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Seanad Éireann debate -
Wednesday, 7 Jul 1976

Vol. 84 No. 11

Adoption Bill, 1976: Committee and Final Stages.

Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."

This section deals with two different stages. One is the validation of existing adoption orders made before the recent Supreme Court case to ensure that they cannot be disturbed in any way by the outcome of the Supreme Court case. The second deals with adoption orders at present in the pipe-line. I gather that there has been a considerable delay about these because the Adoption Board wanted this legislation through before they processed them. I assume there will be no real delay and that as soon as the legal position is clarified the Adoption Board will be able to proceed without any further delay. I say this because I know it is causing very considerable heartache and tension to people who are going through the natural emotional stage of adopting a child and which is compounded by the legal uncertainty of the present situation.

I would like an assurance from the Minister that there will be no delay and backlog of applications over the summer.

I would be glad to give that assurance. The Adoption Board are very conscious of the need to process applications as speedily as the investigation of each application allows and any that have been delayed pending the passage of this Bill will, of course, be released immediately it becomes law.

Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

This is the section which relates to the future in the light of the Supreme Court requirements that the single mother be informed that she can withdraw her consent before an adoption order is made and that she has a right of hearing. Is it intended that the Adoption Board will have new and different forms to reflect this? Would it be possible to have copies of these forms deposited in the Oireachtas Library so that they would be available for Members of the House? It would be interesting and necessary to see in what way the ascertainment of consent by the single mother is forthcoming.

I would see a very clear distinction between the Minister's attitude and mine towards adoption. I am very much in favour of adoption and a good, balanced adoption law and procedure, but I am also very much in favour of it being based on real choice because that is the only way you will have good balanced adoption. Then when you come to the question of real choice you have to have concern for the rights and responsibilities of the single mother. She is the person faced with that responsibility. The Minister has not answered the point I made, that she does not get adequate counselling or impartial advice during pregnancy.

The Minister may quote, and I accept it, that the adoption societies do take into account the interests of the single mother, but the heading on the door is "Adoption Society". It is not a place you can go to for impartial advice on the question of a choice. We may improve the legal position in section 3 in relation to the consent of a single mother but I think we will have to go much further. The State should provide a broad range of counselling in favour of the single mother and it should also provide other supports. For example, I believe the city of Cork has a particular policy in its housing of favouring the single mother and child. Dublin Corporation and other local authorities do not have the same policy to help the single mother to get adequate housing if she wishes to retain her child. Although there is an improvement in the section, and presumably this will be followed by improvements in the type of forms and so on which the Adoption Board will distribute, it has to be backed by the reality of creating a situation of real choice in our society.

I note the references made to the fact that if a single mother indicates that she wishes to be heard or to be heard through her counsel or solicitor, on an application she is entitled to do so. The legal representation of counsel or a solicitor is not a very real facility for the vast majority of single mothers until we have a system of civil legal aid and advice where a single mother could get, first of all, legal advice on the question and then legal representation in a case where it was felt there was a need for her to appear before the board and to be legally represented in her appearance. Let us not create too many paper remedies. Let us create some real changes in relation to the consent and the real choice of a single mother.

There will be new forms and regulations to implement section 3 and I will arrange for these to be placed in the Library. Whether consent is a real consent depends on a number of matters. The standard of counselling the mother gets, her maturity, her intelligence and her ability to make a decision, are not things which can be given by an Act of Parliament. By reading out a policy statement from one of the major societies I have indicated that their policy is quite clearly to give impartial counselling. That society is known as the Catholic Protection and Rescue Society of Ireland and it does not have "adoption" in its title. I gave figures from another society, it is called the Rotunda Girls' Aid Society, which does not have the word "adoption" in its title. The fact that some societies would have the word "adoption" in their title does not render less valid the counselling that they give or does not make it partial. I am satisfied that the standard of counselling and advice given to mothers considering whether to place their children for adoption is impartial sound advice, taking into account all the circumstances of a particular case.

Question put and agreed to.
SECTION 4
Question proposed: "That section 4 stand part of the Bill."

I am grateful to the Minister for some clarification of the scope of section 4. One aspect that comes to mind in relation to it is that because we have had a number of Acts, particularly the 1974 Act and this legislation, it is increasingly difficult to know where one is in relation to quotations of sections. For example, section 4 begins:

For the purposes of compliance with section 15 (2) of the Principal Act...

Now one has to look not at section 15 (2) of the Act as it was when it was published but at section 15 (2) as amended by section 8 of the 1974 Act. It is a very substantial amendment. It changes entirely the position so that section 15 (2) now reads:

The Board shall satisfy itself that every person whose consent is necessary and has not been dispensed with has given consent and understands the nature and effect of the consent and of the adoption order.

I accept that in some circumstances it might be necessary for the board to call for assistance from a suitably qualified person in circumstances where the mother has gone to a remote part, particularly outside the country. It would be very desirable if it were the officials or staff of the board who carried out these inquiries, that it was not delegated on an ad hoc basis, that so far as possible there would be a very close monitoring of the way in which this section operates so that there would be some way of knowing about the standard of approach and the way in which it is done. It is very important that the questions be asked in the appropriate way and the information be ascertained in the appropriate way. The board should be concerned not to delegate it on an ad hoc basis because they do not want to invest in their own manpower to ensure that they have adequate possibilities if necessary of travelling to where the single mother is or asking her to come to an appropriately convenient venue in order to ascertain her consent.

Normally inquiries will be made by the board's officers but this is to avoid delay. Speed may be important in some situations. The board will have power to go outside their own officers. I have no doubt that the board will have a standard procedure which will be implemented in the making of these inquiries. The board have procedures for their officers to follow and will ensure that similar procedures will be followed by the officers of other agencies which may be used by the board.

Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

The Minister has again given some clarification on this section and he described it as a very far-reaching section. I agree with him. For that reason it is all the more important to ensure that the choice is a real one by the single mother with all the counselling and guidance available, that she will know what are the resources of the State if she keeps her child. I found the Minister's opening remarks in response to what I said very strange. He appeared to be speaking in what amounts to a contradiction, that he would prefer a society where the single mother with her child was given the same status and support and was regarded as a full good family relationship by society but that is not the way it is.

He then said that it is not fair, in the interim period, to use present illegitimate children in the pipeline as guinea pigs for a change by that society. The real guinea pigs in society at the moment are the unfortunate illegitimate children who do not see change, in concept of illegitimacy and do not see steps being taken to remove the disadvantages. I do not see how the Minister will ever break out of his present cycle where he says he is strongly in favour of adoption but will not make the changes which bring him to the situation which he admits he would prefer, where the single mother and her child are given full acknowledgment in society. He accused me of a kind of emotional bias in the matter in favour of the single mother and her child. I was trying, very specifically, in speaking to this Bill to make it clear that in my attitude I see basic fundamental principles.

I should say "intellectual bias".

Even intellectual bias. There are basic underlying principles. If the Minister says that the welfare of the child is the paramount consideration then I do not see how he can avoid the follow-through of that. No child in Ireland should suffer from legal disadvantage and disability but children do. We have a concept of illegitimacy and we have illegitimate children suffering from our State disadvantage and disability. How can it be a primary concern and still equate that primary concern with existing laws on illegitimacy? That is a tortuous form of logic which quite escapes me.

Secondly, the Minister, in quoting so definitely the reports of the particular studies to which he made reference, is falling into a trap that he was careful I would not fall into in relation to quoting from Miss Darling's report. He left out all the qualifications. I have read a good deal about these reports and there are qualifications. First of all, a large part of the reason why a child is better in adoption comes precisely from the sort of security and support from the State and from the environment which a child gets from adoption. Happily now it is very respectable in Ireland because there was a time when it was not quite so respectable. It has all the resources and the support of the State. The reaction to this particular adoption case shows what a strong support it gets from the broad base of the community. That is a very good thing.

Adoptive children are in the same position, to all intents and purposes or should be, as children of married parents. The contrast then is with the deprived children who are deprived because they suffer from the disadvantages of illegitimacy, the environment in which they are brought up and from the fact that they are in, what they will always be, a disadvantaged family, the one parent family, whether it is a single mother with her child, a widow, a deserted wife or a widower. The one parent family needs the care and concern of any society because it is necessarily socially disadvantaged. It is more difficult for one parent to cope with all the supports and responsibilities which two parents normally cope with.

In section 5 the impact is to ensure that a single mother will not be able to challenge an adoption order even if the original placement was illegal because she had not given her proper consent, because she was defrauded or whatever. I should like to ask the Minister if he is sure that that will not be open to abuse? Is he confident that in the present state of society that that is the appropriate balance to maintain? It cuts off any legal rights which the single mother might have. I am not suggesting that one wants to see a situation where there are further cases like that in the Supreme Court the other day, where it appears a child will be taken from the home and family environment of adoptive parents because the order was successfully challenged by the child's natural parents. This is very far-reaching and it is in a country and in a particular stage of our development where already there are such serious difficulties and handicaps for the single mother.

The Minister tends to overdo the absoluteness of his view of the rights of the child, that the welfare of the child should be paramount. It is as though nothing else matters. The welfare of the child is very tied up with the welfare of the mother of that child if she wants to keep that child. No society should lend itself in its mechanisms to disrupting a mother and child relationship if the mother wants to keep her child. There are many single mothers who do not want to keep their children. There are instances where the mother wants to be advised about what she considers to be in the best interests of her child, that is to place the child in adoption. It is not that I disagree with the intention in section 5, to avoid future instances where, several years after an adoption order is made, it can be invalidated and the child taken out of that environment but that it is devastating in its impact in cutting off the right to challenge an adoption order successfully and have it annulled even if you can show basic defects in it, which is a limitation on the rights of the single mother who is, in my view, already in a weak enough position.

It is quite drastic but it can only operate if there are two conditions (1) that it is not in the best interests of the child to make a declaration that an adoption order is invalid and (2) that it would be proper, having regard to the rights under the Constitution of the person or persons concerned not to make such a declaration. While it is a drastic section it gives very wide power to the courts to disregard something illegal. The courts can only exercise that power in those two situations and conditions in the best interests of the child. This envisages a situation where a child has been with adoptive parents for a number of years and the mother has parted from the child for four or five years or even longer. It is to prevent a legality then arising to enable that mother to take back that child after an interval of four or five years when the child had become completely integrated with the new family. There is no doubt that the emphasis in this section is the correct one.

Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."

I am interested in knowing why the last clause of subsection (1) was added because I thought it would be implicit in any case. The clause I refer to is:

...but if the court decides, in accordance with this subsection, to determine the question of the custody of the child it shall do so subject to the provisions of section 3 of the Guardianship of Infants Act, 1964.

I would regard section 3 of that Act as referring to any consideration of the custody of the child. It seems to me to be unnecessary.

I agree with the Senator but we took a decision having considered that situation and it did not seem to apply or be considered to the extent that one would have expected. In drafting this section, which severs, so to speak, the issue of the invalidity of an order from the issue of custody. we decided to spell it out in very clear and unequivocal terms. It may not be necessary but it has put the matter beyond any doubt.

Question put and agreed to.
Section 7 to 9, inclusive, agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.
Business suspended at 12.33 p.m. and resumed at 2 p.m.
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