Item 23. Senator Robinson.
Recommendations of Review Committee on Adoption Law: Motion.
An Leas-Chathaoirleach
A Leas-Chathaoirleach, on a point of order, is it in order for a motion to be proposed in the absence of the proposer? May I have some indication, either from yourself or from the Deputy Leader of the House as to which group is taking this allocated period of Private Members' time? I am entirely unclear as to which group is taking this time. Is it in order for the motion to be proposed in the absence of, and without the consent of, the proposer?
An Leas-Chathaoirleach
Yes, is the answer. There are two signatories to the motion. I understand Senator Robinson can move motion No. 23, as indeed, could Senator McGuinness. It is in order for Senator Robinson to move the motion as her name is to the motion.
On a point of order, I would like to ask if the procedures of this House have been turned upside down? Is this Independent Members' time or is it Labour Party time?
An Leas-Chathaoirleach
This House decided on the Order of Business at 2.30 p.m. today. I do not make any rulings. I chair the meeting of the House. I try to run this House. We decided the Order of Business without a division. I do not want anybody to be upset. I would prefer if we could settle this matter without any——
Perhaps we could have an indication under what procedure this is being held? Is it in Labour Party time? Is it in Government time? Is it in Fianna Fáil Party time? Is it in Independent time?
An Leas-Chathaoirleach
The House agreed on the Order of Business at 2.30 p.m. today. I will try to be helpful.
Might I just reassure my two colleagues that it is Private Members' time? This House has never precluded any Senator from any side of the House contributing during Private Members' time. Senator McGuinness will be replying to the debate. The Minister will also reply to the debate at the next phase when we are dealing with the next one-and-a-half hours on this debate.
I am aware that it is Private Members' time. Which group's Private Members' time is it? There are four groups in this House. Can the Deputy Leader of the House please tell me?
Private Members' time.
The Deputy Leader of the House is being deliberately evasive. Which group is it? It is either Fianna Fáil, Fine Gael, the Labour Party or the Independents. Which group is it?
The Leas-Chathoirleach said it a few moments ago. This issue was raised this afternoon. The arguments being put by Senator Brendan Ryan and Senator Ross were put this afternoon. The House made a decision.
An Leas-Chathaoirleach
We cannot have a debate on it now. The Order of Business was agreed at 2.30 p.m. I have made a ruling that it is quite in order that Senator Robinson can go ahead with item No. 23 on today's Order Paper. I call on Senator Robinson.
I am entitled to know which group is proposing this motion.
An Leas-Chathaoirleach
Could Senator Ryan find that out outside the Chamber?
I am sorry but anything I know about this issue, I was told in here, I was not told anything about it outside this Chamber. I am entitled to know, within this Chamber, which group is using Private Members time. Can the Deputy Leader of the House tell us? He knows more about the Independent Members' business than we do.
I have already replied that it is Private Members' time of the Private Members' group. There is nothing to stop any Member of the House contributing.
You mean the Independent Members' group?
I would like to put on record that not one single Member of the Independent group wants this debate today and yet we are holding it in Independent Members' time.
It is the greatest travesty that I have witnessed in four years in this House. We are being told by the majority Members of this House what is being debated in our time. It is an appalling abuse of——
An Leas-Chathaoirleach
Senator Ryan and Senator Ross, I have to go on with the Business of the House. Senator Robinson.
In view of the fact that the House considers this so important and it takes priority over the motion which they decided not to take, I formally ask for a quorum.
Notice taken that 12 members were not present; House counted and 12 Members being present,
An Leas-Chathaoirleach
Senator Robinson.
I move:
That Seanad Éireann takes note of the recommendations of the Review Committee on Adoption Law and recognises their value; and calls upon the Minister for Health to introduce legislation without delay implementing these recommendations.
I welcome the opportunity to debate this important report. However, I very much regret the circumstances in which this opportunity has been created. I was not present in the House at 2.30 p.m. when the Order of Business was agreed. I was informed in the course of this afternoon of the decision taken. I was informed in adequate time to prepare to contribute to the debate. Once the House decided that the motion referring to this important report was to be taken at this time, if the motion is not moved then it lapses. It would be extremely regrettable if a report of this significance, as will be evident from the debate which we will have today and on the next day when the debate resumes should lapse. That would be highly regrettable. The report refers to very urgent matters in relation to our adoption code which are badly in need of reform.
I deeply regret that the proposer of the motion, Senator McGuinness, is not present and is not contactable so that she has not been able to express any view on the matter. I know that she will want to make her contribution. Senator McGuinness will have an opportunity to wind up and reply to the debate. It is unfortunate and regrettable that this has happened. The debate has been set in train. The best course at this stage is to use the time that has been allocated by the House and to have this debate on the Review Committee on adoption law.
The primary reason why I seconded the report at the request of Senator McGuinness was because she particularly asked me to do so as somebody like herself who has been involved as a practitioner dealing with adoption cases. She felt it would be appropriate that I should second the motion in her name so that we could express not only our strong views on the recommendations of the Review Committee but also our sense of urgency, a sense that it is important that priority be given to bringing in the necessary amending legislation, and that we could say that as proposer and seconder of the motion. I am sure Senator McGuinness will echo that in her reply to it.
I welcome this opportunity to debate the report of the Review Committee which was submitted to the Government in May 1984. It is a model of what I would regard as a balanced and caring report. That is not, in fact, to say that I necessarily agree with every detailed recommendation or position taken by members of the Review Committee. They are to be commended for the very balanced and reflective way in which they have sought to put forward proposals for reform in this particularly vulnerable and difficult area of adoption. It is an area which affects a number of different people. To some extent, it is an area where pain will be caused to some at least, if not all, of the parties involved.
It affects deeply the mother of a child who faces a decision whether to keep that child, if she is an unmarried mother, or whether to place the child in adoption. Her position is thoughtfully and caringly reflected in the recommendations of the report. It affects the prospective adoptive parents.
Some of the criticisms of the existing procedure show an awareness of unnecessary delays and unnecessary complications in the procedure which have led to heartache and, sometimes, very severe grief on the part of adopting parents, where, at the end, the process does not come to completion as they might have wished. It affects the child who is the subject of adoption. It also affects other children who are not at the moment eligible to be considered for adoption.
Given that adoption is a legal mechanism whereby we as a society provide an alternative family to a child, it is very strange that we have for so long refused to broaden the category of eligibility for adoption. It is strange — in a society that does, in a sense, pride itself as caring about children and as being very child-centred and family-orientated, — that we deny to a significant number of children the possibility of being eligible to have the alternative of an adoptive family and to have all the security of growing up in a two-parent family situation. We, in many cases condemn them to growing up in institutional care or, alternatively, in some cases in a much less secure position of long-term fosterage.
This report is timely and its recommendations are urgent. There being only a certain time allocated to contributors to a motion in Private Members' time, I propose to consider the summary of the main principles and recommendations in the report, starting at page 99 of the report, and to make comments on these basic principles and recommendations. The first basic consideration which is identified and which is dealt with in detail in chapter 2 is that a child has a right to grow up in his or her family of origin and that this should be supported. It is clear from the thrust of the report that "family" there means not just the narrow context of the family based on a valid subsisting marriage, but means "family" in the broad sense of a single mother in relationship with her child, or mother and father if they are married parents or a couple cohabiting if they are living together as a natural family. The child has a right to grow up in his or her family of origin. The State should lend its support to this principle and ensure in particular, that no mother would be obliged to give up a child for adoption because of the economic problems that would otherwise be created for her.
In theory that is part of our present adoption code — theory, because of the requirement of a fully informed and free consent on the part of a natural mother. One could argue that a mother should not be forced by economic circumstances and yet there have been a number of judgments in which have said: "Look, if we were to look into all the possible pressures of an economic sort on mothers then we could never be sure that there was a situation where there was a fully informed and free consent to the placement of a child for adoption". If you like, the opposite view is in effect, being implied. It is being put forward that if the mother was in a secure position economically and in every other way with proper supports, then it would be much less likely that she would take the decision to place the child for adoption. Indeed, There is no doubt about it. Over the last 15 years or so we have seen a substantial reduction in the number of children being placed by their mothers. We have seen a corresponding increase in the number of mothers who are keeping their children themselves and rearing them. It is important, as a basic principle, that the State should actively subscribe to the principle that a child has a right to grow up in his or her family of origin and that the State should lend support to that — financial support, advisory support, and all the help and back-up that would be necessary. That would mean some fairly substantial practical measures in the area of child care and other areas in order to secure, particularly to the one-parent family, the kind of supports that would ensure the application of that principle.
The next principle which follows from that basic one is that a child has a right to a stable and caring home. Where this cannot be provided by the family of origin then a range of alternatives should be available, either short-term or long-term, as the particular case may require. This is the proper emphasis. It leads to the next main area of consideration, which is in chapter 3 of the report, and that is the question of the eligibility of children for adoption. Under our present law the class of children who are eligible for adoption are children who are illegimate or orphans, There is a technical extension of that to include a legitimated child under the 1964 Act provided the birth of that legitimated child — a child legitimated by the subsequent marriage of the parents — has not been re-registered.
Excluded from eligibility for adoption are the child or children of married parents, even if those married parents have completely failed to assume any parenting role, even if they have been completely lacking in any capacity or willingness or ability to assume the responsibilities of being loving and caring parents, even if they are themselves separated no longer living together in any family context, or even if there are in practice the most appalling problems and insurmountable barriers to any kind of normal family life for the child. The child can be taken into care if this is necessary, but that child would not be eligible for adoption. The review committee rightly come down on what ought to be the principle which would apply, and that is that all children should be eligible for adoption and that the law should be changed to allow for the adoption of legitimate children with parents living, where the circumstances warrant them, to give them the opportunity of being placed in an adoptive family.
The review committee also — and I would support this — note in some detail in chapter 3 the possible constitutional difficulties which could arise, and rather than wish those away the review committee recommend, in effect, that there be an amendment of the Constitution. I would support that view because although this is a difficult legal area — I do not want to dwell on it at length in the time I have at my disposal — I think it is a wrong area on which to have a shadow of doubt. In other words, I do not think we should contemplate bringing in legislation which is potentially open to the taint of being unconstitutional, because if a challenge were to be brought it would affect so many vulnerable individuals and families in the country. It would be much better to clarify the matter by putting forward the appropriate amendment of the Constitution. This is important also because there is a value being promoted. I think it is a value on which it is appropriate to act by way of a constitutional amendment involving the necessary referendum and therefore public discussion and participation by the people by way of referendum. I would very much support that major change.
Again in the next chapter — chapter 4 — the review committee consider the question of the eligibility of adopters. I would broadly support the proposals which they make in that area that whereas adoption should continue under normal and in most circumstances to be adoption by married couples jointly, that a single person in addition to existing categories should be eligible to adopt where it is in the best interests of the child. There have undoubtedly been cases — and I have certainly known of some cases — where a person who should have been in a position to adopt was not eligible to do so under existing law. There was a tragic case of somebody who was, in effect, the real parent of a child and who had been bringing up that child and wished to assume the full legal relationship of parent and child, but was, for very technical and unconvincing reasons, excluded from eligibility to adopt.
I note at paragraph 4 (18) and 4 (19) that the review committee are of the view that unmarried couples or those whose marriages are not recognised by the State should not be eligible to adopt jointly. I would certainly like to see that further discussed and developed, because undoubtedly, under our present situation in Ireland, we are seeing evidence of an increasing number of stable unions between couples who are simply not themselves eligible to marry, to use that phrase again. There is the problem for one of them having been involved in a previous marriage. In the absence of divorce — which is something I hope we will discuss very shortly — the couple cannot regularise their position. These are, generally, couples who want to marry but who are prevented for doing so and it may well be, for one reason or another, that they would be an eminently suitable family to adopt a child. In those circumstances the State should allow the adoption to be effected jointly by such a couple. The circumstances could be set out quite strictly as is done in the case of married couples.
I support the simplification proposed in standardising the minimum age for all categories of adopters to 21, and I support also the continuance of the position that there is no statutory upper age limit for adoptive parents. There is a rule of practice and a code of procedure about the age limit so far as the adoption societies are concerned, but there can be circumstances where a couple who are older than adoption societies would consider to be ideal are the appropriate couple to adopt in particular circumstances. I would not like to see them disbarred altogether by statute.
Chapter 5 deals with an extremely important area in relation to adoption, and that is the whole area of consent. The review committee, having looked at this closely are of the view that the present consent procedure is too long and complex. They recommend a simplified system but one which would nevertheless operate in two stages, the first stage being an agreement to placement for adoption and the second being the actual consent to adoption. In effect that more or less describes the two main stages of the existing procedure. The review committee recommend that the existing method for the placement of the child for adoption should continue to operate but then they recommend a significant change to the present position. By and large I go along with this recommendation but I have some cause for concern which I will mention in a moment.
The review committee recommend that a natural parent — it would in normal circumstances be the natural mother but we will see that the father is also potentially involved in certain circumstances where his consent may be required — would be statutorily entitled to the return of the child within the first three months of placement for adoption. In other words there would be a clear right to the mother if she decided to look for the child back, because she had changed her mind after the agreement to place, as long as it was done within three months and this statutory right to the return of the child means that adoption societies would be obliged to ensure that the child was returned.
Normally that right would exist for three months after placement, but that right would only endure up to the time of the actual making of the consent to adoption by the mother in the event of her consenting before the three month period expired. If she consented earlier — she would not, of course, be in a position to consent before a period of six weeks — and before the three months, then she would only have a statutory right to recover the child up to the time she consented, but not after that.
Then there is the recommendation which I will quote: "after the expiration of this period she should be required to apply to the adoption court for the return of her child". I will come to the proposal in the review committee to establish an adoption court as a substitute for the existing adoption board with its statutory powers and functions under the adoption code. I am concerned about the way in which that balance is worked out, because it means that after a period of three months has elapsed the onus of applying to the adoption court is on the natural mother. In a sense this may mean that the onus of proof on the matter is on the natural mother after three months following the placement. It requires that the natural mother have clear access to legal advice. It is based on an assumption that she would have available to her legal advice to enable her to take proceedings. Natural mothers at the moment do sometimes take proceedings. They take proceedings under the Guardianship of Infants Act, 1964. They may take habeas corpus proceedings when they want to take urgent steps. They do sometimes manage to get legal advice and indeed once they are involved in seeking the return of their children, legal aid is provided under a special scheme to ensure in the particular circumstances that they will have legal advice. At the same time it has been my experience that there are a number of cases where a natural mother simply did not take any steps because she had no legal advice. Very frequently adoption matters come to court not because the natural mother has taken a step at all but because the prospective adoptive parents — when the mother has failed to complete the final consent — decided to bring an application under section 3 of the Adoption Act, 1974 seeking to dispense with her consent. Very often, therefore, the matter comes to court because the prospective adoptive parents — having exhausted any other method of trying to get the consent and having been told by the adoption society that it looks as if the mother is not going to consent in this case, will bring proceedings under the 1974 Act.
This reflects a practical reality. It also brings out the lack of easy access to legal advice by single mothers. In many cases where the natural mother is young, or where she comes from a background where she is not accustomed to taking independent decisions on her own behalf or where she lacks the self confidence, she could be disadvantaged by the fact that she would be required under this recommendation to apply to the adoption court.
I would also be concerned to ensure that the natural mother did not carry with her application some heavy burden even after three months in relation to seeking to establish that it was in the best interests of the child in order to ensure that the child be returned to her. That is something I should like to see more fully discussed. It may be something on which the Minister might comment when participating in the debate.
The next recommendation is that the consent to adoption should be irrevocable. At present a natural mother may withdraw her consent to adoption at any time before the making of the adoption order. I can see the substantial reasons behind this recommendation of the review committee. There have been heartbreaking situations for prospective adoptive parents where the mother has withdrawn the consent, so giving rise to the necessity for an application under the 1974 Act and for litigation on that. But if the consent is now to be irrevocable, that requires a very high quality and standard of advice and counselling and help to the mother before she consents. That is something we would have to think very carefully about. However I may have misread that slightly and I may have raised an issue which is not a major problem in the area.
The next matter I want to consider is a proposal which I very much welcome, the review committee would give better recognition to the natural father and enable him to exercise significant rights in certain circumstances which he does not have at the moment. They propose that the consent of a natural father to the adoption of his child should be required where the paternity has been established and, secondly, where parental rights have been vested in him by court order. There is a definite link between that provision and the proposals in the Status of Children Bill. It would be interesting to hear the Minister's comments on the proposed extension of the right to the natural father, which I very much support, and on the manner in which this would be affected.
The dispensing of consent would be done by the adoption court, which would be so empowered, in certain circumstances. This is another reason why it would be preferable to have a constitutional amendment to remove any possibility of a constitutional challenge to that provision in the case of a child of married parents. The court would be empowered to dispense with consent to adoption in certain defined circumstances provided that a period of three months had elapsed since the child was placed.
There are a number of useful proposals in relation to adoption agencies. It is noted that there are too many agencies and that there is a need for new criteria for registration and the maintaining of standards by the agencies. I would agree with that. There is a proposal to limit more narrowly private adoption arrangements. It would no longer be lawful for a person other than a relative to receive a child for the purpose of adoption unless the child is placed by an adoption agency. This is probably a wise course given the full implications of adoption and the need for very careful counselling and standards to apply.
A major structural reform proposed by the review committee is that the adoption board — which was established under the 1952 Act — would be replaced by a specialist adoption court and that this would be a single authority having a jurisdiction throughout the country and having the powers of the High Court. It would function as a branch of the High Court. I find the proposals of the review committee on this extremely interesting. They are not dissimilar to the proposals in relation to a family tribunal contained in the report of the Joint Committee on Marriage Breakdown. That was dealing with much broader areas of jurisdiction, but it is interesting that the approach is not at all dissimilar. The recommended composition of the Adoption Court is that it would be presided over by a single judge especially appointed for that function and the judge, where there was a contested case, would sit with two assessors who would be drawn from a panel chosen by the Minister for Health.
I should like to see further discussion on the composition of that panel. I welcome the idea of assessors sitting with a judge, in that this would give a balance between the strictly legal issues that would have to be considered and on which the judge would have to be satisfied — whether all the statutory criteria were established, whether there was a proper consent in the circumstances — and the broader issues in relation to the proper decision on the basis of the welfare of the child. In chapter 10 the review committee make a number of recommendations in regard to procedures to be observed by adoption agencies in making placements and in supervising placements for adoption. My view would be that the standards of adoption agencies vary greatly throughout the country. Some are excellent, some are adequate and some are substandard in the sense that problems arise in relation to the way in which they exercise their functions. I would agree with the recommendation of the review committee that there needs to be a proper basis for registration and for deciding on the procedures of the adoption agencies in order to ensure that they carry out their functions of supervising placements to an adequate degree.
I support also the idea of giving an alternative jurisdiction to the Adoption Court to make an order of guardianship as opposed to adoption in certain circumstances. This is an appropriate concurrent jurisdiction for a proposed adoption court of that kind, as it may well be that it would be better in some circumstances for the court to make an order appointing the applicants to be the child's legal guardians.
Another important new proposal is that a child would have a limited but a defined statutory right to information. This is a recommendation supported by a majority of members of the review committee, and it would apply only to future adoptions. A majority of the committee were not of the view that it should extend to adoption orders which have been made already. The effect of it would be that when a child had reached the age of 18 — and was therefore an adult for legal purposes — that child would have the right of access to his or her original birth certificate. The statutory right would not extend beyond that. In order for that right to operate fairly for the natural parent or parents involved, they would be made aware when the child was being placed for adoption that the child would have that right. It is available in other countries and it helps certain children who have a crisis of identity — particularly as teenagers — and who in order to understand themselves during the period of adolescence have a basic need for greater information about their parents and about themselves. In some cases they may wish to find their natural parents and seek to establish a relationship with them. It is important that a recommendation of that kind be implemented. There has been a slight artificiality in our adoption code. It has been too absolute. Therefore, I welcome that recommendation.
Time does not permit me to consider any further matter but I look forward to the debate and to the contribution of the Minister and of Senator McGuinness in replying.
In support of the motion, I welcome this report. Its recommendations are long overdue in the adoption field. Senator Robinson is the best person possible to deal with the constitutional aspects of it in terms of consent. I intend to restrict myself to chapter 7 which is the adoption agency section. Despite the fact that the review body made such recommendations, they have failed to grasp the nettle. Last year the adoption agencies dealt with 1,100 children. We are all under the protection of the State, but there is no section so vulnerable as children. We would be unhappy if a child with a broken arm for instance, was sent to a part time semi-skilled practitioner to have the arm repaired, but we are content to allow part time, in many cases unskilled and very inefficient organisations to decide what to do with thousands of children.
As we can see from the report, the Adoption Board do not fulfil their function in terms of monitoring and reviewing. Therefore, we can say with some justification that the system appears to be that the agency apply and get an automatic agreement from the Adoption Board for what they propose. The review committee have said they wanted to acknowledge the genuinely humane concern and compassionate approach that normally prevails in the difficult work of the adoption agencies but in the submissions received from interested organisations and individuals there was a considerable volume of criticism of some aspects of the work of the agencies. In general we accept that the criticisms are well founded. When this review board report comes up for legislation the Minister will have to pay far more attention than did the review committee to chapter 7, in relation to the agencies. What is the reality? The reality is that you can shop around. We know of the trauma of many couples who are unable, for one reason or another, to have children of their own. We know the searching that goes on.
On a point of order, in view of the interest shown in this subject at 2.30 this afternoon I would like to call a quorum.
Notice taken that 12 Members were not present; House counted and 12 Members being present,
I was saying before I was interrupted by Senator Ryan that the idea of a couple who wish to adopt a child having to shop around various adoption agencies should not be tolerated. Prospective parents of an adoptive child do not know what the standard or the criteria is in any adoption society. In some cases some agencies refuse to allow a child to be adopted by parents who are over the age of 40. Some agencies refuse to allow a child to be adopted by couples who are under the age of 40. In some cases it is impossible for a non-Catholic to adopt a child in this State.
It should be noted that, having called for a quorum, the two gentlemen concerned are now leaving.
Some of the agencies would seem to be more concerned with establishing that one is a card carrying member of the Catholic Church rather than establishing one's suitability to look after and bring up a child with the love and care all children should have as a right. The difficulties faced by people who are not members of the majority Church in this country are immense. All prospective couples should have equal rights in terms of adoption. There should be some common standard set by an authority. In this case it is a matter for the Department of Health and the Department of Social Welfare to set known standards. One can imagine the chances of a non-believer, or a Protestant, a Jew or a Muslim, going to the Catholic Protection and Rescue Society or the Limerick Catholic Adoption Society regarding the adoption of a child. As we go down the list we have the whole calendar of every saint canonised by the Church before there is reference to adoption agency.
The State has a role to play. While I admire the work of voluntary bodies — I do not decry it in any way — the area of the placement of children is so important that it ought to be a matter solely for the State and in this case under the aegis of the various health boards. There is mention of this in the review committee's report: you have a situation where in one part of the country a couple are quite happy and prepared and are suitable to adopt a child which another area has found extremely difficult to place but there is no transfer of information. Why should there be? How can one expect that there would be when you are dealing with part time, understaffed voluntary, and, as the report says, in many cases inefficient bodies? There is a need in the interests of the children. Like many organisations, after a while they are run sometimes for the benefit of the people who are charged with the task of organising them and the main function of placing children in proper homes for adoption is sometimes lost sight of. We now have more than 20 adoption societies. Last year one society had no children available for adoption. This begs the question of why they are there? Is it because there is a chairman, a secretary and committee members who like to be around in case something happens? There is no reason to have 20 agencies to place something under 1,000 children in this State. When this review committee's report comes up for legislation that whole area of adoption societies should be taken into account. I do not want my contribution to be construed as an attack in any way on the work these societies have been doing. I simply question, as do the review body, their efficiency, their capability and the need for them when we now have in the eighties a health system which is sophisticated, which is administered in various areas and which is light years away from a situation when local community voluntary bodies had to do this because nobody else could do it. That situation has utterly changed. Therefore, the review committee should have grasped that nettle and said simply and straightforwardly that the placement of children will become a matter for the State. Even if they did not want to go down that road totally, they could have taken another direction because at the moment the 20 agencies who have the power to recommend the placement of children are financed in the main by the State. The Department of Health pay substantial sums of money to these voluntary bodies for the work they do. It is quite right that they should. But in return there seems to be no facility for representation by the Department.
So long as an agency submit their registration criteria and that is accepted that is the end of the matter. They are then in receipt of State funds to carry on the work in a voluntary fashion. I have always believed that wherever the State gives out, on an ongoing and regular basis, sums which may be substantial or otherwise it should have representation on those boards.
It states in this report that the agency sent out questionnaires; most of the agencies replied and some did not. The committee accepted the fact that the Adoption Board does not have a proper monitoring procedure. As I stated at the outset it is conceivable that little, if any, checks are carried out on most of the agencies. I submit that there should be, as a right, representation from the Department of Health on all the agencies, not only to monitor how its money is spent, but more important, to monitor how these people go about placing children. It is ludicrous to have a choice of any one of the 20 agencies; you do not know what they require of you as they all have different standards and requirements. This is a situation that no couple seeking to adopt a child should be put into; everybody should know that there is a basic criterion that they must meet and that it is not decided by a private group bringing into play their own religious ethos and their own system of values which may not be generally shared.
While the review board has been quite brave in many areas in terms of the adoption for the first time of legitimate children, it has muddied the waters there to a large extent. This is an area where in another forum within the Labour Party I intend to pursue chapter 7 in far greater detail than in the two minutes I have been requested to finish in.
Like other Members, I, too, want to warmly welcome this report. It is a pity that it was introduced in controversial circumstances, as it is deserving of an open-ended debate. As Senator Robinson has stated, it is timely and urgent and I hope that it gets the attention that it deserves.
As I did not get enough time to study the report, my contribution will be based on representations made to me at different times relating to it. The importance of this matter is indicated when you compare the births out of wedlock in 1953 as given in the report as 1,340 and the corresponding figure for 1983 of 4,517. I believe the children born to married couples through extra marital relationships cannot be adopted; where a married mother had a child in such circumstances her husband is the legal father and under the law the child is his; they can place the child in a foster home where it may be moved around from one institution to another three or four times during its childhood. This child cannot be adopted, because the only criterion is illegitimacy as is set out in the report on page 11, under "Adoptable Children", 3.1 and I quote as follows:
The present law permits the adoption of
(i) orphans,
(ii) illegitimate children, and
(iii) children who have been legitimated, inter alia, by the subsequent marriage of their parents but whose births have not been re-registered in pursuance of the provisions of the schedule to the Legitimacy Act, 1931.
It has already been pointed out that the third category accounts for a relatively small number.
It is intended to do away with the status of illegitimacy. This is something with which we all agree. There will be a problem in this area because unless the law is changed in relation to adoption, technically, it will not be possible to adopt. Page 12, paragraph 3.4 of the report states:
In our view adoption should be one of the options available to provide care for all children, whether they are born in or out of wedlock, who cannot grow up in their natural families. We have found general support for that view in the submissions received by us. Furthermore, a survey of member organisations carried out in 1980 by the Federation of Services for Unmarried Parents and their Children revealed that 100 per cent of the respondents to a questionnaire favoured the adoption of legitimate children. In all the circumstances, we recommend that all children should be eligible for adoption irrespective of the marital status of their parents.
In this regard there are some people who feel that care should be exercised in this area, particularly in coming to a decision concerning the circumstances under which legitimate children could be adopted. For example, if somebody is taken into a mental hospital, or contracts a terminal illness, or is declared an alcoholic, could the State take the children into care? And in such a situation in the long term could they decide to have the children adopted? This would be contrary to Article 41 of the Constitution. I quote the relevant section:
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.
Article 41.2 states:
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.
Article 42 states:
In exceptional cases, where the parents, for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means, shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
This matter is considered in detail in the report but as I have stated I did not get enough time to study it and as a result I cannot elaborate on this. It is an area which causes considerable anxiety for a number of people.
I understand that for every one child available, there are seven couples who want to adopt it. On the other hand, the information in the report does not seem to bear this out, because the number of applications received in 1953 was 1,520 and the corresponding number in 1983 is 1,115. A mother may sign an order to have her baby placed for adoption and after a period of time — it is generally regarded as six to 12 months but in fact could go on for a couple of years — the mother can change her mind and refuse to sign the final consent form. I believe that the Adoption Board can dispense with her authority if it is in the child's best interest. There are some people who feel that even in this sensitive area and making allowance for the mother's rights at particular times the board might and should do that. Not very long ago there was publicity in the daily papers about one family that I know very well, a young married family. They had taken a child for adoption and they had this child for nearly 12 months and, apparently, at that stage the mother changed her mind. There was a relationship established between the child and the adoptive parents. I suppose that this was not an isolated incident and that it can happen on quite a large scale.
It is unfortunate that it can happen in such a sensitive area. There are many people who do not think it is fair that if a mother places a child for adoption and then takes a long time to make up her mind and she wants it looked after and does not want to take the child back, she should have put it in for fostering in the first place. This situation is covered in page 76 in paragraphs 10.12 and 10.13 of the report where it refers to the waiting period. It points out that there is no statutory minimum period which must elapse, but in section 10.13 it states:
It is clearly desirable that there should be a waiting period before the legalities of an adoption are finalised. The child and his prospective adopters need a trial period to ensure that they have been suitably matched for a permanent relationship. It is important also that the decision of the natural parent to have her child adopted is not too hastily given legal finality. However, since most adoption placements do not give rise to any special difficulties and involve very young children whose natural parents are certain of their desire to have them adopted, there is no reason why the completion of the adoption process should be delayed any longer than is necessary in the interests of the parties concerned. In our view it should be possible, in the generality of cases, to establish whether a placement has been successful by the time the child has been in the care of his prospective adopters for three months. We recognise, of course, that in certain adoption placements a much longer period is required for the child or his prospective adopters to adjust to their new situation. Nevertheless we consider that in most cases three months is a reasonable waiting period. We recommend therefore that the new regulations should prescribe this as the normal minimum period, while retaining the present discretion to reduce it in particular circumstances but not below six weeks.
I believe it is very hard to get foster parents for this reason — that they might have to give the child back. I also believe that fostering is to be recommended but it is very difficult to get foster parents to look after a child and to begin to love it and to establish a personal relationship with it for a few years and then give it back.
The point is made that there is payment for fostering and there is none for adoption. I think a tribute should be paid both to people who adopt and to people who foster. I believe that it takes a very unselfish person to foster, to take a child into a stable home from a mother who perhaps is alcoholic and in hospital for a time and then, having learned to love the child, to hand it back. I believe the mother who gave initial consent to adoption cannot take the child back without a court order and the mother has to apply for a court order. I also understand that certain people who adopted children have been intimidated into giving them back. I am told that if an official of the society from which the child was adopted calls and says that the mother has changed her mind, the adoptive parents do not have to say, "Yes, we will have the child ready tomorrow". If a couple have the child for a long period of 12 months or 18 months naturally they would feel that it would be in the best interest of the child to keep it.
I believe that in the mid-seventies the law was changed so that the top priority is the welfare of the child. I believe that abandoned children cannot be adopted unless the mother can be found to sign an order and there are many hundreds of those cases. If this change in the law is to be made I believe the criteria should be given under which legal children may be adopted, and there are certain people who believe it will stir up a hornets' nest. There should be a set of rules for all adoption societies, the same age limit, as Senator Magner has said, clearly defined and so on. People of mixed marriages should not be penalised. I understand that we have only one — most of the people in this country are Catholics — non-Catholic adoption society and one Jewish adoption society. It is necessary that religion should be considered, but not to the extent that good Christian people should be penalised.
Overall, the feeling I have got from some quarters is that the biggest objection would be that all children should be available for adoption because you could have a situation where the mother would have a nervous breakdown or something similar and she would lose her children. The Adoption Board deserve great credit. It is a voluntary body and some feel that there should be more young people on it. By and large, they are elderly and a broader mixture would be helpful. There is nobody on it at present with adopted children. There is only one paid member with far too much work to do.
Just to reasure my Independent colleagues about our interests in this motion, as a Labour Party we have been keenly interested in adoption and the implications of adoption for many years. As a party we have produced position papers on the subject. I would like the record of the House to indicate that it was a Labour Party Minister for Health, Deputy Barry Desmond, who requested this report of the Review Committee which he set up in April 1983. It is appropriate to quote the Minister's introduction to the report:
We have a special responsibility towards all children——
On a point of order, and in view of the great interest there obviously is on this debate could we have a quorum?
The Senator has come back again.
You are very welcome.
Notice taken that 12 Members were not present; House counted and 12 Members being present,
I was quoting the Minister's introductory statement in his acceptance of this report from the Review Committee on the Adoption Services. I quote:
We have a special responsibility towards all children and particularly to those who might otherwise be denied the benefit of a stable family life. The introduction over 30 years ago of a legal adoption system provided a very valuable way of safeguarding the future of such children. Last year I decided that the time had come to review the operation of the laws and procedures of adoption, to see whether this beneficial service could be further strengthened and developed. I am now very pleased to introduce the report of the committee which I established for that purpose. Its comprehensive recommendations raise important and fundamental issues. I, and the Government, would welcome public comment on them in order to assist us in taking decisions about the future operation of the service.
The introduction of the Private Members' motion in the names of Senator McGuinness and Senator Robinson is what the Minister has asked for, public comment and debate on this very important subject of adoption. As a member of a health board I have been quite involved with numerous adoptions by way of recommending suitable parents, from my knowledge of them. Also, as a member of a health board I have been subjected to the trauma of children being taken into care because parents for one reason or another were proven to be incapable of looking after them. That gives us a special interest in this area of adoption and the valuable recommendations that have been made by the committee who have dealt at length and in great detail with all the various aspects of the present situation regarding adoption.
The Chair will be aware of the interest shown by the public in this area when the constitutional amendment took place, following a court case, to regularise the adoptions that had already taken place. I welcome Senator Robinson's statement that any changes that would be proposed by way of new legislation would not in fact affect existing adoptions.
The committee on page 4 of their report, paragraph 1.14 state:
During the course of the McL. case the constitutionality of the Board's functions and hence the validity of every adoption order made since its establishment in 1952, were brought into question on the grounds that the Board was not a court of law as required under Article 37.1 of the Constitution. Although provision existed for the exercise of limited civil powers of a judicial nature by a body authorised by law, it was argued that the Adoption Board's functions might not be regarded as "limited" within the meaning of the Constitution since the Board created and terminated legal relationships. In the High Court it was held that the Board was operating within the Constitution, but on appeal to the Supreme Court the matter was left undecided.
To secure the board's decisions a referendum was held. There was widespread interest throughout the country in the issue although there was no political campaign by any side. I am glad to say that many of the agencies — Senator Magner referred to them in his contribution to this debate — and in fact adoptive parents became quite involved in bringing to the attention of the public the importance of passing this constitutional amendment to ensure that the families created by the adoption of children prior to that were accepted as being lawfully established.
Would the Deputy Leader of the House move the adjournment of the debate?
Debate adjourned.