Adoption (No. 2) Bill, 1987: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Doyle

When I was speaking last Thursday I briefly reviewed — and I would like to do so again — the situation prior to 1952, before our first adoption laws. In this country we always had adoption but it is only since 1952 that we have had legal adoption.

There were many problems prior to 1952 because when children were adopted there was no legal mechanism for that adoption system and the adoptive parents lived in fear that the natural mother would come back to take the child away. As I also pointed out last week, there was no legal mechanism for changing the birth certificate in the name of the child into its adoptive parents' name. The 1952 Adoption Act brought an end to all that and gave security to adoptive parents once an adoption order had been made in their favour, and also provided a mechanism for the change in the adoption register which is very essential.

From 1952 to the present date we have had a number of Adoption Acts, some arising from constitutional cases which had been in the courts. Some very interesting constitutional cases had been heard in relation to adoption over the last number of years. Since 1952 and the setting up of An Bord Uchtála, the Adoption Board have served us extremely well. I should like to pay tribute to the Adoption Board and to the successive members of that board. We have been very well served since 1952 by numerous adoption societies throughout the country who have primarily looked after the interests of children and have placed children with great care and consideration. I should also like to pay tribute to the number of social workers who have been involved in that area over the last number of years and who dedicated themselves wholeheartedly to the placing of children.

The 1952 Adoption Act gave adoptive parents, mostly childless couples, the opportunity of bringing a child into their homes, and adopting that child as their own, giving it their name and the love and care that children deserve. I spoke last week, and I should mention it again, about the love and care and the bond that exists between parents and children. The wonderful report on adoption by the review committee mentions that point. The universal devotion of parents to their children is one of the strongest bonds known to the human race. I believe it is one of the greatest gifts we have from God. Sometimes we take for granted the love we have for our children and the love they have for us. I would like to expand that a little further as I did last Thursday. It is my understanding that when people adopt children there is an even greater bond between them and their adopted children.

In the past mostly childless couples sought to adopt children, but there has been a change, and a very happy change, in Irish society over the last number of years. People with families of their own, and sometimes when they have reared their families, wish to adopt another child and add to their family. This is a most generous trait in the character of the Irish people. This is adoption in the real sense, giving love and care to a child and also bringing a child into an existing family. Last week I spoke about that lovely paragraph in the report — I do not wish to put it on the record of the House again, but I will just refer to it — page 15, paragraph 312, which relates to the adoption of children with disabilities. It states:

No homeless child should be regarded as unsuitable for integration into the permanent family, simply for reason of the fact that he is in some way handicapped.

Another generous characteristic of the Irish people is that in recent years people have legally adopted handicapped children. That is a wonderful contribution that Irish people are making in that area, and I am sure that it is happening in other countries also but it is becoming very noticeable in our own country. The review committee said they would like to see it taken a step further and to see more families carrying on this good work.

Now we come to the present. Up to now there was a certain category of children who were not available for legal adoption. The Bill before the House provides that children in this category — children whose parents have abandoned their constitutional rights to look after them — can be legally adopted. This is an advance we all want to see because for so long many children in that category had been left with foster parents, in residential care or in the care of health boards. Children who are deprived of the love and care they need so much must be affected throughout their adult lives.

We enter into a constitutional issue when we commence to legalise the adoption of children whose natural parents are still alive. The Bill before us today it is not the first Bill in this area. Deputy Barry Desmond and Deputy Alan Shatter brought in similar Bills to provide for this need. I am not a lawyer and do not have a knowledge of constitutional law, but Article 42 (5) of the Constitution provides that:

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.

I think it is under that section that the Minister has based the Bill before the House today. In doing that, we must build in certain safeguards. The Minister in his opening speech explained what he proposes to do. First, an adoption board — I will come back to this point later — will be required to obtain the view of the appropriate health board as to the needs of the child for adoption. The proposed adoptive parents may then request the appropriate health board to apply to the High Court on their behalf for an order authorising adoption.

In considering the adoption, the High Court have to satisfy themselves on six grounds. If the High Court are satisfied on all these grounds — not just five but all of them — and having due regard to the rights of the natural parents and the child itself under the Constitution, they may authorise the Adoption Board to proceed with the adoption order. An interesting and an important aspect is that the court shall not make an order without having heard the natural parents of the child, unless they refuse to come to court. There is a balance here between the inalienable rights of parents and the imprescriptible rights of children. It is a constitutional question. For instance, if the parents appear before the High Court and a very good argument is made as to why the child should be put into adoption and the parents are aggrieved by this decision, have they recourse to the Supreme Court to appeal against the decision of the High Court?

If natural parents come forward, we must also give them full protection under the law and under our Constitution for their rights. When we are dealing with these areas of constitutional law, as we know from other constitutional cases which have been brought under the existing adoption laws, extraordinary cases come up from time to time. In this area of the natural parents' rights, if they appear in court, make a case and are aggrieved, we should provide the mechanism to allow them to appeal to a higher court.

The only quarrel I have with the Bill, if I have a quarrel with it, is that it states that when an adoption order is sought in a case of this kind the appropriate health board will advise the Adoption Board on the child's needs for adoption. That is very interesting. Who in the health board will decide this? Will it be the chief executive? It gives far too great a power to the health boards to determine whether a child should or should not be adopted. The Adoption Board have done that work well in the past. They have considered and examined each case on its merits to see whether the case was suitable for adoption and whether the adoptive parents were suitable.

We find a third body coming into it, the health board. A member of a health board might not wish to see the child being adopted for some reason best known to himself or herself and could block adoption which is regrettable, but that would happen rarely. As, I said earlier, extraordinary things happen in this area. The Minister is quite ambiguous in that context. He said:

The Adoption Board will be required to obtain the views of the appropriate health board as to the child's need for adoption.

Reading that, one might come to the conclusion that they just want their views. It is not so much that the officials in the health board might not want the child adopted; they might not want the child adopted by the proposed adoptive parents. They might have something against the adoptive parents. It is then a personal thing.

We find later on that the case is more specific and definite. If adoptive parents feel they have been unreasonably treated as a result of the refusal or failure of the health board to initiate a High Court application on their behalf, which is what is required in the Bill, they can apply to the High Court. Many adoptive parents might wish to adopt a child in the circumstances but not having been granted permission by the health board to initiate the case in the High Court, while the Bill provides that they can go to the High Court, they might be very reluctant to do so due to the cost. This is very important. If they fail in their case in the High Court, they have to bear the cost. That is a flaw in the Bill. I ask the Minister to consider this on Committee Stage. If there is a grievance between the parents and the health board and the parents decide to go to the High Court, the costs for the parents in the High Court should be met by the State. That is a very important aspect and is something which should not be left in its present form. Many very good adoptive parents might not necessarily be accepted by the health board. That is a possibility we will have to accept. They would shy away from the case after that. They would not have the funds to go to the Hight Court and pay the expenses. If they have the generosity to adopt a child, we should meet them half way.

As I said last Thursday, this Bill raises certain constitutional issues. Once the Bill has passed both Houses of the Oireachtas it should be referred to the Supreme Court to be tested. The Minister referred to that. If people adopt children who have been for a long time without love and care, provide them with that love and care for a short time, and then find for some reason that the Bill is unconstitutional and these children have to be wrenched back from the home with the loving care, this would cause more hurt and harm.

I welcome the Bill because it is our duty to ensure that children have an opportunity to benefit from a full and happy life in a family home. I congratulate those who were responsible — I mentioned Deputy Alan Shatter, Deputy Barry Desmond and the Minister for Health — for bringing this Bill before the House. It is a reforming measure and it is to the credit of all politicians because it puts children first.

Professor Hillery

First of all, I would like to take this opportunity to congratulate the Minister on his appointment to the onerous and important portfolio of Health. It is a particularly demanding post to which he has brought imagination and energy and I wish him every success in the years ahead. I would also like to congratulate him on the speed of introduction of this Bill, this reforming measure in the area of social legislation.

The Bill extends the categories of children who may be legally adopted. It is worth recalling that under present statutes an adoption order can be made only in respect of a child first, who is an orphan, secondly, who is illegitimate and, thirdly, who has been legitimated by the marriage of his parents after his birth but whose birth has not been reregistered. This means in effect that there are many children who cannot be adopted at present, hence the need for the Bill.

Prior to 1952 there was no legal adoption so we have come a long way in a relatively short space of time. The Acts of 1964, 1974 and 1976 together with, of course, the original Act of 1952 have done much in the area of adoption law. Welcome and all as this Bill is it is noteworthy that Ireland is now the only country in Western Europe where legitimate children with their parent or parents alive cannot be adopted. Therefore, the Bill is particularly welcome to remedy this situation. In Northern Ireland, as the Minister pointed out in his opening speech, such children have been adoptable for almost the past 60 years. The Review Committee on Adoption Services made a comprehensive study of the area of adoption and reported in 1984. They unanimously recommended a change in the law which would enable all children deprived of normal family life to be eligible for adoption irrespective of the marital status of their parents. The Bill, therefore, remedies the present situation so that legitimate children may be adopted in exceptional, defined circumstances.

I share the Minister's view of course that this Bill does not present a threat to families generally. The Minister has given us an assurance that nothing in the Bill will weaken the basic recognition of the standing and importance of the family in our society. He further underlined that in drafting the Bill particular care had to be paid to the constitutional implications of the Bill given the very important place of the family in the Constitution. I will quote Article 41.1º of the Constitution in that respect:

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.

This article is easily the most important statement of law in relation to the family and every Act relating to children must conform with the principles contained in it. The Minister has rightly underlined therefore that the Bill before us was drawn up with great care and must be seen in the light of Article 41.1º.

Senator Doyle referred to article 42.5 of the Constitution which makes it possible to introduce this Bill and still conform to the Constitution whereby, in exceptional circumstances, the State by appropriate means shall endeavour to supply the place of the parents. The Minister told us that the Bill conforms to the Constitution. Therefore the Bill is only concerned with situations where for all practical purposes the family as a unit has ceased to exist or where the child does not have the right to grow up in a family environment. We are talking only about very exceptional circumstances where there is no likelihood of the natural parents resuming their parental duties to the child.

What then of the children who will benefit? The latest year for which statistics are available is 1983 when as the Minister told us there were 2,534 children either in residential care, foster care or under supervision at home. With regard to children in long term foster care the Minister rightly underlined that the aim and experience of our child care services is to ensure that most of these children will eventually be reunited with their parents. The law will assist only in exceptional circumstances and where it seems to be absolutely necessary. As matters stand a legitimate child who is not an orphan cannot be adopted. If this child is abandoned or unwanted by its natural parents and is put into foster care the child can never be adopted as matters stand. In practice such children are fostered out but there is no legal security in the fostering relationship. Foster parents feel very insecure and this insecurity affects the children in turn.

A foster child has no recognition in law and if, for example, foster parents wish to hand on a family home or family farm to the foster child, that child is not entitled to any of the inheritance tax exemptions to which an adopted or legitimate child would be entitled. Of the 1983 figure of 2,534, some 1,637 children were either legitimate or extra-marital. There are then many legitimate children who may be in care from, say, the age of three months up to 18 years who have no physical or psychological impediments to adoption but who are not legally entitled to adoption at present. Therefore, the main purpose of the Bill is to allow for this type of child to be adopted in certain defined circumstances.

I welcome the Minister's reference in his opening statement to the appropriateness of a family court. He has promised to give this question consideration when circumstances permit in the future. Under the Bill the High Court have a central role in the adoption procedure for these children. The Minister referred to the cumbersome procedures in the Bill that are required whereby the Adoption Board and the High Court both must play their part in the adoption of these children. While the Adoption Board are competent to make adoption orders they are not regarded as a suitable body to determine whether natural parents have failed in their duties towards their child. The High Court is seen as the body to determine this issue. Therefore, under the Bill the powers and procedures of the Adoption Board and the High Court are associated or linked for the adoption of the children envisaged in the Bill.

I share the Minister's view that a family court would be more suitable to deal with proposed adoptions and with a whole range of other family matters, too. Litigants in family law cases are to a great extent in a category of their own. The social and psychological effects of a person going to court cannot be underestimated. What is needed is a genuine family tribunal which would be inquisitorial rather than confrontational or adversial. Such a family tribunal could be administered by a panel of people who would have a mixture of backgrounds — obviously a background in law but also in social science and medicine. The Minister envisages a specially constituted court for family and related matters in the future and I hope it will prove possible to have such a court established sooner rather than later.

I want to refer to the constitutionality of the Bill. I have already touched on it and mentioned the care the Minister has taken in the drafting of the Bill to conform to the Constitution. I readily understand his caution in this respect. I note that the Minister has followed the advice of the Attorney General in relation to the wording of the Bill and that he is satisfied, should it be referred to the Supreme Court to be tested, that it would be found constitutional.

There are several provisions in the Bill that are more appropriate for detailed discussion on Committee Stage but there is one issue I would like to raise at this stage. I am not a lawyer but I would like to refer to the adoption procedure whereby in considering an application the High Court must satisfy themselves that the natural parents have "failed in their duty towards the child and that it is likely that such failure will continue without interruption until the child attains the age of 18 years." It will be very difficult to prove this.

Let us take a situation where parents, perhaps because of their immaturity or of a psychiatric problem, put their child into care. Given that most people wish to get back on their feet and to get well again and that most people have very positive attitudes towards their children, how will the High Court decide that it is likely that such failure will continue without interruption until the child attains the age of 18 years? Furthermore it would be up to the plaintiffs and their lawyers to prove this and the plaintiffs in this case will be the prospective adopters and they in turn will have to prove that the failure on the part of the natural parents will continue without interruption until a child attains the age of 18 years.

While not being a lawyer, I assume that this provision which I have just quoted is there precisely because of the limitations of the constitutional provisions. I am concerned about the ability of the prospective adopters to prove that it is likely that the failure of the natural parents will continue to the age of 18. I welcome the discretion given to the High Court judge in this regard but the judge in turn will have to decide on the same likelihood of failure which is a heavy burden indeed on him or her.

In relation to the development of community care services; I very warmly welcome the Minister's recognition that many children are placed in care because of temporary difficulties, indeed, the type of difficulty I have just been talking about. I am well aware of the Minister's interest and commitment to community care services. I know from his public statements and from talking to him privately that he sees a lot of potential for resolving issues and problems at community level through local services. I am also aware that he is very keen to develop these services despite present financial restrictions. I wish him well in that regard.

The Bill has obviously been carefully drafted with a range of safeguards so that where there is a prospect of a family being re-united the children concerned will not be the subject of adoption. Perhaps, however, the Minister will be good enough to comment on my reservation about assessing the likelihood of parental failure until the child attains the age of 18. I welcome the Bill. I see it as an important reforming measure and an important further step in adoption law.

Mr. B. Ryan

There has been a unanimous welcome for this legislation. As I said on the introduction of the Status of Children Bill in the last Seanad, contrary to the expectations of sections of the media, this has not been a politically contentious issue. There has not been the upsurge of an alleged conservative pro-family political view which sees this and the Status of Chidlren Bill as a threat to the family. Issues that were anticipated in the media as being controversial have turned out to be quite uncontroversial in what turned out to be an exchange of extremely mature and sensible political views from all sides of the political spectrum. What has been demonstrated is that our politicians, whatever their political persuasions, are far more mature than perhaps some of the occasional headline grabbing antics of individuals would suggest. There is a consensus in our political process about the importance of children and the supremacy of the rights of children and of the welfare of children, and the obligation to subordinate all other interests to the welfare of children. This has been seen in the Status of Children Bill, which, in the form in which it is going through the Dáil at present, is one of the most liberal interpretations in Europe of the rights of children whose parents are not married. In its present form, it is extremely progressive and it is a credit to the previous Government, to the various people who contributed to the debate both in the Dáil and in the Seanad, and to the present Government that that legislation has continued and, I suspect from the comments of the Minister's colleague, will be improved further in the Dáil. This legislation is the same.

The Minister was entitled to insist that he should have time to consider and introduce a Bill like this. There was a little bit of political opportunism in the way in which the Private Members' Bill was introduced in the Dáil. It took a long time for the previous Government to produce an adoption Bill and it was a little bit close to the wind, and one could detect more than a touch of opportunism in the way the Private Members' Bill was introduced. I have a number of interests and I am prepared to wait until the Government have time to think about them before introducing Private Members' Bills. The Minister is entitled to time to consider it and make his own consultations.

The Bill is sensible. It raises interesting questions about whether our Constitution adequately clarifies what we all accept to be the primacy of the welfare of a child in all of the areas of balancing rights of society, families and children. Recent experience in Britain would make one extremely cautious about transferring too many quasi-judicial powers to anybody, however professionally well qualified they might be. All of us have a tendency to believe that intervention in a family is the way to deal with problems. At this stage, the huge volume of research suggests that children can perhaps be better off, in what we would externally adjudicate to be an unsatisfactory family environment, than perhaps in any other environment. It is only under very limited circumstances that one can actually say, "yes, this child would be better off out of its natural family home and in some other environment." It is also equally true that if a child cannot be in its natural home the best place for it to be is in something as close as possible to a family environment. It is quite clear that institutional care, which is of a high standard, which is run by people who have the best of motives, has never really been an adequate substitute for a family environment. It was a tragedy and it continues to be a tragedy which I hope will end with this Bill, that children should be either institutionalised or in permanent or semi-permanent foster care in an unsatisfactory legal position because of either our conservatism or our excessively narrowly interpreted Constitution.

The history of adoption suggests that perhaps the Legislature was more conservative than the body that in many ways frightened previous generations of politicians, the majority Church in this country. In fact, the Church was more inclined to be open-minded about adoption than the Legislature at the time. The history of the 1952 Adoption Act, James White's book on Church and State, is enlightening and interesting if in spots a little disturbing. The remarks of the Attorney General in 1951 as quoted in James White's book are more like what one would attribute to a bishop than to the senior legal person in the State. There is a quite interesting reference in James White's book on page 276 to the drafting of the 1952 Act in which he says:

The Archbishop of Dublin and his delegate, Father (now Monsignor) Cecil Barrett, went over every clause,

This was before, not after, the Bill was published. It suggests an interest in the area by the Church, which continues to have a legitimate interest, but at this stage the problem has not to do with our Church. It has to do with ourselves and perhaps with political priorities and things like that. That is why this Bill is very welcome.

Having welcomed the Bill and having the reservations expressed by numbers of people, including the Minister, about the cumbersome process necessitated by the Constitution, it is a pity that we have not heard more of all of the other proposals from the adoption review body, proposals that have no constitutional impediments associated with them on issues that deserve to be addressed. In some ways it is a pity that this Adoption Bill is not a comprehensive Bill covering areas like eligibility for adoption and the whole area of regulation of the adoption agencies. There are disturbing things in the review body's report on a number of areas. Some are anomalies and some are serious questions about the operations of the adoption agencies. If they were not contained in the report of the review body I would be very slow to advert to these issues because I sympathise, as other Members do, with voluntary organisations. They are usually run on a shoe string by people whose bona fides one would never question. I would be dishonest if I did not raise some of the issues beyond the question of those addressed in the Bill.

May I say apropos the Bill that I regret the continuous House of the terms "legitimate". There may be a case in law for retaining the phrase in the Bill. There is no reason for Members of this House, or for an explanatory memorandum, not to use the language that is now incorporated in the Status of Children Bill and simply to talk about children whose parents are married or children whose parents are not married. There may be legalistic reasons why it cannot be incorporated into this Bill. I will spend a week or so during the summer trying to figure out whether I have the resources to draft amendments to this Bill to eliminate the references to legitimacy.

If we have now passed through this House a Bill to rid ourselves forever of the concept of illegitimacy and to end the usage of the terms "legitimate" and "illegitimate", we should begin to revise our own language. We are talking about the right to make adoption orders for children whose parents are married. That is what we, as a House of the Oireachtas, decided to substitute for the offensive terms "legitimate" and "illegitimate". We should begin to use it ourselves. I am sure the Minister and all Members of this House would agree that it is a question of getting used to new usages of English. It is not a question of anybody wanting to use terms that are deliberately or accidentally offensive.

It is most welcome, therefore, that we are proposing to allow children whose parents are married to be adopted. I know it is a difficult area. Anybody who is a parent and has children must have sympathy for both sets of parents in a situation like this. I know, and I am sure every Member of the Oireachtas knows, of parents whose children have been put into care. I know very few parents whose children have been put into care who think it is fair or proper. In one case at least these are people who were living on the side of the road. They have a profound sense of grievance and, as they see it, their child was taken away from them. The phrase quoted by Senator Doyle from the review body's report concerning the natural bond between parents and children is not a romantic aspiration towards an older lifestyle. It is a truth about human life that there is a natural bond between parents and children that is so deep as to be beyond verbal description. Nevertheless, we have ended up in our society with an unspecified number of children who are stuck in either permanent long-term foster care or in institutional care simply because we have no procedure for giving them a formal legal adoptive status. I welcome the Bill. I am sorry it is confined to that area alone and to the important area of the dispensation, in some cases, of the consent for placing children for adoption which is another important area that produced anomalies.

I regret that the issue of who should be eligible to adopt and the issue of the reform or the regulation of adoption agencies have not been addressed. On the question of eligibility for adoption a number of serious anomalies were identified by the review body. One in particular to which I would like to refer is the question of a single application by a married person. They identify the position where a married couple who have had a child placed with them subsequently separate and one wishes to adopt the child alone. Under our present legislation that is not possible, or so the review body seem to understand. That is not a serious matter. There is no fundamental threat to any fundamental value. It is simply a legal anomaly and it ought to be cleared up quickly.

A more difficult area but one we ought to address in the light of the outcome of the referendum is the question of adoption by couples who cannot marry under Irish law or whose marriage is not recognised. Under present legislation such couples cannot adopt and the review body do not believe such couples should be allowed to adopt. In the light of our clear and decisive decision not to allow divorce to be introduced in any circumstances, the existence of an increasing number of stable, if irregular, relationships in this country and the fact that there is the extra anomaly of marriages which are not recognised, I think we should look again at that area. It is a head in the sand sort of attitude to pretend that these things do not exist, to pretend that they will go away, or that we can make some moral judgment about such couples and decide that they are not suitable for adoption.

On the question of eligibility for adoption the review body raised an issue which I hope the Minister will address at length, that is, the need to be certain that eligibility for adoption does not have a hidden means test contained within it. The review body were quite blunt about this. They said they did not have any evidence to suggest that such a preference for middle income or upper income families in placing children for adoption existed, but they were quite concerned that it might. There is a difficulty here because, if unemployed people — we are developing into a society where people are liable to be unemployed for long periods of their lives — are eligible for adoption, then adoption agencies must believe that the levels of income unemployed people have are adequate to properly support a family. That is a difficult one to sustain. Alternatively, they must begin to say: "No, unemployed people have not got adequate incomes", in which case they are not eligible for adoption and in such cases one is actually operating an effective means test. At the risk of being ruled out, the suggestion in the newspapers that children's allowances are going to be stopped for the first child of couples will make the position even worse. It is very important that evidence should be acculumated and studies carried out to ensure that there is no tendency to differentiate between different income groups in terms of eligibility for adoption. Even on an ad hoc basis it would be wrong and it would be unfair. I do not think one's income ought to be considered. There are qualities in family life that are far more important than income, but at the same time it cannot be ignored. If it turns out that people who are unemployed are deemed not to be able to support children we, as a society, have an obligation to review the position of unemployed people.

The other area which raises serious concern is the question of dispensing with consent and the Bill's attempt to address that issue. An issue that has been raised with me on a few occasions concerns parents who are married; if they consent to the child being placed for adoption what happens? Do they still have to go through the entire rigmarole of all the procedures in the Bill? The second point refers to orders by the High Court and I remember reading about it in the review body's report but I could not find it before I stood up. As the Bill stands if adoptive parents seek to adopt a child whose parents are married they go through a certain procedure. It appears to me that if that adoption were to be unsuccessful and the adoption agency felt they could not allow it to go through the procedure would have to be repeated by another couple subsequent to that. If the courts rule as they have to under section 3 of the Bill that the parents have neglected the child and are likely to continue to do so until the child is 18, that procedure should not have to be repeated each time an adoption order is sought if by any chance the adoption breaks down in the case of one couple. It should not be necessary for a subsequent couple to go through the same procedures if the court has already ruled that the child is eligible for adoption. There is nothing in the Bill as it stands which would avoid repetitious and unnecessary recourse to the courts if adoption were to fail in one case. There was a reference to this point in the review body's report but I could not find it.

The review body addressed in great length the question of the adoption agencies, which I found quite disturbing. The Report of the Review Committee on Adoption Services states on pages 47 and 48:

While we would wish to acknowledge the genuinely humane, concerned and compassionate approach that normally pervades the difficult work of the agencies...

The report continues:

In the submissions that we received from interested organisations and individuals there was a considerable volume of criticism of some aspects of the work of the agencies.

It is not an issue that I enjoy raising, but the issue is dealt with at great length by the review body and is one that, in the whole humane atmosphere in which this House is discussing adoption, must be addressed. The review body says "In general we accept that the criticisms are well-founded". On page 48 they list the criticisms as follows:

The criticisms arise mainly from staff shortcomings in numbers, qualifications and standards of practice. The inadequacies are mainly manifested in poor counselling and in failure to give sufficient support and guidance to the natural mother and the adoptive parents during the adoption process, leading at times to ill-advised decisions that may eventually hurt some or all of the parties involved. There have also been complaints of lack of sympathy and sensitivity in dealing with individuals. We are conscious of the fact that since the adoption process is an area of considerable emotion and stress, any indication of a lack of understanding on the part of agency personnel may give rise to a reaction beyond the ordinary. It should not, however, be necessary to remind agencies of that consideration. Complaints have also been made about the giving of wrong or misleading information by some agencies and about deficiencies in the keeping of records and in the general administration of the agencies.

I found that paragraph extremely disturbing not because it was made by an external body but because it was made by a review body that everybody connected with adoption recognised to be composed of well balanced sensible people with an expertise and an interest in the area. Their suggestions on the whole area of adoption agencies need and deserve to be considered. The Minister may have referred to this in his speech last week and if he did I apologise as I was not here and I did not get a copy of his speech. I hope we will get minimum standards for the operation of agencies, in particular, in line with the recommendations listed by the review body on pages 52 and 53 of their report. In my view they should not have to say these things. One would presume that the obvious basic requirements they specify would be met. Given the sensitivity of the area and the future role the adoption agencies must have, either by agreement of the agencies or by regulation, whichever is necessary, the Minister ought to see to it that adoption agencies meet the minimum standards specified in the review body's report.

I do not want to keep the House all day by quoting excessively from the review body's report but on page 55 they recommend that the following requirements be essential for registration:

(i) each adoption agency should be required to employ at least one social worker with a Certificate of Qualification in Social Work or an equivalent qualification either on a full-time or part-time basis, depending on the workload involved:

(ii) where a society has long-serving existing staff who do not meet the foregoing requirements, it should suffice to show that their experience is adequate and relevant. All future appointments should, however, be confined to professionally qualified social workers;

(iii) it should not be sufficient to acquire the services of a social worker on a voluntary basis. The person should be engaged by the society in a professional capacity;

(iv) every society should have a legal and a medical adviser.

They are not the entirety of the recommendation but anybody who reads the chapter of the review body's report on the adoption agencies — and I am sure the Minister and his officials share this view — has reason to be concerned about that area. I would be concerned if I were directly involved in the area. I was concerned about the agencies two or three years ago when we debated the review body's report in the Seanad.

It is very difficult and upsetting to have to criticise bodies that are so altruistically minded, and are obviously run by people with the best intentions. When one sees that sort of authoritative criticism of adoption agencies from such a body as the Review Committee on Adoption Services and when one sees the insistence with which they underline the need for basic standards one cannot but be persuaded that there is a significant problem there that needs to be addressed urgently. It needs to be addressed not because it is there but because the quality of adoption agencies' work, the quality of their sensitivity in dealing with natural parents, and adoptive parents, the quality of their information and their capacity to make judgments, all of those things determine the quality of our society's handling of a difficult area for both natural and adoptive parents because all natural parents and adoptive parents will deal with adoption agencies. That is the interface of a very delicate human problem. The agencies are at the interface. If some of the agencies are deficient in the ways in which the review body suggest they are, and if we are to have an adoption atmosphere in our country which reflects the concern that we as a society have about children and about children's rights, then the agencies must be regulated to meet certain minimum standards. I hope the Minister will have something to say on that issue.

The review body also raise the whole question of the adoption court but I will not go into that. I am glad the Minister referred to family courts and I hope that our dreadful burden of financial constraints will not deter us from that. We as a society are inclined to strike poses about the significance of the family, and no less a person than the chairwoman of the Irish Bishops' Commission on the Laity said in one exasperated moment that she had had it with the family because of the amount of talk we as a society have about the importance of the family by contrast with the limited supports we offer for the family. In the whole area of intra-family difficulties or interfamily difficulties, and parent-child relationships and so on, we ought to be, given what we say, the most advanced country in Europe in terms of how we deal with these issues in a judicial fashion.

I am very glad the Minister referred to family courts and I hope it is not going to be just a reference. I am quite happy and quite impressed with the quality and quantity of reforming legislation this Government have produced. I might be unhappy about many other things about this Government, but the quality and quantity of reforming legislation are quite impressive. The promises for further reforming legislation that have been announced by a number of Government Ministers in areas I am concerned about impress me also, and I look forward to a very stimulating, continuing period of this Government. I am not sure how long they will last — the Minister and I might have different views about that.

Because I omitted to say it at the beginning, let me congratulate the Minister on his appointment. I am not sure whether one should congratulate or commiserate with a man who gets the job of Minister for Health at present, but I congratulate him on the way he has handled this matter and also on the remarkably thick skin he has shown. The coals of fire that have been heaped on his head are not exactly what one anticipates when one runs for office, particularly when one hopes to become a member of a Government. Perhaps the best thing that can be said is that he has taken his medicine early and maybe some of his colleagues will have to take the heavy fire in future years. I wish him well.

Even within the severe constraints of finance, there is an enormous amount of organisational, administrative and policy reformulation broadly, in the area of health care, particularly in the area of community care, that can be done even with limited resources and particularly — this relates to what we have been talking about — a drawing in of voluntary organisations to the process of policy formulation within health boards. It is not good enough that voluntary organisations should have their roles expanded because of financial situations but should have policy determined by a statutory body without adequate involvement by themselves. If you are to have partnership between State and voluntary organisations, as you have in the area of adoption for instance, that partnership ought to be a partnership at all levels, not just in delivery of service but in the formulation of the quality of service and of the policy which underlines the delivery of the service. That sort of area does not cost a great deal in terms of money but can contribute much to a well developed policy and to optimum use of resources.

I welcome the Bill. I shall spend some part of my summer holidays thinking about amendments to it. Unfortunately, the title is very well written, so those of us who might want to broaden the Bill will not have as much opportunity as we would like. I hope the Minister when he replies will have something to say on the broader issues particularly of eligibility for adoption and the role of the agencies.

Miss Wallace

I welcome the Adoption (No. 2) Bill to this House. In particular I welcome the interest expressed by the Minister for Health, Deputy Rory O'Hanlon.

The passing of the Bill before us will benefit many young children who are at present in long term residential care and many more young children at present in foster care and will secure for them a permanent and stable environment. As the Minister said, rightly, at the opening of this debate, the State, representing our collective responsibility as citizens, has an obligation to seek a secure and happier future for such children.

It is interesting to note that Ireland is the last country in Western Europe to recognise that children should not be deprived of a normal family life just because their parents abandon all parental rights. At last with the passing of this Bill these children will have the opportunity of a full and happy life with another family as they will be eligible for adoption irrespective of the marital circumstances of their parents.

Also coming under the umbrella of the Bill are children whose mothers did not give consent to adoption. There have been many cases where a mother could not be found, did not wish to come forward or was unable to come forward because of her circumstances. At last the Bill opens the way for these children to be adopted.

At least as far as children affected by the Bill are concerned, adoptive parents will have a fair idea within the first 12 months period as to whether any interest has been shown by the natural parents. At present if a mother has not signed the second consent the uncertainty can continue for years. In the majority of cases the onus is on adoptive parents to proceed with legal proceedings and cost of which is excessive, starting in the region of £6,500. It is wrong that people should have to consider such costs in order to accommodate a situation which was not of their making.

The question of consent and dispensing with consent to adoption has given rise to much concern in some cases. Indeed, delays in getting final consent led to many sad and traumatic court cases resulting in children being removed from adoptive parents after bonding had taken place. I would like to see in future legislation a provision that full consent be given for the adoption at the time of the placement of the child, allowing a certain period of time, obviously, but less than six months, to pass before the final paper can come into operation. This suggestion would have a twofold benefit. It would shorten the delays in having the consent forms signed and reduce the number of cases which end up in court because the child would be younger and would be with the adoptive parents for a shorter time. The second benefit would be that it would take away the necessity for the natural mother to come back to the adoption society unless she wishes to do so, thus allowing her to put the past behind her.

This Bill takes away the onus on adoptive parents to take a case to court and thereby removes the financial dilemma from prospective adoptive parents seeking to ensure a legal status for their children. This Bill provides for the case to be brought by the health board. At present a natural mother who has given her consent to adoption may withdraw that consent at any time before the adoption order is processed. Thus tremendous difficulties can be caused by delays in processing adoption orders. There are two possible solutions to this problem: (a) when a mother signs an adoption order the Adoption Board should be in a position to pass that order immediately, or (b) the consent to adoption once signed should be irrevocable. Also, I would call for better counselling for mothers in such circumstances and I would like to see continuity of contact maintained between social workers and the mother after the child has been placed for adoption. A mother should be aware of the trauma faced by adoptive parents who are asked to return a child. In particular she should be aware of the psychological effect likely to be experienced by the child if it is removed from adoptive parents after bonding has taken place. These concerns should be fully thought out between the social worker and the mother before the mother agrees to placing the child.

I reiterate Senator Brendan Ryan's comments in relation to adoption agencies and procedures. I would like to see at an early date the implementation of the recommendations of the review committee report, particularly those concerned with agencies and procedures.

There is no doubt about the importance of properly trained and qualified personnel to deal with such emotional matters which have a lifetime effect on the people involved. I would like to call a halt to the very wrong approach that because adoptive parents faced with the prospect of losing a child with whom they have established a relationship understandably take the road to the courts to try to keep that child, they are then advised by adoption agencies that they will not be considered suitable again for placement of a child for adoption because they fought the case in court. This archaic and unnecessary attitude adds greatly to the trauma and sadness of what has already been faced by such a couple.

The importance of establishing the rights, welfare and best interests of the child cannot be stressed enough. Just after the Supreme Court decision two years ago in the KC/AC case where a three-year-old child was returned to the natural parents, William Duncan, senior lecturer in law and a member of the review committee, said in an article in The Irish Times:

The welfare of the child cannot now be regarded as the paramount constitutional principle. Where there is a custody dispute between married parents and third parties, the right of the parents to have custody cannot be set aside simply because on balance the child's welfare would be better served by remaining in the custody of the third party.

This outlines the need for establishing the rights of children once and for all. Few will disagree with the concept of the right of a child to a caring and loving family. The fact that in Ireland in 1987, at least until this Bill is passed, children cannot be adopted because the marital status of their parents cannot be established or the natural mother has failed or neglected to give her original consent to placement shows how neglectful we have been in recognising the rights of children.

The Review Committee on Adoption Services state that the principal objective of adoption is to secure a permanent, caring environment for the child. This can normally best be provided by a married couple in a family setting. There is ample evidence to prove that children are indeed far better in a permanent stable home and with a family background than in institutional care. Though people taking care of children in institutions do their very best to provide for these children in their growing years, nothing can ever replace the home environment and the incomplete benefits of a family upbringing.

The Bill before us today will, I hope, open the way for further examination and updating of the whole important area of adoption. Legislation which involves children, families and every emotional matters such as adoption should be moved without undue delay in view of the consequences which such legislation holds, particularly for the children. As we all know, the first three years of a child's life are the most important for his development and the months and years that pass can never be brought back in the life of a young child who may today benefit from such legislation.

I will conclude by thanking the Minister for Health, Deputy O'Hanlon, for his interest in this important area. I especially acknowledge the Minister's foresight in updating previously proposed Bills to include putting the onus on the health boards in taking cases to court and taking the dilemma of costs from adoptive parents. I look forward with great enthusiasm and interest to further legislation in the whole important area of adoption during the Minister's term of office.

Mr. Ferris

First, I concur with the sentiments that have been expressed to the Minister. I already congratulated him on his last visit to the House but he had left before I had finished my compliments to him. I have since taken the opportunity to repeat them in his office. I have also offered my commiserations because of the problems the Minister has, particularly the financial ones which caused me some concern as they affect my own constituency and in particular my own town of Tipperary and the Minister is aware of this. I realise that some of those problems might have been outside his control but we have an understanding on the subject, I understand the Minister's commitment to the area of health.

I am pleased that the Minister is pursuing a policy, particularly in the area of social legislation and child care, and has brought forward this adoption Bill. The Bill was initiated by the Minister's predecessor, Deputy Barry Desmond. That piece of legislation created quite a lot of media interest at the time and there was a lot of consultation by all of us at parliamentary party level, with legal people, with the then Attorney General and with adoptive parents or prospective adoptive parents and those involved in the existing child care services.

There is a wide range of interest in this Bill. Those of us who are blessed with children of our own realise the trauma it must be for families who are not blessed with children of their own and who must have recourse to the adoptive procedures to acquire a family. Many of us are aware of the happiness of adoptive parents as a result of the facility to adopt children. Our experience, as public representatives, in dealing with adoptive parents is a very happy one. I am confident also that the children who have been adopted under previous legislation are the better for that adoption. We would expect that children adopted into a family are much happier than children who must remain in residential care. All of us who have been members of health boards in the past know that long-term residential care is not the ideal surrounding for children, particularly children who have been abandoned by their marital parents or, at times, non-marital parents.

We are concerned also about children who are placed in long-term foster care. In my experience long-term foster care is a better environment for children than long-term residential care. I have found in the past also that a bond is created between the children in foster care and the foster parents. There are some magnificient foster parents throughout the country who have played a major role in trying to give some semblance of happiness to children who have been unfortunately the victims of circumstances completely outside their control.

The Bill deals with those children who can be adopted in the future and extends the present restricted categories — orphans, children of unmarried parents and children whose legitimate status has been qualified by the marriage of the parents after the child's birth — to children whose parents are still alive but are unable because of unusual circumstances to look after their children. It extends for the first time the adoptive process into that category. That is the main purpose of the Bill. It does not extend the categories of people who are eligile to adopt.

Senator Brendan Ryan has said, there are exceptional circumstances, even in this country, of people who wish to adopt children but who are not, legally or morally, recognised by the State as being married. Reservations have been expressed by Members of the House that perhaps there are people in that category who could be considered at some future date as being suitable to adopt children. I am not quite sure that there is a strong enough case for that but I have no doubt that the Minister will be considering the comments of Members in this regard. If an amendment to that effect is put down we will have an opportunity to discuss the issue because all of us, as legislators, would like to ensure that whatever home a child is adopted into constitutes a family unit. It is the family unit that we all defend and which is upheld in the Constitution.

As has been mentioned by all Senators who have contributed to this Bill, children and their rights are of paramount importance. All of us want to ensure that children's rights now and in the future and their happiness will be protected by the way we legislate.

Questions have been raised about the possible constitutionality of this legislation. Perhaps the Minister's initial comments about recommending the President to refer it to the Supreme Court for opinion is a good one on the basis that once we enact this legislation it should not be possible in the future for parents who might consider themselves disadvantaged by the legislation to take a case to court on grounds of constitutionality. It is as well to clear up that question. Let us hope that Article 42.5 of the Constitution, which permits the State to supply the place of the parents in certain exceptional circumstances is strong enough to guard us in this area.

The most important aspect of the Bill is the right of children because the rights of parents will already have gone through an investigationary — possibly a legal — process, in regard to being deprived of their marital children. There is a requirement written into the Bill regarding the age of children who may be adopted, but we should have regard for the trauma that could cause for children. What consultative process has the Minister in this procedure for the children themselves to be consulted? The minimum age for adoption is six weeks and upwards. Once you start moving up in age to three, four, five, six and seven years — seven is the maximum age with some exceptions — children want to know what the State is doing in their interest and what the Adoption Board might have in mind for them. I hope that the children would by then have formed an opinion. They may want, in spite of expert opinion to the contrary, to remain with their marital parent on the basis that — irrespective of how we feel they might have been mistreated — this paternal or maternal bond, which has been referred to by Senator Doyle, exists and is at times irreplaceable. Who are we, as ordinary mortals, to decide, in the interests of the child, that that should be severed?

The child needs to be — and I hope will be — consulted, especially if he or she understands these traumatic situations. We must have regard for the child's future happiness. I know it is the aspiration of all adoptive parents, with whom we are in consultation at present at some time in the child's future to tell him that they are not his real parents. That, in itself, is a traumatic time for the adoptive parents. While we are consulting everybody let us hope we will also consult children under the age of majority. Section 12 of the explanatory leaflet mentions ages up to 21, which is three years above the age of majority. Certainly, children of that age need to be consulted. I take it that after the age of majority their consent would be necessary in the event of a procedure that would be taking place for their formal adoption by people other than their martial or non-martial parents.

We are dealing with a very sensitive area when we are talking about families and children. It is because of that that this Bill is reasonably restrictive but because of the numbers involved, it may affect quite a lot of children. The Minister said that 2,534 children are in care as of 30 December 1983. I am sure that number has now increased. I know that when children are being put in residential care social workers and other experts in the health board areas have had to go into court in the children's interests to take them into care. This is dealt with in a very confidential way. The name of the foster parent or the identity of the children is never communicated to members of the board. They are always dealt with by reference to file numbers, appropriately so because it is a very sensitive area. We have been approached afterwards by parents who felt that their children have been taken from them unfairly. However, when we discuss the file with the health board we discovered that it was in the children's own interests to be taken into care, and that at times the only reason some parents wanted their children returned was to collect the children's allowance. It is a tragedy that people treat their marital children in that way. All of us who have an interest in children and family matters are concerned that that situation should ever arise, especially, in a Christian country, the hard fact of life is that it does happen.

We hope that children at risk will be continuously monitored by health board and social workers. Certainly, from our experience in the past, they have dealt with this delicate matter in a very humane way and the children have been put safely in care, even in a temporary way. However, the numbers still in care in that category are quite high. Taking into account the aspirations of the Minister and of all of us — and, indeed, the aspiration of some of these disadvantaged parents, the majority of whom have aspirations for their children to be returned to them — the numbers of children likely to be affected by this legislation will be relatively high. We will have to see how it works, how beneficial it will be for children and how receptive parents who have been proved to be incapable of looking after their children will be to the idea that they will be taken permanently from them and given to adoptive parents who will be prepared to give them the loving care only a home environment can provide. It is a very delicate area of legislation.

I congratulate the Minister for having had the courage to continue in this field. Let us hope that the support from all sides of the House will follow through when this legislation becomes law. I hope it will pass any tests the President might feel are necessary. It is the appropriate time to do that, not when somebody else may have taken action to take a child from its parents — marital or non-marital — and start an adoptive process which at that stage would create tremendous trauma, unhappiness and discontent for everybody. We must ensure that legislation is properly framed to take account of the very special area with which this Bill deals. I hope it is successful and I commend the Minister for having brought it forward.

Mr. Kennedy

Is mian liomsa, ar dtús, fáilte a chur roimh an Aire Sláinte go dtí an Teach seo agus comhghairdeas a ghabháil leis as ucht a cheaptha mar Aire Sláinte, agus freisin dar ndóigh búiochas a ghabháil leis as an Bille tábhachtach seo a thabhairt os comhair an tSeanaid.

Deputy Patrick Cooney, who was Minister for Justice when introducing the Adoption Bill, 1974, said in the Dáil on Second Stage that the Adoption Acts are designed specifically to enable children with no family of their own to be taken into a family and integrated with it. It is in that context and with that philosophy in mind that I welcome the timely introduction of the Adoption (No. 2) Bill, 1987, the main provisions of which owe very great credit to its original parents, the previous Administration who published a Bill along similar lines in 1986. That Bill lapsed with the dissolution of the Dáil and is now basically being adopted by the present Administration, with Deputy O'Hanlon, Minister for Health, as its foster parent.

The central aim of this Bill is, as the Minister has indicated in his speech, to extend the categories of children who may be legally adopted. First, the Bill permits the adoption, in very restricted and exceptional circumstances, of legitimate children who are destined to remain in either residential care or foster care for all or most of their childhood because their parents totally failed in their constitutional, legal or other duties towards their children, thus depriving them of the love, the care and the confidence that can only come from the full membership of a family. Second, the Bill permits the adoption in very restricted and exceptional circumstances of an illegitimate child whose mother has not given the initial consent to placement for adoption. In both situations, section 3 of this Bill provides that such adoptions can only be made where, first, a continuous period of not less than 12 months immediately preceding the time of the making of the adoption application, the parents of the child, for physical or moral reasons, have failed in their duties towards the child; second, that it is likely that such failure will continue without interruption until the child attains the age of 18 years; and third, that such failure constitutes an abandonment on the part of the parents of all parental rights, whether constitutional or otherwise, with respect to the child.

The case for amending legislation has been highlighted in many reports and surveys in recent times. The report of the review committee on the adoption services, which reported in May 1984, identified the following basic considerations. First, children have the right to grow up in their family of origin and the State has a responsibility to facilitate this by securing the integrity and the economic and general well being of the natural family. Second, there will, however, be situations where it is not possible to keep a family together. In some instances, despite the availability of support services, parents will feel that it is not fair to keep the child and that the child can have a better life with another family. In other instances, the parents will be clearly unfit or unable to fulfil the parental role and the child's security and well being will be at risk. Third, in all cases where care for the child in another setting is necessary, a choice of short-term and long-term provisions, including adoption should be available. Fourth, adoption is often the best choice where long-term or permanent care is needed. Fifth, in some instances foster care, guardianship or residential care might be more appropriate to the child's circumstances.

The 1984 committee summarised their main aims in the formulation of their recommendations as follows. First, to ensure that adoption is an option available to all children who might otherwise be denied a permanent home and stable relationships. Second, to emphasise the paramountcy of the traditional family as the best setting for the general well being of a child, while not ruling out other arrangements in exceptional circumstances. Third, to ensure full regard for the rights of all parties to the adoption process. That committee concluded their views as follows:

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.

Adoption is not a modern origin but has existed throughout the ages with different motivations and in varying forms and can be traced back to the code of Hammur Abi, 2,000 years before the birth of Christ. By the mid-19th century, adoption had become a matter of statutory regulation in various European countries and in the United States of America. Although legal adoption had been introduced in England in 1926 as a result of the report of the Hopkinson Committee, and throughout most of Europe by 1930, it was not until 1952 that the first adoption legislation was enacted in Ireland with the passing of the Adoption Act of that year. The essential concept provided for in that Act was an arrangement involving the permanent transfer of parental rights and duties from the natural parents or guardians to the adoptive parents. It extinguished the parental links between a child and its natural parents and created links between the child and the adopters, which links are legally defined as equivalent to congenital ties.

The Adoption Act, 1952, has been amended three times, by the Adoption Act, 1964, the Adoption Act, 1974 and the Adoption Act, 1976, and it was the subject of a constitutional amendment in 1979. This arose because, during the course of the hearing of the M & M v. An Bord Uchtála 1977 case, sometimes referred to as the McL case, the constitutionality of the board's functions and hence the validity of every adoption order since 1952, were brought into question on the grounds that An Bord Uchtála were not a court of law exercising “limited functions and powers as required under Article 37.1º of the Constitution” which provides:

Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or body of persons is not a judge or a court appointed or established as such under this Constitution.

It was argued that the Adoption Board's functions might not be regarded as limited since the board created and extinguished legal relationships. In the High Court it was held that the board were operating within the Constitution but on appeal to the Supreme Court the matter was left undecided. To secure, therefore, the board's position and the stability of thousands of families and adopted children, the Sixth Amendment of the Constitution was promoted in order to add to Article 37 the provision which now constitutes Article 37.2º.

The introduction of legal adoption has undoubtedly been one of the landmarks in the evolution of Irish society during the past three decades and this can be seen from the fact that in the 35 years since 1952, over 35,000 children have been adopted, thereby bringing incalculable happiness to these children and to their adoptive parents. Under the current legislation, an adoption order can only be made in respect of a child who is an orphan, who is illegitimate or who has been legitimated by the marriage of his parents after his birth but whose birth has not been re-registered.

There are certain restrictions. An adoption order cannot be made in respect of a child who does not reside in the State. A child cannot be legally adopted unless he is six weeks old. There is an upper age limit of seven years. But the Adoption Board are empowered to set this limit aside where they are satisfied that "in the particular circumstances of the case it is desirable to do so". The child's mother or guardian, or any person having control over him must consent to his adoption. Two consents are required. There must be an initial consent to place the child for adoption. This is an essential legal requirement in all cases before the adoption procedure can begin. The second and final consent must be given after the child has been matched with the prospective adoptive parents. This later consent can be dispensed with in certain circumstances by direction of the High Court. These circumstances would normally relate to a situation where the mother has unreasonably withheld her consent and where the court believes that the child has bonded with the proposed adoptive parents.

Children who are not now eligible for adoption are therefore, (1) a legitimate child with a parent or parents alive, (2) the illegitimate child whose mother has not given the initial consent to its placement for adoption and (3) the foundling infant. In this case, even if there is a reasonable assumption that the child is illegitimate, it cannot be adopted because the mother cannot be found to give the essential initial consent to placement for adoption. There have been many calls, as other Senators have indicated, over the years for changes in the adoption laws to enable the adoption of children in these three categories who, for varying reasons, have been separated from and abandoned by parents who are most unlikely to resume, or indeed are incapable of resuming the parental role. The provision of this Bill will, therefore, permit the adoption of children in these three extended categories, but they will apply only in certain very restricted and exceptional circumstances which are clearly set out in the Bill.

Sections 2, 3 and 4 of the Bill provide detailed procedures and associate the powers and procedures about the High Court and the Adoption Board in relation to the adoption of those children to whom the Bill is relevant. For example, the Adoption Board will examine the application using the standard criteria that will apply to all adoption applications. They will look at the suitability of the proposed adopters, whether the child has successfully bonded, etc.

The High Court must be satisfied that all the factors and requirements specified in the Bill have been complied with and only then may they make an order authorising the Adoption Board to proceed to make an adoption order in respect of the child. The court will be obliged to hear the evidence of the natural parents unless their identities are unknown, they refuse to give evidence, or indeed cannot be found. They must as far as is practicable give due consideration, having regard to age and understanding, to the wishes of the child concerned. Thus, in summary, the court may only make an authorisation order if they are satisfied, having considered all the factors, that it would be in the best interests of the child to do so.

Section 3 of the Bill has been drafted, as the Minister has indicated, in close accord with the wording of Article 42.5 of the Constitution which permits the State to supply the place of parents in certain exceptional circumstances. Article 42.5 of the Constitution provides:

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.

The Minister for Health, Dr. O'Hanlon, has stated in his Second Stage speech:

I followed the advice of the Attorney General in relation to the precise wording of the entire Bill and I am satisfied that, should it be referred to the Supreme Court to be tested, there are cogent and substantial grounds for arguing successfully in favour of its constitutionality.

However, the 1984 report of the Review Committee on Adoption Services states:

We recognise that our proposal to permit the adoption of legitimate children who are not orphans has constitutional implications. Whether such a change would be in conflict with articles 41 and 42 of the Constitution is a matter of doubt.

On the one hand, it has been argued that because Article 41 of the Constitution recognises that the family based on the institution of marriage possesses "inalienable and imprescriptible rights, antecedent and superior to all positive law." and Article 42.1 of the Constitution recognises the rights and duties of married parents as inalienable, their transfer to adoptive parents is impossible even where the natural parents may wish to transfer them regardless of the extent to which the rights and duties have been ignored or abused. By contrast, the rights of the unmarried mother, though protected under the Constitution, have always been regarded as alienable. Hence the adoption of illegitimate children has never been in constitutional doubt.

On the other hand — and this is the second viewpoint — it has been argued that Article 42.5 emphasises the constitutional balance which needs to be maintained between the rights of parents and "the natural and imprescriptible rights of a child". According to this view there is nothing in the Constitution to indicate that in cases of conflict the rights of parents are always to be given primacy. Moreover, it can be argued on this interpretation that the State has a duty under Article 42.5 of the Constitution "to supply the place of parents", by appropriate means where the parents for physical or moral reasons fail in their duty towards their children. The second view has been endorsed by Mr. Justice Walsh in the Supreme Court in the G. v. An Bord Uchtála, 1980 case. I quote:

In my view there is nothing whatever in the Constitution to prevent a member of a family passing out of the family. I do not see any impediment in principle to a child's passing out of one family and becoming a member of another family in particular circumstances.

Mr. Justice Walsh continues:

Article 42.5 of the Constitution speaks of the case where parents fail in their duty towards their children for physical or moral reasons; it provides that 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. Under that section the State may very well by legislation provide for the failure of the parents, and in appropriate cases it may very well extend the law beyond simple provisions for a change of custody. A parent may, for physical or moral reasons decide to abandon his position as a parent or he or she may be deemed to have abandoned that position; a failure in parental duty may itself be evidence of such an abandonment.

Mr. Justice Walsh continues:

Where there is a complete abandonment of the parental rights and duty, the State may be justified in taking measures by statute or otherwise to protect the rights of the child: these measures may include the enactment of adoption legislation.... It is also to be borne in mind that some inalienable rights are absolutely inalienable while others are relatively inalienable.

The drafters of this Bill have clearly taken on board the idea of Justice Walsh of failure of parental duty amounting to abandonment of the parental role in the hope perhaps that the other members of the Judiciary would accept his obiter dicta view as expressed in G v. An Bord Uchtála, 1980. In a recent case entitled K.C., A.C. v. An Bord Uchtála (1985) also found under the name in re J.H. (otherwise R) a Minor, Chief Justice Finlay stated:

I would therefore accept the contention that in this case s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child which is defined in s. 2 of the Act in terms identical to those contained in Article 42.1 is to be found within the family unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved or unless the court is satisfied that the evidence established an exceptional case where the parents have failed to provide education for the child and continue to fail to provide education for the child for moral or physical reasons.

Griffin J and Heddermann J in that case agreed with the judgment of the Chief Justice as did Justice McCarthy who added:

The key issue is whether or not the court is satisfied on the evidence that there are compelling reasons why the welfare of the child, as defined, cannot be achieved within the family, in other words that there are compelling reasons why the child should be in custody other than that of her parents.

Therefore, the Government appear to be satisfied about the constitutionality of this Bill but the 1984 report of the Review Committee on Adoption Services states:

In our view the doubts which exist about the constitutionality of permitting the adoption of legitimate children will need to be resolved. It would not be wise to introduce legislation to permit the making of adoption orders which may later be subject to challenge in the courts. The constitutionality of such legislation needs to be secured in advance.

This can be done in two alternative ways: (1) an Article 26 reference by the President to the Supreme Court or (2) a constitutional amendment by way of referendum. A reference by the President would be beneficial to prevent any cloud of constitutional doubt hanging over any adoption orders made under this legislation. However, there is a possible risk because the President cannot be required by the Government to make such a reference and if he decides not to do so, this legislation once promulgated would remain suspended in a cloud of constitutional doubt as would the adoption orders which would be made under it. Accordingly the 1984 report of the Review Committee on Adoption Services concludes with the following observation:

It would be preferable to secure a change in the Constitution which would express in a positive and principled way the proper balance to be drawn between parents' rights and childrens' rights rather than a minimal change which secures the adoption of legitimate children by the insertion of a proviso or reservation to the existing constitutional provisions.

I welcome the introduction of this timely and important Bill but I am convinced that it is absolutely crucial and essential that this legislation should be constitutionally safe and sacrosanct before it is brought into operation.

Mr. Fallon

I welcome the Minister for Health, Deputy Rory O'Hanlon, to this House and this meeting of Seanad Éireann and wish him well for the four-and-a-half years of his tenure of office. Like Senator Brendan Ryan I would like to congratulate and pay tribute to him for the courageous decisions which he has made in the area of health.

I welcome the Bill and support the broad aims to extend the categories of children who may be legally adopted and in particular the adoption in some exceptional circumstances of legitimate children with a parent or parents alive. We know that for a long number of years calls have been made to amend the adoption laws. It is a regrettable feature of life that many children have been abandoned or separated from parents who are incapable of resuming the role of parent. As we know most of these children are now in the care of the health boards, in residential children's homes or are fostered by families.

Even though the Bill deals with adoption there is some reference to fostering. While fostering is admirable I would welcome some tightening up of the procedures. There have been many cases — and I know of one — where children are fostered in good faith and become part and parcel of the family unit. They are showered with love and affection by the fostering parents and other members of the family. However they lose the children perhaps after two or three years because their natural mothers want them back. This is a heart breaking experience for any family and for the children also. I ask the Minister to examine the possibility of tightening up the procedures in that area. Children who are in the care of health boards or in residential children's homes, or those who are fostered do not experience the same companionship or friendly, loyal family feeling that one associates with adoption.

Surveys and reports have been carried out by responsible people who are interested in child welfare. They have come down very firmly on the side of the adoption of legitimate children. The aspirations in relation to the various groups referred to in the section of the Bill, namely, the legitimate child with a parent or parents alive, the illegitimate child whose mother has not given the consent to its placement for adoption and the foundling infant are aspirations and beliefs to which most of us would subscribe.

The problem area of the Bill, referred to by the previous speaker, Senator Kennedy, is in the processing of applications through the High Court. What this will cost is difficult to assess, but one can be sure that it will be quite an expensive exercise. I am sure the Minister is happy about the constitutionality of the Bill, but I anticipate a bonanza for barristers and counsel generally, who will have field days in the High Court and the Supreme Court in the future. Apart from the cost of High Court proceedings, one of the big difficulties with the High Court proceedings is where it must be shown that the natural parents have failed in their duty towards the child and that such failure has continued for 12 months prior to the application for adoption. It may be difficult to prove failure in particular cases and to come up with the evidence to prove that such failure is likely to continue until the child reaches the age of 18. I anticipate many an expensive legal battle to settle this area of the Bill.

If a High Court application fails, there is nothing the applicants can do. It is a failed adoption with no alternative open to the applicants and no right of appeal. I wonder if the right of appeal might be written into the Bill.

Our current legal adoption process is built around consent. The Bill does not allow for the voluntary placing of legitimate children by natural parents. For legitimate children to be adopted the court must decide that the parents have failed in their duty towards their children. To secure adoption in such cases, a court may have to decide that the parents are irresponsible thereby stigmatising them.

The explanatory memorandum makes the point that there are 2,534 children in care as of 31 December 1983. I wonder how many children will actually benefit from this Bill. One of the clauses of the Bill refers to the fact that a child must be in the custody of the prospective adoptive parents, that is the foster parents, for one year. It does not deal with the children who are chronically in and out of foster care and who may not have a continuous period of 12 months with any one family. Can this be remedied? Perhaps the Minister would comment on it.

The section dealing with the adoption of children is something that worried me slightly. Page 3, (iv) of the explanatory memorandum makes the point that:

Following a favourable declaration by the Adoption Board the applicants may then request the appropriate health board to apply to the High Court for an order in respect of the child. The health board may decline or fail to make an application to the High Court. In that event, the prospective adopters may apply themselves to the High Court. In such instances, the health board shall be joined as a notice party to the proceedings.

I wonder if this could be amended, or ought it to be amended in some way, because it seems to be setting up the prospective adoptive parents against the health board. It is an arrangement with which I am not happy. Perhaps there is good reason for it, but if the health board declines or fails to make an application to the High Court, one would imagine that would be the end of the story, rather than having the prospective adopter applying to the High Court and including the health board as a notice party to the proceedings. One would imagine that some other arrangement might be organised in that event.

We all welcome the Bill which deals with two problems, the non-adoption of legitimate children, some of whom are currently in care and who would enjoy the comfort of family life in its fullest form, and the legal and emotional security of adoption if it were available to them. It also deals with the other peripheral problems in current adoption practice like extra marital children and the foundling infant. It is time the position of the foundling infant were remedied. At the moment, even if there is a responsible assumption that the child is illegitimate it cannot be adopted because the mother cannot be found to give the initial consent to its placement for adoption. We have all heard and read of cases where infants are left at hospital doors or on the steps of the local convent. In those situations there would be many takers for the legal adoption of such a child. This is an area that everybody would expect to be remedied once and for all.

Many parents who place their children with health boards, in care or in foster care or residential homes, do it for stress reasons, for bad housing reasons or because of temporary financial problems. In those cases, it is fully accepted that it is a short term rather than a long term abandonment. The Bill takes care of that. The legislation before us ensures that, where there is a prospect of a family being reunited, the children concerned will not be proposed for adoption. This is what the Bill is all about. It is unavoidable that in many cases there are children in care because they have been abandoned totally by their parents, have been neglected and ill treated by parents who are most unlikely ever to seek a return of their children. That is regrettable. The Bill which is well intentioned has natural limitations, as it were, which are demanded by our Constitution and our practice. I sincerely hope it proves to be successful legislation for the years ahead.

Mr. Harte

I welcome the Minister to the House and wish him a good reign. That is the best I can say.

An Cathaoirleach

A long one.

Mr. Harte

A good reign. I know that he has a difficult and onerous task in front of him and I wish him well with it.

I am a little concerned about the Bill in two senses. The first concerns the Title of the Bill which states that it is and I quote:

An Act to provide, in exceptional cases, where the parents for physical or moral reasons have failed in their duty towards their children, for the supplying, by the adoption of the children, of the place of the parents and for that purpose and other purposes to amend and extend the Adoption Acts, 1952 to 1976.

The type of problem I will refer to is not adequately covered by the Bill or at least if it does, I do not understand it. Therefore, my contribution is aimed at getting a proper reaction from the Minister and his advisers put into the record.

Another point would be the case studies of which there are quite a few. One of the matters that is worrying is that the High Court can dispense with the natural mother's consent. That is as I understand it. If I am right in those two opening points it means that the concepts of justice, fairness and of equality before the laws enshrined in our Constitution, may not be given full effect if section 3 or some of the other sections are not interpreted to cover certain situations in a fuller way. The best way to approach this is to take a case study. For this purpose I am taking the case of a woman who gave birth to a baby legitimately in 1982. She then found that she did not want the baby. It was not a question of being able to cope or anything of that kind. Within a couple of weeks the child was handed over to a married couple. The married couple, because they are unable to have children of their own, grasped the opportunity and proceeded to try to do everything in their power to have the child legally adopted. Because of the law at the time it was rather difficult to have the child legally adopted. The prospective adoptive parents lobbied everybody possible but to no avail. Eventually the position is that the child has grown to the age of five or six and is still left in the care of at least one of the people who took it. What happened as a result of all their efforts is that — I want to make sure I say this accurately — they were made legal guardians. The position is that the natural mother after almost six years is still satisfied that the person who has been taking care of the child should have the right to adopt it.

To sum up, the two aspects of the Bill which concern me are the right of the High Court to dispense with the natural mother's consent and the Title of the Bill which does not appear to cover all situations regarding the adoption of legitimate children.

I do not think the question of the separation after two years of the couple I have been referring to is really the point. It is a question of whether the Bill covers the matter. In the case I have outlined, the man departed but the woman kept the child and is still pursuing the right to adopt, with the support of the natural mother. If the Bill does not make sufficient provision for that sort of case we would be doing an injustice to people in those circumstances. Up to the present day the prospective adoptive mother has shown great social responsibility, shown the child friendliness and love, justice and courage, gives it sympathy and knows exactly how to protect and enhance its future prospects. She knows how to give the child every opportunity and yet there is uncertainty as to whether the Bill as drafted will make it possible for this person to adopt that legitimate child. There are other such cases too. There is no question of the woman in that case or of the other people concerned or myself feeling strongly about the case but being weak thinkers.

As I said at the start, I am not absolutely sure about the intention of the Bill but I want a reaction on it so that it will be clear. In adoption cases which can be very emotional there is no question of a tablespoonful of sincerity to a gallon of feeling. We are seriously concerned about whether the constitutional rights of the people involved in these cases will be protected. If people take as their own a child that is unwanted by its natural parents, assumes the rights and duties of parents and show by their behaviour that the needs of the child are of paramount importance so far as they are concerned, it would be tragic if, because the Bill had not got adequate provisions and if, for some unknown reason, the power of the High Court to dispense with the consent of the natural mother was invoked, they could not adopt the child. It is a matter of concern rather than understanding of the total capacity of the Bill. If everything is not covered in the Bill I would be concerned that the present standard and practices of the law in regard to adoption should not only be improved in the area of adopting legitimate children but should be extended to other cases. Where love and compassion were being shown to a child, points of law should not be written in such a way that they stand as a threat over the head of the person who wishes to adopt, particularly when the natural mother is still prepared to consent after five or six years. It would be a tragedy to ignore cases such as I have mentioned because it would be legislating against the child rather than the parents who have taken on the child.

The Bill is a good move forward. It is always nice to see good social legislation. The Bill recognises injustice by allowing the adoption of legitimate children. There is a fear that, because procedures were not followed correctly, or because of the powers of the High Court, or because the title of the Bill is not correct, somebody with a genuine intent who proves to be a good parent may be impeded by the law. I am not just talking about evidence of somebody seeking to adopt, but about people's perception of the situation. I am talking about evidence in its fullest sense. Let us say we have evidence in its fullest sense of genuine parents who know all about their responsibility and who give the child his rightful importance and do everything in their power to give him the strength necessary to face up to life. It would be sad to think that for some reason the law, as worded, might be an impediment to them. That should not happen because the courts and health boards have adequate scope to surround themselves with guarantees of the truth in cases of this nature. In dealing with certain cases on the basis of hard facts it would automatically appear that there would not be a problem, but the worry is whether the law is expressed correctly and whether it is adequate to ensure that people who have been in this position for years and who have gone through a lot of pain and suffering with fear hanging over their heads will not be impeded by the introduction of this legislation. I understand the need for caution and I particularly understand the need for caution in matters such as adoption. I understand the need for adoption procedures but the cases I refer to are not theoretical but are based on factual evidence. In the case where people did not adhere to the law in the first instance, but who did everything with bona fide intent, were good parents and recognised the child's rights as of paramount importance, I hope the law we are passing at present will not impede such people.

I welcome the Bill. I look forward to its speedy passage through the House. I should like the Minister when replying to reassure me on these aspects of the Bill.

Mr. Hanafin

The purpose of this Bill is to enable a comparatively small number of children who find themselves in unfortunate circumstances through no fault of their own to be adopted and to enjoy a normal and happy family life.

The Bill expands on the recognised need for adoption which has been catered for in the existing adoption Acts and it mends some outstanding anomalies which have resulted in some children receiving less of a family life that they have a right to expect. It is important that we should keep in mind the ideal we have for all children, that is, that all children should have the opportunity to enjoy a full and happy family life. That is the right envisaged in our Constitution and it is our duty as legislators to strive to attain this. However, it would be wrong of us not to realise that some families, even with the best will in the world, will sometimes run into difficulties. Often these difficulties, whether they be financial or emotional, will be of a temporary nature and in such instances it is the duty of the State to provide assistance and intensive support to enable the family to restart their life together.

I agree with the Minister that it is generally in the best interests of the child to be brought up in his or her own family. I welcome the Minister's assurance that future developments will be aimed at providing support services to any family in difficulties with a view to preventing or diminishing the need for parents to have to part with their children on a short or long term basis. Despite these efforts, some children will be deprived of a normal family life. It would be very wrong if a legal label given to a child at birth as a result of the marital status of his parents were to prevent that child being afforded an opportunity to enjoy a normal family life.

The Bill enables the adoption of certain children, mainly legitimate children with a parent or parents alive. Our paramount concern must be for the welfare of the child, but we must also have regard to the rights of the natural parents. This Bill should not be viewed as giving the High Court the right to decide that, because of social factors, certain people or categories of people should not keep and bring up their own children. Rights, be they the rights of natural parents or otherwise, cannot be viewed in isolation. Rights give rise to duties and where, for whatever reason, the natural parents cannot for a long a period of time carry out those duties, it is clear in the interests of the child that the parental rights and duties be permanently transferred to adoptive parents.

The High Court in making such an order must be satisfied that the parents' failure will continue without interruption until the child is 18 years of age. A temporary lapse on the parents' part, however prolonged, is not sufficient nor should it be. The best place for any child is in its own family and any interference with that except in the most extreme circumstances would be unconstitutional. The provisions of this Bill do not constitute such an interference nor do I believe that they offend the Constitution.

The Bill is exacting, and necessarily so. It allows adoption only where for a period of at least 12 months before the application the parents for physical or moral reasons have failed in their duties to the child. It also requires that the High Court be satisfied that it is likely that this failure will continue without interruption until the child is 18 years of age and that the failure constitutes an abandonment. I am satisfied that the High Court will not construe these provisions lightly and that the views of the natural parents will be given considerable weight. I believe that where a natural parent opposes an application and sincerely expresses a desire to uphold their duties to a child the court will not be able to make an order, but this Bill will enable abandoned children and children whose parents are unable and will continue to be unable to care for them to live normal lives in a new family.

The procedure set out in the Bill involving both the High Court and the Adoption Board is cumbersome. I agree with the Minister that it would be desirable to have a family court which could combine the functions of both bodies, but the changes envisaged by this Bill are of such importance to the children and parents involved that it would be wrong for us to await the establishment of a family court before bringing in these changes.

I fully support this Bill and I hope that the President of the High Court will be in a position to arrange for a speedy hearing of these applications and that the Department of Justice will afford whatever facilities are necessary to ensure this. I am looking forward to Committee Stage with considerable interest.

Mr. Bradford

Like previous speakers I will not detain the House long with my comments. Most of what I wish to say has been said during the past two days and I am not an expert on rehashing the arguments, so fortunately or unfortunately we may get out of here pretty sharply. Like all the speakers so far I welcome the Bill as I would any progressive legislation along this line. It is welcome in that it will help to bring the adoption laws into line with those which apply throughout Europe. The explanatory memorandum to the Bill indicates that the position we hope will exist after the implementation of these laws has applied in Northern Ireland since 1929, and that shows how much ground we have to make up. However, a late start is better than none.

Some Senators referred to the numbers of people that this measure will effect and the economic aspects of it. The extra numbers of children who will be eligible for adoption and the hoped for decrease in the numbers of people dependent on residential care should result in a certain saving to the State. At a time of such financial stress on Government Departments and particularly on the Department of Health, this is welcome.

However, I am sure nobody is looking at this from an economic point of view. As a result of this Bill many children will be able to enjoy a family life hitherto denied them. We cannot speak on this Bill without praising the great work that is done in many foster homes, residential care centres, etc. but, as has been said by various speakers, nothing can substitute for the security which family life can offer, and in that respect this Bill is very helpful.

Notwithstanding any criticism of our present adoption laws, they have served us fairly well and have brought about a great change of attitude to the whole question of adoption which for a long time was a taboo subject. Children who were adopted often were segregated in a way that was not well defined; for instance in a class of 30 or 40 the one child who had been adopted was referred to as being adopted. No harm was intended and it was a pity that we allowed ourselves to go along those lines and consider adopted children as different from others. This legislation, and improved social awareness will rectify this minor fault.

The limitations which will still be imposed on those wishing to adopt children are a necessary safeguard. As Senator Hanafin stated, regardless of what health boards think of parents' performance for a number of years, no matter what their neighbours or social workers may say, it is only proper that those parents have a right to contest any claims in the court and to state their case. Only in very extreme cases would the courts overrule the right of parents to retain custody of their children. In a small percentage of cases the rights of children may not gain sufficient recognition. It will be quite difficult to prove that over a period of 12 months parents have, for physical or moral reasons, failed in their duty towards their child, that this failure will continue up to the child's 18th birthday and that such failure constitutes an abandonment on the part of parents of all parental rights, whether under the Constitution or otherwise, with respect to the child.

I hope the courts will give serious consideration to the rights of children. It is likely that the better lawyers will be appearing on behalf of the parents. It is difficult to know what is best for children. A child of four or five years of age cannot present his case ably in a court of law. It is important that the State's right to intervene in such cases be upheld. One worry I have in respect of this Bill is that it may not go far enough in allowing the State to intervene. I am not talking about every case. It would be totally wrong if health boards, neighbours, etc. were to intervene regarding the rights or duties of parents but unfortunately these regulations will be considered only when the parents have indicated that they are willing to allow their child to go forward for adoption. Obviously if the parents are not to be found or if the child is illegitimate then that problem can be solved.

Where the child is living with the parents under perhaps very poor circumstances the health boards will not have any right to intervene. I am sure that it is a matter which we will have to discuss further on Committee Stage.

Yesterday I read in one of the national newspapers about the high rate of sexual abuse of children under the age of ten. It stated that approximately one in three girls between the ages of one and ten were being sexually abused. That is frightening and one wonders what can be done about it. Obviously this legislation is not designed with that in mind. Unfortunately, we have no right whatsoever to try to do anything about this matter. As I mentioned, it would be far better if the State had some extra power in these cases to at least initiate some form of investigation. It is most unlikely that the parent who is causing trouble in those circumstances would have any wish or desire to initiate an investigation into their own troublemaking. That is one of the few points I am concerned about with regard to this Bill and I hope we will receive some clarification on it at a later stage.

One cannot knock any part of the Bill. I hope it will ensure that children up to the age of 18 years will have a more enjoyable lifestyle. Many people can benefit from it. The numbers involved may seem small on paper — the memorandum mentions a figure of only 2,500 — people — and a minority group like this cannot protest loudly enough. There is not much political representation made on their behalf and that makes it even more important that a forum like this should do its utmost to increase their enjoyment of life.

While welcoming the Bill I again hope that my reservations as to the powers of the State to intervene will be considered by the Minister. I know perhaps as a country we have always held that rights of parents are sacrosanct and in 99.9 per cent of cases that is correct, but I hope we can do something about the other 0.1 per cent who unfortunately never seem to come to light. The family environment is obviously the best environment possible in which to rear children. The residential homes do an excellent job but we must ensure that the small minority of cases where children are not being treated as they should be will be investigated fully and that no steps will be taken to hide any of the facts from public view. We need only to look across the water to what has been happening in Britain in recent times to see what can go dreadfully wrong once people try to hide facts which may not be palatable.

At times we may say that if we wait long enough the problem will sort itself out but any wrongs done to children of three, four and five years of age will live with them for the rest of their lives. Therefore we cannot afford to waste any time. When we decide to take action it must be taken fairly swiftly and the regulations governing it must be adhered to and no exceptions should be made. It is a pity that cases arise where children have to be removed from their parents. Perhaps ten years ago we might not have considered that to be a scenario which would ever happen. Society has changed and so too must the rules governing it. Over the next few years we must consider foremost the rights of children to live a normal, happy life. This Bill is a first step along that road and I welcome it. I hope however that the finer points of it will be changed in order to allow a continual investigation of cases where concern exists. I hope to raise some points in that respect on the Committee Stage.

Mr. Manning

First of all, I welcome the Minister because consistently I think Senators find him the most courteous and most helpful of all Government Ministers and it is always a pleasure to do business with him. The Bill is welcome although I have three reservations about it and I will try to put them as briefly as I can. My first reservation concerns the way in which the Bill has come about. I do not want to appear to be carping or ungenerous but the way in which this Bill has come to us is an indication that we do not have a particularly rational system of bringing about legislation. If we had a more mature parliamentary system it would have been possible in the other House for the Government to accept the Bill of Deputy Alan Shatter and to have had that Bill changed either in committee or in the Dáil where changes were necessary. It could then have come to this House and if further changes were needed they could have been made and we would today be looking at a Bill which would be on the Statute Books within a matter of days, instead fo which this Bill is unlikely to be on the Statute Books before the end of the year.

In one sense what has happened in this case is exceptional and it reflects credit on the Minister. At least he moved with very reasonable speed to produce his own Bill. In the past, the pattern always has been that even though good ideas were introduced in Private Members' Bills they would then be voted down by the Government of the day — not just this Government but all Governments — in circumstances where they, and perhaps a majority of members of all parties, would have no objection to it in principle, but a dog in the manager attitude was adopted; if it was not a Government Bill it would not be introduced. Frequently, some sort of vague assurance was given that the matter would be taken up. Invariably what happens is, as in this case, the more timorous voices in the Department, the people who very frequently specialise in saying that something cannot or should not be done, the people who urge the Minister to be prudent are heard, or, as is more likely to be the case, some well placed group with a vested interest in obstructing the legislation will get the ear of the Minister or of others in Government and we end up with nothing being done and the necessary changes in the laws are not made. As I said, that is not happening in this case.

If I could disgress for about two minutes on this point, the way in which this Bill has come to us and its treatment by the Government — and all Governments behave in this way — indicates a great weakness in our whole parliamentary procedures. We are among the bad Parliaments of Europe in regard to the amount of freedom we give to private members to bring in matters of this type. We are in the same situation as France where the Government have exclusive domination over what Bills come in, or what Bills have a serious chance of becoming law. We do not even have the small scope allowed to private Members in the House of Commons. We are very far away from the good Parliaments of Europe, Parliaments like Germany and Sweden, where between 10 per cent and 20 per cent of legislation each year originates with Opposition groups or with private Members.

What we seem to say is that the exclusive wisdom about legislation lies with the Government of the day and that the other 190 people in both Houses who are not office holders have virtually no rights whatsoever other than to approve, change maybe in detail but never in principle, the legislation which comes from the Government. I am not arguing that the Government should not have the dominant major role in all this, but I believe that there is scope for a much greater role for Opposition parties and private Members in bringing in legislation, especially of this kind, where there is a wide measure of agreement, where perhaps the ideas may even be that little bit fresher because they come from outside the Civil Service, outside the established way of doing things, and where Ministers may even be relieved of a certain burden of having to carry the legislation.

The system as it is does not strike me as having any great justification for the way in which it works at present. There is no loss of face involved for a Government to give way on a Bill of this kind. There is, perhaps, an even greater chance of getting overall consensus right across the House which may well produce better legislation because there is not the sense of people having to be against the Government or for the Government and it could very well speed up the whole process.

If one were to ask many people elected to either House what is the greatest frustration they face in relation to being an elected Member, the answer would almost certainly be in being underused in areas of legislation. Virtually all Members of both Houses are overworked in many of the wrong areas, or at least overworked in a disproportionate way in terms of constituency work, but they are underworked and underused because they are not given an opportunity in areas of legislation.

My final point on this is that the way in which this Bill has come to us bears out very strikingly the underuse of the resources, energies and imagination of the vast majority of Members of both Houses in terms of putting forward legitimate ideas to be brought into the law of the land. Having said that, the Bill is welcome and it has been welcomed by all responsible interest groups. I should like to ask the Minister if it is possible to get figures which are more up to date on the number of people in care at present than were given in the memorandum.

I have two other worries about the Bill and each of these has been teased out very well so I will mention them very quickly. The first worry concerns the procedures which will be used to enable people to adopt children under the new legislation. It is a restrictive Bill and it has to be a restrictive Bill for reasons I understand and accept but if in practice when this Bill becomes law, the procedures are shown to be too restrictive, if they are not achieving the purpose which the Bill intends and if the purposes intended by the Bill are seen to be frustrated, I ask the Minister to establish a review procedure so that after the first six months of the operation of the Bill and the second six months of the operation of the Bill he will be able to report back to both Houses of the Oireachtas on how the new procedures are working. If it is found that they are too restrictive — and if this is the case we may well have to consider constitutional change — I believe there would be a willingness to face up to wider changes of this sort on the part of all parties in both Houses because this is a Bill which people want to see working quietly and efficiently. If in practice this is not the case, we should find out as quickly as we can and see that changes are made.

My second reservation is one which was touched upon at some length by Senator Kennedy and mentioned by Senator Fennell among others in their contributions. That simply is the danger that the Bill might be proved to be unconstitutional. It is a serious point and a very real worry because one never knows these days just what the Supreme Court or, indeed, the High Court will do in matters of this kind. The practice of judicial review has grown to an extent which certainly was never envisaged by the founding of the Constitution or, indeed, by the framing fathers of the Constitution back in 1936-37. It has reached the stage where on some issues the Supreme Court has almost become the fourth House of the Oireachtas. It is a development which contains safeguards for fundamental rights but also it can impede the proper enactment of legislation which was properly conceived in a proper spirit by Members of both Houses.

The worst of all worlds would be that the legislation to be passed would be signed by the President within the proper period, would become law, that a year or two or three years down the line a challenge would be made in the High Court and found to be substantiated, and would then go to the Supreme Court. This would impose an incredible burden of fear and trauma on the people who would be caught up in this situation. We have had this before in the whole area of adoption. I know the Bill has been very carefully drafted and that the Minister and his officials have taken care to try to prevent this arising. Yet the common experience of the past 20 years or so will show that it is very difficult always to envisage what may arise in practice. It is even more difficult to read the minds of their lordships in the High and Supreme Courts in matters of this sort. While it is not up to the Minister or the Government I hope the President will use his constitutional prerogative to refer this Bill to the courts for judgement before it becomes law. This is obviously not something in which the Minister can have any say but I do hope that, if there are informal channels and if advice is being given, this course will be followed because it would copperfasten the legislation and people could avail of what has been provided without living in fear.

With those reservations I welcome this Bill. My reservations are about the way in which the Bill came about, about the possible practical difficulties and the need for constant review and about the need, if at all possible, to copperfasten the constitutionality of this Bill.

Mr. O'Shea

I wish to make some brief comments. Like Senator Manning, I compliment the Minister on the Bill. I should also like to compliment him on the caring approach which was demonstrated when he introduced the Bill to this House. I had intended speaking on the matter raised by Senator Manning regarding the constitutional problems which may arise. I do not propose to go over that again except to say I hope the President will refer this Bill to the Supreme Court because I believe it would be a terrible decision if adoptions effected under this Bill were later found to be unconstitutional. That would cause grave problems for people and a lot of heartbreak and suffering.

The first area I would like to apply myself to is the area of separated parents. Recently I had representations from a separated mother who got a child at five weeks old. That child is now five and a half years old and she is unable to adopt her. I hope the Minister can find some way to cover this situation and I ask him to consider that.

There is another area in which I have a particular interest, which was mentioned to me by adoptive parents who spoke of the possibility of adopting foreign children. The review committee's report states that they would be opposed to any measures which would encourage or facilitate trafficking in children from foreign countries for adoption purposes. It goes on to say:

The fact that there may be many young children orphaned or abandoned as a result of conditions of war or poverty or famine should not be regarded as a justification for removing them from their native environment. In our view, concern for the deprived children of distressed or underprivileged countries can best be shown by assisting the various national and international agencies working to relieve the problems of such areas by improving conditions within them.

It goes on to say that in certain circumstances they would favour adoption. It is all very well to talk in terms of supporting agencies, and so on, to bring up the standard of living and the condition of people in Third World countries, but when you hear of seven children dying every minute in Third World countries it seems to me that a Christian nation's response should be one to allow for adoption where clearly the children put up for adoption come through a reputable agency in the country of origin. The basic problem with our adoption at the moment is the supply of babies. If it is possible to take children from an environment where dying of starvation is a very likely probability, and if parents in this country are willing to take such children on board, then we should support this.

Another suggestion that has come to me from adoptive parents is that, looking at the area of abortion — we cannot close our eyes to the fact that quite a number of Irish people go to the UK to have abortions — a publicity campaign could be initiated by the Department of Health to demonstrate how happy children are when they are adopted. This could act as a stimulus to people to for go the abortion option, to have the children and to let them go up for adoption. The other points I wished to cover have been adequately covered by other speakers.

I welcome the Bill. I am concerned about the constitutional problems which may arise and I hope the President will refer this Bill to the Supreme Court so that everything is clear cut and that we can proceed from the basis which has been introduced in a very caring fashion by the Minister.

Minister for Health (Dr. O'Hanlon)

I thank all the Senators who have spoken in this debate for their very constructive contributions. I am more than heartened by the widespread support across the House for this measure which I believe is long overdue.

Before commenting on some of the points raised in the debate, I would like to emphasise again my overall attitude to child care policy.

All our strategies of care and intervention are aimed at the retention of the child within its natural family. I realise however, that there are children, and there will continue to be such children, who require to be separated from their parents. Some of these will be placed with foster parents and circumstances will arise where reintegration with their natural families will neither be possible nor in the child's best interests. This legislation will permit their adoption by their foster parents, in certain very restricted circumstances and so give the child the opportunity of a stable, secure family upbringing.

I note what Senators Manning, O'Shea, Kennedy, Fennell, O'Connell and Hogan said about the importance of securing the constitutionality of the Bill. Under the Constitution it is entirely a matter for the President to decide whether to refer a Bill to the Supreme Court for a ruling as to its constitutionality. It is not a matter in which the Government can intervene, as Senators will be aware.

As I said in my opening speech, I am satisfied that should this Bill, when passed by the Oireachtas, be tested by the Supreme Court I am happy that there are cogent and substantial grounds for arguing successfully in favour of its constitutionality. I emphasise that I would be very glad to see that confirmed by the Supreme Court.

A number of Senators raised the issue of further legislation in the area of adoption. I propose to bring forward a further Adoption Bill in due course. However, my first priority, once the present Bill is passed, is to press ahead with the major new Children Bill to update the present law relating to the care and protection of children. After that I would hope to bring forward a further comprehensive Adoption Bill relating to the reforms recommended in the report of the adoption review committee.

Senator Fennell raised an issue which is dealt with in some detail in the report of the adoption review committee, that is, the adopted persons' right to know their background. The particular Bill before us now is confined to extending the categories of children eligible for adoption. I do not wish to broaden it. The question raised by Senator Fennell is a complex, sensitive issue about which there are strong conflicting views. I intend to study this issue carefully and I hope to include a provision to deal with this area in the comprehensive Adoption Bill which I will be bringing forward.

Senator Fennell also raised the question of the position of children who have been "adopted" prior to 1952 and gave details of some individuals who had written to her. The position of children "adopted" before 1952 is that their adoption has no legal status. Some children born before that date were formally adopted when the 1952 legislation come into operation but they had to be under seven years of age. Since then the age limit has been extended to 21 years.

Senator O'Toole requested that age limits of adopters should not be inflexible. There is no statutory upper age limit for adopters. It is not proposed to introduce one in this Bill. Obviously this is in an area in which there should be flexibility particularly where older children are being adopted as, I would hope, would happen under this Bill. However, the practice at present — and I agree with it — is that persons selected as adoptive parents should not be older than the generality of parents of other young children.

Under this policy younger adoptive parents — under 40 years of age — are favoured. But, of course, this policy does not rule out a different approach in exceptional circumstances. I would be most anxious that in all aspects of adoption there should be as much flexibility as possible while maintaining certain guiding principles.

Senators O'Toole, Harte and O'Shea also raised the question of adoption by single persons or married persons who are separated. This is an issue which I would consider more appropriate to the more comprehensive Adoption Bill which I shall be bringing forward at a later date. Senator O'Toole adverted to the changing structures of families in present society and indeed the position is constantly changing.

I feel, therefore, that the question of extending the present categories of persons eligible to adopt should be more appropriately included in the proposed comprehensive Adoption Bill. I assure the Senator that I will endeavour to be as flexible and compassionate as possible while wishing, of course, to ensure that children are placed in appropriate, loving and secure family units.

Senator Hogan referred to the seemingly cumbersome procedure whereby foster parents must request their health board to take an application on their behalf to the High Court. It was necessary to include such a provision because, in the majority of cases, children will have been placed in foster care by health boards in the first instance. The health boards have statutory responsibility for these children. Indeed, as our child care services develop, and with the updating of our child care laws, I would hope that the increasing trend towards placement in foster care, rather than in children's residential homes will continue.

I feel that the health boards should be involved in placement and in overseeing the welfare of children in foster care. I expect that there will be a high level of co-operation between health boards and foster parents in preparing applications to the High Court under this proposed legislation. The boards, which will have a knowledge of the situation of the natural parents, whose rights we must not overlook, as well as that of the child and the foster parents, will be in a position to advise foster parents as appropriate.

Both Senator Hogan and Senator Doyle referred to the fact that, in the event that foster parents take an application to the High Court themselves and are unsuccessful, their costs will not be met by the State. If foster parents take a case to the High Court themselves, this means that their health board have declined or failed to make the application to the High Court on their behalf. I would expect that the board's decision would be taken on the basis of information available to them which would suggest that the application would be unlikely to succeed. In the interests of all concerned, and here again I would refer the House to the need to have regard also to the rights of the natural parents, I feel that there should be some disincentive to frivolous applications which patently have no chance of succeeding in the High Court.

Senator Doyle also raised the question of the right of appeal of the natural parents to the Supreme Court against a decision of the High Court. The parents will have this right and that is mentioned in section 2 (2) (b) of the Bill.

Senator Hillery referred to the fact that the High Court might have difficulty in proving that the parents' failure to look after their child would continue until the age of 18. The provisions in the Bill are intended to be used only in exceptional circumstances where there is no prospect of reconciliation and I would be anxious to ensure that all channels would be explored before a decision would be taken to separate a child from his or her parents.

Senators Fennell and Ryan referred to the use of the term "illegitimate" in the Bill. We can examine this, but it depends on the final passage of the Status of Children Bill through the Dáil.

Senators Ryan and Wallace spoke about the need for regulation of the adoption societies. I will examine this very carefully in the context of the comprehensive adoption Bill. I fully accept that this area needs very close and careful consideration, particularly given the sensitive issues involved.

Senator Ryan referred to the socio-economic groups, particularly to those who were unemployed and the difficulty that they might have in adopting children. It would be interesting for the House to give a classification of adopters according to their socio-economic group as appears in the Adoption Board's report for 1986. Out of a total of 800 children placed for adoption, the adopters in their socio-economic group were, farmers, 59; other agricultural occupations and fishermen, 18; higher professional, 68; lower professional, 56; self-employed and managers, 71; salaried employees, 62; intermediate non-manual workers, 96; other non-manual workers, 77; skilled manual workers, 193; semi-skilled manual workers, 45; unskilled manual workers, 46 and home duties, nine. The report points out that those who were unemployed on the day the order was made were classified by their previous occupations.

Senator Ferris was concerned that due account would be taken of the wishes of the child. Section 3 (2) of the Bill requires the High Court, in so far as practicable, to give due consideration, having regard to his age and understanding, to the wishes of the child.

I have referred already to the point raised by Senators O'Toole and Harte in relation to single parents and their right to adopt. Senator Harte mentioned a specific case and if he wishes to discuss that case privately with me or with one of my officials, we would be glad to hear from him.

Deputy Manning referred to the manner in which the Bill came to the Seanad. It is interesting that this is the third adoption Bill that has been presented within the last 12 months. The first Bill, because of the dissolution of the Dáil, was not proceeded with. Then Deputy Shatter's Bill was brought before the Dáil and now we have this Bill. Because of the complex nature of the issues involved and particularly having regard to the constitutionality issue, it is right that the Bill should be introduced to the Houses of the Oireachtas by the Government.

In relation to the figures for those in foster care, we will have available the figures for 1984 and 1985 before Committee Stage of the Bill. Senator Manning also raised the question as to whether the Bill might be too restrictive. We will be monitoring the implementation of the provisions of this Bill carefully and if corrective action is needed we will certainly take that corrective action. I believe that the Bill as presented is a good Bill and that it will do what all the Members of this House are anxious it would do. Once again, I would like to thank all the Senators who have contributed to the debate. The overall supportive response across the House has been most encouraging and gratifying.

I will be open to amendments on Committee Stage if they can improve the Bill. I must however, stress that the scope for major amendment may be very limited in the light of the serious constitutional issues which underpin the main provisions of the Bill.

There is a number of other separate areas of desirable reform which, as I have mentioned would be more appropriate to my next Adoption Bill and I will be giving them the fullest consideration. I will in this context certainly bear in mind the comments made by Senators on these particular issues. As I understand this is the last session before recess, I take this opportunity to wish all the Senators a well deserved rest and a very pleasant holiday.

Question put and agreed to.

Seanad Éireann debate - Thursday, 23 Jul 1987

Adoption (No. 2) Bill, 1987: Second Stage (Resumed).

Seanad Éireann debate -
Thursday, 23 Jul 1987