An Bille um an Séú Leasú ar an mBunreacht (Uchtáil), 1978: An Tuarascáil agus an Chéim Dheiridh. Sixth Amendment of the Constitution (Adoption) Bill, 1978: Report and Final Stages.

Tairgim leasú Uimh. 1:

I leathanach 5, line 26, i ndiaidh "dhuine", "d'ainneoin stadas an duine sin" a chur isteach

agus

I leathanach 5, line 36, i ndiaidh "person", "notwithstanding the status of such person" a chur isteach.

I move amendment No. 1:

In page 4, line 26, after "dhuine" to insert "d'ainneoin stádas an duine sin"

and

In page 4, line 36, after "person" to insert "notwithstanding the status of such person".

I support the amendment which has been tabled in Senator Robinson's and my name. The problem with regard to the validity of orders has been coped with adequately. In my judgment, the Minister has gone as far as he should and the Government's proposal is accepted. The anxieties of the people affected by the query with regard to the validity of the orders should be rested and should be as fully allayed as if court orders had been made. No more than that should be done on that matter.

In the course of this debate the point arose as to whether it was constitutional to adopt legitimate children. It has been my view, which is an unimportant view, that this is constitutionally possible. It is the view, as was expressed in a recent case, of Mr. Justice Walsh, which is an important view, that it would be constitutional. This question seems still to be one of doubt. It seems to me a perfectly legitimate matter for argument as to whether there should be an Act providing for the adoption of legitimate children. It does not seem to be right that the legislature should be in any doubt as to their ability under the Constitution to enact such a law if they desire to do so. Can I ask the Minister what is the view of the law officer on this question, that is, the matter which we have sought to deal with by the proposed amendment? Does the law officer advise that an adoption law would be constitutional without this amendment, that there is no need for any alteration whatever in the Constitution so to provide, does he advise this matter without doubt? If he advises that there is any element of doubt, I submit that that doubt should be removed, as the fundamental law of the country should not prohibit the enactment of legislation which has the support of any reasonable point of view, which might be a minority view. The fundamental law of the country which is to be found in the Constitution should not prevent any reasonable body of people—and there are some reasonable people, I am one of them—from believing that there ought to be adoption facilities for legitimate children. The fundamental law of the country should at least not exclude the successful persuasion by such a reasonable group of the majority of the reasonableness of their view.

Why I think this is important is for a very particular reason. It is the value that I attach to the institution of the family. I believe it to be the crucial educational institution, the crucial institution for the imparting of virtue in its classical sense, and in so far as that institution has been weakened in the west, that weakening is a source of very many of the weaknesses that the west is suffering from. Ironically, it is outside the west that the family institution may be stronger. There has been a radical overhaul in social situations.

I do not want the family to be given a bad image because it is the key structure. I do not want its reputation to be damaged or to be put in a situation where its protection seems to be creating harshness of an unnecessary excessive kind. If this amendment, tabled by Senator Robinson and myself, was acceptable to the Minister, it cannot do damage. If there is the slightest doubt— and there is more than the slightest doubt—on the constitutional point, it gets rid of that. It leaves it wide open to this or a future Parliament to decide whether to have the adoption of legitimate children. That is another matter. The language of the amendment is apt for what it seeks to do.

In the course of an earlier debate the point was made that we can go back to the people for another referendum. That will not happen. These referenda do not occur often. It is an unnecessary expense. In principle, it is wrong that a matter of this kind should be in the fundamental law of the country. If the Minister accepts this, good sense will have triumphed and nothing but credit will redound to the Government for having accepted it.

I disagree with Senator FitzGerald on the desirability of having power to adopt legitimate children. I know there is an arguable point of view for one side and the other. Even if I did agree with Senator FitzGerald, I would be against this amendment because it does not go to the root of the problem.

The Article as it stands merely makes provision for the fact that an adoption order shall not be invalid merely because it is made by a board and not by a court. That does not get to the root of the matter. The question which Senator FitzGerald would like to have clarified in the amendment of the Constitution is whether or not the adoption of a legitimate child is repugnant to other Articles of the Constitution, in particular Article 41 and 42. The problem is whether Articles 41 and 42 would make it impossible to have an adoption order of a legitimate child. Consequently, this amendment would not get to the root of the matter and would not help in dealing with the problem which Senator FitzGerald would like to see clarified.

I am against the amendment not only because of that but because it would raise other very serious problems. First of all, it is not clear what "status" means. It is too vague and uncertain. It would be difficult, if it came before a course, to interpret what "status" meant. The more serious objection to this amendment is that it immediately raises two kinds of persons in the Constitution. The word "person" arises in at least ten or 12 Articles. If one Article refers to a person, notwithstanding the status of such a person, every other Article in which the word "person" arises has to be looked at to see if it is a different kind of person, a person who has a different kind of status. It would be an impossible situation if every Article where the word "person" arose had to be looked at again to see what was the effect of the fact that this Article had "notwithstanding the status of such a person" and the other Articles did not have a definition or a qualification regarding the status of "person". We would have an impossible situation of two different kinds of person.

A very good point. It will not straitjacket the Bill.

Even if I felt that this amendment would be helpful in meeting the problem about which the Senator is concerned it would be likely to create so many problems that I would be against it for that reason. It does not meet the problem.

Would the Senator like to improve it?

It cannot be improved.

I wish to comment as an ordinary parent. No one would disagree with the spirit behind this amendment. Surely the process of adoption is to provide children who have neither homes nor families with the atmosphere of a home and loving parents. Whether they are legitimate or illegitimate does not matter. However, it seems that view is too simplistic. If the welfare of the child is to be regarded as of prime importance, we are told that this would interfere with the balance of other people's rights, the rights of the family as enshrined in the Constitution. As a non-lawyer, that sounds like the height of nonsense, but this is the view of eminent lawyers and they are the experts. This is what they tell us and their view must be respected.

I wonder why the proposers of this amendment did not speak about the opinion expressed by the legal advisers to the Adoptive Parents Association. They suggested that the question might be dealt with by placing the whole code and the Guardianship of Infants Act, which sees the welfare of the child in question as of paramount importance, under the protection of the Constitution by a simple amendment. Would this be a better way to do it?

I would like to thank the Senators for their various points of view. It is helpful to have these expressions of opinion before one comes to any conclusions. The Government are opposed to the amendment. We believe it would not achieve what its sponsors clearly intended to achieve. In fact on close examination our conclusion is that it would achieve precisely nothing and it would be a totally meaningless insertion. The section would mean precisely what it means at present, no less and no more, no matter what qualifications of the kind proposed in the amendment were inserted. The amendment might refer to such matters as nationality, sex or age as well as status and, as Senator Eoin Ryan, who is an eminent Senior Counsel, has correctly pointed out, effectively the word "status" has no meaning whatever in domestic law. The Oireachtas we believe ought not to adopt a provision that achieves nothing or which is meaningless. This proposed draft amendment achieves nothing at all.

It is proper to point out that the Minister himself made it clear in debating this very important Bill, and very urgently required Bill, that the Government is opposed to what the sponsors intend to achieve by this amendment. What is intended is that the Constitution should make clear that the adoption of legitimate children who are not full orphans is permissible. To return to what Senator Alexis FitzGerald stated in Mr. Justice Brian Walsh's case—there is no more eminent judge sitting in our courts than Mr. Justice Walsh—to which he did not give us the full reference, it does appear arguable that the adoption of such children is permissible under this Constitution as it stands. Senators opposite have already said that we should put the matter beyond doubt by amending the Constitution now. The Government, however, as I have already pointed out take a different view and I think that Senator Eoin Ryan encapsulated that view in his contribution to this debate. The Government are simply not prepared to open up adoption to legitimate children. As the Minister for Justice has explained, we could not in practice confine the adoption of legitimate children to those types of children mentioned by Senators, that is those whose parents are either unwilling or unable to provide them with what some people would regard as an adequate home environment. Of course Senator Cassidy is correct in what she said in the opening remarks of this speech. In the final analysis what we should be primarily concerned with is the welfare of the child, legitimate or illegitimate. I do not think there is any gainsaying those remarks and I thank the Senator for her contribution in that regard. Various very serious problems could arise if the adoption system were opened up as some Senators have urged. For one thing the question of dispensing with parental consent would have to be faced. Even in cases where that particular problem did not arise there could be pressure on parents to hand over their children which could lead to regrets and recriminations and worse indeed at a later stage if circumstances changed. The possibility of disputes arising in this way would inevitably be greater than in the case of those categories of children who may be adopted under the existing law in the matter. All in all the Government believe the potential dangers as such and they are not prepared to make any move in the direction of permitting the adoption of legitimate children. We believe that this draft amendment has no meaning at all.

I reject the argument that the various proposals by Senators and Deputies were really only very tentatively put forward and that the Government and its advisers ought to accept them as such and help knock the proposed amendments into shape. The amendment now proposed was shapeless and was not capable of being knocked into shape and consequently we were left as I say with nothing to knock into shape. That is the reality of the situation. What is in question in this whole area is not some technical exercise in respect of which there is a unique expertise in the arcana of some Government Department. We are dealing with fundamental constitutional matters. The Opposition Parties have available to them in this House and in Dáil Éireann and elsewhere the talents and expertise of highly qualified and most articulate lawyers and indeed they have available to them professors of law, so that they have all the trappings and paraphernalia of erudition available to them. Probably the advice they have got would be consistent with what I am saying now. I am not imputing any motives to Senator FitzGerald or others, quite the contrary. Quite clearly the draft amendment is unacceptable and meaningless in the context. In general we believe that they should have been able to formulate proposals that represent precisely what they wish to achieve. If they cannot, we believe that there may be something quite wrong. Is it that the precise objectives they have in mind cannot be achieved without attendant results that they are not happy to face? I believe that the amendment was placed in a spirit of goodwill and was placed with the intention of teasing out and arguing the possibilities of introducing an amendment to cover the condition of legitimate children in our society. Whilst it is unacceptable on this occasion no doubt this debate will be a vehicle on which we can have further debates to discuss this very important matter. It is a matter of deep social concern, and I do not think the inclusion of this draft amendment is possible. In any case I share the Government's opinion and that of the Minister for Justice in that regard. I am grateful for having the opportunity of expressing this opinion. I would not have been able to express that opinion if the Senators opposite had not placed the draft amendment as they did.

I am glad to have the opportunity to speak on this amendment on Report Stage. Before making my contribution I would like to say that I am disgusted at the fact that the House has seen fit to sit through lunch today even though I had indicated both to the Leader of the House and to the Fianna Fáil Whip that I had personal problems of taking part in a school run.

This is not relevant.

This Chamber is a male-dominated forum and never have I seen that as much as today.

This is not relevant

I have rarely been so angry. I was almost prevented from moving an important amendment because the Leader of the House would not adjourn for lunch.

That is not in order. You are either on the amendment or you will sit down.

I still register my disgust.

The Senator has done so and cannot be allowed to go further.

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.

I feel, on balance, persuaded by Senator Ryan's arguments concerning the difficulties of the wording of such an amendment. Seeing that Senator FitzGerald, myself and Senator Keating spent the last three hours splitting very important legal hairs concerned with mineral development we should recall that the reason for doing so was provided by a court decision taken on foot of the Constitution. In making an amendment to the Constitution one has to be absolutely clear and absolutely precise about what one is doing. I as a non-legal person am persuaded by Senator Ryan's arguments that this amendment would cause more problems that it would solve. That is not to say that I believe that what is behind the amendment should not be put into law. I am persuaded by the arguments of Senators FitzGerald and Robinson that there is a real problem that needs to be tackled. I hope that the Minister and his Department will set their minds to tackling this problem. Clearly the problem of deciding in the case of a legitimate child has important ramifications. What body is to decide? How are the courts to function in that case? The problem of parental consent must also be considered. These are not trivial problems. One of the important things about this debate is that it has emphasised the important fact that whereas some years ago there was a discrepancy in the way we viewed legitimate and illegitimate children, the public view is changing. On this issue, in this area of family law, I regret that the Legislature is often far behind public opinion. We are slow in grasping the nettles. The Minister of State, and the Department of Justice, should introduce legislation which would deal comprehensively with this problem which obviously requires a great deal of hard work and consideration but which is something that should be dealt with as a matter of urgency. I am very worried about this but I am persuaded by Senator Ryan's argument that an amendment of this type really creates more problems than it solves. As such, I could not support it.

I did not participate in earlier Stages of the debate on this Bill and I simply want to make one point. There seems to be a consensus that the problem is real. There was an expression of its reality from the Government side of the House, which none of us, who heard that intervention, could disagree with. The whole weight of what I understood Senator Ryan to say was that the amendment was a bad solution to it. As far as I am concerned since we are going to have a referendum, since we are going to have the attendant publicity and the attendant public discussion that that will inevitably entail, if the problem is real and if we are already prepared to go to the extent of having a constitutional referendum, why did the Government with the time they had and the weight of legal advice behind them, not improve the amendment, if their intention was to do anything? It is hollow to use a technicality as an excuse for inactivity. It is a pretended rather than a real reason. I could believe their sincerity if they had tried to solve the problem. I look on their present action as a mechanism to cloak their determination to do nothing in a technical argument. They stand indicted because of their failure to try to do something when they thought that the mechanism proposed by the Opposition was not perfect.

Fáisnéiseadh go rabhthas tar éis diúltiú don leasú.

Amendment put and declared lost.
Glacadh an Bille chun an bhreithniú deiridh a dhéanamh air agus ritheadh é.
Bill received for final consideration and passed.