As Senators are aware, when this matter was originally raised on Second Stage I indicated when I was replying that I was against the point of view advanced by Senator Ryan and Senator Horgan in relation to giving rights to the natural father to be heard by the Adoption Board. I indicated I was moving away from that point of view and asked time for further consideration. On further consideration I am satisfied that for a number of reasons my initial reaction was the correct one.
There has been no problem in this area. There has been no case where a natural father has sought to be heard by the Adoption Board and has been excluded. There is no grievance to be remedied by this amendment. No actual case has arisen and not only is there no widespread grievance but there is no grievance at all. That is the first point.
The second point is that the natural father is not excluded by the 1952 Act. He does not have a right to demand to be heard by the Adoption Board but the board may hear him, if they so decide. My initial reaction was that he should not be put on a par with the mother and allowed a hearing as of right. I felt that the position of the two parties did not permit of an equality of approach. I thought the mother was in a superior position because of the fact of the illegitimacy of the birth and that her superior position should be preserved through the entire area, and that it would be wrong to give the natural father equal rights, because, as I indicated, in many cases he might be an unworthy person and would not, because of that unworthiness, deserve equality of right.
There is a further difficulty. In a situation where a case is pending before the Adoption Board if the father had a right to come in to be heard co-equal with the right of the mother we could have a situation where there could be a conflict of interests between the father and the mother. If we give him an equal status the board would be in a difficult position. The direction and emphasis in the legislation is that the good of the child is the paramount consideration. Nevertheless, the board could be in a difficulty. It could be further complicated by the fact that the person purporting to be the natural father might find this fact being denied by the mother because there would not have been any finding of paternity. But you might find the mother, in order to deny the claim of the natural father, taking the line that there is no proof that he is the natural father and she might deny the paternity alleged. There might be uncertainty of knowledge on the part of both parties. One could, unhappily, visualise such a situation arising. I am sure the Senator would agree that would be a most undesirable situation, where you would have a tug-of-war between the two parties and the mother, in order to try to resolve it, denying the paternity of the person alleging that he is the natural father. This would be most undesirable.
Again, if the man had a right to come and be heard before the Adoption Board, and bearing in mind that a right carries with it a corelative duty, the question arises then that the board might see themselves as being under a duty in all cases to seek out the natural father for the purpose of hearing him before making their decision on an adoption. This is inconsistent with the nature of the case. The mother is the person who has to be considered; the father's status at that stage is ancillary and should not be co-equal with that of the mother.
The legal position of the natural father is such that, apart from an affiliation order proceedings, he has no status in our law. The Nicolaou case confirmed this and this has been the legal position in regard to natural fathers. They do not have any legal status by reason of their paternity and I think it would be introducing a novel legal principle if we were to admit the amendment in the context of this Bill. This question, however, is something that is being examined in the whole context of family law which is under examination at the moment. The Committee on Court Practice and Procedure are looking at family law and, in addition, studies are being undertaken in my Department. The rights and the position and legal status of the natural father can properly be determined in the context of family law generally. An aspect of the matter will come up for debate in due course when Senator Robinson's private Bill, in due course, comes up for debate. It would be better to leave this question of the position of the natural father for a more wide reaching debate rather than to admit new legal principles here in the comparatively narrow and specialised field of adoption. For these reasons I would suggest to the House that the amendments are not desirable. I sympathise with the humanity behind the amendments—the desire to see that justice is done by all parties involved—but for the reasons I have given we might be unwittingly doing an injustice to what I think are the principal parties, the mother and the child, the child, of course, is the principal, the mother is next.
We could import into our law a novel legal principle without having fully considered all the consequences that might flow from it generally, particularly in the adoption world. If these amendments were to be accepted the board might find themselves compelled in all cases to look for the natural father. There could be a tug of war between the natural father and the mother and there could be this very awkward situation where in order to defend her position the mother might deny the paternity of the person alleged to be the father. All this would be undesirable and it would bring the Adoption Board into an area of controversy that, at present, does not exist. It would bring the adoption procedure slightly into danger and it would be an added burden in a sensitive area. I would ask Senators not to press the amendments for these reasons and on the understanding that the principle behind the amendments is in the course of examination.
