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Seanad Éireann debate -
Wednesday, 27 Apr 1988

Vol. 119 No. 6

Adoption (No. 2) Bill, 1987: Committee Stage.

Before we commence after that very exciting half an hour, for the information of Members I have circulated a list of groupings of amendments and to help Senators who are participating in this debate, amendments will be grouped together for the purpose of discussion only. Amendments not listed are to be taken separately. Amendment No. 10 will be taken with amendments Nos. 11 and 13 and amendments Nos. 16 and 17 will be taken together.

SECTION 1.

Government amendment No. 1:
In page 2, subsection (1), lines 21 to 23, to delete the definition of "guardian".

The purpose of this amendment is to correct a minor drafting error. The term "guardian" in the sense of a person having care of a child is not used in the Bill. It was used in earlier drafts of this Bill and this definition was carried over in error. That is the reason we wish to delete the definition of guardian in section 1 of the Bill.

Amendment agreed to.
Section 1, as amended, agreed to.
NEW SECTION.

I move amendment No. 2:

In page 3, before section 2, to insert a new section as follows:

2.—In any proceedings before any Court in relation to the adoption of a child the Court shall regard the welfare of the child as the first and paramount consideration.".

I would like to say how pleased I am that we have now come to deal with the Committee Stage of this Bill and to welcome the Minister into the House. It is very important that we should take this Stage carefully and with a great degree of care because, although we have something like 19 amendments, it is a technical Bill. It is complex and it is in the best interests of all concerned that we should approach it with reasonable slowness and care.

We in Ireland are very late in the day in taking this legislation which will enable the adoption of some legitimate children who are in care. It has to be our fundamental and overall concern that children who are subject to this legislation will be the ones who will be of paramount importance. I put down this amendment because I believe it is an important aspiration to incorporate in the legislation that, in any proceedings before any court in relation to the adoption of a child, the court shall regard the welfare of the child as the first and paramount consideration.

On issues such as this people can be swayed by emotional arguments in favour of the natural parents of the child or the adopters in the adoption case, and it is my belief as, indeed, has been my purpose in all other legislation related to children — and one about which I took special care when I was in a position to draft the Status of Children Bill — that this must at all times be of paramount and absolute importance. That is why I ask the Minister to incorporate this in the legislation.

I support the amendment. I am confident that the Minister agrees that fundamental to all legislation involving adoption is the fact that the welfare of the child is of paramount consideration. We would like to see this incorporated in the wording of the Bill so that there would be no question of any doubt or equivocation about it. The whole area of adoption is fraught with emotion. I speak with some knowledge of this over a great number of years, having had contact with young women who on occasion have placed their children for adoption. I know something of the very real pain attached to that decision making. I know of the complexity of the whole area and the grave difficulty involved in coming to such decisions. I also had contact with people who have adopted children and I have met people who have taken children in and had them removed before the final adoption order was signed. It is true to say that there are conflicting demands, conflicting senses of priorities and very strong feelings about rights in this area. It is necessary and important to write into this long awaited Bill the amendment that Senator Fennell proposes because it is germane and fundamental to the whole area of adoption.

While on my feet, I should like to say how very pleased and relieved I am to see this Bill back in the Seanad today. It is complex and it is important that we get it absolutely right. I was always conscious of the fact that, out there, there were a number of children awaiting adoption, a number of people willing, ready and longing to give those children a home and that any delay on our part was only delaying the day when those children would receive the home they so richly deserve. I ask the Minister to consider very seriously the points we have made in relation to inserting this sentence in the Bill which in my view underpins the whole philosophy of adoption.

I agree fully with Senator Fennell and Senator Bulbulia that the welfare of the child should be the first and paramount consideration in cases of this nature. However, I do not propose to accept the amendment because I do not think it is necessary in this case. The Adoption Act of 1974 already contains the following provision at section 2 and I quote:

In any matter, application or proceeding before the Board or any court relating to the arrangements for or the making of an adoption order, the Board or the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration.

Section 8 (3) of the present Bill provides that the Adoption Acts 1952 to 1976 and this Act shall be construed together as one. Thus it will be seen, that the provisions of Section 2 of the 1974 Act will automatically apply to adoption applications made under the Bill. Therefore, I believe that this amendment is unnecessary.

I accept the Minister's commitment and concern. I accept that this question is covered in the Principal Act, but I have to say that this Bill, when enacted, to some extent will stand on its own. I feel quite strongly that this expression should be contained in this Bill.

I thank the Minister for his reply. I note that he is committed to this thinking in relation to adaption legislation and that it is enshrined in the Adoption Act, 1974. I suppose there is a case to be made for consolidation of legislation which, of course, would take care of the whole matter. In the absence of the necessary consolidation — and given that this Bill covers the welfare of a specific group of children and will, on occasion, be referred to as a single Act it is not superfluous and is not asking too much to seek to have that provision relating to the paramount consideration of the welfare of children enshrined in this Bill.

I fully accept that the welfare of the child should be first and paramount. It is stated quite explicitly in the new Bill in section 8 (3) that the Adoption Acts 1952 to 1976 and this one, when enacted, shall be construed together as one. I am quite satisfied that the people who will be administering the provisions will have regard to the 1974 Act. I do not think there is any danger that any alternative would apply. In relation to Senator Fennell's amendment I might add that her amendment merely obliges the court to consider the welfare of the child as the first and paramount consideration whereas the provisions of the 1974 Adoption Act oblige the court and the board to consider the welfare of the child as the paramount consideration.

Is the amendment withdrawn?

Amendment put.
The Committee divided: Tá, 17; Níl, 26.

  • Bulbulia, Katharine.
  • Connor, John.
  • Daly, Jack.
  • de Builtéar, Éamon.
  • Fennell, Nuala.
  • Ferris, Michael.
  • Harte, John.
  • Kelleher, Peter.
  • Kennedy, Patrick.
  • McCormack, Padraic.
  • McMahon, Larry.
  • Manning, Maurice.
  • Murphy, John A.
  • O'Shea, Brian.
  • O'Toole, Joe.
  • Reynolds, Gerry.
  • Ross, Shane P. N.

Níl

  • Byrne, Seán.
  • Cassidy, Donie.
  • Cullimore, Seamus.
  • Doherty, Michael.
  • Eogan, George.
  • Fallon, Seán.
  • Farrell, Willie.
  • Fitzgerald, Tom.
  • Fitzsimons, Jack.
  • Friel, Brian.
  • Hanafin, Des.
  • Hillery, Brian.
  • Hussey, Thomas.
  • Kiely, Dan.
  • Lanigan, Mick.
  • McEllistrim, Tom.
  • McGowan, Patrick.
  • McKenna, Tony.
  • Mullooly, Brian.
  • Mulroy, Jimmy.
  • O'Callaghan, Vivian.
  • O'Connell, John.
  • Ó Conchubhair, Nioclás.
  • O'Toole, Martin J.
  • Ryan, William.
  • Wallace, Mary.
Tellers: Tá, Senators J. Daly and Fennell; Níl, Senators W. Ryan and J. O'Toole.
Amendment declared lost.
SECTION 2.
Government amendment No. 3:
In page 3, lines 3 to 15, to delete subsection (1) and substitute the following subsection:
"(1) Where—
(a) an application is made by any persons (referred to subsequently in this subsection as ‘the applicants') to the Board for an adoption order,
(b) but for this Act, the Board would not have power to make the order, and
(c) the Board (having heard the health board in whose functional area the applicants ordinarily reside, any persons specified in paragraphs (a) to (h) of section 16 (1) (as adapted by this Act) of the Principal Act who wish to be heard and any other person whom the Board, in its descretion, decides to hear) is satisfied that, if an order under section 3 (1) in relation to the child to whom the application for the adoption order relates were made in favour of the applicants, it would be proper, having regard to the Acts and this Act, to make the adoption order, the Board shall adjourn the application and declare that, if the order is made under section 3 (1), it will, subject to subsection (2), make the adoption order.".

This is a technical amendment recommended by the parliamentary draftsman. Section 2 (1) provides that where the Adoption Board have examined an application for adoption under this Bill and are satisfied that they would be prepared to make an adoption order if the High Court were to authorise them to do so, the board must adjourn the application pending the outcome of the High Court hearing.

The purpose of this amendment is to make it clear that only adoption applications made under this Bill will have to be adjourned by the Adoption Board pending a hearing in the High Court. I am advised that there was a possibility that the Bill, as drafted, could have been interpreted as requiring the Adoption Board to adjourn all applications for adoption, not just those covered by the provisions of this Bill. Of course, that is not the intention. The vast majority of adoption applications will continue to be of a routine nature and will not require referral to the High Court. The wording of the amendment is substantially the same as that of the original subsection. The only new element is contained in paragraph (b), which reads:

but for this Act, the Board would not have power to make the order, and

This makes it clear that the provisions here apply only to adoptions under the provisions of this Bill.

I accept the Minister's explanation that this amendment is necessary.

Amendment agreed to.
Government amendment No. 4:
In page 3, subsection (2), line 22, after "shall,", to insert "notwithstanding anything in section 10 of the Principal Act,".

The purpose of this amendment is to make it clear that the Adoption Board will be empowered to make adoption orders under this Bill in relation to children in respect of whom the board do not have power to make adoption orders under the existing Adoption Acts. Section 10 of the Principal Act, that is, the Adoption Act of 1952, as amended by the Adoption Act, 1964, provides that the Adoption Board shall not make an adoption order unless a child is illegitimate, an orphan, or has been rendered legitimate by the marriage of his parents but whose birth has not been re-registered. This amendment will enable the Adoption Board to make adoption orders in respect of children who do not fall into these categories but only where the High Court has made an order under this Bill authorising their adoption. The restriction to orphans and illegitimate children will continue to apply in the case of ordinary applications under the Adoption Acts, 1952 to 1976.

Amendment agreed to.

Acting Chairman

Amendment No. 5 in the name of Senator Brendan Ryan. I understand that amendments in the name of Senator Ryan are being moved by Senator Norris.

I move amendment No. 5:

In page 3, between lines 27 and 28, to insert a new subsection as follows:

"( ) Where an order is made under section 3 (1) and an appeal against the order is not brought, or the order is upheld in the Supreme Court, and where the Board is satisfied that it would not be proper, having regard to the Acts to make an Adoption Order in favour of the persons in whose favour the order is made, the Board with the consent of the Court may, if it sees fit, make an Adoption Order in relation to the child to whom the Order under section 3 (1) relates, in favour of such other persons as the Board, having regard to the Acts, sees fit.".

I simply want to formally propose this amendment in the absence of Senator Ryan.

I do not propose to accept this amendment for several reasons. In the first place, the need for this amendment is questionable. The type of circumstances it envisages are those in which between the time the High Court authorises the Adoption Board to make an adoption order and the time the board sit to make the order, some problem may arise in relation to the proposed adopters, so serious that the board would find themselves unable to make the order. This is an extremely remote possibility and one which is unlikely to arise in practice. I might mention that there is a roughly similar procedure provided for under section 3 of the Adoption Act of 1974. That is the section under which the High Court may dispense with parental consent to adoption and authorise the Adoption Board to make an order. I am advised that, since this provision was enacted, there has never been a case where the board refused to make an order on foot of a High Court authorisation. However, it could be argued that no matter how remote the possibility, the legislation should be able to deal with it.

This brings me to the second point. What we are talking about is a case where a child has lived with a particular couple for at least 12 months, possibly much longer, where there is much love and affection between them and the couple wish to adopt the child. A serious situation develops: perhaps the couple are involved in a traffic accident and are both killed. Whatever the reason, the child cannot be adopted by that couple. The effect of all this on the child would be profoundly unsettling. It might be some considerable time before he or she could develop emotional ties with a different couple to such an extent that he or she could be successfully adopted. Against that background, the requirement in the Bill that the child must have lived with the new applicants for at least 12 months seems quite reasonable and prudent in the circumstances. On the other hand the amendment seems to envisage a short circuit approach which in the long run might not be in the best interests of the child or the adopters.

Finally, while the Bill would require the new applicants to make a fresh application to the High Court, this should not delay matters unduly as the court will have the benefit of its previous consideration of the position of the child and the natural parents.

I concur with the Minister. I understand his reasoning in answer to this amendment. Probably Senator Ryan would feel as do many of us that there has to be a solution, an answer, for all children who might be abandoned, neglected or abused. The kind of scenario the Minister outlined would be very tragic and sad. In those circumstances, if there were, say a couple on stand-by who could go through an accelerated procedure of acceptance that might constitute a solution. That may be what is envisaged. I would agree that great caution and due care should be taken in appointing lifetime parents for a child. In that context I agree that the amendment would not be appropriate.

Acting Chairman

Is the amendment withdrawn?

Being a realist we would simply be engaging in protracted debate this afternoon if I did not withdraw the amendment. I formally withdraw the amendment in the name of the proposer.

Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
SECTION 3.

I move amendment No. 6:

In page 4, line 19, to delete "without interruption".

This amendment seeks to delete the words "without interruption" in order to make this section less subjective and restrictive but clearer. It is very doubtful whether we can say that in the case of failure by the parents such failure will continue "without interruption" until the child attains the age of 18 years. That term is somewhat illogical and not really very sensible and makes any decision difficult. I have had a submission from the Adoptive Parents' Association of Ireland which the Minister may have had also. They take up this point, saying that while the court must be satisfied that all eight points apply in each and every case before it will make an order, these conditions are so tight that only children whose parents have abandoned them and disappeared themselves are likely to benefit. That is a point worth noting.

The only circumstances in which one could assume there would have been no interruption in caring for or interest in the children would arise if, say, the parents had abandoned them first and then disappeared from the country themselves. In section 3 (I) (B) the words "without interruption" are subjective and restrictive. The omission of the words "without interruption" from the section would enlarge its scope and the court would have to be satisfied only that the failure was likely to continue until the child reached 18 years. That is a very reasonable suggestion. I suggest that those two words be omitted to streamline the provisions without being detrimental in any way to the objective of the section. I should like to hear the Minister's reply.

As I indicated on Second Stage, section 3 has been carefully drafted in close accord with the constitutional provisions relating to the rights of the family, of the child and in the light of various interpretations of those provisions handed down by the courts over the years. A judgment of the Supreme Court in a case known as in re Doyle and Infant is directly relevant to the points raised by Senator Fennell. In that judgment the Supreme Court decided that the right of the State to withhold a child from its parents lasts only for as long as the parents continue to fail in their duty toward the child and that the State's right ceases as soon as this can no longer be shown. Although the judgment was delivered a number of years ago, the Supreme Court has never since changed or revised its interpretation. There is no reason to believe that it is likely to do so now.

In the present context this means that, before a child can be adopted under this Bill, it is necessary for the court to be satisfied not alone that the parents have failed in their duty towards the child but also that it is likely that the failure will continue without interruption for the duration of the childhood. If, on the other hand, the court believes that there is a likelihood that the failure of the parents will cease and that they will be in a position to resume their parental duties the adoption cannot proceed. While at first sight this may appear unfair to the persons who wish to adopt the child, it is an important safeguard for the natural parents.

Many parents fall down on their duty towards their children at some stage in their lives. In most cases they quickly resume their duties towards their children and no lasting harm ensues. In a smaller number of cases the failure may be more serious and the parents may be unable to care for their children for some considerable time due, for example, to alcoholism, drug addiction, depression, or many other reasons. It would be an absolute tragedy if all of these parents were to run the risk of having their children taken away from them and adopted. That is not what was intended or envisaged when this Bill was being prepared and it is something I could not support.

The question of adopting children whose parents have failed should only, and under our Constitution can only, arise when there is no reasonable prospect of the parents resuming their duties. In order to ensure this, it is essential that the phrase "without interruption" remains part of the Bill.

Thank you. I should like to put on the record that I, like I am sure that everybody here, absolutely uphold the right of parents who, for whatever reason, are going through difficulties, whether financial or emotional, physical illness or mental illness, regardless of their social condition, to keep their children and rear them and that neither the State nor anybody else should intervene and take their children away from them. That is a fundamental concept we all accept because all of us have had experience or seen the dire conditions some families live in. Some families can be most unfortunate and, despite their best efforts, they run into difficult times and by virtue of this children can be physically neglected. In truth we have to say that social workers, doctors and people who deal with these problem families will inevitably give the benefit of the doubt to the parents and will not come in in an arbitrary way and attempt to remove the children from the family. That is as it should be.

What we are talking about here are children who are abandoned and the 1,600 children who are long term in institutions. It has to be said that some cruel parents would leave them in institutions. They know they are there and will be a guarantee for their old age when they go out to work or whatever. That kind of thinking exists and I would be concerned that, in the event that these children were going for adoption and going through the procedure of being fostered by a family for the 12 months, this would alert the parents. Even as I say this I am aware that it might be a red light to them and they might say: "If we do not look after our children now and appear to be living up to our duty, we will lose them." It would be a good thing if they came to their senses and realised that they might lose their children.

I am not happy with this section because I believe the words "without interruption" in paragraph (B) would inhibit many adoptions. They could be very destructive in the context of people's genuine and sincere attempts to adopt children. I believe this Bill, on completion of its passage through the two Houses of the Oireachtas, is due to be tested. We all hope that will happen because, as most speakers said on Second Stage, it is essential. Perhaps this phrase could be taken out so that the section could be streamlined and not be so restrictive. It could then be fully tested in all its form as a completed piece of legislation and this issue could be dealt with.

The Supreme Court's decision was given some time ago and thinking and attitudes have certainly changed since then. I support the idea that parents should realise their duties and responsibilities to their children and should not be interfered with for any frivolous reason. This section could make it extremely difficult for them to do so and I wonder if it would reduce even further the number of children who would be eligible for adoption. Because it is going to be tested perhaps that should be left to the courts.

I would not be happy if this phrase was removed because either or both parents, through no fault of their own, may be incapacitated, ill, or depressed. It may take months for a mother to recover from her depression and realise the importance of the bond between herself and her child. In those circumstances I would not like to see this removed because it could lessen her chances to retain her child due to an illness over which she had no control. I recognise — and perhaps Senator Fennell intended to mention this — that a parent may keep in touch with the child by way of a birthday card or at Christmas time. That does arise and perhaps Senator Fennell had it in mind. My colleague, Senator Wallace, mentioned it to me. I believe that would be taken into consideration by the court, but I do not think it would not have a great bearing on it.

Perhaps that raises the question of what is an "interruption". What are we talking about in terms of an interruption? Perhaps we should have a definition of what that constitutes. Some people might say that a birthday card is an interruption. Are we talking a birthday card or a week-ends parenting or a day's parenting once in four or five years?

Paragraph (B) states:

it is likely that such failure will continue without interruption until the child attains the age of 18 years,

Obviously the court would have regard to all the circumstances in interpreting that section. I sympathise with the point made by Senator Fennell but I believe it is important, both in terms of the constitutional rights and, indeed, as a safeguard for the natural parents of the child, that we should leave the words "without interruption" in the section. It is interesting that in the Bill which was presented to the Dáil in 1986 by the previous Government the words "without interruption" appeared in a similar section.

Having heard both Senator Fennell and the Minister on this point, perhaps the Minister could assist the House by giving some indication of how an assessment might be made in a satisfactory manner that parents would be likely to continue without interruption to fail to be exercising their parental responsibility. Under paragraph (I) (A) it is a matter of fact that can be established that, for a continuous period of not less than 12 months immediately preceding the time, the parents of the child had failed in their duty towards the child. Perhaps the Minister can assist us by telling us how there could be a prediction over a period of perhaps 16 or 17 years, depending on whether the child is a year old or slightly older at the time the assessment is made, that the parents would fail without interruption or in other words, would not, in any circumstances, assume parental responsibility. I wonder if this matter has been considered from a practical point of view as to how evidence to that effect might be adduced.

I find it hard to understand how a court could make a judgment based on the words "without interruption" in this part of the Bill. For example, if the mother of the child is 18 years of age, how could a court come to the conclusion that she should lose her rights in relation to the child just because a judge thinks she will not change over the next 18 years?

As I said, the court must be satisfied that it is likely that the natural parents will continue to fail in their duty towards the child, without interruption, until he is 18 years of age. The expression "without interruption" is designed to eliminate cases where there is some prospect of reconciliation between a child and his natural parents. It would be a matter for the court to decide if such a reconciliation is possible and then it would not be proper to proceed with the adoption of the child.

I do not know how far we can pursue this point. The actual wording of the section is "and it is shown to the satisfaction of the court". I agree that the court has to be satisfied but it has to be shown to the satisfaction of the court predicting ahead over a period of what may be 17 or 17½ years. It would be helpful if the Minister could indicate how this was assessed by his advisers what was envisaged when this wording was included as being the likely manner in which it could be shown "to the satisfaction of the court", in other words demonstrated in an evidential way.

We should have an example of the precedent for the use of this term, how it would be judged and in what context it would be judged.

There is no attempt in the Bill to define what is meant by "failure". It is a matter for the High Court to decide this issue in each individual case in the context of the wording of the Constitution. As Members of the Seanad are aware, it will be a matter for the Adoption Board in the first instance to agree that an adoption should take place in a particular case and then it will be a matter for the health board to make the application to the court. Presumably they will present the evidence to the court on the basis of their knowledge and an investigation of the case and the court will then make a decision in each individual case.

I appreciate that the term was used in the Private Members' Bill which was introduced in the Dáil by Deputy Shatter, but it would be helpful if we knew whether this expression was used anywhere else in legal terminology and how it is likely to be viewed. I have reservations about it and I believe it could severely impede the reasonable progress of cases.

The same terminology was also used in the Adoption Bill which was presented by the Minister for Health on 14 November 1986 when the previous Government were in office.

Acting Chairman

Is the amendment withdrawn?

I am reluctant to withdraw it. I accept what the Minister said when he told us it is related to the constitutional position. We all know how difficult our beloved Constitution can be in the context of drafting legislation like this. I am not really happy about it and I will not withdraw my amendment.

I should like to ask the Minister if he is aware that CARE, the campaign for the care of deprived children, have drawn attention in information leaflets circulated to Members of this House, to their concern about this section. They actually instance this section as one of the things which gives them cause for concern. They say that the conditions which have to be met before the child can be considered for adoption are unduly restrictive. They list three of them, one of them being precisely the section to which Senator Fennell has referred. In view of the professional expertise of this organisation and their considerable bona fides in this matter, I wonder if the Minister would like to comment further on this.

With regard to the wording, perhaps we could approach it in a different way. Perhaps the Minister could identify what would constitute the possible predicted interruption which would be likely to prevent a court from being satisfied. The health board must show, to the satisfaction of the court, that it is likely that such failure will continue without interruption. What exactly is "interruption" in those circumstances. Can the Minister say what the tangible nature of that interruption is so that we will know how it might be possible to predict that there would be no likelihood of that? Would the prediction of any sort of contact by the parents with the child prevent paragraph (B) from coming into effect? The court have to be satisfied that the failure will continue, without interruption, until the child attains the age of 18.

If the natural parents resume their duties, in other words if they start to look after the child again, the court will want to be satisfied that there is no prospect of reconciliation between the parents and the child. While I accept the expertise of the Adoptive Parents Association and the expertise they have at their disposal, nevertheless it is significant that, on the advice of the Attorney General in the present Government, and presumably on the advice of the Attorney General in the previous Government, which was available to both myself and my predecessor, the same wording appears in both Bills and that it was felt necessary to include the words "without interruption". It appears to me that, even if the words "without interruption" were taken out, the court would still be obliged to be satisfied that the parents were neglecting their child and would continue to neglect their child until the age of 18 years.

I accept that but I think it is very different. If the facts of a case are presented and they are sufficient in a court hearing, a decision must and would surely be able to be made on the basis of those facts, without predicting down the years, as if somebody has that wisdom, that the lack of care or duty will continue for the child's lifetime. I would be concerned if the Bill was not going to be referred to the courts for a decision before it is totally effective but, in view of the fact that it is going to be tested, perhaps we should take this out and make it more streamlined.

Acting Chairman

Is the amendment withdrawn?

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 26; Níl, 15.

  • Byrne, Seán.
  • Cassidy, Donie.
  • Cullimore, Seamus.
  • Doherty, Michael.
  • Eogan, George.
  • Fallon, Seán.
  • Farrell, Willie.
  • Fitzsimons, Jack.
  • Friel, Brian.
  • Hanafin, Des.
  • Haughey, Seán F.
  • Hillery, Brian.
  • Kiely, Dan.
  • Kiely, Rory.
  • McEllistrim, Tom.
  • McGowan, Patrick.
  • McKenna, Tony.
  • Mooney, Paschal.
  • Mullooly, Brian.
  • Mulroy, Jimmy.
  • O'Callaghan, Vivian.
  • O'Connell, John.
  • Ó'Conchubhair, Nioclás.
  • O'Toole, Martin J.
  • Ryan, William.
  • Wallace, Mary.

Níl

  • Bulbulia, Katharine.
  • Connor, John.
  • Daly, Jack.
  • Doyle, Joe.
  • Fennell, Nuala.
  • Ferris, Michael.
  • Harte, John.
  • Kelleher, Peter.
  • Kennedy, Patrick.
  • McCormack, Padraic.
  • McMahon, Larry.
  • Norris, David.
  • O'Shea, Brian.
  • Robinson, Mary T.W.
  • Ross, Shane P.N.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators J. Daly and Fennell.
Question declared carried.
Amendment declared lost.

I move amendment No. 7:

In page 4, subsection (1), line 46, after "applicants" to insert "provided that no order under section 3 (1) shall be made solely because of the income and/or living circumstances of the parents of the child."

I would like formally to move amendment No. 7 to section 3, which is on the Order Paper in the name of Senator Brendan Ryan. I have pleasure in moving this amendment on behalf of Senator Ryan because, as I understand it, it is his intention that the operation of this subsection shall be to ensure that there shall be no discrimination in this legislation on the basis of class, social or economic background, the philosophy of which is already enshrined in our Constitution. I am sure the Minister will have no difficulty in agreeing with it in principle and I look forward to a positive reply.

I support this amendment. There is always a risk in determining matters like this that people see the suitability or the importance of the child's environment in the context of the physical circumstances in their home, such as having a car, a nice house, good furniture and so on. It should not make any difference, and should not be considered in this context, that the child comes from a home where the living circumstances are not as satisfactory as, perhaps, a social worker might consider they should be.

I would be sympathetic to the thrust of this amendment as moved by Senator Norris on Senator Ryan's behalf but I believe it is not either necessary or appropriate to add the proviso that Senator Ryan seeks to add. It is clear that the court must have regard for a number of factors. First, it must have regard for the matters we are considering, that there is a failure on the part of the parents that has endured for a considerable length of time and is predicted to endure until the child is at least 18. Also in the clause immediately preceding the part where Senator Ryan would like to add the proviso, it is clear that the court must have due regard for the rights, whether under the Constitution or otherwise, of the persons concerned, including the natural and imprescriptible rights of the child.

The court must first of all have regard to the rights of the parties concerned but specifically to the rights of the child. Then there is a formulation; the court must be satisfied that it would be in the best interests of the child to make the order. The courts have already interpreted that phrase in our adoption law and it clearly has been developed by the courts as being a very child-centred concept. It certainly would not be a concept that would be capable at this stage of becoming the narrow issue of whether the parents were economically well off. I do not share the apprehension Senator Ryan may have had on this point. It is not necessary specifically to include the amendment he proposes because it would not be open to a court, either under the existing approach, or under the specific wording of this section, to have regard to and base a decision solely or even predominantly on the factors in question.

I agree wholeheartedly with the amendment put down by Senator Ryan and moved by Senator Norris and I agree entirely with the interpretation Senator Robinson has put on it. A child should not be taken from his natural parents and adopted solely because their income or living circumstances are considered inadequate. As the Bill is drafted, however, there can be no question of a child being taken away from his or her parents and adopted simply because of the inadequacy of the parents' income or living conditions. This would be anathema to the Irish way of life.

Section 3 states the criteria upon which the High Court must consider an application for adoption. Only where parents have demonstrated total failure to carry out their duties towards their children should adoption be an option. This section has been drafted by the Attorney General in the light of the provisions in the Constitution. It safeguards adequately the rights of the natural parents. I do not consider this amendment is necessary and I do not propose to accept it. Senator Robinson has outlined the situation exactly and the general thrust of this Bill would be totally opposed to any child being adopted or taken from his or her natural parents because of their economic situation. This would be totally unacceptable and is well safeguarded in the Bill.

In the light of the Minister's reassurances and the very clear explanation of the legal consequences of the entire Bill by my colleague Senator Robinson, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 4, after line 49, to insert a new subsection as follows:

"() Where the parents of the child consent to an order being made under section 3 (1) and where the Court is satisfied that the parents are properly informed as to the meaning of the consent, and where the Court is further satisfied that such consent is entirely voluntary, the Court may make an order without further enquiry authorising the Board to make an Adoption Order in favour of the applicants."

This is another amendment in the name of Senator Ryan which I propose simply to propose formally. I feel that Senator Ryan would wish the phrase "entirely voluntary" to be stressed and I so stress it on his behalf.

I find this a very interesting amendment and I would certainly support it in considerable measure. As I understand it, Senator Ryan is proposing that where the parents, fully understanding the position — and he makes that clear in the form of the amendment — and fully consenting to the position, do consent in effect to abandon their rights as parents, there should be a shortening of the procedure and that the courts in those circumstances need not be satisfied about A, B, C, D and E because, in fact, the situation is different.

What I feel would be a necessary further safeguard — a further safeguard in particular of the position of the child and the rights of the child — is that perhaps Senator Ryan's amendment might be itself amended by retaining as a clause in it the sentence at the end of the present section 3 (I) so that it would not be necessary for the court to be satisfied with section 3 (1) (I) (a), (b), (c), (d) and (II) (a) and (b) and (III) but that the court, in the circumstances of this new subsection, must still be required, if it so thinks fit and is satisfied having due regard for the rights of the child etc. to act in the best interests of the child. In other words, it is an interesting proposal for an amendment to have a different approach in what I would imagine, would be very rare circumstances. There would be circumstances where the parents, knowing that they themselves could not provide for the parenting of their child, would consent, having fully understood the position. It would still be necessary for the court to be satisfied in relation to the rights of everybody concerned, particularly the rights of a child and also in particular, that it was in the best interests of the child.

In the absence of Senator Ryan, this is an amendment which might well be reformulated, perhaps on Report Stage of the Bill. I would simply ask the Minister if the position has been considered where, in what would be undoubtedly unusual circumstances, for example, one parent had been ascertained to have the AIDS virus and the other parent had very serious problems and it was most unlikely that they would be able in any way to be involved in the parenting of their child and they were anxious to have the adoption process completed at an earlier date. Then it would be appropriate not to require these kind of proofs to the satisfaction of the court as contained in the present subsection which are really appropriate to the case where you do not have consenting parents.

Nevertheless it would be important and appropriate that the court should remain the body with responsibility for weighing up both the rights of all the parties concerned, notwithstanding that the parents were consenting, and also the best interests of the child. That would allow for the situation where, for example, even though the parent wanted the order to go ahead in that way and wanted to consent to it in order to accelerate the process, the court might say: "No, this is not a case where we are satisfied that it is in the best interests of the child," and that would be the case. It is appropriate that consideration should be given to the possibility of the devising an approach which would be appropriate in circumstances where the parents, knowing they could not parent the child, were anxious to accelerate the process of adoption. I ask the Minister for a response on it.

I wish to comment on the amendment. It is an horrific thought I am sure for those of us who could not envisage a situation where two parents would in a positive way offer their child for adoption because it would suggest to me that there must be great deprivation, probably financial deprivation in that home. I would not want to think that in this country we could have a situation as bad as that, that in effect people were so poor that they had to give up their children. The example Senator Robinson gave is an interesting one and one that may come into play. Having said all that, I recall when I was discussing adoption with one of the child care agencies some time ago the point was made that the Bill which deals with the adoption of legitimate children was going to deal with everything except married parents who feel incapable or unable to rear their child or children and want as it was expressed, in a positive way to give them up for adoption. The argument at that time was made that, in effect, if the parents were quite certain they could not provide for the child — we might be thinking about a family where there were eight or nine children and perhaps another arrived and they could not cope with the thought of rearing that child as well — they would be put in the position of having to appear to abandon, abuse or renege on their duty to this child before he or she would be eligible for adoption or could be fostered. I was sceptical at the time and I felt this was the wrong approach to child care or to parents who were in difficulties. I would not want to think that things could be so bad for any set of parents that they would effectively volunteer to give up their child for adoption. I have been assured that there are cases in which it could happen. There could be a need for it.

I can sympathise with this amendment. The crucial words in the amendment are: "are properly informed." No matter how parents might feel at a given point about having their child taken and adopted they should be properly informed and realise the total implications and the implications later on when the child will be an adult and will have to be told the circumstances of his or her adoption. It would be very difficult for the children to cope if they were told that two reasonably healthy parents actually gave them up for adoption. I have very mixed views about this but I have to say it was something that was put to me by one of the child care agencies.

I would have reservations about this amendment by virtue of the fact that you might come across parents with subnormal intelligence who might just say: "Yes, we consent and are fully informed." From whom does the court get the information that the person has been properly informed? Is it from the social worker? I note from the nods that the courts are informed by the social worker. I am not happy about that at all because a person of subnormal intelligence may be intimidated by the atmosphere of a court and say yes. There is a great danger in this to the parent who may not fully realise the consequences and will automatically say yes. In those circumstances, the consent being entirely voluntary would be in grave doubt. That would prompt me to have reservations about the amendment. I would be very slow to support it.

I do not propose to accept the amendment because I believe the proposals contained in it would be both unconstitutional and undesirable. Let me explain my thinking on this. It has long been believed that it would not be constitutionally possible to enact legislation providing for the adoption of legitimate children. This belief stems from the guarantees to protect the family and to respect the rights of parents contained in Articles 41 and 42 of the Constitution. Article 41.1 provides that: "The State recognises the Family ... as a moral institution possessing inalienable and imprescriptible rights," In Article 42.1 the State"... guarantees to respect the inalienable right and duty of parents to provide ... for the religious and moral, intellectual, physical and social education of their children." While most commentators focus on the constitutional rights of parents, it is important to note that the Constitution speaks of the inalienable right and duty of parents.

This, as I see it, is the key to this matter. Parents have constitutional duties and one of their prime duties is to care for and protect their children. If the parents are unable or unfit to care for their children the Constitution in Article 42.5 permits the State to step in "to supply the place of the parents." It is on this provision that the present Bill is founded.

However, I believe that the Constitution does not allow parents who are fit and able to care for their children to simply walk away from their responsibilities. This is totally unacceptable. The Constitution describes the duty of parents as being inalienable, meaning that which cannot be given away. Thus it is not constitutionally possible for parents who are able to care for their children, but who simply do not wish to do so, to surrender their parental duties and place their children for adoption. By contrast, the rights of an unmarried mother have always been regarded by the courts as alienable; hence the constitutionality of a single mother placing her child for adoption has never been in doubt.

Apart from the constitutional difficulties I would argue that it is not in the public interest generally to allow parents voluntarily to place their children for adoption. Even if there was no reference to the family in the Constitution, most people regard the family founded on marriage as the basic unit of our society. Any attempt to allow married parents to give their children up for adoption would present a serious undermining of the family and might not at the end of the day be in the best interest of children generally.

I am aware that adoption with the consent of the parents is permitted in other jurisdictions. I do not think this, in itself, is a sufficient reason for us to introduce such legislation here. We have a very strong belief in and commitment to the family and we should not make any apologies for this. This amendment would only serve to weaken the family. For this reason and because of the constitutional difficulties I mentioned earlier I think this amendment should be rejected.

Finally, as I have indicated already, it would not be possible, as our Constitution now stands, to provide for adoption with the consent of the parents. The only way in which such a change could be made would be by amending the Articles in the Constitution which relate to the family. For my part — and I speak on behalf of the Government — I would be totally opposed to such a change. In the final analysis, such a change would require the support of the people in a referendum. I do not believe that support would be forthcoming. I totally reject and oppose this proposed amendment which is totally unacceptable. I cannot see why any support should be given to this proposal which would, at the end of the day, be a contradiction of the earlier amendment put down by Senator Ryan when he referred to parents who would not be able to support the children and who would be in a situation where it would be easier to take the children from them. I have no hesitation in opposing this amendment.

It would be an impertinence for me in the absence of consultation with my colleague, Senator Ryan, to attempt to interpret what precisely was in his mind. If I might develop a point here with regard to the rights of the child and the respect for the institution of the family founded upon marriage, and so on, about which the Minister has spoken so passionately, I do not see quite the contradiction he does between this amendment and the earlier amendment because there is a question of will involved. The earlier amendment dealt with the situation where the parents were willing and felt able to continue a loving and positive relationship with the child, whereas here there is a clear absence of will or desire. The Minister has referred to the imprescriptible and inalienable rights of the child in this matter. Unwilling parents may signify their desire to surrender the capacity to care for a child to a loving family situation and it does not seem that the kind of difficulties outlined by the Minister exist at all.

I say this in particular because I believe that what we as legislators should be concerned about are the rights of the child to be brought up in a positive and loving environment and that cannot be done simply by deciding that we have this abstract concept of the family to which every politician with one or two exceptions feels it necessary to pay at least lip service with the interests of the voters and the plain people of Ireland in mind. I am much more concerned about the reality of the situation and I do not believe that you can force a loving situation where one does not exist.

I accept a good deal of the constraints which the Minister has identified under the Constitution in relation to the rights of married parents, but there is room to consider very seriously an amendment along the lines of what Senator Ryan has in mind but with the kind of safeguard that I mentioned when I first spoke in support of this amendment. I support the idea of considering the circumstances where parents could recognise that they cannot bring up their child but want to accelerate the process of having the child adopted and to facilitate it positively because they know they are unable to exercise any parental role and responsibility. This should not be based on the decision of the parents, partly for the reason the Minister has identified. It should not be the parents deciding solo and automatically getting an order. It should be the parents being able to indicate the reasons they believe they cannot exercise their parenting role and for the court to be satisfied, taking into account the rights of all parties including the rights of the child and the best interests of the child, whether it is appropriate to make an order.

There are circumstances at the moment where married parents consent to the adoption of their child under Irish law. This is where the child was placed for adoption and the natural mother subsequently married the father of the child. The child is then legitimated by that marriage, but the child remains eligible to be adopted, provided the birth has not been re-registered as being a legitimate birth under the 1964 Act where there is a provision that that child would remain eligible for adoption but the natural father who is now the married father would have to consent. Both parents could consent under current Irish law to the adoption of their child. That is provided for because the child had been placed before the natural mother married the father. Therefore the child was eligible to be placed for adoption and it would be considered that that would be an appropriate circumstance. If the natural father did not consent and could not be deemed to have agreed to place the child for adoption, it is possible that the child would not be adoptable because the father had not, as a married father, consented.

The Minister was a little bit dogmatic in his first reply. It is not quite as black and white as the Minister was saying. Under Irish law at the moment in particular circumstances married parents can consent to the adoption of their child without all the safeguards which are in this Bill.

Now we are facing a different situation. We are going to broaden the possible circumstances where a child can be eligible to be placed for adoption, and eligible to be adopted, although the child is a child born within marriage of married parents. I go a very long way on the necessity to be very careful in the approach and I admit and take on board the constitutional difficulty. However, there is an issue to be addressed which is where the failure is not so much a judgment on the parents by somebody else but is, perhaps, a judgment by the parents of themselves saying: "We cannot cope. We are living apart". One may be an alcoholic. These may be very difficult circumstances. They believe they cannot under any circumstances parent the child. They have not been doing so. The child is in a home. They know this, admit it and consent.

I now come to the point raised by Senator O'Connell querying the nature of that consent. That is a problem which exists at the moment in adoption law. It is a problem which exists with natural mothers. It is a problem which must cause anyone concern. A number of these natural mothers fit exactly into the category which Senator O'Connell was talking about. They very often are young, not very experienced, a bit intimidated by social workers, and so on, and yet the courts regularly make an assessment of whether it was a valid agreement place, meaning a valid agreement to place the child for adoption. Then, even if the natural mother has not signed the final consent form, her consent may be dispensed with if to do so is in the best interest of the child.

Under the Constitution there is a difference between the position of the natural mother who does have a constitutional right to the care and custody of her child but does not have an inalienable and imprescriptible constitutional right. Bearing in mind the Minister's reference to the constitutional position, yet, it is correct that there is both a right and a duty, but I would not go so far as to say that the parents cannot have a self-assessment, not the final word, and this is the point I am making. I am not supporting Senator Ryan's amendment as it is presently worded. Senator Ryan's amendment may, perhaps, be putting forward the proposition that parents can self-assess their own failure and consent and he wants the process then to be that the adoption order be made.

I am saying something different which is that, if the parents self-assess that they cannot cope, that can be a substitute for the health board adducing evidence of the failure over a 12 month period, the predicted failure up to the 18th year of the child and so on, of the capacity of the parents. It could be, for example, that the form of the approach might be that the parents would self-assess themselves as being unable to cope and, on that basis, the court would assess whether in fact there was a failure on the parents as they have self-assessed and as they wish, therefore, to consent to an adoption order being made in relation to the child.

I would like the Minister, while bearing in mind the constitutional framework and the difficulties, to have a look at the issue. Perhaps the circumstances would be relatively unusual, but let us not blind ourselves. We have a high abortion rate in this country. Abortion is the termination of an unwanted pregnancy and it is high in this country. We have to admit that. We have unwanted pregnancies and unwanted births in marriages. We have marriages which break down. We have enormous social and other problems within marriage and we are providing in this Bill for a situation where there can be an assessment by the health board and by the court of the failure of the parents. We are not providing for any situation where there can be self-assessment by the parents of their lack of basic capacity to parent their child and their desire to substitute better parents and to facilitate that process and allow it to happen.

That is an important issue which should be considered. As the Minister said, it is a standard approach in other countries. Married parents can decide that they cannot bring up their own child and that they wish the child to be adopted. We have constitutional constraints but we have the same human problems between parents and children. There is nothing about the Irish weather or the Irish sky that makes us unique. We need to look very carefully at the problem and examine it as a genuine problem and see whether it is, in fact, possible to devise a formula. It is something we should come back to on Report Stage.

Would this open the possibility of a monetary consideration to parents where they could, in consideration of some money, agree to the adoption and speed up the whole process and stop a further investigation?

It is difficult, in the absence of Senator Ryan, to know exactly what he was getting at when he put down the amendment but in the course of the debate I am confident that we have thrown up the various facets. I must say I found the Minister's reply irritating. I accept the constitutional restraints which he outlined. I have no problem about that at all but he just conjured up such a cosy picture of what Irish society is like. Listening to Senator Robinson — and indeed it is my experience of life — I take the view that it is just not so cosy. There are situations — they may be very rare but I can envisage this happening — where people are wrung to the point of making a decision that other people would be better to parent their children. It is rare and it is exceptional but if it so happens the process should be accelerated. They should not have to wait while various proofs are brought forward and assessed in their case.

I listened to what Senator O'Connell said about the possibility of money lurking in the background. When the Minister spoke I had visions of transistor radios or, in other cultures, certain blandishments which can come into a situation like that. I felt that was the sort of thing he had in mind. Everybody who has spoken in support of this amendment to some degree or other would not in any way countenance a sort of bartering approach or a "child for sale" type scenario. That is anathema to right-thinking people. Nevertheless, it is valid to consider a situation where, for reasons which we could only guess at, parents would consider that adoption for their legitimate child is in the best interest of the child. If that was the case, why should they be subjected to a lengthy procedure and have to have it proved that they are unfit parents? I would like to see this surfacing again on Report Stage because in much of our legislation we are inclined to hold the view that all is well out there in Irish society and what we like to call traditional values, attitudes, outlooks and various sacred cows are very firmly in place. That is not necessarily the case in my experience.

In this Bill we are certainly breaking some new ground in relation to the rights of children and the rights of parents. The sections of the Bill we are dealing with now are very specific in outlining the procedure that has to be gone through. That is only right and proper. For my own part, I am against anything which would speed up this procedure because I could see at some time in the distant future abuses arising from a procedure of the kind proposed in the amendment.

One of the rights of a child is the right to belong to his family and the right to be cared for and looked after by his parents. I certainly do not go along with Senator Norris' assessment that somehow politicians would glibly support the family as the cornerstone of society. I believe in that and I believe that the vast majority of Irish people believe in it. I would not say it in this House if I did not feel strongly about it.

Senator Robinson questioned the constitutionality of the Adoption Act, 1964. I am aware that doubts have been expressed about the adoption of legitimate children. With respect to the Senator, that is a different question. If there is a constitutional problem with the 1964 Act, that still does not take away from the objections I have raised to the introduction of adoption with the consent of the parents. On the contrary if, and I repeat if, the 1964 Act is unconstitutional, the proposed amendment is definitely unconstitutional also.

With reference to Senator O'Connell's point, if this amendment to the Bill were allowed it could give a case to parents who are going through a difficult period to give up a child for adoption. There is no doubt about that and I am not unaware that that arises all the time. I know a family, going back 42 years now, and when the last child arrived it looked practically impossible to cope with that situation. There was an old procedure in the early part of the last century where the relations in America requested one child to be sent over to be reared in a more affluent society. Many families agreed at that time to give children an opportunity of which they felt they were being deprived here in Ireland but surely the right of a child to be reared with his own family, parents, brothers and sisters, is more important even than that opportunity?

Parents going through a dark and difficult period in their lives might be tempted to resort to this particular provision if it was included in the legislation and then as time passes the situation may change dramatically for them. Many young people today who were reared in their own families, even going through that difficult period, of which I am personally aware, would say at the end of the day that it was far better to be in that family circle than to be adopted or given away.

We have surrogate motherhood and all the problems which arise in that particular area. Women, for financial gain, have been encouraged to be surrogate mothers and this could happen here as well.

The Minister for Health, Deputy O'Hanlon, and I are opposing the amendment for very sound reasons. We are not being emotional about this. I feel very strongly about this section and I know that the majority of the Senators would feel the same if there was any danger that this amendment could be used for monetary gain. Monetary adoption is illegal. We are requesting the Seanad not to support this amendment.

On a point of information, I understand that for the purposes of this Bill we are talking about the family as described in the Constitution, but the Minister did make an off-the-cuff remark in expressing his own personal view that the family was the cornerstone of Irish society. In what way does he envisage the family when he speaks in that personal vein? I would be interested to know.

I refer to it in the same way as it is referred to in Articles 42 and 43 of the Constitution.

I find it interesting that the Minister referred to the reference I made to the 1964 Act as though I was challenging the constitutionality of it. I did not approach it on that basis. Maybe the Minister was distracted when I was speaking. All I was doing was pointing out that, under Irish law at the moment, we do have a provision where married parents can consent to the adoption of their child and we are envisaging in this Bill children who are born to married parents being eligible to be placed for adoption and to have adoption orders made if the procedures in this Bill are carried out. The Bill, as it stands, only envisages a kind of judgment on the parents by a health board initially and then by the court being satisfied about X number of factors and, if you like, assessing the parents as having failed and as being predicted to continue to fail to exercise the parenting capacity.

At the moment in this Bill we do not envisage the possibility of the parents making an initial what I have called self-assessment of the fact that they cannot cope with the parenting responsibility and a judgment on themselves that they have failed and would fail to exercise the parenting role in relation to their child. We have not envisaged the possibility of such parents being able to so indicate by way of consenting to the child being adopted.

The Minister is obviously not even keen to examine this possibility. He seems to feel that it threatens the whole life of the family to an extent. I find some of this very unreal and I always have. Ten per cent of births in this country now are outside marriage. The parents and children involved are families, as far as I am concerned, and I do not see the wonderful artificial distinction. I do not see why we have to deal only with 90 per cent of children and leave out the other 10 per cent and somehow make rigid rules in one direction. We deal with human beings and many of them suffer because the law is not sensitive to their needs and does not respond adequately. We are too rigid in some of our structures and this would be an example of that.

Let me now come to the question raised by Senator O'Connell of the possibility of parents being induced by monetary gain. There is nothing new in that. That possibility can exist for single mothers. It is certainly something to be guarded against. It is, as the Minister said, quite illegal. It is necessary to be vigilant about it, but why should we suddenly be concerned about married parents when we already have that exact situation whether it is the validity of the consent, the possibility of inducements being offered, whatever the circumstances may be, and we need not get excited about the possible impact of certain issues. We have those issues already. We have experience of them and I think we would know that it would be necessary to ensure that that kind of thing did not happen and was not a factor in relation to adoption.

I want to emphasise again, lest there be any doubt about it, that I have made it clear that I am not talking about parents carrying out a self-assessment which leads to the conclusion that they cannot cope and would fail to be able to exercise the parenting role and, therefore, there should be an adoption. I am saying that should be the way they can commence a court process, or a court process can be commenced by adoptive parents with the consent of the natural married parents in order that the court would then assess. The Minister is correct — I am aware of this and alert to it — that in a recent case on adoption, a case in which I was involved myself, the Supreme Court, in identifying the rights of children, identified the rights of all children and then went on and said that, in addition, the child of a marriage has the right to grow up and be parented by the parents of that marriage. That is the constitutional framework in which we operate. The child has a right to it, but again, only if it is possible that that will be the case. If there is a failure of the parents, then Article 42.5 can come into play and that failure can be accounted for and other approaches can be adopted.

What I am not convinced about is the Minister's thesis that failure can only be determined by a judgment of the health board first and then of the court on the basis of a kind of inquiry into the behaviour of parents, not a process where failure can constitute a self-assessment by parents vetted by the court, if you like, assessed then by the court, but assessed because of what the parents bring before the court, if I could put it that way. I just do not see that there is such a void between one approach and the other. I come back again to the fact that I think we are unique almost in not having a consenting approach to adoption by married parents. Perhaps the Minister could tell me if there are any other countries in Western Europe where married parents are prohibited by the Constitution from consenting to the adoption of their children.

Would Senator Robinson not think that where a temporary problem might arise for parents they might be tempted to part with their children and the amendment would facilitate this and also prevent it being properly looked at? Many young couples are in difficulty at the moment. They would not in their normal senses consent to do this but as a result of the problems and the stresses they are suffering, they might be temporarily imbalanced and they might consent to do it. This amendment would facilitate this being done very rapidly without an investigation, whereas, if we allow the normal processes of investigation, this could very readily come to light. This is what we are guarding against. Of course, adoptions can take place and do take place for monetary consideration but where the financial problems may be of a temporary nature, this would not be in the best interest of the parents or the child.

We are dealing here a little with the perception and the reality. The perception from the Minister's and the Department's point of view is the perception of the Constitution and the constitutional family and the aspirations the Constitution has for the family and that families in Ireland will all and forever conform to that aspiration. The reality is something different. The reality is that in this country we have quite a serious breakdown of the family structure, the separation of couples, the neglect of the children. In that circumstance, we have to accept that there are family type structures other than the constitutional family to which the Minister referred. Let me take the case of a couple whose marriage has irretrievably broken down and who cannot get a divorce and terminate the marriage. They may even go through a religious ceremony on the way, live with a second partner and establish a second family. I would defy anybody to say that that second family structure for the mother and children, caring and loving each other and not harming anybody, is not as worthy and due for protection in all aspects as the first family we see as the right and proper family.

Having listened to Senator Robinson as the debate has gone on, I have to say that she has put forward a very good case. I do not think she was suggesting what Senator O'Connell has just said, that there would be a too speedy decision made on the basis of a temporary setback in a family. As Senator Robinson has put it, if the parents were able to assess themselves and make their own personal expression of what they wanted and it went through a court procedure subsequent to that, that would ensure that there would not be any abuse. Any mature and developed society has to look at these things. I do not think we can forever say: "No, it is against the Constitution", be very pious about it and say: "No, we cannot allow that kind of thing to happen". If there is neglect and suffering and deprivation and if that situation can be improved, with all the safeguards necessary, we should beckon the way there. I do not suggest necessarily that here today we should do that but we should say we acknowledge that things are as they are, not as we would like them to be, and that we have to begin talking in terms of our social policy in another direction.

I found the hypothetical examples cited by Senator Fennell and also Senator Robinson quite persuasive. Senator Robinson instanced a situation in which one of the parents was found to be HIV positive, there was a poor prognosis and so on. I know this is something that concerns people, particularly people who have, unfortunately, got an addiction to drugs. It can, in my opinion, be an act of caring and compassion on the part of a married couple in this kind of circumstances which could not possibly be described as being of a temporary nature to hand their child for adoption and to make provision for him or her. It must surely relieve the anxiety of such a parent as to the future of the child after their death to be enabled to make this kind of provision as a matter of judgment while they are still alive.

The other point I thought was most persuasive in what Senator Robinson said was that it is not just a capricious decision of the parents that we are addressing here at all. It is part of a process and the process has several elements. Those elements include not only what has been correctly described as self-assessment but also a second part of the process involving a judicial decision. The anxieties of the Minister are not fully realistic with regard to the impact this may have on the family structure of this society and I am not convinced by the introduction of hypothetical situations, hypothetical brothers and sisters and so on. Not all families have to contain large rafts of siblings particularly in these slightly more technologically advanced days, thank God. Perhaps it would be improper for me to comment further upon the operations of the family to which I am not entirely accustomed.

Stick to the amendment, Senator.

The amendment is a useful amendment and certainly has provoked a debate which has illuminated aspects of the legislation which it is valuable to have illuminated.

The courts decided that the family referred to in the Constitution is the family founded on marriage. The courts decided that, not the Government and not politicians. If the level of births outside marriage is 10 per cent which has been mentioned here, that interpretation may need to be reviewed.

In relation to the 1964 Act, I just want to refer back to Senator Robinson's point. Where a child is born outside marriage, where the parents marry afterwards but the birth is not reregistered though the child is legitimated by virtue of the fact that the mother has married the father, in those circumstances the 1964 Act is operating very satisfactorily.

This is a very progressive Bill. I do not agree with this idea of self-assessment of one's ability to rear one's children, or be in a position to provide for them. I do not accept that. That is one of the reasons why we are not accepting the amendment. The procedures which are included in this Bill have been very carefully prepared and there are quite a lot of streams to go through before an adoption will take place. To allow the parents to institute this, which has been proposed, I find, and I make no apologies for this, totally unacceptable. It is also unconstitutional. To make it even possible, you would have to have an amendment to the Constitution and the people would have to decide.

At some future date, if some of the Members here are in Government, let them proceed and put forward those arrangements. At the end of the day the people have the final say on the Constitution, and rightly so. I am delighted they have that power. They will decide if that ever arises. At this stage, in this Bill, for constitutional reasons and for other reasons, we are opposed to it and we are not agreeing with the arguments that self-assessment or people's wish for economic reasons or other reasons to have their children adopted should be acceptable. This amendment is not accepted by the Government and we are opposing it.

Progress reported, Committee to sit again.
Sitting suspended at 5.30 p.m. and resumed at 6.30 p.m.
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