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.