The purpose of this amendment is to seek a way of ensuring that the constitutional doubt at its mildest, or the constitutional problem in its real sense, of trying to introduce legislation, to extend adoption to include the possibility of adoption for legitimate children, might be introduced. The Bill, as it stands at the moment, is the narrowest possible ground on which a referendum might be fought in order to ensure the constitutionality of the functions exercised by the Adoption Board. It is necessary that this be clarified and that we have legislation ensuring the constitutionality of the Adoption Board. It seems a pity, as has been repeatedly said, on this side of the House, that we propose to waste the opportunity to remedy another problem, an unusual, and maybe even an arbitrary defect in our adoption law, that is the fact that it appears that we cannot constitutionally provide for the adoption of children who were born within marriage and are therefore legitimate children, even if they were abandoned at birth or so seriously ill-treated by their parents that their parents have shown beyond any question that they are either totally unwilling or totally unfit to care for such children.
We all know that children of this sort exist, and that some young children spend their young lives in institutional care. More and more, we are aware of the specialist research and writing on the shattering impact on a young child, of growing up in institutional care. The weight of expert authority on the subject shows that because of being in an institution, children miss out on early bondage and on a family relationship which makes it very difficult for them to have any guarantee of a balanced and fruitful life, as a teenager and as an adult, and that this can cause very severe problems for children later on. This is a primary concern of this House, and for us as legislators. If we believe that children who could be in families are spending their young lives in institutions, surely we should take sufficient time—and take time for the convenience of people who have put down amendments in the matter—in order to examine in what way we can ensure that this constitutional impediment is removed.
Senator Alexis FitzGerald and I conferred on the matter and we are of the view that the amendment which we submit here is precisely designed to cover the point, because it inserts into the Government Bill the qualification on the word "person". "Person" is a very broad word, which, as it stands, is open to very general interpretation, so that it does not have any particular, qualified or focused meaning in the context. We are ensuring that we introduce what appears to be a narrowing of the word "person" but what is, in fact, an important qualification on the use of the word "person", a very deliberate qualification on the use of the word "person" by inserting the phrase: "notwithstanding the status of such person". There is no point in inserting such a phrase in the legislature qualifying the word "person" unless it means something. This is where this amendment would play an important role in due course, when it came to the decision of this Government or of any Government to decide whether to introduce legislation allowing for the adoption of legitimate children in circumstances where their parents either refused to provide the family home for them or disqualified themselves on grounds of grave abuse or violence to a young child. It would have to be, obviously, very serious circumstances of that order.
If the Government of the day, faced with that, considered bringing in legislation they would say if this amendment were accepted, that the people in a referendum had addressed themselves to the point, had considered that there might be a future legislative proposal extending adoption to cover legitimate children, and that the clear intention of qualifying the word "person" was to qualify it by reference to that person's status and to say very deliberately, "notwithstanding the status of that person", therefore notwithstanding whether that person was legitimate or illegitimate. The importance for the Government of the day and for the Minister for Justice in devising adoption legislation to include legitimate children as a category of children who could be available for adoption, and who could have the benefits of adoption, is that they could rely on this constitutional amendment. Similarly if legislation is introduced—though unless this amendment is accepted it will be introduced in a much more uncertain situation—and passed, extending adoption to legitimate children, then the courts also would look at the fact that there has been a recent referendum and that the referendum had covered not the single point proposed in this Bill but, effectively, two points, the point that the powers exercised by the Adoption Board would be constitutional and the point that notwithstanding the status of a person, there would not be a constitutional challenge on the grounds of Article 37 to the order made by the Adoption Board. Although the section confines itself to the question of challenge on a legal point, the question of the exercise of powers under Article 37, it does not give constitutional immunity to all of the activity of the Adoption Board. As we know, it is confined to the constitutionality of the exercise of its powers that shall not be invalid by reason only of the fact that:
...such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
Even though the new addition to the Constitution will give a limited constitutional immunity by the fact that there is a reference to any person, notwithstanding the status of such person, it is clearly in the mind of the people in amending the Constitution that adoption can, and if there is sufficient pressure for it should, extend to cover legitimate children.
Since we know that legitimate children who have been abandoned or seriously ill-treated spend their young lives in institutions there is a very grave responsibility on us. This is an extremely important Bill, and an extremely important amendment before the House, which is why I could not prevent my feelings of disgust at the cheap tactical tricks being played to prevent proper and due consideration being given to this amendment.
The whole involvement of having a referendum, of placing the matter before the people requires that the people address themselves in a much more personal way to the legislation. If this is a matter on which people will be asked on 5 July to go out and vote, they will ask what they are voting for. Because it is a rather complex provision, what they are voting for will have to be explained to them. Despite the Minister's intervention today, I still cannot understand why the Government go on resisting the possibility of clarifying what is at best, a constitutional doubt, although majority opinion would be that it is a constitutional defect which prevents the possibility of legislation extending adoption to legitimate children. Why do we mindlessly go on condemning young children to a life in an institution? What is the substantial argument against an amendment of this sort, which would clearly indicate both to a Minister for Justice proposing to bring in such legislation, and to judges construing such legislation, that such an amendment to the Constitution performed two functions and not just the single function of ensuring the constitutionality of the Adoption Board in so far as they were exercising functions in the sense of Article 37?
Even at this late stage the Minister should think very seriously about this because if it prevents legislation being introduced to extend adoption to legitimate children, this failure to accept the amendment may be remembered as a failure in the International Year of the Child to take time and to make sufficient effort and to devote sufficient thought into the way in which adoption can be extended to legitimate children. It is only a matter of exercising our minds and our ingenuity. As Senator FitzGerald pointed out on Committee Stage, we are almost unique. I do not know of any other country that prohibits the possibility of adoption for legitimate children. If the Minister is aware of other countries perhaps he would enlighten us about them. It is an accidental legal technicality and since it is a legal technicality surely we should address our minds to removing that technicality so that we can decide on whether or not we would introduce legislation.
If this amendment is not accepted today the constitutional doubt will remain. If the amendment is accepted by the Government and if the referendum goes forward on the basis of the amendment text of the Bill, that in itself will not be enough. There will still have to be a full examination of what the appropriate criteria and safeguards should be and how the rights of the family, in a broad sense, should be protected. All the considerations which are properly for the consideration of the Legislature could all be borne in mind in devising legislation to ensure that all children who did not have the advantage of a natural family, or a home environment of their own, would have the possibility of growing up in the secure family environment provided by the legal device of adoption. Even though I feel somewhat bitter about it I am glad I was able to take part in this debate and I hope the Minister will, even at this late stage, change his mind and accept the amendment.