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Seanad Éireann debate -
Friday, 13 Mar 1998

Vol. 154 No. 14

Adoption (No. 2) Bill, 1996: Report and Final Stages.

I remind Senators that a Senator may only speak once on Report Stage, except the proposer of an amendment who may reply to the discussion on their amendment. Amendments must also be seconded on Report Stage.

Government amendment No. 1:
In page 3, line 24, after "Health" to insert "and Children".

This amendment reflects the change in title of the Minister since the Committee Stage of the Bill. It is a purely technical drafting amendment.

Amendment agreed to.

I move amendment No. 2:

In page 12, before line 1, to insert the following:

"11.—(1) Where an adoption effected outside the State would constitute a foreign adoption within the meaning of section 1 of the Adoption Act, 1991, but for its failure to comply with the requirements of paragraph (b) of the definition of 'foreign adoption' therein contained, provided the adoption so effected outside the State under the law of the place in which it was effected substantially transferred parental authority over the child to the adopters such an adoption shall be treated as a valid foreign adoption until such time as a birth parent or the birth parents of the child concerned properly reassert parental authority over such child in a manner which revokes such adoption under the law of the place in which it was effected, subject to subsection (2) of this section.

(2) A foreign adoption to which subsection (1) applies shall be irrevocable under Irish law if the birth parent or parents of a child have not acted in the manner stated in subsection (1) within 4 years of such adoption being effected.".

As this will be my only contribution to this debate, I ask for a little latitude in explaining what I am about on this. I will not abuse the procedures of the House. Ironically, the case for this amendment was made passionately and comprehensively by Deputy McGennis when she was a Senator on this side of the House. She was supported by the former Senator, Ms Honan, Senator Dardis and virtually all the Independent Senators. A strong case for this amendment was made then and anyone who wants to read it can return to the Official Report of that debate.

The purpose of the amendment is to facilitate the recognition in Ireland of ordinary or simple adoptions, particularly those effected in the Republic of Paraguay, when this Bill comes into law. It stipulates that these adoptions will be recognised once the following criteria laid down for recognition in section 1 of the Adoption Act have been satisfied. The first condition is that the consent to the adoption of every person whose consent was, under the law of the place where the adoption was effected, required to be obtained or dispensed with, was obtained or dispensed with under the law. The second is that the suitability of the adopters to adopt has been assessed and the preparedness of the birth mother to give her child up for adoption has been reported on. The third is that the only monetary consideration given in respect of the adoption arises out of administrative, medical or legal expenses incurred in the process. Finally and most significantly, parental authority over the child must have been substantially transferred to the adopters under the adoption. The recognition of the simple adoption is qualified in that it may be revoked if within four years of the date of the adoption the birth parent or parents successfully exercises those rights remaining with him, her or them in the appropriate court of competent jurisdiction.

I understand the Minister has advice from the Attorney General to the effect that he cannot accept this amendment. The previous Attorney General gave the same advice. The Minister is obliged to follow the advice; it may change with different Attorneys General but two successive office holders have the same opinion. There is no point play acting and calling votes which will be beaten to get the Minister to do something which he has been legally told he cannot do. With the indulgence of the Cathaoirleach, therefore, I will raise a number of issues which arise under the amendment and ask the Minister to respond to them. I suspect he will be able to meet some of these points.

The approach to the Government for the restoration of the Bill was based on the difficulties relating to the recognition of Paraguayan simple adoptions. If the Minister is unable further to amend the Bill to resolve these difficulties, he should, at a minimum, facilitate the parents concerned in the pursuance in Paraguay of the conversion of their adoptions into full adoptions. In the event of the conversion process not being successful and the rejection by the Adoption Board of applicants for registration in the register of foreign adoptions pursuant to section 10 of this Bill when enacted, he should actively encourage the board to take a case stated to the High Court, having regard to the existence of two divergent legal positions on the entitlement to recognition. I cannot stress strongly enough the strength of the divergent view, which is held by a senior judge and a practising lawyer with considerable political experience — this is not a maverick view, it is held by two substantial and recognised legal practitioners. In the event of the case stated going in favour of the Adoption Board, the Minister should give a firm commitment that he will process the legislation required to give effect to the Hague Convention within a period of two years from now. He should also implement immediately the representations of the inter-departmental committee on Paraguayan adoptions to address the practical problems associated with non-recognition.

With regard to the conversion process the Minister should: first, seek out and put at the parents' disposal a lawyer who will process the relevant applications to the courts in Paraguay; second, make representation on behalf of the parents, via the embassy in Buenos Aires, to the Paraguayan Government authorities; third, seek preferential treatment as regards legal fees, as these could amount to about £3,000 which would be an enormous burden to place on these parents through no fault of their own; and fourth, make a contribution to these legal costs, which are a heavy burden on the parents, as I said, but would not count for much in the overall budget of the Department of Health and Children. The Minister has indicated he is opposed on principle to contributing to legal costs, but this is a unique case and he would not be creating a major precedent by making a contribution in this case. I also ask the Minister to facilitate the parents in the immediate preparation by the health boards of any additional or relevant supplementary report which may be required.

In addition to the practical problems associated with non-recognition, I also ask the Minister to do the following: first, to make available the travel documents prepared by the Department of Foreign Affairs, which the parents are denied; second, to reconsider whether citizenship could be granted through the process of naturalisation — there are differing legal views as to whether or when this would be possible; third, to ask the Minister for Finance if it is possible to amend the Finance Bill to remove the penal tax liability on any inheritance received by the adopted child from her adopted parents; and fourth, to return to this House within three months, no matter what happens to this legislation, to report on what has been achieved in that time and to examine carefully any outstanding difficulties to see if they could be resolved.

This Minister has listened patiently and like his predecessor, Deputy Currie, he sought to resolve what are real difficulties. My approach to him today is not based on scoring party points or inter-party rivalry but on a desire shared by all sides to see if the people concerned can be helped.

I second the amendment and ask the Minister to take on board Senator Manning's sentiments, particularly where he has the leeway to do so.

The only problem raised by the other side of the House relates to foreign adoption, particularly from Paraguay, and it is of concern to us all. Two Ministers from different sides of the House have received the same advice from their respective Attorneys General. The nub of the question is how to protect the rights both of adopting parents and adopted children, not only immediate family rights but travel documents, naturalisation and inheritance of estates — if the adopted children are not treated as natural children they face penal tax liabilities. The Minister cannot wave a magic wand to sort everything out. I look forward to the Minister's reply to the points raised here. I am certain he will be back with further Adoption Bills.

It is desirable that the Bill passes through both Houses quickly. That was the desire on all sides and there was an anxiety when this Seanad assembled that it should be restored to the Order Paper as quickly as possible.

It is unfortunate that a group of people are caught in a vice in respect of this matter and it is a difficult dilemma when we are confronted with legal advice from two Attorneys General which suggests it is not possible to deal with the matter within the scope of this Bill. That is unfortunate because, as a general principle, the law should accommodate the rights of all citizens, even when there are relatively few people involved.

I appeal to the Minister to try to meet the needs of the people in question. I agree with the sentiments expressed by Senator Manning. There is unanimity in the House on the need to effectively deal with this aspect which is causing such difficulty and distress to the people involved. The inheritance aspect of the problem could be dealt with by financial legislation. It is worth noting that it is not just children who are blood relations of their parents who receive favourable treatment under the inheritance of capital, there is a category of favoured nieces and nephews who have lived with uncles and aunts. They are treated favourably in the tax legislation so this should not cause insurmountable difficulties. I ask the Minister to request the Minister for Finance look at this.

There are two separate issues involved: the content of the Bill and the desirability of it passing all Stages to regulate the position of many people, and the aspect causing the immediate difficulty. I am sure the Minister will be able to reassure us that effective measures will be taken to deal with that aspect, if not in the period between the Bill being considered here and going before the Dáil, at least in the immediate future.

I strongly support the Bill. We have a historic tradition of adopting children and while modern law only dates back to the Adoption Act, 1952, our tradition of taking responsibility for abandoned or orphaned children, or sharing in the upbringing of children, where the family resources are already fully stretched, goes back to the Red Branch Knights and the Fianna.

There are plenty of couples willing to adopt, childless couples and those who already have children. This is evident in the large number of families willing to undertake the difficult and often expensive task of inter-country or foreign adoptions. There have been 1,000 children adopted in Romania alone by Irish domiciled couples since the fall of Ceaucescu. Notwithstanding a report which informs parents of births, very few children become available for adoption in Ireland, yet all the health boards appear to have their family support resources stretched past breaking limits.

The natural parents have the primary right to raise their children, but with rights come obligations. Where people are found to be unwilling or unable to provide social and moral care and guidance to their children, the State should not be fearful of transferring those rights and obligations to suitable volunteers or adoptive parents. These thoughts do not refer to families in poor economic circumstances to the exclusion of others. Dysfunctional families can be found at any address and as readily among the affluent as anywhere else.

While these ideas may be radical now, I have no doubt they will soon be seen as the next step in the development of our social structures; a step forward into our Brehon past. The Adoption (No. 2) Bill, 1996, is a worthwhile and progressive development of our current statutes. It raises little new thinking but confirms conventional wisdom and, as such, is of significant value. I agree with the comments made by Senators Fitzpatrick, Dardis and Manning and support the Bill.

I thank Senator Manning for tabling this amendment because it has been a matter of much discussion for a long time. I have read the debates in both the Dáil and the Seanad and I know it is a complex issue. Like everyone else my heart goes out to these parents. I have tried everything possible to accept this amendment yet I find that I cannot.

I have been in the Oireachtas for 16 years but this is the first time I have had the opportunity to implement a Bill. It is a special day for me and I wish I could be more forthcoming about the amendment. The amendment seeks to provide for the form of adoption known as simple or ordinary adoption. It is important to understand that such adoptions are fundamentally different in nature and legal effect to full adoption, the type of adoption which exists in this State. Our statutory system for the recognition of foreign adoptions is confined to adoptions effected abroad which have a similar legal effect to that of an Irish adoption order. On the making of such an order the birth parent loses all legal rights and is freed from all legal duties with respect to the child, these rights and duties being transferred to the adoptive parents. The effect of the recognition of a foreign adoption under Irish law is to accord it the same legal status as an Irish adoption order. It follows that an adoption granted outside the State must have a similar legal effect to an Irish adoption under the law of the country concerned in terms of the complete severance of the legal relationship between the birth parent and the child to qualify for recognition here.

Simple adoptions are more limited in their legal effect than full adoptions, in that the preexisting legal relationship between the child and the birth parent is not completely severed. Accordingly simple adoptions do not qualify for recognition here.

I have met the parents of Paraguayan children who effected ordinary adoptions in Paraguay. Because of the legal difficulties I have just outlined, they are unable to have their adoptions recognised in this jurisdiction. I appreciate the distress this lack of recognition is causing these families. I have endeavoured to see if a solution could possibly be found to the problem and I would like to take this opportunity to outline to the House the steps I have taken.

I have had discussions with the new Attorney General to clarify whether Paraguayan ordinary adoptions qualify for recognition under section 10 of the current Bill and, if not, whether the Bill could be amended to provide for such recognition. As part of those discussions I was able to furnish the Attorney General with the legal opinion, referred to by Senator Manning, on a number of aspects of Paraguayan adoption law which my Department had obtained from a lawyer in Paraguay. This is the same legal opinion which my predecessor, former Minister of State Currie furnished to the parents of the Paraguayan children. I also passed a copy of the legal opinion obtained by the Paraguayan parents in support of their claim for recognition under section 10 of the current Bill to the Attorney General. Although I am not at liberty to reveal the content of the Attorney General's advice, I can give a summary of it.

Section 10 of the Adoption (No. 2) Bill provides that the concept of guardianship is the yardstick used to measure the compatibility of an adoption effected abroad with an adoption order. Paraguayan ordinary adoptions differ in a number of ways from Irish adoptions. Most significantly the legal parent relationship is not completely severed. For this reason it is unlikely that the Paraguayan ordinary adoption would be recognised by an Irish court under section 10. Additionally, the court would be likely to take into account the constitutional rights of the birth mother. In giving up her child for a simple adoption, the birth mother does not consent to complete severing of the legal relationship with the child. To recognise a Paraguayan ordinary adoption in Ireland would be to convert the adoption into something significantly different from that to which the mother has given consent. Therefore, to amend section 10 in order to recognise Paraguayan ordinary adoptions could result in the section being found unconstitutional on the grounds that it failed adequately to respect the rights of the birth parents. Accordingly, I am forced to conclude that the current section 10 does not provide for the recognition of Paraguayan ordinary adoptions and, furthermore, it is not open to me to further amend the Bill to provide for such recognition.

As this issue cannot be resolved in the current Bill I have made inquiries whether an alternative mechanism could be found to recognise these adoptions. Paraguay has recently enacted a new adoption law and I was anxious to ascertain whether this new law had any effect on the adoptions or provided a means of converting the adoptions into full adoptions. My Department obtained a copy of the new law and subsequently put a number of questions to the same lawyer in Paraguay whom we had previously consulted. The lawyer's advice is as follows:

Under the new Paraguayan adoption law there is now only one kind of adoption in Paraguay which is the equivalent of full adoption. In line with good legal practice, the principle that laws should not be applied retrospectively is upheld in Paraguay. Nonetheless, the Paraguayan minors code does permit the retrospective application of laws in cases where this would be to the benefit of the child. Clearly there is considerable benefit to a child adopted and taken abroad in having the adoption updated to bring it under the new law.

The lawyer is of the opinion that this would be a relatively easy process and nothing like as complicated as the original adoption procedure. The parents would have to contact a lawyer in Paraguay to go back to the courts requesting the updating of the adoption and presenting the original judgment along with the analysis of Irish law and the reason for the request.

This course of action would seem to offer a practical means of resolving the current difficulty. I met with the Paraguayan parents in the last few days and outlined what is involved. If they pursue this course of action I am willing to further assist them by clarifying further what is involved and ascertaining the details of the procedure and the likely costs. However, I also recognise that there is no guarantee of success. Therefore, if it does not prove possible to have adoptions updated in Paraguay, I will revisit the issue in the Bill to ratify The Hague Convention on the protection of children and co-operation in respect of inter-country adoption which Ireland signed in June 1996.

A major amendment of our adoption laws will be required prior to the ratification of the convention. The provision of the recognition of simple adoptions or their conversion into full adoptions will probably be the single most complex issue to be addressed in this amending legislation. The Bill will provide a framework for addressing the wider issue of simple adoptions not addressed by the current Bill. I cannot accept the amendment as I am advised that we must accept the distinction between different categories of adoption set out in the laws of other jurisdictions and cannot accord an adoption a legal status beyond that it has under the laws of the jurisdiction in which it was granted to the natural mother where she has consented.

It is right and proper that our laws give the same respect to the rights of birth parents abroad as they do to Irish parents. I have been advised that the amendments of the existing definition of a foreign adoption are as far as we can go in extending our statutory system for the recognition of adoptions effected abroad. However, I am sympathetic to the plight of the parents of Paraguayan children. They should not feel that the door is being closed on them because it is not possible to resolve their situation in the current Bill. I urge them to further investigate the possibility of having their adoptions updated in Paraguay. My Department will give them every possible assistance in clarifying what is involved and the likely chances of success.

I would like to comment on the points raised by Senator Manning and echoed by other Senators. The Government attaches a high priority to introducing The Hague Convention legislation as quickly as possible. The Senator will appreciate that it is not possible to give a two year deadline as he suggested. However, I assure the House that I intend to enact this important legislation as quickly as possible. I am dealing with staff difficulties in the Department to move this legislation forward as well as a number of other Bills.

My officials and our ambassador have gone to enormous lengths to try and see if the Paraguayan problem can be resolved. We have offered and are prepared to continue our discussions with the lawyer in Paraguay to ascertain if such matters can be taken to court, what the implications are and to see if we can facilitate the parents on a group basis to have their cases taken at the minimum cost. However, I am not in a position to make a direct financial contribution. Much as I would like to, the precedent created would be significant. I assure the House that I am anxious to assist in whatever way possible. We are engaged in a financial cost in the present exercise which will continue. We will seek whatever preferential treatment is possible in Paraguay as suggested by Senator Manning.

The interdepartmental committee on Paraguayan adoptions found two main problems being experienced by families. Children could not be granted Irish citizenship and so could not be issued with Irish passports. This problem is being resolved by the issuing of a special travel document. We will make that document available to the parents as quickly as possible. Citizenship is a difficult problem to resolve. I will quote the former Minister for Justice, Deputy Owen, who stated:

In the case of simple adoptions, however, such legal links are maintained with the natural parents. It appears to me that the Irish couples in these cases would have difficulty in persuading our courts that they should be appointed sole guardians to the exclusion of the parents. In the absence of an order appointing the Irish couples as guardians I would be precluded from considering the naturalisation of the children in question.

It will not be possible to give a positive response to the matter of citizenship and naturalisation. This issue can only be resolved by the enactment of legislation in Ireland or Paraguay. Unfortunately, we could not support the stating of a case in court as, for public policy reasons, we must protect the integrity of our adoption laws. If simple adoptions are to be recognised in Ireland they must be converted in accordance with the procedures set out in The Hague Convention.

I wish to comment on a number of the other practical suggestions made by Senators. Regarding health and education we are assured by the Department of Education and Science — and I give a similar assurance on behalf of the Department of Health and Children — that there are no practical difficulties and any that do exist will be sorted out. Regarding inheritance, I am happy to recommend to the Minister for Finance that he amend the next Finance Bill to take into account the difficulties experienced by these children. At this stage I cannot comment on the response of the Minister but am happy to put such a proposal to him. I ask Senators not to tie me down to three months as that is approaching the time of the Galway races, but I am happy to return to the House at the beginning of the next term to debate the progress made to date.

It has been difficult to convince the Paraguayan parents that the line we are taking is the only one possible. They have put up solid arguments and I am on their side in trying to win them. However, two Attorneys General have been adamant that there is no way out of the problem other than that which we have pursued. It is a matter for the parents whether they embark upon court action but I hope the issue can be solved without such a move. From my own inquiries and discussions with the Attorney General, I am convinced that their case does not stand up. The legal opinion they received from an eminent lawyer stated that:

Finally, therefore, an application could be made for recognition under the amending legislation so that simple adoptions made in Paraguay could be recognised under Irish law. However, as pointed out above, I think it would be, perhaps, more desirable for Paraguayan law to come into line with Irish law so as to avoid any erosion of the authority and stability of the traditional adoption order made under the 1952 Act or the forced reconciliation of what might be incompatible legal concepts.

I assure the House that the passing of the legislation will not in any way affect the legitimate case made by the Paraguayan parents. I compliment my officials for their strenuous efforts over the past seven months, over and above the call of duty, to find a solution to the problem. We are committed to finding a solution, to working with the parents and to returning to the House to report progress. I hope sufficient progress will have been made by then to allow the problem be solved. In the event of this not being the case, we will move legislation relating to The Hague Convention as quickly as possible and deal with the problem in that context.

Amendment put and declared lost.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

Because of current developments, including the signing of the Romanian agreement last week and my visit to China next Wednesday to finally sign an agreement with the Chinese Government which will enable Irish people adopt from China, I wish to stress the importance of prospective adopters consulting the Adoption Board and the voluntary organisations with expertise on adoption from specific countries. I recently met with three such organisation, two dealing with Romania, namely, PARC and a Cork organisation affiliated with PARC, and International Orphan Aid which deals with China. I was greatly impressed by the work they are doing. Such organisations can provide a mine of information to prospective adopters or couples contemplating foreign adoptions regarding the realities of adoption in particular countries or the general realities of foreign adoption. I am particularly concerned at the high fees which have been charged to some Irish residents who adopted abroad in the past and I am working closely with the voluntary organisations and the Adoption Board to ensure the protection of Irish people contemplating foreign adoptions from any future exploitation.

I am concerned by reports about organisations and individuals who are advising and assisting people and charging much greater fees than I consider necessary. As part of our negotiations with the Romanian Government, it was clear that the cost for legal and medical fees, translations and other fees would be between $2,500 and $4,000 but I have met people who have paid up to $15,000. I am concerned and wish to get across the message to the ever increasing number of people interested in foreign adoptions that they should consult with the Adoption Board and receive advice. The best advice is from parents who already have experience of such adoptions. The voluntary organisations have put enormous effort into assisting potential adopters and I recommend that people contact these organisations before embarking upon adoption.

I am aware of and am in discussion with the Eastern Health Board about the significant and frustrating delays experienced by parents who wish to be assessed for adoption. We are in discussion with the Eastern Health Board whose area has the most acute problem. We intend considerably shortening the waiting period. My hope, and that of Senators, is that those who desperately want to adopt a child will be able to do so as quickly and effectively as possible without being ripped off.

I welcome the Minister, something I should have done at the beginning of the debate. He was such an important Member of the House over the past four years that I had almost forgotten he had left us. I wish him well in his onerous post and know he will bring a vigour, energy and enthusiasm to the job similar to that which he has brought to everything he has done in his political life.

I am sorry we have been unable to resolve the problems raised. I understand what the Minister said and know the failure to resolve them is not due to indifference or lack of political will. The contrary is true as efforts have been made and I accept that problems may have to be resolved in a different context.

Understandably the debate on this very important Bill has focused on the issues raised today, but it is of wider significance. I compliment the Minister and his predecessor, Deputy Currie, from whom he effectively inherited the Bill. Most of the work on the Bill was done by Deputy Currie and I compliment him on that. I also compliment the officials whom I found helpful and positive during my many discussions with them in the last Seanad.

The Minister's concluding remarks emphasise the need for a continuing debate on adoption. It is an enormously complex, emotional and central issue for many people. What the Minister said about exploitation, profiteering and a debasing of the process is of concern to everybody and underlines the case I made for the Minister returning to the House relatively soon, something he has agreed to do in principle, to facilitate a calm discussion on some of the issues raised by him. With the reservations I have expressed, I welcome the passage of this Bill and I compliment all those who were responsible for guiding it through both Houses.

I apologise for failing to welcome the Minister to the House. He contributed very significantly when he was a Member, although I hope he will not be back too soon, if at all. We have been dealing with a very difficult matter. I welcome the passage of the Bill and I note what the Minister has said about exploitation. Everything possible should be done to prevent the exploitation of vulnerable people who are anxious to adopt children. I compliment the Minister, his predecessor and officials of his Department on this Bill. I hope the Minister can come back to the House with better news for parents of Paraguayan adopted children in the very near future.

This Bill concerns the central need of couples to raise their families. Couples are extremely vulnerable when there is difficulty in meeting these needs. We are attempting to place a legal framework around this central need. I was shocked to hear the Minister describe the exploitation of such vulnerable couples. I hope our discussion may raise awareness of the dangers faced by adopting couples.

The Seanad adjourned at 11.40 a.m. until 12 noon on Tuesday, 24 March 1998.