Amendments Nos. 10, 11 and 13 are related and may be discussed together.
Adoption (No. 2) Bill, 1987: Committee Stage (Resumed).
Debate resumed on 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.".
—(Senator Norris.)
Amendment by leave, withdrawn.
Amendment No. 9 not moved.
Government amendment No. 10:
In page 5, lines 4 to 21, to delete subsections (4) and (5) and substitute the following subsection:
"(4) The health board concerned shall be joined as a party to proceedings under subsection (1) (b).".
This is a technical amendment which is consequential on my proposal to insert an entirely new section dealing exclusively with court costs. The provision now contained in section 3(4) and (5), with the exception of what is preserved in this amendment, will be incorporated in the proposed new section. The need for a new section in relation to court costs stems from a recent development in relation to the provision of legal services in adoption cases. It would be helpful for Senators if I were to outline at this stage the background to the development.
Until now the State has contributed towards the cost of legal representations in adoption cases in Ireland in limited circumstances, under what is known as the Attorney General's scheme. In the Bill, as introduced, it was envisaged that persons wishing to adopt under this Bill, as well as natural parents, would avail of this scheme as appropriate. There has been some criticism of this scheme by adoptive parents and others on the grounds that it operates on an entirely discretionary basis and that persons involved in adoption litigation have no way of knowing in advance whether their costs will be met. There have also been complaints that the amounts recouped by the State under the scheme often fall short of the actual costs incurred.
Following detailed consultations between the Attorney General and the Minister for Justice, it has now been agreed that in future persons seeking legal services in relation to adoption litigation, including proceedings in the High Court, under this Bill will be able to avail of the civil legal aid scheme. This means that in relation to this Bill natural parents and foster parents will be in a very satisfactory position because, once their case is accepted by the Legal Aid Board, their costs will be minimal regardless of the outcome of the case.
I have also made provision in the event, for whatever reason, of the scheme of civil legal aid and advice being refused to either party. In the case of the natural parents, where they are refused legal aid, the court can specify that their costs are to be met by their health board. This will apply whether or not they are successful in court. The health board will also meet any cost ordered against natural parents and will furthermore meet any costs involved in the event of an appeal to the Supreme Court. I should point out that there was no provision for meeting the costs of the appeal in the Bill, as published.
With regard to the foster parents, they will also be entitled now to avail of the State scheme of civil legal aid. This will entitle them to some services which the Attorney General's scheme did not embrace. For example, they can obtain the advice of a solicitor in connection with the initial application to the Adoption Board. It will mean, of course, that unlike the previous provisions, which were the subject of some criticism from Senators on Second Stage, foster parents who are accepted by the Legal Aid Board will incur minimal costs only regardless of whether or not their application is successful. Where they do not obtain civil legal aid and obtain an order from the High Court, the court can specify that the health board will meet their costs.
I consider that this is a very reasonable provision and I am glad foster parents will not have to suffer any financial loss in pursuing to the end an application which has, at its roots, the best interests of a child.
I am absolutely delighted that this amendment has been introduced. It takes care, very generously, of the needs expressed on Second Stage. Natural parents or prospective adoptive parents will be secure with regard to legal costs. It would have been quite horrific if, under the provisions in the Bill as it stood, prospective adoptive parents would run the risk of incurring considerable legal expenses if they failed in their case. It certainly would inhibit many people from taking a case when all the conditions otherwise seemed right for them. The Minister has assured me that this caters for all cases with the exception of an appeal to the Supreme Court.
In reply to Senator Fennell, if foster parents make an application to the High Court this means that the health board involved have declined to appeal on their behalf. They can then go to the Legal Aid Board. Such a decision by a health board would be taken only where the board, on the basis of their knowledge of the circumstances of the child, the natural parents and the proposed adoptors, were satisfied that adoption would not be in the best interests of the child. There must be some disincentive built into the Bill to discourage applications being made where adoption is not in the best interests of the child, or where the chance of a successful outcome of the case is minimal. Where, however, the foster parents make an application themselves and succeed against all the odds in obtaining an order from the High Court, the costs will be picked up either under the civil legal aid scheme or by the health board. This is a reasonable compromise and I would not be disposed towards making any further provisions for foster parents in this matter.
We went practically the whole way to meet Senator Fennell's proposal in connection with this matter. Basically, we are allowing the parents to go to the Legal Aid Board for assistance and, if that is approved, they can then proceed. Of course, the court can decide then to award full costs if the case is successful. I recommend that Senators should accept the proposal.
I want to refer to the purpose of my amendment. It was to cover the specific case of the prospective adoptive parents whose application was not approved by the health board but who were taking the action anyway. I understand from what the Minister said that the costs will be met if the result is positive and the adoption goes through. In the event that it does not go through and the case is being taken by the parents, as distinct from the health board, the Minister is saying that their costs will not be met unless they qualify for legal aid. I still feel there is room to manoeuvre on that because, given the qualifying factors for legal aid, it is going to leave a lot of people vulnerable. I am not totally happy about it.
While the Minister has made an amendment and changes that are very welcome, my specific request was to cater for this particular group of parents. There could be conflict between the adoptive parents who would foster the child and the local health board. The health board may not be prepared to pick up the matter and go to the court with it, but it could be successful and there could be mitigating circumstances. I ask the Minister to consider this fact because it is important for the couple who want to adopt a child and I do not think they should be disadvantaged in that way.
The position is that foster parents will have to pay only where the health board have refused to apply on their behalf and where the Legal Aid Board have not provided assistance; in other words, where they have refused to take on the case and the foster parents still decide to go it alone and lose the case. We have considered this matter very carefully. In view of what has been put forward in the Seanad, we have brought forward this amendment to cover many cases. This is as far as we can possibly go at this stage. We have limited funds. It could give rise to unnecessary cases being taken if someone feels there is no risk whatsoever of paying anything. That is the only reason we included this. I think it is a reasonable point and we are requesting that this subsection be placed in the Bill.
I have to stick with this because I think it is important. I do not believe you would have vexatious cases, because many circumstances would have to prevail before these cases would be taken. I suggest that the Minister consider an ex gratia payment or a ceiling limit or something like that, but if you make it so black and white I think you are going to be unfair to a number of prospective adoptive parents and thereby to the child concerned. I would be worried about this.
Is the amendment agreed to?
Which amendment?
We are dealing with amendment No. 10, to section 3. We are discussing amendments Nos. 10, 11 and 13 together. The Minister's amendment is No. 10 and your amendment is No. 11. We are discussing amendments Nos. 10, 11 and 13 together.
I do not want to press this issue because I feel the Bill has a long way to go in debate and then it has got to go to the other House. I wish to signal that I feel the response at this level on the amendment I brought in is unsatisfactory. I have clearly stated my reasoning for doing so. I wish to indicate that I think this should be taken up again. I do not think it is the end of it.
Amendment No. 10, which is a Government amendment is very unusual in that it does two things, it replaces the existing subsections (4) and (5) of section 3 with a new subsection (4) which is a great deal shorter. By approaching it in that way, it deletes subsection (5) which is the only subsection dealing with the question of costs being incurred where the applicants would not be eligible for free legal aid or it is not provided by or on behalf of the State. That would apply to many applicants because the threshold for eligibility for free legal aid is extremely strict and you really have to be on a very low income or low assessment of means in order to qualify for legal aid.
It is the experience currently that very often adoptive parents would not qualify for legal aid; even if they had quite moderate incomes they would be outside the limit because of the manner of assessment. It was appropriate, therefore, in the Bill as it was published that there should be provision for meeting the costs of the parties in that way and the costs incurred by the parents of a child. Therefore, I think it is strange in a way to find an amendment which simply deletes this section entirely and replaces subsection (4) with an abbreviated subsection. Clearly the Minister has decided to approach it on this basis but I think it is a matter of grave concern and one which will require to be the subject of further amendment to provide for meeting costs in such circumstances.
The procedure is very elaborate for the applicants in question. They will already have had to make application to the Adoption Board and this is a further stage in the process. It is a complex legal area where the evidential burden is a very serious one and where, therefore, it will be necessary to have a solicitor and probably also to have counsel retained to make representations in court on behalf of the parents of the child. Therefore, it is necessary that we be satisfied that the legislation deals adequately with the question of meeting the costs incurred. If not, we may be providing for a whole new procedure which will very rarely be availed of simply because it is outside the range of being affordable by those who would wish to avail of it.
I think this is an extremely important subsection. When the drafting of a Bill includes a section relating to costs and then on Committee Stage it is suddenly deleted by a Government amendment, there has been some strange turnabout in thinking in relation to it and that is very important.
Because of the time at which the House resumed I was not here for the Minister's initial moving of this amendment. I appreciate he may have covered some of this ground but I want to say it is a matter of grave concern and it may require to be the subject of a further amendment on Report Stage.
The Minister has another Government amendment on section 5. Amendment No. 13 could well be dealing with costs.
With your permission, a Chathaoirleach, I will go back over the details because I think it would clarify the situation for Senator Robinson. It is an important section. In fact, we have actually made an improvement. We have not removed something but we put something very important back into the Bill which took account of the deliberations here on Second Stage. We have not got as far as the amendment by Senator Fennell. Briefly, that is the situation.
It is a technical amendment which is consequential on my proposal to insert an entirely new section dealing exclusively with court costs. The provisions now contained in section 3 (4) and (5), with the exception of what is preserved in this amendment, will be incorporated in a proposed new section. The need for a new section in relation to court costs stems from a recent development in the provision of legal services in adoption cases. It might be helpful to Senators if, at this stage, I were to outline the background to this development.
Until now the State has contributed towards the cost of legal representation in adoption cases in limited circumstances under what is known as the Attorney General's scheme. In the Bill, as introduced, it was envisaged that persons wishing to adopt under this Bill, as well as natural parents, would avail of this scheme as appropriate. There has been some criticism of this scheme by adoptive parents and others on the grounds that it operates on an entirely discretionary basis and that persons involved in adoption litigation have no way of knowing in advance whether their costs will be met. There have also been some complaints that the amounts recouped by the State under the scheme often fall short of the actual costs incurred.
Following detailed consultation between the Attorney General and the Minister for Justice, it has now been agreed that in future persons seeking legal services in relation to adoption litigation, including proceedings in the High Court, under this Bill will be able to avail of the civil legal aid scheme. This means that, in relation to this Bill, natural parents and foster parents will be in a very satisfactory position because, once their case is accepted by the Legal Aid Board, their costs will be minimal regardless of the outcome of the case. I have also made provision in the event, for whatever reason, of the scheme of civil legal aid and advice being refused to either party. In the case of the natural parents where they are refused legal aid, the court can specify that their costs are to be met by their health board. This will apply whether or not they are successful in court. The health board will also meet any costs ordered against the natural parents and will furthermore meet any costs involved in the event of an appeal to the Supreme Court. I should point out there was no provision for meeting the costs of the appeal in the Bill as published; and this is a major improvement in the Bill as far as my Department are concerned.
With regard to foster parents, they will also be entitled now to avail of the State scheme of civil legal aid. This will entitle them to some services which the Attorney General's scheme did not embrace. For example, they can obtain the advice of a solicitor in connection with the initial application to the Adoption Board. It will mean, of course, that unlike the previous provisions which were the subject of some criticism from Senators on Second Stage, foster parents who are accepted by the Legal Aid Board will incur minimal costs only regardless of whether or not their application is successful. Where they do not obtain civil legal aid and obtain an order from the High Court, the court can specify that the health board will meet their costs. This is a very reasonable provision and I am glad that foster parents will not have to suffer any financial loss in pursuing to the end an application which has at its roots the best interests of a child.
Basically, where the health board are not prepared for one reason or another to proceed with an application for adoption, the foster parents may initiate court proceedings and may seek assistance from the Adoption Board. If they are successful, so be it, they will have no costs whatsoever but if they are successful in the court, the health board will then recoup the funds. We feel that we have satisfied to a great extent the requests from Senators in relation to this matter.
I am grateful to the Minister for some clarification of the position. I appreciate that some of the comments I made earlier are not relevant and that we will be dealing with this under the proposed new section 5. I will have a number of comments to make on the form of the present proposals under section 5. What concerns me about the deletion of section 3 (5) here, although I appreciate——
I must interrupt you. We are discussing amendments Nos. 10, 11 and 13 together so you may discuss amendment No. 13 now.
In that case I will make the points that I wish to make. The difficulty in relation to the substituted proposals for providing for court costs is that the approach is based, in effect, on the parents of the child or the applicants being eligible for the legal aid scheme. Is that not the position? The legal aid scheme is a non-statutory scheme and I assume the Minister for Justice would propose to amend it. Is that the position? Until that is done, it is not clear what the basis for that would be, or when it would be done. Perhaps the Minister could clarify when the Minister for Justice proposes to do this. If there is to be a significant amendment of a non-statutory scheme of this sort, perhaps the opportunity could be taken by the Minister for Justice to put the scheme on a statutory footing. Since the legal aid scheme was introduced in 1979 as a non-statutory scheme, there have been half promises and three-quarter promises by successive Ministers to examine the possibility of having the civil legal aid scheme put on a statutory footing. That would obviously be a much better system.
For the new section 5, proposed in amendment No. 13, to have real meaning, it would be necessary to have a significant amendment of the civil legal aid scheme. The significance of the amendment is that there would not be a financial threshold for parents of a child in these circumstances, or for prospective adoptive parents. They would, as I understand it, be qualifying for legal aid without having a means test applied. Perhaps the Minister would confirm that I am correct in my submission about that.
If that is the case, and if it is intended that the parties would get legal aid in relation to appearing before the courts in these proceedings and, indeed, on appeal to the Supreme Court as well, we have a strange provision because, if one fails to get legal aid, one will actually get a good deal more in costs than if one succeeds in getting legal aid. Therefore, there is an incentive to fail as far as the applicants are concerned because the default procedure is a lot more beneficial in terms of legal costs than the legal aid scheme. I am not sure that will work very well as a system. We are saying that basically the parents of the child and applicants will be eligible for legal aid and we are going to amend the rules in relation to legal aid to make sure that that is so, but if they are not allowed legal aid for one reason or another, we are now providing a better default system of tax costs for the taxing master.
I wonder what the thinking behind all that is? There is a very significant difference, as the Minister is well aware, between costs allowed under the legal aid scheme and costs as taxed by the taxing master. The costs as taxed by the taxing master would be certainly double, perhaps treble, what would be allowable on legal aid where it is on an hourly basis and so on. Perhaps the Minister would clarify the thinking of the Government on that issue.
In a sense we are dealing with something that is outside the direct control of the Department of Health. Nevertheless, the Minister for Justice has made arrangements to have all the adoption matters now dealt with under the Attorney General's scheme transferred to the Legal Aid Board with effect from 1 April 1988. Adoption cases will be dealt with by the Legal Aid Board in the same way as all other cases, that is, there will be a means test. This means test will be the same as that used for all civil cases by the Legal Aid Board.
The point made by Senator Robinson in relation to this matter is that only if the case succeeds in the High Court will the costs be awarded to the adoptive parents. In summary, first, foster parents will have to pay only where the health board have refused to apply to the court on their behalf. It is very important that we should be aware of this. The health board officials are familiar with the parents of the child being fostered and are neutral people in relation to this on behalf of the State. They would only make a decision not to apply for adoption after very careful consideration. Secondly, if they are eligible on a means test, the Legal Aid Board may decide that the case would not be justified and could, I presume, refuse to recommend that the case be taken. Then the foster parents would ultimately have the right to go directly to the courts and to seek the adoption.
We must avoid a cost situation as well and also the disruptive problem that could arise if, the health board having considered the matter, refused the adoption and the legal aid board for their reasons had refused it, the parents at that stage went ahead. If we, at this stage, were in a position to say that we would approve the full assistance for foster parents to go to the court, why should they go through the health board or any other system? They can go directly to the courts and seek adoption. I believe, quite frankly, there is a slight deterrent in not having a situation where cases can be taken without due regard to the advice available from the people who are the professionals, dealing with childcare in the local health boards. In the circumstances, I feel that there is very generous provision. We are allowing for every possible situation. If they are successful in the courts they will be awarded costs.
It will obviously be necessary to pursue this a little further because there are very important considerations. The Minister stated at the beginning of his response that it would only be in the case of a parent succeeding in the application that the costs would be paid in this way. Is that the position? Only if the application succeeds costs will be paid?
Yes.
That has never been the case in relation to legal aid. It has never been necessary for a party looking for legal aid from the legal aid board to succeed in their claim in order to get legal aid.
I think, Senator Robinson that rather than have this chat across, you could let the Minister come back. It would be better that way for the House.
We are proposing a new section. The new section will, in fact, mean that the health board will pay the parents of the child in respect of any costs, costs that are incurred by them in relation to an application under section 3 (1). Costs are incurred whether you win or lose. I assume that in that instance they would be simply paid the costs that are incurred in relation to an application under section 3 (1) or an appeal to the Supreme Court against the making of or the refusal to make an order under section 3 (1). The costs are not paid by another party to the proceedings and in relation to which legal aid under any scheme for the provision of legal aid operated by or on behalf of the State has been refused, the Minister has to a certain extent clarified that the legal aid scheme will only apply as it applies at the moment to applicants to that scheme. In other words, it will be means tested. In that event I would make a guess that most prospective adoptive parents — most applicants — would be outside the likely scope of the scheme.
The scheme is a very difficult one to fit into, particularly for applicants who would have to satisfy the court, among other things, that they were in a position to adequately parent and look after a child. Therefore, by and large they would need to have a source of income. Therefore, they are very likely to be outside the legal aid scheme as it is at present, unless the whole legal aid scheme is improved substantially. The health board will pay the costs either as specified by the court, as taxed by the taxing master, or agreed on the basis of what would be likely to be forthcoming on taxation.
We come to paragraph (b). If any costs of another party for proceedings in relation to the application or the case, maybe the appeal, are ordered by the court or the Supreme Court to be paid by those parents and legal aid in respect of them under the scheme has been refused, they must pay that other party as may be specified by the court either the whole or part of that. The costs of another party in those circumstances, I assume, would be the costs of the natural parents, that is, the married parents. That would be the situation.
Again, under the Attorney General's scheme where an adoption procedure has operated, that scheme has operated in such a way that it has not depended on who won or did not win. The natural mother has generally obtained legal aid to pursue her part in the case, whether she is the moving party seeking custody of the child under the Guardianship of Infants Act or whether she is a notice party where the adoptive parents have brought proceedings under section 3 of the Adoption Act, 1974.
In the case of the adoptive parents — if I could put in this way — win or lose, an application can be made on their behalf to the court that this is an appropriate case for the court to certify that the adoptive parents should obtain the legal aid, if you want to call it that, out of the Attorney General's scheme and that it would be appropriate for them to obtain the discretionary payment, which effectively it is, out of the Attorney General's scheme. If the decision has been taken to no longer apply the Attorney General's scheme but to have all of this operating through the civil legal aid scheme, it would not be appropriate to enter into the system some new criteria that you must win. Costs are incurred regardless of whether you win.
It would be an appalling burden to put on, for example, the natural parents to say that unless you win you have no hope of getting any costs. Natural, married parents might feel they could not participate because of the costs procedure. It would be very important where natural parents might not qualify for legal aid that even if they did not succeed in an application they could, nevertheless, have their costs met under this section. I will be grateful for clarification from the Minister as to whether that is the case at the moment or whether that would not be the case.
Foster parents are granted legal aid. Their costs will be covered by the Legal Aid Board regardless of whether they win or lose. That is quite specific. It is true that the cost to the State would be greater if the foster parents were refused legal aid and were instead granted taxed costs. That is quite correct. This may appear to be an anomaly but it is essential if we are to ensure that the foster parents will not be out of pocket in this case.
Where the foster parents make an application themselves and obtain an order in the High Court, or have the order affirmed and appealed by the Supreme Court, or obtain an order after appealing an initial High Court refusal, and they are refused civil legal aid, the health board must meet any costs incurred by them in bringing the application and appeal which are not being met by any other party, for example, the natural parents, and the cost to be met in whole or in part will be specified by the court and be on the basis of taxed costs, or will be decided between the foster parents and the health board, being equal to the taxed costs. In fairness to the section to which we have given very careful consideration we could debate for a very long time all the merits and demerits of this situation. We have before us a very important Bill. In this case when it comes to a question of costs naturally we will have different opinions about the situation. We must go back to the basis of this whole situation. The health boards will normally be the people who will initiate the adoption procedure. They will be responsible for the total costs of the case.
That, basically, is the way I see the situation. Where foster parents decide to proceed with an adoption case it goes before the High Court. After the health board refusing the application — and they would not refuse that application without very careful consideration because they are a neutral party in this — they are bearing in mind the best interests of the child, the natural parents and the proposed adoptive parents. After very careful consideration we have included section 5 in the Bill and I commend it to the House.
I am sorry to pursue this point. It is an important Bill and there are other sections we will come to but this is one we should be very clear on before moving from it. I am a little bit clearer about the position of the foster parents but I am not sure if I am entirely clear on it. The Minister made it clear that the foster parents would be provided either with legal aid or else get their costs in default of being eligible for legal aid from the health board, win or lose. Is that correct?
Win.
Only win? The Minister talked about the intention being a deterrence to the foster parents from applying if the health board has not applied on their behalf. Is it appropriate to use an economic lever to make it more risky for people to have access to court for a procedure which we are providing in section 3 would be available? We are providing it can either be done by the health board — and obviously that is the stronger case, because if the health board is making the application you have the authorities rowing in behind you — or it can be an application made by the foster parents to become the adoptive parents. Before they can do that other steps have had to be taken. Quite a lot of important ground has to be covered before they can make an application of that kind.
I am worried about the situation where foster parents could be deterred by the economic risk. It is a very real risk. Apparently, they would not be able to apply for legal aid in those circumstances. If they have to wait until they win the case, there is no question of being able to apply for legal aid because you do not apply for legal aid after you have won. You apply for legal aid in order to pursue a claim of whatever kind. You get a certificate of legal aid which enables you to retain the law centre solicitor and counsel to pursue the claim. If they do not get that the foster parents will have to pay for their lawyers and then hope that they can get an order for costs to recover their expenses. I would be grateful if the Minister would clarify the position in relation to costs of the natural married parents participating in the application.
May I make a contribution? The point Senator Robinson has dealt with is the crunch of my amendment that is, the need, as I see it, not to discriminate in this Bill against some groups. This section on costs is flawed. If you are going to say to a couple who are foster parents and who, under the Bill, have the right to go to court without the agreement of the health board, that they can only get their costs paid for if they win the case, that is a very unsure state to be in. What is the point of putting in that provision in the Bill if you are not going to go all the way and give them the same rights and entitlements in terms of costs as in the other case? This was dealt with in a most unfortunate manner. I hope it will be looked at again. As I said originally, I am very unhappy with it.
There must be some disincentives built into the Bill to discourage application being made where adoption is not in the best interests of the child and where the chances of successful outcome to the case are minimal. In those circumstances, we sincerely feel that to proceed with a case against all the advice available from all the specialists and the health board is unwise. If the health board were not prepared to recommend the adoption, what would be the logic of proceeding against all that advice, irrespective of the quality of the barristers you may have representing you? You still have the option as in other cases. In the circumstances, and allowing for the situation where legal costs are so high, we feel we have gone very far in this regard. The natural parents are fully supported with legal costs. They have no difficulty whatsoever, irrespective of the situation. Their costs are fully recouped in relation to any case being taken by the foster parents or anybody else.
On the other hand, if foster parents insist, against all advice, in taking an application to court in which they are not successful, they should not have costs paid to them. This is a situation where they were turned down by the health board and Legal Aid Board but nevertheless insisted on pursuing their application. In that situation, I cannot see that the State could justifiably meet their costs.
I appreciate the sincerity of the points being put forward by Senators Fennell and Robinson in relation to the situation. I accept their sincere concern in relation to foster parents who would wish to pursue a case through the courts for the adoption of a child. Nevertheless, I feel that the barriers are there. The basis of this situation is that the health board are the professional people involved and they turned down this adoption case. We must bear in mind the child in this situation. We have gone as far as possible to include good sections in this Bill, which I recommend to the House.
Is it not the case that there could be situations where the Adoption Board would indicate that they would agree to make an order but the health board on the other hand would not pursue the matter to the courts? If that is the case, that goes against what the Minister said originally, that they were going against all possible advice. If there were indications from the Adoption Board they would make an adoption order but the health board did not agree with that, surely that is the most profound endorsement. If the parents in that event tried to get the case and failed, one could not say that they went against the best advice if the Adoption Board indicated that they would have granted an order.
The Adoption Act, 1952, does not include the right of a separated person to adopt. This Bill equally does not include that——
That is another amendment.
If the amendment, for example, happened to be carried, the fact that that would be written into the legislation. You would have legislation. There might then be a danger because the person is separated — even though legislation says they can go ahead — that the health boards might have a different view and would not encourage the separated person to go forward. Therefore, the separated person would have no choice but go through the court.
We could run into difficulty if the legislation was amended to include the rights of a widower, for example. The health board would come into the whole question. Even though the legislation says one can adopt, they can say that they do not think it is worth the risk. It is something that is worrying me and I would like the Minister to clarify it.
We are coming to a section dealing with the points raised by the Senator. We will be dealing with that extensively in a few minutes. The Adoption Board are concerned only with assessing the adoptive parents. They are not required to assess the natural parents. The health boards, on the other hand, would usually be concerned and have the background information on the natural parents. They might feel that adoption would not be in the best interests of the particular child. There is a slight difference there. You can bring up many hypothetical situations in relation to this. I reiterate that we cannot move on this situation. We have put forward the section after due and careful consideration. We feel that it is in the best interests of all concerned.
I do not find what the Minister is saying on this point very convincing. I share Senator Fennell's concern. Where it is the foster parents themselves who are pursuing the application to the court, under section 2 of this Bill they will already, have made an application to the Adoption Board. The Adoption Board will have heard the health board, so the Adoption Board will be aware of any views the health board may have. That is written into section 2 (1). Then the board will make it clear that, apart from the problem that the parents of the child are married parents, they would be prepared to make an adoption order and it indicates that they would otherwise be prepared.
The Adoption Board at that stage would be satisfying themselves on a number of different issues which they would normally do in relation to adoption. They would be bringing this to a stage of enabling an application to be made to the court under section 3. Under section 3 of this Bill the application can be made. First of all, the applicants request the health board. Under section 3 (1) (a) the health board may consider it proper and make the application. Under section 3 (1) (b) the health board may simply do nothing for three months. I am sure we have all known health boards who have sat on things for much longer than three months, particularly a health board who are not used to this kind of application, or if the person dealing with it has been moved to do something else and the file just sits there. Section 3 (1) (b) makes it clear that, if the applicants are not communicated with by the health board, if there has been no judgment or communication in the matter, the applicants can apply to court.
What the Minister is doing in amendment No. 13, which will be the new section 5, is penalising those unfortunate applicant foster parents by saying they are not going to get any costs out of it unless they succeed. They will incur High Court legal costs and will run the risk of having to pay those themselves. I do not like the idea of using the stick of deterrents on the basis of a risk of legal costs to prevent people from making an application that is perfectly within the intent of section 3 of the Bill and could be fundamentally in the interests of the child concerned. It is not a realistic division that the Minister is positing. It is not a realistic policy in my submission. Therefore, I would support Senator Fennell that there should not be this artificial distinction between the position of foster parents depending on whether the health board make the application on their behalf or whether they, as they are entitled to do under section 3, either because the health board have refused or have not responded within a certain time scale, decide to go ahead and make the application themselves. They should not be penalised in their access to court by the risk of being responsible for the costs.
The other point I would also be grateful for clarification on from the Minister is where in amendment No. 13 — that is, the new section 5 — is the position of the natural, married parents specifically provided for? The reason I ask that is that I am slightly confused between the term "paid to the parents of the child" and the term "if any costs of another party to the proceedings to the application." Nowhere is the term "the applicants" used which would normally be the term used for foster parents. We have defined that foster parents who become applicants to the board will be known as "the applicants". There is no reference to "the applicants" in the new section 5. I am not clear where the section is referring to foster parents and where it is referring to the married, natural parents. I would be grateful if the Minister would clarify that.
Senator Robinson is making a very good point on this section of the Bill. In the circumstances, I think she would agree that in the case outlined she would be in a very good position to recommend such a case being taken and more than likely it would be successful after all the points that have been made here. They would not have anything to worry about, because the health board would be rather negligent if they did not carry out their responsibilities. The judge would be empowered to award full costs to the applicants, the foster parents, on winning the case. There is due provision for that in the Bill itself.
The Senator expressed concern about the natural parents as mentioned in section 5 (1). I want to make it quite clear that the position of the natural parents must be very carefully considered and protected. The relevant health boards must pay the natural parents any costs incurred by them in a High Court application or an appeal to the Supreme Court which are not paid by any other party, for example, the foster parents or the health board taking the application on behalf of the foster parents. Where the natural parents have applied for, but been refused civil legal aid, for example, on means grounds, the costs to be paid by the health board will either be specified by the court and will be on the basis of taxed costs, or will be an amount agreed between the parents and the health board at a level equal to taxed costs.
If costs of any other party, for example, foster parents or the Adoption Board, are awarded by the court against the natural parents and they have been refused civil legal aid, their health board must meet those costs either as specified by the court on the basis of taxed cost or a sum agreed between the health board and the relevant party being equal to being taxed costs. In the circumstances the natural parents are fully protected under the Bill against any costs incurred in relation to High Court or Supreme Court action taken by anybody at any stage.
I am grateful to the Minister. Section 5(1)(a) relates to the natural, married parents. Section 5(1)(b) relates, inter alia, to costs against the natural married parents. We have a situation under subsection (2) of an application under Section 3(1)(b) that is the application we have been talking about in relation to the foster parents where the health board either have refused to make the application or have not responded within a period — and in those circumstances as we know the foster parents are at risk. If they win and get an order, fair enough, but if they do not, too bad. What about the case of foster parents who are necessarily going to be parties to an application brought by the health board?
Their costs will be met by the health board.
Would the Minister show me where in the section that is provided for?
There are so many different hypothetical situations here that it is very difficult in a Bill of this nature to include every possible combination. Nevertheless, in the circumstances where the health board are taking the case, the foster parents' costs are fully covered. They would be part of the case taken by the health board, as such.
I am certainly pleased that the Minister agrees that the costs of the foster parents must be met in that case. It certainly would be necessary for the foster parents to be parties in such an application, even though the application was made by the health board. It would appear that they would be represented in that capacity and it is not a situation that appears to be covered at the moment by the wording of section 5. Perhaps it is a matter that could be looked into on Report Stage. The real difficulty is that the foster parents are not the health board, they are a separate and a necessary party. I welcome the Minister's assurance that it is intended that the costs of the foster parents would be met and it is something that should be examined to ensure that the legislation will so provide.
In view of the points raised it is our intention to review this on Report Stage because it would be necessary to specify that. We think it would be important and I want to thank Senator Robinson for bringing that point to our attention.
I withdraw amendment No. 11 but I would like to give notice that I am going to pursue the matter on Report Stage.
Amendment agreed to.
Amendment No. 11 not moved.
Government amendment No. 12:
In page 5, lines 24 and 25, to delete subsection (7) and substitute the following subsection:
"(7) The functions conferred on a health board by section 2 (1) and subsection (1) shall be functions of the chief executive officer and any deputy chief executive officer of the board.".
Government amendment to amendment No. 12:
In 4, after "subsection (1)" to insert "of this section".
Government amendment to amendment No. 12 agreed to.
This is a technical amendment. Section 2 (1) requires the Adoption Board to hear the views of the local health board in considering an application for adoption under this Bill. Subsection (1) of this section requires a health board to decide whether to make an application to the High Court on behalf of the foster parents. This amendment assigns both of these functions to the chief executive officer of the health board, or his deputy. The original subsection did not include a reference to section 2 (1). Without this provision the functions would become functions of the health board members themselves. It is an accepted feature of the health and local government codes that functions in relation to specific cases or individuals are assigned to the permenant staff.
The reference to a deputy chief executive officer is necessary to deal with situations in which the CEO is not available due to absence or illness or when there is no CEO due to his resignation. It would be open to the CEO or his deputy to delegate these functions to other staff of the board, for example, directors of community care and senior social workers, so I recommend this section because it clarifies the situation. It would be rather unacceptable if these cases had to come before a full meeting of a patricular health board whereas this would really be an executive function. I recommend it to the House.
This would refer back to the functions of the health board under section 2 (1) and under subsection (1) of section 3. It might just be clear as simply a wording suggestion that if the subsection were to read "The functions conferred on a health board by section 2 (1) and subsection (1) of this section shall be functions of the chief executive" because section 2 (1) and subsection (1) lead to a certain confusion.
We are always delighted to take such advice and we will certainly consider improving section 2 to meet the Senator's requirements.
Amendment, as amended, agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
In relation to an application brought by foster parents, this is where the provisions of section 3 (1) (b) come into play and the health board have either refused or have not responded positively or perhaps responded at all to the application of the foster parents and they are making the application to the court. It is provided that it is necessary, in the course of the application, "that it be shown to the satisfaction of the court that", and then there are a number of different things that have to be shown before the court will consider them if it thinks fit and is satisfied, having regard to the rights and best interests of the child, that it is appropriate to make an order authorising the adoption board to make an adoption order.
In relation to the foster parents, particularly foster parents who may be operating because there has been default on the part of the health board as to how they might discharge that evidential burden, I want to tease out a little bit the circumstances. Say the health board do not feel that it is proper to make the application as a health board under section 3 (1) (a), but perhaps they are not hostile — maybe it was a marginal decision but there was some ground for the health board not doing so — are the health board to be a party at all in assisting the applicants with the evidential burden? I say that because the health board will be in a much better position to know whether it is likely that the natural parents would fail to take care of the child; they are in a much better position to show that the failure of natural parents is an abandonment of their rights, etc. It is not at all clear that the applicants, if they were the foster parents, would be able to meet and discharge this evidential burden unless the health board were necessarily, even though they might not be the applicant, a party in so far as they would assist in providing whatever evidence was necessary for the court to make an assessment.
The health board concerned shall be joined as a party to all proceedings and they would be responsible for their own costs in relation to this situation.
Apart from being joined in the proceedings, is there not a difficulty, if the applicants, request the health board to apply to the court and the health board refuse to do so? Does that absolve the health board from assisting in putting before the court the matters on which the court must be satisfied? The foster parents may know nothing about the natural parents; all they might know is they have had the child in their care for more than 12 months. They have applied to the adoption board, the adoption board has said, "We will be prepared to make an adoption order but there is a problem and you have to go to the court". How can they discharge that burden unless the health board actively come in behind them?
The health boards are fully involved in this whole process but if they have decided that they feel that a particular child should not be adopted, it would depend on how much assistance they would give to the courts in relation to this matter. They would have to give the factual situation to the courts in relation to this. The health boards' position is very important to the whole area. They are the people who are aware of the circumstances of the natural parents. They would give appropriate evidence as required, but they would be involved in all proceedings.
I could think of a concrete example of what seems to be a predictable problem. The foster parents satisfy the adoption board under section 2 and the adoption board bring it as far as the Bill provides under section 2. Then the foster parents make a request to the health board and whoever is dealing with it in the health board, for example, the social worker, who says: "Those parents in the future might be able to care for that child — that is the view of the social worker held in good faith —"therefore, we will not bring the application," and so the foster parents say that the health board have refused but "we are entitled under section 3 (1) (b) to bring the application ourselves."
The foster parents have the burden of satisfying the court on the various criteria there and they must satisfy the court that it is likely that such failure will continue without interruption until the child attains the age of 18 years. In those circumstances — I have deliberately put that example because it highlights the issue — would the health board come in against the application and say: "We do not believe that the parents would fail; we believe that although things are difficult at the moment, they may well come back"? Is that the sort of situation that the Minister is envisaging?
If the health board feel that adoption should not take place, that the child should not be adopted, they would have to give that evidence to the courts. I would expect, in the circumstance, that they would oppose the adoption on the basis of the facts known to them and rightly so, because that is part of the protection in this Bill. We are talking about the adoption of children of natural parents and that has very serious and far-reaching consequences. I would feel that the health boards would be lacking in their duty if, after due consideration, they felt they would not support the adoption of a child and make this case known to the courts. The judge will have to decide at the end of the day. All we can say at this stage is that the provision is there in the Bill for the health board to take the actions required. If they carefully considered the situation and did not support the adoption of a child because of changes in circumstances, there would be no other course open to them but to go in and make that case clear to the judge.
I am concerned that although the health board clearly have an important role to play and clearly have important knowledge that should be before the court, it is the intention of seciton 3 that it is the court that decides whether to provide that an adoption order would be made, an order authorising the Adoption Board to make an adoption order. We do not want the thing decided by the health board in a negative sense and with the further leverage that the risk of High Court costs on the foster parents are such that they are deterred from bringing an application under section 3 (1) (b). There are two ways in which they could be deterred: one is the risk and worry about the costs involved and being left to pay those costs if they do not succeed; and the other is the very significant evidential burden in this section.
We spoke about this yesterday evening in relation to other amendments and we talked about what I believe is a worth while amendment in the name of Senator Brendan Ryan of where, when the natural parents, for serious reasons, believe they are failing and will continue to fail to provide the parenting role, that they cannot cope and want the adoption order to go through. If that were the attitude of the parents in question, without a section in the Bill to deal with it, the health board might take the view that they did not like this attitude of the natural parents and therefore on that basis they would not support the appliciation. That gives the health board a veto whether the application will go ahead.
Not at all.
In effect it does, because in order for the application to succeed it must be shown to the satisfaction of the court that the child has been for more than 12 months with the foster parents and that the natural parents, for physical and moral reasons, failed in their duty. On the second point, it is likely that such failure will continue without interruption. Whose view on that will prevail? If the foster parents and the natural married parents were saying that there would be no prospect, no likelihood and no feasible possibility of the natural married parents parenting the child, if the health board take a different view — the view of the health board is a relevant factor — it may well mean that it would be virtually impossible for foster parents to succeed in the circumstances. Therefore, it is really the health board who are determining whether an order will be made and not the court. That is because of the combination of the risk of costs and the severe evidential burden unless the health board move in on an application once the application has been made.
I am rather astonished at Senator Robinson's argument because she who is so aware of court procedure might apply the same argument to every case that the Garda would have and the persons not even bothering to attend court because they know the Garda will not agree to bail or anything. In my lay opinion it is the court who will have the decision. Of course they will hear evidence and counter-evidence but to say that the health board will have a veto over it is to me utterly ludicrous. The health board will have a say and they will present evidence in the case but their evidence is not the only evidence that will be considered by the court. The courts will hear evidence from the natural parents and from the foster parents and they will make their decisions. It would be a very serious matter if the health boards were unable to go into court and present the evidence as to why they think the adoption should not take place.
The judge untimately will make the decision and the health board would be negligent in their duty if they did not put forward the evidence that they feel is justifiable in the circumstances. I presume the natural parents would have an opportunity to put their situation to the judge and at the end of the day we cannot be the judge of this case. We are leaving it to the competence of the Judiciary to decide on the cases presented to them after due consideration, and with the health board putting forward the case that they feel is the correct case, the judge decides, and not the health board, whether that child should be adopted. The situation is quite clear in the Bill. There are great safeguards put into the Bill to protect all concerned and particularly the children involved.
I do not intend to take undue time on this, but in response to Senator O'Connell I think it is worth having regard to the nature of the case. Broadly, I do not take issue with what has been said and I do not want to be misunderstood. I am very strongly in favour not only of the health board being a necessary party but the health board being in a position fully and freely to put before the court the view of the health boards. That is extremely important and I do not want in any way to detract from it. I am concerned about foster parents who had a child with them for a period and who requested the health board to bring an application under section 3 and where the health board either refused, which is obviously the tougher case for the applicants, or simply did not respond within the period.
I am concerned about what I see as being a very real burden on those foster parents who may know nothing about the natural married parents. They have a child placed with them that they have grown to love enough to want to adopt that child. There is a serious problem because the child is the child of married parents but the foster parents may know nothing about that. They have already one type of burden if they are bringing the application on their own, and that is that they would know that they were at risk, that they must either succeed or pay a price of probably a couple of thousand pounds for having made the application. I want to know what other kind of difficulties they may be encountering. One difficulty that I would see in the section is that because of the very serious evidential burdens even on a health board to satisfy the court, when the health board are making the application, it might be just impossible for ordinary foster parents to satisfy the criteria in which case if the health board do not support the application there may never be a successful application. In other words, I find it difficult to foresee circumstances in which foster parents would succeed in an application if the health board decided not to make the application. Perhaps that is what the Minister himself foresees and maybe he is happy about that. It would be better to face the reality of that.
There are cases where the foster parents may not be the ideal parents to adopt a child. That would arise, of course. We must not naturally assume that because they are foster parents and the health board do not make an application that they are the right parents to adopt a child. That must be borne in mind.
I agree with Senator Robinson. This is a revolutionary Bill because it allows for the adoption of legitimate children. We must have safeguards in the light of the Constitution. It is a difficult path to secure the adoption of these children. Nevertheless, there is the opportunity here and safeguards are built in. Many hypothetical situations and difficulties could arise along the road. In the operation of the Bill I believe we will find that when the health boards and everyone concerned see this as the right course for the child the judge at the end of the day will decide in accordance with the evidence before him or her. Certainly it is a difficult road because of the constitutional situation and because it is a revolutionary step at this stage in relation to the adoption of legitimate children.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
I would ask the Minister to clarify section 4 (5) which states:
Notwithstanding subsection (1), where the Court is satisfied that the parents concerned (or either of them) are incapable by reason of mental infirmity of giving reliable evidence to the Court,
That means that where both the natural parents or either of them are mentally ill, their evidence would be dispensed with. It is very important, as was stressed several times during the debate, that the situation of the natural parents should be very carefully examined. I would like to know the definition of "mental infirmity" as it would be applied in the Bill. Could we be talking about an extended duration of chronic depression, do we have a definition of it that would fit fairly in presentday terms of understanding mental illness or is it a traditional interpretation which would be far removed from presentday interpretation?
The provision is in section 14(2) of the 1952 Adoption Bill which has operated satisfactorily. We have total confidence in our Judiciary to decide on the merits of a case. Naturally if it is a matter of mild depression that would be regarded by the judge as not being under this section. We have not got a full list of all the types of illnesses that can arise on which the case could be argued before a judge in relation to this section. Nevertheless, it is basically quite clear, where one or both of the natural parents is or are incapable, due to mental infirmity, to give reliable evidence, the court may proceed to make an order authorising the adoption of the child notwithstanding the absence of that evidence. A similar provision is contained in the 1952 Act which has worked very satisfactorily to date.
The section deals with evidence to the court, particularly the evidence of the natural parents. We have just been considering in the proposed new section — it will now be before section 5 by virtue of amendment 13 — a provision in relation to costs which may be incurred by the natural married parents. I would like to be clear on the matter. Is it envisaged, therefore, that the natural married parents will be parties to an application of this kind, that they will be joined as the court has power to join under section 3(3)? Will they be necessary parties or will they be discretionary parties to any proceedings where either the health board, or the foster parents if the health board will not do so, make an application under section 3?
Apart from being parties and, therefore, being represented before the court and indeed having their costs met in every eventuality in the manner that the Minister has described under the new section, they would be in effect required to give evidence in that the court under section 4(1) shall not make an order except within the scope of section 4 itself without having heard the parents. From the point of view of the married natural parents it makes a great difference in giving evidence in a court case like this because you are a party and your own counsel might call you and then you might be cross-examined by others, or you might be somebody else's witness brought in simply as a lay person to give evidence without having you own lawyer to advise you. It is extremely important that we are clear that in the case of the natural married parents they are parties and are represented before the court and they are also persons who will give evidence unless there are exceptional circumstances why they should not give evidence as provided under section 4. I ask the Minister to clarify that that is the position.
This is a very important section which requires the High Court to hear the natural parents of the child and any other persons whom it considers should be heard. It sets out the circumstances in which the court may make an order without hearing the natural parents. The natural parents will be a party in their own right before the court.
Question put and agreed to.
NEW SECTION.
Acting Chairman
Amendment No. 13 has been discussed with amendment No. 10.
Government amendment No. 13:
In page 6, before section 5, to insert a new section as follows:
5.—(1) The health board concerned shall—
(a) pay to the parents of the child concerned, in respect of any costs—
(i) that are incurred by them in relation to an application undersection 3 (1) or an appeal to the Supreme Court against the making of, or the refusal to make, an order under the said section 3 (1),
(ii) that are not paid by another party to the proceedings, and
(iii) in relation to which legal aid under any scheme for the provision of legal aid operated by or on behalf of the State has been refused,
either, as may be specified by the Court, the whole or a part so specified of those costs, as taxed by a Taxing Master of the High Court, or such amount as, in the opinion of the health board and those parents, would be equal to the amount, as may be specified as aforesaid, of those costs or of a part so specified of them if they were taxed as aforesaid, and
(b) if any costs of another party to the proceedings in relation to the application or, as the case may be, the appeal are ordered by the Court or the Supreme Court to be paid by those parents and legal aid in respect of them under any scheme for the provision of legal aid operated by or on behalf of the State has been refused, pay to that other party either, as may be specified by the Court, the whole or a part so specified of those costs, as taxed by a Taxing Master of the High Court, or such amount as, in the opinion of the health board and that other party, would be equal to the amount, as may be specified as aforesaid, of those costs or of a part so specified of them if they were taxed as aforesaid.
(2) Where, on an application underparagraph (b) of section 3 (1)—
(a) (i) the Court makes an order undersection 3 (1) and either an appeal is not brought against the order or the order is affirmed by the Supreme Court on appeal, or
(ii) the Court refuses to make an order undersection 3 (1) but, following an appeal to the Supreme Court against the refusal, the order is made,
and
(b) legal aid for the persons bringing the application under any scheme operated by or on behalf of the State for the provision of legal aid has been refused,
the health board concerned shall pay to the persons bringing the application, in respect of any costs incurred by those persons in relation to the application or, as the case may be, the application and the appeal that are not paid by another party to the proceedings either, as may be specified by the Court, the whole or a part so specified of those costs, as taxed by a Taxing Master of the High Court, or such amount as, in the opinion of the health board and those persons, would be equal to the amount, as may be specified as aforesaid, of those costs or of a part so specified of them if they were taxed as aforesaid.".
Amendment agreed to.
Section 5 agreed to.
SECTION 6.
I move amendment No. 14:
In page 6, line 31, to delete "illegitimate" and substitute "a child whose parents were not married to each other or an orphan.".
I hope the Minister will accept this amendment. In making this request I am conscious of the fact that this is not something to do with money. It has nothing to do with legal costs. It should be an extremely easy thing to do. When I sat in the Minister's place dealing with another Bill I was in the position of having to defend the use of that word for some time, against my better feelings. When I came into this House the proposal was put to me that this term should be omitted. In this legislation we want to eliminate the stigma of illegitimacy — the term, the concept and the social attitudes that have attached in the past to the child born out of marriage. Whenever we can, we should make a genuine gesture that is practical and effective and remove this term. I went through the Bill and this is the only place the term appears. Its inclusion may have been an inadvertent error on the part of the parliamentary draftsmen. This has nothing to do with money but has a great deal to do with changing attitudes and our use of language. I would ask the Minister to accede to this amendment.
I support this amendment. I am in favour of the removal of a concept which we have determined should not form part of our law relating to children any more; to substitute a formulation, either exactly as in Senator Fennell's proposed amendment, or one which represents the sense she has put forward, that it is a child not of a marriage who would be eligible for adoption under the first part of the proposed amendment of section 10 of the 1952 Act. When a similar amendment was put forward to change wording of a Bill in this House — I think it was the Recognition and Enforcement of Judgements Bill — I proposed an amendment to remove the reference to the illegitimate children's Bill. The response at that time was that, although the Status of Children Act had been passed, it had not been brought into operation. I understand that the provisions of the Status of Children Act is to be brought into operation in June.
In any case we are amending a fundamental part of the adoption law. We are amending the Parent Act itself, the 1952 Act. We are describing the children who will be eligible for adoption. It is very clear what the description would be. Therefore, it is not a question of whether we are referring to a statute, it is a question of substitution a formulation which does not use the concept "legitimate" or "illegitimate" but which uses a different descriptive term which is equally accurate from a legal point of view. I hope that the Minister will accept the principle of the amendment and, if he is advised that it is appropriate, the wording of the amendment put forward by Senator Fennell.
I propose to accept this amendment. In fact I intend to go further, to delete section 6 altogether.
During Second Stage debate Senator Fennell and others expressed some disquiet at the use of the term "illegitimate" in this section. I, too, consider this an unacceptable terminology. I appreciate the Senators' concern. I share their desire to avoid the use of this term, particularly following the recent enactment of the Status of Children Act. However, there is a difficulty in relation to the Adoption Acts, as the term "illegitimate" is used in various places throughout those Acts. It is my intention to remove all of those references in the context of the comprehensive Adoption Bill which I plan to bring forward. Pending this, it would be very confusing to delete the reference to "illegitimate" from section 10 of the 1952 Act, while leaving similar references elsewhere in the Adoption Acts unchanged. I have taken this matter up with the parliamentary draftsman. I am advised that — as this Bill and the Adoption Acts are to be construed together, as provided for in section 8 (3) of this Bill — it is not necessary to explicitly amend section 10 of the 1952 Act, as was envisaged here.
Therefore I propose to delete this section of the Bill altogether. This will mean that the term "illegitimate" will no longer appear in this Bill. It will continue to appear in the 1952 Act. That is something that can be dealt with when we come to delete all references to "illegitimate" in the context of the comprehensive Adoption Bill. I hope that this proposal will meet with the approval of the Seanad. I am delighted to be in a position to make that announcement here today.
Acting Chairman
Is the amendment withdrawn?
Yes.
I wanted clarification of the question of the deletion of the section.
Acting Chairman
We are not dealing with the deletion of the section yet. We are disposing of the two amendments. When we have disposed of the two amendments, we will then deal with the deletion of the section.
That is what I wanted to ask. It seemed to me that, as you were talking about deletion of the section, there was no point in having the amendment. When the Minister said that he proposed to delete the section I thought there would be a ruling to the effect that amendment No. 15 would not be debated.
Acting Chairman
We must dispose of the two amendments first.
I understand now.
I want to be orderly. Do I understand that we will have an opportunity to come back to the question of whether it is appropriate to have section 6, as it stands, deleted?
Acting Chairman
That is correct. Is amendment No. 14 withdrawn?
Yes, in view of the Minister's commitment to delete section 6.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 6, between lines 34 and 35, to insert a new subparagraph as follows:
"(iii) a child who is not a naturalised Irish citizen concerning whom an appropriate adoption order has been made by the Adoption Board following consultation and agreement with the relevant Adoption Agency in the country of which the child is a naturalised citizen.".
This amendment was drafted in a hurry. It appears to me that it may create some confusion or that it may be incomplete. The proposer to cover the position vis-à-vis children of the boat people, provided they were recommended by a proper or creditable agency would mean that their naturalisation be automatic or that the Minister would establish contact with the authority of the country from which the child had come to have the naturalisation process implemented. It is relevant to any of the Third World areas and their inhabitants. That was the intent of the amendment though it does not expressly say so.
I do not propose to accept this amendment. In the first place, it seems to me that it is technically defective, as Senator Harte has already stated. While the amendment seeks to enable the Adoption Board to make adoption orders in respect of foreign children brought into this country, the text refers to children in respect of whom the Adoption Board have already made adoption orders. Leaving aside the technical defects, I should like to point out to the House that, contrary to popular belief, foreign children brought into this country can be adopted under the current adoption legislation. The requirements of the law in relation to foreign children are exactly the same as in relation to Irish children, namely, the child must either be an orphan or have been born outside wedlock. The same provisions in relation to parents' consent apply. The provisions of this Bill will also apply to foreign children brought here on exactly the same terms in exactly the same circumstances as they apply to Irish children. Some adoptive parents and others have suggested that it should be made easier to adopt foreign children, that the various conditions and requirements contained in the Adoption Acts should not apply. There are arguments for and against this. Indeed, the whole question of the adoption of foreign children requires very careful consideration. I will be addressing this issue in the context of the comprehensive Adoption Bill which I intend to bring forward later. In the meantime, I do not consider that this matter should be dealt with in this Bill. I do not propose to accept this amendment.
The amendment is not being pressed anyway; I realise it is defective. When the Minister introduces the more comprehensive legislation will he have regard to the question of the automatic naturalisation of the children, once adoption is accepted by the courts and all the court procedures dealt with?
We shall consider all aspects of the adoption procedures when we bring forward this comprehensive Bill dealing with adoption. In regard to the Children Bill and other Bills which we will introduce I am not in a position to give any definite dates, but it is our intention to introduce a comprehensive adoption Bill.
Acting Chairman
Is amendment No. 15 withdrawn?
Yes.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 be deleted".
I am somewhat concerned that it is proposed to simply delete the amendment of section 10 of the Principal Act because section 10 of the Principal Act determines the children who are eligible for adoption. That presumably, was the reason for the inclusion of section 6 in the Bill, as published, where it broadens the category of children. It repeated the description of "illegitimate" or "an orphan" which is what Senator Fennell quite rightly wanted to amend. It is a technical problem. I would be worried at a simple deletion.
Perhaps the problem can be met in section 3 (1) where the court is given power, if it is satisfied and has due regard to the various factors, to make an order authorising the board. If there were to be included there a phrase "notwithstanding the provision of section 10 of the Principal Act", or some reference to section 10, so that it is clear that the court can authorise — even though the child would not be deemed under section 10 of the Principal Act to be eligible for adoption. Otherwise there could be a problem. The Adoption Board can make an adoption order only if the child is eligible for adoption. Although the procedure of section 3 enables the court to direct the Adoption Board it would be safer and more prudent to have some reference to section 10 of the Principal Act in section 3 or some such amendment. Otherwise I would be a bit concerned.
I should inform Senator Robinson that it is proposed in subsection (2), line 22, after the word "shall" to insert "notwithstanding anything in section 10 of the Principal Act." That amendment was agreed yesterday. In relation to the deletion we have taken this matter up with the parliamentary draftsman. He advises that it is quite satisfactory.
Question put and agreed to.
SECTION 7.
Acting Chairman
Amendments Nos. 16 and 17 may be discussed together.
I move amendment No. 16:
In page 6, before section 7, to insert a new section as follows:
"—.—Section 11 (1) of the Principal Act is hereby amended by the insertion of the following sentence after paragraph (c):
‘in exceptional circumstances the Board may on the application of a married but separated person, desiring to adopt a child who would benefit from it, make an order for the adoption of the child by that person.'.".
Like Senator O'Toole, I am aware of some such cases. I am thinking of the case of a married couple who decide they want to adopt a child. They go through a certain procedure but before the procedure is finalised or the court has arrived at a final decision — the couple separate and the wife takes the child, raises it, and gives it as much security as possible. Because she has not a spouse she runs into all sorts of difficulties and covers much ground in trying to have the position rectified. There is no provision in any existing legislation to allow for the full adoption of such a child in those circumstances. Let us suppose that the child of an unmarried mother is to be adopted. That unmarried mother would be more than anxious and would go through all the procedures trying to have that separated person hold on to the child still in her possession. That separated spouse may have reared the child from the time it was, say, a couple of months old up to, say, five, six or seven years of age. She will have gone through many procedures with the active support of the unmarried mother from whom she was adopting the child to have the adoption finalised. That is one aspect of the case. Another aspect is that of a widow who may be in a similar position who may have been in the process of trying to adopt a child before her husband died; they may have begun the relevant proceedings but she runs into difficulties after her husband's death. There is a similarity between the two sets of circumstances. This is obvious since the two amendments are also being discussed together.
I appreciate that it may not be truly in the context of this Bill and its purposes but I know the circumstances of the case which motivated Senator O'Toole to put down this amendment. No doubt there are instances where there would be a need to look at the legislation broadly and perhaps find a way out of this difficulty. Let us take the example cited by Senator Harte of a couple going through the necessary procedures for adoption and, prior to their finalisation, one of them dies or they are separated, the marriage breaks up. That leaves the other adoptive parent in a position in which he or she cannot finalise the adoption order. I can think of one particular case which, by any criterion, is very unfortunate and regrettable. In that instance the prospective adoptive mother cannot finalise the legal adoption of the child she believed she was going to have prior to her husband having deserted her. I support this amendment. I accept that it may be difficult to have it accepted in this Bill. It is one that should be borne in mind in any general reform of the adoption law.
I too should like to support the principle and purpose of this amendment to enable a person who was married but is separated at the time of application, or separated in the course of an application before an adoption order is made, to be eligible to adopt a child. It is strange to see how the attitude towards who is eligible to adopt has changed. For example, a widow was considered to be eligible to adopt. Then — I think it was under the 1964 Act — we made a big leap forward and decided that widowers could be eligible but only if they had a dependent child already residing with them. In other words, men were not really necessarily good parents unless they proved it by having a dependent child with them: it was a sort of half-way step towards it.
I was involved in a constitutional case which challenged the requirement to have a dependent child in circumstances in which a child had been placed for adoption with a married couple. The consents had all been forthcoming from the natural mother. The Adoption Board social worker had visited. They were about to go to the Adoption Board for the finalising of the procedure when the wife was killed in a tragic car accident. The social worker came almost immediately and said: "Give us back the child". The unfortunate prospective adoptive father suffered two traumatic experiences — the loss of his wife and the attempt to take the child away. He took a court action instead. In the judgment in that case Mr. Justice McMahon examined very carefully the parenting role of fathers and concluded, both on the evidence and on his assessment of the circumstances, that a widower was just as potentially eligible as a widow, or indeed a single natural parent, to be the parent of a child; that in this circumstance — again the mother knowing the situation — she was consenting to the child being adopted by the widower and the adoption order went through.
It is time we moved a step further. It is time we recognised that a separated parent — particularly if the child had been placed with the couple before the separation and was totally bonded to that parent — is as good a prospective adoptive parent as any other category, such as a widower or a widow. It is extremely important that the law does not obstruct the strengthening and bonding of these relationships, that there is a discretion. It would still be a matter which would be carefully weighed up by the Adoption Board and perhaps still, in reality, be a little more difficult for separated persons, even if the law said they would be eligible, to actually succeed in adopting.
We all know of circumstances in which it would be desirable that an adoption order should be made and the only thing preventing it is the state of the law. Therefore, I support the amendment. In supporting it I wonder if we are being a little tolerant of the Minister's promise to introduce a general Adoption Bill or a reforming Adoption Bill in the future. The type of amendment that would remove the concept of illegitimacy from the adoption code is a drafting one. Indeed, when Senator Fennell as Minister of State was steering the Status of Children Bill through the Seanad, on behalf of the Government she brought forward something in excess of 90 amendments to that Bill, as introduced, in order to accept and carry through the principle which is fundamental to the Status of Children Bill.
Since this Bill has been introduced in the Seanad and we are prepared to give the time for its further consideration, I wonder whether it would not be better to deal with some of these issues in the context of the Bill before the House rather than wait for some future time when another Adoption Bill may be introduced. As the Minister said, he cannot give any indication of when that might be. Clearly it is not on the current list of proposed legislation which will have priority. There is a lot to be said for dealing with family law matters in the context of a Bill that is actually before the House, knowing the way these things operate and the priority ordering of legislation. I support the principle and wonder whether it is something which could be dealt with in the context of this Bill.
I am aware of Senator Harte's and Senator O'Toole representations on behalf of a particular case, which is a very difficult one. I expect other Senators may not be aware of the details. I am not in a position to refer to them here.
To deal with some points made by Senator Harte under the present law where a couple are in the process of adopting a child and the husband dies his widow may complete the adoption. Perhaps something similar could be introduced in relation to a couple who separate while an adoption application is being examined. We will examine this in the context of the comprehensive Bill.
Because this Bill deals with such an important constitutional issue the Government feel that no other issue, however worthy, should be added at this stage which could affect its provisions.
In the circumstances, I do not propose to accept this amendment. The Senator has been moved, as I have been, by the unfortunate position of a married woman referred to during the Second Stage debate here who has a child in her care but who is unable to adopt that child because she is separated from her husband. The Review Committee on Adoption Services recommended that adoption by separated parents should no longer be disallowed although they envisaged such arrangements being approved only in exceptional circumstances.
I am sympathetically disposed to the amendment to the legislation to allow the Adoption Board more flexibility in deciding upon the eligibility of persons to adopt. However, the Bill now before the House deals only with the eligibility of children for adoption. The Bill touches on the very sensitive matters of the constitutional rights of parents. For that reason, after very careful consideration the Government do not consider it desirable that any other issue, however deserving, should be dealt with in this Bill.
As the Minister indicated in replying to the Second Stage debate, he intends bringing forward a comprehensive Adoption Bill, to which I have already referred to, to give effect to various reforms recommended by the Review Committee on Adoption Services.
I can assure Senators that I will bear in mind circumstances such as those which prompted this amendment in the preparation of that later Bill. However sensitive and sympathetic the Minister and I are to the unfortunate circumstances of the case brought to our attention, we cannot make provision for such circumstances at present. We are anxious go get this Bill through. In a more comprehensive Bill it would be more satisfactory to extend the provisions and include other conditions in relation to these types of circumstances.
I thank the Minister for his observations. I am glad to have been given an insight into his thinking on the matter. Whether we like it or not we must have regard to such circumstances. There may have been an emotional set of relationships obtaining in a family home for say, seven, eight or nine years with an inherent degree of uncertainty. No matter which public representative or adviser you consult all they can say is: I have raised the matter, I have followed it up as much as possible but we must await the more comprehensive legislation. I am getting a bit long in the tooth myself and do not know whether I will be here whenever the comprehensive legislation is introduced. I thank the Minister for his remarks anyway.
Amendment, by leave, withdrawn.
Amendment No. 17 not moved.
Government amendment No. 18:
In page 6, lines 45 to 48, and in page 7, lines 1 to 6, to delete subsection (3).
This amendment which proposes the deletion of the definition of a child of married parents is consequential on the enactment of the Status of Children Act, 1987. Section 4 of that Act specifies the manner in which reference to persons whose parents have or have not married each other are to be interpreted in that Act and in all future Acts of the Oireachtas. The phrase "child of married parents" used only once in the Bill in section 7 (1) must be interpreted in accordance with section 4 of the Status of Children Act. Therefore it is not necessary to provide a definition of the phrase in this Bill.
Amendment agreed to.
Section 7, as amended, agreed to.
NEW SECTION.
I move amendment No. 19:
In page 7, before section 8, to insert a new section as follows:
8.—The First Schedule to the Principal Act is hereby amended by the substitution of the following paragraph for paragraph 14:
‘14. The Board shall cause to be published in Iris Oifigiúil a notice in the prescribed form of every registration and cancellation of registration in the Adoption Societies Register.’.”.
This is an amendment to insert a new section which would amend the First Schedule to the 1952 Act by removing the requirement on the Adoption Board to publish adoption orders in Iris Oifigiúil. The publication of these orders has caused considerable distress to a number of adoptive parents and their children. The removal of that requirement for publication is recommended in the report of the Review Committee on Adoption Services, page 91 of the report at paragraphs 13.2 and 13.3. I might quote them as follows:
Section 14 (1) of the first schedule to the Adoption Act, 1952 requires the Adoption Board to publish in the State publication Iris Oifigiúil a notice of every adoption order made. The notice, which is inserted in the form prescribed in the Adoption Rules of 1976 (Form 11), includes the christian name(s) of the adopted child and the name(s) and address of the adopter(s).
Various submissions made to us called for the removal of this requirement. We are fully in agreement with this view. Quite apart from being inconsistent with the normally confidential nature of the adoption process, the provision discriminates against both adopter and adoptee in that it sets aside from all other parents and children whose names are not compulsorily published upon the birth of a child. We consider that publication of this notice serves no useful purpose.
Accordingly, we recommend that the law should no longer require that notice of the making of an adoption order be published in Iris Oifigiúil.
Apart from the invasion of privacy, or the singling out of adoptive parents and their child in this way, causing them worry, there is a real concern that the details published in Iris Oifigiúil can lead to a natural parent tracing a child. We could, as other jurisdictions have done, as a matter of policy, devise certain circumstances but we would need to do it with extreme care, with safeguards and proper regard for the rights of the child and of the natural parents themselves. In this jurisdiction — really because the number of adoption orders is relatively small and there are certain necessary facts which would be known, particularly to the natural mother but possibly also to a natural father — is that it is possible to trace a child who has been adopted.
It is possible to trace a child who has been adopted and this could have traumatic consequences both for the child and the adoptive parents and is not something which can be stood over. If the Minister is prepared to accept this amendment, as I certainly hope he might — because it really is only a specific deletion of a provision of the 1952 Schedule which is recommended by the report of the Adoption Society — there is another matter, which I do not think is a matter for legislation, of simply carrying through the principle so that the copies of Iris Oifigiúil which have carried these details in the past might be in some way restrained in their access, for example——
Censored.
Yes, in effect. These publications are available in public libraries. I am not sure if that is impossible but nevertheless I do not think that the future publication of adoption orders should be an obligation on the Adoption Board and I hope the Minister will accept the amendment.
While this amendment is not directly relevant to the primary objective of extending the categories of children who may be adopted, it is a desirable change and one I support. Over the years various calls have been made for the removal of the requirement on the Adoption Board to publish in Iris Oifigiúil a notice of the making of each adoption order. It has been argued that this provision breaches the confidential nature of the adoption process and sets both adopters and adoptees apart from all other parents and children whose names do not have to be made publicly available on the birth of a child.
The Review Committee on Adoptive Services recommended that this requirement be removed. I accept that recommendation and I support this amendment. I wish to thank Senator Mary Robinson for placing that amendment before the House. I obtain Iris Oifigiúil on a regular basis and I have noted with dismay the publication of what I regard as very personal confidential information. I am very pleased to be in a position to support the amendment to this Bill to ensure that in the future this list will not appear. We have no control, and we cannot exercise any control, in relation to issues which have been published. I accept that they would be a source of tracing identifiable names by somebody who would be involved but I am afraid that with the dissemination of the information and the effect of it, there is no way I could possibly give any commitment or get involved in that area. All we can do for future children who will be adopted is ensure that their names will not, as a result of this amendment, appear in Iris Oifigiúil.
I thank the Minister for accepting the amendment. I am very glad that it will be included in the text of the Bill. I can see the practical difficulties of giving any guarantee. The orders are usually published in a list and I am not sure whether it might be possible to have that list withdrawn, for example, from public libraries. There are not that many venues where back issues of Iris Oifigiúil are available. It is not a matter that can be the subject of an amendment but it would be desirable, now that we fully accept the principle of not publishing those details because of the risk it exposes the adoptive parents and children to, that some thought might be given to quietly seeking ways of limiting the availability of that section of those copies of Iris Oifigiúil. If it is not possible so be it but it is a matter that should be given some thought.
There is legal requirement to have that information published in Irish Oifigiúil and we have no power or authority to have legislation made retrospective. In the circumstances, if someone is seeking this information so many people, including public representatives, obtain Iris Oifigiúil that it would be impossible to trace all the copies I again thank Senator Robinson for her amendment, which we fully support.
Amendment agreed to.
Section 8 agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take the next Stage?
I should prefer the next Stage to be taken later because there are some further observations I would like to make on some of the points I brought up.
I agree. I would like an opportunity to reflect on some of the matters and perhaps to come in with amendments on Report Stage. It could be taken quite soon.
Could we fix a provisional date?
Two weeks time.
Naturally we are very anxious to have this Bill enacted. Again I wish to express my sincere appreciation to the Members of the Seanad for a very worthwhile debate and discussion. It is very intricate legislation but the shared knowledge of the Members in this House, will ensure that when the Bill passes through the Seanad it will speedily go through the Dáil because we have given such thorough consideration to it here. I again express to the Cathaoirleach and the Seanad my sincere appreciation on behalf of the Minister and the Department for the very worthwhile debate we had here during the past two days.
Report Stage ordered for Thursday, 12 May 1988.
The Seanad adjourned at 3.40 p.m. until 2.30 p.m. on Wednesday, 4 May 1988.