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Seanad Éireann debate -
Wednesday, 28 Mar 1979

Vol. 91 No. 10

An Bille um an Séú Leasú ar an mBunreacht (Uchtáil) 1978: An Coiste. Sixth Amendment of the Constitution (Adoption) Bill, 1978: Committee Stage.

Cuireadh an cheist: "Go bhfanfaidh alt 1 mar chuid den Bhille."
Question proposed: "That section 1 stand part of the Bill."

I would like to ask the Minister to tell the House in more detail why the Government chose to approach this whole problem in such a narrow context and only to propose an amendment to Article 37 as is contained in section 1 of this Bill referring to the Schedule and adding to Article 37 the words:

No adoption of a person taking effect or expressed to take effect at any time after the coming into operation of this Constitution under laws enacted by the Oireachtas and being an adoption in pursuant to an order made or an authorisation given by any person or body of persons designated by those laws to exercise such functions and powers was or shall be invalid by reason only of the fact that such person or body of persons was not a judge or a court appointed or established as such under this Constitution.

As I pointed out on Second Stage, the Labour Party in drafting a Bill to amend the Constitution drafted it in a much more balanced and much wider context and did not just take this narrow issue which undoubtedly does need constitutional reform and does need to be put in a referendum to the people.

I was disappointed that the Minister, in response to what I thought was a very useful debate in this House on Second Stage, replied extremely briefly and did not seem to explain adequately why the Government are involving the people in the expense and the administrative complexity of a referendum on the issue of adoption on such a narrow issue of family law and why the Minister still adamantly refuses to be prepared to broaden the Bill to amend the Constitution to include specifically the issues of removal of the status of illegitimacy and the granting of the right to be available for adoption to legitimate children in certain circumstances where they have been abandoned or where they have been so maltreated by their parents that it is necessary to find a substitute family for them.

The Minister cannot have it both ways. He said both in the Dáil and in this House that he believed there was a need for reform of the law related to illegitimacy, but not yet because there has not been enough homework done and so on. He appears to be very sympathetic to the problem of legitimate children who may spend their young lives either in institutional care or in the much less secure and less satisfactory care of fosterage, either long term or short term fosterage. I cannot understand why, if the Minister is sympathetic on both these issues, he does not use this opportunity, even at this stage, to broaden the terms of this Bill. I am aware that I may be asking him to get over a substantial procedural hurdle because I found it impossible to draft amendments to this Bill which would enable us to broaden its scope. It is outside the range of an individual Senator to do it, but I think that if there were Government concern in this International Year of the Child we could even at this late stage pass a Bill to amend the Constitution which would be worthwhile and make it worth having the whole involvement of people by way of a referendum.

Since the Minister, speaking on behalf of the Government, is sympathetic to the need for reform in the law relating to legitimacy and in regard to the hardship caused to legitimate children, I would like him to explain why this Bill is cast in such narrow terms and why it only deals with one problem where it could in a more balanced and comprehensive way deal with at least three problems in the context of one Bill to amend the Constitution.

This question arose on Second Reading and the question as to the form the Bill should take only properly arises on Second Reading. It would be very dangerous and undesirable to have a situation where the electorate were being asked to vote on a number of different issues. This is a very serious issue.

There will be two issues on that day anyway.

It is one where there is a great deal of emotion. People are very worried about this whole question of adoption. It is far more desirable that on this occasion we should deal with one major issue, an issue which really is the reason why we have this Bill before us, the anxiety of people about the power of the Adoption Board. We should deal with that problem in isolation because if we have a number of different questions we may have a situation where people will be confused and will decide not to vote at all because they are confused or will not be quite sure what will be the end result if they are voting on a number of different questions at the same time.

I know it seems to be a convenient thing to avail of the opportunity to introduce various changes. I am against that. The way the Minister is approaching this is the right way. By all means there should be, and I am sure there will be, further constitutional amendments to deal with the other problems that have arisen. They can wait for another year and then they can be done. I am very much against the suggestion that Senator Robinson has made and in any event it is something which should have arisen on Second Stage and not on Committee Stage.

I know the Minister's attitude from the Second Stage debate but I rise to disagree strongly with what the Leader of the House has said. In effect we are not altering one jot of our adoption laws in this referendum. What we are doing is changing the Constitution to ensure the constitutionality of the adoption orders that have been made. All that is being requested is that the Constitution be amended in such a way as to enable the Government and the Legislature in the future, should they so wish, to change our adoption laws in a way that would render them more humane and more sensitive so far as young children are concerned. There is no suggestion at all, just because the wider amendment to the Constitution or a further amendment to the Constitution should be made at this time, that the law will in any way be changed. It is up to the Government at a later stage or to any Member of either House to initiate legislation so as to make our adoption laws better.

On both sides of the House there is general agreement that there are problem areas in our adoption laws that require to be changed. The legal opinion certainly is—I am sure the opinion of Members of the House also is—that it is difficult to design changes and to design draft legislation that would be suitable to solve these needs.

On Committee Stage there is not the same scope as on the Second Reading debate. I allowed Senator Robinson to make a few brief remarks which were more proper to the Second Stage but the debate must now be confined to the consideration of the section.

This section is the crucial section. I am asking the Minister why he is not prepared to allow for a wider amendment to the Constitution. It arises only under this section as far as I can see. My proposal is that we have a broader amendment so that in the future we would have the opportunity to change our adoption laws. At the moment the amendment that we are introducing leaves the——

The text of the section may now be considered. There are no amendments to it.

I have made my point. I hope the Minister will answer me.

Could I understand the Chair's last point? There are no amendments to the section. What precisely follows from that? Is it not open to us to discuss any possible amendment to the section? We are not required to put down amendments to the section on Committee if we do not want to. We are perfectly entitled to put down amendments for Report Stage if we are not satisfied with the results of the discussion at this stage. Could the Chair clarify the meaning of his language to the Members of the House for the sake of future debates here?

We are actually discussing section 1.

I do not understand. Is it sought to restrict the discussion on this section?

I am not trying to restrict the discussion in any way.

I certainly had that impression.

The remarks made must be relevant to the section and we are discussing section 1.

Section 1, as I understand it, proposes an amendment to Article 37 of the Constitution which relates to the question of the operation of functions of a judicial nature. I do not think there is any point in wasting the time of Members of this House. I am quite prepared to accept the proper ruling on this. Is it the ruling of the Chair that in effect the only amendment that we could have tabled to this section and the only amendment which we could yet table to this section on Report Stage is an amendment to the proposed amendment of Article 37 of the Constitution? If the Chair would guide the House on that we could save a great deal of time.

The Chair was merely intervening to say that we were on section 1 and that on Committee Stage the debate is not as broad as on Second Stage. We will take each section separately and we are dealing with section 1 now.

Section 1 is the effective section of the Bill and it proposes an amendment to Article 37 of the Constitution. Is it not open to Senators to discuss, if they wish to, the terms of this section with a view to remedying defects in it by proposing amendments to that Article which would have effects with regard to the general matter of adoption, which is the central theme of the proposed amendment to the Constitution? Perhaps I should clarify what I am asking. Is it open to Senators to propose an amendment to this Bill which would widen the provisions of Article 37 in such a fashion as to extend the powers of another Article in the Constitution—that relative to the adoption of children—where the amendment of Article 37 proposed by this Bill is limited to this question of allocation of adoption orders? Obviously we have already accepted the ruling. If that is so and if the Chair does not feel it is orderly to do as much as that then we can just shut up.

The Chair has no notice of any amendment to this section.

I am asking a question with regard to the nature of the discussion we could have on it. Can we have a discussion? We have here a problem thrown up with regard to the operations of the body established by Act of this Parliament.

So long as the discussion is relevant to what is in the section the Chair will allow that.

I have to be more precise. Has the discussion to be limited to the question of the matter of the exercise of limited functions and powers of a judicial nature? Can we properly discuss, with a view perhaps to submitting an amendment at a later stage, the proposal to give to this Parliament what it may not have—a power to improve the adoption laws? We do not want to go on discussing this if it is not orderly to do so, but I would like to get a ruling from the Chair on that matter.

The Chair will allow the discussion so long as it is relevant to what is in the section and when anything outside the section arises the Chair will intervene.

We cannot discuss an amendment that is not before the House.

I would submit that I asked the Minister a very relevant question. I am still waiting for him to reply to it so that we can have what I understand is the normal debate on Committee Stage. The Minister has not yet intervened.

I could not reply because a procedural discussion was going on between Senator FizGerald and the Chair.

I will ask the question again. Section 1 proposes a certain amendment to Article 37. I submit that discussion of other possible amendments to Article 37 is open to us and we may yet table amendments for Report Stage if we see fit. But on the question of the present scope of the proposal contained in Article 1, which refers to the Schedule which I read out, I am asking the Minister for an explanation of why the Government approach the whole problem in such a narrow context.

I will answer the question by referring to a very lengthy speech which I made in the other House on the introduction of the Second Stage of this Bill and also to quite a long speech in this House. During the course of those two speeches I went to very great lengths to spell out exactly why certain matters would not be in the Bill and I also went to great lengths to give the reasons why these matters were not going to be in the Bill. I also gave reasons during the Second Stage in both Houses as to why the Government had decided to put what is in the Bill in the Bill. I do not think it is necessary to repeat these except to say that I am satisfied beyond any doubt whatsoever, as I know are the people from the adoptive parents associations with whom I am dealing, that what is in this Bill meets the needs of those who are emotionally disturbed and upset by the great doubt which has been cast on the validity of adoption orders that exist since the adoption laws were enacted. I am also satisfied that what is in this Bill will meet that need, despite what Senator Robinson has said.

Senator Eoin Ryan mentioned earlier that there is a single issue here to be decided on. In an area that is extremely emotional—as all here appreciate this area is—I believe it would be very wrong, and perhaps damaging, if we introduced other matters for decision, particularly controversial matters. It would not help at all. If this Government do decide at a later stage that other changes are necessary in the area of adoption the view is held by some, and there were opinions expressed recently by members of the Judiciary, that these changes could take place without having to have a referendum. If other changes are necessary then they will be contemplated but as of now no change is necessary other than what is in the Bill before us for Committee Stage.

I am afraid that I do not find it very satisfactory that the Minister replies by referring to a long speech that he made in the other House. As I pointed out, the Minister's reply on Second Stage in this House was very brief and did not in fact answer some of the questions raised. I was accused of saying nothing new. I am not quite sure what the Minister says about that but he did not pick up the points that were made and he did not try to respond to them. What he did say in the course of his contribution—and this is why I am puzzled—was that the Government agree that there should be a reform of the status of illegitimacy and the Government agree that the present situation is harsh on legitimate children who are not available for adoption. It is highly relevant to this section to press a little further on why then the decision is being taken in this Bill, to which we may put down amendments, to confine it to the single issue of the particular amendment to Article 37.

I would like to say, lest there be any doubt about this, that I have the greatest sympathy for the adoptive families who number roughly 26,000 now. I am well aware of their concern, of their fear, of their need for security in their relationships within the family and their need for constitutional and legal security. I know that everybody, on both sides of the House, shares this concern and knows of the need for this legislation. But I would put it to Senator Ryan and to the Minister that there is another sector of our society which is deeply in need of the sympathy and concern of this House—a sector of society what sees children born into an inferior status under our laws, born with a lack of equality under the Constitution and before our laws. I am talking about unmarried mothers. They too are concerned and upset; they are very worried about the position of their children and they have as much right to the urgent consideration of this House as have adoptive parents. That is why I say that the Labour Party's Bill to amend the Constitution was a balanced Bill. This Bill, in this area of adoption which concerns adoptive parents and the single mother, who makes the decision to place her child in adoption, is not evenhanded. It is securing the adoptions of adoptive parents and rightly so, but it is not doing the other thing which we all recognise exists—it is not removing the constitutional discrimination against illegitimate children. Nor is it doing what would be an important reform in the area of the rights of children. It is not removing a very unusual discrimination against legitimate children. I should like to ask the Minister if he knows of any other jurisdiction where legitimate children are prohibited, for constitutional reasons, from being available for adoption? We are probably unique in that but I would be interested in the Minister's view.

The concern of Senators in examining section 1 of this Bill on Committee Stage is to know whether we should try to put down amendments for Report Stage to extend the scope of the section and therefore to enlarge the area of constitutional reform which will require a referendum in July. Far from clouding the issue or confusing people we would be doing our duty by removing constitutional discrimination. The people are very intelligent when it comes to referenda. We have seen that in practice. We have seen issues combined and I understand there will be another issue potentially combined with the adoption issue. The people are not stupid and they are not confused about it. They would like to see the removal of discrimination against children and would like to see all children in particular circumstances having the facility of being available for adoption and of being able to belong to a happy, legal, secure family and having all the rights of a child to parentage in a secure family environment. We are entitled to a fuller response from the Minister on this point, and we are entitled to consider his response and to decide on the basis of it whether we will seek to put down amendments for Report Stage to provide a more balanced and more worthwhile Bill rather than a Bill entailing only this narrow issue.

There is another point about a Bill to amend the Constitution which is to be subject to a referendum. It may well be accepted that an issue which is going to the people in a referendum should not be a highly controversial issue which is dividing the political parties and dividing the people in two. But there is no division on these issues. All the political parties are in favour of this reform in the area of adoption. Indeed, the Labour Party had to push the Government into bringing in this Bill. Senators on both sides of this House in previous debates have expressed strong views that there is a need for reform in the area of illegitimacy. Senators on both sides of the House in this debate have also expressed the view that there is discrimination against legitimate children in their not being available for adoption. The Minister himself has conceded these points but he appears to be prepared to long-finger the rights of some people; he is long-fingering the rights of illegitimate children; he is long-fingering the rights of legitimate children in particular circumstances to be available for adoption and condemning them by this to growing up in institutional care or in the much less secure environment of short or long-term fosterage. There are excellent foster parents and very committed and dedicated foster parents but they can never provide as secure or as good a home environment as the full legal status and security of adoption, either for the parents or for the children.

This year is the International Year of the Child and we will be participating as a country in meetings, celebrations and conferences on children and presumably we are going to hold our heads high in an international context. But I wonder can we, if we are not prepared, when we have a referendum on this issue of adoption, to broaden it and remove the status of illegitimacy and give an equal right to all children to access to adoption where the circumstances warrant it?

During the course of the Second Stage of this Bill in this House I am sure—though I have not got the records in front of me—that Senator Robinson said the same things. During the course of my statement to this House on the introduction of the Second Stage I said the suggestion that has been urged on me is that provision should be made in the proposed constitutional amendment for the abolition of the concept of illegitimacy. Such a change would mean, among other things, that a child would have the same inheritant rights to his parents' property irrespective of whether they were married to each other or not. I said then that my approach to this matter is that I do not rule out the possibility of some changes in the law to accord new rights to illegitimate children and I went on to say that I believed then, as I believe now, that we should await the results of the studies proposed to be carried out in this area by the Law Reform Commission before taking any decisions.

I am opposed to any change in the Constitution which would be liable to undermine the legal status at present guaranteed to the family based on marriage. I believed then, as I believe now, that I am reflecting the attitude not just of the majority but of the overwhelming majority of the public. I fail to see how Senator Robinson can say that I did not deal at length with what was not to be in the Bill. I truly did. The record is there and it speaks for itself. I dealt at very great length with matters that could not be in the Bill. I dealt with them in the Dáil when the matter was being discussed on Committee Stage. Though the amendment tabled by the Fine Gael spokesman in this area was ruled out of order we still had a 15 to 20 minute discussion on it in an effort to try to clear the air. I gave very good and valid reasons.

I have said that if change is to take place, and I am not ruling out the possibility that changes are necessary, they can be made. In this Bill we have a right in going to the people on a single issue, an issue that is not controversial, an issue that would copperfasten the existing adoption orders that have been made since the early fifties. This is the purpose of the Bill and this is what I want to do.

The Minister says that the proposal is to go as an issue to the people and that this issue is not controversial. Who will vote against the proposal? Nobody. How could anybody conceivably vote against it?

Senator Eoin Ryan talked about tidying up other matters in future referenda. I want to make one single but I think very important point, and that is that there is a doubt which has paralysed government in the field of adoption as to whether laws permitting the adoption of legitimate children would be constitutional. Why not now clear up that doubt?

Mr. Justice Walsh has expressed himself as far as he is able to on the matter. I say "as far as he is able to" because there is nothing before him on which to pronounce judgment because there has been no adoption laws permitting the adoption of legitimate children and therefore there is nothing for a judge to find in regard to a law that does not exist. The doubt about the constitutionality is a doubt which will continue to prevent the presentation of the law. As a result of the letter of the law there are children abandoned who because of the possibility of their legitimacy are denied the privilege of adoption and this is done in the name of the sacred right of the family. I fail to understand why, on one of those rare occasions when the people are consulted on the question of amending the Constitution in the area of adoption, the Legislature does not clear up the doubt about its own power so that if now or at any time in the future it wants to give to a body referred to in this amendment the power to make orders adopting legitimate children it may validly do so. Why not? There is no difficulty if there is a will on the part of the Government to do it. What harm can there be to give this Legislature a power that every other legislature in the world would have, a power to provide properly for children?

Why is there not an amendment before us?

We may table one for Report Stage. We are discussing an amendment that should be before us. The Senators have their privileges and one of those is the right to decide when to put down an amendment.

Why not exercise that right?

We are exercising it as to when.

It has been the custom in this House that amendments are submitted to the Chair and that we have an opportunity of judging whether they are in order.

I have very many times put down amendments for Report Stage, deliberately refraining from doing so on Committee Stage, until I found out the Minister's views on the matters concerned. I could only find those out on Committee Stage as I am doing today.

I would have no objections to the Senator tabling amendments for Report Stage.

It would be a great help to us to know what his attitude to the question is. Is it the Minister's view that this Parliament should continue without the power to provide properly for the adoption of children?

The Minister's attitude is reflected in what is in the Bill and if the Senator wants to widen the scope of the Bill it is his privilege to table an amendment for Report Stage and we would deal with it then.

In support of Senator FitzGerald in making this point, the Minister in his very brief reply, which left us in some doubt about the position, refers to the question of the possible extension of adoption to legitimate children in certain circumstances and says that this may not raise a constitutional issue and refers to the judgment of Mr. Justice Walsh in the G. case but is it not the case that Mr. Justice Walsh also expressed the view that it would not be necessary to have this referendum? Therefore, why has the Minister put forward the Bill to have a referendum on one of the issues on which Mr. Justice Walsh expressed the view that a referendum is not necessary but not to include the other issue? It is inconsistent in the Minister's approach to what Mr. Justice Walsh said. Senator FitzGerald said the latter did not arise in the case before Mr. Justice Walsh. He was expressing an obiter opinion on the matter. The main responsibility on us and on the Government is to remove any doubt and we have the opportunity to do it, to include the matter in this Bill. I propose to put down an amendment for Report Stage to that effect. The difficulty in trying to formulate an amendment unless we have the concurrence of the Minister that he would be prepared to have the Bill structured in such a way as to accommodate it is that it may be difficult to table it. Personally I have tried to formulate it and I will now try it again, hopefully in consultation with Senator FitzGerald. We may be able to table an appropriate amendment for Report Stage.

I find it very disheartening to have the Law Reform Commission used as an excuse by the Government for not bringing in basic reforms in our law. It is very sad for those of us who welcomed the Law Reform Commission as a way of advancing law reform to find that now it appears to be a way of delaying law reform. I can point to all kinds of areas, such as nullity for instance. This question was referred to the Law Reform Commission though there was a detailed White Paper on the subject but we have heard nothing more. Now we have to wait on the issue of illegitimacy. This is a very serious situation.

If the Government are committed to a particular reform and take seriously the fact that there is discrimination in our Constitution and our laws against illegitimate children—and I think the Minister has made the point that he is going to safeguard the family based on marriage and that any change in the status of illegitimacy would undermine the family based on marriage—they should introduce into our laws the concept of matrimonial property. We should have that concept in any case. It would be the greatest safeguard for the wife and children within any marriage.

The Senator should realise that on Second Stage the House established the principles of this Bill, which is to amend the Constitution in the way set out in the Bill. I have allowed a somewhat broader debate but I hope the Senators will endeavour to speak relevantly to this section.

I appreciate that this is a Committee Stage discussion and that you have allowed us to make substantial points. But this Bill is only the Sixth Amendment of the Constitution Bill so this is only the sixth time we will have amended the Constitution since 1937. Despite the fact that Senator Ryan said we may have a referendum next year on the other issues we have been raising I somehow doubt that. We do not have these Bills very often, and we must be forgiven if we try, when we have a live Bill before us which deals with the issue of adoption, to ensure that it extends to the other areas that are deeply relevant and are part of the same subject matter. So I do not want to try the patience of the Chair.

The Senator will appreciate that the Chair must interpret the rules of the House. The Chair has gone a long way now and shown quite a lot of leniency.

I accept that. I will attempt for Report Stage to table an amendment which would provide the necessary amendment of the Constitution to allow for the adoption of legitimate children in circumstances where they ought to be able to avail of family life and of the right of any child to the security of a home, a stable environment and the forming of family links which are secured and protected as legal links and which give them the same rights as natural children within marriage.

I am disappointed that the Minister has continued to dodge the issue that we have tried to put before him. Perhaps when we submit a specific amendment on it he may yet yield to what he has agreed is a problem that needs to be dealt with and to what he is aware is a deep legal and constitutional problem and on which there is substantial difference of opinion. I have not heard, apart form Mr. Justice Walsh, any constitutional expert formulate the view that you can have adoption of legitimate children under the present situation. I have heard the view of a number of eminent lawyers the other way, that there is a constitutional barrier. I will leave it at that.

Cuireadh agus aontaíodh an Cheist.

Question put and agreed to.
Aontaíodh alt 2.
Section 2 agreed to.
Aontaíodh an Sceideal.
Schedule agreed to.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasú.
Bill reported without amendment.

When is it proposed to take the next Stage?

I think the Minister is aware of the intention of myself and of Senator FitzGerald to formulate amendments for Report Stage. In view of the complexity of the issue I would ask for at least two weeks in which to formulate these amendments.

The House has had three weeks during which to put down an amendment for Committee Stage and has not bothered to do so. It has gone through this irrelevant discussion about the kind of amendments that might have been put down and which would have been very useful——

That is criticism of the Chair which the Chair should resent.

——and about the kind of amendments to the Constitution we should have because we are to have a referendum. These are all very interesting, hypothetical and theoretical suggestions. If those who spoke on the other side want some time to put down amendments for Report Stage I suggest they have one week to do so. Possibly three weeks was too long and lulled them into a sense of security that they had plenty of time to put down amendments. I suggest one week might be more useful.

I should like to make it clear that there was no intention to delay the House.

Senator Robinson should appreciate, therefore, that if she wants to put down an amendment she has one week to do it.

I must tell the Leader of the House that when he named this day for the Committee Stage, a day which was three weeks away from the debate we had, I thought in my innocence that it meant the Minister was actually proposing to listen to what we had said. I thought that that miraculous thing was actually happening, that the words spoken in the Second Reading debate in this House were going to have an effect on the Executive. I honestly and innocently believed that it was possible that the Minister might be proposing an amendment and I honestly thought that the matter was so serious and so obviously requiring an amendment that he was going to take time to prepare it properly. That is why the three weeks were agreed to so readily.

We have been talking for the past 20 minutes in the context of an unreal situation. The other side of the House were given three weeks, and three weeks is a long time, to submit amendments to the Bill if they so wished but they have not done so. We have been discussing, as I have said, an unreal situation because we have no amendment before the House. Why has there not been an amendment before us?

The only question before us now is that the Report Stage be taken this day week.

I should find it much more convenient if it were two weeks. We shall have a lot of work to do on this day week.

The Seanad will not be sitting two weeks from today.

Ordaíodh go dtogfaí Céim na Tuarascála Déardaoin, 5 Aibreán 1979.

Report Stage ordered for Thursday, 5 April 1979.