I move amendment No. 1:
In page 13, after line 37, to insert the following subsection:
"(3) Nothing contained in this Act shall prevent any person or married couple who applied to the HSE to be assessed for an intercountry adoption prior to the 1st January 2009 and subsequently obtain a declaration of suitability to adopt from effecting such adoption and having such adoption recognised under the law applicable prior to the coming into operation of this Act.".
There are a number of issues that have been the cause of very substantial concern to many people seeking to effect an adoption in the State. This amendment is proposed as an all-embracing provision to try to address a myriad of those concerns, some of which are addressed in a different formula with amendments proposed by Deputy Jan O'Sullivan. I am also conscious that the Minister of State is addressing an aspect in an amendment grouped with this one.
I will explain the thinking behind this amendment and the issues that must be addressed. Some issues require clarification from the Minister. The first concern is that of many people who currently have declarations of eligibility and suitability to adopt abroad by way of intercountry adoption and who have not yet either had a child identified to be placed with them or who are in the middle of the process. An adoption order has not been effected in a foreign country in these cases. These people are concerned that the enactment of this legislation may, if the adoption is completed following the Act's commencement, result in their adoption not being registered by the new adoption authority, leading to the adoption not being recognised.
This amendment is designed to ensure that if they currently have a declaration of suitability and eligibility, it will not be a problem. The law as applicable prior to the commencement of this Bill would apply to such people. The amendment is broader than this, and the Minister of State is also seeking in his amendment to address the position of the individuals I have described.
The difficulty with the adoption process is that if people are being assessed, particularly for inter-country adoption, it can take up to four years from when the process is entered into. The Minister of State has made reference to this already. If an individual or married couple applied to the HSE today to be assessed, based on current operations a report and a recommendation from the HSE may not emerge and go to the current Adoption Board or the new adoption authority for three and a half or four years.
It is an extraordinarily lengthy process, which is unduly long, badly organised and dealt with differently across the country. There are parts of the country where within nine months of seeking assessment, a report may be made to the Adoption Board. The vast majority find themselves locked into a lengthy procedure.
Currently there is a large number of people caught in the middle of the procedure. These people applied to the HSE two or three years ago based on an understanding that the law as it currently operates would apply to the adoption. The people do not, as yet, have the final recommendation and report from the HSE and are still awaiting a declaration of suitability from the Adoption Board. Many of these people are gravely concerned that in the middle of the process the goalposts are moving, and this may be a barrier they may not be able to overcome in effecting an adoption in a country identified by them. The Adoption Board has been prepared to recognise the adoptions from such countries up to now. It is a real difficulty.
My amendment is designed to ensure that people who enter the adoption process on an understanding of how our law operates and the legal provisions applying to them do not find themselves in new territory and a more difficult position than was anticipated as a consequence of this legislation being enacted. Everything we do must place the welfare of children as a priority and the paramount consideration. I know the Minister of State concurs.
The way the 1991 adoption legislation interacted with other Acts did this. The flaw in its operation, in so far as there are concerns in the adoption area, did not relate to what was contained in the Act but rather our delay in signing up to the Hague Convention and also our failure at the level of Government or the Adoption Board to comprehensively monitor the adoption processes applied in some states whose adoptions we recognised. I do not want to become involved in any disagreements today but perhaps that was a difficulty. The difficulty could be overcome if we continued to apply the old law to those currently in the middle of the process, and if we could carefully ensure we have all the essential information about the applicable adoption procedures for the countries from which people ultimately declared eligible to adopt will adopt.
This amendment also covers certain other issues of concern brought to the attention of committee members. One is where people have adopted from a particular country and the adoption has been registered. These people may already be back in the system with a view to effecting a second adoption in the same country. We have all had representations from people who have already effected adoptions in locations such as Mexico, Ethiopia and Vietnam. I could list a number of other countries but I do not want to detain the committee.
Such people are in the system with the objective of adopting in the same state to provide a second child in their family of similar background to the currently adopted child. Their belief is that it is in the interest of the first child that if there is to be a second adopted child, it should come from a country with which they are familiar, with a background identical to that of the brother or sister of any newly-adopted child. This proposal would facilitate people who are already in the system. That is an important issue and a cause of very substantial concern.
In that context, I do not believe we can have a never-ending arrangement, whereby someone who adopts in a particular country can, in 15 years time go back to that country, regardless of whether the Hague Convention principles are applicable there. I do not believe that is in the interests of the welfare of children, either. Those who have raised this issue have asked that it be a time-determined period. Some of them would disagree with me, but I believe a reasonable time-determined period obtains as regards those already in the adoption system, who have operated under a certain understanding and premise. The Minister would encounter great difficulty in extending it beyond that time period. Hopefully, once we are adherents to the Hague Convention, some people who have adopted in countries in the past that now adhere to the Hague Convention, will have no difficulty in adopting there again. Of course, we have an alternative option, which is not necessarily fully understood as yet outside the Oireachtas, to address the concerns caught in this predicament, namely, the facility to enter into a bilateral agreement — in the context of Mexico, for example, should it remain outside the Hague Convention.
There is no particular reason, if we want to ensure appropriate standards are applied why a new bilateral agreement should not be entered into that is fully and properly monitored, as against the way we failed to monitor the Vietnamese agreement. Much of the difficulty that arose with regard to Vietnamese adoptions would never have occurred if the review group which was supposed to have been established under the bilateral agreement with Vietnam, had functioned and properly reported in a transparent manner. The difficulties the Minister of State has been concerned about in Vietnam in recent months would have been clear at an earlier point, and perhaps could have been addressed. The many parents who have adopted in Vietnam and wish to adopt again, or the many currently in the system with the objective of adopting a child in Vietnam, would not currently find themselves in the difficulties they are in if that review group had properly worked and performed the function for which it was intended.
I am very conscious that we are on Committee Stage. I want to come back to other issues on this amendment, which is crucial. I do not want to go on at undue length, but there is one final issue I wish to raise by way of a question, to which the Minister of State might respond. It is relevant, not just to this amendment but to some of the other amendments grouped with the Bill. Having read the Bill on several occasions, and as the person who drafted the original 1991 Bill, I seek clarification on an aspect of the current legislation. It may be because it is drafted in an obtuse way, or that I am missing something, which is absolutely possible, but there is an aspect of the Bill that needs to be clarified. This legislation is all about the recognition of inter-country adoptions. Essentially, Ireland is party to the Hague Convention and adoptions are effected in other countries which are party to that convention, which we then recognise. These adoptions are essentially effected with the assistance of a central authority.
The alternative structure is that we have in place a bilateral agreement with a country to facilitate adoptions, and that may again require establishing a licensed agency, or not, and I should like the Minister of State to comment on that. There is a whole series of usual other circumstances in which adoptions are effected by Irish people abroad which were not recognised until the Adoption Act 1991 was passed. They are currently recognised and we must ensure that they will continue to be. I want to give three simple examples. A couple, one or both of whom, may be Irish citizens genuinely living in the United Kingdom for the past ten years, apply through the UK social services to adopt. They are ordinarily and habitually resident in the UK, whether in England, Scotland, Wales or Northern Ireland. No assessment is undertaken in Ireland and no Irish central authority is involved. The adoption goes through in the normal way. In England and Northern Ireland it would entail a court order by which the adoption is made. Three or four years afterwards, they return to live here. Under current law the adoption is recognised, but it is not clear to me that it is under this Bill. While there is a provision which may extend that recognition, it is very obscure, and I should like the Minister of State to clarify that.
Another example relates to a couple or individual living in this State. They cannot find work and emigrate to the United States, some other European country, or Africa where they work for several years. They are clearly resident in the country they have gone to, not simply for the purpose of effecting an adoption. One or both of the individuals seeking to adopt are employed in their country of residence, they rent a home and go through the particular state's adoption process. They comply with the state's laws and an adoption order is made. They may be regarded as ordinarily resident or there may be a legal debate as to whether they are habitually resident. The concept of habitual residency is a legal one which is largely reflected nowadays in European Union law and conventions. It is not as onerous as establishing a new domicile, but it is much more complicated than establishing what is known as ordinary residency. They are in situ for three or four years in good faith, adopt a child and it is their long-term objective to return to Ireland. A job becomes available in Ireland and they return. In the event, will that adoption be recognised? We must not create a situation whereby, people affected by the current economic difficulties of this State, who go abroad for work reasons and establish a home elsewhere for a period, are faced with the situation that people were in prior to 1991, namely, if they adopt abroad and return to Ireland, under Irish law they are not recognised as the parents of the child they have properly adopted abroad. We must not let that situation arise, where people have gone through proper procedures. I have a genuine concern that there is a difficulty in this area with this legislation. The concept of being ordinarily resident in a state for a year up to now is the position. Under the 1991 Act, if a couple are ordinarily resident in Northern Ireland, Britain or some part of the United States for a year, complete an adoption under local law and return to Ireland two months or three years later, then we recognise that adoption. However, there is a real problem in identifying whether such adoptive parents will continue to be in that position.
I do not believe the amendment I have tabled adequately addresses that issue, either. I deliberately raised this issue during the course of the Second Stage debate. The Minister of State, in fairness, had only limited time to reply to that debate. I did not expect that he could have replied to all the issues raised. However, the issue does not seem to be addressed in the Minister of State's amendment and I should like him to clarify where matters stand in that regard — and where matters stand in circumstances where individuals are domiciled abroad. They may be Irish citizens who have established a domicile abroad in the legal sense, or an Irish individual.
To take a case I am familiar with, without naming anybody, an Irish qualified nurse who worked in a UK hospital for 15 years and never married, adopted a child in England, subsequently returned to Ireland, established a home here and was working in an Irish hospital. At present that adoption is recognised here. If one had asked her when she went to England, whether she had intended to stay there permanently her truthful answer would have been to the effect that it had always been her hope to return to live in Ireland. Even though she had lived there for 15 years, there was no certainty she had ever acquired an English domicile. Other people who had lived in England for that length of time technically would have required an English domicile. We must ensure that there is no issue arising in respect of the continuing recognition of such adoptions.