SELECT COMMITTEE ON HEALTH AND CHILDREN debate

Adoption Bill 2009: Committee Stage.

Chairman

I welcome the Minister of State at the Department of Health and Children, Deputy Barry Andrews. We have agreed to sit from 11 a.m. until 1 p.m. and from 2.15 p.m. until 5.30 p.m. We will review our position at 5.30 p.m. A list of amendments, along with a grouping list, has been circulated to members for their attention. A letter has been received from Deputy Paul Kehoe, the Fine Gael Party Whip, advising that Deputy Alan Shatter will substitute for Deputy Bernard Allen for the consideration of the Adoption Bill 2009.

SECTION 1.

Question proposed: "That section 1 stand part of the Bill."

Deputy Jan O’Sullivan

I have a general issue to raise in light of the proposal that relates to adoption in yesterday's report by the Joint Committee on the Constitutional Amendment on Children. If that committee's proposed constitutional amendment is put to the people and the people agree thereon, children of married parents will be eligible for adoption. Will it be necessary to further amend the adoption legislation should this occur? Perhaps this is a pre-emptive question but it is relevant to the legislation.

Chairman

Are there any other questions on section 1?

Deputy Alan Shatter

My point arises equally under sections 1 and 2. I am sure the Minister of State, as with me and other Deputies, has been inundated with inquiries not only about the Bill being considered on Committee and Report Stages, but also about when it will commence. People outside this House do not really understand the difference between a Bill being enacted and the making of a commencement order. I presume we may be on track to have the Bill through the Houses and signed by the President by Easter or shortly thereafter. The Minister of State may have to put new arrangements and regulations in place. Does he does have a timescale for the legislation to become operative? Will it be before the summer or before the beginning of October next? I am conscious a new adoption authority will have to be formed. Will the Minister of State give us an insight into this in ease of all of us and to assist those outside the House who are so anxious about the issue?

Minister of State at the Department of Health and Children (Deputy Barry Andrews)

To answer Deputy Jan O'Sullivan's question, as I mentioned yesterday, we slogged long and hard over the proposed constitutional amendment. Both Deputies Margaret Conlon and Alan Shatter have been members of the Joint Committee on the Constitutional Amendment on Children for the past two and a half years. The Government must now consider its very detailed report, which is in excess of 100 pages and has many recommendations. Naturally, it will take a little time to consider. The Deputy is probably suggesting that we do not proceed with this legislation until we know what is necessary.

Deputy Jan O’Sullivan

I was not suggesting that.

Deputy Barry Andrews

I am anxious that this Bill be adopted as soon as possible to bring clarity and certainty to this area. I am not inclined to delay it any further but if we are to accept the recommendations of the Joint Committee on the Constitutional Amendment on Children, we will inevitably have to amend it. Although it is hard to predict entirely the shape of such an amendment, I anticipate it will not require a considerable amount of legislative change. It would be a net point about voluntary placement and the circumstances in such placement where long-term foster care can be dealt with. We will see in later amendments that there are other issues that may have to be considered in the context of a Bill that would be required by a proposed referendum.

To deal with Deputy Shatter's question on the timescale of this Bill, there is a good chance we will get through Committee Stage today and tomorrow. Depending on the number of amendments to be dealt with following this, Report Stage can be disposed of fairly quickly thereafter. If we complete Report Stage during the course of March, which I am anxious to achieve, the Bill could be enacted towards the end of March or early April. The commencement date would be a month after that, which is normal.

Question put and agreed to.

SECTION 2.

Chairman

Amendments Nos. 6, 26, 55 and 56 are related to amendment No. 1 and the amendments will be discussed together.

Deputy Alan Shatter

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.

Chairman

Deputy O'Sullivan has related amendments Nos. 6, 26 and 56.

Deputy Jan O’Sullivan

I would just like to clarify the Minister of State's response to my first point. I am not suggesting that we should delay this legislation until after a referendum in the Constitution, but I felt it was important to flag the fact that because of the proximity of yesterday's announcement and today, there will likely be a need for amendments in future in respect of what is intended in the constitutional referendum.

All these amendments arise in the context of moving from the previous legislation to the new legislation. I welcome the fact that we are moving to ratify the Hague Convention. We are trying to address the issues for those who are making that transition by exploring the possibilities, within the Hague Convention, of addressing the needs of children who are in a position to be welcomed into a loving family home in Ireland, and those families who have been in the system for some time. They have been led to understand that the countries from which they intended to adopt were being encouraged and, in some cases, promoted by the Adoption Board. This is a real issue for many of these families and we have all had contact from them. My amendments represent an attempt to address those issues. I recognise that the Minister of State, in his amendments, is addressing families who will have got a declaration by the time by the Bill is enacted. However, I would like to address the other families in this situation.

Deputy Shatter pointed out that the process takes a different amount of time in different parts of the country. When representatives from the IAA were before the committee, they made the point that it can take three years in Dublin just to start the process, whereas it only takes two to four months in Donegal. Parents who happen to live in Dublin are immediately a couple of years behind parents in other parts of the country before they even start the process. Amendments Nos. 6, 26 and 56 try to find out where we can accommodate children who could be given a welcoming home in Ireland. I am not suggesting that this should be at an early stage of the process; I am suggesting an advanced stage of the process. The Minister of State should try to find out whether it is possible to accommodate those concerns.

What are the Minister of State's intentions in respect of some of those countries that have not ratified the Hague Convention? Vietnam has been a contentious area. Is it the Government's intention to enter into a bilateral agreement with Vietnam? Other countries have established bilateral agreements with Russia. I do not know the Minister of State's views on Russia, but we have had a number of contacts from parents who have begun the process in Russia. Ethiopia is not in a position to ratify the convention at the moment, but there are many families who have opened up contacts there. Other countries that have ratified the convention have bilateral agreements with some of these countries, so I would be interested to know whether the Minister of State would consider that option. It is of concern to many parents.

Amendment No. 26 addresses the grandfather clause, which deals with the issue of allowing families — within a limited period — the possibility of adopting another child from the same culture as the child they have already adopted. In all my amendments, I am putting in the safeguard that they must be in accordance with the Hague Convention. They may not have ratified the convention, but their processes must be in accordance with the measures under the convention.

I also suggest in amendment No. 56 that it would be possible to consider having an agent or agents appointed to specific countries to ensure the appropriateness of the proposed adoption in the transition period. It would only be in cases where the process is well advanced and possibly in the context of a grandfather clause as well. The intention would be to put a process in place whereby the Irish Government and the authority could go to the country involved and assess the way in which the process is conducted. In other words, it would be a safeguard to ensure that the process is correct and that there is no coercion or practices that would not be accepted by anybody in this room.

These amendments are put forward in order to open the debate and to see whether it is possible to address these concerns, all of which have been expressed to us by a number of people who contacted us.

Deputy Shatter made a point about people who were living in other countries, adopted there and later came back to Ireland. It is a very valid issue. It may well be in the Bill and if it is, then the issue is addressed. However, if it is not there, then it needs to be addressed because many Irish people have emigrated, settled in another country and later decided to come back to Ireland. This provision needs to be in the Bill if not already there.

Deputy Paul Connaughton

I spoke on Second Stage of this Bill as well. I am not a constitutional lawyer and I am coming from the basis that in my lifetime in politics, I have never seen such joy and sunshine that adopted children have brought to parents. It is one of the wonderful things about life all over the world, but particularly Irish family life. I have heard many people tell me that they would much prefer to be able to adopt a child than to win the lotto. One of the things that struck me was the sincerity of the debate on the same issue today, following the amendments put down by Deputy Shatter and Deputy O'Sullivan. In fairness, the Minister of State has been extremely sincere on this particular issue. I fully appreciate that it is a very difficult one, but the bottom line is that the welfare of the children comes first, irrespective of what corner of the earth they come from.

I am not sure of a number of things, having made contact with some of the parents involved. I must preface my remarks by saying that I had not the greatest of respect for the Adoption Board. I know there are shortcomings, but it is certainly geared for the betterment of children. I could not understand why the HSE was not able to overcome some administrative problems. For example, I cannot understand why it sometimes takes months or years for initial and subsequent contact with the families. This has nothing to do with the conditions under which the adoption will take place and seems to be an administrative problem. I am not sure whether it is due to lack of staff but people should put themselves in the situation adoptive parents are in. A year, or perhaps four or five years, at that stage in their lives is a huge chunk at a time when their only ambition is to have a child in the house. As the day progresses, I am sure the issue will be well trashed out. From an administrative point of view, I can see no reason at all it should happen.

The Minister of State might deal with the following point. It was suggested to me by some people that Mexico is a signatory to the Hague Convention whereas others say it is not. Is it the case? It is important for some of those to whom I referred that we would know exactly where we stand in this regard.

We have referred to the efforts to which people will go to adopt children, which is very much related to the amendments before us. It took one couple seven years from the beginning of the process until they got a baby from Mexico. Within that framework, they took it so seriously that they spent seven months living in Mexico. This may be a long period but I know of many others who spent three, four or five months in Russia, having taken time off work to do so. This adequately proves their sincerity in their attempt to adopt a child.

To return to independent adoptions, I agree with Deputies Shatter and Jan O'Sullivan that, even if adoptions are outside the Hague Convention, they should at least be implemented to the standard of that convention. This is an important point. The title in itself does not make much difference, although I assume it is of major importance for administrative reasons that adoptions are made under the Hague Convention. All other adoptions, whether bilateral or otherwise, should meet the standards of the convention.

With regard to independent adoptions, such as in the Mexican case with which I am familiar, the birth mother has a remarkable attachment to the child and, while other adoptions would have broken the link between the birth mother and the child, this link appears to go on for much longer in Mexico. As I understand Mexican law, the mother is able to break the agreement long after the point at which contracts could not be broken in other countries.

Deputy Jan O'Sullivan referred to the grandfather clause. When I heard it first, I thought grandfathers were to adopt the children.

Deputy Kathleen Lynch

Perhaps the Deputy could adopt.

Deputy Paul Connaughton

We have enough grandchildren. That said, I fully understand what the term means. I can fully appreciate why there should be a time limit for a family to return to Ethiopia, Russia or elsewhere. In the ordinary lifespan of a normal family, I have found that parents want to have children in a more or less similar age bracket, within two or three years of each other, rather than having one child aged two and another aged 12. Therefore, for cultural reasons, it would be good to be able to return to adopt a second child. It is against that background that some of the fundamental worries arise for many people. I hope the Bill will eventually address most of them.

Deputy Bobby Aylward

I thank the Chairman for allowing me to speak now as I must attend another meeting and I wanted to address the Minister of State on the amendments. Parents have contacted me who feel themselves to be in limbo and who are frustrated and worried about the future following enactment of the Bill. A parent from my constituency contacted me this morning who is currently in the process of trying to adopt a child from Russia. The couple have gone through the committee stage and they are about to make the declaration of eligibility and suitability to adopt. They were told this week that it will take up to three months for this to go through. They want to know their position if the Bill is enacted in the meantime. They believe that unless the present Bill is amended, they will be left out in the cold. Will the Minister of State comment on the position of those who have gone through committee stage and have moved on to seek a declaration, for example, in Russia?

The Irish-Mexican support group's members also contacted me. It seems most Mexican adoptions are private rather than through a regular system, although I do not understand if couples go to Mexico to contact the parents — the Minister of State might explain this. The support group wants a clause inserted to allow adoptive parents to adopt without the restriction of obtaining a referral from a central authority to the originating state — in this case, Mexico — with the consent of the Adoption Authority of Ireland, to have a time-limited grandfather clause that will allow the current system to continue, and to remove the requirements for social groups to become accredited bodies before they can supply information to adoptive parents. Will the Minister of State comment?

The Minister of State announced on 26 January that he will bring forward a Committee Stage amendment to the Bill that will enable prospective adoptive parents to proceed with an adoption from a non-Hague or non-bilateral country if, prior to the establishment date, they have been issued with a declaration of eligibility and suitability to adopt. What does this mean? I spoke to the Minister of State previously about a case in Vietnam. While I do not know the situation there, the prospective parents were close to 50 years old and they have given four years of their life trying to adopt a child from Vietnam. Now, because there is no bilateral agreement and because Vietnam is not signed up to the Hague Convention, they find themselves out in the cold. I met them in their sitting room and they were literally crying. It is very hard to explain this process to them and I would like the Minister of State to explain whether his statement would open the door for them to return to try to adopt. They have gone through the system and twice got declarations of suitability yet they still find themselves in a position where they cannot move forward.

Deputy Kathleen Lynch

These are the opening positions, although we are discussing the first group of amendments. No one doubts that all involved in this process, whether the agencies, the prospective parents, the natural parents, the politicians, the Minister of State and the civil servants, are here for one reason — what is best for children in these circumstances, which must be the overriding objective. If we could get an opening statement from the Minister of State to address some of the concerns that have already been outlined, this Bill would proceed better. We should not divide in any serious way about this issue, although we may do so. I make that point as it will be my colleague calling the votes, not me, and I do not want to hamstring her.

I have been in touch with Know Your Own, the group of both adoptees and parents who have placed their children for adoption. They are terribly concerned about one aspect of the Bill, namely, the birth certificate. There is a possibility that, for example, the child does not have to be registered before being adopted. This may well be addressed in the Bill but the Know Your Own group believes it has been omitted.

Their other concern is that it will not be legally binding on either the mother who is placing the child for adoption, the agency, or the adoptive parents to indicate on the child's birth certificate that he or she has been adopted. We would all hope that in this enlightened age a child's adoptive status would become part of the normal family discourse from a young age, but there are invariably some adoptive parents who will decide not to tell their adopted children the truth about their parentage. I recognise that in the cases with which we are mostly concerned it will probably be quite obvious that the child is adopted. Nevertheless, this is an issue that must be addressed. Likewise, tracing is another issue of deep concern to the group as a result of their own experiences whether as the natural parents of an adopted child or as an adopted child. That is another issue that must be examined carefully.

Other speakers spoke about the desirability of having some concrete information in regard to the status of bilateral agreements with other countries, particularly Ethiopia, Vietnam, Mexico and Russia. Where do we currently stand in terms of our arrangements with those countries? For example, is work ongoing on a new bilateral agreement with Vietnam? What is the status of our arrangement with Russia? Mexico seems to be the most peculiar in that great difficulties persist even though it has signed up to the Hague Convention. Will Ireland be left outside the loop in respect of any of these countries?

What is the current position of those prospective adoptive parents who have received declarations from the countries to which I referred? What of those who have submitted their papers and are awaiting a decision? If this Bill is enacted in the short term, where will those people stand? The Minister of State gave an undertaking that he would introduce an amendment to the Bill to deal with this issue, and it was for this reason that we did not have public hearings. If that amendment is not adequate, the committee must have a meeting to ascertain whether those hearings should take place. Will the Minister of State indicate what the proposed amendment will cover?

We are all aware that for many people, whether married or unmarried, the desire to have children is a strong natural instinct. I have outlined the concerns of the Labour Party in regard to the Bill, concerns I am sure are shared by everyone.

Chairman

I propose that we suspend so that members can participate in the Dáil vote.

Sitting suspended at 11.55 a.m. and resumed at 12.10 p.m.

Chairman

I will take the next speaker, after whom I will make a point. I call Deputy Conlon.

Deputy Margaret Conlon

I will be brief, as much of what I was going to discuss has already been mentioned. None of us would want to take away from the joy adopted children bring their parents. Many of the e-mails and contacts I have received from constituents and others explain that, while people understand the importance of the Hague Convention and appreciate the fact that the welfare and interests of the child must be paramount at all times, they have a few concerns. The first of these relates to the grandfather clause. People who have been in the process for a number of years with the intention of returning and adopting another child, sometimes their children's biological siblings, are worried that they will not be able to do so. A grandfather clause, be it involving a time limit or a case-by-case basis, would allow for some consideration. One set of contacts told me that they had African-Irish children, so their most important consideration when bringing another child from abroad to Ireland is that the adoptive siblings would look alike and be from the same country. The parents would not consider it in the best interests of their children to do otherwise, particularly when travelling to and from the country from which they originally adopted to ensure that their children are aware of the culture, heritage and traditions left behind.

People have discussed the long waiting times for assessments. Those who have been on old waiting lists and are now starting or hoping to start their HSE assessments are worried that they will probably miss out on the deadline. They fear that they will receive their declarations a few months after the Bill enters into law. If there could be some light at the end of the tunnel for them in terms of the old system, it would reduce their waiting times. One couple informed me that it contacted the HSE more than two years ago but has still not been assessed despite having put an extensive amount of paperwork together for the HSE.

People mentioned tracing and reunion facilities and a right to a birth certificate. Access to files and information is important for people. They believe the information to be theirs.

What is the Minister of State's position on open adoptions? I would welcome clarity and information in this regard.

Deputy Beverley Flynn

I echo some of the points made by Deputies Alan Shatter and Jan O'Sullivan and my colleague, particularly those on direct adoption, the grandfather clause and the unacceptable length of time that going through the assessment process takes.

My point touches on the Minister of State's amendment No. 55. For couples who have not yet got their declarations of eligibility and suitability but who are mid-way through the process, which we all know can take up to four or five years, it has been brought to my attention that they are concerned this Bill will restrict the countries from which they will be able to adopt. Regarding amendment No. 55's proposed subsection (iii), which states: "in another contracting state or a state that, in the opinion of the Authority, applied standards regarding the adoption concerned that accord with those in the Hague Convention", could this provision be applied generally throughout the Bill? In the Minister of State's Second Stage contribution, he stated——

Deputy Barry Andrews

Could the Deputy say that again, please?

Deputy Beverley Flynn

Could the provision be applied throughout the Bill and be left open?

Deputy Barry Andrews

Could the Deputy go back a bit? What did she say before that?

Deputy Beverley Flynn

I drew the Minister of State's attention to the proposed subsection (iii), the provision relating to countries that are applying standards in compliance with the Hague Convention. Could this provision be applied generally throughout the Bill instead of just to couples who have received their declarations of eligibility? In this way, there would be no restrictions on couples who are mid-way through or have just started the process of adopting from other countries.

On Second Stage, the Minister of State mentioned that the State can enter into discussions with states that are not parties to the Hague Convention for the purpose of making bilateral agreements. However, if the State is not in discussions and those countries are acting in such a manner as to be compliant with the convention, would the Minister of State consider allowing an open adoption situation for everyone irrespective of the stage at which they are in the process?

Chairman

I thank Deputy Flynn. I do not want to curtail debate and I understand fully how we must operate. We are on section 2 and I am conscious that people might have wanted to make opening remarks. Their points have been fundamental. However, if we are to devote the same amount of time to each section, the two days we have allocated will not cover the work we must do. I ask the Minister of State to address his amendment and the points raised.

Deputy Barry Andrews

Deputy Kathleen Lynch suggested that we each make an opening statement on the Bill. It was not a bad idea, considering the fact that everything raised has covered most of the Bill's amendments rather than the specific ones before us now.

I reiterate the fact that I am sensitive to the long process involved in applying for an assessment. It can take 18 months to two years to get a preparatory group and longer to get a social worker to carry out an assessment and make a report for an adoption committee. These delays are frustrating for prospective adoptive parents. I meet representative groups and individual parents all the time and am conscious of their needs.

It is worth saying that I am extremely in favour of adoption, as there are those who would suggest that some people are not in favour of international adoption. Where a child is adoptable, it is an excellent form of alternative care. Equally, the arduous nature of the assessment ensures that those who are adopting are dedicated to the idea. As a result, the outcomes are fantastic, which all of the research has shown. It is worth making these points on a general level.

This Bill deals with improving our standards. For 13 or 14 years, Ireland has been preparing to ratify the Hague Convention. We are the last European country to do so. The convention improves standards and, by signing up to them, provides assurances for children, who are our paramount consideration, prospective adoptive parents and the State. It means that we will adopt from countries that are also Hague compliant or with which we have bilateral agreements to provide us with those reassurances.

I understand that people will miss out. However, if we are serious about introducing these standards, we cannot continue to put off what is at the centre of this legislation, namely, the transposition of the Hague Convention and all of its associated standards into Irish law. Some commentary was generated from a desire to put off the day on which we begin a new regime of higher standards in the area of international adoption. This is not a good idea and I would not support it. That we move on as soon as possible is vital.

The interests of children must be to the forefront. Much of the time, the only issues we raise are those that are of concern to prospective adoptive parents. Setting children's interests aside is easy because they cannot advocate for themselves whereas parents are active and articulate. This poses a difficulty.

I will go through the individual issues raised today. My amendment tries to acknowledge the long period required to get through the process. It would be unfair to leave families that had applied some time ago without the hope of taking their adoptions to finality if they have already received declarations by the time of the Act's commencement. As I explained to Deputy Shatter, the commencement will be approximately one month after the Bill is enacted. Obviously, a group of people will get declarations subsequent to that date. What would we do in those cases? The door to international adoption is not closed for them. They can now adopt from any Hague country and subsequently from any country with which we have a bilateral agreement. To say that international adoption is closed to these people is wrong. It will be closed to them in respect of countries that are not compliant with the Hague Convention and with whom we do not have a bilateral agreement.

We might tease out this matter on Committee Stage. I am aware of it but the obscurity of the language used is extraordinary. It is unnecessarily obscure.

Deputy Barry Andrews

Deputy O'Sullivan raised specific issues. She referred to certain countries being encouraged or promoted by the State. That is not a good thing to do because individual countries open and close all the time. Perhaps we should impress upon prospective adoptive parents at an early stage that this can happen. Vietnam was closed on a number of occasions, the most recent occasion being in May. Ethiopia closed on three occasions in the past ten years, as did Belarus and Guatemala. From time to time we review countries in order to ensure that our laws match up and to react to information that comes to hand. It is invidious to get into the business of recommending countries. Once we get this legislation enacted, being a Hague compliant country will allow us to adopt with great assurance from other Hague countries for the first time.

Deputy O'Sullivan also referred to the disparity of time for assessment in different parts of the country. This has been brought to my attention on a number of occasions. We have spoken to the HSE on a number of occasions to equalise this issue. The difficulty arises from the fact that social workers are on leave from time to time and vacancies arise. We have asked the HSE to get equality between different areas. For the first time this Bill allows the assessment procedure to be carried out other than by the HSE. The adoption authority will have the power to register an accredited body to carry out these kinds of assessment. The longest waiting time is the period between when one applies and when one gets a preparatory group, which can be 18 months to two years. This is not necessary because one is not doing anything or learning anything in this period, one is simply waiting. It is completely unnecessary. However, we all know from other parts of my brief that there is a lack of social workers and the same social worker cohort is dealing with these issues in many cases. I could not justify diverting resources away from child welfare and protection to this area. We must deal with what we have and try to be more efficient. Ultimately, under the new legislation we have a new way of doing this.

Amendment No. 56 is difficult and I am not 100% sure where Deputy O'Sullivan is coming from. There is reference to appointing agents to ensure the appropriateness of proposed adoptions. This is looking behind the manner in which the child came to be adoptable in the sending country. That is not contemplated by the Hague Convention. It contemplates that we do every exercise with the sending country to ensure standards are in place, but there is no way we could appoint an individual to another jurisdiction to investigate whether adoption procedures are appropriately carried out. Perhaps there is a different meaning to it.

Deputy Connaughton stressed that the welfare of the children be the primary consideration and I hope we have further discussion on this during the course of Committee Stage. He also raised the questions of delays, Mexico and private adoptions, which were also raised by a number of other Deputies. Private adoptions are against the Hague Convention. Many of the problems with international adoption have arisen from private adoptions.

Mexico is Hague Convention compliant. It has ratified and signed the Hague Convention, which is attached to the end of the Bill. Adoptions must go through central authorities in sending countries and that has not been the case in some of our practices in Mexico. I do not want to go into too much detail on individual countries but I understand that in Mexico, court involvement is the equivalent of a competent authority as contemplated by the Hague Convention. So long as that is recognised by our central authority, namely, the adoption authority, then everything will be alright. However, private adoptions where one simply makes a connection with a family over there and brings the child back is against the spirit of the Hague Convention and is outlawed, and in my view it is inappropriate.

Deputy Aylward raised the issue of the delays and how one picks the moment one must have reached to go to finality, whether with a Hague Convention country, or a non-Hague Convention or non-bilateral country. He also raised the obvious problem of somebody who misses out. Deputy Shatter's amendment proposes that someone in the system before 1 January should be allowed to go to finality in non-Hague Convention non-bilateral countries. People who applied in January 2009 will feel sorely let down by that. It would simply put off the issue to another cohort of people who would feel they have been badly let down. However, I propose this important amendment that will allow a certain degree of clarity for those people who have been in the system for a particularly long time.

Deputy Lynch raised issues of tracing and they will be dealt with fully in later amendments. Deputy Conlon raised the grandfather clause issue.

Deputy Kathleen Lynch

What about birth certificates?

Deputy Barry Andrews

They will be dealt with in later amendments. Deputy Conlon also raised tracing issues. Deputy Flynn also raised delay, private placement and grandfather clauses. I have dealt with the issues in a general statement and I am sorry to have kept the committee so long.

Chairman

I thank the Minister of State and I call on Deputy Shatter to make some brief points.

Deputy Alan Shatter

I thank the Minister of State for his reply.

A particular issue is raised with regard to Mexico. As the Minister of State rightly said, there is no central authority there and the perception of many of those who have adopted there is that it is in a sense a private adoption. Will the Minister of State expand on how he sees inter-country adoption continuing to operate with Mexico in the context of the legislation and our provisions with regard to a central authority? Who will people deal with as such? That is one of the issues which might be clarified.

Other Deputies raised the issue we have been discussing, which I suppose is the issue of what should be the appropriate cut-off point with regard to people already in the system in the context of the provisions in place under the 1991 Act no longer applying to them. I want to address the Minister of State's amendment because I absolutely accept that he has tabled it in good faith to address a problem to which I do not believe there is an ideal solution. There is a variety of different ways to deal with it. Unfortunately, the Minister of State's solution is not ideal either. It may be, if he is not willing to accept the proposal I have made, that there is a half-way house between them for very simple logistical and common sense reasons, if I could put it that way.

Essentially, the Minister of State's amendment is to the effect that once one has a declaration of eligibility and suitability made prior to the commencement of the legislation that the adoption may proceed under this Act in the manner in which he described, and not necessarily create the worries or concerns for prospective adopters that a number of them have. However, I suggest there really is the possibility not only of a logistical nightmare but the likelihood of huge additional unnecessary concern being caused to adopters in the operation of this.

If we were to complete Committee Stage this week, which may or may not occur because we must carefully tease out the Bill — it would be a good thing to finish it this week and I will not obstruct it but we must tease out the sections in detail and I doubt we will complete it in two days — and Report Stage is taken in a couple of weeks, by the middle of March any amendments adopted here will have gone through the Seanad, the Bill will be signed off by the President and the legislation will be in place by the end of March or beginning of April, six or eight weeks away. A month later it will be commenced, if that is what happens. We are speaking about a ten week period at most.

Many people are in the system and nobody knows the exact number, including the Minister of State and me. Throughout the country anything between 100 and 200 people would expect to receive their decision from the HSE within the next six months with a recommendation or not of eligibility or suitability and they must then go to the Adoption Board for a decision. Others may have completed the process in its entirety and are simply waiting for the social worker in the HSE to write up the report and then for a meeting of one of these odd committees that the HSE has put in place on a non-statutory basis to determine whether to accept what the social worker says. What happens in practice is that the draft report goes to the prospective adopters who are given an opportunity to express a view on it which may be incorporated by the social worker into the final report which then goes to a committee which, a few weeks later, may sit and invite the prospective adopters along and makes a recommendation.

I know the Minister of State's amendment is well-intended and I am not making any political points on this but it will create an absolute logistical nightmare. If only 100 to 150 adopters are in that position they will all be frantic to get their final reports from their social workers. They will be frantic to have the committee sit. Extraordinary pressure will be put on the Adoption Board to progress far more applications for declarations of suitability than is usually the case. If we adopt the Minister of State's solution the timeline could not possibly work in a way that is reasonable, or allow the Adoption Board to do its work properly, or social workers to finalise reports or extends to prospective adopters the opportunity for the normal interaction with the HSE social worker after they receive a draft report.

I have seen many of these draft reports and I should say, by way of a declaration of interest, that wearing my family lawyer hat I have advised many prospective adopters over the years. On occasions, reports are produced that are factually inaccurate; there was a change of social worker personnel during the review period and information has simply got lost. Recommendations of unsuitability are made based on a factual background that is unsubstantiated. On occasion, people need to take legal advice when they receive these reports and the process of having them amended can take a number of weeks.

The Minister of State's proposal would, in a sense, leave people in the system under the old law for four years. I acknowledge Fine Gael does not have the numbers to vote our amendment through against the wishes of an unwilling Government, but a longer time line is still needed even if our proposal is objectionable. I do not doubt pressures will arise at some stage but at least everyone will know where they stand, including HSE social workers, if the timeline was a declaration of eligibility or suitability for people already in the system within 18 months of the Bill's commencement. I am sure someone will be negatively affected by such a limit but we need a workable timeline of which people are aware. It may facilitate the HSE if the assessments of people already in the system are completed on the basis of ensuring that anyone who enters the system is aware that a new law applies to them. Those already in it can be dealt with in the manner suggested by the Minister of State, although according a different time line.

He should also give serious consideration to this proposal for another reason I mentioned briefly on Second Stage. I cannot reveal the names or backgrounds of the people who consult me in my private practice as a family lawyer but I am aware of a number of instances where married couples or unmarried individuals who are eminently suitable for adopting received reports from the HSE which objected to them for unsustainable reasons. There is always a delay of several weeks between receipt of the report and the Adoption Board's hearing on it.

The Adoption Board is a very careful and well run body under its current chairperson and its hearings, which are always held in private, are thoroughly considered. Deputies who have not had an opportunity to attend hearings in a professional capacity would not be familiar with them. The board's members listen to the presentations with interest and they ask relevant and important questions. They may also conduct a separate session with social workers as part of the process leading to a decision. If an individual or a couple against whom the HSE has raised objections for questionable reasons sought a full hearing of the Adoption Board this month, it may lack the capacity to complete its consideration of the case before the Bill commences if it also has to deal with a number of similar applications. Somebody could be unfairly treated by the Bill's coming into force if the timeline is not extended.

I accept that the Minister of State's amendment is well intended. There is a genuine need to address the timeline issue. I do not know whether he has consulted the HSE and the Adoption Board regarding the impact the timeline could have on their dealings with prospective adopters. I think it would put them under significant pressure and result in adopters being unnecessarily anxious about their situation and a collapse in the relationship between adopters and assessors.

Reports are sometimes delayed for very simple reasons. The social worker primarily involved in the assessment may be sick or on maternity leave. Social workers have in the past been diverted to child protection duties. The timeline will not work.

I agree entirely with the Minister of State that we need the highest standards. Our objective must be to protect the welfare of children. If we are to enter relationships with non-Hague countries, bilateral agreements must be put in place and monitored by appropriate review groups. Given that the agreement with Vietnam has not been in effect since May 2009, I understand we do not at present have a functioning bilateral agreement with any state. The Minister of State will correct me if I am wrong in that regard. Have his officials entered into preliminary discussions with any of the non-Hague countries with a view to concluding bilateral agreements?

I am very concerned about his suggestion that Ethiopia and Russia may link the provision of humanitarian aid to a new bilateral agreement on adoption. It was a mistake that the bilateral agreement with Vietnam included such a provision in a manner which did not allow monitoring. It creates the temptation for confusing humanitarian aid and adoption. I do not think couples who adopt in a country should be required to make payments by way of humanitarian aid because this can be confused or misinterpreted as paying for babies. In the context of Vietnam, Helping Hands operated a system which was expressly provided for under the bilateral agreement but has resulted in their bone fides being unfairly misrepresented. Any issue of humanitarian aid should be kept a million miles away from bilateral adoption agreements. It is a dangerous mistake which creates wrong perceptions and we should not go that route.

Even without the Minister of State's amendment, anyone with a declaration of suitability will be able to adopt under the Hague system. However, can he give us further information about the 20 families and individuals who were at what was described as an advanced stage of adoption in Vietnam and for whom special arrangements were promised? If these special arrangements are no longer possible they should be so informed. I would welcome any progress genuinely made, but if there is no realistic possibility of putting arrangements in place for them, it would be most unfair to leave them with the impression that they will be facilitated.

Deputy Kathleen Lynch

I acknowledge that the proposed constitutional amendment on the rights of children will not be introduced any time soon. In regard to post-placement reports, I assume the reason they are not possible is the same reason that prevents open adoption. Under law, once an adoption is made it must be closed. Is that a requirement of adoption law or the Constitution? I was under the impression that it was covered by legislation and, if that is the case, surely we can amend the relevant Act.

Deputy Jan O’Sullivan

I want to make it clear that we do not wish to delay ratification. We are trying to find common ground in respect of those who are caught in the transition between one system and the next. I am not hung up on my amendments but I would like to make some progress on the issue. The reference to ten years in amendment No. 26 specifically pertains to the grandfather clause. I am not fixed on a ten-year period, however.

To clarify, the Minister of State read some of my amendment but the end of it states "if the Authority is satisfied that the standards that are being or will be applied to the adoption accord with those of the Hague Convention". I am not trying to introduce a grandfather clause with no safeguards on the rights of the child. I am just trying to see if we can find a way to deal with parents who have adopted from a country that becomes closed because it has not ratified the Hague Convention, or in the case of Mexico because of the systems it uses are not in accordance with the legislation, although it has ratified the convention. I am looking to find some way to deal with the people caught in that system. Much of the time they are in this position not because of their own doing. The Minister of State has acknowledged there is a long wait in some parts of the country before a person may even get into the process.

I wish to speak on Mexico, although amendment No. 12 relates to the issue of direct adoption without specifically referring to the country. I welcome the Minister of State's comments to the effect that it may be sufficient for there to be a court involvement if an adoption is to fit under the legislation.

Mexico is a signatory of the Hague Convention. It operates a dual system, both parts of which are embedded in law. The Minister of State can correct me if I am wrong but my understanding is that the courts are involved in direct adoptions in Mexico, and the birth mother has the right to change her mind all the way up to the final court proceedings. The reason Mexico operates this system is to involve the birth mother through the process rather than having her give the child to a state institution in advance of an adoption. The mother is more involved in the process.

I do not know if the Minister of State has met with representatives of the Mexican support group but perhaps he could if has not done so. There may be some misunderstanding of the process there.

Chairman

No doubt we will have a chance to deal with the matter in more detail when we come to amendment No. 12.

Deputy Jan O’Sullivan

I know we will come to it later but it was raised by the Minister of State and others. I agree with Deputy Shatter on humanitarian aid being totally separate from the adoption process and many bilateral agreements. It is essential that this is the case, as it can cause difficulties with money and motivation.

Deputy Barry Andrews

The first question was on the point that must have been reached in order to proceed to finality in a non-Hague or non-bilateral country. It was specifically because of issues raised by Deputies on Second Stage that the amendment I put before the committee today was conceived. It was formulated to acknowledge the issues which were raised about people being in the system for such a prolonged period that something had to be done. Deputy Shatter has spoken about putting it off for a further 18 months.

We are trying to introduce new standards and I have tried to provide clarity to prospective adoptive parents who have been in the system for quite a long time. We are looking to introduce this legislation around the end of the first quarter of 2010, and I have made that clear to every representative group and individual I have met. I could not have been clearer about it. We had hoped to achieve this and if we go through Committee Stage a little more quickly than we are doing at the moment, there is a good chance that the legislation could be completed by the end of the first quarter of 2010.

It has been clear to people what we are doing. The legislation is intended to introduce the best possible standards to provide reassurances for children that they are being adopted in the safest way possible. That is what the Hague Convention is about and what we signed up to. Putting this off for a further period — for whatever reason — is to simply set aside those standards.

If we accepted Deputy O'Sullivan's points on the grandfather clause and the ten-year period, why should we not do it for all countries and say that as long as the adoption is compliant with the Hague Convention, it does not matter that the country involved has not signed up to the convention or is a bilateral country? The thrust of that would be that we are not that serious about this legislation. It is not possible to be absolutely committed to our membership of the Hague Convention and the best interests of children in international adoption while at the same time proposing to suspend the standards with regard to certain countries in certain positions for a prolonged period.

Deputy Jan O’Sullivan

We are not arguing to suspend the standards. They should accord with the Hague Convention.

Deputy Barry Andrews

I am afraid to say that, effectively, Deputies are indicating that we could continue to allow adoptions from non-Hague and non-bilateral countries for a prolonged period as long as they comply with Hague Convention standards. The logic could be applied to every country and every position so why would we confine it to the sibling issue?

We must remember what we are doing. I appreciate Deputy Shatter's comments on the potential logjam and the enormous pressure that will be brought to bear. I have met with representatives of the HSE and the adoption board and will meet them every two weeks during this transition. We have had this arrangement since before Christmas because these issues will crop up. Even if there are questions of resources in terms of getting declarations done, we are trying to address them in different parts of the country in order to allow the most humane kind of transition.

I am very alive to the issues and the HSE has been instructed, in so far as I have the capacity to do so, to disseminate through the principal social workers the need to be very flexible and sensitive to the timeline. Equally, the adoption authority is endeavouring, to the greatest possible extent, to process the adoption declarations without any undue delay.

Deputy Shatter also spoke about humanitarian aid as it relates to Ethiopia. We have received information from the embassy that it is possible that Ethiopian adoptions look to have humanitarian aid associated with inter-country adoptions. The weakness in the Vietnam issue — acknowledged by the Vietnamese officials — was that the donation of humanitarian aid was linked to the referral. The same person who received the humanitarian aid made the referral, the match between the prospective parent and the child. There was a massive capacity for distortion, failure and irregularities as a result. They were anxious to change that and when the country becomes compliant with the Hague Convention, one of the features of the new Vietnamese position will be that there can be no link between the donation of humanitarian aid and the match or referral.

I do not have a problem with the donation of humanitarian aid as long as it has nothing to do with the matching and referral processes. If it could be done through an NGO or specific projects such as Irish Aid in the case of Vietnam or Ethiopia, where we have a very strong presence, that would be fine. I do not want it associated with the adoption procedures.

There is a second issue concerning money, which is the payment of fees for services. The Hague Convention prohibits the payment of fees that are not proportionate to the services received. If a person is handing over vast quantities of money to an agency effecting the adoption on his or her behalf in the sending country, I would have grave reservations about it. We must try to tease this out in the cases of individual countries and these central issues must be sorted out for any future bilateral agreements.

When I visited Vietnam in July, I raised the fact that there were 20 applicants with the department of international adoption but no referral had been made. I asked if a humanitarian gesture would be made by the authorities and it was. They stated they would attempt to process the adoptions, although this was done on the understanding we were proceeding to bilateral agreement with Vietnam. That has been derailed by further information that came to our attention. In August we received the draft ISS and MOLISA reports and the final report underlined the serious problems in Vietnam.

We now have to go back to the Vietnamese authorities and tell them the process has been derailed. We asked if they would consider proceeding with the 20 applications and we are awaiting contact on that. We have also written to the Hague Convention requesting advice on how to allow the 20 applications proceed. I met the people in the Department of Health and Children to go through the steps which have been taken. We are trying to effect those applications but there are no guarantees. The applicants understand that. I hope that has answered some of the Deputy's questions.

Chairman

How stands the amendment?

Deputy Alan Shatter

I would like to reply to the Minister of State on one item, although I am conscious of the time. I remain concerned that there is a genuine logistical problem with the Minister of State's timeline. Perhaps the Minister of State could think about this over lunch before we make a final decision. We will not reach amendment No. 55 today, I suspect, because of its position in the Bill. I ask the Minister of State to tell me that between now and Report Stage he is willing to give some further consideration to dealing with this interim issue of people who are already in the system. If there was some detailed information available through the HSE about the number of individuals or couples who would, in the normal course of events, have their assessments completed within the next six to nine months, it would give us some insight into the nature of the problem.

The pressures that will arise from this are appalling. Many prospective adoptive parents have been concerned about where this is heading. There will be a race for a decision to be made, and this will put the Adoption Board and the HSE in great difficulty. It is also unfair to prospective adopters. If the Minister of State will consider extending the timeline for his amendment — we will probably not reach it until tomorrow — or give it further consideration before Report Stage, I will not formally put my amendment. However, I do not want to leave it at that. I would like to hear further from the Minister of State.

Deputy Jan O’Sullivan

Three of the amendments in this grouping are in my name and we will not have an opportunity to speak on them again. I also hope the Minister of State will be able to address the issue. It will put pressure on social workers, the HSE and families, and there is also the question of how well the applications will be dealt with under pressure. The welfare of the children concerned must come into it as well. That is something that must be considered if we are to try to cram many applications into a limited timeframe. Would it be better for all concerned if the timeframe was extended slightly?

I do not particularly want to press amendments because we will not win the vote, but also because I agree with Deputy Lynch that we should do whatever we can by agreement. However, I hope the Minister of State will consider our concerns.

Deputy Barry Andrews

If we put it off for a further period there will be a logjam at the later time. If we say we will go to Christmas, there will be a logjam at Christmas. We have said all along that there has been clarity on this issue. We could consider the time after the commencement. There is a Hague cooling-off period after the legislation has been enacted but before the instruments of the convention are laid in the Hague, which happens a few weeks afterwards.

Deputy Alan Shatter

That will require the Minister of State's amendment to be amended. It is very clear in the way it is drafted.

Deputy Barry Andrews

That is correct. However, I am trying to be flexible. We have been flexible, based on what we heard on Second Stage, in bringing in the transitional arrangements by amendment on this Stage. I will consider that. However, I am not prepared to put off the commencement of the legislation and the application of these standards because that is what we are supposed to be doing. We could just put it off and not commence the Act, which would have the same effect.

Deputy Kathleen Lynch

I will not delay the committee because we have spent considerable time on this. Having a finite date is very important. People need to know where they stand. I am glad to hear the Minister of State intends to go away and take a look at the amendment. There are people who, with a little extra time, would reach the declaration stage, but people who are already within the process need to know they will not reach that stage before the legislation is commenced. I do not think any of us have a difficulty with that. However, in certain areas of the country there are unacceptable delays in assessment, and we must allow for this. By working our way through this we can reach some kind of reasonable middle ground.

Chairman

I thank members. We will now suspend until 2.15 p.m. and I hope we will be able to proceed a little more speedily after that.

Deputy Kathleen Lynch

Those were the opening shots.

Sitting suspended at 1.05 p.m. and resumed at 2.15 p.m.

Chairman

How stands amendment No. 1?

Deputy Alan Shatter

I appreciate what the Minister of State said. Can he guarantee he will come back to us on Report Stage, having given further consideration to the real concerns that have been expressed about what I believe to be a very well intended and well meaning amendment? I have no wish to postpone our applying the necessary high standards nor have I any interest in doing so, but there is a genuine issue about the individuals who might be affected by this and the impact on the Adoption Board. Deputy Lynch raised a very reasonable concern too, namely, that if there is a sudden last minute rush to complete matters there is also the possibility that wrong judgments may be made, to the detriment of children.

Chairman

All those points have been made very clearly and there is no need to rehash them. Does the Minister of State wish to respond, briefly?

Deputy Barry Andrews

Deputy Barry Andrews

Shall I deal with the first amendment now?

Deputy Alan Shatter

Yes, perhaps the Minister of State will do so and we can revert to the other amendments presently.

Deputy Barry Andrews

I agree with Deputy Shatter that the area of long-term foster care is very important. In recognition of this, the Government introduced legislation which gave rights to the parents of children in long-term foster care in 2007. It was seen as a very progressive step. I would be very sympathetic to developments in this area but it would require a great deal of scoping.

I refer to the need for a discussion raised by Deputy Shatter. The Deputy is correct to state the international position is quite different but this is because we do not allow the same level of domestic adoption as other countries, especially the UK where it is a good deal easier to place a child for adoption voluntarily. The proposal made by the Joint Committee on the Constitutional Amendment on Children yesterday in respect of a referendum on the issue of adoption in terms of voluntary placement for adoption would completely change this picture.

Deputy Jan O'Sullivan made a point earlier about the changes that would have to take place were we to go down the road of holding a referendum. At that stage one option to be considered would be how to deal with the issue of long-term foster care. As everyone is aware, at present one can provide for one's foster child in one's will, whether the child is adopted. I also understand that in respect of inheritance tax, foster children are dealt with in the same way as ordinary children if their long-term foster care is established. Deputy Shatter referred to a three-year period, whereas a five-year period applies under the Child Care (Amendment) Act 2007. This matter should be discussed further.

Another issue that must be considered is the degree to which natural parents would co-operate with the care orders, especially voluntary care orders, if they believed prolonged periods of care, which may be in the best interests of a child, could lead to the erosion of their rights in terms of the placing of and consent to an adoption order. This is a real issue and it must be scoped. If we make the changes proposed in yesterday's report from the Joint Committee on the Constitutional Amendment on Children then this process would be a good deal easier and the matter would become part of the legislation that could be passed or promulgated in anticipation of that vote. It is a very interesting issue but I do not believe this is the appropriate legislation or the time to introduce the measures. I oppose the amendments for the reasons set out.

Deputy Alan Shatter

There are adults in these circumstances who do not consider this through a financial prism. I raised the issue because there are certain anomalies in this area. Such people see their foster parents as their family and as the rock of stability on which they built their lives. They have the option of changing their name by deed poll and, as a family lawyer, I have experienced such occurrences. However, they do so because it is the only option available to such people while they would prefer to be regarded formally as incorporated within the family in question not only in the context of the people who cared for them, but also in the context of the extended family, including all the people they perceived themselves as having a relationship with. I included a period of a minimum of three years before reaching the age of 18 years in the amendment. However, the people I have met in such circumstances have been part of foster families for many more years. In fact, in my 30 years as a family lawyer I do not believe I have met anyone who was only with a family for three years with such a perspective on the world. However, I have met others who have been a part of families for many years but who were not adoptable.

I refer to the other amendments for the sake of completeness. One is of relevance in the context of this issue but it is also of relevance in the context of the general provisions. The general provisions in the legislation envisage that children under 18 years can be adopted. I further refer to one of my major criticisms of the Bill. The Minister of State has remarked frankly that the legislation is a consolidating measure. However, it is a consolidating measure that has, on occasion, sought slavishly to re-include in our law measures contained in the Adoption Act 1952 that are no longer of relevance. I have no idea why they are re-appearing in this day and age. One such measure is contained in section 23. I propose the removal of section 23(1)(b) and this is the purpose of amendment No. 29. In summary, the section states the authority should not make an adoption order unless the child resides in the State, which is reasonable and appropriate. Section 23(1)(b) reads, “at the date of the application is not more than 7 years of age,”. It then goes on to refer to the other aspects of the circumstances in which a child can qualify for adoption.

How stands amendment No. 2?

Deputy Alan Shatter

I was only raising it for discussion purposes. I hope the Minister of State and his Department will give some further consideration to this matter. It may be an issue on which it will seeking, by way of advertising by this committee on another occasion, public submissions to determine the extent to which this is an issue and people would like it addressed. I merely raised it to afford us an opportunity to air it. I withdraw the amendment.

Amendment, by leave, withdrawn.

Deputy Alan Shatter

I move amendment No. 3:

In page 15, subsection (1), line 32, after "was" to insert "ordinarily or".

This amendment seeks to amend the definition of "domestic adoption", which is said to mean "the adoption of a child who was habitually resident in the State before his or her adoption by a person or persons habitually resident in the State", to read

"domestic adoption" means the adoption of a child who was ordinarily or habitually resident in the State before his or her adoption by a person or persons habitually resident in the State.

Under the current adoption legislation, children who are ordinarily resident in the State can be adopted in this State. Habitual residence is a far more complicated concept than ordinary residence. I accept it is reasonable that if adoption orders are to be made in favour of an individual or a couple in this State they have some reasonable attachment to the State and that their residence perhaps goes beyond ordinary residence to habitual residence though it is very difficult to work out, on occasions, the difference between the two. I am not sure for how long a child would have to be resident in the State to be regarded as habitually resident rather than ordinarily resident. I am concerned that circumstances could arise where it is clearly in the best interests of a child that the child be adopted in the State but that because there was no clarity as to what habitual residence meant, some artificial rule would be put in place as to how many years the child needs to be resident in the State to be regarded as habitually resident. Ordinary residence is an easier concept to deal with. I ask the Minister of State to respond and if he does not agree with the amendment to inform the committee what period of residence in the State does he believe would be required of a child to be habitually resident here rather than ordinarily resident here.

Deputy Barry Andrews

The use of "habitual residence" in the Bill accords with the terminology in the Hague Convention and in accordance with the advice of the Attorney General's office it is considered the appropriate terminology. The Adoption Authority of Ireland as a quasi-judicial body will have to find, as a matter of fact, whether a person is or was habitually resident in a particular place at any relevant time for the purpose of the Bill, including obviously a child that is proposed to be adopted. For that reason the amendment is not accepted.

Deputy Alan Shatter

Does the Minister of State have in mind any particular period of time as constituting habitual residence for the child?

Deputy Barry Andrews

The Adoption Authority of Ireland will have to assess whether the child is habitually resident in the State for the purpose of a domestic adoption. As the Deputy is aware, habitual residence is different in different circumstances whether it is two years or 12 months. Rather than delineating it, it allows the Adoption Authority of Ireland the discretion to decide, on the basis of the facts, according to the circumstances in each case.

Chairman

Is the amendment being pressed?

Deputy Alan Shatter

No.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 4, 24, 32, 54 and 75 are related and may be discussed together.

Deputy Alan Shatter

I move amendment No. 4:

In page 16, subsection (1), between lines 1 and 2, to insert the following:

"(iii) is appointed to be a guardian of the child in accordance with the provisions of this Act,".

There is a connection between all of these amendments. Essentially they are intended to deal with the situation that arises in the majority of domestic adoptions that are effected through the adoption board. In the majority of instances it is the mother, who is the parent, and in a smaller number of cases the father is the parent. Where the mother of a child born outside marriage celebrates a marriage with a person who is not the father of her child, the husband has no legal relationship with the child. In many instances where those marriages are celebrated the father or biological father of the child either has no contact with the child or minimal contact with the child. The majority of domestic adoptions granted at present by the adoption board are applications by the biological mother together with her husband to adopt her own child. We discussed this issue on Second Stage. The mother is in the rather odd position where she applies to the HSE for assessment as to her suitability to adopt her own child with her husband and, ultimately, the adoption board makes an adoption order, and adoption papers are made available, and the child is effectively registered as the adopted child of the mother and the husband.

It is entirely anomalous that mothers should in these circumstances have to adopt their own children. We need clear legal mechanisms to facilitate the conferring of parental rights on husbands in these circumstances, or in the minority of instances where it is the biological father who has the custody of his child marrying a wife who is not the child's mother to confer parental rights on the wife. This is an issue that has been addressed in a plethora of reports. It was addressed in the adoption review report published in 1984 in which it was said that we need an alternative structure. The adoption board in its annual reports repetitively refers to the need for new provisions.

The group of amendments I have tabled are designed to do two things. First, where a parent marries a spouse who is not the parent, to facilitate the new Adoption Authority to make an adoption order in favour of the spouse who is not the parent and by so doing confer the same parental rights on that spouse as already vested in the parent. In other words, the mother, or in a minority of instances the biological father, do not have to apply to adopt their own child. It would mean that the paperwork that would be produced at the end of the day would make it very clear to that child, during his or her childhood or when he or she grows up, that the mother is his or her biological mother and that the father is the adopted father and that adoption has all sorts of important implications.

It gives the husband and the mother similar guardianship rights with regard to the child. It places the child in the same legal relationship with the husband as he would have with a father if he had been born within marriage to a husband and wife. It gets away from this artificial making of adoption orders where biological mothers are turned into adoptive mothers.

The other alternative is to amend our legislation — and the other amendments I have tabled deal with this — to facilitate the courts conferring guardianship rights on the non-parental spouse in these circumstances. There is a substantial advantage in that as an alternative. It could be a particularly important alternative in circumstances where the couple with whom the child resides, one of which is a biological parent, are not exclusively involved in the parenting of the child but where there is still a biological parent, and most times it will be the father, who has retained contact with the child. In those circumstances, conferring guardianship rights on the husband may fulfil a very important function with regard to the parenting of the child but it does not cut off the parental rights and obligations of the biological father and provides a mechanism, as one of my amendments proposes, for the father being entitled to access rights in these circumstances.

That is the detail of the amendment. It is to address an issue that for 25 years has been signposted in various reports on adoption, and annually by the Adoption Board, as an issue that should be addressed and which this legislation fails to address.

Chairman

I call Deputy O'Sullivan who tabled amendment No. 54.

Deputy Jan O’Sullivan

The areas dealt with in these amendments are complex. The one I have tabled seeks to not cut off the possibility that adoption must terminate all pre-existing relationships of affection, in other words, either with someone in loco parentis or the natural parent. Under my amendment there could be exceptions to that. I am thinking of a situation where a mother has surrendered her child for adoption in circumstances where, for one reason or another, she could not cope but where the adoptive parents may know her and she may know them. A situation may arise where it would be in the interests of the child to have some contact and relationship. That is not provided for in the legislation. I have tabled the amendment to allow a discussion on that. This is not a typical situation but there are some situations where we might need to examine possible exceptions.

Deputy Barry Andrews

This Bill does not provide for the appointment of a guardian to a child. Section 17 provides that the appointment of a guardian is by way of an application under the Guardianship of Infants Act 1964. Otherwise, as set out in section 3, a guardian may be appointed by deed or will or by an order of the court in the State. As such, the appointment of a guardian is outside the scope of this Bill.

Regarding amendment No. 24, at subsection (4)(a), in the case of adopted children the rights of both adoptive parents are the same. In subsection (4)(b) the biological parent being referred to, as we understand it, is the natural father. The natural father, in section 17(3)(b)(i), may apply for guardianship. As a guardian his consent is required before an adoption can take place. If he consents to the adoption he forgoes his rights and duties vis-à-vis his child.

Subsection (4)(c) of the proposed amendment envisages a continuing role for the natural father following the adoption. The Bill does not provide for that but there is no barrier for the adoptive parents to make an arrangement which allows ongoing involvement by the natural father. In consenting to the adoption, however, he has forgone his duties and responsibilities in regard to the child. As other than an adoption order is envisaged by this proposed amendment, subsection (4)(c) is therefore outside the scope of this Bill.

Deputy Alan Shatter

In the context of dealing with amendment No. 24, there should not be a complete dichotomy and separation between our adoption laws and our guardianship laws. I appreciate that this Bill does not address guardianship issues but this is an issue that has been consistently raised in critiques of the way the adoption legislation works.

In other amendments I have tabled I have specifically addressed some aspects of that. The new subsection in my amendment No. 24, to which the Minister refers states:

"(4) On the application of the spouse of a biological parent desiring to adopt a child to acquire the same rights and responsibilities with regard to the child as the biological parent.

(a) The adoption order shall confer the same rights and responsibilities on the spouse as vested in the biological parent.

(b) Shall not affect the rights and responsibilities of the biological parent.

(c) Where the biological parent with whom the child does not permanently reside continues to have regular contact with the child, the Authority may make an order conferring guardianship rights and responsibilities on the applicant to so act jointly with the child’s existing guardian or guardians instead of making an adoption order.”

The interaction of all of this is intended to recognise that it should not be necessary for a spouse who is the biological parent of a child to adopt his or her own child. It is only happening to confer parental rights on the other spouse who is not a biological parent. We need a mechanism whereby those parental rights can be conferred. We should not use this artificial mechanism, as we have done, which I do not believe was ever envisaged would be used when the Adoption Acts were first enacted, which requires a mother to adopt her own child. There is nothing in this that falls out of what is supposed to be the area of consideration in this legislation.

It also deals with another issue, and I may not have expressed it as well as I should, to which Deputy O'Sullivan referred. It seeks to provide that where this occurs, and together with the later amendment, if either the biological mother or the biological father who does not have care of a child wishes to maintain contact with that child or if, for example, it is an area of open adoption, which is happening in practice, we do not have the legislation for it. If we want to allow a situation where arrangements can be put in place which protect the rights of the natural or biological father or the natural or biological mother, in circumstances where neither has custody of a child, to have continuing contact with the child while still allowing the adoption of that child, the amendments I propose provide for that mechanism.

The Minister, unfortunately, is wrong in one thing he says. I have had experience of this in adoption cases in which I have appeared in front of the Adoption Board representing individuals. There have been instances in the past where a child has been in the care of adopters for an extended period, the biological mother or father of the child with whom the child is not residing objects to an adoption order being made and they are only agreeable it be made, and this has arisen particularly where one is the biological parent and the other is not, provided he or she is guaranteed continuing contact and access rights.

I have a vivid memory of one case the Adoption Board had to deal with under which the board was told by the father that he was agreeable to the adoption order being made provided he could continue to see his child once every three months, which was the arrangement that had been in place, which was not an excessive period of time. The respective adopters said to the board that they were happy to do this and were happy to agree to it. There was a detailed agreement and all they had to do was sign it on the dotted line. The problem in this respect was that once the Adoption Board made the adoption order all the parental rights of the biological father in this instance would be extinguished. In the context of an agreement between adopting parents and a biological parent providing that the biological parent would have continuing access that would have no enforceability in the courts. From a legal perspective, that is an agreement to allow a third party, unrelated to the child despite the party being biologically related, to have access to the child. There is no means for that to be enforced if the couple who are adopting renege on the agreement. There is a genuine need in circumstances where this sort of difficulty arises for the new Adoption Authority — there are different ways of dealing with this — to be able to make an adoption order under which this sort of agreement is given legal validity with the overriding right vested in the courts, presumably the District Court or Circuit Court to vary any such agreement in the interests of the welfare of the child, as it currently can do under the Guardianship of Infants Act in other circumstances. This is not a theoretical problem but a problem that arises in practice. The amendments I tabled are designed to deal with a number of issues and this is one of them.

Chairman

The Deputy has made his case very clearly. I call the Minister of State.

Deputy Barry Andrews

Deputy Shatter is right in that the Adoption Board has raised the issue, certainly in its last two reports. In step-parent adoptions the natural parents should not be required to adopt their own child. Some other mechanism should be found to allow the step-parent to adopt supposedly as a sole applicant. Unfortunately, it is outside the scope of this Bill to deal with that issue. That is an issue to which I am sympathetic — it is a guardianship issue. There is no capacity in this Bill to deal with guardianship but I have some sympathy for the points made.

I also point out that there were 200 step-parent adoptions in 2009. The number of them has been more or less the same for the past few years and this works. If there are circumstances where a natural father does not wish to give up his rights or sever links with the child who is proposed to be adopted, it may not be an appropriate situation for adoption. However, there are many instances where it works extremely well. I do not doubt that there are situations where the desires of an individual couple do not marry — perhaps that is not the correct verb to use — with the legislation. It is also worth pointing out that the natural mother who proposes to adopt her own child continues to have her name on the original birth certificate, which is quite distinct from the way perhaps it is portrayed, namely, that she suddenly becomes the adoptive mother of the child. Her status as the natural mother is reflected in the original birth certificate and all the adoption order does is acknowledge that she is now the legal mother with the adoptive father of that child under the adoption order.

I acknowledge what the Adoption Board has said repeatedly. I did not realise that it has sought from as far back as 1984 to have this mechanism changed but I believe the appropriate way to change it is through the guardianship legislation.

Chairman

Is the amendment being pressed?

Deputy Alan Shatter

It is for the following reason. I do not accept the Minister of State's argument that this issue is outside the scope of the Bill. For God's sake this is an adoption Bill. It pulls together all our law on adoption. Apart from it giving force to the Hague Convention, it is minimalist in reforming our adoption law. Admittedly, it introduces some level of reform. It is 26 years since this issue was raised in the 1984 adoption review report. There is no reason this issue could not be addressed in this Bill. The legislation has been promised for ten years and originally it was promised as a reforming measure prior to the Minister of State being elected to his House. This is not his fault, but that legislation was promised as a reforming measure. I appreciate he has only had this brief for a year and a half or so. This legislation evolved into becoming a consolidating Bill as opposed to a reforming measure, but it is the vehicle before the House through which we can modernise our adoption law. The most expert group here dealing with adoption is the Adoption Board. It deals with adoption on a daily basis. It is appalling that we are putting through a Bill that not only ignores the recommendations of a 1984 report — which is ludicrous — which have been repeated in subsequent documents and reports, but it ignores the consistent advice given by the Adoption Board over many years.

The Minister of State said there were 200, what he termed, foster parent adoptions — a better term than I used — in the last year for which we have statistics. At one stage there were up to 250 a year, I do not want to exaggerate the number. There is no reason the mechanism I propose to reform this could not be adopted. I intend to press the amendment.

Deputy Jan O’Sullivan

We need to ensure this is reforming legislation in so far as we can. No further legislation in this area is due to be introduced in the near future that would address the points made by Deputy Shatter or the points made in respect of the other amendments. The Minister of State should consider at least the possibility of addressing this issue on Report Stage.

Deputy Alan Shatter

Deputy Jan O’Sullivan

It has already been debated in the Seanad and the Minister has been definitive in his response, so I will not press it.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Deputy Alan Shatter

I move amendment No. 7:

In page 17, subsection (1), between lines 18 and 19, to insert the following:

" "welfare" means the physical, emotional, social, intellectual, moral and religious welfare of the child.".

The Committee divided: Tá, 4; Níl, 8.

Tá

Connaughton, Paul.
Coveney, Simon.
Reilly, James.
Shatter, Alan.

Níl

Andrews, Barry.
Aylward, Bobby.
Blaney, Niall.
Conlon, Margaret.
Flynn, Beverley.
Ó Fearghaíl, Seán.
O’Connor, Charlie.
O’Hanlon, Rory.

Amendment declared lost.

Section 3 agreed to.

SECTION 4.

Chairman

Amendments Nos. 8, 13, 14 and 71 are related and may be discussed together by agreement.

Deputy Barry Andrews

I move amendment No. 8:

In page 18, between lines 2 and 3, to insert the following:

"(h) providing information, advice and counselling concerning adoption to a mother or guardian who proposes to place a child for adoption;”.

This matter of counselling for birth mothers was raised in the Seanad and I am happy to have given it some consideration. I am proposing amendments based on what was mentioned to me in the Seanad in this regard, which is slightly relevant given the last comments made by Deputy Shatter. The decision to place a child for adoption is obviously difficult and one with far-reaching consequences for all involved. In light of this fact, I am tabling an amendment to provide that the accredited body shall provide information and counselling to the birth mother or guardian before the child is placed for adoption.

Deputy Margaret Conlon

I support the amendment. The process is traumatic for any parent and whatever counselling or help can be given is necessary.

Deputy Jan O’Sullivan

I support the amendment, but wish to discuss the term "birth mother". "Natural mother" is the term that natural mothers would prefer to use. Will the Minister of State consider changing the wording? It is a separate issue that was raised with us.

Chairman

It is a good point.

Deputy Kathleen Lynch

I now know that the detail of the amendment will arrive with the rolling out of the legislation. I welcome the amendment. The time in question is clearly traumatic for any mother. I hope that the counselling will not just be a once-off, token effort. If the mother feels a need for further sessions before making a decision, they should be available. The amendment is a good one and I support it, but I hope it will not be a case of giving someone one session before asking her to make up her mind.

Deputy Barry Andrews

It is intended to be helpful and supportive of the mother who is placing the child for adoption. No one does that lightly, so we want to ensure that consent is given freely and that the consequences are properly understood. It is not intended as a fig leaf. Everyone working in this area takes his or her obligations seriously. Presumably, this fact will be reflected in practice.

We are dealing with section 4 and discussing the provision of "information, advice and counselling concerning adoption". The full section reads: "references to the making of arrangements for the adoption of a child (whether a domestic adoption or an intercountry adoption) shall be read as including references to the following activities". In this sense, we are trying to capture the activities of individual organisations involved in adoption, such as support organisations. Clearly, the Deputy does not want to name the groups to which he is referring.

Deputy Alan Shatter

This section links with a later section, for which reason I am raising the issue.

Deputy Barry Andrews

Deputy Barry Andrews

We are discussing issues in respect of which no amendments are before the committee. For example, there is no amendment on "natural mothers" and "birth mothers". I am trying to be as open as possible, but no amendment has been proposed and I have not had an opportunity to consider the issues. Let us be clear — these activities must be undertaken by bodies accredited by the Adoption Authority of Ireland. Hence, Deputy Shatter's issue does not arise. Regarding the term "natural parent" against "birth parent", is Deputy O'Sullivan only referring to mothers? I am not clear. We will be here until kingdom come.

Chairman

We will get some clarity on these matters before Report Stage.

Amendment agreed to.

Chairman

Amendments Nos. 9 and 10 are related and may be discussed together.

Deputy Alan Shatter

I move amendment No. 9 :

In page 18, between lines 16 and 17, to insert the following subsection:

"(2) Nothing contained in this Act shall result in the furnishing of legal advice, assistance or representation about adoption or any adoption matter to any person being regarded as the making of arrangements for adoption.".

I have told the Deputy that we must proceed.

Deputy Bobby Aylward

Will Deputy Shatter not accept that the Minister of State has undertaken to take the amendment on board?

Deputy Alan Shatter

He should take it on board by accepting the amendment. Any further amendment can be made on Report Stage as required. We are supposed to be legislating.

Amendment put.

The Committee divided: Tá, 5; Níl, 8.

Tá

Connaughton, Paul.
Lynch, Kathleen.
O’Sullivan, Jan.
Reilly, James.
Shatter, Alan.

Níl

Andrews, Barry.
Aylward, Bobby.
Conlon, Margaret.
Flynn, Beverley.
Ó Fearghaíl, Seán.
O’Brien, Darragh.
O’Connor, Charlie.
O’Hanlon, Rory.

Amendment declared lost.

Section 4 agreed to.

SECTION 5.

Deputy Alan Shatter

I move amendment No. 10:

In page 19, between lines 2 and 3, to insert the following subsection:

"(2) Nothing contained in this Act shall result in any provider of travel services as being held to make arrangements for the adoption of a child.".

The amendment seeks to include a new subsection. Section 4(a) refers to the making of arrangements for an adoption and states, “making any agreement or arrangement for, or facilitating, the adoption or maintenance of the child by any person” while section 5(d) states, “providing assistance in transferring the child to the State” includes the making of arrangements for adoption. If a couple leaves the State with a declaration of suitability prior to or after the Hague Convention coming into force, travels outside the State, an adoption order is made outside the State and they return to Ireland, the people facilitating these arrangements and providing assistance in transferring the child to the State in most cases will be an airline or it could be a travel agency. The definition in section 5(d) is so broad that it falls within the definition of making arrangements for adoption. It is not the Minister of State’s intention to criminalise airlines for carrying prospective adopters out of the country to collect a child or flying back into the country with the child they have lawfully adopted. This must be exempt from the application of the section. Equally, we do not want to prosecute travel agents who assist people in making such arrangements.

Deputy Barry Andrews

Clearly it is not the intention to criminalise the airline industry, which provides transport, or Iarnród Éireann or the Luas provider if prospective adoptive parents take the train from the airport. Section 5 states:

In addition but without prejudice to section 4, in this Act, references to making arrangements for the adoption of a child shall be read in relation to an intercountry adoption as including references to the following activities: ...

(d) providing assistance in transferring the child to the State;

The Deputy seeks to insert his amendment here but it could not be contemplated that the section exposes a transport provider to a risk of being sued for acting in an illegal fashion and I resist the amendment.

Deputy Alan Shatter

Logically it should not but arrangements for adoption can only be made by the HSE or an accredited adoption agency, with one or two exceptions which I will not go into. The making of arrangements by other individuals or organisations will be criminalised in the legislation, which states, "...includes within the concept of making of arrangements for adoption providing assistance in transferring the child to the State". It is not the Minister of State's intention to criminalise travel agents and airlines but the wording does so. We have an obligation to enact legislation that makes sense and does not potentially criminalise people. The proposed amendment is designed to ensure the legislation cannot be interpreted in this way. For example, if an individual who is ideologically opposed to Irish adopters adopting children from orphanages in a foreign country in circumstances that are entirely lawful in that country and fall under the Hague convention and learns the adopters are flying back to Ireland with Aer Lingus, he or she could decide to initiate a private criminal prosecution under this legislation and issue a summons in the District Court. That may be far fetched but it can be done under this legislation.

There is a need to amend this section in order that, just as the Minister of State accepted in principle that lawyers who properly give people legal advice about adoption cannot be regarded as making arrangements for adoption, travel agents and airlines that people utilise to fly into the country cannot and should not be criminalised as unlawfully providing assistance in transferring the child to the State because most times that will be the only way the child can get into the State. I suggest the Minister of State should accept in principle the need for an amendment. I do not mind whether this phraseology or a different phraseology is adopted. Instead of inserting "travel arrangements" he may want to make a specific reference to airlines and ships. I do not know, but the Bill as currently drafted criminalises those activities.

Deputy Barry Andrews

It is interesting that Deputy Shatter does not mind what phraseology is used, because I understood from what he said on the previous amendment that he was irritated that a different phraseology might be proposed by the Government on a point we were conceding. Nevertheless, I restate my strong view that section 5 does not contemplate in any way whatsoever any of the circumstances outlined by Deputy Shatter. My understanding is that one needs to make arrangements for an adoption as well as providing assistance in transferring the child in the State. If Aer Lingus were making arrangements for an adoption, not being an accredited body, it would be open to be sued. The situation described by Deputy Shatter where it is simply providing transport is not what is contemplated by the section.

Deputy Alan Shatter

I will conclude by pointing out to the Minister the wording of the section. "In addition but without prejudice to section 4, in this Act, references to making arrangements for the adoption of a child shall be read in relation to an intercountry adoption as including references to the following activities:” In regard to an inter-country adoption, one of the following activities is “providing assistance in transferring the child to the State”. The making of arrangements for adoption, and travelling fall within that provision. The airline allowing the child on it, the travel agent making the bookings——

Chairman

The Deputy has made that point very clear. Is the amendment being pressed?

Deputy Alan Shatter

Yes.

Amendment put and declared lost.

Section 5 agreed to.

Sections 6 to 10, inclusive, agreed to.

SECTION 11.

Question proposed: "That section 11 stand part of the Bill."

Deputy Alan Shatter

The definition of "father" in section 11 is, ' "father" in relation to a child, includes a person who believes himself to be the father of the child.' That is the most peculiar definition of father I have ever come across in my entire life. If I see a young woman walking down the street with a baby and I learn that she wants to place the child for adoption and I am completely off my trolley and I announce I believe I am the father of the that child, ergo under the legislation I am the father of the child even if she and I have never as much as had a cup of tea together. I acquire rights under the legislation and I can delay a child being placed for adoption under the legislation. I can make the life of the mother extraordinarily difficult under the legislation. If there is to be an adoption this could result in applications to the High Court to dispense with the consent of the person who believes himself to be the father. It is the oddest provision I have come across.

In the Status of Children Act 1987 there are express provisions for the determination of paternity. We happily live in an era when genetic fingerprinting, as it was popularly known, is in its third decade, but which is now known as DNA testing. I am pleased I did not waste my time drafting the elaborate amendments I thought necessary to the provision because no doubt I would have been simply told they were going to be considered anyway and it is much easier to just talk about it. I would have thought that this legislation would contain a mechanism for someone who believes himself to be the father of a child where the mother says the person is not the father or where there is a reason to believe he is not the father that the legislation would contain a provision that to some extent replicates what is in the Status of Children Act 1987. That Act originally only made provision as it was understood for a form of blood testing and it took a Supreme Court decision in which I represented one of the parties in that case to confirm a number of years ago that under the Status of Children Act 1987 the courts can order DNA fingerprinting as well as simple blood tests because one could do DNA testing by taking a blood sample. We need more modern legislation because now by simply taking a hair follicle or a sample from someone's mouth one can do the testing without the invasion of a needle to take a blood test.

I would have thought that this legislation should contain a mechanism to ensure that if someone says he believes he is the father of the child, where that belief is challenged that rather than a whole panoply of legal rights being conferred on him, a whole series of possible court applications being required of the Adoption Authority and a whole series of difficulties possibly being created for the natural mother that there would be express provision for DNA testing to resolve it. This Part of the Bill proceeds on the basis that a person who believes himself to be the father of a child is in exactly the same position as the person about whom there is no doubt that he is the father. This needs to be seriously addressed. A series of amendments is required.

This is a most dangerous section. I will give the Minister one simple reason it is dangerous. He has a legal background. I am sure he is not oblivious to the reality of a small number of people who clearly need some psychiatric help, treatment or counselling, to use the correct terminology, who live within our courts system making spurious court applications and wild assertions as to what their rights are or what people have done to them. There is even a form of court injunction that is granted to try to prevent people consistently litigating by making allegations that are delusional. Based on the provision in the Bill, one would only need one male individual who was delusionally of the view that he had fathered a variety of children in circumstances where he had never as much as had a cup of tea with the mother to intervene in all sorts of adoption cases. It is quite wrong. The phraseology is too loose. We need to address the issue.

Deputy Jan O’Sullivan

I believe fathers are treated flippantly in the legislation and in many other ways as well. A broader issue arises than what is encompassed by the Bill. The next set of amendments, beginning with No. 11, relate to a father's rights and responsibilities with regard to adoption. What the Bill states in section 16 is that fathers are entitled to be consulted. As far as I can see we do not make any attempt to figure out who the father is. Some of my amendments address that issue. The measure under discussion appears to have been included on the basis that the father does not have much to do in such cases anyway, so we may as well say the father is the person who believes himself to be the father. I agree with Deputy Shatter that it is very dangerous.

On the broader issue of the rights and responsibilities of fathers to their children, it is important for children themselves that we treat fatherhood seriously. I tabled a question to the Minister for Social and Family Affairs which was answered this week on circumstances in which both parents agree that the father should be the recipient of child benefit. The only exceptions that were listed in the answer was where the mother was either terminally ill or had a serious drug or alcohol problem. That is trivialising the role of a father, especially in situations where the father may well be the caring parent at home.

I know that is off the point of the Bill but it is an illustration of the fact that in so much of what happens in this country we ignore the rights and responsibilities of fathers. I do not think a person who believes himself to be a father can seriously be considered to be a father in any legislation.

Deputy Kathleen Lynch

Research carried out approximately four years ago in England discovered that approximately 30% or 40% of men living in relationships and believing themselves to be the fathers of children were in fact not the biological fathers at all. We are discussing adoption and very few children in Ireland are put up for adoption. As such, this issue will not come up very often, although it has done so very clearly in the recent past. A father took a High Court action and was successful with regard to his child being put up for adoption without his being consulted. Even when he was consulted, his view was not taken into consideration.

Putting all of that aside, because the next amendments tabled by Deputy O'Sullivan will deal with that, we cannot have someone who believes he is the father merely stating it. There are ways to determine that fact and they are getting easier and quicker as time goes on. We cannot allow someone to simply state that he believes he is the father; that will not happen in strange circumstances with someone walking down a street but in the context of a relationship where the person may not necessarily be the father of the child produced. This is where we need to be very careful. In the same way that we cannot allow people to delay proceedings because they believe they are the father of a child, we cannot allow a delay by way of refusing DNA samples and holding up proceedings in that way. We need to be very careful about how we construct the amendment. If someone persists in the belief that he is the father of a child he must be made to provide whatever evidence is necessary to prove it.

Deputy Barry Andrews

I have come across this issue with regard to long-term foster care where a man claimed to be the father of a child for whom a long-term foster application was proposed to be made and the mother disputed this claim. This was brought to my attention recently and I was not sure of the correct way to proceed. Part 3 includes sections 11 to 18, inclusive, and deals with placement for adoption. Placement is the first step towards an adoption, the second step being the consent of the adoption order. One places a child with an accredited body for the purposes of adoption.

Members will see that in later sections an attempt is made to strengthen the rights of a father so that it is only in very limited circumstances with the consent of the High Court that one can dispense of the need, because of the circumstances of a relationship, for the agreement of the father to a placement. If attempts have been made to ascertain the identity of the father which the High Court can rule were reasonable and that all steps have been taken, the placement can occur. It is only understood in the context of placement and is trying to capture the situation where a mother may be reluctant to provide the name of the father and will claim the person is not the father.

When we deal with any of these issues at this particular stage of adoption, we try to focus on the best interests of the child. It is clear that it is in the best interests of the child to know his or her father. Therefore, if there is a dispute between a mother and a father, where a mother disclaims that a person is not the father and that she does not know who is the father, and that person is excluded, it would be prejudicial to the best interests of the child. Under section 17(3) where a father objects to the proposed placement of the child for adoption, the accredited body shall notify the father and the mother in writing in the prescribed manner that it is deferring the placement for a period of not fewer than 21 days to allow for consideration of a guardianship application. Deputy Shatter referred to the Status of Children Act, and such a dispute can be settled in that context.

Question put and agreed to.

Section 12 agreed to.

SECTION 13.

Chairman

Amendments Nos. 11, 16 to 20, inclusive, 33 and 36 to 39, inclusive, are related and may be discussed together.

Deputy Jan O’Sullivan

I move amendment No. 11:

In page 20, between lines 8 and 9, to insert the following:

"(a) the birth of the child has been registered, and either the particulars of the father have been registered or the mother has sworn and furnished to the accredited body a statutory declaration that the father is unknown or missing, and cannot be traced using reasonable inquiries, unless the court permits placement notwithstanding a failure or refusal to swear such a statutory declaration,”.

This amendment returns again to the issues surrounding the definition of "father". However, the context is the same in that it relates to the placing of a child for adoption. The amendment reads, "the birth of the child has been registered...". It then refers to the father. What I am trying to ensure is that the birth of the child would be registered in advance of adoption. Perhaps the Minister of State will tell me that this is catered for elsewhere in the Bill, but, if it is, I have not been able to find it. The intention is to protect the right of a child to have the birth registered in advance of adoption.

The other issues relate to the father of a child. What I am arguing in the amendment is that the father's details should be registered where adoption is contemplated, unless the mother is able to make a statutory declaration to the effect the father is unknown, missing or cannot be traced. The other amendments in my name in the group being discussed follow on from this. The intention is to assert the right of a child to have a mother and a father. Where the father is known, his rights would be acknowledged, as well as his responsibilities. It is not just about rights, it is also about responsibilities. That is a central point. At this stage I would like to hear the Minister of State's response. I know the issue was discussed in the Seanad also.

Deputy Kathleen Lynch

We need to bear in mind that we are talking about children who will be put up for adoption. It seems peculiar to say the birth of the child should be registered before this happens, but it is not as unusual as some might think. Some people who are now adults were adopted and never had their birth registered. That makes life far more difficult in tracing. Therefore, this provision should be included.

I accept that we should concentrate on making the legislation child-centred. Everyone accepts this, but it is in the interests of a child to know who his or her father is, if he makes himself available. There are circumstances in which it is not just a case of the mother not having the details, it is also a matter of the father not committing to coming forward. If a person goes looking for his or her parents, it is important that there are details in the adoption papers about the father.

I accept we have moved past section 11.

Chairman

Yes.

Deputy Kathleen Lynch

I am not certain that 21 days is appropriate because, if it is the first time that——

Chairman

The Deputy cannot refer to that now.

Deputy Kathleen Lynch

If a man has just heard he has had a child and that it is about to be put up for adoption, 21 days is not enough time for him to get his head around it and go through the courts. We will deal with this on Report Stage.

If a child is being put up for adoption, the father, if known and available, should be informed as much as possible. All the details on the father should be on file in order that the child will have them to hand if he or she seeks his or her parents as an adult. In most cases, this information is important to the child as it grows up.

Chairman

Amendments Nos. 19, 20, 36, 38 and 39 were tabled by Deputy Shatter.

Deputy Alan Shatter

It is in the best interest of the welfare of a child that its father be involved in its life. Statistics on children born outside marriage bear this out. Where couples are cohabiting, start a young family and subsequently marry, no particular issue arises with regard to the father's involvement in the child's life. However, my experience over the years does not fit with what is now the politically correct view to be taken of fathers of children born outside marriage in circumstances where there is no steady relationship and where the parents are not cohabiting. In some circumstances where people have cohabited for two or three years, the profile of fathers that is now politically correct to present does not accord with reality because there are thousands of fathers in this State who have no interest in children born outside marriage and who are grossly irresponsible in that they do not involve themselves in their children's lives. They do everything possible to avoid providing any reasonable supports for their children and are absolutely prepared to abandon the mothers of their children and leave them as the only parents involved in rearing those children, with all the stresses and strains attached. They are not remotely interested in lifting a finger to help, neither in the interest of the child nor the mother.

Our adoption legislation needs to recognise the role of fathers of children. They must be given an opportunity to know if their child may be placed for adoption and must make fully informed decisions on the issue. The experience under this legislation, sadly, will be as it has been to date under our adoption legislation, as amended following the case in the European Court of Human Rights. The overwhelming majority of fathers of children born where there is no ongoing cohabiting relationship or where there has been a cohabiting relationship for only two or three years are grossly and utterly irresponsible and disinterested in their children. On occasion, we are a bit too delicate in this House to say that. I deplore and regret the circumstances that obtain.

The enormous burden borne by lone parents is greatly underestimated. In the majority of these cases, the mother is the lone parent. We do not do enough to create an ethos in which men take responsibility for their actions and recognise they have obligations to children born as a consequence of their behaviour with those children's mothers. They are far too prone to and adept at seeking to avoid all financial and parenting responsibilities of children born to them.

I have no particular difficulty with the general view that this legislation needs to recognise the role of fathers where they are genuinely interested in their children, have a role to play and where they may have genuine concerns about adoption. We should not delude ourselves into believing there is an army of men who have been mistreated in this regard. In the context of family law, there are many men who have genuine concerns and worries when their relationship breaks down, perhaps having been in a relationship, married or otherwise, for many years. These men's access rights are not always respected with regard to their children but that is a different issue.

Deputy Kathleen Lynch

People will be shocked to hear me say men are treated very badly in Ireland in terms of parental rights after marital breakdown. Where domestic violence is concerned, I have no issue with how they are treated, but a different set of laws applies in this instance. There is legislation in place and the courts are fairly au fait with how they deal with it. I have no sympathy with men convicted of domestic violence.

Just because Deputy Shatter's experience is that men do not take an active part in child rearing does not mean it is a sufficiently good reason to exclude them from access to their children. A child may very well want to know who its father is. The world is changing and men are becoming more involved with their children, which is very good. Not all men are feckless and desert their children. If one expects little from people, little is what one will get. We should demand more, in which case we will get more. In general, given the right supports and maturity, while accepting that men do not mature as early as women, men can make excellent fathers.

Chairman

The Deputy is wandering a little.

Deputy Kathleen Lynch

Even if they are not excellent fathers, it does not detract from their right to know their children and their children's right to know them.

Deputy Barry Andrews

It is surprising to see the committee dividing along gender lines such that the men are supporting the women and the women are supporting the men.

Section 18 provides a requirement for the authority to obtain the approval of the High Court before authorising an accredited body to place the child for adoption in circumstances where the authority is satisfied that it is inappropriate for the accredited body to contact the father prior to the child's placement for adoption, and further provides that the authority can, having obtained the approval of the High Court, authorise the body to place the child for adoption in circumstances where there is no practical way of ascertaining the father's identity.

Section 30 provides that if the authority is satisfied it would be inappropriate for the father to be consulted, the High Court's approval is required before the adoption order can be made without consulting the father. The adoption order can be made with High Court approval if there is no way of ascertaining the identity of the father. These provisions are included to strengthen and recognise fathers' rights in the adoption process. They are in accordance with the evolving rights encompassed by the European Convention on Human Rights.

Section 22 of the Civil Registration Act 2004 provides that the father of a child who was not married to the mother of a child at the date of his or her birth, or at any time during the ten months prior to the birth, shall not be required to give information under the Act about the birth. The registrar shall enter the father's details in the register if the mother and father jointly request it. No legal rights accrue to the father by being named on the birth certificate. For the consent of the father to an adoption to be required, the father must apply for guardianship. Guardians have duties and responsibilities. We do not wish anything to be in this Bill that might discourage fathers from agreeing to their names being included on the child's birth certificate. Viewed through the prism of children's rights, that would be an unintended and negative consequence of the proposed amendments.

Deputy Jan O’Sullivan

I would like clarification from the Minister of State on the obligation to register the birth of the child before he or she is put up for adoption.

Deputy Barry Andrews

The birth has to be registered within three months but the child can be placed for adoption at the age of six weeks. This is a slight anomaly which allows for the potential that a child can be placed for adoption prior to registration of his or her birth. The problem would have arisen in the past but it is highly unlikely to arise again. However, I accept the Deputy's point and we could try to close the gap in order to eliminate the tiny chance that it could create a problem.

Deputy Jan O’Sullivan

In the interest of the child, the Minister of State should try to close the gap in case the child finds out at a later stage that his or her birth was not registered before he or she was put up for adoption.

Deputy Alan Shatter

I wish to make a general comment which is relevant to Deputy Jan O'Sullivan's amendments. We are possibly over-grouping these amendments because the issue I am raising is slightly different in that it concerns how we approach the legislation structurally. While it does not particularly pertain to fathers' rights, it does deal with them.

Amendments Nos. 18 to 20, inclusive, 29 and 30 are pertinent to the procedure outlined by the Minister of State. This Bill does something which will give rise to a lot of unnecessary expense, as well as generating income for the legal profession. As a member of that profession, I have no objection to that but I do not think we need to impose unnecessary expenses on the Exchequer. It will also make the adoption process unnecessarily long.

My amendments deal with section 18, subsection (4) of which states:

Where, on an application by an accredited body that proposes to place a child for adoption, the Authority is satisfied that, having regard to—

(a) the nature of the relationship between the father and mother, or

(b) the circumstances of the conception of the child, it is inappropriate for the accredited body to contact the father in respect of the placement of the child—

(i) the Authority, after first obtaining the approval of the High Court, may authorise the accredited body to place the child for adoption, and

(ii) at any time after being so authorised, the accredited body may place the child for adoption.

A similar provision elsewhere deals with the giving of consent by a parent to a child's adoption.

My first objection, and the principle of my amendment, is to the involvement of the High Court. The Adoption Board is entitled to exercise a judicial or quasi-judicial function on foot of a constitutional amendment introduced many years ago which was perceived as being relevant to that body, although it is not explicitly named. If we accept this is a valid approach and if the board believes it is inappropriate to contact a father on particular grounds, why should it have to seek the approval of the High Court? Why can that power not be exercised by an authority which has available to it the properly qualified people and the factual basis for making a decision? All the board can do is decide it is inappropriate to inform the father and, based on what it knows, make an application to the High Court to validate its perspective. Presumably some sort of oral hearing is needed with the mother present but then the case is brought before the High Court, which can either rely on the information furnished to it by the authority or put the mother in the witness box for questioning. As the father is not going to be told, nobody will be around to cross-examine the mother to impugn what she says. What is the point in one body deciding it is inappropriate that the father be informed if the High Court is asked to decide again?

I am not trying to be funny about this but when the board refers a case to the High Court on a legal matter relating to an objection or, for example, applications are brought under section 3 of the Adoption Act 1974 to dispense with the consent of a parent to facilitate an adoption order or, under the 1988 Act, to free a child for adoption, it can take the court up to 12 months to hear the case. There is at present a significant backlog of High Court family law cases.

If a child is to be placed for adoption and we are interested in protecting his or her best interests, it is better that the placement occurs with reasonable speed once the mother has given her fully informed consent than to leave the child in institutional care or with foster parents with whom he or she might bond and form an attachment. Perhaps the child would be placed with foster parents with a view to the possibility of adoption if the procedure works out.

It is a duplicatory procedure and I do not understand why it is being applied. Is it suggested that the High Court will have greater expertise than the Adoption Board? There is no basis for such an assumption because a member appointed to the board and given the necessary legal guidance and expertise is likely to make as sensible decision as any High Court judge. Several excellent High Court judges deal with family law cases with deep legal insight and good common sense and arrive at reasonable decisions but other judges should not have been allowed within 10,000 miles of making decisions in such cases because they lack the requisite insight and understanding to deal with them in a common sense manner.

In a nutshell, my amendment proposes to delete the references in this and later sections to requiring the prior approval of the High Court. To take an example, the authority might decide it is inappropriate to inform the father and therefore initiate a High Court application. Presumably, that would be done either by the Adoption Board directly or through the Chief State Solicitor. Counsel would be appointed through the Bar Library and the court application would have to be framed and drafted before it could be heard in the High Court. Assuming the High Court endorses the application and the child is placed, what happens after the adopters apply for an adoption order six months later and the mother gives her consent? The Adoption Board has to decide whether it is appropriate to ask the father for his consent after previously deciding he should not have been told about the child's placement in the first place and the entire exercise comes before the High Court once again.

Not only do I genuinely not understand this measure, I believe it is unduly expensive and contrary to the welfare of the children caught up in it because decisions cannot be made about their future. It replicates the decision-making process. My amendments are designed to take the High Court out of the picture. If we have an adoption authority with the professional background necessary, whose members are properly appointed under the terms of this legislation, there is no need to superimpose the High Court on this. That is not taking away from the rights of fathers, but rather providing a practical way of dealing with this — with the body with the most expertise, the adoption authority, making the decision.

Because we are dealing with linked amendments we are going to need a separate discussion on the wording of section 18. I know what the Minister of State is getting at. Take an example of someone, perhaps, who is a victim of rape who does not want to keep her child and wants to place him or her for adoption. It might be absolutely reasonable to decide that this procedure should be progressed without involving the father. If that is the example, however, surely the progressing of the procedure in this lugubrious way, with a whole series of different applications, will add to the stress of the mother who wants to consent to the completion of the adoption process. If we take away that extreme case, I believe there is a need to define, first, what is meant about the nature of the relationship between the father and the mother allowing such a decision to be made.

Whether it is the High Court, the adoption authority alone or the two of them in conjunction making the decision, what extreme of relationship breakdown or of conduct would fall within that particular set of circumstances? On the extremities where, perhaps, the natural father has behaved in a violent manner towards the mother, is that sufficient, or would he have to have behaved violently towards the mother and the child? What level of violence would exclude the natural father, within the context of that meaning? Where one talks about the circumstances of the child's conception, I can well understand that a sexual assault, rape or something of that kind might well have been to the forefront of the Minister of State's mind. We are leaving aside the issue as to whether we need to have a duplicatory decision-making process and we shall have to come back to how section 18(4), in particular, is intended to work and the circumstances it should apply — and how the mirror section later on, dealing with consents, should equally apply to the factual background of family circumstances.

Deputy Barry Andrews

The issues raised are very significant. Because of the complexity of the issues it is necessary at this very sensitive stage of the whole process to involve the High Court. The rights that are at stake are of enormous significance. Deputy Shatter indicates that the High Court can be erratic from time to time, or there are individuals who may not be suitable for making decisions in this area. I am sure this can work both ways. It may well be that on occasion a decision made by the adoption authority will fly in the face of logic. In the event, the High Court would be required to intervene to get a second view. The thinking behind it was to try to protect fathers' rights as well as the best interest of the child — to know the father — and because of the specific issues the Deputy talks about, to determine what type of circumstances would give rise to a situation whereby the father's consent could be dispensed with completely. That is such a complex scenario, that it requires the High Court's intervention.

I believe erratic decisions might emerge in one forum or other. However, the issues are so grave as to require the approval of the High Court. The next point to be considered is delay. Members of the legal profession do not have to charge as much as they do to solve the problem. I am being somewhat flippant, but as regards delay, that is a significant issue, especially in the formative age of a child's life where the issue of attachment is very significant. I put it to the committee that it is important to have a safeguard by referring such matters to the High Court. The fact that the High Court is slow in dealing with such issues should not be an excuse not to go through that correct process. The issue that has to be considered is how we can expedite these types of approvals that are being sought from the High Court with all due haste having regard to the points made about attachment and bonding, as also raised by Deputy Shatter.

The fact that the system is flawed and given there are delays in the court lists, should not be an excuse for not reflecting in law what we believe should be done. It should be a matter for the Courts Service, the President of the High Court or the adoption authority to determine, in dealing with such cases in the best interests of the child, that they should be processed with all due haste. We should put into the legislation what we believe to be the ideal position and not simply walk a circle around something we consider to be an inadequate procedure in the courts.

Deputy Alan Shatter

I shall argue this serious and important issue with the Minister of State, based on the perception of what we are doing with this legislation. I believe it would be accepted that the current Adoption Board comprises extremely good people who have dealt with adoption issues well, led by a very able chairman. I am not going to go into the history of the Adoption Board and not everything it has done in years gone by has been efficient. However, the current board has been very good. We are now creating a new adoption authority which will be a slimmed down version of the current Adoption Board. I am assuming that people of equal skill will be appointed to it. We are vesting in them a very solemn duty. They will be the ultimate deciders of whether individuals or couples are suitable to adopt a child, whether the fate of a child should be placed in their hands and whether they are eligible. They are appointed to make what I would describe as a very important judicial decision, namely, whether the legal background to an adoption outside Ireland is such that we should extend recognition to it in this State. They will hear evidence where there are disputes involving adoption issues between, perhaps, professional social workers who have reached a particular view in good faith and where the doctors might have reached a different view.

The Adoption Board is regarded as having the capacity to make those decisions which are of a judicial nature. These are all extremely serious decisions. The board has to decide when a natural mother has given consent to an adoption or has signed an agreement to place a child. It has to ensure that procedures have been gone through properly and the paperwork is correct, so that if difficulties arise on occasions, it may address those. In other words, it is a body that makes a broad range of extraordinarily serious decisions about children.

If there is a formal hearing before the board, where the natural father or natural mother attend to express their views, the authority will hear evidence, as will the adoption authority. All these issues are very serious and one of the great benefits of our system, I believe, unlike the British one, is that we have a separate body dealing with adoption issues. It has had to develop sufficient inhouse expertise to determine, in recent years, which country's adoption laws are compatible with the standards we wish to apply. Leaving aside difficulties that have arisen with regard to Vietnam, the board has done very detailed work in this area. It provides a service that we do not reasonably provide for legislatively to assist people in tracing. This board has to make a decision, for example, if an adopted person wishes to get access to background information about natural parents, as to whether it might be in the interests of the welfare of that person for such information to be made available. The current board, therefore, makes a broad range of really important decisions and the adoption authority will continue to do this.

I still do not see why we need the High Court superimposed on this. I accept the Minister of State's bona fides. However, what will the High Court do? It will hear evidence from the mother already heard by the board. If a child has been born as a consequence of a sexual assault, the board will have had medical reports, there might have been Garda evidence and the father may have been successfully prosecuted. Will the High Court want to hear all of this in oral evidence? These are very important issues.

I absolutely understand the Minister of State's good faith in this, but this is like a procedure "to be sure to be sure". It is not necessary and the Minister of State should give further thought to this. It is a misconceived approach that will be contrary to the welfare of children. Leaving aside any issue of expenses or how the High Court will deal with it, at the end of the day, there is a child who is made available at an early stage for adoption by a mother who may be left in limbo for many months while this procedure is followed.

If the legislation is to be so broad that the nature of the relationship between the father and the mother is a reason for the father not being informed, then we are abdicating our legislative role to the courts. Who knows what that means? It will ultimately mean what individual judges say it means. Will the judgments be published? Will there be guidance? This is a real problem and instead of having one body — the adoption authority — adopting a uniform and consistent approach on what that phrase means, there is a reasonable likelihood, as judges are revolved through the family law division of the High Court, that different subjective assessments will be made on what that means by different judges. This will result in some children being available for adoption, and others in identical circumstances being denied that opportunity.

Deputy Barry Andrews

The High Court deals with a myriad of issues, such as special care orders, care orders and so on.

Deputy Alan Shatter

There are different judges.

Deputy Barry Andrews

There are different judges, presumably bringing subjective experiences to the issue and making different decisions on different children. However, that is not an argument to withdraw High Court involvement in those cases. Why do we have this safeguard? It is for the unusual instance where at the beginning of the adoption process, there is a dispute between the mother and father in terms of parentage, placement and other issues that are very significant and life changing for the father and the child. As Deputy Shatter said, there may have been decisions made in the past by the Adoption Board that would not have been of the first order. Everybody who is familiar with it now knows that the board is of the first order and has an outstanding chairperson. It is not guaranteed that this will be the case in the future. If we are to adjudicate on these gravely important issues, there must be a safeguard. There is a minority of people on the adoption authority with a legal qualification, and the High Court will bring a legal interpretation to conflicts and hierarchies of rights and on life-changing events for individuals.

The strongest point made by the Deputy is in respect of the delay. This affects the early part of a child's life and it needs to be dealt with at an administrative level, but it would not be appropriate to forget all the points we have made so far just because there are inappropriate delays in the judicial system.

Deputy Jan O’Sullivan

I will press this amendment, although I accept that the Minister of State has said that he will look at extending the period of time to ensure that the births are registered in advance of adoption.

Amendment put and declared lost.

Section 13 agreed to.

NEW SECTION.

Deputy Jan O’Sullivan

I move amendment No.12:

12. In page 20, before section 14, to insert the following new section:

"14.—Where a jurisdiction permits adoption otherwise than through the Central Authority of that jurisdiction, the adoptive parent or parents may arrange for the carrying out of the adoption without the restriction of obtaining a referral from a Central Authority in the originating state but subject to the consent of the Authority and subject to the following—

(a) an attempt to carry out an inter-country adoption is not deemed to have commenced until the prospective adoptive parent or parents have been issued with a declaration;

(b) all formal documentation provided by the State during the process to identify the suitability of the adoptive parent or parents including a suitability report and clearance to provide the immigration of the child following the adoption process have been supplied to the originating state;

(c) the legal process in the originating state has been conducted according to the law of that state and is consistent with this Act;

(d) the adoptive child shall not be removed from the originating state before the completion of the legal adoptive process in the originating state;

(e) all relevant documentation to demonstrate the appropriate carrying out of the procedure in the originating state shall be provided to the Authority;

(f) documentation formally annotated from the legal entities of the originating state shall be accepted without recourse to further evidential proof unless such proof is required.”.

This amendment addresses the issue of direct adoptions. The country with which we have most familiarity is Mexico. The Mexicans have signed the Hague Convention, but they have a dual system between the state and federal law. The system in Mexico means that adoption goes through a court process and is ratified centrally, even though the practice is somewhat different. I do not know if the Minister of State has met anybody who has adopted from Mexico, but the intention is that the natural mother should understand where her child is going. She should be involved in the process, rather than having to surrender the child to an orphanage or an institution and then be excluded from the process.

I do not suggest that we should stand over any kind of process that simply involves people going from Ireland to a country like Mexico or anywhere else and making an arrangement with a family and adopting a child. My understanding is that the process is not like that, and there is court and state involvement; it is just a different process. It does not mean that the parent stands back, surrenders the child for adoption and then has nothing to do with the process after that.

I accept that the system is different, but I have met people who assure me that this is in the interests of the child, because the child understands its own culture and there may be an ongoing contact with the natural mother. Who is to say whether that process may not be in the better interests of the child than surrendering the child to a state agency in advance of adoption?

I am putting down this amendment in the hope that the Minister of State will consider it as an option. I urge him to meet the Mexican adoption support group, because they have done much work to present their case. Mexico is compliant with the Hague Convention, but it has a different way of doing things than most of the other countries with which we deal. I ask the Minister of State to consider this.

Deputy Kathleen Lynch

I support the amendment. Even though Mexico is not specifically mentioned in the amendment, it seems that the process there is far more gradual than ours. The Minister of State may want to deal with it later on, but I would like to go back to the notion of open adoptions. This gradual approach to the process in Mexico means that the natural mother is involved right up to the last minute, and knows where and to whom the child is going. All of a sudden, once the child comes back to Ireland, owing to the law in place here, there is an automatic shutdown and no more information is allowed to be passed along. Is there any way we can examine this issue? Clearly, it would require the consent of both parties. We could not have the natural mother saying she wants continuous contact and the adopting parents refusing this. There would have to be a match. The amendment might go some way towards achieving this.

Deputy Barry Andrews

Mexico offers an interesting example of some of the problems that arise in inter-country adoptions. Many of the referrals occur before a child is born, while the natural mother is pregnant. The arrangement is that some of the antenatal costs will be met by the prospective adoptive parents. To me, that sounds very odd and is not really in keeping with the spirit of the Hague Convention, where one tries to find a family solution first before considering an inter-country adoption. It is also worth noting that the Adoption Board has had a notice on its website concerning the position in Mexico. I am due to meet the Mexican representative group next Tuesday and have met individuals who went to Mexico only for the mother to change her mind six months after the birth of the child. This has occurred twice to one individual which, to say the least, is upsetting.

Private adoptions are against public policy and as such, unlawful. Under Article 17 of the Hague Convention, the central authorities of both states must agree that an adoption may proceed. Therefore, if there is an understanding between the Adoption Authority here and the court in the other state which perfected the adoption order in that state, no issue arises. The proposed amendment could have the effect of giving the impression that private adoptions would be allowed. This is not acceptable. As I noted, there has been a high number of irregularities in private adoptions. However, the legislation will not stop Mexican adoptions, as some think, but private adoptions are not appropriate. There has to be some way under the Hague Convention for an originating state to have a central or competent authority that would be recognised by the Adoption Authority of Ireland here in order to effect an adoption under the Hague principles. I will resist the amendment.

The select committee adjourned at 5.15 p.m. until 11 a.m. on Thursday, 18 February 2010.

SELECT COMMITTEE ON HEALTH AND CHILDREN debate - Wednesday, 17 Feb 2010

Adoption Bill 2009: Committee Stage.

Tá

Níl

SELECT COMMITTEE ON HEALTH AND CHILDREN debate -
Wednesday, 17 Feb 2010