right. It would be futile for us to say that a certain number of children must be available for people of differing religions. There is nothing we can do legislatively. We can indicate that we would like to see people of differing religions being able to adopt children
Adoption in this country happens, by and large, to be organised around the Churches. It is a fair assumption that the Churches will ensure that children will be placed with parents who both belong to their particular denomination. Not all societies are attached to the Churches. The health boards are successors to the public assistance authorities. They are adoption societies. They can place children and the same considerations will possibly not apply there. That might be the most hopeful area for a couple of a mixed marriage. We certainly cannot cure the position in legislation.
Could the Minister give even a rough indication of the number of children who have been placed through health boards?
81 last year out of total of 1,400.
So at least there are children being adopted through these boards.
The point I really wanted to make—the Minister has, in a way, agreed with me on it—is that we cannot write into legislation a section which says that "X" number of children have to be reserved for a certain type of married couple. In answer to my first point he said, effectively, that he accepts, when it comes to adoption, that mixed marriage couples are less favourably off than couples of the same religion. I think I am right in interpreting the Minister as regretting the situation which arises, partly because of the large numbers of religiously related adoption societies and partly because of the surplus of would-be adopters over children available for adoption. I would appeal to him to use whatever influence he has with the health boards to extend their services because it seems to me that this is, as he said, virtually the only way in which these people would have a chance of adopting a child.
Senator Ahern asked what questions were asked by the registered adoption societies and the Minister said he did not know. Very few of us know very much about adoption societies. That includes the Minister too. There is a particular difficulty here because the Minister is not the Minister responsible. I would have been glad for some information about the procedures adopted by the health authorities with specific relevance to this question of adoption by people of mixed religions or no religion. While we accept the section I think it is important to get this on the record. The situation is still not the way we would really like it to be when it comes to an adopted child in a mixed marriage situation. We find it impossible to do anything about this in legislation and we express our regret that it should be so.
This amendment is designed to introduce a new principle into adoption in that it permits a widower to adopt in certain limited circumstances. It provides for the adoption of a child by a widower where an application for an adoption order had been made by a man and his wife but the order had not actually been made at the time of the wife's death. One can see that as a tragic situation. A child has been placed with a couple and the wife dies; the child, under the law as it stands, would have to be removed from that household, notwithstanding that there might already be an adopted child in that household. This could cause considerable personal tragedy to the child already in the household and to the widower. The proviso here is that there should be another child in his custody, either a natural child or an adopted child.
The section does not propose any further restriction on the discretion of the board, though the board no doubt, will have to approach any such application with great caution having regard to the interests of the child. There are strong arguments against allowing a widower to adopt. The section provides that the widower must again apply for an order in the sense that the order previously applied for by himself and his wife has fallen and, if he wants to retain the child, he must apply again. The mother, or any other person, whose consent to the adoption is required must then know that the applicant is a widower. It is designed to deal with a very narrow type of possibility but I think it is a desirable amendment. I do know of one specific case of hardship that it will ease.
This is the case of a couple who have made an application but the adoption order has not been made and the wife dies. What happens in the reverse case if the husband dies?
Under the law as it stands a widow can adopt.
A widow can adopt. Does she have to have a child before she can adopt?
No.
I would like to support this amendment but I wonder whether it is, in fact, too restrictive. I note in section 11 of the Principal Act that among the categories of those who may adopt at present it is provided "If the applicant is a widow." I can see certain circumstances where it would not be desirable to allow an application made by a widower to succeed, but surely the proper course would be to leave discretion to the board in the circumstances to look at the position? I wonder whether in writing in the type of restrictions which are in this amendment we are going to create possible hardship because the widower concerned does not fit into exactly this sort of relationship. For example, they might not have made a formal application before the wife died even though they intended to. I would welcome the simple extension of the category of those who may adopt to include widowers. I would prefer to leave it to the discretion of the board whether they would consent to making an adoption order in the circumstances.
I would prefer to start from a narrow base and in the light of experience, perhaps, widen it rather than to give a total discretion in this area. That is not to say that I do not have the greatest confidence in the board—I do—but it is well-settled adoption practice that in general, widowers should not adopt children. Normally the single man is not as domesticated as a woman. He might not be capable of providing the necessary care that a small baby would require. There is the other difficulty that if the child in question is a female, one has to bear in mind that there might not be such a tremendous age gap between the widower and the child and that could result in problems in later years. One has to bear in mind that they would not be blood relations and there could be a difficult situation in that particular household.
It is an area where there are difficulties of that type which do not arise in the case of adoption by a widow. For these reasons we have to approach it very circumspectly indeed. I would prefer to leave the section as it is and see how it operates in practice and see if there is a demand for widening it. It may be justified at a later date to widen it. It is not my belief, as I said on Second Stage that the law on this subject is immutable or that it should have to wait a decade before being amended. If there is a need for amendment at an earlier date this can be proposed to the Oireachtas.
On subsection (3), is it intended to allow any sort of hearsay evidence as proof of what the body is doing? I ask this merely for the purpose of clarification since there was not an explanatory memorandum.
May I have the Senator's question again?
I am looking for clarification of section 4 (3).
I do not think there is any danger of hearsay, if that is what the Senator is worried about. That is repeated from the Principal Act. It has been there since 1952. We are adopting the procedure, instead of writing in the bits that we want to write in, of repeating the section for ease of reading. There is no change in that. It is a 1952 provision. It is to obviate difficulties in some cases.
This is the section of the Bill which seems to be the doing away with third party placements. This was something that I had intended to refer to on Second Stage but I failed to do so. However, that gap was more than adequately filled by Senator Alexis FitzGerald who asked the Minister whether he was really satisfied that such a thing was necessary. The number of third party placements last year according to the Adoption Board Report was 21. I myself have no evidence that any of these adoptions were carried out with any greater degree of risk to the welfare of the child than adoptions carried out in any other way. For that reason I am not basically in favour of the section.
Another reason I am not in favour of the section is because I think—again coming back to the discussion we had on the earlier section—third party placements are at the moment, but will cease to be after the passing of this Bill if it includes this section, one of the few ways by which couples of mixed religion or of none will possibly have access to children capable of being adopted other than through registered adoption societies which are related to religious denominations. There seems to be a certain anomaly in the fact that while third party placement is to disappear, direct placement by the mother herself is to remain. It has been argued very forcibly to me by somebody with very widespread experience in the work of adoption that it can be dangerous and perhaps a threat to the welfare of the child if the natural mother of the child is personally aware of the identities of the adoptive parents.
I would think that if you were to set the two things against each other— third party placement and direct placement by the mother—it could be argued very strongly that the degree of risk involved in third party placement is much less than the degree of risk involved in direct placement by the mother with people whose identity she actually knows. This section, to my mind, should if anything be the other way round to ensure that the actual identity of the adoptive parents is not known by the natural mother of the child and to allow third party placement to go on in the very small way that it has been going on up to now. Is the Minister in possession of any actual evidence about the risks or failures of third party adoptions which lead him to introduce this section of the Bill or did he simply introduce it because he was asked to do so by the registered adoption societies?
In regard to the point made by Senator Horgan we would have no need at all to have adoption boards if people can be freelancing. I know that all those people who take adoption seriously are completely against this freelancing in adoption.
I think Senator Ahern has a point when she says that it would be freelancing and it would. It is well accepted and is basic to adoption that there be full investigation at pre-placement and post-placement stages. Indeed, there is an amendment in Senator Robinson's name which is directed to try to ensure this. The emphasis all the time is on improving the standards being applied by the adoption societies in their work in the placement of children. It would be contrary to this and would cut right across the basic principles of adoption if one were to permit private placements, because they imply no scientific or professional research into the suitability of the new home or the compatibility of that new home with the child in question. It is not something that I am introducing because I have been asked to do so by the adoption societies; I am introducing it because this has been one of the demands for change by all adoption workers in their criticism of the old Acts. This demand on the part of adoption workers to prohibit private placements is because potentially they are very dangerous.
I do not want to quarrel too much with the Minister but is he not being inconsistent here? He is talking about the need for a most rigorous investigation of the circumstances of the adoptive parents in order to ensure the welfare of the child. Yet this section has a subsection which entitles the mother to place a child for adoption other than through an adoption society. Who is to say that the mother, especially if she is in a state of considerable anxiety and tension, perhaps even distress, is capable of carrying out the kind of detailed investigation into the background of the adoptive parents and into all the other matters which the adoption societies and indeed the Minister consider to be relevant? It would appear to me to be consistent that we should legislate to say that no child should be given for adoption other than through some statutory agency. We have already agreed to an amendment stating that the whole purpose of adoption is child-centred. Subsection (4), it would seem to me, could work—I am not saying it always will or, perhaps, very often will but it certainly could work in favour, in a very legalistic sense, of maternal rights and against, in a very human sense, the welfare of a child. I am asking the Minister if he would not accept that he is being inconsistent, if he is stressing the need for standards and excluding one person, because she is the mother of the child, from the whole inquiry into standards?
Senator Horgan hardly seriously expects us to say that the mother of the child cannot place the child where she wants to.
I have a technical point to make relating to this section. The Principal Act is being amended by the substitution for section 4 of a section set out here. Subsection (1) says that it shall not be lawful for any body of persons to make or to attempt to make any arrangements for the adoption of a child and so on. Subsection (2) states that if any person takes any part in the management or control of a body of persons he shall be guilty of an offence and so on. Then in subsection (3) it is provided that in any proceedings under subsection (1) of this section, proof of things done or words written, spoken or published by any person taking part in the management or control of a body of persons and so on shall be admissible as evidence of the purpose for which that body exists. I should like to ask the Minister why only subsection (1) is referred to in the first line of subsection (3) and not subsections (1) and (2) because the reference in subsection (3) is almost entirely to words already existing in subsection (2). I should have thought that the correct version would be subsections (1) and (2). Why is subsection (2) omitted there?
I do not see any reason offhand but I will look at it before the next Stage.
I should like to support this section, which amends the parent Act, for the reasons given by the Minister because I think it is necessary to exclude the third party placement under which it would be impossible to provide for the same standards and the same control. I just want a clarification of the wording of subsection (4) where there is provision for the exception which I would favour: that the single mother may place the child in adoption herself, or if the person who intends to adopt the child is a relative or the spouse is a relative of the child. I note that the wording is that if the first-mentioned person, that is the person placing the child, "is a parent..." and I wonder whether this includes the natural father?
Yes, I believe that it does.
On the point raised by Senator Yeats is it not the position that subsection (1) here sets out what particular circumstances shall be unlawful whereas subsection (2) simply states that a particular activity shall be an offence and sets out the penalties which the offence may attract? It would seem to me that proceedings which are visualised under subsection (3) would, in fact, relate to proceedings under subsection (1). I do not know whether that is the whole answer or not but offhand that seems to me to be the situation.
I am a bit dubious about that proposition because I think that many activities could be counted as taking part in the management or control of a body. You could just be a girl keeping the minutes, for example. You might never see a child let alone actually take part in trying to get one adopted and yet you would be caught under subsection (2) and liable to prosecution. As subsection (3) stands in such proceedings simply because you are in some indirect way involved in the management or control, the words spoken and so on would not be captured, if one can use that word, under subsection (3).
Sorry, before Senator Horgan proceeds I should like to clarify a point. I misled Senator Robinson unwittingly. The definition apparently does not include the natural father of an illegitimate child. In that context it would be mother or parent of a legitimated child.
The point I made might be met if it is the case that the Adoption Board in effect have the final say over adoptions and that if the mother of a child proposes directly to place the child herself for adoption in circumstances in which the Adoption Board are satisfied, such a placement would not be in the interests of the welfare of the child, they may refuse to make the order.
That is so. I should have made that clear, that the placement by a mother requires the same procedure by the Adoption Board as placement by a society.
On section 5, as I understand it the proposal under the section is to create the position of deputy chairman who may take the chair in the absence of the chairman, and that such deputy chairman would have to have the same qualifications as would make him eligible for being chairman. In other words, as provided in section 8 of the Principal Act, he would have to be either a judge of the Supreme Court, the High Court, the Circuit Court or a justice of the District Court or a barrister or solicitor of at least ten years standing. As I understand section 5 this would mean that two of the six members of the board would have this legal qualification. Although I do not have any particular objection to that it would be opportune to look at the qualifications of the other members of the board in the light of the functions of the Adoption Board, and to assess the extent to which an attempt is being made to ensure that the board is representative of the medical and social interest and dimension of adoption. Would the Minister comment on the criteria which he would have in mind for general appointments to the Adoption Board apart from the specific appointment with which we are concerned here, of a deputy chairman? It does not necessarily arise under this section but it would be a welcome change in policy if in appointing people to the Adoption Board the Minister would look for a broader range of expertise and knowledge.
I would also welcome an indication from the Minister as to what extent he would be prepared to consult outside interests in making appointments to the Adoption Board? I considered the possibility of putting down an amendment in relation to the appointments to the Adoption Board but it is rather difficult to frame in legislation the type of criteria which I feel ought to operate in making appointments. It would also be desirable to exclude the possibility of somebody being appointed for a third term to the Adoption Board. A term lasts five years which, if renewed, means that a person would be on the adoption board for ten years. There are several reasons why it would be desirable to have a turnover of personnel after that period.
My first point is that it would now appear that out of the six appointees, wo will have to have a legal qualification, either as judge of the Supreme Court, the High Court or a district justice, or a barrister or a solicitor of a certain seniority; that leaves four other members of the Adoption Board, and the question is whether the Minister will look for other particular expertise among them? It is extremely important in considering the dimension of adoption that there be a knowledge of child psychiatry. There is also the necessity for an awareness of the problems of adaptation by adoptive parents and the very real social issues which arise in relation to the decision as to whether the adoptive home is the best place for the child in the circumstances?
First regarding the point that two out of the seven are legal people, this arises from the principle which was adopted when originally framing the Act. It is a good principle because it recognises that the decisions are quasi-judicial and that the chairman of the board should have some legal experience to enable him to implement that principle and observe the judicial standards in the proceedings of the Adoption Board and the making of adoption orders. At the moment, two out of the seven are people with legal qualifications. The chairman is a district justice and the person who has been acting as deputy chairman is a retired district justice.
The reason for this amendment was to solve the difficulty that when the chairman was not available, a Government order appointing a deputy chairman had to be made every time. Sometimes if the chairman were taken ill suddenly, there might not be a Government meeting and the board might not be able to sit. This actually happened. I want to obviate this by appointing a deputy chairman who is there all the time and available to act. It is a good principle that these two people should have legal qualifications and legal experience—not so much the qualifications as the legal experience, either in a judicial capacity or in a capacity of practice, where they had practice and at the Bar where they observed judicial procedure in operation.
On the general question of qualification of members of the Adoption Board I would be inclined to disagree with the Senator that the members should represent specific disciplines in the field of child care. The knowledge they could provide should be available to the board in the general report on each case and from the experts which the board employ in the assessment of the case. Professional assessments should come that way to the board. If the board were to be representative of particular disciplines there could be certain vested interests—I do not say that in any pejorative sense—developing in the board and there could be a conflict between the professional opinion of a member of the board and the professional opinion of the officer of the board who had investigated a particular case. That would not be desirable. The work of the board indicates to me that they have the qualifications I would like to see—a lot of common sense, a wide experience of life and an ability to assess what comes before them and make a sound, common sense judgment on each case. I am satisfied that this is the type of board we have at present and this is the type of board we should aim for in this Bill.
On the point made by the Senator I think it would be fair to say that it is something that could be alleged in respect of any court in the land that justice could be better done if the court constantly sat with professional assessors. It is only in a very rare case that this happens. The procedure is that the professional evidence is presented to a person of broad general experience with the intellectual capacity to assimilate it and assess it. This is the type of person we look for to serve on the Adoption Board and we have been fortunate in having this type of person to sit on that board.
The nature of the work of the Adoption Board, in the sense that it sits several times per week, can be called on to go at short notice to a venue other than Dublin, and that six of the members are part-time, limits its availability. They have to be people who are retired or semi-retired or of independent means. Nevertheless, within that category we have been fortunate to get people who are dedicated and are able to give the type of service I have indicated and who have the necessary qualifications. I do not think there is a need to have them representative of the particular disciplines of child-care, sociology and so on: that could lead to an undesirable situation. What we have at the moment is the best position.
I would like to thank the Minister for his reply on this point. There is just one further question I would like to ask. Mention was made of the concept of "vested interests"; does the Minister consider that it is desirable to have nominees of adoption societies on the Adoption Board, given the board has possible disciplinary functions in relation to adoption societies?
I suppose it could lead to a conflict of interests but happily it never has because while there may sometimes be nomination, the convention and the tradition of independent operation by the board are so strong and so well accepted that this prevents any conflict. It is a risk but I think it is desirable to take it.
I move amendment No. 4.
Before section 6 to insert a new section as follows:
"Notwithstanding anything contained in subsection (3) of section 11 of the Principal Act an adoption order may be made on the application of the mother or the natural father if the applicant has attained the age of eighteen years."
I am not altogether sure this amendment means what I want it to mean but that is nobody's fault but my own. Perhaps I could explain what I would like it to convey and get the Minister's views on the matter.
Basically it is an attempt to amend section 11 of the original Act the third section of which deals mainly with age. I believe that section 3 (a) was already amended in 1964 to reduce the age for adoptions by married couples from 30 years to 21 years. My amendment is intended to enable married couples of under 21 legally to adopt a child in cases in which either the husband or the wife is the natural father or natural mother of the child. I do not propose— and I am afraid my amendment may— that there should be a blanket right to adopt children for married couples between 18 and 21.
In the case of natural parents of an illegitimate child who marry, the problem does not exist because it is covered by the legitimation legislation so that if the natural parents of a child subsequently marry the child then becomes legitimised. I am concerned about the situation in which a young girl has an illegitimate child and dies subsequently. This would be rather unusual but in such circumstances the illegitimate child could be brought up by the natural father of the child. However, if the father should marry at, say, 18 years of age, it is possible that he and his wife would wish to adopt the child but it would seem to me that they would have to wait until both were 21 until they, as a married couple, could adopt a child. The same would apply in the case of the natural mother of a child marrying somebody who was not the child's father while they were both under 21. I am suggesting that this wait is undesirable because of the uncertainty with which it would invest the whole situation and, also, because of the ways in which it might prejudice some of the rights of the child, in particular the property rights. For example, the mother of an illegitimate child aged 18 might adopt that child in her own right, and subsequently marry somebody who was not the father of the child, but if between the age of 18 and 21 the mother dies, the child would be worse off from the point of view of property rights than he would have been if he had been a fully adopted child of both parents.
I want my amendment to deal with a situation in which a marriage has taken place between a parent of a child and somebody who is not the parent of a child, while both parties are under 21. They should not have to wait for three years in order to adopt the child as their child, and not just a child of one of them.
I would like to support Senator Horgan's general argument. I have not looked at the section of the Principal Act to which he refers so I am not sure what the total effect exactly is. There is a strong case for arguing as he has done for allowing a couple to adopt at 18 in a situation in which one party is the natural parent of a child.
I would imagine that the parents of illegitimate children are usually quite young but I do not know if there are any figures available to support this. I wonder if it would be better if when one of the parents of an illegitimate child marries, the couple should be allowed adopt under 21 years. We would want to consider this argument carefully.
The position is that if the mother marries and is under 21 and her husband is 21 then they are allowed adopt. In the infrequent case of the father wanting to adopt his illegitimate child, both spouses have to be at least 21. There is an inconsistency there against the father. I have no strong views on it but I think the present proviso is reasonable. The legal age of majority is 21 with the exception of voting, in respect of which the majority age was reduced from 21 to 18. If one were to say that couples should be allowed adopt at 18 it would be logical to go on and say that they could adopt at 15 and 16 years; even 15-year-olds have illegitimate babies so that the same difficulties could arise there. I do not know if there would be difficulties in succession rights in the event of the death taking place in the three-year gap Senator Horgan adverted to because that would raise the question of what property rights the 18-year-old father would have. If it was substantial property it is unlikely that he would have succeeded to it in his own right prior to attaining majority. There are a lot of considerations which would arise in changing the age from 21 to 18. The present position where the mother can adopt under the age of 21 when she marries someone who is over 21 meets the vast majority of cases. The odd case where the father subsequently marries and is under 21 and wants to adopt his own child is so rare as not to justify changing what has been a satisfactory situation, and which has given rise to no difficulty whatever in practice. I do not think we should change it.
I do not intend to press my amendment in the form in which it appears now. I would point out that we have to accept assurances such as that given by the Minister that there is no difficulty in practice without any real evidence that this should be the case. The fact that it is not legally possible to adopt a child until the age of 21 is reached in most cases means that no applications are made in respect of any adoptive parents in the 18-21 age group. We do not know if there is a need; we do not know if we are discriminating against people or if we are creating uncertainty for people which could be resolved in the small number of cases that would arise. We get very little information in the Adoption Board's report about the nature of applications which would help us to make up our minds on this. There may be a need but it may be concealed by the fact that because of the existing legislation, people are dissuaded from doing anything about it.
Personally I have had no representations on the matter from anybody. It just struck me as a possible unfairness which we might remedy at this stage. I would like now to withdraw the amendment and reserve my right to put one down at Report Stage if having considered what the Minister said about the actual situation on the ground, I still believe there is a need for change.
Amendments 5, 11 and 12 relate to the same matter and it is suggested that they be debated together.
I move amendment No. 5.
Before section 7 to insert a new section as follows:
"Section 16 of the Principal Act is hereby amended by the insertion before ‘(c)' in subsection (1) of ‘(bb) the natural father of the child'."
I mentioned this matter on Second Stage. Indeed, I was not the only person to mention it on Second Stage. The Minister referred to it in his summing up speech at column 960 of the Official Report of 9th July, 1974. If I might quote what he said on that occasion and relate it to my amendment and, indeed, the amendment which Senator Ryan and I share, it could be argued that what the Minister said on that occasion does not meet the amendment which we now have down. The Minister said:
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 purpose of our amendment is to give the natural father some existence and status in the adoption law. I would stress and could not stress strongly enough that it does not go anywhere near giving the natural father identical rights to that of the mother as the Minister seemed to imply. All we are asking is that the board should consult the natural father if it is possible for them to do so before making an adoption order—as the Minister pointed out on Second Stage, they are not in the least precluded from consulting him—but it is very important that consultation should, at some stage, be written in, not just in terms of the rights of the father, although I think these could, perhaps, be important in a small number of cases, but in terms of (a) the knowledge the father might have about the mother which might be relevant to the making of an adoption order and (b) the knowledge the board might gain from an interview with the father about the child of that union which would again help them in the making of an adoption order. I am not going so far as to say that the Adoption Board, by looking at the natural father of any child, could conclude that he was not right in the head and that the child was likely to be mentally deficient. I would think it unlikely that the Adoption Board in their attempt to get the whole picture concerning a child would be successful without seeing the father. My desire to put this in stems from two points of view— partly, but only partly, in view of the rights of the father and partly also in view of the whole principle of the adoption order we are talking about, that is, the welfare of the child. It seems to me that the welfare of the child is best served by ensuring that the Adoption Board are not allowed to exclude a person who may be extremely relevant to their decision in relation to an adoption order.
Again, I would stress that we are not, in this amendment, giving the father the same rights as the mother. There are a whole area of rights that the mother of an illegitimate child has that nobody else has and that I would be very slow to transfer, as of right, to the natural father. We are making a very small recognition of the existence of and of the rights of the natural father and are urging the advisability of consulting the natural father for reasons related solely to the welfare of the child.
I agree. The amendment proposed here is the very minimum right which the natural father should have in this situation. When I was speaking on Second Stage I referred to section 14 and said that I might put down an amendment to the section as well to say that in certain circumstances not only the consent of the mother would be necessary before an adoption order was made but also that the consent of the natural father should be necessary. That is probably going a little too far and from the practical point of view would lead to a great many difficulties. It definitely seems to me that the very minimum right the natural father should have is that he should be heard if he wants to be heard. There are a long list of people who may be heard by the board and it seems to me indefensible not to hear the father if he wants to be heard.
It seems to be a rather Victorian attitude that accepts that the natural father is a person having no merits, a person who normally does not even admit to being the father of the child and, who, apparently never has any interest in the welfare of the child and consequently does not merit even having his point of view heard. The Minister said in his reply that of course the board could hear the father under the subsection, the paragraph which says: "any other person whom the board, in its discretion, decides to hear". The section starts by saying: "the following persons and no other persons shall be entitled to be heard on an application for an adoption order". That not merely sets out people who may be heard but says: "and no other person" and that, I think, has been interpreted by the board and is likely to be interpreted by the board as being an extremely restrictive and severe limitation of the people who may be heard. In the case which I gave to back up my views during the Second Stage debate the father wished to be heard but the board in their discretion refused point blankly to hear him so that one cannot rely on the board to decide that their discretion should be exercised to hear a father. I think this is the very minimum right that should be given to a father. He is, admittedly, an unusual person in wanting to be heard, in wanting to give his view, in wanting to take an interest in the future of the child, but if he is the kind of person who goes to the extent of applying to be heard, one must assume that he has something of importance to say and, after all, if he has nothing of importance to say and if his views are not of any merit the board have no obligation other than taking up what he has to say and to ignore it if they do not feel that it is worthy of consideration.
I can see that all the arguments are in favour of a natural father being heard. I find it difficult to understand an argument that he should not at least be heard and consequently I think that nothing would be lost, and possibly quite a lot would be gained, now and again, in cases where a father would have strong views and important and useful views to put to the board. As the three amendments are being taken together I am merely referring to amendments Nos. 11 and 12 which are, not exactly, consequential amendments but they make an effort to take the father out of the category which the Act has put him into of being a person who has no merits and should not be given any consideration in adoption matters. Section 3 of the original Act says that the parent does not include the natural father of an illegitimate child. My purpose in amendment No. 11 is to remove that provision. The definition in section 3 again says that:
"relative" means grandparent, brother, sister, uncle or aunt, whether of the whole blood, or of the half-blood or by affinity, relationship to an illegitimate child being traced through the mother only.
My purpose is to remove that last sentence so that relationship to the child would be traced through both parents. However, that is merely to remove the stigma on natural fathers which is characteristic of the original Act.
We know from sad experience that 99.9 per cent of the fathers do not want to be ever known or heard of.
I am thinking of the 1 per cent.
This is the reality of the situation. No complaint has ever been made to me or to my predecessors that where the natural father sought audience with the board he was refused it. It is not a question of refusing the natural father the right to be heard in this case, it is a question of whether we give a positive right to the exclusion at the board's discretion.
During the course of my Second Stage speech when I was dealing with this point, I expressed the opinion that it would be wrong to equate the mother and the father in this situation, that the mother would have to be given preference and precedence and that this would have to be statutorily recognised. This is not to say that the natural father is to be excluded; it is to say that his admission into the arena of the proceedings is to be controlled and left to the discretion of the board. Esseniitally, that is a fair statement of what I think is the equity of the position. It may sound slightly Victorian but it is supported by the Supreme Court in the Nicolaou case where they talk about the rights of the natural father. An extract from that judgment said that it had not been shown to the satisfaction of the court that the father of an illegitimate child had any natural right as distinct from legal rights to either the custody or society of that child and that the court had not been satisfied that any such right had ever been recognised as part of the natural law. If an illegitimate child had a natural right to look to his father for support that would impose a duty on the father but would not, of itself, confer any right upon the father. So there is no natural right according to the judicial lead that we have in this area and we are entitled to look to the courts for indication of what the law is in this and in other areas too.
Hear, hear.
In this area the Supreme Court has indicated that the father of an illegitimate child has no natural right. He may be given a legal duty by the law which imposes a legal right on the illegitimate child to look to him but there is no finding of a natural right as between the two of them.
The view I expressed on Second Stage and which I have repeated here today is the correct view. Having heard the arguments from Senators Horgan and Ryan I cannot see any adverse consequences to accepting the three amendments with the possible exception of the last of the three-amendment No. 12—which would extend the private placement arrangements to include the natural father: he would now be able to place a child privately for adoption. Again, as Senator Ahern realistically points out 99.9 per cent of the fathers do not want to know anything further about the case at all. I cannot imagine many cases where there would be one who admits his paternity and at the same time wishes to place the baby for adoption. There may be consequential effects and I would like to think about the problem a little more and perhaps if the Senators agreed we could take it again on Report Stage in order to debate it. I would like to tease out the whole consequences of the three amendments. The existing law is adequate and just but the Senators are keen on these amendments and we must not allow the debate to be obstinate or blind.
I thought when we put down this amendment that it was as minimal as anything that one could hope for but I have not consulted Senator Ryan on the variation of it which I would certainly be prepared to put down on Report Stage which might meet all the situations fairly clearly and that is that any natural father who desires audience of the board shall not be refused audience by the board, or words to that effect. The Minister said that he knows of no situation which when the natural father sought audience with the board that audience was refused. It might not be a bad thing to write this even more minimal thing in that where the 0.1 per cent did seek audience with the board prior to the making of an adoption order, that there should be a statutory responsibility on the board to admit the right of that person.
I think as drafted the amendment expresses that point of view.
In that case I propose that we withdraw the amendment.
I move amendment No. 6:
To add to the section a new subsection as follows:
"(3) Where the Board declines to make an adoption order it shall ensure that the child is returned by the applicants to the person or body which placed the child for adoption."
This amendment is proposed to cover the situation where the board decline for good reason to make an adoption order. The problem is that we do not have any detailed research on what happens in those circumstances, but my information is that what can happen—and what has happened—is that where the board decline for whatever reasons, to make a final adoption order so that the conclusion is that the particular home is not suitable for the child very often the child remains on in the surroundings despite the fact that no final adoption order has been made.
Looking at the reports of the Adoption Board for the year ending 31st December, 1973, it is clear that more applications are received than adoption orders made. This has been so since the first year adoption orders were made in 1953. Of course this can be explained on several grounds, one being that there is no guarantee that an application will be processed within the same year. There is often this problem in examining statistics. On the breakdown of figures for the year 1973 it is stated in the report at page 3:
The following statistical summary covers the year 1973:
(1) Number of meetings held... 94.
(2) Number of applications for Adoption Orders submitted to the Board...1,501.
(3) Number of Adoption Orders made...1,402.
Almost 100 fewer orders made as against applications.
(4) Number of applications for Adoption Orders withdrawn or not proceeded with...17.
(5) Number of applications for Adoption Orders rejected...10.
What we are concerned about here is where the Adoption Board reject the application and do not make the order. My information is that there is a danger. It has happened that the child remains on in the particular home with the applicants who have been rejected as adoptive parents. This is not a deliberate policy but rather an unfortunate consequence. It happens in default of any responsibility placed on any one at present to take any steps in these circumstances. As the present adoption procedure operates there is no duty on the board to take positive steps in the circumstances. The single mother who placed the child for adoption may no longer be in the country or she may not be contactable. She may be in a position to take steps to recover custody of her child or she may not want to. What this amendment would try to do is to place a responsibility on the board so that, where the board decline to make an adoption order, they shall ensure that the child is returned by the applicant to the person or body that placed the child for adoption.
There may be some criticism of the precise wording of this as to whether or not it would be workable. There ought to be a responsibility on the board to take some steps to see that the child is not, in fact, left in those particular surroundings but is returned to the applicant or to the person or body who placed the child for adoption.
I wonder whether this amendment does not go too far. In general, I agree with what Senator Robinson is saying. There may be cases where the board are not quite convinced that the situation is ideal for adoption but might have at the back of ther minds that a further application in a short time might be acceptable. The board might feel there were certain circumstances not just right at that time but these circumstances might change in such a way as to make an adoption order later applicable or acceptable. To say that the board shall ensure that the child is returned by the applicant in all circumstances where they decline to make an order could be going too far in certain circumstances. If the wording of the amendment were altered to say that the board would have power, if they thought fit, to ensure that the child was returned to the person or body who placed the child for adoption there would be a great deal to be said for this amendment. I would not however, make it an absolute duty in all cases where the board declined to make an adoption order that the child must be returned to the person or body who placed the child for adoption.
I think, with respect to the Senators, this amendment implies a misunderstanding of the nature of adoption. As I indicated when I was speaking on Second Stage, adoption in this country is a voluntary arrangement which is legalised by the Adoption Board. The parties come together and place the child for adoption. It is a voluntary arrangement between them. The Adoption Board then make a legal order which legalises that particular act. It changes the legal relationship of the child to the other parties. The board have no function with regard to the question of custody. This is an extraneous legal question which has nothing to do with the adoption process. If this amendment were to be accepted it would inevitably involve the board in disputes as to custody. The determination of who should have custody was never a matter for the Adoption Board. Their role is much narrower than that.
That is not to say the position is not catered for in law; it is catered for because the law gives a direction to the board as to what to do in such a case. Where the board refuse to make an adoption order in the case of an illegitimate child—99.99 per cent of children coming before the board are in that category—the board are obliged under section 10 of the Adoption Act of 1964 to notify the health board within 14 days of the date of their refusal of the fact that they have refused to make an order. The health board then, under section 2 of the Children's Act of 1908, as amended by section 4 of the Children's Act 1934, may have the home visited to satisfy themselves that the child is being properly maintained. Section 5 of the Children's Act, 1908, as amended by section 7 of the Children's Act, 1934, provides that the health board can take steps to remove infants in certain circumstances. There is a legal procedure to be followed by the board which ensures that the health authority intervene to see that the child's welfare is attended to.
This is as far as the board can go because it would be undesirable for the board to become involved in questions of custody since, sooner or later, this would lead to litigation and the board then could possibly be put in an un-favourable light vis-á-vis the natural mother and the whole field of adoption could be affected. While I sympathise with the sentiment, the wish and the motives behind the amendment, I do think that the present position is satisfactory. To attempt to change it, as the amendment suggests, would be to disimprove it.
As I say, we suffer from the handicap of not having sufficiently detailed research to show the extent to which the case that I was making could be a problem. Certainly it has been brought to my attention that there have been cases where children have been left in undesirable surroundings with applicants who have been refused an adoption order and have therefore been rejected by the board as suitable adoptive parents. Although the Minister has pointed to the duty on the board to notify the health authority, I think it would be legitimate to go further and to place some responsibility on the board, but not—I would agree with the Minister here—to become involved in the question of the custody of the child in the far-reaching sense in which he was saying it. I would say that it would be legitimate, nevertheless, to place a responsibility, even if it is only the responsibility of drawing the attention of the original persons who placed the child for adoption, to the situation so that they could then take positive steps, be it the single mother or the adoption society which placed the child for adoption.
I move amendment No. 7:
Before section 9 to insert a new section as follows:
"Section 10 of the Principal Act is hereby amended by the deletion of paragraph (c)."
This amendment proposes to delete paragraph (c) of section 10 of the Principal Act of 1952. Paragraph (c) provides that an adoption order may not be made in relation to a child unless that child is illegitimate or an orphan. This amendment tries to meet what I think was the major concern of various Senators, and particularly Senator Alexis FitzGerald, who spoke on the Second Reading of the Bill. I regret that he is not here at the moment.
I do not want to interrupt the Senator, but, to shorten the debate, the advice I have consistently got in regard to this is as I indicated; there is a constitutional difficulty. But, because of the way the matter was pressed here and in the Dáil, I have initiated a detailed study of this and one can say, without prejudice, the preliminary indications are that that advice can be looked at again and, in the light of that, I will, if the advice so permits, bring before the Oireachtas legislation to deal with this problem. The matter is at a fairly preliminary stage of study and, if I am advised that it is constitutionally posible, even to the extent of having to have the matter adjudicated on by the Supreme Court, I intend doing that.
I thank the Minister for having given this indication of the steps he has already taken in this matter. I have an unhappy memory of having withdrawn an entire Bill in favour of a Government promise that was a long time coming, but I nevertheless unhesitatingly—
The promise was kept. It exceeded the date of advice by ten days or a fortnight.
This was prior to Christmas 1972. I am referring to an Adoption Bill. We are getting our lines crossed. As I have said, despite the unhappy experience of having waited two Christmases—plus another few months—for the promised Government Adoption Bill, I unhesitatingly withdraw the amendment in the light of the Minister's undertaking that the matter is being looked into very seriously with a view to introducing amending legislation. I belong to the camp that believes it is possible to bring in a measure which will stand up to constitutional scrutiny. As I said on Second Reading, we have an obligation to extend adoption to children who have been abandoned, or possibly assaulted, and then totally neglected or abandoned from birth by their parents. I welcome the Minister's assurance and I appreciate his flexibility in being prepared, if necessary, to submit the Bill to the Supreme Court on the issue of its constitutionality.
I should like to add my voice to that of Senator Robinson in thanking the Minister. He has given us a very open assurance. The only question I would like to ask, apart from the question of legislation, which often has to take its place in the queue, is has the Minister any indication at this stage how long it will take before the review he spoke of will be completed?
In the near future. I think the legislation, consequent on that review, to deal with this problem could be very early in the next session.
I move amendment No. 8:
Before section 10 to insert a new section as follows:
"Section 25 of the Principal Act is hereby amended by the insertion of ‘or wife' after ‘husband'."
I referred to this on the Second Stage debate and there was, I think, a misunderstanding between the Minister and myself as to whether or not the situation has actually been changed by the 1964 Act in the way in which I wanted it to be changed. I did not have a copy of the 1964 Act in front of me at the time but, on looking at the 1964 Act, I find that the change was not made and the purpose of my amendment is to make a change now to ensure the equality of the sexes in this matter. It is a very simple and straightforward amendment.
Section 25 of the Principal Act provides that, following an adoption order being made where the adoption is by a married couple and the husband is an Irish citizen, the child, if not already an Irish citizen, shall be an Irish citizen. That section was repealed by section 11 of the Irish Nationality and Citizenship Act 1956 which provides:
Upon an adoption order being made, under the Adoption Act, 1952... in a case in which the adopter or, where the adoption is by a married couple, either spouse is an Irish citizen, the adopted child, if not already an Irish citizen, shall be an Irish citizen.
That is section 11 of the Irish Nationality and Citizenship Act 1956. In other words, the amendment sought by the Senator has been law since then.
The misunderstanding is cleared up now. When the Minister said that this change had been made, I assumed, although it was not stated by him, that it had been made in the Adoption (Amendment) Act. I went to the wrong Act to look for it and, of course, I withdraw the amendment.
I move amendment No. 9:
Before section 10 to insert a new section as follows:
"Section 39 of the Principal Act is hereby amended by the insertion of ‘or public assistance authority' after ‘registered adoption society' in subsection (1), and after ‘the society' in subsection (1) and in subsection (2)'."
This amendment would extend the provisions of section 39 to cover what is, in rather strange terminology, public assistance authorities. The Minister explained in connection with an earlier amendment that these are now the health boards in their capacity as bodies concerned in adoption. I would be happy to change the terminology to ‘health boards" rather than "public assistance authorities". I think it is desirable that the controls and the provisions in section 39 should extend to health boards. It may very well be that it is the practice of health boards to give similar information to the single mother. When we are bringing in an amending Bill and trying to create a rounded legislative framework we ought, as a Legislature, to require all bodies concerned with adoption, particularly as we have excluded third party placements, to comply with the same standards. Section 39 of the 1952 Act provides that an explanation must be given to the mother or guardian of the child to be placed in adoption as to the effect of adoption. It provides that:
"Where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption under this Act the society shall, before accepting the child—."
There, I would like to include the health boards, or whatever they may be called
—and require them, before accepting the child—
(a) furnish that person with a statement in writing in the prescribed form explaining clearly—
(i) the effect of an adoption order upon the rights of a mother or guardian, and
(ii) the provisions of this Act relating to consent for the making of the adoption order; and
(b) ensure that the person understands the statement and that he signs a document to that effect.
(2) In the case of failure to comply with any of the requirements under subsection (1) of the society—
and here I would insert the public assistance authority, meaning the health board—
every person who takes part in the management or control and every person concerned in the acceptance of the child on behalf of the society shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds.
This would be a way of bringing health boards within the framework of control in the same way as adoption societies by requiring them under statute to provide this information and explanation to the single mother or other person placing the child with them for adoption.
I am not inclined to agree with the Senator. There is, of course, already provision under subsection (3) of section 15 of the Principal Act which provides that the board must satisfy itself that every person whose consent is necessary has given consent and understands the nature and effect of the consent and of the adoption order. There is a protection there if you like, an overriding or backstop protection, to ensure that what the Senator is apprehensive about will not arise. The position of the health board is not on all-fours with the normal adoption society because, when they come into the adoption field, they do not come initially as placement societies in the same sense as adoption societies. They normally come in where there has been a boarded out child, a child at fosterage, and it is only subsequently that the question of adoption may arise. I think the Senator can take it that the health authorities are very conscious of their obligations in this regard. It would not be desirable to include them in the provisions of section 39 for the reason I have stated. Protection is already there by virtue of section 15 (3).
I do not quite follow the reason given as to why, if section 15 (3) is the way in which the board ensure that the person has given a valid consent, the Minister will not accept this amendment. The amendment places the responsibility where it ought to be placed, namely, on any body concerned with a child for the purpose of having it adopted. While I accept the Minister's statement that health boards very often come into the adoption procedure in a different way from placement agencies, I am not so sure that this may necessarily continue to be so to the same extent when third party placements have been excluded. I am not sure that it is always the case. I would prefer to have what I regard as a better guarantee that the health boards do comply with the same statutory requirement as is placed on adoption societies. They also come into the net under section 15 (3). The health boards should have a statutory obligation to provide the necessary information and explanation to the single mother or person placing the child in adoption and subsequently that the board would still ensure that a valid and informed consent was given.
I would prefer, if we could do it by way of this amendment, to include health boards in the provisions of section 39 and place them under the same obligation as adoption societies. I do not quite follow the Minister's reasoning that it would not be appropriate or necessary to include health boards in this. I would be prepared to accept that in practice they carry out a somewhat similar exercise in furnishing the person who places the child in adoption with a statement to the effect "that, et cetera” and I would prefer to see this guaranteed through legislation by placing an obligation on them to do that.
Section 39 provides:
Where a mother or guardian proposes to place a child at the disposal of a registered adoption society for adoption, the society shall before accepting the child...
The point I am making is that in most cases where the health board come into the picture the child is already with them and possibly has been under their care for a good few years, possibly in fosterage. We might get a situation where the health authority might appear to be in breach of the Act, because adoption is not directly the purpose of the placement as in the case of a society, but is usually as a consequence of a child being at fosterage, at care or boarded out. The amendment would impose the obligation of giving the information before accepting the child. At what stage is the child accepted? Is it when the parents decide to look for adoption or when the child is first placed in a foster home? There is a real practical difficulty here. For that reason, I do not think it is desirable to include health boards within section 39.
I move amendment No. 10:
Before section 11 to insert a new section as follows:
"Section 36 of the Principal Act is hereby amended by the addition of a new subsection as follows:
‘(4) The Board shall draw up regulations for the proper administration of registered adoption societies. In particular, these regulations shall lay down minimum standards concerning the placing of children by such societies with prospective adopters, the supervision of such placements and related matters.'"
This amendment would confer on the board a statutory duty to make regulations for the proper control of registered adoption societies. These regulations would deal with minimum standards relating to the placing of children by such societies with respect to adopters, particularly the supervision of pre- and post-placements. I emphasised this point on the Second Stage and put forward various arguments why I consider it necessary to have this statutory power to make regulations. I pointed to the situation in Northern Ireland, where very detailed statutory regulations imposing standards have been brought in. Furthermore, I referred to a number of case histories to show the lack of overall standards and a lack of what I would regard as a minimum basic standard in relation to all adoption societies.
In his reply to the Second Stage debate on this Bill, the Minister referred to these case histories. At column 953, volume 78 of the Official Report he said:
I have no way of knowing how old these case histories were.
I can assure him that they were within the last five years. I have not given specific dates and neither have I named the parties involved because I believe they have a right to privacy, a right not to be identified with the possibility of having their situation speculated about.
These were recent examples that have come to my attention through those involved in adoption, of bad problems, of a lack of proper preplacement supervision and proper assessment of the adoptive parents and a proper scrutiny of the machinery of adoption. Continuing in the same column the Minister says:
I am well satisfied from 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.
I would much prefer to see statutory regulations rather than a hidden threat by the Minister to withdraw grants from adoption societies. It would be very hard for the Members of this House to know in what way the Minister was exercising his power and whether the adoption societies were fulfilling their important and responsible functions. I do not like the thought of the Minister operating in this way because it is less satisfactory than having the Adoption Board as the body which lay down the standards to be observed through exercising statutory power to make regulations and then enforcing these regulations by having the ultimate sanction of being able to withdraw the registration of an adoption society.
I went into some detail on Second Reading and put on the record of the House particular case histories which illustrated the problems which have arisen in our adoption procedure. I cannot share the Minister's complacency when he says there are "uniformly high standards" operating in these adoption societies.
If we needed any further proof that all is not as well as it might be in relation to the way in which adoption societies work in the field I shall refer to the Darling Report—I do not want to be thought to imply that there are no good adoption societies, but the standard is not uniform. We have not created the proper statutory mechanism to ensure the existence of minimum standards which all adoption societies must observe. Fortunately we have the benefit of some limited research on this aspect from the private report on adoption in Ireland brought out by Miss Vivienne Darling, a survey to which the Minister referred in his reply. I accept his statement that as private research it is necessarily narrow in its scope, but it does illustrate one thing extraordinarily clearly: it illustrates that standards in adoption practice are not uniform.
I think that in fairness we should read what Miss Darling herself says——
Yes, I accept that, but even given the possible criticism of the scope of the research and the time span over which the report operated, there is ample evidence that the standards between the adoption societies are not, in fact, uniform. In some ways they fall below what one would regard as a minimum standard in relation to the placement and supervision of the prospective adopters to see whether they are suitable themselves to be adoptive parents and also to examine the environment into which they wish to bring the child. I am not convinced that the present position is satisfactory nor do I accept that the demand to have this statutory power exercised by the adoption board is coming from a small fringe group. It was one of the recommendations made by the adoption board itself in 1970; and it was the first recommendation put forward by the joint committee of Women's Societies who claim to represent 70,000 women. It is high on the list of proposals of anybody to whom I have spoken who is deeply involved in and concerned about adoption procedure in this country.
I would like to refer to certain parts of Miss Darling's report to illustrate the point I am making, that adoption standards are not uniform and are not adequate throughout the country and then I shall refer to the conclusions made by Miss Darling in this area. On page 12 of the report under the heading of "Adoption Societies" she refers to the different ways in which they operate and she says:
In Ireland, the adoption societies can be classified as follows:
(1) those which, in addition to adoption arrangements, provide a complete casework service for unmarried mothers;
(2) those which only deal with mothers in connection with the adoption arrangements after the decision to place for adoption has been taken. These in some instances will provide nursery care for the babies pending placement;
(3) those which are never involved in care for the mother. These will receive the applications on behalf of the mothers from other agencies but have no direct contact;
(4) those which provide partial but not total care for the mother, for instance, mother and baby homes which look after the mothers while resident, place the babies with adopters, but are not necessarily responsible for aftercare once the mothers have left the homes;
(5) local authorities which have registered as adoption societies and arrange adoptions as part of a total child care service.
Then, having shown the different ways in which adoption societies may operate she looks at the question of staffing and here I think the Minister would say that this will be improved by the provision of grants, by giving money to adoption societies to recruit staff, but it is worth looking at page 15 of the report under the heading "Qualifications of Staff". It says:
Eight societies between them employ four full-time and seven part-time professionally-trained social workers (i.e. these have taken postgraduate courses in social work). Nine societies, including five of those who employ professionally qualified workers, employ one or more full-time or part-time basic grade social workers (those who have a degree or diploma in Social Science). Four societies have no trained social worker at all and these were responsible for 13% of adoptions arranged by registered societies in 1970.
Again, I accept that this is a situation which may be improving but more critically on this point of the need for statutory regulations creating standards, is the reference to Case Committees at page 17 of this report where it states:
In two of the 16 societies which returned the questionnaire the responsibility for making placement rests with an individual rather than a committee. Where there are case committees these usually consisted of three or more persons including the social workers concerned.
Then she says:
Other members are drawn from the following, chaplains, doctors, nurses, children's officers, priests, housewives, lawyers, paediatricians, teachers, marriage counsellors, matrons of mothers and baby homes, health board officials. Depending on the number of cases, the committees meet weekly, fortnightly, monthly, bi-monthly.
There is no uniform practice of having case committees. There is no guarantee that these case committees will consist of the sort of expertise that is thought to be desirable. These are the sort of provisions that could be required as a minimum standard by giving the Adoption Board the power and the duty to make statutory regulations to that effect. Until there are statutory regulations required for case committees I do not believe that you would have uniform standards and adoption societies will not bring in what is regarded on all sides as the necessary provision of a case committee.
On the Second Stage I referred to the chapter of the report on the counselling service to adopters, the help they get in coming to a decision to adopt. On page 20 of the report it states:
It transpired that 48.3% of all adopters had received advice, many from more than one source but 49% had received no advice.
Is this a uniformly high standard in relation to adoption, if 49 per cent of those interviewed did not receive any detailed advice on it?
Forty-nine per cent of those interviewed?
Yes; we have already agreed that this sample is a private survey and that it is limited. In the absence of what we ought to have—a comprehensive Government survey— we must go by the limited evidence that we have. I cannot accept that the Minister can state blandly on the record of the House that we have a uniformly high standard if even a small sample can show that over 50 per cent were not receiving proper guidance in this matter. This is the theme throughout this report. On page 24, in relation to selection procedures, the procedure about office interviews differs very much in the adoption societies and— most serious of all—varies dramatically in various parts of the country. We do not have a uniform standard either in relation to pre-placement and post-placement supervision as such or in relation to rural areas. In some parts of the country I believe the adoption procedure is substantially inferior to other parts. On page 26 of the report, under the heading "Pre-placement. Visits to Homes" it states:
It was disturbing to note that 21.7% of my samples alleged that there had been no home visit prior to placement, the percentage varying from 11.8% in Dublin to 28% in Cork. This is hard to understand in the light of the claim made by all adoption societies that at least one and possibly two home visits are made in each case.
There, I accept what the Minister contends, that you cannot enforce standards by regulation but I believe that you can create them by giving the statutory power to make regulations and if the board have that statutory function it makes it more likely that standards once set out in statutory regulations will be enforced because there is always the possibility of making the type of complaint which can lead ultimately to having the registered adoption society de-registered or struck off the list. I maintain that almost every aspect of adoption procedure, as illustrated by this report, shows the need for the creation of better standards.
On page 34 of the report it states:
There is a wide divergence in the waiting time (i.e. that between the first application and placement) cited by various couples. Some in my sample (46.9%) were offered a baby within 3 months of application and placement was for some of these was in fact made in less than a week.
I am not suggesting there should be uniform time but that adoption as a legal extension of our social service, of our family law, does not operate equally around the country. A married couple in the west who want to adopt are at a serious disadvantage compared with the couple living in either Dublin or Cork. There ought to be more of an attempt to have a balance in the way adoption societies work.
With regard to placement and notice that a baby is available, arrangements for receiving the baby et cetera, the adoption societies practice varies very much. Over half the adoptive parents got between two and seven days notice that a baby was available; 15.4 per cent received under 24 hours notice; 7.7 per cent between 24 and 48 hours. There has been no real attempt at uniform standards setting out the proper period of notice in order that the adoptive parents may make the appropriate arrangements to receive the baby, presumably on probation to see whether they are suitable parents for the child.
I come now to the conclusions. On page 48 of the report it states:
Although this study has been on a limited scale I feel there are enough indications to suggest that the standard of adoption practice in some agencies leaves much to be desired in certain respects, viz.
(1) Counselling services for applicant adopters seems to be rather limited at all stages of the process before the decision is taken, in preparation for adoptive parenthood and in post-placement supervision.
(2) The assessment procedure leading to selection in too many instances does not appear to be more than superficial.
(3) In some cases there is little to suggest that much thought has been given to the actual placement and indeed it sometimes appears as if there is a most casual approach to the arrangement for handing over of the baby to his parents.
(4) The best possible use is not being made of the present six month probationary and supervisory period. It seems as if supervision is often regarded merely as an opportunity for checking nothing is amiss and social workers do not see it as their role to use this period in the more positive way of helping the adopters to integrate the baby into their family.
Miss Darling makes a number of suggestions which "might contribute to improving the rather poor quality adoption practice I have observed." She goes on:
(1) There is a shortage of adequately trained staff...
(2) In many cases adoption work is only a secondary function of some other organisation, e.g. local authority adoption societies...
(3) There is a lack of appreciation by adoption workers of the need for improved adoption practice and an apparent disregard in many cases for modern theories in adoption work...
(4) An Bord Uchtala seems to adopt negative attitude to any suggestions for improvement in the standard of practice. The Board contents itself with the actual making of adoption orders...
Then she goes on to quote from the previous debate in this House. Her final conclusion is one which we have heard on Second Reading and one which I supported before now. She says:
I would recommend in conclusion that a full scale government enquiry into the adoption of children such as those carried out by the Hurst and Houghton Committees in Britain in 1954 and 1972 respectively, should be undertaken in this country before we congratulate ourselves any further on our supposedly satisfactory adoption system.
I have quoted at some length from this report because it is the only scientific survey that we have. It admits its own limitations, but it supplies evidence to support this amendment because it shows that adoption is not carried out in a uniformly satisfactory manner. I am not convinced that "uniformly high standards" operate in relation to all the existing registered adoption societies. I am sure that the board could, by drawing up statutory regulations, imposing these standards improve substantially the pre-placement and post-placement supervision of adoption societies. Furthermore, I find it difficult to understand why the board apparently do not wish to have this power partirularly as in 1970 the recommendations of the Adoption Board then were strongly in favour of the board having this statutory power. It was because the Department at that time were not willing to accept the recommendations of the Adoption Board that certain members of the Adoption Board resigned. This seems to show that there has not always been unanimity throughout among the members of the board as to whether it would be desirable or not to have the statutory power to make regulations.
Therefore, I urge the Minister to have an open mind on this question and to reflect on what has been said, on the evidence that is there: both the case histories and the recommendations of this private report—to see whether the case has been made for giving the board full statutory power to make regulations governing adoption societies. It seems extraordinary that there could be any possible doubt about the pre-placement and post-placement supervision in relation to any of the adoption societies. It seems incredible that we do not take this basic measure to ensure the creation and maintenance of standards in adoption.
What we all want to do is ensure proper standards. The proper standards depend on the personal efficiency of the people in the field. This cannot be prescribed by statutory regulation. That is the nub of the question. Normally, a duty to make regulations is imposed on a body which has failed to make them voluntarily. That is not the case with the Adoption Board. They have made regulations for the conduct by adoption societies of their work. To suggest legislatively that they should do what they have already done is, I think, pointless.
Senator Robinson indicated that they could apply the ultimate sanction as to withdrawal of registration. This sanction is already available and can be applied in any case where the societies fail to conform to the regulations which have been made by the board. Miss Darling's research is very valuable because—I indicated this in my Second Reading speech—it is the first research that has been done in that area. I have deprecated the lack of research in this field and congratulated her on her initiative.
She, herself, takes pains to indicate that her sample is narrow, that she failed to get co-operation from the people she sought co-operation from, and that some of her conclusions may be distorted by reason of the narrow sample and this lack of co-operation. It was not possible, therefore, for her to impose the controls which are so necessary to have a valid scientific study and research. I am not saying this in a spirit of carping criticism: I am merely repeating what Miss Darling said herself in regard to her own study. Nevertheless, it shows things that would be disturbing and I would like anyone who had information of malpractice by any society to draw the attention of the board to it, so that the threat of the sanction could be invoked to rectify the situation.
I do not think there can be any gain by imposing an obligation to make statutory regulations when the obligation is already being discharged voluntarily. The sanctions that could be given by the statutory regulations are already there. I sympathise with Senator Robinson's desire to see standards raised. We all share that desire. The raising of standards will not depend on whether the regulations are made on foot of a statutory provision or whether they are made voluntarily. They will come from the observance of these regulations and from the personal efficiency of the workers in this field. The regulations are there, the sanction is there to enforce them and I am providing money to raise the expertise of the workers in this field and presumably thereby also the efficiency of these workers.
The power to cancel the registration of adoption societies is obviously a very serious move, and the Adoption Board, presumably, would be slow to do this because it would mean that the particular adoption society could no longer function as such. Reading the statutory provision which governs this, section 37 of the parent Act, the Adoption Act of 1952, I am not satisfied that the Adoption Board could exercise that power at present in relation to their non-statutory regulations, the so-called "guidelines". Section 37 as it stands at the moment provides:
The Board may cancel the registration of a registered adoption society on any ground which will require or entitle the Board to refuse an application for the registration of the society or if it appears to the Board that the requirements of this Act are not being adequately complied with by the society or if an offence under this Act is committed by the society or by any person acting on its behalf.
It does not say that the board could cancel the registration of an adoption society for its failure to comply with the guidelines and I do not think that you can apply that in this way. For failure to comply with the Act, yes and for an offence under the Act and on any ground which will require or entitle the board to refuse an application. What I would say is that I do not think the board would see that they have clear power for breach of the guidelines, for failure to meet recommended standards at present, to decide that would be the ground for tampering with the registration of an adoption society.
I refer the Senator to subsection (2) paragraph (b).
I fail to see the relevance of the reference. Subsection (2) (b) to which the Minister refers says that the board shall not register any body of persons unless the board is satisfied that the body is competent to discharge the obligations imposed upon registered adoption societies under this Act but there is no statutory authority for the board's guidelines and the board, as a statutory body, must operate within the limits of the Act.
What I see as the basic difference between accepting an amendment such as that proposed is that this would create the possibility that the board could cancel registration for failure to meet the standard provided for in such statutory regulations and that this would be a proper ground for cancelling registration. I do not find it surprising that no adoption society has had its registration cancelled. This, in any case, would be a regrettable step and I am not suggesting for a moment that there is any adoption society which ought to be de-registered but I would say that the Adoption Board, has no existing authority to cancel the registration of any society even if it utterly ignores the present guidelines.
When is it proposed to take the next Stage?
If the House would agree, it would suit best if the Report Stage could be taken tomorrow. Otherwise, it cannot be taken until next week and in those circumstances may not get back to the Dáil before the summer recess. The Minister would not be available before 12.30 p.m. tomorrow. If the House would agree, I suggest that we might order the Report Stage for tomorrow and on the Order of Business we will suggest that it not be taken before 12.30 p.m.
I have no objection to the time. The only thing that occurs to me is that the Minister has said that he would like to look at the ramifications of certain amendments which I put down. Provided he has time to look at these I have no objection to the time the Report Stage will be taken.
