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Seanad Éireann debate -
Tuesday, 31 Jan 2017

Vol. 249 No. 12

Adoption (Amendment) Bill 2016: Committee Stage

Sections 1 and 2 agreed to.

Amendments Nos. 1, 4 and 12 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 6, between lines 16 and 17, to insert the following:

“(e) a birth grandparent, siblings, or other blood relative, who has played a formative, active and beneficial role in the life of that child, as may be determined by the Authority;”.

Having given further consideration to this amendment, I am satisfied with the Minister's answers on Committee Stage in the Dáil. I am happy to withdraw the amendment, with amendments Nos. 2, 4 and 12.

Amendment, by leave, withdrawn.
Section 3 agreed to.
Sections 4 to 6, inclusive, agreed to.
Amendment No. 2 not moved.

Amendment No. 3 has been ruled out of order as it imposes a potential charge on the Exchequer.

Amendment No. 3 not moved.
Question proposed: "That section 7 stand part of the Bill."

I recognise that amendment No. 3 has been ruled out of order. At this point, I would like to reserve the right to reintroduce further amendments in respect of this area on Report Stage. The amendment touches on and is complementary to some of the other amendments raised by Senator Fintan Warfield who I recognise has withdrawn them.

Having campaigned very passionately in the children's rights referendum, I very much support the Children and Family Relationships Act. The key point being discussed in the amendments is the importance of recognising the full diversity of relationships which a child should have. It is a cross-cutting point. We will come later to the question of open adoption, but there is also the question of how we ensure we are really promoting the best interests of the child. I recognise the valuable role of the Bill in producing security and continuity and allowing for adoption in many circumstances where it would be valuable for the child. However, the child also has a diversity of relationships, not just with the birth parents but also with the wider family, for example, the siblings he or she may have and the grandparents. We are aware that, in many cases, it may be difficult for grandparents to either foster or adopt owing to constraints such as age and circumstance; therefore, it is very important that the diversity of relationships be maintained.

I know that this view is very strongly felt by many organisations which work on a voluntary basis across such cases in Ireland. We see voluntary arrangements being put in place between new adoptive parents and former birth parents, but they have no legal status or security. Moreover, in what I believe is an omission, they are not reflected in the Bill owing to the constraints in the current model of adoption which is very much a zero-sum model and one I do not believe serves the wider best interests of the child. I believe the Bill is and should be the opportunity to develop a genuinely strong network of relationships for the child to ensure that possibility.

I also want to speak about a contact plan being put in place, potentially not just at the point of adoption but perhaps at a later stage.

Later we will discuss the fact that circumstances can change. A birth parent who is not in a position to be a primary carer or who may no longer be in a position to parent might nonetheless arrive at a position of having the capacity to have a meaningful relationship with the child. How is that to be facilitated? There is something of a limbo post-adoption in Ireland. My proposals certainly do not seek to impose anything, but they would be amenable to and could be requested by all parties but only with their agreement. I urge the Minister in the period between now and Report Stage to work with us to find ways by which we can ensure that type of contact plan which Barnardos and other organisations have made clear are informally in place in many cases, which would have a meaningful legal basis and which would be recognised, supported and, if necessary, given resources.

It might be my reference to resources that led to my amendment being ruled out of order; therefore, I will probably remove that reference on Report Stage. However, as I am sure the Minister will acknowledge, resources are necessary. There are provisions and informal mechanisms which have allowed meaningful contact, even with birth parents who are not in a position to act as primary carers. Again, siblings are another key concern, as are half-siblings, cousins and the wide network that makes up a child's universe, particularly in cases where children are moving from a family perhaps into foster care and have already experienced a childhood with another family. The deep issue we must consider in Ireland - as I will reach it in my later amendments, I will not go into detail on it now - is recognising that we can be open and loving in terms of complexity, yet still ensure security. We must move beyond a drive towards a very simple narrative of the family unit which led to some very poor practices in the past.

I have some brief comments on section 7. I record my thanks to the Minister for expressing, in her concluding remarks on Second Stage, her intention to introduce the information and tracing Bill in the Seanad on 7 March. I am grateful to her for confirming this in response to a specific query I had raised with her. I tabled amendment No. 20 on an adoption tracing scheme with the intention of withdrawing it in the light of the Minister's announcement on Second Stage. However, it has also been ruled out of order on the basis that it involves a potential charge on the Exchequer. I had intended to support Senator Alice-Mary Higgins' amendment No. 3 on a similar basis, in that it dealt with this very important issue for adopted children of knowing their identity and origins and, if possible, having information on their birth family. Her amendment addressed that key human concern.

It is welcome that the Minister will introduce the Bill I mentioned in the Seanad. My colleagues and I would also welcome the opportunity to meet the Minister and her officials prior to the Bill being introduced in order that we could discuss some of the issues dealt with in the Bill and ensure our concerns about the sensitivities of all involved were met. This is a complex area and it has taken a long time to legislate for it. However, we addressed all of that on Second Stage. There is a huge welcome for the Bill, as there will be for the information and tracing Bill when it is introduced. Nevertheless, it would be good to have some consultation in advance on potential amendments that might be made in the Seanad.

I appreciate the Senators' contributions. I am delighted to be in the Seanad and reflect with Senators on the different amendments and sections of the Bill. That is the great thing about the Seanad. Senator Alice-Mary Higgins has presented her strong and articulate views on an amendment that has been ruled out of order in the context of her understanding of this section, as well as on the wider issue of proposals to create a more open adoption process. However, we will come to that issue in dealing with some of her other amendments which I understand have not been ruled out order owing to the cost issue, as was the case with amendment No. 3.

The Senator's wider points are related to the importance of acknowledging the diversity of relationships, particularly the diversity of the family unit. I am sure she will agree that the Bill goes a long way towards doing that, not only in the context of bringing forward a recognition of the diversity of relationships and the possibility of adoption for cohabiting and civil partners but also in extending the definition of the relevant non-guardians and incorporating the wider number of relevant non-guardians in a number of aspects of the Bill.

The Senator has pointed to the importance of the informal supports provided. They are supported by the statutory agencies, if there is agreement, in terms of contact between birth parents and adoptive parents and supporting children. The Senator suggests more formalisation of these supports. We hope to debate that issue more extensively in the context of the information and tracing Bill which Senator Ivana Bacik mentioned when there will be an opportunity to do that a little more in statute as distinct from in this Bill. Of course, I would welcome the opportunity to meet the Senators and others prior to that really important Bill being introduced in the Seanad. We can spend as much time as is necessary discussing it in the Seanad to ensure it is as good as it can be before it goes to the Dáil.

I thank the Minister for her response. I acknowledge that one of the strong features of the Bill is that it recognises the family unit as including step-parents which I very much welcome and all forms of partnership. Of course, we are moving beyond recognising civil partnerships to recognising marriage between same-sex couples and the full diversity of the family unit. My point relates to the family network which is even wider than the family unit - in Ireland there is a strong focus on the family unit - and to the wider network of meaningful relationships. The Minister might not be able to comment, but - this issue also arose in the Dáil - perhaps there might be a wider definition of relevant non-guardian. Will the Minister give a sense of where she believes she might be able to go in widening that definition to reflect the wider spectrum of family relationships?

I am concerned that we might fall between two stools. We are hearing that some of the issues we are discussing might arise in the information and tracing Bill. The Minister has acknowledged that the contact plan and the measures involved are happening informally, but the Bill offers no recognition or accommodation of them. It is important, between now and Report Stage, to find some way to build in a recognition of these agreements whereby they might be supported. In one sense, the Bill might be moving forward. However, in the information and tracing Bill we might not be in a position to amend this legislation because it might still be held up. It is important to have a meeting between Committee and Report Stages to ensure the Bill will be ready to serve and complement the information and tracing Bill and will not require amendment.

I have no difficulty with meeting the Senator to see if that is possible. As we come to other sections, we can tease out a little more the ways in which the legislation can respond and support the wider family network. However, my understanding is we must accept and acknowledge and be attentive to the basis of the legislative framework for adoption in this country which is closed, not open.

That is our starting point, about which I will say a little more later. Are there ways by which we can, even in the context of not having an open adoption process, incorporate aspects of more open systems and support the wider family network?

Question put and agreed to.
Amendment No. 4 not moved.

Amendments Nos. 5 and 19 are related and may be discussed together.

I move amendment No. 5:

In page 10, between lines 29 and 30, to insert the following:

“(8) In circumstances where practicable and possible and where the parties agree, provision for an open adoption should be considered.”.

This amendment deals with an open adoption model. In many parts of the world we are seeing a shift towards open adoption and it is something that has been recommended by many of the organisations that work with children and on the issue of children's rights. Open adoption can be seen in the recent case in France. We are seeing examples of both semi-open and open models, neither of which operates in Ireland. The Bill may represent a missed opportunity in that we are putting something new in place, something that is to be in tune with the Child and Family Relationships Act and the constitutional change as a result of the referendum on children's rights.

At this point I will probably withdraw the amendment but reserve the right to reintroduce it on Report Stage. However, I would appreciate it if the Minister clarified what discussions have taken place on the question of open adoption. What are the major objections to it? In Ireland we have a very poor history vis-à-vis mother and baby homes, of which we are all aware, whereby many birth mothers disappeared from the picture. What is the reason for not moving towards open adoption when so many of those who are experts on children's rights and welfare recognise that it has huge benefits? Why are we not seizing this opportunity, when we have not just one but two Bills dealing with adoption moving through the Oireachtas, to ensure we are introducing best practice in this area by including open adoption as an option? I ask the Minister to give her views on the matter.

With many others in this House, more than anything I want to progress the change of which Senator Alice-Mary Higgins speaks as quickly as possible. Having said that, we all know how long it takes to progress fundamental and significant change. That is also true of open adoption. Such a change would be significant, notwithstanding the passionate recommendation of some of the exceptional children's organisations which are at the coalface in working with children and their families that we move towards a more open adoption framework.

Where are we now in this country? Where a child has been adopted, that child is considered, in the context of the rights and duties of parents and children to each other, as the child of the adopter. The mother or guardian of the child and every relevant non-guardian loses all parental rights and are free from all parental duties to the child. Under our legislative framework for adoption, parental rights and responsibilities are assigned to the adoptive parents. While there is only provision for closed adoption in law, to which I have referred, the reality is that in practice, other arrangements are more prevalent in domestic adoptions. Senator Alice-Mary Higgins has referred to this and I have acknowledged it to be the case.

Adoption is now much more open than it was in the past. Under current practice, arrangements are often put in place for ongoing contact between birth parents, adoptive parents and their families where there is agreement with the relevant parties. The fact that I am saying adoption is now more open than in the past raises the question of what open adoption actually means. What is open adoption in France or other countries? It differs, depending on where it is applied and how it is implemented in the context of each country's legislative framework. There is a diversity of understanding of what it actually means. Having said that, I suggest Ireland is more open than in the past, even in the context of a closed adoption framework.

I have also referred to the fact that the Adoption (Information and Tracing) Bill will allow for more sharing of information between both parties. However, the insertion of a provision for open adoption in a legislative framework could give rise to many difficulties of an intractable nature, given the context. We currently have a legislative framework of closed adoption. Open adoption is a complex provision which could give rise to possible constitutional issues in regard to the family. It is a fundamental change to the adoption process which can only be considered as part of a comprehensive review of adoption policy. Even though many of us may wish to move in that direction, it would be a significant policy change. It would not be possible to move us in that direction in the context of one or several amendments without investigating extensively the various reasons for a decision to move towards open adoption, what we understand it to mean and why it might be better than what we have now.

We have had these conversations in the Department, but I suggest an appropriate way forward would be to raise it as an issue for discussion by the Oireachtas Joint Committee on Children and Youth Affairs. I will be delighted to participate in any such discussion, as will my officials. Such discussions could examine the wider issues involved, from which a report and recommendations could be made. That would feed into what I have said about open adoption being a significant change in policy direction in this country.

We are legislators and should not be afraid of significant changes in a legislative direction. The very fact that we are looking at these amendments, that we have the Child and Family Relationships Act and that we had the marriage equality referendum, with the many other changes we have had, reflect the fact that we do not need to be afraid of significant legislative change when it is moving in the right direction.

The UN Convention on the Rights of the Child talks about the right to identity. There are circumstances in Ireland where one can obtain a new birth certificate and part of one's identity, culture and cultural rights can be affected by the process of adoption. The Ryan report on child abuse found that restrictions in family contact were a concern and could be damaging for some children and their relationships with others. We need to do better in ensuring this legislation has been designed in such a way that it will be able to respond to the introduction of open adoption, if that was to become possible. That is something that should be worked on between Committee and Report Stages.

The Bill embeds many of the factors of closed adoption. In later sections, for example, the Bill deals with inheritance rights from new adoptive parents, but in terms of the wider family network and a person's potential rights as a next-of-kin, it could be damaging for the child. There are circumstances in which we are going to have a very material impact on children's lives in the changes in law we now have and I see this as an opportunity missed.

I appreciate that the Minister has said she is willing to discuss how we move forward on this issue. It is not enough to have an informal move towards more openness and communication. This legislation needs to include some provision for voluntary agreements. People who have looked at it from a legal perspective believe a voluntary agreement between the birth family and the adoptive family should be possible where the adoptive family is agreeable. The adoptive family takes on the rights under the Constitution. Perhaps we might examine that issue. We need to be more ambitious between Committee and Report Stages.

The Senator can speak about the matter again on Report Stage. Is she withdrawing the amendment?

I am withdrawing it, but I reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.
Section 8 agreed to.

Amendments Nos. 6 and 7 have been ruled out of order because they involve a potential charge on the Exchequer.

Amendments Nos. 6 and 7 not moved.
Section 9 agreed to.
Sections 10 and 11 agreed to.

Amendments Nos. 8 and 10 are related and may be discussed together.

I move amendment No. 8:

In page 13, to delete lines 15 to 19 and substitute the following:

“(a) the child resides in the State, and”.

The basis for the amendments is allowing for circumstances where a child has started in the adoption process while still a minor but who has passed the age of 18 years before the process is completed. I commend the Minister for referring to such scenarios on Second Stage and her willingness to engage on what can happen, as attested to by Senator Colm Burke previously. There is ample opportunity to amend it to stop situations arising where children lose out on succession and kinship rights with their prospective parents as a result of a provision which should consider such exceptional circumstances.

I thank the Senator for noting my reference to the matter on Second Stage. I am always very happy to look at these issues again, particularly in a debate in this House. Since working through and responding to the amendment in the Dáil, actions have taken place to which I can refer in the light of the concerns raised about this and the other amendment. It is right and proper that the issue be raised. As the Senator is aware, there are ways of resolving or acting on issues raised other than in the context of changing the law, that is, by accepting the amendment in a way that would equally be as effective and acceptable in the context of the law, as I will explain.

The primary purpose of the Adoption (Amendment) Bill 2016 is to give effect to Article 42A of the Constitution in so far as it relates to adoption. In particular, the Bill provides for the adoption of any child, regardless of the marital status of his or her parents, and that in any matter, application or proceedings under the Adoption Act 2010 before the Adoption Authority of Ireland or any court it shall have to regard the best interests of the child. It is really important that we remind ourselves of this, particularly in the context of the amendments. It is about the best interests of the child as being the paramount considerations in the resolution of such a matter and, in respect of any child who is capable of forming his or her own views, ascertaining his or her views. Such views shall be given due weight, having regard to the age and maturity of the child. That is the opening and the context. I will now go to the substance of the amendments.

Priority is given by the Adoption Authority of Ireland, the Child and Family Agency and the courts to cases where a child is older to ensure the adoption process is completed before the child reaches the age of 18 years. There is no evidence to suggest a provision in that regard is required. However, a number of Deputies raised concerns that while this may not have happened to date, it could possibly happen in the future and they called for a strengthening of the procedures involved. I heard Senator Colm Burke's comments on Second Stage. I invited Senators to come forward with any information, but none has been brought forward so far.

After giving careful consideration to the concerns raised, I agreed that the procedures involved in such cases should be strengthened. I committed in the Dáil to requesting the Adoption Authority of Ireland to prepare a proposal, in consultation with Tusla, the Child and Family Agency, for inclusion in its business plan to address this issue. I am pleased to inform the House that I have written to the chairperson of the board of the Adoption Authority of Ireland on the matter and been advised that the authority has been liaising with the Child and Family Agency on the issue and that a new protocol has been established to strengthen the management of all cases where an adoption application concerns a child aged 16 years or over. For these reasons, I do not intend to accept this or the other amendment.

I hope the Minister will appreciate that I still believe the Bill is an opportunity to deal with the issue. In the light of the protocol and the Minister's understanding of the amendment, I will withdraw it.

Amendment, by leave, withdrawn.

Amendments Nos. 9 and 15 are related and may be discussed together.

I move amendment No. 9:

In page 13, between lines 35 and 36, to insert the following:

“(3) The Minister shall provide by way of regulation for the circumstances under which the particular circumstances referred to in section 23(2) will apply.”.

Does this amendment relate somewhat to amendment No. 8?

Amendments Nos. 8 and 10 have been dealt with and withdrawn. We are on amendment No. 9. Amendments No. 9 and 15 are related and may be discussed together.

I will withdraw the amendment.

Amendment, by leave, withdrawn.
Section 12 agreed to.
Amendment No. 10 not moved.

Amendment No. 11 has been ruled out of order because it involves a potential charge on the Exchequer.

I wish to speak to it.

Yes. The Senator can speak to it when we get to the section.

Amendment No. 11 not moved.
Amendment No. 12 not moved.
Question proposed: "That section 13 stand part of the Bill."

Does Senator Fintan Warfield want to speak to the section?

I want to say something about amendment No. 11.

Unfortunately, amendment No. 11 has been ruled out of order. However, the Senator can speak to it on the section.

On Second Stage I referred to some of the shortcomings of the Bill. One major flaw in the adoption process is the financial barrier. It impacts on many, with legal fees as high as €15,000. It prevents adoptions and prevents children from having a caring and loving home. It prevents prospective adopters from becoming loving parents. Where people can afford the high cost, the burden stifles them from providing a nurturing start for the child, since money that could be spent on providing for the care and future of the child goes instead towards the cost of legal administration. I hope the Minister shares these concerns and agrees that this is one of the most notable outstanding barriers to adoption that remains for prospective parents. I hope she will amend the legislation to that effect on Report Stage.

I thank the Senator. I do, of course, share the concerns expressed. I am also aware of the fact that section 22 of the Adoption Act 2010 provides that Tusla, at its discretion, may contribute towards the expenses incurred by any person in connection with an application for the adoption of a child. We already have that provision in law. In the light of this, protections are in place. Certainly, I am willing to continue to look at this, even in the context of the work of Tusla. For example, it would be helpful to know when this happens and in what circumstances. It would be helpful to conduct some analysis that could put us in a position that is different from where we are now. I am unsure of the experience of Tusla in doing so, but I am happy to do it.

Question put and agreed to.

Amendments Nos. 13 and 14 are out of order because they involve a potential charge on the Exchequer.

Amendments Nos. 13 and 14 not moved.
Section 14 agreed to.
Sections 15 to 17, inclusive, agreed to.
Amendment No. 15 not moved.
Section 18 agreed to.
Sections 19 to 23, inclusive, agreed to.

I move amendment No. 16:

In page 20, between lines 6 and 7, to insert the following:

"(a) by the insertion of the following paragraph in subsection (1):

"(a) if the Child and Family Agency is satisfied that every reasonable effort has been made to support the parents of the child to whom the declaration under section 53(1) relates,".".

I am conscious of the sensitive nature of the area that the Bill seeks to regulate. I am aware of the competing rights and obligations and the difficult task of the Minister when it comes to balancing these rights and obligations. As issue of concern for me is the potential position in which some families might find themselves, especially those on low incomes or vulnerable parents. Let us consider the children in the care of the State, a large majority of whom were born during a time of rapid boom and bust. Consecutive cuts to family support services, social welfare community projects and employment were matched by an increase in the number of children in care. There is a direct correlation between austerity and the number of children who went into care during that time. This is something we need to consider when discussing the removal of parental consent. We have a long history of doing the wrong thing for parents and children. My amendment is perfectly reasonable. It provides for the Child and Family Agency to be satisfied that all possible supports are offered to the parents before consent is removed.

I have sat in at many case conferences supporting and advocating on behalf of parents throughout my years working in the addiction sector. I can hone in on my experience in that regard. The problem also affects people suffering with mental health problems or a disability and those who have experienced domestic violence, following which a child has been removed from the home for safety. I will offer one example. I remember a child being taken from the mother and her pleading with social services to find her a place in Ashleigh House in Coolmine, a centre for mothers who are addicts. It allows them to look after their children and receive treatment. At the time there was a two-year waiting list. The child was taken. As soon as the child was removed from the family, the offers of support from social services stopped. When a child is still in the home and the parents are trying to maintain the child in it, there are offers of support, parenting courses and so on. However, when the child goes into foster care, the position changes. If we are telling a parent to meet certain needs, for example, the provision of adequate housing or income or removing a violent partner from the household, we cannot tell her to do these things alone. We need to be sure adequate supports and resources are offered to parents to meet these needs.

In no sense, would I ever wish to get in the way of having a child moved towards a stable home or family. However, it should be a requirement for the Child and Family Agency to be satisfied that all reasonable offers of support are made to the parents. If that is the case, it is up to the parents to accepts these supports. However, if the supports and resources are never put in place, it will be a problem. If we fail to work with the parents to enable them to meet what is required to care for the child, it is not a failure on their part but a failure on the part of the State. I am keen for it to take some responsibility in advocating for parents to offer them some assistance in meeting the needs that are required to be met.

I will speak briefly in support of the amendment. I urge the Minister to consider taking it on board as it strikes a clear balance.

I recognise the importance of security and stability. I also recognise the importance of a timeline being set in order that we do not have children in limbo for long periods. I realise much of the positive intent of this section in ensuring we will have mechanisms by which children in foster care can move towards adoption. It is important to recognise that there are many situations that may cause difficulty for particular periods. The given period of three years needs to be seen not simply as a waiting period but as a period in which there will be active engagement and work to see what opportunities may come about. It may be that a parent may move back to being the main carer or it may be that the parent will never return to that role and foster care with an ongoing contact programme might be the more appropriate option. Others have referred to the importance of the judges making these decisions being appropriately trained and informed to enable them to make nuanced decisions on what is the best option.

We have heard about the circumstances of addiction. Such situations can span three years, but they can also change. Others may also arise, for example, those which involve a mental illness. We know that in many cases it may take three, four or five years for people to find a balance of care and support to allow them to deal with such a situation and find a balance in medication.

I am also particularly concerned about cases of domestic violence. There are situations where people may be trapped in an abusive relationship and may not be in a postiion to engage. My colleague referred to the need for the Child and Family Agency to be satisfied that every reasonable effort is being made.

I reserve the right to put forward amendments to tease out this issue more. The Child and Family Agency should be able to give that message of reassurance and satisfaction. However, some of the reasonable supports may be forthcoming or may need to come from other services. Accordingly, there may be a responsibility, not simply to ensure the formal letter of the law is adhered to and the opportunity is given, but that there is meaningful engagement and support and other services are given too. For example, we know that a number of children have entered care following a period of homelessness. We know that in itself can lead to severe family problems and people moving into situations which they may believe are unsafe for themselves or a child. There is a need for active engagement to see if there is a feasible or appropriate pathway out, either through becoming a primary care giver again or having a contact relationship and a constructive ongoing long-term relationship with fostering. Will the Minister take this amendment on board?

The issue of guardian ad litem was also mentioned. We may need to come back to it on Report Stage.

I have worked with my officials and the Parliamentary Counsel on the issues raised by Senators Lynn Ruane, Frances Black and Aliuce-Mary Higgins. We took quite a bit of time in taking a look at the amendment. I know that it was proposed in the context about which Senator Lynn Ruane spoke. Senator Frances Black also has significant experience in that regard. It is so much what it means to be a lawmaker to draw on that experience. One's way of analysing it and marshalling various pieces of evidence for the law-making process ensures it should and does make a difference.

It troubles me that what was described as having gone on may still be going on. I do not know if it is still going on in a significant way and if we may need to attend to it. I am not sure it would be possible to deal with it the way Senator Lynn Ruane recommended. However, there may be some scope in that regard.

Section 53 of the Adoption Act 2010 provides that the Adoption Authority of Ireland will adjourn an application for an adoption order made to it and declare that it will make the adoption order if the High Court, by order under section 54(2), authorises it to do so, if the authority has heard from the Child and Family Agency and any person who is entitled to be heard at such a hearing. Such persons include the mother and the father of the child. The authority, at its discretion, may also decide to hear from any other person in that regard. It must also be satisfied that if an order of the High Court, under section 54(2), were made in favour of the applicants in respect of the child concerned, it would be in accordance with the Adoption Act 2010 to make the adoption order. If on hearing from a birth parent, or any other person, who raises a concern about the support the birth parent might have received from the Child and Family Agency, I am advised by the authority that it would adjourn the case and seek a comprehensive report from the agency. The Adoption Authority of Ireland has also advised me that in the past where reports were requested and received, they outlined in detail the various case meetings held during the years, including any offer of support offered to the birth parents at the time of or subsequent to the birth of the child.

Section 54 of the Adoption Act provides that the High Court may authorise the Adoption Authority of Ireland to make an adoption order for a child and dispense with the consent of anyone whose consent is necessary to the making of the order. This is the issue about which Senators are concerned. Section 24 of the Adoption (Amendment) Bill amends section 54 of the 2010 Act to provide for revised criteria under which the High Court may authorise the making of an adoption order without parental consent where a child's parents have failed in their duty towards the child. There is some revision of criteria within the Bill. The revised criteria are that the High Court be satisfied that the parents of the child have failed in their duty towards the child for a period of 36 months and that there is no reasonable prospect that the parents will be able to care for the child in a manner that will not prejudicially affect his or her safety or welfare. The failure constitutes abandonment on the part of the parents of all parental rights and by reason of this failure, the State, as guardian, should supply the place of the parents. The child must be in the custody of and have a home with the applicants for a continuous period of not less than 18 months and the adoption of the child by the applicants must be a proportionate means by which to supply the place of the parents.

In considering an application for an order under this section the High Court will have regard to the rights, whether under the Constitution or otherwise, of the person concerned, including the natural and imprescriptible rights of the child, as well as any other matter which the High Court considers relevant to the application. The High Court shall also, in so far as practicable, in a case where the child concerned is capable of forming his or her own views, give due weight to the views of the child, having regard to his or her age and maturity. In the resolution of any such application, the best interests of the child will be the paramount consideration. This may address some of the concerns expressed by the Senators.

The court provides a significant safeguard in this process. It should be noted that applications to dispense with consent due to parental failure are uncommon. They are only made after significant engagement with the child and parents and the child has been in foster care for at least 36 months. The Child and Family Agency has advised me that, once every effort made to keep a child at home has been unsuccessful and the parents have consistently failed to provide adequate care and protection to the point where the child’s welfare is at risk, the child will be received into care. A child will only be put forward for adoption when all other options have been explored and ruled out. I am advised that the issue of supporting parents will have been adequately addressed by then, long before adoption has been considered as a proportionate means to meet the needs of the child.

How do we know that is the case? In that regard, the Child and Family Agency undertakes its functions related to child welfare and protection under the Child Care Act 1991.

I am consistently referring to other legislation which ensures in a reasonable manner the protections and supports to which the Senators refer in their amendment. They are present in the current legislation. Section 3 of the Child Care Act 1991 provides that the agency in carrying out its functions will: "(i) regard the welfare of the child as the first and paramount consideration, and (ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child;". It will also have regard to the rights and duties of the parents and the principle that it is generally in the best interests of a child to be brought up in his or her own family.

The agency has also advised me that where there are concerns about the welfare of a child. it carries out a comprehensive assessment, including a parental capacity assessment, and this assessment includes the development of danger statements, child protection plans and safety plans. Additionally, child protection case conferences and family welfare conferences, to which the Senators referred, are convened to ensure all parties are fully aware of the issues and concerns and that there will be an agreed plan of action to ensure the welfare and protection of the child.

The parents are included in all aspects of the plan and given clear guidance on how to adequately care for their child in order to meet the threshold for adequate care and protection. They are encouraged to receive support via support workers and parenting courses, invited to participate in all planning meetings and supported and encouraged to have their views heard. I have no evidence to indicate that the issues raised by the Senator are not adequately addressed in current legislation and practice. In addition, I am concerned, on advice received, that the proposed amendment could give rise to significant anomalies or operational inequalities. For these reasons, I am not accepting the amendment.

I thank the Minister for her comprehensive response to the amendment. I also thank Senators Lynn Ruane and Frances Black for bringing forward this critical amendment. The abandonment of children and their best interests are very contentious issues. The last time the Minister was in the House we talked about the complexities of family. There are many reasons and circumstances for the situations where parents sometimes have to walk away or children are taken away from them. I have no doubt that this is one of the most controversial aspects of the Bill. The Minister does not want it to be struck down by a constitutional challenge. There is always the potential with something so contentious that it will be challenged. That is everyone's right. I always support people who are prepared to challenge anything. I know that the Minister is mindful of this and has her own legal advice and support. I am reassured, as much as I can be, by what she said. She has given a comprehensive response. The issue the two Senators have raised is important and we need to tease it out. I thank the Minister for her response.

I looked back through several parts of the Bill to find the safeguards for parents. The safeguards are timeframes, for example, in sections 14, 24 and 54, as well as some subsections. My amendment in respect of parts of section 14 lays out the occasions where a parent can intervene to stop an order being made. At no point anywhere in the Bill does it state there is an obligation to provide support in respect of offers of placement. I have been in Cherry Orchard on many occasions and had social workers ask me to where the parent should go for help such as for detox, or where is there a women's refuge if domestic violence is the problem. There is a serious lack of information in social services. There is also a lack of connection to projects which social workers could suggest parents undertake. They do not intervene to make these things happen. If there is a two or three-year waiting list for help, the person is almost at the end of the three-year court order period and the child is gone. I am not satisfied with the Bill.

My amendment proposes that in circumstances where an application for a High Court order is sought, the Child and Family Agency be satisfied that a reasonable effort was made to support the parents. If the Department is stating these supports are available, I do not understand why that cannot be cemented into the Bill.

In respect of section 4, my amendment clarifies the obligation on the Child and Family Agency in respect of an order and the standard required - that "every reasonable effort" be made in support of the parents of a child who is subject to adoption. When it goes to the High Court, the children are in the care of the State and the power lies with it. Children from poor backgrounds are over-represented in the care system. They come from under-educated families who lack capacity to advocate for themselves in the High Court or even to intervene. If adequate supports have not been provided for them throughout the three years to get help, they will not have the capacity to advocate and intervene at High Court level. The Child and Family Agency should be satisfied that they did receive that support and are in a position to say they asked for help and did not get it. In all the years I have worked in the areas of addiction and homelessness I have met very few people on the ground who have children and are able to stand up to the State and the High Court. The Child and Family Agency owes it to them to ensure they will receive adequate support to advocate on their own behalf and that of their children.

I hear very clearly what Senator Lynn Ruane is saying and deeply respect the experience and context from which she speaks, which adds power to her words. I cannot accept the amendment in its current form, but there may be ways to see if we can ensure her concerns will be met. I do not yet know.

"Supports" is a very broad term and could cover a wide range of services, the majority of which are outside the remit of Tusla. Supports could include mental health services, addiction services, financial support, housing, transport, disability services, education and employment, which identifies the difficulty. It is also not clear in the language what is meant by "reasonable effort" and how the Child and Family Agency will ascertain if that threshold has been met. At another less practical level but taking into account the policy intention of the Bill, the best interests of the child are the paramount consideration in adoption proceedings. The Bill strengthens the provisions surrounding the best interests of the child and hearing his or her voice. The Senators' proposed amendment could be perceived to move from the current child-centred focus to a parent-adult-centred focus which is inconsistent with the policy intention of the Bill.

There is also a risk that the amendment could be providing a statutory right to services for a limited cohort of parents, which would be inequitable. In addition, in that regard and in the light of some of the other points I have made, the amendment raises some legal and constitutional concerns. Therefore, consultation with and formal legal advice from the Attorney General will be required.

Amendment put:
The Committee divided: Tá, 21; Níl, 18.

  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Devine, Máire.
  • Dolan, John.
  • Gallagher, Robbie.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Landy, Denis.
  • Mac Lochlainn, Pádraig.
  • Nash, Gerald.
  • Ó Clochartaigh, Trevor.
  • Ó Donnghaile, Niall.
  • O'Sullivan, Grace.
  • Ruane, Lynn.
  • Warfield, Fintan.


  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Hopkins, Maura.
  • Lawless, Billy.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Donnell, Marie-Louise.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Frances Black and Lynn Ruane; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared carried.

Amendments Nos. 17 and 18 in the name of Senator Fintan Warfield have been ruled out of order.

Amendments Nos. 17 and 18 not moved.
Section 24, as amended, agreed to.
Sections 25 and 26 agreed to.
Amendment No. 19 not moved.
Section 27 agreed to.
Sections 28 to 36, inclusive, agreed to.

Amendment No. 20 in the names of Senators Ivana Bacik and Kevin Humphreys has been ruled out of order as it involves a potential charge on the Exchequer.

Amendment No. 20 not moved.
Sections 37 to 41, inclusive, agreed to.

Amendment No. 21 in the name of Senator Fintan Warfield has been ruled out of order.

Amendment No. 21 not moved.
Section 42 agreed to.
Question proposed: "That the Title be the Title to the Bill."

I reserve the right to table a Government amendment in the light of amendment No. 16 having been agreed to.

Certainly. That can be done on Report Stage, if the Minister wishes to do so.

Question put and agreed to.
Bill reported with amendment.

When is it proposed to take Report Stage?

Is that agreed? Agreed.

Report Stage ordered for Tuesday, 7 February 2017.

When is it proposed to sit again?

Amárach ar 10.30 a.m.

The Seanad adjourned at 6.20 p.m. until 10.30 a.m. on Wednesday, 1 February 2017.