Children and Family Relationships Bill 2015: Committee Stage (Resumed)
SECTION 35.
Debate resumed on amendment No. 47:
In page 35, line 36, after "birth" to insert the following:
", medical history, including information in respect of any serious genetically-inherited illnesses that run in their family".
-(Senator Averil Power).
Amendment, by leave, withdrawn.
Amendments Nos. 48 and 49 not moved.
Section 35 agreed to.
Sections 36 to 40, inclusive, agreed to.
Amendment No. 50 not moved.
Section 41 agreed to.
Section 42 agreed to.
SECTION 43.
I move amendment No. 51:
In page 41, lines 11 to 17, to delete all words from and including ", and" in line 11 down to and including "child" in line 17.
The logic behind this amendment is to ensure all fathers are granted automatic guardianship rights at the moment of birth. This is necessary because, in some cases, cohabitation simply is not possible. Where, for example, a mother remains living with her parents, it is not always appropriate or possible for the father to live there also. This is often the case with teenage or unplanned pregnancies, as I outlined on Second Stage. The parents not living together does not necessarily mean the father is in any way shirking his responsibilities or not stepping up to the mark. The circumstances simply may not be in favour of the couple cohabiting. We should consider, too, fathers who are obliged to work away from home, some of them abroad, to be in a financial position to support their child. We must ensure men in that position are not left out of the loop.
As we discussed on Second Stage, the Bill will substantially improve the position of the many non-marital fathers who are actively and meaningfully involved in their children's lives. The changes I have agreed in the legislation will ensure more non-marital fathers register because they will be doing so at the same time as the birth certification process. Before we go forward to automatic guardianship in all cases, however, it is vital we consider all the issues. As I have said, further policy work, analysis and consultation are required. I am pleased to bring forward the amendments I have which substantially improve the position.
Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
Section 43 agreed to.
Sections 44 to 48, inclusive, agreed to.
SECTION 49.
Amendments Nos. 52 to 55, inclusive, are related and may be discussed together.
I move amendment No. 52:
In page 43, to delete lines 14 to 18 and substitute the following:
"6B. (1) A man who is, under section 5(1)(b) of the Act of 2015, the parent of the child, shall be a guardian of the child.".
The rationale for this amendment is similar to that underlying amendment No. 51. We are arguing that the Bill should grant automatic guardianship for fathers at birth.
As with amendment No. 51, I cannot support this proposal in the absence of further analysis. However, I acknowledge the spirit in which the Senator has tabled these amendments. In the meantime, I have introduced the other provisions I outlined and I am committed to the necessary policy work. In addition, I am committed to a review of the provisions in two years time.
I share the sentiments expressed on the subject of greater rights for unmarried fathers. We have done a great disservice to unmarried fathers and their children by not giving them any right whatsoever. Our law seems to be based on the requirement that they either prove themselves in court or otherwise to the mother, meaning that it is in her gift to recognise the parentage of the father without consideration of the best interests of the child, which should be the most important aspect.
I had initially planned to table an amendment similar to Senator Trevor Ó Clochartaigh's to provide for blanket guardianship rights at birth but, having consulted some of the groups with an interest in this issue, I am aware of concerns about a small minority of cases in which there are issues to do with rape or safety which need to be addressed. However, I intend to table an amendment on Report Stage and would like to hear the Minister's views on providing for a presumption of guardianship for the father which could be displaced in the limited circumstances where there the child was conceived through rape or there was a safety risk to the mother or the child.
Let us presume all fathers should be involved and not penalise all fathers for the actions of a small minority, for whom there should be a proportionate and appropriate system. We do not make the same judgments for marital fathers, every one of whom is regarded as a guardian, regardless of whether he is actually fit for that purpose, for example, where there is serious domestic violence. The same applies in the case of a mother who, whether she is married or unmarried, automatically has guardianship rights in respect of her child, even though in a minority of cases she should not have them.
There have to be more appropriate ways of dealing with this issue. In the United Kingdom and other countries there is a presumption of guardianship. I am not comfortable with the idea of waiting two years to deal with the issue as it has been an ongoing issue for a long time. I appreciate that the Bill provides for some improvements in respect of those fathers living with the mother, but that remains too focused on the father's relationship with the mother, rather than on the father's relationship with the child, which should be the key interest.
I have some sympathy for this amendment as the presumption of guardianship is a good one. When it is not present, it leads to a very unequal relationship between the father and the mother. However, if there is guardianship for an unmarried father who lives at home with his own family, as opposed to the mother, what is his responsibility as regards maintenance? We must act in the best interests of the child, but with rights come responsibilities. Am I correct that automatic custody comes with guardianship?
I understand the approach of Senators Trevor Ó Clochartaigh and Averil Power to this matter and I am extremely sympathetic to it. I intend very shortly to begin work on the issue of presumptive rights. It is a model we should examine and I am committed to doing so. We all have an obligation in this regard and I have also committed to conducting a public information campaign to ensure people are aware of the need for statutory declarations.
Provisions for maintenance and custody are spelled out in the Bill. Depending on the level of guardianship, there are corresponding obligations on a cohabiting father and it will be up to the courts to make their decisions based on the best interests of the child, as they will do in decisions on custody, access and maintenance. A father who is not living with the mother and the child for at least 12 months, including three months after the birth, is not automatically a guardian. I appreciate the points some Senators have made about anomalies that may arise where there is an ongoing relationship, but the key point is that making a statutory declaration is still open to the person involved. If the mother objects, a father can still establish his rights in court. I encourage every couple and every non-marital father to establish their rights in the first instance by making the statutory declaration. That is the important message until we get to the point where there is automatic guardianship for non-marital fathers.
This issue is quite personal to me because I had a daughter in a situation where I was not married to her mother. My daughter is now 20 years old and her mother and I, thankfully, had a very good relationship which has continued, even though we did not stay together. I can appreciate how a man might feel in such a situation. A statutory declaration has a strong sense of formality and is quite legalistic and could be a problem in a difficult relationship when having to go to court could be a fraught experience. I recognise the bona fides of the Minister, but I believe presumption of guardianship is an important concept and having to wait two years bothers me. I will withdraw the amendment with the option of reintroducing it on Report Stage. As we will have a different Government in two years, it is quite a long time to wait.
Amendment, by leave, withdrawn.
Amendments Nos. 53 to 55, inclusive, not moved.
Amendments Nos. 56, 57 and 66 are related and may be discussed together, by agreement of the House. Is that agreed? Agreed.
I move amendment No. 56:
In page 43, after line 39, to insert the following:
"(5) The Minister shall, by way of regulation, make provision for the establishment of a national register of joint guardianship statutory declarations.".
I have already outlined the rationale for this amendment. I appreciate that the Minister gave a commitment to initiate a pilot scheme, but there should be a register of these agreements because pieces of paper are lost and it would be silly if cases were to end up in court unnecessarily just because the father could not put his hands on a piece of paper. At the time of making the declaration there might not have been any conflict between the mother and the father and it might not have seemed a big deal; therefore, the father would have signed it and filed it away, but having clarity would be in everybody's interest - of both parents, the child and the State - to keep unnecessary cases out of court. It is important to have clarity about guardianship and having a central register would be a simple way of providing for it.
I support the principle behind the amendment and we will be tabling an amendment at a later stage on the same principle. Because of the nature of human relationships, especially those that have broken down, it is important that there be a central register to hold these documents.
I fully support this. I am all in favour of the collection of information. It is good to have records in case something happens in order that people know exactly where they were.
On Second Stage when I announced what I was doing in this regard, I made the point that I believed it was important we did not make registration compulsory because it could begin to create a perception that if a person failed to register a declaration, that person could not be a guardian. It is important this does not happen. I am committed in principle to the establishment of a central register. It is surprising we have not had one for guardianship up to now. It simply has not existed. At present, it is up to the person concerned to keep this important document. Some people make the declaration in front of a peace commissioner or a commissioner for oaths. As it stands, it is up to them to keep it. Many Deputies in the other House as well as many Senators have made the point that this is such an important document because it is about parentage and that we should have a central registry.
I have examined the matter and what would be involved. It would be quite a big operation to begin to establish a central registry. I have committed to establishing two pilot projects and I will examine their results. I intend to set them up immediately. We will start with the pilot projects to see the implications of developing it further.
Amendment put and declared lost.
Amendments Nos. 57 and 58 not moved.
Section 49 agreed to.
Sections 50 to 62, inclusive, agreed to.
SECTION 63.
Amendment No. 59 has been ruled out of order.
Amendment No. 59 not moved.
Amendments Nos. 60 and 63 are related and may be discussed together.
I do not intend to move amendment No. 60 because I recognise the point about separation of powers.
Amendment No. 60 not moved.
Amendments Nos. 61 and 62 have been ruled out of order.
Amendments Nos. 61 and 62 not moved.
I move amendment No. 63:
In page 60, to delete lines 12 and 13 and substitute the following:
“(e) the views of the child, where relevant;”.
I recognise that it was my error in the first amendment and, therefore, I have no difficulty with it being ruled out of order.
I welcome the inclusion of this section which inserts a new Part V in the Guardianship of Infants Act 1964 and provides the first ever detailed definition of the best interests of the child in Irish law. While this will be helpful to the Judiciary, I have some concerns. Some elements of the voice of the child provisions may fall foul of the constitutional requirements if the Supreme Court passes the children's rights amendment to the Constitution.
As we all know, on 10 November 2013, the people spoke. We still await the decision of the Supreme Court. Article 42A.1 of the Constitution, Supreme Court decision pending, will read: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." It is clear to me, having actively engaged at all levels of consultation and debate around the wording of the constitutional amendment, that it was the intention of the Legislature and of the people in passing the referendum to enshrine children's rights in the Constitution and thus safeguard and vindicate their rights in future legislation.
As we know, Ireland ratified the UN Convention on the Rights of the Child in 1992. As far as I am concerned, in the drafting of any Bill which impacts on children's lives, those of us in the Legislature need to ensure the best interests of the child are paramount, that the views of the child are heard when key decisions are made about their lives and that the evolving capacity of the child is facilitated. As I have said, the best interests of the child provisions in section 3 are strong, and while I am not questioning that, I am keen to ensure they are absolute.
My concern, to which the amendment pertains, relates to the voice and views of the child being heard and represented throughout the judicial procedure. In this regard, section 32(3)(e), section 32(10) and section 32(11) of the Act of 1964, as proposed to be inserted by section 63 of this Bill, must be amended to establish that listening to the views and hearing the voice of the child impacted by the court process is imperative rather than a discretionary provision, as suggested in the current wording, which refers to "may" rather than "shall". I am proposing that the references to "may" would be bolstered to "shall", thus mandating the Minister to introduce regulations on the required qualifications and experience held by a child's view expert, the associated fees and the minimum performance standards. That is why I believe so passionately in this amendment.
On a point of order, I think the Senator is also speaking to amendments Nos. 64 and 65, as well as amendment No. 63.
They are interrelated. I appreciate that.
I will take up the last point made by Senator Jillian van Turnhout first. These amendments would make it mandatory for the Minister to make regulations concerning experts to be appointed to convey a child's views to a report on a question affecting the welfare of that child. I will reply to amendment No. 63 presently, but I wish to make this point. I assure the Senator that, in consultation with the Minister for Children and Youth Affairs, I will be making these regulations. However, there are clear parliamentary drafting norms and provisions about make making regulations and they are invariably or almost always couched in permissive rather than directive terms. I hope the Senator will accept my point to the effect that we will be making those regulations.
I have not made mandatory the appointment in respect of the views of the child. This is because in certain circumstances a child of a certain age of maturity may express his or her views directly rather than have those views mediated through an expert. In the relevant subsection (3) I have set out the issues that the court must consider in deciding whether to appoint an expert. The proposed section 32(3)(e) refers to whether the making of the order will assist the expression by the child of his or her own views in proceedings. I take the point Senator Jillian van Turnhout has made in respect of the children's rights referendum and the associated implications, whenever that will be dealt with. However, the provision, as it stands, is fit for purpose and will enable the court to make the proper and necessary assessment of whether the appointment of an expert is required.
I thank Senator Jillian van Turnhout for the point she made about the best interests. This is the first time that we have a clear definition in legislation as a guide.
It is not intended to be exhaustive. The courts will take other points into account, but it does provide a set of criteria as to how the court will determine the bests interests of the child.
Amendment, by leave, withdrawn.
Amendments Nos. 64 and 65 not moved.
Question proposed: "That section 63 stand part of the Bill."
I raise the issue of a court welfare system, which should be considered. We discussed it on Second Stage and the Minister acknowledged the issue around support services in the Courts Service, the pressure on the Courts Service, particularly family courts, and the thought that we should establish a comprehensive welfare service that would carry out assessments of the child's welfare and best interests, ascertain the views of the child, carry out family risk assessments and ensure, where appropriate, that supports and services are available to the child and family, including mediation and child contact centres. The legislation is very important in itself, but the support services to go with it are also crucial. We will push for this to be done. It is to be hoped the Minister will be able to speak to this.
I echo those comments. It is very important that children's interests are considered in a consistent way in these cases. One of the difficulties is that some judges are very good and very experienced in listening to children, even young children because it is possible to ascertain their views and feelings in an age-appropriate way, while other judges are quite reticent about this. There is a need tor judicial training and a support service in this area to ensure consistency, especially where conflict exists. It is much easier for a child to deal with a family break-up if they feel involved and feel they have been listened to. Sometimes the courts will decide that what is in the best interests of the child is not necessarily what the child thinks at that point because it must take a broader view. It is very important that children are heard in an age-appropriate way and that we have a proper support service that is not dependent on means. We might need a publicly funded service. If we had a guardian ad litem system in private law cases and parents could afford to pay for it, that is fair enough, but if they cannot, it should not be the case that one would not be appointed or that there would not be an independent person to represent the child. It should be part of a broader legal aid system.
I wish to speak strongly in favour of the inclusion of this very important section. I am glad that we had the opportunity to speak on it on Committee Stage. I know many of us addressed it on Second Stage as well. It is very significant that we are making this provision for the insertion of a new Part in the 1964 Act dealing so specifically with the best interests of the child and setting out the detailed criteria, including issues around household violence and the need to facilitate the free expression by the child of views. I do not know if anyone else in this House has seen the workings of the courts in this area, but as a practitioner, I have represented guardians ad litem before the courts and dealt with quite a number of child care cases where the issue of what constitutes the best interests of the child was grappled with by the court. Courts have had difficulty dealing with it in the absence of the clear criteria that are set out now, so this marks real progress in the conduct of proceedings around child care and issues relating to children and the care and welfare of children in the courts.
I thank the Senators for the various comments relating to this. The only further point I wish to make is that the development of family courts will be very important. This is something I intend to bring forward. In respect of the welfare service about which Senators Trevor Ó Clochartaigh, Averil Power, Jillian van Turnhout and Ivana Bacik spoke, there is a critique of the current way that many family law cases are held despite everyone's best efforts. This would make a difference and we need to progress in this direction.
Question put and agreed to.
Sections 64 to 97, inclusive, agreed to.
Amendment No. 66 not moved.
Section 98 agreed to.
Sections 99 to 101, inclusive, agreed to.
Amendment No. 67 not moved.
Section 102 agreed to.
Sections 103 to 105, inclusive, agreed to.
NEW SECTION
Amendments Nos. 68, 70, 72, 82 and 83 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 68:
In page 81, between lines 15 and 16, to insert the following:
"Amendment of section 14 of Principal Act
106. Section 14 of the Principal Act is amended by the insertion of the following paragraph after paragraph (c):
"(d) request from the birth mother or guardian her or his preference, if any, for the category of applicant as outlined under section 33(1)(a)(i), 33(1)(a)(i)(ia), 33(1)(a)(i)(ib), 33(1)(a)(ii) and 33(1)(a)(iii) to which the child shall be placed.".".
This is about amending section 14 of the principal Act. We are talking about adoption. It is the same point I am making with amendment No. 70 which proposes that section 20(4) of the principal Act be amended by the insertion of a paragraph after paragraph (b) relating to the relevant stated preference, if any, indicated under section 14(d). I am requesting that a birth mother or birth parents who are in the process of placing their child for adoption would act with informed consent.
That is a key principle of all adoption placements. The amendment requests that an adoption order be made in accordance with the wishes of the birth mother around the type of family into which her child would be placed. This is not a question of being discriminatory in any shape or form. It is important that, in the long and thorough adoption assessment, all family types be discussed and presented to the birth mother and, if he is part of the process, the birth father, for example, a married man and woman, a man and woman cohabiting, two women cohabiting, two men cohabiting, a single man or a single woman. The types would not necessarily be presented in any hierarchical order. The State would not make the decision. Rather, the birth mother, acting for her most precious gift, the child whom she is giving up in what are invariably difficult circumstances, should be satisfied that her wishes were met.
Given the Minister's background in this area, she knows that birth mothers or parents are normally encouraged in the assessment process to have a say in how their children will be raised. When Senator Averil Power raised genuine issues yesterday about donor-assisted human reproduction, DAHR, and the wishes of a family, we laughed about how it could be as simple as wanting a child to be raised with music or sport. In the course of the assessment, it is vital that family types be discussed and that the wishes and preferences, if any, of birth mothers or birth parents concerning the family types into which their children will be placed be noted. The types would not be discussed in any specific hierarchical order, but the offering would be made to the birth mothers or birth couples.
My next point is an important consideration. It would be of major assistance to the adoptive family if, when a child is seven or 14 years of age and asks why he or she is being raised by a single woman, two women, two men or whatever it is, the adoptive parents can say that it was the wish of the child's birth mother or that she had no objection to it. I have discussed this point with a number of gay friends, including two gay men who got married last September. The one of them whom I know best told me about their making a decision at Christmas on whether to have children. I shared the concerns that I am raising now. He asked whether I would like to see a range of family type options during the assessment process. I said, "Yes". He thought that it would be reasonable so long as all options were presented to the birth mother or birth parents, whichever was the case, at the time of assessment. This is my request. It is a sensitive issue, namely, the key principle of informed consent. I ask for the support of the House and the Minister.
The overriding concern, as the Minister has stated repeatedly, is the best interest of the child. There is a tiny number of adoptions. The overwhelming number are interfamilial, in which the children are genetically related to the adoptive parents. It is for the Adoption Agency to decide what is in the best interests of the child. The mothers are not always as perfect as Senator Fidelma Healy Eames asserts.
But they are the mothers.
They are, but they can be bad mothers, too.
Regarding Senator JIm Walsh's amendment No. 83 to the effect that the authority must act and give preference-----
On a point of order, are we on that amendment yet?
These amendments are grouped, as agreed.
With respect, I do not believe they are grouped together.
Amendments Nos. 68, 70, 72, 82 and 83 are grouped.
The amendment reads: "In making an order the Authority must act in the best interest of the child ... and will give preference, in the first instance to married male-female couples". This seems to disregard the quality of the parenting or adults involved. The quality of the adults and the relationship and the best interest of the child should be paramount.
With the greatest of respect, there is a slight grammatical error in Senator Fidelma Healy Eames's amendment.
Yes. In speaking, the Senator used the correct grammatical formulation. The amendment reads, "request from the birth mother [reference made to the different relevant sections] to which the child shall be placed". It should read: "into which".
I support the amendment. Adoption is one of the crucial elements of the legislation. The amendments have been explained well by Senator Fidelma Healy Eames. The wishes of the birth mother should be taken into account. Under the wording, the mother will be showed a range of options. While I agree with Senator David Norris, some mothers are not necessarily the best adopters either. However, that must be a decision somewhere along the line. This amendment is solely requiring that the wishes of the birth mother be taken into account.
No. If I might advise my distinguished colleague, the preference would-----
Senator Feargal Quinn to continue, without interruption.
I will correct myself. The wishes are not taken into account.
"Taken into account" would be fine, with which I would have no problem.
Please allow Senator Feargal Quinn to contribute.
The preference will be noted and the birth mother should be shown the options. This is a key principle in the legislation. Many people will support the Bill if it is taken into account. I would be concerned if we did not include it. I urge the Minister to give consideration to it.
I will address my amendment and support Senator Fidelma Healy Eames's amendment. We are discussing the issue that is at the heart of the Bill. It arose yesterday in the context of our debate on DAHR and arises in this debate in the context of adoption. In what circumstances is it okay and accurate for us to claim that, all matters being equal, it is better that a child be raised by his or her father and mother or by a father and mother? When discussing adoption, the emphasis is on the desirability of a father and mother except where the best interests of the child are otherwise.
The current position on adoption is that the law provides two tiers of eligibility, namely, the eligibility and suitability stages of assessment. In the former, the law provides that a married couple, a widow or widower or a single person related to the child in question may apply to adopt. That provision is without qualification.
I am referring to the adoption laws, as they stand. The second tier provides that, in the particular circumstances, a single person not related to the child may apply to adopt. This is at the level of determining eligibility.
The question of the child's best interests, which many people discuss but which some overuse or occasionally misuse, arises in the context of an initial determination of eligibility. It is clear that the words "in the particular circumstances" mean something as matters stand, that being and to use the Minister's word, there is some hierarchy or at least an element of exceptionality around the categories envisaged in "in the particular circumstances".
My amendment seeks to create an obligation to secure additional consent of relevant persons, for example, a birth mother, to the making of an adoption order where the applicants are not a married couple or the mother, the father or a relative of the child. The amendment would insert a new section 32(a) in the Adoption Act 2010 to give the person or persons, for example, the birth mother, placing a child for adoption a right to know before consenting to the making of an adoption order that the order was not intended to be made in favour either of a married couple or the mother, the father or a relative of the child; in other words, that it was not being made in favour of persons whose eligibility to adopt would not be qualified if the amendment was to be accepted by any additional condition, as it is in the case of other classes of applicant in the particular circumstances. The amendment would give the person or persons a right to know if the adoption order was to be made in favour of civil partners, cohabitants or a single person other than a single person who was a relative of the child, but it would not require that in such circumstances that the person be told whether it was in favour of civil partners, cohabitants or a single person. It would not facilitate the person or persons choosing between all types of eligible applicant. It would merely facilitate a choice between applicants who were a married couple or the mother, the father or a single relative of the child and applicants who were civil partners, cohabitants or a single unrelated person. This division reflects the different terms on which the eligibility to adopt of these two groups is worded.
Senator Fidelma Healy Eames referred to the concept of discrimination. Some of the confusion in this area flows from the idea that discrimination can mean unjust or unlawful discrimination or that it can mean the necessary making of distinctions. Having regard to all of the international discussion and, in particular, the UN Convention on the Rights of the Child, to which Senator Jillian van Turnout alluded in the context of a child's right to know, much is made of------
It is the voice of the child.
My apologies. The context is the voice of the child being heard in proceedings. Much is made of the UN Convention on the Rights of the Child. The Senator took some of us, perhaps without naming us, to task for misquoting or misinterpreting the convention. It is she who is misinterpreting the convention, in particular, the travaux préparatoire.
I studied French for a long time. Article 7 of the convention states children have the right, where possible, to be raised by their parents. The roles playing by a mother and a father are gender specific and important. Their complementary but different nature is vital to the optimum development of the child. Having regard to the disagreement on what constitutes "parents" under the convention which was the focus of Senator Jillian van Turnhout's criticism of certain unnamed Senators, where there is a conflict regarding interpretation of international law treaty provisions, the Vienna Convention on the Law of Treaties 1969 is invoked. This directs that regard be had to the travaux préparatoire of the legal instrument set out in Article 32. These preparatory works are the official record on a negotiation. Regarding the UN Convention on the Rights of the Child 1989, we have discussed what a reference to "parents" means. That was the focus of the Senator's criticism. There was a high horse involved and I thought of Christy Moore.
The Senator should direct his comments through the Chair and not refer to other Senators.
They are not absent. I thought of the horse "Standing sixteen, one or two. With eyes wild and green". That was not Senator Jillian van Turnhout but the high horse.
On a point of order, will the Senator, please, stick to the content of the amendments rather than diverting in this way?
For example, the references in Article 18 of the UN convention are critical and central to the issue because we are discussing whether there is a legitimate basis to say preference can be given to a father and a mother when these decisions are being made. The article refers to parents and provides that state parties should take all appropriate measures to ensure the children of working parents have the right to benefit from child care services, etc. What does the term "parents" mean in that article? In the travaux préparatoire, UN document ECN4L.1575, paragraph 101, the state parties refer to working "mothers and fathers". It is there for all to see.
The human rights committee in general comment 17 of the 35th session of the committee in 1989 stated in respect of the International Convention on Civil and Political Rights that "No child should be separated from his or her mother". We are talking about scenarios in the future involving potential father-father arrangements. Parents, evidently, encompass in that scenario at least a mother.
I am responding to the accusation that there has been a misinterpretation of the UNCRC, but those who made the accusation have misinterpreted it. When read in conjunction with the travaux préparatoire I cited, it shows that "parents" was always intended as a reference to the child's mother and father. It was the criticiser's research that did not go beyond highlighting points-----
The Senator should stick to the amendments.
There is further support in international law for the contention that a child should have a mother and a father who are married and in a stable relationship.
On a point of order, I am still struggling to see how this tangent is relevant to the amendments.
I appreciate the point of order. I will, however, allow Senator Rónán Mullen to continue, but I ask him to focus on the amendments.
I am explaining why international law-----
I understand that and I am listening carefully, but the Senator should focus on the amendments.
The Hague Convention in dealing with inter-country adoption provides only for adoption by married couples. It appears to view married couples as the gold standard. The Bill allows cohabiting persons to use donor-assisted human reproduction methods and creates no distinctions in the context of adoption. If it is deemed appropriate in cases of inter-country adoption only for two parents to adopt, why is the Minister proposing to facilitate adoption in all circumstances, except for those exceptional cases in which the best interests of the child require that he or she be deprived of the possibility of being brought up by a father and a mother?
The rationale for the Hague Convention provisions derives from an inherited knowledge of the complementary nature of the sexes and the need for security and burden sharing. These concepts are not dealt with in the legislation. If it is illegal under the Adoption Act 2010 to bring a child into the country where he or she is not being adopted by a married couple, why is there a different standard in the Bill by refusing to acknowledge that there should be a prior element of the child having a father and a mother as being essential to his or her best interests?
Reference has been made to Dr. Geoffrey Shannon's comments.
I remind the Senator about naming people in the House.
I acknowledge that, but a note was circulated to all Members about this earlier and I am reminding the Senator of it.
I refer to proceedings at the health committee that are essential to this issue. Senator Jillian van Turnhout asked Dr. Shannon whether he had been misunderstood when he said marriage was the gold standard for families. In his response he said he had been misunderstood and that he had been talking about marriage in the context of all citizens having access to it. However, it is clear, given the question the Senator put to him, that he had certainly not been misunderstood on that point because that is precisely what he said.
He was speaking in the context of the civil partnership legislation and saying - arguing for it, in effect - that it would not, to use his own words, "diminish or demean the marital status." He said the civil partnership Bill proposals continued to see married as "the gold standard" and the best predictor of the durability of the relationship. He was talking about that in the context of not all citizens having access. I think those comments were made in 2008 when nobody was talking about same-sex marriage. By the way, Dr. Shannon is part of the reason I am a Member of the Seanad because he once beat me in an election for auditorship of the literary and debating society in NUI Galway, as a result of which I entered student politics.
May we keep to the amendment, please? The Senator is trying the patience of the Chair.
I understand that. I directly clarified with Dr. Shannon a quotation from the Child Trends brief which refers to the two biological parents in a low-conflict marriage providing the best environment. The claim has been made that that is not applicable to any consideration of a same-sex couple in marriage or a heterosexual couple in marriage. It seems strange to ask us to believe that despite that the international weight of evidence shows strongly the benefits of marriage, as opposed to lone parenting or cohabiting - with great respect and support for people in all those situations - the only situation that can achieve the parity with marriage is a situation where the child does not have access to the father and mother. That is stretching credibility. None of it takes from the essential proposition. We are certainly not talking about standing in judgment on any person's parenting. On the contrary, we are talking about identifying what works best most of the time. Even that is a separate issue from the core identification of a child's rights, especially the right not to be deprived in advance or deliberately of the complementarity of a father and mother relationship in their lives.
The amendments I have proposed do not seek to rule out any situation. They seek to require a social preference rooted in an authentic understanding of the child's best interests, not the politically correct understanding of the child's best interests I have criticised the children's rights lobby for confining itself to. I have said how I believe it is quite derelict in its duty in this regard, but it is a core element of trying to secure a child's best interests. Both Dr. Shannon's quotations directly confirmed to me by himself, both what he was quoted as saying in 2008 and in the Child Trends brief, various other studies which have examined this issue and a true and thorough analysis of the Convention on the Rights of the Child, not just looking at the bare front page of it but looking at the travaux préparatoires behind it, all support the contention that some of us have been making in the Seanad that one cannot simply ignore the right of a child to a father and mother wherever possible. The State should never countenance any interference with it except where the best interests of the child would dictate otherwise.
I wish to pick up on a point made by Senator Rónán Mullen who referred to the Child Trends research. That research was considered by the Constitutional Convention. The author of that research wrote to the chairman of the convention and said his own research could not be used to imply that children reared by same-sex parents do less well than those raised by heterosexual parents. That is not my opinion. That is the opinion of the author of the research. Let us be clear. The convention also looked at this issue and considered other research and heard expert opinion on it and the established view is that the most important thing from a child's point of view is that he or she is brought up in a loving, supportive, low-conflict and stable environment. It is far better from a child's point of view to be brought up by a committed, loving same-sex couple than a family headed by two heterosexual parents in a high-conflict environment. The most important issue is the quality-----
Senator Averil Power to continue, without interruption.
Some of these amendments do because they provide that priority should be given to heterosexual married couples regardless of anything else and regardless of the fact that the children in this situation-----
May we allow Senator Averil Power to make her contribution, without interruption, please? I ask for some courtesy.
As has been said, the determining factor in making an adoption order is what is in the best interests of the child. No one has a right to adopt under Irish law, and after this legislation passes, no one will have a right to adopt. All any adults will have, be they single or as a couple, is the opportunity to apply. It is then up to the authorities to weigh up all the different factors and decide what is in the best interests of the child. In some circumstances, that will be for the child to be adopted by a married heterosexual couple where everything else is taken into account. In others, it will manifestly be in the best interests of the child to be adopted by the same-sex couple who have been fostering the child for a long time and have a connection with the child. This will clearly be in the best interests of the child from a continuity of care point of view. All these issues have to be looked at in the round.
Reference has been made to restricting rights to married couples only rather than to cohabitees, civil partners or others. The House of Lords considered this issue in re P and decided that restrictions on cohabiting couples fall foul of the European Convention on Human Rights. That is an issue we have to take into account in legislating in this area. The most important aspect overall is the child's best interests. Unfortunately, in some adoption cases, if there is a difficult environment, the parents' view should be taken into account but perhaps should not be determining if child experts and others have a different view on what is in the best interests of the child. The most important thing is what is right for the child and that he or she is brought up in a loving and supportive home. On an adoption issue such as this, I ask people to strip out all the ideologies and prejudice against particular types of families. We should be led by only one thing, that is, what is best for that individual child in these circumstances. It will never be the case that, all things being equal, married family trumps everyone else. Life is not that simple; it is not that black and white; it is not a tick-box list of criteria. It is complex in terms of deciding who should and who should not adopt. We should leave that decision with people who, knowing all the facts of the individual case, are in a position to make a determination on what will give the child the best second chance in life and a second family.
My amendment No. 83 reads:
In page 85, between lines 36 and 37, to insert the following:
"(f) by inserting after subsection (7) the following subsection:
"(8) In making an order the Authority must act in the best interest of the child (having a mother and a father) and will give preference, in the first instance to married male-female couples, subject to paragraphs (a), (b), (c) and (d) of section 34.".".
The section 34 referred to in the amendment is in the principal Act lays out very clear criteria which must be applied to anyone seeking to adopt. It is not a situation where one is starting to compare a married couple who may be a little dysfunctional against others who may be very good potential parents. What it provides is that, all things being equal, preference should be given to married couples.
I compliment all those who adopt children. They give them a home, education, values and an opportunity in life. Adopting is admirable and the epitome of good Christianity in practice. Many fine people have been given a blessing, joy and happiness through adopting a child. Obviously, it gives the children love, care and opportunities in education and life that they would not otherwise have. I value adoption greatly. There are many children worldwide who need this.
The Senator should get back to the amendment.
The purpose of the amendment is to give preference in adoption to married mother-father couples, thus providing the child with a mother and father who are married to each other. The rationale behind that concerns the ultimate and most binding relationship commitment. Insisting that the adoptive parents be married would ensure adoptive parents could provide the child with a stable arrangement with a mother and father who are legally committed to each other. Complementarity of both genders is important for the best development of the child. Natural human reproduction provides children with an identifiable mother and father. In adoption law, we should try to ensure that adoptees are not denied the rights other children enjoy, including the right to a mother and father. Giving preference in the first instance to married male-female couples would give adoptees the same right to a mother and father as enjoyed by children who live with their biological mother and father. Indeed, in many instances it is because the child has not got that opportunity biologically and naturally that they become available for adoption. Therefore, the State, being in loco parentis at that stage, should ensure the child is afforded an opportunity.
I am aware that a great effort is made to reduce the status of marriage and motherhood and to encourage the idea that no matter what the arrangement is, diversity should be welcomed and is all very fine. However, when we discussed this issue five years ago in respect of the civil partnership legislation, the then Minister made the point that the chairman of the Equality Authority, whom he quoted, made a statement welcoming the fact that Marriage Equality, one of the organisations involved, was undertaking a survey and that it would clearly show the benefits, or otherwise, for children in same-sex relationships. That survey was published and widely welcomed. It involved 11 young children who had been interviewed personally, in some instances with the parents present. Nobody would accept that as a scientific study. I have seen surveys and research from the United States. Much of the studies are recent and most have used such small samples that one cannot really draw any sound conclusions from them. One had 520 participants and it raised questions. I will not discuss this study because I do not know it and am not qualified to do so, but I contend we need to be careful in drawing conclusions about the effects on children of all different types of family relationships. When speaking yesterday, I gave evidence - it is well researched and well accepted - that the biggest risks to children are from the relationship of a mother who is cohabiting. In general, children in this category are at much greater risk. There is widespread evidence of that from surveys in various countries.
There is dismissal and, to some extent, an effort to close down debate on this issue. A magistrate in Britain recently expressed the opinion during an adoption case that children ideally need a father and a mother, which accords with what I am saying. The experienced magistrate, from Kent, found himself at the centre of an investigation. England's highest judge and a Cabinet Minister gave him a public scolding, telling him that his Christian views about the family were discriminatory against same-sex couples. He was banned from sitting as a magistrate until he completed a course in equality training.
This proposal is not about equality of adults. If adoption is to be about anything, it ought be about the best interest of the child. We need an open, frank and very honest debate on this, not one that accords with a specific agenda to meet a particular ideology. I take Senator Katherine Zappone's statement that I have my own ideology on many of these issues.
I am taken with the comment made by former Minister Rory O'Hanlon when he dealt with the issue on Committee Stage in the Dáil in 1991. He said:
Everybody will accept it is generally in the best interests of children to be reared in a home where there are two parents. It is not a general thing for a single person to adopt a child, it is only in very exceptional circumstances that it will apply.
On Second Stage, I quoted the Adoption Authority of Ireland. I am not sure whether I should be saying this, but I met the Minister at a private meeting and she said there was no hierarchy, although the website of the Adoption Authority of Ireland clearly indicates that there is and that not all persons are treated in the same fashion. Obviously, the applicants have to be suitable and meet the criteria, which I accept, but unless there are very particular circumstances involved, sole applicants should not be considered for adoption. That is all to do with the best interest of the child. There is nothing wrong with this.
Adoption should aim to provide a child with something as close to the natural biological family as possible. It should aim to replace what the adoptee has lost, namely, his or her own mother and father. Adoption by a married man and woman would achieve this.
If Senators Fidelma Healy Eames and Feargal Quinn rephrased amendment No. 68 slightly, so as to refer to taking into account the wishes of the mother, I would be happy to support it. However, I imagine the authorities already do take the wishes of the mother into account. It would be very foolish to completely ignore them.
I want to hear it from the Minister.
Yes. I would have no problem accepting this if rephrased by Senator Fidelma Healy Eames to take into account the views of the mother. Of course they should be taken into account. As that is perfectly obvious, I have no problem with it.
On the question of mothers, fathers and parents, after the passage of this Bill a gay couple or cohabiting couple will be the parents of the child legally. That is that dealt with. All the recent international examinations and scientific studies of parenting demonstrate one point very clearly, namely, that it is the quality of the relationship, not the gender or people involved, that affects the welfare and well-being of the child. I will not refer to all the studies, but I can if Members want.
The gentleman who was referred to, whom I will not name, stated on the wireless the other day that he had been mischievously misquoted. The person who uttered the words should be the person to define what he meant by them. For another person to stand up and impertinently state, "Well, he meant this and I know because I am me-----
I ask the Senator to stick to the amendments before us.
I am just referring to what was said.
I will leave it at that.
I have a question on amendment No. 72, in the names of Senators Rónán Mullen and Feargal Quinn. It is unnecessarily restrictive and, therefore, I oppose it. It states: "other than an applicant or applicants referred to in section 33(1)(a)(i) or section 33(1)(a)(ii)" I assume this refers to section 33 of this Bill, because it does not state otherwise. However, that section deals with registers.
It does not seem to have any connection whatever with the applicants. I wonder if somebody could clarify that matter for me. Am I correct in my interpretation that section 33 deals with the register of donor-conceived persons and does not, in fact, deal with applicants for the process? That is as I read it. I would be grateful for some guidance as to whether I am correct. If I am correct then there is a technical mistake in the amendment and it should be withdrawn.
We note the question. Perhaps the proposers might get back to Senator David Norris with clarification.
I wish to make one remark and one correction to something Senator Jim Walsh said. All children need love, preferably from loving parents, and to have as many people as possible in their lives who can love them. The sex of the parent or parents makes no difference in their capacity to love and care for a child.
That is not, in fact, true.
You know that it is true.
Senator Susan O'Keeffe should be allowed to speak without interruption, but she should speak through the Chair.
Senator Ivana Bacik has asked me to make an important correction. Senator Rónán Mullen suggested-----
He is not present in the House. The Senator might say, "It was suggested".
I beg your pardon. He is not present, but I cannot see behind me. It was suggested that the Hague Convention does not permit single people to adopt. It does in fact permit single people to adopt, and there have been a number of inter-country adoptions in Ireland by sole adoptees. It is important to correct the record.
From my experience, in practice the decision on who may adopt a child is primarily that of the birth mother. That is the reality. I think Senator David Norris referred to that point. The birth mother has extensive information on prospective adopters. That is the absolute best practice and that is what happens before she gives her consent. If anything was to develop that she did not like, she would have the opportunity to withdraw her consent also. If, for example, the child is going to somebody with whom she is not happy, there is a period within which she can withdraw consent. It is important to remember this.
There is no doubt that the mother's decision making includes everything that is of relevance to those who propose to adopt. The birth mother looks at the whole range of factors made available to her about the couple who want to adopt. She would be told details about their lives in general, their gender and whether they are married or single. That is the current practice. In the selection and matching process for domestic adoption in this country, significant consideration is given to the views and wishes of the birth mother in terms of what type of family she wants her child to be raised in. The preferred approach to matching and selection of prospective parents is collaborative with the birth mother and the accredited body, namely, the Child and Family Agency. The aim is to find the best placement available to meet the needs of the child. In fact, there is very little conflict evident in that regard from the statistics to date on adoptions under the 2010 Act. There has not been any disagreement between a birth mother and the agency on the choice of prospective adopters.
The child's best interests are the paramount consideration, and being in compliance with Hague Convention standards. The ultimate responsibility for the decisions taken in the matching process for children in the adoption process lies with the teams of professional workers managing the adoption services working with the birth mother. The birth mother is assisted to reflect on her wishes and views in regard to the kind of parenting experience she thinks her child will get from the family, the socioeconomic background, the willingness to meet birth parents prior to placement and, increasingly, after placement. As we move towards more open adoption, issues that are considered include sport, community involvement, urban versus rural factors, similarities to her personal social circumstances, religion, health, age, race and culture, and ability to care for the child on a one-to-one basis at home. A mother is given the choice of a number of placements, usually between three and five. Huge consideration and attention is given to what the birth mother wants. The applicant profile information that a mother is given is non-identifying, unless it is a more open adoption.
I do not think it is justified to insert an additional criterion in law when the current practice is already working effectively and is already involving the birth mother appropriately in the selection process. I just do not think it is necessary. There is no need to add it in as an extra criterion, as it is there and one still has the huge consideration of the best interests of the child. The primary and overriding consideration in determining whether an adoption should be facilitated is whether, as many Senators have said, the adoption serves to advance the welfare of the child. The is the guiding principle. I do not agree that adoption should be determined through a process in which there would be a hierarchy of preferred family types, as outlined by Senator Jim Walsh, with opposite-sex couples being given preference. The reason I say that is adoption is a child welfare mechanism and therefore that is what should be at the centre. Decisions on the suitability of potential adopters are not taken on the basis of one criterion, namely, the relationship status of the adopters. What is important is the broad outline and suitability of the potential adopters to address the needs of the child and to provide the child with a loving and stable home. One does not take out one aspect of a person's life and make a decision in regard to that. One looks at all of the issues and one does not establish a hierarchy of family types because that could preclude considering what is in the best interests of the child. The primary and overriding consideration is advancing the welfare of the child.
I have checked with the Adoption Authority of Ireland and I am aware from my own experience as Minister for Children and Youth Affairs of the kind of criteria used for assessment. Following an assessment by Tusla, adopters must be deemed to be suitable to have parental rights and duties in respect of a child. They must be of good moral character and must be in good health and of an age at which they have a reasonable expectation of caring for and supporting the child appropriately throughout his or her childhood, and obviously adequate financial means. Huge consideration is given to the views and wishes of the birth mother as to the kind of family she wants. That is very important. The process is collaborative. The current process is much more suitable for the achievement of the primary objective of safeguarding a child's welfare than one that focuses on relationship status. I would not wish to move to a situation where we would have the hierarchy suggested.
I refer Members to some very interesting research on this issue by Professor Susan Golombok from Cambridge. She has published very widely on how children fare in same-sex families. In fact, she found no difference in the adjustment of children adopted by gay fathers, lesbian mothers or heterosexual parents. She found extremely positive parenting by gay fathers, for example. Senator Averil Power made the point a number of times that the research shows that it is the quality of the relationship between the child and the parents that is most predictive of good outcomes for children and, therefore, it is important to keep the focus wide in terms of assessing criteria for children. There could be lots of situations where one particular family type or another might be the choice of the birth mother, depending on her own preference, experience and status. That is something on which nobody has commented, but it is important to keep that in mind as well. The wishes of the mother are very important but adoption decisions are primarily about child welfare and making the best decision for the child. I do not think it is essential to make such a change, and one would not do it based on the research and also from an equality perspective or any of the criteria from the point of view of meeting Hague Convention standards and in relation to the ECHR.
I thank the Minister for her response, in which she quoted research carried out in Britain.
She did not acknowledge, as I did - I did not give details of the research at which I had looked - that the problem was that the numbers were so small that anybody involved in considering the best interests of children in this type of research readily conceded that there were insufficient numbers from which to draw conclusions. The Minister, however, seemed to be quite happy to draw conclusions. The largest number I have seen is in the United States, at 520. It shows a range of areas in which children do not do nearly as well in same-sex couple relationships.
Will the Senator give the precise reference?
There are a number of them. There are at least three of which I can think and they are as readily available to Senators here as they are to me.
I cannot find them. The Senator should give them.
There are plenty of them.
The Senator should also state who paid for them because that is relevant.
When it comes to who paid for them, I have heard Senators talk about the issue of money coming from America. I have debated this issue a number of times in the House. I compliment GLEN on its professionalism and resources. I did not realise it was getting €17 million from Mr. Chuck Feeney's Atlantic Philanthopies. That money is not available to other groups. The same applies on the issue of abortion. The Irish Council for Civil Liberties, ICCL, has received €7 million or €8 million from the same fund to promote the availability of abortion in this country. When somebody talks about the weighting of funding, it is clear-----
On a point of order, I ask the Acting Chairman to request Senator Jim Walsh to withdraw the allegation that the ICCL, on the board of which I served, was set up to promote abortion. No one in this country promotes abortion. We accept the reality in respect of there being specific circumstances.
That is not a point of order. The Senator should allow Senator Jim Walsh to speak, without interruption.
On a point of order, can we go back to the substance of the amendment?
The Senator was asked by Senator Susan O'Keeffe to specify.
I asked the Senator for the titles of the surveys.
On a point of order, the observation made by Senator Jim Walsh on ICCL should be withdrawn, as it is absolutely untrue. Regardless of whether he ought to get back to the amendment, it is untrue.
Will Senator Jim Walsh, please, keep to the amendment?
Absolutely. I am not in the least surprised that Senator David Norris is a director of the ICCL.
I am not. I was on the board for a number of years, but I have no connection with it whatsoever now, except that I am a supporter of it.
Senator Jim Walsh is out of order. It is not relevant to the amendment. There is no need for Senators to start personal attacks. The Senator should stick to the amendment.
I will. If I am not provoked, I will stay on the subject matter.
(Interruptions).
Senators should let Senator Jim Walsh speak. All of the interruptions are doing us no good in the debate. Senators should let Senator Jim Walsh speak and he should keep to the amendment.
I say to the Minister that the research is insufficient. There are conflicting conclusions that one can draw, but what is not in dispute in the many pieces of scientific research conducted in other countries is that it is clear that children's best prospects for development are within married couple family status.
When one talks about hierarchy, I am not in the least trying to differentiate between families. Every family, particularly in the current economic climate, regardless of diversity, is finding it extremely difficult. What I will say is that those children who find themselves up for adoption deserve the best placement. The criteria of the adoption authority apply across the board, regardless of the applicant involved or his or her family circumstances. In effect, all I am saying in my amendment - the Minister is being a little disingenuous in trying to say it would apply different criteria - is that, subject to meeting all of the criteria laid down, in which I also take into account the mother's wishes, and all other things being equal, preference should be given to providing for placement with a married couple. I consider this to be in the best interests of the child because it provides for placement of the child with a mother and a father.
On role models, gender matters. There are Senators who argue that it makes no difference what gender someone is. Gender matters significantly when children are growing up. On growing up in a household in which there is diversity, it is contradictory for commentators to put forward the argument that diversity is good, but when it comes to children in a family, we will eradicate diversity. That is not a logical argument to make. That is why I will be pressing the amendment.
I am happy with quite a lot of what the Minister has stated in response to my amendment which I tabled to seek the clarification she has offered to me. My amendments, supported by Senator Feargal Quinn, seek to ensure all family types would be discussed and offered as part as the adoption assessment process. I wish to clarify that the birth mother's preference as to family type would be noted. I had presumed everything I was saying would be the case, but it was good to hear it from the Minister. The best interests of the child must be central. The birth mother is the natural mother and her voice has to be heard. When I was assessed to adopt, under the Hague Convention on both occasions, the birth mothers had the total say, which, being honest, I felt was right. We are talking about a life and the adoption assessment should be difficult because one is going to be honoured with a child. I spoke to the adoption authority about this issue and the principle of informed consent was sacrosanct. I accept that there are now only a number of adoptions here, but in the case of all referring countries the adoption assessment is made in Ireland. I have it on good authority that most referring countries, with the exception of South Africa, accede to the birth mother's wishes on family type which I think is interesting and important. It was one aspect that I checked. In the debate on the Adoption (Identity and Information) Bill 2014 Senators Jillian van Turnhout and Averil Power and I spoke about how wonderful it was when the birth mother met the child she had placed for adoption. It would be awful and unreasonable if on that day she were to find out that her child had been placed with a family of a type that was different from what she had indicated she would like for her child.
There have been a few red herrings in this debate. I have looked at research on this issue. While I am not in agreement with everything Senator Jim Walsh is saying, where he is accurate is that research in this area is insufficient. On studies of family type involving gay couples, the numbers are too small to draw conclusions from them. I completely agree that the quality of a relationship matters, but the environment in which a child is being raised also matters. If I was to be bold and quote some stuff I have read about anecdotal accounts of children being raised in same-sex couples and finding it difficult to be heterosexual as they grew up, that would be an example of insufficient research because the numbers are too small to generalise.
Is there any possibility that a child might be placed with a heterosexual couple when the birth mother might have said she wanted to place the child with a gay couple or vice versa? The answer to these questions will decide whether I will press the amendment.
All of my experience in this area, as somebody who carried out adoption assessments, as a former Minister for Children and Youth Affairs and from my contact with the Adoption Authority of Ireland, is that the views of the mother are a huge factor in placement issues. It is the practice that several families would be discussed with the parent. Clearly, the mother's wishes are very central to the process. There is no question about this. Although obviously I cannot vouch for this 100%, I understand the practice is that every attempt is made at what is called "matching" in terms of the adoptive families who are available. For example, if a mother expresses a wish for a particular family type in the course of the assessment of who is suitable for her child, in the discussions and in the counselling that takes place, that would be part of the discussion, and if there was a change from that I have no doubt it would be discussed with her and she would have the option not to place her child.
I will clarify something for Senator David Norris. Section 33 mentioned in amendment No. 72 actually refers to section 33 of the Adoption Act.
There is something else I wish to correct; I meant to do it yesterday. I wish to correct the record of the House in regard to the identity issues of the donor conceived child. I have said that the child when seeking a passport when over the age of 18 years would be contacted and informed that there is more information in the national donor conceived person register. That was an error. I intended to say it was when the person sought a birth certificate and I was anxious to clarify that matter. I inadvertently said passport.
I thank the Minister for that clarification. Perhaps she might give consideration to having some connection when the person is applying for the passport also, because the person might not be applying for a birth certificate. That might happen only rarely. There could be some other mechanism to trigger the knowledge being given to the person when they apply. Perhaps the Minister might consider this.
One needs to have a birth certificate to apply for a passport.
Yes; therefore, it is connected.
Fair enough. However, a passport lasts ten years.
The Minister might look at that issue.
Is the amendment being pressed?
I will consider it over the weekend and perhaps table it on Report Stage.
Amendment, by leave, withdrawn.
Sections 106 to 109, inclusive, agreed to.
Amendment No. 69 not moved.
Section 110 agreed to.
Amendment No. 70 not moved.
Section 111 agreed to.
Section 112 agreed to.
Amendment No. 71 not moved.
Section 113 agreed to.
SECTION 114.
Amendments Nos. 72 to 82, inclusive, not moved.
I move amendment No. 83:
In page 85, between lines 36 and 37, to insert the following:
“(f) by inserting after subsection (7) the following subsection:
“(8) In making an order the Authority must act in the best interest of the child (having a mother and a father) and will give preference, in the first instance to married male-female couples, subject to paragraphs (a), (b), (c) and (d) of section 34.”.”.
Amendment put and declared lost.
Question, "That section 114 stand part of the Bill," put and declared carried.
Amendment No. 84 not moved.
Section 115 agreed to.
Amendment No. 85 not moved.
Section 116 agreed to.
Section 117 agreed to.
Amendments Nos. 86 to 88, inclusive, not moved.
Section 118 agreed to.
Amendment No. 89 not moved.
Section 119 agreed to.
Section 120 agreed to.
Amendments Nos. 90 to 92, inclusive, not moved.
Section 121 agreed to.
Section 122 agreed to.
Amendments Nos. 93 to 101, inclusive, not moved.
Section 123 agreed to.
Amendments Nos. 102 to 104, inclusive, not moved.
Section 124 agreed to.
Sections 125 to 129, inclusive, agreed to.
NEW SECTION
I move amendment No. 105:
In page 89, between lines 17 and 18, to insert the following:
“
Amendment of section 89(2) of Principal Act
130. Section 89(2) of Principal Act is hereby deleted.”.
This amendment is designed to deal with where an adoptive person might not be aware that they are adopted. I understand that prior to the Act being amended in 2010 an adoptive person would get an adoption certificate rather than a birth certificate. In my case, for example, I recall going to the office to seek the first birth certificate to get a passport and being told that they could not give me my birth certificate as I was adopted and that I had to go upstairs to get an adoption certificate. Thankfully, I was aware of it by then as my parents had told me I was adopted, but if I had not been aware of it, I would have found out at that point.
As I understand it, adopted people are given the same birth certificate as anyone else and there is no annotation on the birth certificate that the person is adopted. That runs the risk of people not finding out they are adopted.
I have heard all kinds of horror stories from people who only found out later in life. Years ago people did not travel as much and one did not need a passport or one's parents got the passport on one's behalf. I understand that one does not need a birth certificate to renew one's passport and it is only required to get one's first passport. There have been examples where people have only found out only very late in life that they were adopted. Perhaps they only found out when a parent passed away. Some individuals I have dealt with have told me that the last thing their mother told them, just before she passed away, was that they were adopted or another family member told them to get the matter off their conscience. Those people felt they could not die without telling the truth to the adopted person. It is at such times that people find out their aunt is their mother or things like that.
I cannot stress enough how distressing this is when it is done late in life. It is essential, therefore, that people are made aware that they are adopted. Ideally, it should be done in a supportive way by one's parents and at the youngest possible age, which is best practice now. In the past these issues were not really talked about and a lot of secrecy surrounded adoption. As the Minister has said, the emphasis in the system now is on openness and encouraging people to talk to their children about this issue as they grow up, not to make a big deal or issue of it and have open dialogue the whole way. Unfortunately, we still have to cater for worst-case scenarios. It is essential that the State ensures information is conveyed at least when documents are requested. The information will be provided in the AHR-DAHR context. It means that when a person seeks their birth certificate, they will be told additional information is on file which will act as a trigger to make them aware they were donor-conceived. A similar process should be provided for adoptees. My amendment deletes the current section where it states there will not be an annotation on the birth certificate.
I support the amendment. I have followed the debate in the House and know that Senator Averil Power who has a personal interest in this matter has brought forward a Bill in the House in this regard. I agree with her that there should be some mechanism. I am unsure at what stage the child should be made aware but it should be done at some stage either in adolescence, at 16 years or 18 years. Within that sphere there should be some mechanism whereby the child becomes aware of being adopted. If that is the case, and it is known, parents will take the preliminary steps to prepare their child for receiving such knowledge. I am aware that in many instances parents will tell their child as they are growing up. They will tell them limited information that can be absorbed at that stage. Such a revelation does a lot to ensure the avoidance of any dislocation of the relationship with the parents or any psychological effects that might occur when the child finds out at a later age.
I urge the Minister to take a look at this matter to see what might be done. I do not have any great insights into the matter other than to say I agree fully with the principal objective of what has been said. The onus is on the State to ensure the information is conveyed and that it is not just in later life that someone accidentally stumbles across the fact when the discovery can have a fairly traumatic effect on that person.
I know that Senator Averil Power has very strongly held views on this issue and I respect that. I understand the point that the abridged certificate may facilitate parents in some cases to hide from children the fact that they are adopted. There are advantages and I do not know whether she would agree. The argument would be made that the current certificate will also ensure that adopted children need not disclose their status in every situation, such as when seeking a job. It might be neither necessary nor appropriate that the certificate would say so and one would have the option of the current certificate.
The provision in the Adoption Act 2010 allows for the introduction of an abridged version of the adoption certificate which was established to protect the privacy of adopted people and their families. That was the argument made. The 1952 Act provided for the issue of a short-form certificate which was similar to that of a short-form birth certificate. The short-form certificate was the same format for both adoptions and births and did not disclose the fact that a person was adopted. However, as the certificate contained only limited information, its use became less and less acceptable in recent decades. As a consequence, families were forced to obtain an adoption certificate which disclosed the person was adopted.
The Registrar General has indicated that at various meetings with adoption organisations over the years, representations were made to have the option of obtaining a certificate that did not disclose the fact that the person was adopted. Adopted persons and their families have long felt that they were being discriminated against under the old legislation because there was no provision for the issue of such a certificate. As a result, when the 2010 Adoption Act was coming in and being drafted, a recommendation was made that a provision reflecting this be included in the Act. As the Senator will know, the Adoption Act 2010 (Abridged Certificate) Regulations 2011 gives effect to the provision.
The abridged certificate is headed with the words "birth certificate" and nothing contained in the certificate discloses that the person to whom the certificate refers has been adopted. It is the policy of the General Register Office to issue the abridged certificate unless the applicant specifies that he or she wants a certificate of adoption. It is important to note that certificates of adoption are still available as there are certain circumstances in which such certificates are needed. It is important to point out that an adopted person or their parents may obtain either an adoption certificate under section 87 or an abridged certificate under section 89, and I have outlined the differences between them.
I am sure Senator Averil Power will make a counter-argument to my assertion that the existing arrangements give adopted persons and their families control over when and to whom the fact of adoption is disclosed. Were the proposed amendment to be passed into law, some would probably say it was a backward step in terms of the right to privacy. One of the key issues is that adopted people are treated with the least amount of differentiation as possible from people who are not adopted. Some would make the argument, and some young people might make the argument, that they do not want to stand out as different. Obviously they want to know they are adopted and perhaps that is the Senator's key point in terms of access to the information. The privacy argument was the one that was predominant in 2010 at the time the provision was brought in.
The process of adoption confers all co-relative rights and responsibilities on adoptive parents and their adopted children under the law, the Constitution and international treaties. The Senator's amendment stems from the privacy argument as opposed to the identity argument. These people and their families have the same rights to privacy as all others. It can be argued that the fact of adoption is of no relevance to any person or organisation other than the people involved and that they should retain the right to make any disclosure. Obviously there is recent history, and we have argued in regard to AHR about the importance of identity and of access to identity. I assume the point the Senator is making is primarily about the trigger for awareness. Is it?
There is no other trigger.
Yes, the trigger for awareness.
In the absence of this, there is no trigger.
I understand. I am not in a position to accept the Senator's amendment. As I say, there were obligations. Perhaps when the adoption legislation comes in, that would be the place to have a fuller discussion on this amendment.
I was going to make a similar suggestion. We had an extensive debate in this House about the civil registration legislation. I tabled an amendment in the same spirit as the one Senator Power has tabled to this legislation. The difficulty is where to locate the trigger when a parent chooses not to tell. One needs a birth certificate to get a passport. Once a person has his or her passport, the only other life events for which one will need a birth certificate is to buy land or get married, and that is the reason.
I welcome what the Minister has said and her understanding. This matter is a point of principle for me, as I know it is for Senator Averil Power. I would be happy to debate the matter in the wider adoption area. Obviously I am very supportive of what the Senator has proposed.
I welcome the Minister's understanding of the issue. My concern is that in the absence of the provision, there is no trigger.
With regard to passports, my understanding of it is that one's birth certificate is needed for the first passport but if one's parent gets one a passport as a child and one seeks to renew, a birth certificate is not needed for the renewal. These days people travel. When I got a passport at the age of 18 years, which I applied for in my own right, we had never travelled as a family outside the State but that would be unusual now. Unless somebody is getting married, they would look for the birth certificate. In my scenario, and prior to 2010, one would know at least at that point that one was adopted, if one had not been told previously, whereas now there is no trigger whatsoever. That is deeply worrying.
We can return to this issue in regard to the adoption legislation. I become concerned when I hear various Ministers referring to the Government's intended adoption legislation because we have not seen it. I take the opportunity to remind the Minister, although I am sure she needs no reminding, that this House passed all Stages of our Adoption (Identity and Information) Bill. I know it would be the hope of Members on all sides of this House - Government Members have told me this and have said on the record of the House - that the Government would progress that Bill and not wait to develop the heads of a new Bill and go through that entire process, because we have only a year left to run and there is goodwill on all sides of this House for the adoption identity and information issue to be dealt with. I take the opportunity to mention that because I know the Minister has a personal interest in this area.
Amendment, by leave, withdrawn.
Section 130 agreed to.
Amendments Nos. 106 to 111, inclusive, not moved.
Question, "That section 131 stand part of the Bill," put and declared carried.
Sections 132 to 165, inclusive, agreed to.
SECTION 166
Question proposed: "That section 166 stand part of the Bill."
On the section, this is to do with orders under the Family Law (Maintenance of Spouses and Children) Act. I take a particularly strong view on the issue of maintenance. Unfortunately, as we debated earlier, it is women who are left literally holding the baby and taking full responsibility for the rearing of the child and for all the costs attached to that and it is time for a greater emphasis to be placed on the financial responsibilities on men who father children. There is an obligation in that respect. If I am as strong about the genetic and biological tie I have to be equally strong about the responsibilities, and they are often not fulfilled. I am aware efforts are being made, particularly in the area of social welfare payments, to try to recover some of them from the fathers of those children. I am also aware that there are instances where the mother and the father may be living together but because of the way we have structured our housing and social welfare benefits, it is profitable not to disclose that information. It is not good enough that every other taxpayer has to fund a situation when people are in a position to do it themselves. I do not have difficulty if the parents of the child do not have the financial resources to do it. There is a responsibility on the State in those circumstances to give some level of sustainability to the family and to the child but much more needs to be done, and the State must be far more interested in ensuring that this happens. I do not make an apology to anybody for saying this. Responsibility comes with fathering a child, be it a mother or a father, and that should be fulfilled. It is the Minister's duty, as Minister, and our duty, as legislators, to ensure that is the case. If the Minister can give effect to that, it will mean that the parents will probably take a greater interest and have a greater involvement in the rearing of that child. In terms of the way the system currently operates, the father goes missing intentionally, although in some instances that is not the case, and some fathers are very good. I am aware of cases where the mother and father no longer have a relationship but where they both work together co-operatively to ensure the child has the involvement of both parents in their lives, and they both make a contribution financially to that child, which is as it should be. I am talking about those who do not fulfil that responsibility. Unfortunately, we have become so politically correct and afraid to say anything that will offend anybody because it might lose us votes that we are allowing very bad policies to evolve. The time has come to cry "Halt" in regard to it. I say that in the interests of the children but also in the interests of the hard-pressed taxpayers who are paying their taxes with great difficulty. Those taxes should be spent wisely and not in an unnecessary way or to subsidise somebody else who should be making their financial contribution.
The point on maintenance is well made. The position is improving. There are aspects of this Bill to do with maintenance recovery. The family law courts will better assist efficient dealing with maintenance in enforcement applications.
Question put and agreed to.
Sections 167 to 180, inclusive, agreed to.
Amendment No. 112 not moved.
Schedule agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take Report Stage?
Report Stage ordered for Monday, 30 March 2015.
When is it proposed to sit again?
The Seanad adjourned at 6.10 p.m. until 2.30 p.m. on Monday, 30 March 2015.
