Adoption Bill, 1976: Second Stage (Resumed).

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

Mrs. Robinson

Last night I was trying to place the recent Supreme Court case on adoption in its proper context. It was a case which shocked and outraged the public, and understandably so, but it was not an isolated or a freak case. It could have arisen at any time down the years since 1952 because we have not ensured that our adoption code reflects essential basic principles. The first principle which I examined is that the welfare of the child must be the paramount consideration. This necessarily involves removing any legal disability or disadvantage to a child and therefore abolishing the concept of illegitimacy. If the welfare of the child is paramount, then no child should start life in Ireland with legal disadvantages, the social stigma and with all the problems of being illegitimate in our society. If the welfare of the child is paramount, then these must be abolished, as has been advocated by Bishop Casey, by the Council of Bishops, by people involved in seeking change, the Charter for Children which I quoted and, obviously, Cherish, the association of single mothers.

The second principle is that the choice open to the single mother whether to place the child in adoption or to keep it herself must be a real one. To exercise a genuine choice the single mother needs adequate and objective counselling during her pregnancy and she needs help to cope with the whole combination of social and economic problems she faces. At present Irish society does not provide these types of services, in-depth counselling and adequate back-up services, if the single mother decides to keep her child. I made the point last night that it is very important that Irish society affirm strongly the right of a mother to keep her child, if she wishes to, and encourage and support her in that choice. This has been one of the imbalances in the operation of adoption, that Irish society has not genuinely made this affirmation. Proof of this is illustrated by a brief report in The Irish Times of 21st May, 1976, about a mother who adopted her own son. A single mother had put a notice in the newspaper announcing that she had adopted her own son. Obviously the mother in question is perfectly entitled to do this. But it is a reflection on our society that a mother feels the necessity, in some artificial way, to affirm and reinforce her relationship with her child. Of course what that single mother was doing was trying to get over the disabilities her child would suffer. It is a very sad reflection on our society that there would be even one single mother feeling the necessity to adopt her own child. That really does identify one weakness in our present approach.

Therefore the first principle is the fact that the welfare of the child must be of paramount consideration. The second principle is that adoption must be based on a real choice as a result of adequate counselling, adequate knowledge of the services that will be available if she decides not to place her child in adoption. The third principle, which I had just begun to examine last night, is that adoption law, procedure and practice should operate equally with high standards and strict control for adoption societies: this includes the class of children who became available for adoption and the way in which the practice operates throughout the country. The first step here would be that the categories of children to be adopted should be broadened. They should be broadened to include those who have been seriously maltreated or abandoned by their parents who are married parents. This is not the first time that I have raised this subject in this House, nor am I the only Senator. In the debate on the Government Bill on 9th July, 1974 this matter was raised, first by me and then by Senator Alexis FitzGerald in much greater detail.

At that time the Minister seemed to be of the view that there might be some constitutional impediment although he expressed interest and indeed I think he in the end seemed to be persuaded by the need to broaden the category of children. He gave at least indirect indication of an intention to examine the position and bring in a subsequent Bill to deal with the position. For example, at columns 958-9 of Seanad Official Report of 9th June, 1976, the Minister said:

I have listened closely to the arguments put forward. I sympathise with the argument which asks what kind of a Constitution do we have if it gives rights which prevents justice being done to those children. This is an argument which is difficult to resist. One answer would possibly be to seek an interpretation from the Supreme Court on the Bill suitably amended to cover this point before it becomes law. I will give this matter consideration. There will be a question of delay but as Senator FitzGerald stated that might be overcome by a separate Bill dealing with this point. I foresee a serious drafting difficulty. When one talks of a drafting difficulty one is inclined to dismiss it as a legal technicality, but in this case I suggest it is more. When is a child abandoned? When is the act of abandonment final and complete? At what stage can the law or society say to the natural parents "You have abandoned your child forever"? Is society entitled to say that to a natural parent, who possibly for reasons beyond their control such as financial, psychological, physical, had at some stage to part with the child either to a foster home or to an institution? If it should happen the causes which provoked such parting with the child were removed or disappeared and that a stable home was then available for the child with its natural parents, possibly with brothers and sisters, who are we to say that that child would not be better off back in its own home rather than to be left in the foster home?

I quoted the Minister at some length there because I think he raises a whole series of issues which somehow never seem to be raised in the case of a single mother. Why might the single mother not provide the good and stable home for the child if she had adequate back-up support and if the legal, social and economic disabilities were removed? I think that there is an unreal distinction between natural and married parents, so that married parents apparently have unlimited rights in relation to their children, rights to seriously illtreat them, to abandon them, to forego all their responsibilities as parents without forfeiting inalienable rights which allow them to do this. Consequently, such legitimate children cannot be placed in adoption where they could have a happy and loving, caring relationship with adoptive parents.

This issue now takes on even greater seriousness because of the proclaimed intention by the Government to bring in a Constitutional amendment. In the Lower House on 17th June, 1976, the Taoiseach said on the Order of Business, at column 1185 of the Dáil Official Report:

The intention is to proceed with the constitutional amendment as soon as it is possible to get the Bill drafted. Because of the possibility that the 1952 Act is unconstitutional, it is felt that it should be put beyond any doubt. For that reason, it is proposed to introduce a constitutional amendment. If it is ready, it will be introduced before the recess, if not, it will be introduced immediately after it.

I know some Senators and, perhaps, the Minister, would prefer not to open up this whole area of the constitutional issue. That would be shirking our responsibilities. We must face the whole range of possibility opened up by an intention to amend the Constitution and also examine the various matters which come up under that heading. So far there has been no clear statement by the Government of where the focus of thinking is, but several serious questions come up when the Government express an intention to amend the Constitution.

I would begin with the question of the rights of a family, of how we define a family and the rights of all children in relation to the general law and, specifically, in relation to adoption. Article 41 of the Constitution which deals with the rights of the family reads:

1º The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2º The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

A provision of that sort is subject to judicial interpretation down the years in order to decide what precisely is the meaning of the words used: the meaning of the word "family" for example. It appears to be feld, and I think the Minister would agree with this interpretation, that the "family" here is the nuclear family based on marriage—married parents and children. That is what is meant by the family, and that is the "fundamental unit group of society", and the unit group that has inalienable and imprescriptible rights. This is an aspect which we should examine very seriously at this point in Irish society. I put it to the House that there is a possibility of serious question of this proposition. There is serious question of the identification of the family as being the nuclear family, as being just that unit, the parents and the children.

If one looks back to more primitive societies and more primitive cultures one will see that the emphasis was on the social unit of a group of families, a small village or small community. It was not on the nuclear family in an isolated context. It is the small group, the inter-related social group which defends itself, which carves out its civilisation and which is interdependent. Down the years this reflected itself in the extended family, in the importance, particularly in Irish culture, of the relationship with grandparents, uncles and aunts, the extended family relationship and, again, a high degree of interdependence in that relationship. It was not really until modern times, and I believe very directly related to industrial society, that we get a concept of the isolated nuclear family.

When we hear reference to the sacredness of the family as the fundamental unit group of society we should not necessarily feel that we are confining that to an isolated fragile social unit, the nuclear family based on marriage. This is particularly important in modern society because of the increasing encroachment of Government, and Government agencies, in every aspect of our lives. It would be a great mistake to narrow the debate to the isolated fragile social unit so much dependent from the beginning now to the end of a life span on the various types of social welfare benefits, employment from the State, depending for so much of its food, resources, services, education, the whole range of activity dependent on the State. One would be counterposing an isolated nuclear family to an impersonal, commercial all-embracing state. This would be very questionable.

This identification of family, if that is what we mean by family, as a unit group, excludes the single parent and family if the single parent is not married. This is one of the reasons why there is a totally different attitude towards taking the child of a single mother and placing it in adoption with no parallel follow-through from that as to whether, perhaps, six months after the child was placed she might find herself in different financial circumstances and so on. This was the kind of argument the Minister was making where if one takes a child abandoned by the natural parents—the inference being the natural parents were married in those circumstances—they might after a period be able to offer a home to the child. We have to realise that a narrow definition of the family in this way excludes very dramatically the single parent who does not fit into this narrow category of the nuclear family based on marriage.

This results in a very marked contrast between the single mother and her child and the other single parents in Irish society; the widows, the very significant number of deserted wives and widowers bringing up their children. They suffer from none of the same challenges by our society of their right to keep their child. Nobody would suggest that a widow should be deprived of her children because she is only one parent and she could not cope with the problem of bringing up the children, or it would be bad for those children to be in an environment of only one parent. The judgment of society of the single parent and child is a judgment in the isolated nuclear context, looking only at the parent-child relationship. This is sociologically and socially undesirable. It is something that does not enrich our Irish society; if anything it impoverishes us that we would view the family in that context. If one takes the single parent and child out of that narrow context and into the context of an extended family, or a group relationship—I am glad to see that the group relationship tends to be more and more common with single parents with their children grouping together for all the support and interdependence of a small community—then one has a different idea of the relationship.

Getting back to the constitutional provisions in Article 41 that I read, if the Government seriously want to insert into the Constitution in some way a guarantee that in all matters relating to the welfare of a child, the primary consideration will be the welfare of that child, then there is a need for a redefinition of what is meant by "family" and a reconsideration of those two parts of Article 1 which I read. This is necessary because later Article 41.3 of the Constitution states:

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

This was an opening preamble to the constitutional prohibition of divorce but it has led to the narrowing of what is meant by a family to mean a family necessarily based on marriage. I would suggest that is not acceptable in modern Irish society because it undermines family relationships not based on marriage. It gives them no constitutional protection in our laws. The consequences for our society, particularly in a changing Irish society, are very serious indeed. The family relationship is the natural bond between a parent and child, whether it is based on marriage or not. The family involves also other relationships, either family relationships or, indeed, close community relationships. This is a very important issue which will have to be faced if the welfare of the child is to be the paramount consideration. Otherwise we are going to talk about a different welfare for a legitimate or an illegitimate child and we are going to perpetrate the existing inequality.

Another aspect of this third principle that adoption should operate evenly and with strict standards is, of course, the question of control of adoption societies, control of the standards of adoption societies and of their activities. Again this is a matter which has been raised several times in this House in different debates. In particular on 9th July, 1974, in the context of a Government Bill I tried once more to persuade the Minister that, despite what he may hear from whatever sources he listens to, there is a very broad base of dissatisfaction about the fact that the Adoption Board do not have statutory control and that there are not statutory regulations defining standards for adoption societies. On that occasion I was dismayed at the complacency of the Minister in referring to our adoption law and practice. I referred to a speech of his given in Limerick in April, 1974, and I quote from column 911 of the Official Report of the debate on 9th July, 1974:

There have been almost 20,000 adoption orders made in this country since 1952 and, while we cannot say on a scientific basis or on the result of research that our system is successful, we can as a matter of subjective judgment by those who work in the field say that it has worked well and that our society is better for having it. If our system had not been successful the volume of adoptions—20,000— would surely have produced adverse social consequences that would have been apparent long before now.

Having put this quotation on the record I went on to say:

I have to say that I do not share the Minister's complacency. I do not share his general satisfaction that adoption is working well in Ireland. Many voices have been raised including the voices of social workers, of members of adoption societies, of adoptive parents and even of members of the Adoption Board, who went to the point of resigning from the Adoption Board in disgust when proposals that they made for reform were not considered and were not going to be implemented. The numbers of people directly involved who have been dissatisfied with our adoption law and the number of those who expressed concern were far from the periphery, far from voicing either emotional or unsubstantiated grievances.

In the course of that contribution I called on the Minister to introduce statutory control and I moved an amendment in the course of that Bill to try to have that control implemented. At column 931 of my contribution to the Second Stage of that debate I said:

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

Anybody reading Miss Darling's Report would have no doubt of the need for regulations imposing standards on adoption societies. The Minister has expressed the view that it is not possible through legislation and regulation, to impose standards. At least one can create standards. Then, by a proper system of supervision and, if necessary, by de-registering adoption societies, one can go a long way to imposing standards.

I believe the point expressed there is as valid now as it was then. The only thing we have is perhaps less complacency. We have had one really bad case which might shake some of our complacency. Do we have to wait for several others before we get around to ensuring strict control and strict standards in relation to our adoption societies?

If I might add one type of argument to the arguments that have been expressed in favour of the need for regulation and control, it stems from the volume of adoptions now in Ireland. If one looks at the most recent report of the Adoption Board for the year ended 31st December, 1975, one sees a dramatic increase in the applications for adoptions and in the number of adoption orders made since 1953. In 1953, there were 381 adoption orders made. By 1963, the number had gone up to 840 adoption orders made. In 1973, there were 1,402 adoption orders made, in 1974 1,415 and in 1975, 1443. That is close to 5,000 adoption orders made in the past three years. It is a very significant number. The number of applications for adoption is obviously just that bit higher, because not all applications would be successful, and not all would be processed in the same year as the application is made.

This means the board are dealing with nearly 1,500 adoption cases to be finalised. Are we so sure that, without any statutory control and regulation, as is standard practice in other countries, the proper scrutiny is taking place, there are proper placement controls, proper counselling of adoptive parents, a proper and speedy hearing for adoptive parents? For those in the process of adopting a child, it is very important that the natural tensions and natural vulnerability in those circumstances are not aggravated either by unnecessary delay or by the activities of adoption societies where the standards and the practice may vary from adoption society to adoption society. I am far from criticising the operation of all adoption societies or even perhaps of the majority of adoption societies. I am saying if there is any cause for dissatisfaction we probably do not know about it in detail because no research is being done. We certainly cannot feel happy that, in the volume of adoption cases now being coped with, the standard is uniform without any insurance that the standard even exists.

If one looks at newspaper cuttings at various times—I keep a file on adoption because I am particularly interested in it—one sees outbursts of controlled rage at the system by people more deeply involved in adoption. For example, in March, 1974, there was a headline "The Adoption Board Accused of Depriving Children of Homes", "Unreasonable Demands, says Priest". I quote from The Irish Times of 6th March, 1974:

In the most scatching criticism of the Adoption Board since its inception the Vice Chairman of the Central Council of Adoption Societies yesterday accused the board of making such unreasonable demands about the medical assessment of children being placed for adoption as to be depriving them of their legal right to a secure home which adoption alone could provide. At the same time, it was not showing the same concern about the health of adoptive parents.

The report went on to say that the Adoption Board seemed to be artificially concerned about the 100 per cent health record of children who might be placed for adoption, and less concerned about the health of future adoptive parents, and that there was an imbalance there and a lack of proper control.

The Adoption Board work through the various adoption societies. They could standardise the practice. They could ensure a uniform high standard of professional advice to the adoption societies. They could ensure that there was proper counselling of the adoptive parents, that there was proper pre-placement and post-placement supervision. In some instances this is very good and in other instances it is less satisfactory. Whatever it is, it is not guaranteed to be uniform and of a uniformly high standard because the Minister resists attempts——

Mr. Cooney

Has the Senator knowledge of societies where the practice is less than satisfactory?

Mrs. Robinson

Probably every Deputy and Senator has knowledge of isolated incidents of shockingly bad practice.

Mr. Cooney

The Senator, in all the years we have debated this subject, has never given me the names of these societies that have had practices less than satisfactory. I would have been pleased to take that up with the Adoption Board because we now have financial sanctions over these societies.

Mrs. Robinson

What I did do in July, 1974, was give a whole range of case histories of tragedies in relation to adoption, and the Minister, in response to my doing that, was very unsympathetic to the point of view expressed. He said at column 953 of the Seanad Debates on 9th July, 1974:

I will take the Minister up on that invitation. He will have a great deal of information about the position in relation to adoption, since I will deposit some of my file on it in his file and perhaps we will then get a bit of progress on it.

The next matter I would like to look at is the role of the Adoption Board and I think an examination of the role of the board is particularly necessary both from the point of view of the functions and responsibilities of the board and from the point of view of the volume of adoption cases which the board are now processing. Before examining objectively the role and functions of the board I would like to make it clear that the examination I am making is about the objective functions, role and responsibilities of the board and it is not a reflection of the Adoption Board. The chairman of the Adoption Board is a friend and colleague of mine both in Trinity College and at the Bar. There are other members of the Adoption Board whom I know well and I know that they are very responsible and concerned people.

I am sure they have had many sleepless nights since this particular case and have had to cope with reassuring the anxiety of many adoptive parents throughout the country. They are victims of the situation in which they find themselves. They are trying to do a very responsible and serious job for which they are not well equipped. It is the serious responsibility of this House to ensure that the Adoption Board is well equipped.

First, I would like to refer to the legal role of the board and indeed the possibility of constitutional infirmity in the discharge of responsibilities by the board. I would hazard a guess that it is this aspect that is higher on the priority of the Government in considering a constitutional amendment than indeed the intention to insert some change in relation to safeguarding the welfare of the child. It is an apprehension that the Adoption Board may not be constitutional under the present relevant sections of our Constitution which is prompting the introduction of a Government Bill to amend the Constitution which will necessitate a referendum in the autumn. Again it is an issue which we should not dodge or put aside and say that is for the future, and that at the moment all we want to do is rush in a Bill to stabilise the present situation. We have a responsibility to examine what might be the possible constitutional infirmity of the board and then examine other aspects of the work of the board.

The problem arises from the fact that in Article 34.1 our Constitution requires that:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution...

Article 37 adds a qualification to this as follows:

Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

So you can have a person or body exercising judicial functions of a limited nature and not being a court of law.

In most other jurisdictions of which I have knowledge in regard to their adoption practice, it is a court system of adoption with all the attendant safeguards of the court. In 1952 we opted for a system of an adoption board, with a legal chairman and otherwise a lay voluntary part-time adoption board. This approach raises doubts about the constitutionality of that body, particularly in the light of the interpretation of what is meant by a limited function of a judicial nature which a body can discharge.

One of the first cases decided on this was a case In re Solicitors Act, 1954 reported in the 1960 Irish Reports at page 239. I would like to quote briefly from the facts of that case as summarised by the Parliamentary Secretary, Deputy John Maurice Kelly in his work on Fundamental Rights and the Irish Law and Constitution. He says at page 299 of his book—

The first of these cases was In re Solicitors Act, 1954. Here the plaintiffs had been struck off the roll of solicitors in consequence of an order to that effect made by the Disciplinary Committee of the Incorporated Law Society under the provisions of S. 18 of the Solicitors Act, 1954. The order was challenged on the ground that it amounted to an unconstitutional exercise of judicial power, since the Committee were not judges or a Court. The Supreme Court said:

There is no question here of a domestic tribunal with a jurisdiction based solely on contract. Here we are dealing with a tribunal which depends for its existence and its powers on a legislative act of the State. If the effect of such legislation is to confer the power to administer justice on persons who are not regularly appointed as judges, it is by Article 34 unconstitutional, unless it can be brought within one of the saving provisions of the Constitution.

And Deputy Kelly goes on:

It was argued on behalf of the Incorporated Law Society that the function of the Disciplinary Committee did, in fact, fall within the saving provision of Article 37, as being a "limited function"; but the Court rejected this contention:

He goes on to quote the Supreme Court:

A tribunal having but a few powers or functions, but those of far-reaching effect and importance, could not properly be said to be exercising "limited" powers and functions. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised, they cannot properly be described as "limited". The power to strike a solicitor off the Rolls is a "disciplinary" and "punitive" power. It is a sanction of such severity that in its consequences it may be much more serious than a term of imprisonment. The powers and functions conferred by the Act on the Committee...are of such a far-reaching nature that their exercise amounts to an administration of justice, nor...can they be described as merely limited powers... Their exercise is unconstitutional. It follows that the two appellants were not validly struck off the roll of solicitors.

Professor Kelly then goes on to examine other cases, more recent cases, but the Solicitors Act case is probably the most relevant one in considering the function of the Adoption Board. Even for a lay person, it must be difficult to see how the functions exercised by the Adoption Board could, in that context, be regarded as "limited" because they terminate and create legal relationship. They terminate the legal relationship between the single mother and the child, and for legal purposes they create legal relationships.

During 1975, the Adoption Board, by making adoption orders in relation to 1,443 children, changed the legal relationships and legal expectations of those children and changed the legal relationships and legal expectations of the adoptive parents of the children.

The last thing I want to do is to add to the uncertainty, the heartache and the tensions of adoptive parents in the country, but we must face the position that there is quite serious doubt about the position of the Adoption Board under our Constitution because of the fact that they may be exercising unlimited functions of a judicial nature which the Constitution says must be operated by a court.

Presumably the Government would seek to amend the provisions of Article 37, and presumably the concern would be to find a way of doing this without undermining the work of the Adoption Board down the years and the legal certainty of the adoption orders made. It is extremely important not to undermine or in any way create uncertainty in relation to existing adoption orders.

Apart from that very difficult and thorny constitutional issue, there must be an examination of the adequacy of the Adoption Board as at present constituted, leaving aside the constitutional issue, to discharge the very significant functions which they are called on to discharge. The Adoption Board consists of a chairman who is a district justice and other members, part-time, who are lay people, who give a great deal of their time to this activity, but who also have other jobs and activities in society. Therefore they can necessarily be only part-time. I ought to mention, because it is relevant in examining it, that on 4th December, 1975, a barrister and former justice of the District Court was made deputy chairman. Therefore, there is now a legal chairman and a legal deputy chairman, the position of deputy chairman having been provided for in the 1974 Adoption Act.

I will put her foreward on record first. The relevant part is, and I do not wish to distort the issue:

This study is an attempt to evaluate the operation of the Adoption Act. It has been attempted single-handed on a very part-time basis and suffers from the fact that time and resources did not allow for a more thorough investigation. As far as the author is aware, however, no study has heretofore been undertaken on adoption in Ireland. The first Act in 1952 was an important piece of social legislation, but it was introduced under difficult and controvercial circumstances and at a time when open discussion on such matters was often inappropriate. In recent years, however, there has been much evidence of a reawakening of interest in the subject as indicated by articles, letters to the press, television programmes etc., attempting to highlight the supposed inadequacies of the system.

Then she goes on with a further qualification on paragraph 2:

This study does not attempt to evaluate the success or otherwise of specific adoptions although this might well be the subject matter of an independent study. Rather, it is more in the nature of an evaluation of adoption practice and policy and it has been necessarily limited by time and other pressures and should only be regarded as a preliminary to further study on a larger scale.

Mr. Cooney

I think that she adverted to the difficulty of getting co-operation from the people whom she would like to have interviewed and said that the withholding of this co-operation by adoptive parents was a further difficulty in her report.

Mrs. Robinson

All right, we have all those difficulties on the record now. Could we have some of her conclusions in the light of all those difficulties? She prefaces her conclusion by referring again to the limited nature of the study:

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 seemed 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 arrangements for handing over the baby to its new 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 that 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.

Then she goes on to suggest factors which might contribute to the rather poor quality adoption practice that she has observed.

A study of that sort has the limitations that it has. An adequate Government response rather than emphasising the limitations of such a study would ensure that there was a broad-based and balanced study of the whole operation of adoption and of the adequacy of the Adoption Board as composed and as functioning. I say adequacy as apart from the much deeper and thornier problem of constitutionality in the light of the articles of the Constitution to which I referred.

Adoption is obviously a limping situation from the beginning, a very vulnerable situation which requires the most humane concern from those trying to improve the law and procedure and practices in adoption. I certainly agree with other Members of the House who have spoken on this Bill that there is a very real need at this point to reassure the many adoptive parents here who have been shaken and bewildered by the judgment of the Supreme Court. There is a need to guarantee that in future our adoption law will be strong, good, fair and equitable.

This leads me to consider reaction to and, indeed, even to the contents of this present Adoption Bill. It is a limited Bill to respond to a very serious tragedy and crisis in adoption in Ireland. But the reaction has been very much to paper over some of the defects that I have been talking about, to paper over examination of the more basic principles. If that is to be the response, then we are not going to have an outcome of a broad-based reform of the law in line with the Charter on Children's Rights which I read out, or in line with the aspirations for a balanced adoption law and procedure. If Irish society is prepared to invest in adoption by ensuring proper control, proper skills and advice, that whatever mechanism we use, be it an adoption board or some other system, has adequate expertise, adequate social services back-up, adequate control, then we will have a more adequate system of adoption.

If we proclaim the welfare of the child we must know the full implications of doing so. It is against that background that I turn to the provisions of the Adoption Bill, 1976 which are before us. As the Minister said when introducing it, this Bill is confined more or less to responding to the recent Supreme Court case.

Section 2 deals with the validity of certain adoption orders and consents to adoption orders. The first part of section 2 provides for the validation of existing adoption orders, where the procedure used by the board was the same procedure as was used in the recent Supreme Court case, where the form sent out was the same form and where the board had not made it clear to the single mother that she had a right to withdraw her consent up to the point when the adoption order was made. As such the section will do that. We must be aware that in doing that we are really putting a further legal seal on the position of imbalance and of inadequacy, but we have no choice but to do that because it is much more important now, for the sake of the children involved, for the sake of the adoptive parents involved, for all concerned, to ensure certainty and the validity of existing adoption orders. But we should be aware and sadly aware that that is what the first part of it does.

Subsection (2) deals with the case of applications for adoption in the pipe-line at the moment. Perhaps these are the most vulnerable people of all. These are the people who are going through the tensions and the difficulties of adopting a child. It is a time of great emotional involvement and great uncertainty and that uncertainty, of course, has been compounded by the Supreme Court decision and by the widespread discussion on adoption law and practice here. Subsection (2) again I think adequately meets the problem that these people have.

Section 3 provides for the future in the light of the fact that the existing way of getting the consent from the single mother had not been found to be adequate by the Supreme Court. It provides that

(1) A person whose consent to the making of an adoption order is necessary—

(a) shall be informed before he gives the consent or as soon as may be after such giving—

(i) that the consent may be withdrawn at any time before the making of the order, and

(ii) that he is entitled to be heard on the application for the order, and

These were the two requirements that the Supreme Court found lacking.

(b) shall, if he gives the consent, be asked, at the time of such giving or thereafter, to indicate in writing if he wishes—

(i) to be informed of the date on which the Board will, if he wishes to be heard, hear him or his counsel or solicitor on the application for the order, or

(ii) otherwise to be consulted again in relation to the application for the order.

This provides for a more explicit opportunity for the single mother placing the child in adoption to indicate that she would like to be heard before the Adoption Board. It is interesting to know that until a few short weeks ago despite several requests to be heard by the Adoption Board, Cherish, the organisation of single mothers, had never come into contact with the Adoption Board. Then after the Supreme Court judgment, perhaps in the light of reflection on it, the Adoption Board invited Cherish to come to have a meeting. It was an indication, perhaps, of a change of attitude by the Adoption Board which has isolated itself totally from the single mother in former adoption practice. This, again, reflects the imbalance of the whole procedure.

I am not quite clear of the precise scope of section 4 and I would welcome some clarification by the Minister. It relates to inquiries on behalf of the Adoption Board. Subsection 1 provides:

For the purposes of compliance with section 15 (2) of the Principal Act and section 3 of this Act, the Board may request and authorise any person either in or outside the State whom it considers suitable for the purpose to make enquiries on its behalf and the Board shall be entitled, if it so thinks fit and accepts the report of the person in relation to the enquiries, to regard such acceptance as compliance by it to the said section 15 (2) of the Principal Act, and as sufficiently demonstrating compliance with section 3 of this Act as respects the subject matter of the enquiries.

Surely it would be of limited value for the Adoption Board to use people on an ad hoc basis who happen to be in a particular area to make inquiries in relation to the consent of the single mother. It would be much better if the Adoption Board had trained personnel of their own and had their own infrastructure of expertise—those who knew how to cope with the particular problems of people, of the single mother, in this instance, deciding to place her child in adoption—people who would have due consideration for the rights, aspirations and difficulties of a person in that context. I do not think it is a job either for unskilled or, indeed, for ad hoc people thought suitable by the Adoption Board. This seems to me to be trying to do the whole procedure on the cheap—to do it in the ad hoc, part-time and inexpert way. I would welcome some clarification from the Minister as to why he chose that particular mechanism.

I would also like some clarification of the precise scope of section 5. Section 5 relates to adoption orders and provides that adoption orders are not to be declared invalid if the declaration is not in the best interests of the children concerned. I am not quite sure of the constitutional and legal implications of this.

Section 5 (1) says:

(1) An adoption order shall not be declared invalid by a court if the court, after hearing any persons who, in the opinion of the court, ought to be heard, is satisfied—

(a) that it would not be in the best interests of the child concerned to make such a declaration, and

(b) that it would be proper, having regard to those interests and to the rights under the Constitution of all persons concerned, not to make such a declaration.

(2) An adoption order shall be deemed for all purposes to be and at all times since its making to have been a valid adoption order unless it is declared invalid by a court.

Let us take an instance which is different from the recent case in factual circumstances, but not really very different in essence, of a single mother who was coerced into placing her child for adoption. There was actual evidence of real coercion and the child was placed in adoption; an adoption order was made and this was challenged by the natural mother. But, it being a High Court proceeding and there being delays, it is two years later that the matter comes up before the court. The High Court says "Yes, it appears there was not a real consent and, therefore, the adoption order is invalid but we look at section 5 which deals with the best interests of the child concerned, and decide not to declare the adoption order to be invalid. To what extent would that provision stand to defeat what might be regarded as, if not the family rights of the single mother, at least her personal rights under the Constitution, if she is excluded from that particular form of protection? The single mother is a person for the purposes of Article 40.3.1º which provides:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

If the single mother said that she had a right to a relationship and to have her child, that she had been deprived of that right, wrongfully and by coercion, that her choice was not a real choice and so on, I would wonder what the effect of section 5 would be in that sort of circumstances, and if it would withstand the constitutional challenge?

Section 6 is a provision which on balance I would support in relation to the question of custody of children. If an adoption order is declared invalid by a court it is probably better to await further consideration of the matter and, possibly, hearing other parties on it before making an order for custody. Presumably this arises from the way the Supreme Court preempted the issue of custody but put a stay on execution for several months. Presumably, it may be reopened in another context. It would be preferable to have a separate consideration of what would be, in all the circumstances, in the interests of justice and in the interest of the child concerned such consideration being subject to the provisions of section 3 of the Guardianship of Infants Act which declares that in custody proceedings the welfare of the child should be the paramount consideration.

In the course of the debate on the Family Home Protection Bill in this House reference was made to the provision of section 7 which provides that there will not, in future legislation, have to be separate reference to an adopted child. I would like some clarification about the precise scope of section 7. It says:

Where, in any Act of the Oireachtas passed after the passing of this Act, there is a reference to a child of a person or persons, then, unless the contrary intention appears—

(a) the reference shall be construed as including a reference to a child adopted by the person or persons, as the case may be, under the Adoption Acts, 1952 to 1976, and

(b) a child so adopted shall be deemed, for the purposes of the Act, to be the child of the person or persons aforesaid born to him or them in lawful wedlock and not to be the child of any other person.

The Minister appears to have felt that this was necessary. I would welcome further clarification from him why this was not achieved by the provisions of the Adoption Acts, 1952-1974. If there was any doubt about it, that doubt should be clarified.

So far as the precise and immediate terms of this Bill are concerned, it is adequate to cope with that particular tragic problem and aspect of adoption. It does nothing to redress the imbalance in the operation of our adoption law in practice. It does not bring us back to the basic issues concerned. It will not advance our thinking on the welfare of the child concerned to any very significant degree. It tries to bring us back, more or less, to a position before the Supreme Court case, whilst accommodating the requirements the Supreme Court felt were necessary with regard to the consent of the single mother—that she be informed of her right to withdraw it at any time up to the adoption order being made, that it be made clear to her that she has a right of hearing before the Adoption Board, and she can seek a right to be heard in relation to the adoption order. It is desirable that there be a Bill of this sort passed because of the high degree of apprehension, tension and legal uncertainty, but it is—as I think the Minister said in his opening speech— a very limited measure.

I took some heart from the introductory speech of the Minister where he appears to feel there might be more cause to probe other areas of our adoption law and practice. He says towards the conclusion of his opening speech:

As I mentioned already, this Bill was primarily designed to do no more than respond to the immediate problems raised by the Supreme Court decision. I recognise that there are other areas in the field of adoption that merit consideration but I think that the present Bill serves a useful and necessary purpose.

I would hope that when contemplating a Bill to amend the Constitution and, hopefully, in the light of that— a series of measures of reform of the law and of safeguarding the rights of children in this country that he will be prepared both to initiate and support the background research in this whole area, and also to process these Bills with due speed through this House.

A very large number of people who have been involved in a voluntary capacity in the law and the care relating to children in Ireland have become very disillusioned and disappointed. It would be very sad if they were so disenchanted with lack of progress on the legislative front that they turned aside from their concern to have change in Irish law and threw in the towel on this. I am talking about people involved in Care and in Children First, who have got a new lease of life as a result of the recent adoption case; and also of those on the Government Task Force on Child Care, which recommended urgent implementation of measures for reform in child care. These people are suffering from great disillusionment and great disenchantment. It is time that they got a more firm declaration of intent and a firm purpose in the Government, to reform our law in the area of the rights of the child specifically, but also in the whole area of family law.

Minister for Justice (Mr. Cooney)

I want to thank Senators for welcoming the Bill and recognising its limited nature. The Bill sets out, as I said, to cure the position arising out of the Supreme Court decision. Senator Robinson has brought the debate into a consideration of the entire field of adoption. The first thing is that we have to clear our minds as to whether we are for adoption or not, as being in the best interests of the child. I am a firm believer that the paramountcy of the child must be supreme, and it follows from that, in my opinion, that the adopted child is likely to fare better than the child that is not adopted. I can appreciate Senator Robinson's inability to have a clear view on that because of her emotional commitment.

Mrs. Robinson

It is not emotional commitment.

Mr. Cooney

Because of her commitment which may have a certain amount of emotionalism in it to the organisation known as Cherish, the organisation for single parents, the majority of whom are unmarried mothers. This is an organisation for which I have much respect, and I have indicated my respect for them by practical help and by acceding to some of their requests for legislative changes. I have a lot of respect and admiration for people in that organisation. Their objective is to bring about employment in Ireland whereby a single mother can retain her child and rear the child herself. Senator Robinson is president of that organisation and must be committed to its aims and its aims are incompatible with the very notion of adoption. I am committed to the principle that the paramountcy of the child is supreme. The child's interest is the only consideration that should affect us. It must be the number one and only consideration. The feelings of its mother towards it, the feeling of adoptive parents towards it and the emotions that arise from these feelings are all secondary and if they are to be hurt to ensure the paramountcy of the child's welfare, then they have to be hurt but I think we will have to fix very clearly in our minds that the prime consideration must be the welfare of the child.

I firmly believe that the welfare of the child is best served by having a procedure for adoption and I am reinforced in that view by studies done in other societies with comparable cultures to our own, principally in the United Kingdom. I mentioned this research and the conclusions of it when we debated the Adoption Bill here in 1974. I would like to mention it again and I will refer to an article by Sula Wolff, who is attached to the Department of Psychological Medicine in the Royal Hospital for Sick Children in Edinburgh. This was a review article in the British Institute Journal of Psychiatry. Miss Wolff reviewed many works on the question of adopted children. They are set out in the article. I will give the Senator the article should she be interested in it. It contains a substantial number of very useful references to the research projects which have been carried out in this field. She concludes her review of the study by saying:

The studies cited permit some quite definite conclusions for those concerned with the care of mothers of illegitimate children. In our present state of knowledge the responsible action is to facilitate rather than hinder the adoption of illegitimate children. The fate of non-adopted illegitimates is poor.

All the studies are very positive that the welfare of the child is served by adopting the child, rather than by leaving the child with a single mother. This is due, of course, to the way society looks on single parent families and this is the way society still puts a mark on illegitimacy. There is no doubt that that is the harshness of the society we live in and I share Senator Robinson's feeling and wish that society would change so that this rather harsh approach to the single mother and her illegitimate child would change so that they would become a perfectly normal and acceptable unit of our society, but they are not and it is no use pretending that they are nor do I see any prospect of a revolution in our attitudes towards such a situation overnight.

If a change is to be made, are the present generation of illegitimate children to be the guinea pigs in a social experiment to change attitudes towards the single mother and her child? I think that would be unfair to them and it would be a negation of the principle that the welfare of the child is paramount. The studies from similar societies to ours show quite clearly—these are studies which have had the benefit of full scientific research behind them—that the fate of the adopted illegitimate child is far more secure and far better than the non-adopted illegitimate child. I do not think we can ignore those findings bearing in mind that what we have to be concerned with is the welfare of the child and nothing else. We have to forget any question of sentimentality, of the mother's feelings towards the child or that sort of thing because what we are concerned with is the welfare of the child as the first paramount consideration. Once that is our concern we must pay attention to these studies which show that that welfare is best served by adoption.

I certainly have my mind clear that adoption is in the best interests of the child and I would always be in favour of encouraging it. I have said as much to the brave people in Cherish and they have taken issue with me because they feel that so long as that sort of attitude prevails they will never reach the situation where they can become a natural part of society. But what is to happen to the children who are retained by the mother in that evolving situation? Willy nilly they are the guinea pigs in the experiment of evolving the change in society and I do not think we are entitled to say to any generation of those children: "You will be guinea pigs for the unborn illegitimate children of the future so that they can be integrated fully into society." We are not entitled to say that if we believe that the interests or the welfare of the child is the first consideration.

I think also that because we live in a free society we cannot take children away from their mothers and if a single mother wants to rear her child, that is her prerogative and her privilege. She is entitled to do it and she is entitled to all the support she can get from the State or from society to enable her to do that completely and comprehensively.

I want to deal with the suggestion that the whole emphasis of approach by adoption societies is to persuade mothers to adopt, to try to twist their arm gently, so to speak, and make them place their children for adoption. This is not so and I will quote a passage from the first annual report of the Catholic Protection and Rescue Society of Ireland which is a registered adoption society of long standing. The section from the report which I will quote will be put on the record of the House and will indicate the sensitive, careful approach by adoption societies to their task. I think this is necessary to restore the confidence in adoption societies that migh have been shaken by the criticisms which Senator Robinson made in the course of her contribution. This shows a degree of care and a degree of sensitivity which is commendable and I think would be hard to improve on and I quote:

The whole position of the unmarried mother and her child is extremely emotive, sensitive and delicate.

The unmarried mother has many needs, material, medical, social, psychological and spiritual. The social worker must help her to determine realistically these needs and assist her in meeting them. Her baby, too, has many needs but is unable to voice them. The crisis point is reached when a mother has to decide as to how best the baby's continuing and changing needs might be met. We regard it as the mother's strict prerogative to make this decision. We supply her with information; we help her to identify the baby's needs both in the short and long term. We assist her in analysing her own particular situation and resources and to see how she might best be able substantially to meet the baby's needs. None but the unthinking would dare accept responsibility for another's decision in such a vital and personal matter by being guilty of undue influence or pressure. Each baby has a natural right to have its needs for love, affection and security adequately met with: each mother has a right to decide how best this might be achieved. Each social worker has a duty to try to ensure that the mother's decision is an informed and responsible one.

That quotation shows very clearly a high degree of sensitivity on the part of this adoption society for the duties imposed on it in counselling the mother on the question of whether she should place her child for adoption or not. It shows, too, that there is a strictly impartial policy from the point of view of encouraging the mother one way or the other. This is a policy statement by this adoption society. The figures for the year 1974 indicate that the number of children taken into care were 254; children placed for adoption 214 and children kept by mothers, 101. If these societies were, as someone alleged, adoption factories and if the whole emphasis was on forcing the mother to place the child for adoption, that statement of policy and those figures might possibly end that particular misconception.

Another society, the Rotunda Girls Aid Society, dealt with 129 single mothers in 1975. Thirty-five kept their children; 72 were placed for adoption, two children died, three were placed with other societies; there were three private placements and there were three mothers who did not know at the time and lost contact with the society. There were 11 children in nursery care. Again, those figures show that there is no—what I might call—undue number of children placed for adoption. The proportions are reasonable and do not suggest that the tendency of adoption societies is to twist the arms of mothers to place their children for adoption. If that were the tendency, the figures I think would be different and far more children would have been placed for adoption than are shown by those figures.

It is important to get this matter into perspective and, in fairness to the adoption societies, to show what the policies of at least two societies are. I have not got the figures for all the societies but these are two responsible, well-established societies. It is my ambition and the ambition of the board to ensure that high uniform standards will be practised by all societies throughout the country. The year before last I introduced a system of giving grants to adoption societies conditional on the adoption societies employing professionally trained social workers to ensure that standards would be professional and uniform. I am glad to say that that particular strategem is working very well. Social workers are now sine qua non with practically all adoption societies.

Mrs. Robinson

Would the Minister consider giving a grant to Cherish who also have social workers? I believe an application was made but they have not been successful. Cherish also employ social workers in comparable circumstances.

Mr. Cooney

I am talking about adoption societies that have been urged to raise their standards and to ensure that the adoption procedures are of a high standard and are uniform throughout the country. It is to those societies that I authorise grants to try to achieve those aims. There is no similar aim to be achieved by the organisation known as Cherish. It is a separate matter to be considered in a separate context. The point I am making is that standards are rising all the time.

I cannot take the logic of this plea for statutory regulations to impose standards. Standards are only as good as the people operating in the field. Standards do not arise from what is written on a piece of paper. They arise from the knowledge, keenness and expertise of individuals doing their own job. It is the same in all walks of life whether politicians, lawyers, journalists, doctors, engineers, people working in the building trade. You cannot impose standards on a particular operator by a set of regulations in an Act of Parliament. The standards are those that he will apply by reason of his personality, his training, his personal energies and dedication. I think it is unrealistic to suggest that there is some magic formula by way of statutory regulations to raise the level of adoption work. There is no such formula. The way we have gone about it is the proper way, encouraging the employment of professionals and hoping that they will be really professional in discharging their duties. I am satisfied that the standard of counselling and investigation is improving all the time. I am satisfied that the present procedure is the way to achieve that.

The Adoption Board are a board of part-time people. There has been criticism of them from time to time in that they lack expertise. The expertise that is wanted is essentially common sense and experience of life so that they can assess the reports coming in from the experts. We do not want experts assessing experts. What we want are people of common sense, maturity and experience of life to assess the reports coming in from the experts and make the decisions thereon. I am satisfied that on the Adoption Board we have a group of people who possess those qualities in abundance. We should all be most grateful to the members of the Adoption Board for the amount of time they give on a part-time, voluntary basis. Part-time is possibly a misnomer because, to all intents and purposes, they are well-nigh full-time. For people to give almost all their free time on a voluntary basis in such a contentious area as this from time to time is a most commendable thing and they deserve our gratitude both for their generosity and the good job they are doing. I am glad to have this opportunity to express that gratitude to them. I would not dream of replacing them by a committee of professionals or so-called experts. Who are experts in this field? What we have is the ideal solution.

I take the point Senator Robinson made about research. I regret there has not been research in this country in the field of adoption. We have lost 20-odd years. Research in the adoption field has to extend over a very long period so that results can be valid. In fact, they would have to extend over a period of 21 years to see how the adopted child turned out at the age of majority. There would be assessments at various ages throughout that period to assess progress and produce conclusions. One wonders also if a research project which has to be carried out over such a long period has built into it an inherent defect which will always render its conclusions invalid for application at the time the conclusions become available. The point I am making is this: if we had had research over the last 21 years and we had certain conclusions now in 1976 with regard to the children adopted 21 years ago who are now 21 years of age, would they be necessarily a valid base on which to base policy decisions for the next 21 years? In this area the current customs of society, the social mores of society are changing so rapidly that they could invalidate the premises on which this research work was based.

I mention this as an indication of the difficulties of research in this area, particularly research in a social field over a protracted period of time. Nevertheless, the Adoption Board have made certain propositions for research which I hope we will be able to do possibly in conjunction with the ESRI. We have to decide what area of research is the most urgent and then decide on how it is to be carried out, bearing in mind that resources in terms of finance and personnel are not as plentiful as we would like them to be.

We have researched conclusions from comparable societies, principally in the United Kingdom. I am aware of the need for it here in our own society which has certain social peculiarities of its own and I regret it has not taken place up to now. We will have to try to redress that imbalance, not as quickly or as thoroughly as I would like, but we will be able to make a start. They are some general comments now on the area of adoption necessary to set the record straight.

Senator Robinson had a couple of questions on sections 4, 5 and 7. Section 4 provides for the board making inquiries. Senator Robinson wondered if this is trying to get information on the cheap. It is not. There might be a situation where a mother, with whom the board had been in contact at the time of the giving of the consent, who had to be interviewed subsequently in connection with that consent, might have moved away to another part of the country and it might not be feasible for an officer of the board to go to her to get the information at the precise time the information is necessary. She might have gone abroad for instance. In that situation the section gives the board power to obtain this information through agencies, other than their own officers, in or outside the State and may act on the information so obtained. I have no doubt the agencies the board will use will be people skilled and experienced in the adoption field. The board will use officers of an adoption society in the area where the mother might then find herself. It is with that sort of situation that the section is meant to deal. It is not in some way trying to save on staff. The board have the resources in terms of their own staff to do their own work. The number of staff available for the board was considerably increased some years ago and, lack of numbers was causing delay or the staff were not able properly to process the applications coming in, the board would be free to make an application for an increase in staff. That would be examined as sympathetically as possible. I am not aware, from any information available to me, that there is any lack of staff in terms of expertise available to the board.

Section 5 is a drastic section. Senator Robinson gave an example of an adoption order which turned out afterwards to be completely illegal. It could happen that an adoption order would be made on the basis of fraud or duress. Section 5 allows the court to ignore that fraud or duress and to ignore an actual illegality in the making of an order if, at the time the court comes to consider the order, the court decides in the interests of the child that the illegality or invalidity should be overlooked. That is quite a drastic and wide power. The court has to consider the constitutional rights of the parties concerned. It could well be that in the example quoted by Senator Robinson the court might come to the conclusion that, notwithstanding the power given to overlook the illegality and invalidity of the order, the court nevertheless is precluded from overlooking those factors by reason of a constitutional right. This is one of the areas with which the amendment proposed by the Government will have to deal. What we all want to achieve, and it is common case, is that the welfare of the child will not be endangered by any technical legality.

Section 7 relates to the 1952 and the 1974 Acts. Between them they cover the vast majority of situations touching the status of the adopted child vis-a-vis the natural child. It was always my understanding that the adopted child was, in effect, in the same position as the natural child from the point of view of legal status. The matter arose in the other House, because in some financial legislation there was a specific reference to adopted children and the Opposition spokesman was wondering why it was necessary to refer specifically to adopted children if they had the full status of natural children by virtue of the Adoption Acts. I gather it was a matter of prudence and safety to include a specific reference to them in the Finance Act lest the giving of the legal status in the Adoption Acts might be in any way deficient and there might be any particular matter left unattended to. It was felt indivious to have to refer to them at all in individual Acts and this section accordingly is to enlarge the position given by the Adoption Acts of 1952 to 1974 giving the legal status of a natural child to an adopted child so that specific references will henceforth not be necessary. It is not possible to be absolute in the giving of this status and this section goes as far as is practically necessary. I hope it will not be necessary hereafter to make reference to adopted children as a separate category in any Act of Parliament. They are referred to separately in the Family Home Protection Bill for the same reason that they have been referred to in the Finance Act. This is new legislation and a new part of our legislative corpus. It might not be caught by the references in the Adoption Acts. That is why the provision is in the Family Home Protection Bill which preceded this Bill, if it ante-dated this Bill there would be no need to make a special reference to it.

They are, I think, the points raised in connection with the Bill. To conclude, it is a narrow Bill designed to meet the need disclosed by the Supreme Court decision. I am very satisfied that it does just that and that adoptive parents need have no worry that their adoptions will be upset or that they may lose the children they have adopted. In order to put the matter completely beyond doubt and ensure there will be no attack constitutionally on anything relating to the adoption code the Constitution in due course will be amended. The question to be put to the public has to be finally decided on. It will cure the point raised by Senator Robinson that there was apprehension that the Adoption Board were exercising a judicial function of a non-limited nature and thereby in conflict with Article 37. Again, this is a matter that could be argued, but we do not want to have to argue it. Amending the Constitution will avoid the necessity for doing that.

The argument would be that it is not a judicial procedure. It merely validates the seal of approval on what is essentially a private arrangement. A mother surrenders a child and an adoptive couple adopts the child. In the same way that the registrar puts a seal of approval, or confirms, that the forms are observed in marriage, which is essentially a contract between two people, nobody would suggest that, even though his presence is necessary, and he had certain legal formalities to carry out, he is acting in a judicial function. I merely make that as a contrary argument. What we want to avoid is having to make these arguments and perhaps find that these arguments fail and the whole position upset as a result of that failure. The Constitution amendment will, I hope, copperfasten the security of the adoption procedure and those who have adopted children can be reassured that their adoptions will not be disturbed and those who are of a mind to adopt children will know that they can do so in the full knowledge that the children will remain with them for their lives as would natural children.

Question put and agreed to.

Agreed to take remaining Stages today.

Seanad Éireann debate - Wednesday, 7 Jul 1976

Adoption Bill, 1976: Second Stage (Resumed).

Seanad Éireann debate -
Wednesday, 7 Jul 1976