Before we proceed with amendment No. 1, I should like to remind the House that the proposer of an amendment may close the debate on that amendment but no other Senator may speak more than once on each amendment. In addition, amendment No. 7 has been ruled out of order as it involves a potential charge upon revenue.
Adoption (No. 2) Bill, 1987: Report and Final Stages.
An Leas-Chathaoirleach
I move amendment No. 1:
In page 3, between lines 34 and 35, to insert the following:
"( ) Where an order is made under section 3 (1) and an appeal against the order is not brought, or the order is upheld in the Supreme Court, and where the Board is satisfied that it would not be proper, having regard to the Acts to make an Adoption Order in favour of the persons in whose favour the order is made, the Board with the consent of the Court may, if it sees fit, make an Adoption Order in relation to the child to whom the order under section 3 (1) relates, in favour of such other persons as the Board, having regard to the Acts, sees fit.".
I have introduced these amendments because a number of people who deal with children are concerned about the processes contained in the Bill. Of course we all welcome the Bill. We welcome the fact that we have finally got around to the later Stages of it. We look forward to the Bill being implemented and, I hope, to its being successfully implemented without any constitutional problems because it is an extremely important Bill. All we want to do is contribute to making the Bill successful.
The point has been made to me with some vigour that all of the procedures which the Bill lays down, necessary and proper procedures given the circumstances envisaged, have been met. On the rare occasions when, all those procedures having been fulfilled, for some reason the couple for whom the adoption order is being made cannot take on the responsibility of adopting the child, or for some reason the authorities satisfy a court that that cannot be done, should it always be necessary to go back over the entirety of that procedure again? If a court is satisfied that the child is not going to be looked after by his or her natural parents, taking into account the circumstances as outlined in the Bill, should we have to insist in every circircumstance that the whole procedure should be repeated again and again?
This Bill is not at its final Stage in the Oireachtas so the precise nature of the wording of my amendment is not critical. The Minister has many devices open to him and should think about this issue in the other House. What I want to talk about here is not necessarily the detail of the proposal I make here but whether it should always be absolutely insisted upon that the detailed procedures should be gone through, even in the exceptional and obviously rare circumstances where some hitch develops at a very late stage. For instance, it would be particularly difficult on the natural parents and the child if they have already gone through one traumatic court investigation to have to go through the same procedure again. There are humanitarian reasons for believing that it should not be necessary to do so again and again.
The nature and intent of my amendment is to avoid having repetitious and painful detailed proceedings carried through on the rare occasions when, perhaps, something fails to materialise at the end of this long process. I move the amendment to take into account the rare occasions when the procedures do not work out in detail and to avoid great pain and great suffering. While it is quite true to say that the interests of the child must be paramount, that does not for one second deny the possibility that there may well be conflicts and that there may well be parents who will feel aggrieved at the end of these procedures and feel that in injustice has been done to them.
It is quite likely that the parents of 90 per cent of the children who will benefit from this legislation will probably have abandoned them but it is also likely and possible that there will be occasions when there is a contest and when very difficult and painful procedures have to be gone through. If, at the end of those difficult and painful procedures, the whole matter fails to be completed because of some circumstance or other, for instance, the accidental death of the adoptive parents, it should be possible to by-pass the unnecessary repetition of all these painful procedures. I invite the Minister to explain to the House why, in principle at least, some sort of a procedure similar to what I propose should not be introduced. If he is prepared to concede anything, he should think about introducing an amendment in the other House to avoid unnecessary suffering both by the children and the natural parents.
An Leas-Chathaoirleach
Is the amendment seconded?
Yes. I would like to second the amendment. I agree very much with what Senator Ryan has said. I recall the debate on the amendment earlier on during this discussion when my distinguished colleague, Senator Robinson, spoke on this amendment and, again very much in the spirit of what Senator Ryan has said, spoke about the principle of the Bill, although she had some difficulty with the precise wording. I am sure that the Minister's advisers will consult the record and see what Senator Robinson said on that occasion. It may very well be that some accommodation can be made in the light of the principles that Senator Ryan has illuminated for us.
As I understand it what he is talking about is a very compassionate thing. He wishes to limit the delays which have a very human impact on the adoptive family and also possibly on the child. I would say to the Minister that I understand that limbo has been virtually abolished as a theological concept. What I understand Senator Ryan to be attempting to do in this amendment is to limit limbo under the Adoption Acts. I am sure the Minister will consider this because it is a Bill that has been widely welcomed. It is an attempt by the Government to face a very important issue that affects families.
I might, perhaps with the indulgence of the Leas-Chathaoirleach, allow myself one small comment about the importance of this Bill. The Minister will be aware that we have had occasional spats on the Order of Business which have been very widely reported. I remember the last time this Bill was discussed there was very significant reporting of light-hearted events but when a few of us sat here throughout the day putting down amendments and attempting to address the family, which is an important Irish concept, there was no member of the press present and no reports existed. This was drawn to the attention of the House. It is rather a pity that this very important debate should be neglected in this way. I hope the Minister will not take from that that we in the Chamber take the view that the bill is unimportant. We regard it as very important and we welcome its positive provisions.
I would like to speak briefly on this matter. Our objective in contributing to this debate is to try to ensure that as much as possible that is feasible is written into the Bill and that as many as possible of this group of children who have been neglected for so long will find suitable homes subsequent to the passing of this legislation. I support Senator Ryan but I am not quite sure what kind of circumstance he is talking about. I would probably be a little bit cautious about jumping over from one set of prospective adoptive parents, those who make the application and go through the court procedure, to another. According to the conditions laid down there would have to be 12 months of fostering by any adoptive parents and I am not sure how this would be coped with.
I sympathise with the Senator's objective of reducing time and bureaucracy and the limbo situation but I am not quite sure exactly what kind of rare circumstances he envisages. Perhaps he is thinking along the lines of Senator O'Toole's amendment on Committee Stage in which he referred to a couple who wanted to adopt a child but the marriage broke up before the final papers were signed. The amendment by Senator O'Toole was discussed and I think it was withdrawn. The woman in the case we are speaking of now is no longer eligible to adopt.
While I appreciate the points made by the Senators I do not intend to accept this amendment, mainly for the reasons outlined during Committee Stage of the debate here. The amendment envisages a situation where between the time the High Court authorises the Adoption Board to make an adoption order and the time the board sits to make the order some problem arises in relation to the proposed adopters that is so serious that the board would find itself unable to make the order. What Senators Ryan and Norris are suggesting is that in such a case it would be possible for another couple to apply to adopt by making a special short-cut application to the High Court. I doubt that such a situation would arise in practice and in fact it has never arisen in the case of the broadly similar procedure which exists under section 3 of the Adoption Act, 1974. However, even if such a remote possibility were to become a reality is seems that the short circuit procedure proposed in the amendment would neither be practicable nor desirable from the child's point of view. It must be borne in mind that the child involved will have lived with the first couple for at least 12 months and possibly much longer. He will have bonded with them and it might be some considerable time before he could develop emotional ties with a different couple to such an extent that he could be successfully adopted. I appreciate the Senators' concern that the child should have a permanent stable environment in which to grow up but I feel that his proposal might not be in the best interests of the child or the adopters in the long term. I think it would be far better if the Bill were to be left unchanged at this point and if the child were to live with the second couple for a year or more. This would allow the child an opportunity to settle into his new home and would give some time to all concerned to assess whether his adoption by the second couple would be in his best interests. If at that stage adoption seemed to be appropriate the second couple could make a fresh application to the High Court. However, this need not unduly delay matters as the court would have the benefit of its previous consideration of the decision of the child and the natural parents.
What persuades me more than the Minister's eloquence is the reference to section 3 of the Adoption Act, 1974, and the fact that problems have not arisen there. The pure practicality of that argument is what impresses me. I still believe that in the interests of the natural parents, and indeed of the child, the Minister should at least think about whether what I suggest is possible. I accept that it is necessary, and I accept the reasoning behind the necessity, for the child to have lived with the adoptive parents under the circumstances for a reasonable period of time — 12 months is stated in the Bill — but it seems quite possible to build that proviso in and not necessitate a return to the courts because of some tragedy or some circumstance such as the Minister envisaged in his reply to Committee Stage about the couple being killed in an accident. We should try to envisage these circumstances. Given the fact that the Minister, on the evidence presented, said that these things are unlikely to happen I am not going to start an argument about it, but it is a matter that is worth pursuing. I sincerely hope that at some stage in the future there will not be a tragedy in which a poor child has to go through court procedures a second time.
I do not necessarily agree that the fact that the court has investigated the circumstances of the natural parents once will guarantee that it will not feel obliged to go through the whole procedure again. I am not an expert on court procedures but I would have thought that evidence in court would have to be proven on each separate occasion, that they could not simply refer to the previous records but that they would have to go through the whole procedure again. I am concerned, not necessarily that there should not be a court appearance but that the detailed assessment of people's feelings and people's capacities that was carried out once, and we are satisfied was carried out properly, should not necessarily have to be done again. I would ask the Minister to think about the issue at some stage during the future progress of the Bill.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 2 and 3 are related and may be discussed together.
I move amendment No. 2.
In page 4, between lines 39 and 40, to insert "and".
I have Senator Robinson's approval to move these amendments. Again, they relate to an amendment I introduced on Committee Stage. What has happened is that Senator Robinson with the considerable, to say the least, skills that she has in the area of law has attempted to meet the objective I was seeking to meet but in a way that she felt was consistent with the provisions of the Bill and indeed with the constitutional protections afforded to children and to the family. The substantial amendment is amendment No. 3 which reads:
"or, as an alternative to (I), (II) and (III) above — (IV) where the parents of the child consent to an order being made under section 3 (1) on the basis that they are unable to carry out their duty as parents towards the child and where the Court is satisfied that the parents are properly informed as to the meaning of the consent".
It is an attempt to make provision for adoption of children whose parents are married. I appeal to all Members of this House to stop using the words legitimate or illegitimate. The terminology in the law now is children whose parents are married or children whose parents are not married. We should give an example in this House and stop using words like legitimate and illegitimate.
For children whose parents are married and who consent to the adoption it seems we should not have to go through all the similar procedures of investigating people's circumstances and so on. If, for instance, a couple are prepared to consent to an adoption then they are going to have to go into court and prove that they are unfit to be parents. We should not force people to go through that. I read the Committee Stage debate in which Senators expressed concern that some people might not understand the consent they were giving. I read the arguments but I still think that circumstances could be envisaged, and they were envisaged quite well on Committee Stage, where a couple might wish to have a child adopted and might feel that adoption was in the child's best interest. In that circumstance we should make provision for adoption by consent. It is, after all, the normal method of adoption where the mother is not married. I do not know why we cannot envisage a similar form of consent where the parents of a child are married. It would be quite unnecessary to go through all of the rigours of a detailed investigation where the parents are prepared to consent to the adoption. I do not understand why we cannot allow adoption by consent in the obviously limited circumstances where a married couple approve of their child being adopted for one reason or another.
This is an amendment that deserves to be taken seriously and deserves to be inserted into the Bill to minimise the pain of some people who will otherwise have to go through particularly painful circumstances. They will be cross-examined and scrutinised in court and have all sorts of things about themselves discussed. If they wish to have the child adopted they will have to give the worst possible image of themselves to a court in order to ensure that the child will be adopted. I do not think we should presume that other people are different from ourselves. If people come to a decision that they wish to have a child adopted it is probably largely because they are concerned about the welfare of the child and where that happens we should allow it to be done. We rely on our courts for many things and we can rely on them not to allow people to be induced or coerced into giving consent. Therefore I appeal to the Minister to consider this amendment. It is better written, as one would expect from Senator Robinson, than my amendent on Committee Stage. It incorporates what I envisaged and I appeal to the Minister to accept it.
An Leas-Chathaoirleach
Is the amendment seconded?
Yes. I formally second this amendment. First I wish to set the record straight. I apologise to the Minister because in seconding Senator Brendan Ryan's previous amendment, amendment No. 1, I referred to the fact that Senator Mary Robinson had given a very illuminating discourse on this, addressing the principle, suggesting rewordings and so on. I was incorrect. In fact, it was the amendment we are now discussing that Senator Robinson spoke about at some length. She has reworded this very carefully.
I would like to strongly support it because I feel the procedures of investigation for a married couple who wish to allow their child to be adopted could be humiliating and degrading and could subject those parents to unnecessary distress. I would like to echo strongly what has been said today by Senator Brendan Ryan, and in the previous discussion by Senator Robinson, that it can be an act of compassion, an act of love and an act of generosity on the part of the married parents to allow their child to be given the chance of a better life.
One of the examples that was brought to the attention of the House the last day, which has a certain cogency, was parents who find themselves in receipt of a HIV positive anti-body test. It would be a responsible act on the part of the parents facing this unfortunate situation that they should make the child of their union available for adoption, an act not of callousness but of love. The possibility was raised that some financial inducement might be involved in persuading parents to surrender a child for adoption. I will not rehearse the arguments. I am sure the Minister's and his advisers will consult the record of the House and see how ably this was disposed of during that debate.
Finally, I would like to comment on the final phrase: "the court is satisfied that the parents are properly informed as to the meaning of the consent". As a loyal and lawabiding citizen who respects the courts of this country, I am quite happy that the courts are capable of deciding in this case, as they already are empowered in other matters, whether adult citizens of this State are capable of giving consent. Clearly if the parents are, for example, mentally handicapped — which was one of the instances given — the court would be able in its wisdom to decide the capacity of such parents to give consent I am happy to rely on the wisdom and judgment of the courts in this matter. I would strongly urge the Minister to consider this amendment.
I support this amendment and refer to the very worthwhile debate we had on this matter on Committee Stage. It is important that we look at this area and not dismiss it. Neither should we cloud the issue by saying that people who make a positive decision about adoption are doing it for ulterior motives. We do not find many unmarried mothers who are given monetary assistance, or tempted by money, to give away their children. Unmarried mothers are very reluctant to have their children adopted and fewer unmarried mothers are giving up their children for adoption. I do not believe we will see a very large number of married parents wanting to have their children adopted, but where there is a case it should be possible for them to do so. There is a very strong feeling among the adoption agencies and single parent agencies on this matter, and they were very pleased that an amendment was being tabled at this stage of the debate. I support this amendment and ask the Minister to give it serious consideration.
When we discussed it before — and the Minister of State was here for that debate — he implied that there was such strong obligations on parents under the Constitution that this move could not even be countenanced. That is very regrettable and to an extent his reply was rather censorious. I would like to think that we would have a more open mind about it and that we could consider this case on its merits.
I understand the points made by the Senators. I would agree with Senator Fennell that unmarried mothers or parents of children for adoption would be very sensitive, and that it would be extremely rare that parents would wish to part with their child for a financial consideration, or for many other reasons.
I do not propose to accept this amendment — and Senator Fennell did touch on the reason — for the reason put forward by the Minister of State, Deputy Leyden. What the Senators are suggesting is that it should be possible for parents who feel that they are unable to care for their children to decide that the children should be adopted and that the High Court should accept this decision without question provided only that it is satisfied that the parents understand the implications of what they are doing.
I would be totally opposed to such a development which I believe could have grave consequences for the stability of the family and the security of children. In any event, I believe it would not be constitutionally possible to enact such legislation. This belief stems from the guarantees to protect the family and to respect the rights of parents contained in Articles 41 and 42 of the Constitution.
The Constitution speaks of the "inalienable right and duty of parents". One of their prime duties is to care for and protect their children. If they are unable or unfit to care for their children, the Constitution permits the State to supply the place of the parents. That is the purpose of the present Bill. However, the Constitution does not allow parents to simply walk away from their responsibilities.
The Constitution describes the duty of parents as being inalienable, meaning that which cannot be given away. Thus, it is not constitutionally possible for parents to surrender their parental duties and place their children for adoption. In order to introduce such legislation it would be necessary to amend the Articles of the Constitution which relate to the family. This would require a referendum and it would be for the people to decide the question. My own view is that any such change in the Constitution would not win the support of the majority of the Irish people. That is not to say that I, or the majority of the Irish people, are indifferent or do not care about children in unhappy families. On the contrary. The whole thrust of our child care services is to help and support such families but I, and many others, would need a lot more convincing evidence before accepting that the adoption of children of married parents, with their consent, should be permitted.
On the evidence of the past 20 years, if I have to choose between Senator Robinson and the Minister's advisers as to the constitutionality of something, Senator Robinson's record is good enough for me. If Senator Robinson assures me that what she has in this amendment is in conformity with the Constitution, then I can only argue from authority on this occasion, and I will accept Senator Robinson's authority. That is the only reply I can give the Minister on the constitutional question. The author of this amendment is one of the country's most eminent lawyers. Therefore, I would have to accept that there is a dispute among experts as to whether it is constitutional, and indeed, there is a dispute among experts as to whether this Bill is constitutional. This is regrettable.
The court procedures envisaged for parents who would be in the category covered by this amendment would be very peculiar. The parents will want to have the child adopted, but the court will have to be satisfied about a lot of things. We could have a strange position where parents might not want to keep the children, but the courts might not be satisfied that they had abandoned the children under the meaning of the Bill, and we could have children stuck in a kind of limbo. It is a peculiar concept of supporting the family to believe that we can coerce parents, who believe they are not able to do the job properly, to be good parents.
I would have thought the most serious argument against our amendment would be the possibility of the offering of inducements, that is where we would have to rely on the courts to be satisfied that no such problem existed. The Minister is being excessively rigorous, excessively legalistic and excessively patronising in the idea that we need these constitutional barriers or otherwise we might have a flood of unworthy parents abandoning their children. My own feeling, for what it is worth, is that there are virtually no married couples in this country who would freely consent to having their children adopted. I am convinced that there are very few single women who are pregnant who would consent to having their children adopted if they felt that their income, career and position in their families were not threatened by their pregnancy. I doubt that there are that many what I would call free consents in the area of adoption. An enormous number of single mothers put children up for adoption for reasons that have very little to do with their own personal circumstances and an awful lot to do with extenal objective circumstances and the way they impact on them. If we are going to get involved in the question of consent, we are opening up a real can of worms.
This amendment is not something I thought up myself. It was put to me by people in the child care area as an important concern. They put it to me that there would be circumstances where parents would wish, for the children's sake and for other reasons, to have a child adopted and that they should not have to go through a court procedure of satisfying the court that they are somehow unfit, unworthy, etc. One of the extraordinary qualities a parent can have is the ability to make an enormous sacrifice for the sake of a child. Single mothers do it all the time, and it is possible to envisage married couples making a similar sacrifice. Therefore, it seems that we are becoming a little inflexible — although this is not a word I would associate with the present Minister — in these areas. I think there is a good case for allowing adoption by consent.
I do not believe the constitutional argument simply because I have the authority of an eminent constitutional lawyer. The Minister is, to say the least, being a little unhelpful. Parents who are married and who want to have their children adopted deserve our support, understanding and the compassion of being allowed to do that by a procedure which we think is fair and reasonable but does not put them through unnecessary pain and suffering. The procedures in the Bill for those parents are unnecessarily painful and difficult. Therefore, I must insist on pressing this amendment.
Amendment No. 2 simply inserts the word "and", Senator Robinson, being the extremely precise lawyer she is, I am not entirely satisfied that the first amendment is only envisaged because of amendment No. 3 but I am not going to make an issue of it. Amendment No. 3 is the critical one. I have a funny feeling that amendment No. 2 might be necessary, even if amendment No. 3 is dropped. I put that to the Minister and his officials. Perhaps they might think about it.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 5, between lines 3 and 4, to insert the following:
"or, as an alternative to (I), (II) and (III) above——
(IV) where the parents of the child consent to an order being made under section 3 (1) on the basis that they are unable to carry out their duty as parents towards the child and where the Court is satisfied that the parents are properly informed as to the meaning of the consent,".
Amendment put.
The Seanad divided: Tá, 16; Níl, 17.
Tá
- Bradford, Paul.
- Bulbulia, Katharine.
- Cregan, Denis.
- Fennell, Nuala.
- Ferris, Michael.
- Harte, John.
- Kelleher, Peter.
- Loughrey, Joachim.
- McDonald, Charlie.
- Manning, Maurice.
- Norris, David.
- O'Shea, Brian.
- O'Toole, Joe.
- Reynolds, Gerry.
- Ross, Shane P.N.
- Ryan, Brendan.
Níl
- Bohan, Edward Joseph.
- Cassidy, Donie.
- Cullimore, Séamus.
- Fitzgerald, Tom.
- Hanafin, Des.
- Haughey, Seán F.
- Mulroy, Jímmy.
- O'Callaghan, Vivian.
- Ó Conchubhair, Nioclás.
- Hillery, Brian.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- McEllistrim, Tom.
- Mooney, Paschal.
- O'Toole, Martin J.
- Wallace, Mary.
Tellers: Tá, Senators Fennell and B. Ryan; Níl, Senators S. Haughey and M. O'Toole.
Amendment declared lost.
I move amendment No. 4:
In page 5, line 9, after "applicants" to insert:
", provided that no order under section 3 (1) shall be made solely because of the income and/or living circumstances of the parents of the child.".
This amendment was debated on Committee Stage. I was not present for the debate and that is why I introduced it again. I am very grateful to Senator Norris for standing in for me at short notice and without much assistance from me to introduce these amendments and to keep them alive.
I read the debate on this amendment, which is a very simple amendment, which says that no adoption order shall be made solely because of the income and/or living circumstances of the parents of the child. Because of the way the world is developing, this amendment is becoming more and more necessary. Twenty years ago when I first got involved in street politics, the idea that poor people were culpable because they were poor, or that poverty was primarily the fault of the individual, was a very unfashionable point of view. The world has shifted quite dramatically since then. There is an increasing body of opinion in all levels of society, most particularly embodied in the present British Prime Minister, prepared to tell people that essentially if they are poor it is their own fault and that there is no need for anybody who has any gumption, any backbone, etc., to be poor in an opportunistic society of the kind that is developing all over North America and Europe.
When those sorts of judgments are becoming fashionable, judgments which believe that poverty or consequential poor physical conditions are somehow something that people are responsible for, when we start to blame the poor for their poverty, a view that is taking hold in western society, it is easy to envisage circumstances in the future in which people will be deemed to be unfit and to have failed in their duties to their children because they are poor and because our society will take a view that if these people are poor then it is their own fault.
I could envisage — and I say this with complete conviction — circumstances in which, for instance, a man was made redundant because of an industrial dispute. It could easily be said that that person caused his own poverty, caused the family circumstances which perhaps necessitated a child being put into foster care and, since the person was in his middle forties and was unlikely to be employed again, it could cause a situation in which the neglect, so defined, would continue until the child was 18 years of age. There is no good reason for not clarifying for the courts the fact that what we mean in this legislation is not just people's income or their housing conditions alone. Income and housing conditions are, of course, related to how people behave. Some people will be in very bad housing because of neglect. Some people will be badly off for reasons for which they are personally culpable. The idea that in any circumstances a child should be compulsorily put up for adoption, against the wishes of his or her parents, simply because the parents are poor is one that none of us would like to support.
It is not the politicians or the Members of this House or the other House who worry me. It is the perceptions which elevated members of the Judiciary can have — I will give a simple example of this — about what it is like to be poor. I remember Lord Lane, during the Birmingham Six appeal, making little of the discussions among the appellants about how they would get £1 together to pay a train fare. He could not envisage circumstances in which grown adults would worry about £1 because in his own life he had never been aware of an adult who had to worry about where he or she would get £1 from. There are problems of perception which have to do with people's life experiences, with their experiences of poverty, with their experiences of limited income, which can result in very subjective judgments about why people are poor.
It is necessary, therefore, to clarify for the courts that what we all envisage in this Bill is not simply poverty or poor living conditions. It goes much deeper. It has to do with judgments about the characters of the people, judgments about their record in terms of how they looked after their children, given the circumstances they were in. The income we give an unemployed couple to support a child is the sort of income which, in many cases, leaves the child less than well catered for. The income we give people to support children is wholly and grossly inadequate. We should make it perfectly clear to the courts that poverty, of itself, is not sufficient cause for having a child taken from his or her parents and compulsorily adopted. Neither are physical conditions.
I do not think that, simply because a travelling family live in appalling conditions that, of itself, would justify their children being taken from them. Many people in our society now say that the conditions in which our travelling community live are their own fault. I do not say this. I am sure the Minister does not and I hope Members of this House do not. It is an increasingly widely held view — a product entirely of prejudice — that travelling families could do better for themselves if they wished, could live in better housing if they wished and could have better living conditions for their children if they wished. If that sort of perception is abroad it is very easy to see that perception translated into judicial judgments about the living conditions of a travelling family and their children being taken from them and put into adoption simply because they are poor and because they are living on the side of the road.
I hope this is not what this Bill envisages. It should be made crystal clear in the Bill that that is not what is envisaged by the legislation. We should not leave any shadow of doubt here. We do not want any poor person to have his or her child removed from them simply because they are poor or because they live in bad housing. That is not the intention and it should not be open to that interpretation. The best way to eliminate the possibility of that interpretation is to accept this amendment.
I would like to second this amendment. I strongly support what Senator Brendan Ryan has said. Having heard him today, I am glad that I appear to have interpreted his intention correctly during the previous debate when I said I felt that the intention of Senator Ryan, in placing this amendment on the Order Paper, was to ensure that there should be no discrimination against citizens of this State on the basis of financial or class background. This is very important in the light, not just of the Constitution, but of the Constitution illuminated by the noble words of the Proclamation of Easter, 1916, which undertakes and states as an objective to cherish all the children of the nation equally.
I am not quite as uncritical an admirer of Pope John Paul II as many of the citizens of this State. I thought there was a certain ironic level in what he said in Bolivia the other day. He said, speaking to the poorest nation in South America, that he wished to encourage them to have more children because they should remember that children were guests at life's banquet. A banquet in Bolivia would be a pretty meagre thing for anybody to issue an invitation to. We, luckily, on this side of the world, as one of the most advantaged nations, should be thoroughly ashamed if we felt that there was any citizen who should be deprived under our law of any consideration simply by virtue of what we perceive as their retrograde economic circumstances.
Senator, could you get back a little closer to the amendment?
I will get back right on to it. I energetically support it. I know the Minister is a compassionate man and I am sure he will accept the sentiments behind the amendment. I very much hope that he will be able to accept the amendment in full.
We cannot stress strongly enough that this legislation should not be about creating a situation where the children of poor couples would be more likely to be adopted than any others. The truth is that we are very likely to see that. While we may not see it clearly or starkly in the context of income and material possessions, we will see it in the context of the kind of social problems that grow out of poverty, that grow out of too big a family, that grow out of the difficulties parents may have because they do not have enough money.
If we look at it like that there will be parents who, in the terms of the section dealing with conditions, for physical or moral reasons, have failed in their duty towards the child. Tracing back along the road we will find that the basic root cause would have been not enough money. We have a difficulty there and I am not sure how a court could deal with it in the context of the phrasing of the amendment before us. It might be possible to put an obligation on the health board to examine or establish the circumstances as they find them, to ensure that the provisions of this amendment do not apply. If we are realistic and we look at the cases of children in care at present who are legitimate and could be adopted, we will find that somewhere along the road, in their parents' lifetime, there was a problem with money. Unfortunately, we will see the children coming predominantly from one sector of society rather than the other.
In addressing this amendment I would like to express deep regret that I was not here at an earlier stage when an amendment in my name was moved. Unfortunately I was held up in court and could not be here.
This is an amendment which was considered to some extent on Committee Stage. The view taken by those of us who contributed was that there was no problem with the value in that none of us would wish the income or living circumstances of the parents to be a predominant consideration in the matter. As I read the section, as it stood initially and as now amended, it would not be possible for a court to make an order under section 3 solely or even predominantly because of the income and-or living circumstances of the parents of the child. That is not what the court is being required to do by section 3 as it stands. It is extremely important to emphasise the view of the House that that should not be a consideration.
I cannot support the amendment as such because it addresses a problem that is not there under the section. The court in deciding to make an order under section 3 has very strict criteria which must be complied with. It also has to have regard to the rights of all the parties concerned including the constitutional rights of the child and the best interests of the child. These are mandatory requirements, if I can put it that way, on the court. Perhaps of more significance is the approach of the adoption board before this Act comes into operation at all because until there has been a favourable decision of the board there will not be an application to the court under section 3. I would have more concern that the board would at all times have it in mind that the financial and personal circumstances of the parents must not be a consideration in saying: "All else considered this is a child for which an adoption order would be made but there are difficulties and therefore it is necessary to apply under this Act to the court".
It is appropriate to emphasise that because in the approach of the adoption board there is a concern that adoptive parents would be suitable adopters. It is very important that suitability would not lay emphasis on financial criteria or being able to provide a better physical home and surroundings and environment than either the single parent in present circumstances or now the possibility where married parents would have a child placed for adoption. Although I believe the point is worth emphasising, and I think the value is one that we all share, in my view it would not be possible, as the section stands, for the court in any circumstances to make an order solely or even predominantly because of the income and/or living standards of the people concerned. That is not the function of the court in relation to making an order and, therefore, I do not think the amendment addresses what would be the jurisdiction of the court. As I said on Committee Stage I accept the thrust behind it but I cannot support the amendment itself.
I understand the reasoning behind this amendment. I do not think the amendment is necessary and indeed this view has been supported by Senator Robinson both here this morning and on Committee Stage.
I would like to assure Senators Ryan, Norris and Fennell and the House that there is no question of children being taken away from their parents and adopted simply because their income or living conditions are considered inadequate. Section 3 of the Bill sets out the very strict criteria upon which the High Court must consider an application for adoption. Only where parents have totally failed to carry out their duties towards their children will adoption be considered. The fact that the parents' income or living conditions are regarded as inadequate would not of itself constitute evidence that the parents had failed in their duty. On the contrary, in the majority of cases where a family's income or living conditions fall below the norm the parents are not in any way culpable. I would not see it as necessary to have this amendment accepted.
It is not often that I find myself on a different side of the argument from Senator Robinson but so be it, I am. I do not perhaps have the same view of the courts that Senator Robinson has. As I read the parts of section 3 that have to do with the assessment of the parents I keep thinking in particular of members of the travelling community who perhaps settled in a house and then moved back out of the house; many members of the travelling community find living in houses quite inconsistent and incompatible with the way they want to live and tend not to be too enthusiastic about it. I think of all those who have proposed that the travellers' children should be taken from them. At least one member of the city council in my own city has publicly called for travellers to have their children taken from them. We have a not inconsiderable body of something close to racist hostility towards the travelling community. I am not persuaded that the Bill as it stands is incapable of the interpretation I would be afraid would be put on it. There is the provision in section 3 (1) (6) that:
and, if an application under paragraph (a) or (b) of this subsection is made and it is shown to the satisfaction of the Court—
(1) that—
(A) for a continuous period of not less than 12 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under section 2 (1) relates, for physical or moral reasons, have failed in their duty towards the child.
It appears to me that what you are judging there is that parents have for physical or moral reasons failed in their duty. What are physical and moral reasons? That is a matter, I think of interpretation. My feeling is not that the Minister or his officials or anybody in this House believes that physical or moral reasons mean that people are poor. My feeling is that public opinion and the opinion generally in our society is more hostile to people who are poor now than it was 20 years ago and I fear that in ten years' time it will be even more hostile. We have, for instance, a classic example in one of our newspapers today where the senior economic adviser to the Central Bank has come to the conclusion that a large proportion of unemployment in this country is voluntary. When you have eminent advisers to eminent institutions coming to conclusions like that that voluntary unemployment is effectively voluntary poverty, is effectively personally culpable unemployment, you are then getting involved in judgments about people's character. If you begin to have a society in which people are blamed for being unemployed then everything is blameworthy.
That brings us back to the position that it is possible to envisage in the way our society is shifting an interpretation being put on this which is quite different from the intention of this House in which the fact that people are unemployed or are living in a caravan on the side of the road will not be seen as an unfortunate external circumstance which we must not only regret but try to do something about, it will be seen as something for which people are responsible. When you have an eminent economist working for the Central Bank tell the world that he believes a large proportion of unemployment in this country is voluntary, than it is possible to envisage a lot of things. When so called experts can come to conclusions like that, how are we to be satisfied that the courts and judges who are products of our society and indeed, by the large, products of a particularly privileged part of our society, will not choose to make an interpretation like that? If one accepts that people are by and large personally responsible for their own circumstances or their own poverty then everything else about this Bill or about the provisions here could be based on that fact.
If a judge concludes that people by and large are culpable because they are poor or that their poverty is their own fault then everything else that needs to be done to satisfy the court about the appropriateness of making an adoption order can follow from that. I have said frequently that many of us in politics and outside who talk about poverty used to have a position where we held the moral high ground, where being on the side of the poor, being on the side of redistribution, being on the side of those things was regarded as morally acceptable whatever about the practicalities of it. That is shifting fast. The whole idea that concern for the less well off and concern for the underprivileged is the most morally acceptable position to have is rapidly becoming redundant. That is the way the world is shifting. If our world continues to shift like that then failure for physical or moral reasons in duty towards their children could easily be interpreted as simply being the fact that people are poor. That is why this amendment is necessary. It is necessary to clarify something in the light of the way public perception and public opinion is changing. Neither the Judiciary nor politics is immune to the way public thought changes and, therefore, I must move this amendment.
Senator Robinson rose.
Senator Robinson has spoken already. Only the proposer can speak a second time but if the Senator wants to make a point I will allow her.
I wanted to make what I think is a point of clarification to illustrate that I am not starry eyed about the Judiciary in any way and I accept that judges are as influenced by their culture and environment as the rest of us. If the thrust of the proposer's and Senator Ryan's argument is accepted, I still say that as it stands the amendment — I want to put this proposition because it might be a matter that could be considered when the Bill goes through the other House because it has been introduced in this House — would say that no order should be made under section 3(1) solely because of the income and/or living conditions of the parents of the child. There is almost a danger that you would say it could be made not solely but significantly whereas if the issue is accepted that there is concern about the meaning of the determination that for physical or moral reasons the parents have failed in their duty, which is a matter the court would have to be satisfied on, then it would be possible to have the essence of the amendment included in a qualification of physical or moral reasons in section 1 (A) so that it could read: "... the parents of the child to whom the declaration under section 2 (1) relates, for physical or moral reasons unrelated to the income and/or living circumstances of the parents of the child have failed in their duty towards the child." That would be a way of encapsulating the concern which I accept is a genuine concern. It is the amendment I am unhappy with.
Because we are introducing a new procedure for the court and we are using a new approach of failure for physical or moral reasons, it would not be either unusual or unacceptable to qualify that by saying "unrelated to income and/or living circumstances." Perhaps the Minister might consider that at a later stage in the passage of this Bill.
Is amendment No. 4 withdrawn?
In the light of Senator Robinson's eloquence and in the light of the high praise I gave to the drafting abilities earlier I do not have much option but to withdraw the amendment.
I will consider the point raised by Senator Robinson.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 5, between lines 12 and 13, to insert the following:
"( ) Where an order is made under section 3 (1) the parents of the child shall be entitled to state their wishes as to the religion of the child and the Board, as far as is practicable, shall have regard to any such wishes.".
I am in the peculiar position, and it is not normally my role here to be the defender of religion, but the point has been made to me more than once by people, particularly people who are connected with the denominational adoption agencies, that the parents ought at least to be entitled to express an opinion on the religion of their children. This is a legal entitlement as distinct from a procedural or administrative entitlement. I understand that when people are giving consent they are asked the question. It may reflect my ignorance of adoption law. If it is my ignorance, what would disturb me is that the people who asked me to do this are people who are involved in processing adoptions and it would suggest that they do not know the adoption law too well. That is the best defence I can offer for myself.
I do not think the child's religion should be paramount. I do not think a child should be prevented from being adopted simply because the parents express a wish about his or her religion. It is far more important that the child should be in a caring and loving home. I do not really know why my church in particular — Senator Murphy always objects to me calling it my church——
You can have it. It is all yours.
He accuses me of a proprietorial interest in the church. May I explain why I call it my church. It is because I will not give it to them. I claim title to it at least and I am not going to hand it over to them. "Them" can be defined on another day. My own church has a slight obsession with these sort of things. For those of us who look at it from a detached position, what is most important is that a child should be brought up in a caring, stable, loving home. We all also accept that the religious denomination of that caring, loving, stable home does not determine whether it is caring, loving or stable. It has to do with the qualities of the parents.
As there is a vote on the Finance Bill, I am sure the Senator will appreciate I would like to release the Minister.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
Senator Ryan has had to return to Cork and has asked me to second the amendment which I am happy to do, the amendment being:
In page 5, between lines 12 and 13, to insert the following:
"( ) Where an order is made under section 3 (1) the parents of the child shall be entitled to state their wishes as to the religion of the child and the Board, as far as is practicable, shall have regard to any such wishes.".
Like Senator Ryan I find it unusual myself to be supporting what may appear to be denominational rights because I am very much in favour of the separation of Church and State about which my distinguished colleague Senator Murphy spoke so eloquently the other evening in an Adjournment debate. Nevertheless, I do think that it is part of the human and family rights of the parents to be allowed to express some wish. I take particular interest in the phrase "as far as is practicable" because I think it should be a consideration but not necessarily a paramount consideration. I believe the Minister will agree with me that the paramount interest in all these matters is the interest of the child involved.
I would like to say also that I hope the denominational aspects of adoption legislation will be addressed by the Government. I do not believe they are sufficiently addressed in this Bill. It may be, of course, that this is not the correct place to deal with this issue but I would like to feel that no prospective and appropriate adoptive family would be disbarred from adopting because they belonged to a minority religion, for example, and there was no child who had that particular label available for adoption. I would also like to feel that the rights of the child were, as in this section, regarded as paramount.
I am happy to support the amendment, to second it, because I think it is a humane and correct procedure and because it carries its limitation "as far is practicable". I do believe the parents have a right and entitlement to express an opinion about the fruits of their union and its eventual upbringing and the general ethical framework within which the child should be reared, but I think these should be considered only as far as is practicable.
The issue raised by way of this amendment is an important one which requires careful consideration. Like the proposer, Senator Ryan and indeed Senator Norris, the concern may to some seem to be coming from an unlikely quarter but there is no doubt that the question of the religion of the child, the religion of prospective adopters, has been important in adoption legislation up to now. Initially, under the 1952 Act, it was not open to parties of a mixed marriage, a mixed religious marriage, to adopt a child. That was the subject of a constitutional case and the constitutional case was successful.
It was found to be unconstitutional under the original section 12 of the Adoption Act. Subsequently, in the Adoption Act, 1974, a section was inserted to provide a legislative response. The court had already said it was unconstitutional to exclude from being adopters parties to a mixed marriage but it was decided to put in a section dealing with this in the 1974 Act, that is, section 4 of the Adoption Act, 1974 which provides as follows: "An adoption order shall not be made in any case where the applicants, the child and his parents, or, if the child is illegitimate, his mother, are not all of the same religion, unless every person whose consent to the making of the order is required by section 14 of the Principal Act or by section 2 of the Adoption Act, 1964, knows the religion (if any) of each of the applicants when he gives his consent."
That is a legislative response to requiring that the person consenting — normally the single mother but if the child was subsequently legitimated, it could also be the father and mother or it could in rare circumstances be a guardian of the child — had to know the religion of the prospective adopters so that in the case of a couple of a mixed marriage, or where there were different religions or no religion, that would be known to the mother placing it and would form part of the consent, part of the agreement to place and the consent to the adoption.
It seems to me that a similar consideration arises in these circumstances, that there should be an analogous provision. It does not seem as though section 4 of the Adoption Act, 1974, applied and I am subject to the Minister's response on that because there is not the same approach. The court is determining a failure by the parents and determining that it is in the best interest of the child that the adoption order should be made and, therefore, it makes an order authorising the board to make an adoption order in relation to the child. It does not seem at this stage as though the issue of raising a question relating to the religion of the child, the religion of the applicants or prospective adopters, is dealt with legislatively in this Bill. In those circumstances, I would be interested in the Minister's response on this point.
I would like to ask a question. With regard to the whole scenario of the religion of the child, religion of the natural parent or parents and religion of the adoptive parents, I would suggest that, if we were to follow the concept that the child who is adopted becomes the child of the adoptive parents in the same way as their own children would be, I would have reservations about dictating to somebody before the adoption saying what religion the child should be brought up in. It would be unrealistic to think that the child or children of couples who were born into the family would be reared in a different religion from that of the parents.
My instinct is to say that when parents adopt a child they adopt it and treat it as if it was of their own family. Therefore, I have some reservations about the suggestion that the mother, the natural mother, or the parents of the child would say that they wanted the child brought up perhaps in a different religion. Maybe I am misinterpreting or not getting the whole thrust of this amendment clearly but I would certainly think it should not be a material consideration. I do not think that religion should be an issue at all. I think that the consent of the parent to give for adoption and the agreement of the adoptive parents to take the child should be the only issues that should be considered.
While I have sympathy with the idea that the natural parent should have a say in regard to the religious education of the child, I feel that this particular amendment could give rise to difficulty and for this reason I do not propose to accept it. My main concern is that the amendment could have the effect of drawing the Adoption Board into and requiring it to adjudicate on disputes and disagreements between natural parents and adopters as to the religious education of the child.
Take the following example. The natural parents are of religion A but the adopters are of religion B. The natural parents indicate that they wish the child to be brought up in religion A but the adopters are not prepared to give an undertaking to that effect. What would or should the Adoption Board do in such a situation? Should it ignore the natural parents' wishes and allow the adopters to raise the child in the adopters' religion or should the board refuse to make an adoption order in favour of the applicants unless they agree to adhere to the natural parents' wishes? There are no easy answers to these questions. I feel that it is neither appropriate nor desirable that the Adoption Board should have to address them.
I might point out that under the existing Adoption Acts the board has no role or function in regard to the religious education of the child. That should also be the case under this Bill. Apart altogether from this issue, I am advised that it is not necessary to make specific reference to religion in the Bill. In the first place, some of the children who stand to benefit from the Bill will be foundlings or abandoned children and, by definition, there will be no parents available to express a view as to the religious upbringing. In other cases, the child will have been placed by the parents with friends or relatives of their own choosing so that the question of religion will have been settled from the beginning.
It is likely that in most cases the child will have been placed by the health board. The foster care regulations provide that a health board shall not foster a child with a person who is not of the same religion as the child unless the child's parents know the religion of that person and give their consent. In effect, therefore, the parents will have had an opportunity to indicate the religion of the person with whom the child should be placed and the child will have been living in an agreed arrangement for at least 12 months before an order is made by the court.
Finally, under section 3 (1) the High Court is required to have regard to the constitutional and other rights of all the persons concerned before reaching a decision as to whether to authorise the adoption of the child. One of the important rights which will fall to be considered in this context is the right to a religious education. If there are any differences between the natural parents and the proposed adopters with regard to religion, this will have to be taken into account by the court in coming to a decision as to whether adoption is in the best interests of the child.
On the specific point raised by Senator Robinson about section 4 of the 1974 Act and whether it will apply in this Bill, my advice is that it will not apply mainly because the parents may not be involved.
Is the amendment withdrawn?
Senator Ryan had indicated in reply——
Acting Chairman
You are aware that only the proposer of the amendment may reply but I will give the Senator a minute.
Senator Ryan, knowing he would not be here to reply, specifically asked me if I would reply on the amendment. I do not know whether that is allowable under the rules but if the Chair would——
Acting Chairman
In the circumstances that is all right, but it must be brief.
The Minister has confirmed the view which I had expressed that section 4 of the Adoption Act, 1974, would not apply in these circumstances. It does leave a residual concern that when the matter had been dealt with by way of a court case and decided, for valid constitutional reasons, that parties to a mixed marriage must not be discriminated against, it was found appropriate to deal legislatively at that time with the situation and to require that either the single mother, or in the case of a child who had been legitimated possibly the parents, would know of the religion or different religion or lack of religion of the prospective adopters and that would be a factor in making the consent.
As I understood the Minister in his reply, he is satisfied that if the child is fostered by a health board the foster care provisions will ensure, in effect, that the child is placed with a prospective adopter or adopters who — presumably one or both — would be of the same religion and who would give an undertaking and the health board would be satisfied that the child would be brought up in the religion of that child. That still leaves a gap; it still leaves a situation where the child had not been placed on foot of a foster care decision. It seems to be a matter that could be looked at. My primary concern would be to ensure that prospective adopters who are of different religions or perhaps one of whom is practising a particular religion and another is not, that they would not find themselves discriminated against because we fail to deal with the matter; in other words, that omission to deal with it in the legislation would not result in a discrimination.
I accept what the Minister has said. It would not be appropriate for the Adoption Board to interpose itself and try somehow to scrutinise or supervise afterwards what religion the child was being brought up in or whatever. It may be that in section 2 dealing with the role of the board there could be some reference to the board satisfying itself at that early stage in the matter in a somewhat analogous terms to section 4 of the 1974 Act. I do not think the Minister's response has wholly dealt with the problem and in those circumstances I hope it is something that might be looked into later by the Minister when the Bill is passing through the other House.
As I have already said, there are no easy answers to this question. I have also said that in the case of the vast majority of children who are placed under the foster care regulations, religion is taken into account. I will see if there is a gap there and if something needs to be done about it we will consider it before the Bill comes to the Dáil.
Amendment, by leave, withdrawn.
Government amendment No. 6:
In page 5, to delete lines 13 to 15, and to substitute the following:
"(3) The Court may, of its own motion or on application to it in that behalf, make an order adding such other persons as it thinks fit as parties to proceedings under subsection (1), and may, in the case of a person added as a party to any such proceedings under this section, make such order as it considers just in respect of—
(a) the payment of any costs in relation to the proceedings that are incurred by the person and are not paid by another party to the proceedings if legal aid in respect of them under any scheme operated by or on behalf of the State for the provision of legal aid has been refused, or
(b) the payment by the person of any costs in relation to the proceedings that are incurred by any other party to the proceedings.".
This amendment deals with a point which was raised by Senator Robinson during Committee Stage and I promised to look into it for Report Stage. Senator Robinson was concerned that there was no provision in the Bill for the payment of costs incurred by foster parents if they were made separate parties to an application brought by a health board for an order authorising the adoption of their foster child. The amendment deals with the situation and with the possibility of costs being incurred by other persons, for example, grandparents who might be added as parties. It provides that where an application is made to the High Court, whether by the health board or by the foster parents acting independently, and the court decides that some other person should be added as a party to the proceedings, the court may make orders as to the payment of court costs incurred by the person added as a party that are not paid by another party or by the civil legal aid scheme.
Since the decision as to whether other persons should be added as parties to the proceedings is entirely at the discretion of the court, it is proposed that the extent and the manner in which the costs incurred by additional parties will be met will also be at the discretion of the court. I feel that this amendment meets the point raised by Senator Robinson.
I am grateful to the Minister for having considered the debate on Committee Stage and for coming forward with this amendment. It does seem to meet the particular point. I think it is very important because we are devising quite an elaborate structure — it has to be an elaborate and difficult structure — and it would be a concern of all of us to ensure that nobody would be either debarred or feel they had a burden of a risk of legal costs where there was no provision for the court to make an order for costs at discretion. I am very glad that the Minister has introduced this amendment. It deals with the matter in an appropriate way and I am delighted to support it.
I would like to thank the Minister for that amendment and say that it expresses our concern at Committee Stage.
Amendment agreed to.
Amendment No. 7 not moved.
Question, "That the Bill, as amended, be received for Final Consideration" put and agreed to.
Question, "That the Bill do now pass" put and agreed to.
When is it proposed to sit again?
At 2.30 p.m. on Tuesday next.