I welcome the Minister of State, Deputy Barry Andrews, and his officials to the meeting. We propose to meet until 1 p.m., sos until 2 p.m. and then continue until approximately 3.30 p.m. Is that agreed?
Adoption Bill 2009: Committee Stage (Resumed).
NEW SECTION.
Debate resumed on amendment No. 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.”.
— (Deputy Jan O'Sullivan).
I will be a complete nuisance and ask that we not resume until 2.10 p.m. I have a difficulty that I did not anticipate. I do not believe the change would make a considerable difference, but I do not want to delay people as I did at 11 a.m.
Will the sos be at 1 p.m.?
Yes, until 2.10 p.m. We will resume our consideration of the Adoption Bill 2009 on section 14, amendment No. 12, that is, that a new section be there inserted. Deputy O'Sullivan has set out the case and the Minister of State has responded. How stands the amendment?
We did not spend much time on it. Despite being a Hague country, Mexico has a dual system. I am trying to achieve some scope for incorporating the way in which Mexican adoptions are operated at a local level, as it were, as opposed through a central authority. My amendment states that the adoptions must be approved by the central authority.
The Minister of State told the committee that he will meet with the support group. I will not press the amendment because it will clearly not be accepted, but I urge the Minister of State to try to find a way in which legitimate and legally enforced Hague compliant adoptions from Mexico and other countries in a similar situation can be accommodated. The Bill may need to be amended. He will not give me a positive response, but I ask him to keep his mind open on this subject until he meets the support group. Just because something is a different way of doing things does not necessarily mean it is not appropriate, ethical or in the interests of the children concerned. These are the legislation's paramount parameters. Will the Minister of State listen to the support group and, if necessary and possible, table an amendment on Report Stage?
Parents who have previously adopted from Mexico or who are prospective adopters from Mexico have all sorts of anxiety regarding this Bill. When the Bill is enacted, some of those anxieties will not prove to be correct. As the Minister of State has properly remarked, Mexico is a Hague Convention country, but a structural problem could arise when our central authority deals with Mexico to facilitate inter-country adoptions.
I agree with Deputy O'Sullivan that, were the Minister of State to meet the group, which has been in contact with many of us, to tease through its concerns between Committee and Report stages, it would be an important and useful initiative. He could give people assurances regarding some of their concerns. If necessary, we could revert to this matter on Report Stage. Some of their concerns are not unique to Mexico but the difference between it and some other countries is that it is a party to Hague and is implementing the convention in a way that does not exactly replicate the way in which a number of other countries have implemented it. This could prove to be a difficulty.
I addressed these matters yesterday. As I explained to Deputy Jan O'Sullivan I will meet the Mexican representative groups next Tuesday. I will undertake to make the points I made yesterday. I would not meet the group unless I had an open mind. I will listen to what the group has to say.
Amendment, by leave, withdrawn.
SECTION 14.
I move amendment No. 13:
In page 20, paragraph (a)(iv), line 28, to delete “and”.
Amendment agreed to.
I move amendment No. 14:
In page 20, paragraph (b), line 30, to delete “effect.” and substitute the following:
"effect, and
(c) provide information, advice and counselling to the mother or guardian concerned.”.
Amendment agreed to.
Amendments Nos. 15, 34 and 35 are related and will be discussed together.
I move amendment No. 15:
In page 20, between lines 30 and 31, to insert the following subsection:
"(2) Twelve months after the placement by an accredited body of a child for adoption with an adopter or adopters the agreement of the mother or guardian of the child to such placement shall be irrevocable.".
The amendment is relevant is to domestic adoptions to address a difficulty that has resulted in a great many court cases over the years. I do not want to mislead the Minister of State and this dates to a long time ago but, from memory, I think I am correct in saying this difficulty was raised in the adoption report referred to yesterday, which was published in 1984. It has certainly been discussed at length in various articles addressing problems in adoption. It derives from the fact that our adoption placement and consent provisions are essentially a two-stage process. Our adoption legislation envisages that right up to the last minute, when the Adoption Board makes an adoption order or when the new adoption authority will make an adoption order, it is open to the natural parent to have a change of mind. There are many court cases and I have represented adopters in such cases and natural parents less frequently.
The difficulty arises when there is an agreement to place and the child is placed for adoption. Between six and 12 months after the placement, what is known as the final consent of the mother is sought to facilitate the making of an adoption order by the Adoption Board. In some instances, the mother withholds consent and sometimes between the time the child is placed and the agreement to place has been signed, the mother changes her mind and asks for the child to be returned. Very often that is not triggered until the mother is asked to sign the final consent and she refuses to sign. Often, further time passes while the matter is worked out. It is of major importance that any person who parents a child and signs an agreement to place does so voluntarily, is fully informed and understands the consequences. The same applies when signing the final consent. Although there have been lapses by social workers in the past, in most cases the implications of signing an agreement to place or consent are fully explained. If the mother is uncertain of the explanation, social workers are careful to revisit the issue. In my experience, there has not been a suggestion credibly upheld in the courts of social workers having browbeaten someone into placing a child for adoption. In cases in the 1980s, some social workers' explanations were inadequate.
This proposal is based on two ideas. When someone places the child for adoption, the person has the implications fully explained and it is made clear they are doing it voluntarily with a full understanding of the consequences. There is a real difficulty with an open-ended situation, whereby there can be a change of mind at any time in the future. Someone who signs an agreement to place must be afforded a reasonable opportunity thereafter to come to terms with what has been done. For all sorts of reasons the person may, shortly thereafter, conclude that what was done was unwise. If a mother places the child for adoption and changes her mind within a few weeks, the child should be returned to the mother unless there are major issues about her capacity to care for the child, which would invoke the child care legislation.
I do not believe placing a child for adoption should terminate all possibility of the child remaining with the mother. Substantial studies, going all the way back to the landmark study of Bowlby on attachment and bonding, show that a young baby placed with parents over the first 12 months of its life substantially bonds and attaches to them. It may bond with other members of the family and the extended family. As time passes, from 12 months to 18 months to two years, the child's whole world is built of relationships with prospective adopters and the extended family. Removing the child from that environment may have profound implications on the child's short-term and long-term welfare and on the capacity of an individual to maintain attachments and long-term relationships as an adult. I am sure the Minister of State is familiar with some of these studies.
This legislation should not re-enact an approach put in place in 1952, when people did not understand these issues adequately. This proposal is designed to provide what I call a cut-off point. If the child has been properly placed with adopters and there is an agreement to place, the proposal is that "Twelve months after the placement by an accredited body of a child for adoption with an adopter or adopters the agreement of the mother or guardian of the child to such placement shall be irrevocable." That should be the case. This is a proposal that would protect the best interests and welfare of a child in these circumstances. In my professional life as a lawyer, I was involved in cases where children were placed by a mother's agreement with parents for six or eight months and then the mother was asked to sign a final consent but did not do so. She hesitates and the matter is put on the backburner. A year later she might be asked to sign the final consent while the adopters are living with the uncertainty of not knowing whether the adoption will be completed. Perhaps after two or three years the mother not only does not sign the final consent but revokes her agreement to place. All of this ends up in the courts.
A very basic principle that has been worked through court judgments since the Adoption Act 1974 was enacted is reflected in my proposal. By and large, when a child has been in the care of prospective adopters for 12 months or more, never having been in the care of its natural parents, the courts will ultimately dispense with the mother's consent under section 3 of the Adoption Act 1974 on the basis that to do so is the best interests of the child. I question whether we need to retain this arrangement and to leave it open-ended. Such court proceedings put prospective adopters through appalling trauma. Mothers have been involved in this in circumstances in which, if they listened to legal advice or received better legal advice, perhaps the issue would never go to court. I understand the case of some mothers who change their minds, who are so stressed by the circumstances and the decision they made that they ultimately do not want to take responsibility for signing final consent. They often will not sign the final consent, nor will they ask that the child be returned. On some occasions they want the judge to make a decision. There is a myriad of psychological pressures and issues that arise. For some mothers the two-stage procedure means they must revisit something they would prefer not to revisit.
I seriously question whether we need a two-stage procedure. Perhaps we should have a provision for signing an agreement to place which, after a specified period of time — and I do not think any of us have a unique insight as to what that period should be and we should discuss and consider it — not only does the agreement to place become irrevocable but its very irrevocability results in it becoming a consent to the making of an adoption order. Many countries do not have this two stage procedure. A number of countries have in place the type of arrangement I propose. Australian adoption law has a cut-off point and a timeframe within which a natural mother or father may change his or her mind and ask for a child to be returned but thereafter their agreement becomes irrevocable.
This should not be about trying to disadvantage natural mothers or fathers or benefit adopters. This has to be about what course of action is in the best interests of the child. I tabled this amendment not instantly expecting the Minister of State to accept it but it is an issue which deserves discussion while we debate this very serious Bill. I am genuinely concerned that as it has taken so long to see the Bill in the House. We may be waiting a very long time for a reforming piece of adoption legislation other than perhaps what may be required to facilitate the children's rights amendment.
This is an important issue and was addressed in previous reports by a variety of groups including, I think, the 1984 adoption review report but I cannot state for certain as I intended to check this morning whether the issue was referred to in it but did not do so. This issue deserves a few minutes of our time on the Bill to see whether we could do things better in the best interests of children, and whether we could try to avoid unnecessary court hearings taking place, putting people through unnecessary trauma in our court system and whether the State could avoid incurring unnecessary expense.
This type of court proceedings is appallingly distressing for any parent who has a change of mind or who has an uncertainty about making a final decision. It is appallingly distressing for the adopters involved. For prospective adopters, it adds an additional pressure, which is that when such court cases take place inevitably the natural parent, who in most instances is the mother, receives legal help, advice and representation through a Government law centre, and it is absolutely proper that such advice and assistance be given. However, the adoptive parents, who have had in good faith a child placed with them and dealt with the care of that child in good faith, are suddenly confronted with a circumstance which could result in the child being taken away from them. They believe that it is in the interests of the child's welfare that he or she remain with them. They then find themselves embroiled in High Court proceedings and sometimes a Supreme Court appeal which they themselves must entirely fund. There is no fund provided for the State to assist them. If they are successful in the court proceedings, it would be a dreadful act of cruelty in very difficult circumstances if our courts made orders for costs against the natural mother. I do not believe that should happen. If such orders were made, in most instances they would be paper orders because the natural parents would not be able to meet their obligations.
Between 1974 and the mid 1980s, Governments recognised that adopters confronted with this situation had a public duty to ensure it was addressed by the courts, and that children were not returned to natural parents in circumstances that were inappropriate. The Attorney General's office had a scheme whereby it would fund a substantial portion, but not all — and it should have been all — of legal costs incurred by adopters in such cases. That scheme was abolished in the late 1980s as a cost-cutting measure. It had never cost the State huge sums but many parents seeking to adopt who have reasonable but moderate incomes are confronted, through having to pay legal fees in such cases, with an enormous and unacceptable burden.
There are a series of matters of relevance to this amendment and when we come to deal with the re-enactment of section 3 of the Adoption Act 1974 I will return to this issue, perhaps with a bit more brevity. The reason I raise this issue is to bring attention to the difficulties that have arisen in the past for many people. These cases are less frequent now because domestic adoptions by non-relatives are less frequent. However, that may change in the future and we should get the legislation right.
The consent that must be given must be given freely and, as Deputy Shatter stated, there are various approaches in various jurisdictions to irrevocable consent. In some jurisdictions there is a time limit and in others there is not. It has always been a requirement of adoption law that consent can be withdrawn at any time in Ireland and that is enshrined in Article 4.2 of the Hague Convention. Under section 31 of the Bill, once a child is placed for adoption, the applicants with whom the child is placed may apply to the High Court to dispense with the consent of the person who placed the child. That will be decided on the basis of what is in the best interests of the child.
It is not a restatement of the 1952 legislation. Under section 14(a)(i) the accredited body is obliged to furnish the mother or guardian with a statement in writing explaining that a placement for adoption is the beginning of the adoption process. It is significant to put that in statute because it tries to underline the fact that one is entering a process that can result eventually with one’s rights to one’s child being terminated. Under section 14(b)(ii) the accredited body is obliged to furnish the mother or guardian with a statement in writing explaining the effect of a placement for adoption upon the rights of a mother or guardian. All of the legal rights with regard to a placement for adoption are brought to the attention of the mother at the earliest possible time.
The 12-month period suggested by Deputy Shatter is arbitrary and perhaps one could do more work on establishing what a more appropriate time might be. However, the danger of it is that the consent is irrevocable, and the natural parents' rights are terminated as are their duties and responsibilities. If the adoption order for any reason does not go through, the child is effectively in limbo. There is a termination of the natural parents' rights but not the creation of the adoptive parents' rights until such time as an adoption order occurs. There is a danger in creating that position where the status of the child is not clear. I will be interested to hear what Deputy Shatter has to say on this point.
These are the reasons we will not accept the amendment. The standard in the Hague Convention is to have consent freely given and ample time provided for the withdrawal of consent for whatever reason. In various jurisdictions various approaches are taken and I am inclined to frontload the advices given to a natural mother about what she is getting herself into in order to avoid the types of scenarios that Deputy Shatter has experienced in his professional life.
I welcome the content of section 14. The section is based on the 1952 Act and the manner in which the courts in various cases have explained or delineated the explanations that should be given to a natural parent placing a child for adoption to ensure proper agreement to place and proper information is furnished. It still leaves this difficulty. I agree with the Minister of State that a 12 month cut-off is arbitrary. I do not think there is an absolute wisdom in this. It is an issue of dealing with it in a manner that is in the best interests of the child.
I am open to correction because I am aware the Hague Convention, as is right, requires that anyone who agrees to a child's placement for adoption is given an opportunity to reflect and change his or her mind. However, I do not think that measure would proscribe the imposition of a cut-off period once that opportunity is given.
I recall debating the point raised by the Minister of State in exchanges with a Minister during the 1980s, when I was told we could not provide a cut-off point because of what might happen to the child if an adoption was not finalised. I do not think that is such a huge mystery as to put it beyond being addressed in legislation. The adopters would have been assessed before the child was placed with them and their care of the child during the placement would be monitored.
I am not aware of many cases involving a child being properly placed with adopters prior to the Adoption Board ultimately deciding against making an adoption order. I ask the Minister of State to find out from the board how many cases over the past 20 years have involved children who were placed with properly assessed adopters in circumstances where no adoption order was made because the adopters were deemed unfit. The position would be simple if that happened because if the adopters were not properly caring for the child, they would be subject to our child care legislation in the same way as a natural parent. Temporary care of the child would presumably vest in the HSE as a social service authority.
I raise the issue because I consider it worthy of discussion. We need to take a considered approach if we are to develop a structure which avoids the appallingly distressful cases that have come before the courts under the 1974 Act. I hope the Minister of State will reflect on the issue before Report Stage, although I am not optimistic that he will accept this change given that it would require other amendments to the legislation.
We need to understand the experience of other countries and the extent to which a cut-off point may avoid the type of difficulties that have regularly arisen within our domestic adoption system over the past three decades.
Is the amendment being pressed?
Amendment, by leave, withdrawn.
Section 14, as amended, agreed to.
Section 15 agreed to.
Amendment No. 16 not moved.
Section 16 agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
The concept of an accredited body as defined in the Bill is a body which can lawfully involve itself in the placing of children for adoption. I ask the Minister of State to clarify what bodies he envisages as being accredited. At present, these include the HSE and the registered adoption societies, the number of which has substantially diminished in recent years. Several of the voluntary bodies have essentially been subsumed into the HSE.
Does he envisage accrediting existing registered bodies and will new regulations or guidelines be published on the operation of such bodies? At present, they are all charitable bodies which have to raise funds independently rather than from persons who seek to be assessed for adoption. I ask for an indication of whether the current arrangement will continue.
In respect of intercountry adoption, how does he anticipate the arrangement will operate? Everyone concerned, including the Minister of State, expresses unhappiness at the length of time required for people to be assessed for intercountry adoption. Does he envisage one or more bodies with exclusive responsibility for intercountry adoption and has he entered into discussions with such bodies? Does he know whether they will receive the necessary accreditation within a reasonable period of the Bill's entry into force?
As the Deputy noted, accredited bodies include the HSE and adoption societies, such as PACT, which have been existence for quite some time. In terms of their functions, section 151 states that the Minister may make regulations in regard to the activities carried out by accredited bodies and delineates some of these activities. The accredited bodies can carry out individual or multiple functions and there is no restriction in that regard, although clearly they would have to be registered by the authority. Section 37 permits accredited bodies to carry out some of the assessment work, which is welcome in light of the desperately long time it takes for an individual to be properly assessed. These are the kinds of bodies I have in mind.
Two issues arise regarding the timeframe for this legislation coming into operation. Are the rules and regulations for applicable bodies in draft form and could they be circulated to members of this committee to help us understand how they will apply and how they differ from existing regulations?
In respect of accredited bodies, will there be a hiatus? Am I correct in believing that the existing registered societies will become accredited bodies for a certain period in order to allow them time to comply with the new regulations?
Leaving aside adoption societies which are in effect HSE organs, I understand only one registered adoption society remains actively involved in assessing people for intercountry adoptions. Most of the societies originated from one or other of our religious communities and their original objectives from the 1950s were to provide homes in Ireland for Irish children within their own religious ethos. Concerns remain about the numbers of children we exported out of Ireland officially or unofficially but the involvement of some of these societies in this activity is another issue. For many of them there is no interest or remit in dealing with intercountry adoption because it is not about finding a home for a child within their religious ethos where the child is in Ireland and they want to ensure the child's welfare is catered for by an appropriate family.
An accredited body dealing with intercountry adoption assessments is in a different position. I do not know about the regulations context. If an accredited body is to deal with the issue properly, it will have to recruit professionally-trained social workers with experience in adoption work, and who have all the necessary skills to objectively and properly make assessments. The necessary salaries will have to be paid. I do not know if such a body would be grant-aided by the Department on the basis that it would take work off the shoulders of the HSE or whether such a body within the regulatory structure might be allowed to charge a formal fee for assessment. The fee would have to be detailed in regulations so there could be no question of any extra funds being provided and no questions could arise over the integrity of the assessment system.
This is a significant issue because we could enact legislation that envisages a new and independent accredited body making intercountry adoption assessments and assisting individuals and couples who wish to adopt from foreign states, but it could find itself in a position where it is impossible to perform such a function because of the absence of funding. We need an approved vehicle by this House under the terms of this legislation to deal with the funding if it is not part of the annual estimates from the Department of Health and Children.
We are currently considering the issue of regulations carrying forward from previous legislation. It is a matter related to the Interpretation Act. If required, we will bring forward a provision on Report Stage according to advice in order for existing regulations to be carried forward.
There will be new regulations for accredited bodies and work is ongoing. The Deputy is correct in that some of the issues raised are live, particularly charging of fees by accredited bodies for making assessments. There is no charge at present so we need to see how it can be achieved while compliant with policy. A two-tier position is possible and there are very serious issues to be tackled. We are working on those regulations, which will have to be new for accredited bodies.
Discussions are ongoing between the board and groups interested in providing this kind of service. It will have to be highly professional and the HSE must continue to have a role as the statutory body with responsibility for child protection in supervising the process. While it will eliminate some of the prolonged waiting periods, there will still need to be a major role for the HSE to guarantee that child protection concerns are properly discharged at all stages of the assessment process.
I am very concerned to ensure that an agency accredited for intercountry adoptions would deal with adopters and not with the natural parents, who would be dealt with in the foreign state. We must ensure we do not develop a two-tier system, to which the Minister of State referred. We should not have a system where those who can pay for assessment find they can have it completed within six months while those who cannot afford it may have to wait four years. Currently adoption societies operate, quite correctly, independently of the HSE under existing adoption legislation. They must comply with statutory standards and very extensive guidelines from the Adoption Board, which are very worthwhile.
The HSE does not have a role, as the relationship is between the adoption societies and the Adoption Board. It would be a disaster if accredited bodies, whether dealing with domestic adoption or intercountry adoption, had to start operating under some sort of HSE supervisory umbrella. The relationship should be between the new adoption authority and the accredited body. To involve the HSE would be to create a new layer of bureaucracy. Currently, if an adoption society assesses a party for a domestic or intercountry adoption, the assessment report is produced and the society makes a recommendation to the Adoption Board. The board has all the statutory powers to determine whether to accept or reject the recommendation. It can hold proper hearings and the new adoption authority will be in a position to do the same.
I appreciate the Minister of State's response as these are important issues to tease out. He should not go down the route where we superimpose the bureaucracy of the HSE on top of accredited bodies which will have to meet standards, which I assume will be specified in regulations. The body should be accredited by the adoption authority and not the HSE, and it should report directly to the adoption authority. To bring the HSE into this will just mean that more HSE personnel will engage in oversight of these accredited bodies, wasting taxpayers' money and turning them into nothing but an annexe of the HSE. We should not travel that route.
I will address one of the issues in the Minister's reply, which is the possibility of a two-tier system where people who can pay may get faster access. That would be distasteful and totally against the spirit of the concept of adoption. I am not quite sure what the Minister meant with regard to charges but he should clarify it. None of us wants it.
It is an issue about which I am particularly concerned, which is why I raised it. We do not want a two-tier system, which is inappropriate. We need HSE involvement because of its child care responsibility. We should be very careful in approaching the issue of assessments going to accredited bodies, and members should know that the longest period causing delay in the process is from when a person applies to when that person is involved in a preparatory group with ten or 15 other applicants. That period can be between 18 months and two years. That is unnecessary. If we can get that exercise done by a body other than the HSE without having a waiting period, we will have gone a long way to addressing the very legitimate concerns raised by people. I am anxious that we do not go down the road of having a fast track for people with money.
Is the Minister of State likely to return to this on Report Stage?
There is no amendment but there is no issue. It is an observation.
The Minister of State did not respond to one issue. I asked that between Committee and Report Stage the draft regulations being prepared on the issue could be made available to members. They are significant.
Could that be done?
My inexperience is going against me. I am not sure what the procedure is in that regard but I will come back to the Deputy as soon as possible on that.
Question put and agreed to.
SECTION 18.
Amendments Nos. 17 to 20, inclusive, not moved.
Question proposed: "That section 18 stand part of the Bill."
I wish to raise an issue I mentioned yesterday when we were talking about these amendments because the Minister of State has not yet responded. I said yesterday that I had concerns about this section — that the two-stage procedure the Minister of State is proposing was unsuitable and that bringing the High Court into it was completely unnecessary. I intend to table again on Report Stage the amendments I did not move in this section because I want the Minister of State to give some further thought to whether the High Court should play that role. I do not want to revisit this issue because we discussed it at length yesterday.
I wish to discuss section 18(4) because there is a need to tease out its meaning. The adoption authority will play a role in dealing with this, as will the High Court if the Minister of State does not amend the legislation. Could he give us examples of circumstances in which the nature of the relationship between the father and the mother is such that the adoption authority would determine it inappropriate to contact the father?
We discussed this at length yesterday, Deputy Shatter, did we not?
Yes; I touched on this issue but the Minister of State did not tease it out. I am referring to section 18(4)(a). I want to separate paragraph (a) from paragraph (b) in the discussion because one can readily imagine extreme circumstances which would result in the conception of a child and after which it would be inappropriate to consult the father. Perhaps the Minister of State would give us examples of circumstances that would fall within subsection 4(a).
I am not sure what we are discussing here. Is an amendment proposed?
We are discussing section 18.
What is the Deputy's question?
Section 18(4), paragraph (a)——
I am sorry; what is the Deputy's concern? I would like to know this so I will know what I am talking about.
Having dealt with amendments pertaining to a certain section, there is normally a discussion of the section itself.
Yes; I appreciate that, but I am wondering what the Deputy's concern is.
It is envisaged that a decision may be made by the adoption authority or the High Court that a father should not be informed of a proposal to place a child for adoption where the authority — or, I presume, the court — is satisfied that it is inappropriate because of "the nature of the relationship between the father and mother". I am asking the Minister what this means. What circumstances are envisaged that would fall within the terms of that provision?
I am not clear on what the Deputy's concern is. He must have some experience of what he——
No; I am trying to tease out——
The Deputy would be familiar with this.
——how the Minister of State anticipates this provision will be used in practice.
The Deputy is familiar with the operation of this section.
This is a new provision. It may be replicating something in the previous Adoption Act following the decision of the European Court of Human Rights; I am not sure. However, it has not been adequately teased out. If it is replicating something in a previous Act, I am not aware of any judgment delivered by our courts which addresses the issue. We are re-enacting it, and I would like to know in what circumstances could the nature of the relationship between the father and the mother result in a decision that the father should not be informed if a child is being placed for adoption.
I know that is the Deputy's question but I do not know what his concern is.
I am trying to find out to what circumstances the Minister of State envisages this provision applying.
It is clear on the face of it what it means. It gives the authority the power to consider the relationship between the father and the mother in considering whether it is appropriate to contact the father in respect of placement of the child for adoption.
What does it mean?
It is not garbled language; it does not need to be unpicked.
How does the Minister of State envisage it applying in practice?
I ask the Deputy to allow the Minister of State to respond.
Equally, the circumstances of the conception of the child——
That is straightforward.
We all know what that is about. By giving the authority, which we have all acknowledged is expert in these matters, the discretion to include in its consideration the nature of the relationship between the father and the mother at the point of placement, we are allowing it to make decisions that are in the best interest of the child.
However, if we are to protect the rights of fathers, we must be careful about this. Can I give the Minister of State some examples in which I am not sure——
I was wondering whether the Deputy would offer some examples.
I thought the Minister of State might have examples, in the context of the legislation, to which he expected the provision to apply. Let us consider different possibilities. A child is conceived without the mother and father ever residing together, although they were close for a period. The child is born. The father takes little interest in the child, and after a couple of months the mother decides that she wants to place the child for adoption. However, she would prefer that the father is not told. Is that a circumstance to which this provision would apply?
A child is born to a couple who have been cohabiting for a period of two years, during which time the mother has been subjected to vicious violence at the hands of the father; however, the father has a good relationship with the child despite the violent nature of his relationship with the mother. After the relationship breaks up, if the mother wishes to place the child for adoption, should the father be told? Alternatively, the mother does not place the child for adoption but later she meets someone with whom she begins a relationship. For two years the father had lived with the child and the mother, during which time there was no violence, but after separation the father has not supported the child and has had no contact with mother or child for two years. The mother now wants the child adopted by her new husband but does not want the trouble of bringing the father back into the child's life. Is that a valid reason for not informing the father? In other words, to what circumstances does this provision apply?
The only knowledge the adoption authority will have is the information furnished by the mother. What about a situation in which a child is born to a mother either as a result of a brief encounter or as a result of a relationship with somebody with whom she never cohabited or somebody with whom she cohabited for a couple of years? The father has had no involvement in her child's life for the last two or three years, or he did not obey the court order requiring him to provide maintenance for the child. She would now like to adopt the child with her new husband but does not want to bring the child's father into their lives because it will create too much trouble for the child.
The Minister of State is not able to explain the circumstances to which this provision applies because it is a very broadly drafted provision which, I believe, needs to be tightened up. Subparagraph (b) is an example of this. There may be circumstances in which adoptions must be effected in the interests of children without the knowledge of the natural fathers, but the phraseology of this provision is dangerous and could result in our being found, yet again, to be in breach of the European Convention on Human Rights, particularly Article 8. I am raising this because I anticipated the Minister of State would have in mind particular set of circumstances to which this provision would apply. I hoped we might tease this out with a view to tabling an amendment on Report Stage.
That point has been made.
I already raised some of these concerns in respect of amendment No. 11 and the associated amendments and they have been dealt with. I also had concerns about the particulars of the father having to be registered or the mother having to swear in a statutory declaration that the father was unknown or missing. There are issues concerning the father's position which are very vague in the Bill. We spoke about the definition in respect of a certain section of the Bill.
My understanding of this section was that the kind of case envisaged by the legislation was one where there may be a violent relationship between the father and the mother. However, the cases suggested by Deputy Shatter are much broader. There is a danger that if the wording of the legislation is very loose in that regard it might be used to incorporate something much wider than was the intention. I assume the intention is to cover issues of violence or an abusive relationship of some kind. Perhaps the Minister of State might verify this.
It is unusual that no amendment was proposed in view of the concerns Deputy Shatter expressed. If it is dangerous territory no intention has been displayed of a wish to change the phraseology. We might have had a full debate if we knew what the Deputy was trying to get at.
We talked about this yesterday and the Deputy took the view that we should exclude the High Court from providing a safeguard in these circumstances if the Adoption Authority is to take the step of dispensing with the need for the consent of the father, or even contacting the father. The Deputy now points out, rightly, that this is a very sensitive area. Clearly, one cannot be on both sides of that argument. It is a very sensitive area. It requires and contains the safeguard, namely, that the matter requires the approval of the High Court. It is not simply something that the Adoption Authority can do, arbitrarily or otherwise.
The specific relationships that would give rise to concern and the possibility that the authority might seek High Court approval in this area would be those, as Deputy O'Sullivan noted, where there was a seriously violent relationship between the father and mother. Clearly, the authority would need to know something about that relationship. It is not simply a case of the mother saying the situation is so. It would need that explained to it. There might be a court order, a barring order or something of the kind that would underline the knowledge on which the authority would have to base its decision and its application to the High Court. It is not simply a case of its not knowing who is the father. In those circumstances, subsection (5) is used. It is there to ensure that in such extreme circumstances as a violent or abusive relationship, it would be in the best interests of the child that this order might be effected. The placement could be effected without consulting the father.
May I come back to this point?
We have debated this at some length.
I just want to return to what the Minister of State said. It is very important and the Minister of State made a very good point, as did Deputy O'Sullivan. I am trying not to laugh at the Minister of State's complaint that I did not table an amendment. On the basis that no amendment one tables is accepted——
I have accepted a number of the Deputy's amendments.
The Minister of State has agreed to look at them.
Let us not get into that argument.
I agreed to accept them, in principle. That is a significant concession.
In the context of sections there is an equal facility to look at them.
What I said was not inconsistent. The Adoption Authority of Ireland has the insight and expertise to deal with this. It does not need the High Court. However, whether it is to be the adoption authority or the High Court, the court needs parameters within which to make its decision. For example, in another aspect of family law legislation, namely, in determining issues of ancillary relief in divorce and separation cases, the court is required to make an order that makes such provision "as is proper in the circumstances". Depending on whether one is dealing with the Family Law Act 1995 or the Family Law Divorce Act 1996, section 20 of one and section 16 of the other prescribe the factors to which the court must have regard.
What we have here is a general principle but no factors. This is a very well intended section but it is too broad. Its broad nature is dangerous and it is equally dangerous to leave in the High Court option because without prescribed factors, depending on which judge one gets in the High Court, this could be given either an extremely broad or unwisely restrictive application and interpretation. When we come back on Report Stage the Minister of State might wish to consider tabling an amendment to replace the wording in sub paragraph (a) and refer instead to wording such as “where there has been an abusive or violent relationship as between the mother and the father, or between the mother, the father and the child”. That wording could be improved substantially but it would set out the thoughts of the Minister of State on the issue.
The criterion should never be that a natural mother has obtained a barring order because if one is a natural mother who has never cohabited with a father, no matter what threats that father may make, under our present legislation one cannot get a barring order. That is one of the defects in the law. Even if a natural mother is cohabiting with the father of her child, unless she has a joint ownership interest in the property in which she resides with the father, no matter how violent he may be she cannot have him barred. Therefore, a barring order should not be a criterion to determine whether a father should be excluded.
I urge the Minister of State to look at this section to see whether we could make it clearer and tidy it up in a manner whereby this House determines the circumstances to which this provision should apply and where fathers should be so excluded, and that it is not left so that any discretionary unpredictable interpretation can be applied to it by either a High Court judge or, with the best will in the world, the newly-constituted adoption authority.
Question put and agreed to.
SECTION 19.
I move amendment No. 21:
In page 24, line 12, after "consideration" to insert the following:
", and it shall be presumed unless the contrary is shown that the welfare of the child is best promoted in the society of either or both of the child's natural parents, if either or both of them wish to exercise that role".
I hope this is one amendment the Minister of State will accept. It relates to the section on adoption orders and the placing of such orders.
I am very anxious to see that this presumption is inserted into the legislation because otherwise I fear that the welfare of the child, especially in respect of international adoptions, and the issue of the natural parent versus the adoptive parent, would be in very different circumstances. It is important that "welfare" should include the presumption that it would be better if the child stayed with its natural parents, assuming that one or other of them wished to exercise that role. It is important to have this stated in this section. There was a Supreme Court decision, N. v. HSE, in which this issue was raised. Perhaps the Minister of State will consider the amendment.
It is a principle central to the Hague Convention on intercountry adoption, which encapsulates the principle of subsidiarity, that every attempt should be made to find a domestic solution to the child's needs, as alternative care needs, before intercountry adoption is considered. In terms of domestic adoption it is understand that the presumption is safe and recognised. I do not believe this is disputed.
However, section 19 relates to making arrangements for adoption of a child or the recognition of an inter-country adoption after this decision has been taken by the child's birth parent or guardian that the child is to be adopted. In these circumstances, the child's parent or guardian has already made the decision that the child's best interest is served by being placed for adoption. Some consideration could be given to putting the amendment elsewhere rather than here because it would be ex post facto. The child would have already been placed for adoption and if the presumption were to apply thereafter it would defeat any further steps taken. I reject the amendment but I will consider placing the principle earlier in the legislation.
I thank the Minister of State. While the presumption is in the Hague Convention, it should be in this legislation as well. I take it from the Minister of State that he will revert on the matter on Report Stage. I will resubmit the amendment but I welcome the fact that the Minister will consider it.
I wish to sound a very serious note of caution regarding this amendment. We have tried to incorporate in our adoption legislation and in our Constitution a provision to ensure the first and paramount consideration is the welfare of the child. This should be seen through the prism of a child-centred approach, not on the basis of presumptions. The presumption that applies to married parents under Articles 41 and 42 of the Constitution has given rise to so much concern and it gave rise to the recommendations of the joint committee with responsibility for children's rights
The presumption the courts have applied is that the welfare of a child born to a married couple resides in the child being in the care of a married couple. The overwhelming majority of parents are, rightly, the appropriate people to protect the welfare of their child and to bring up their child. However, when it comes to dealing with these matters in legislation the imposition of this presumption means that the courts and adoption authorities begin with stating that the welfare of the child is with the natural parent unless proven otherwise, instead of having as their main focus the welfare of the child as the first and paramount consideration. It becomes an issue of parental rights primarily over children's welfare.
I refer to the manner in which this principle has been applied in the N case in the Supreme Court. Ultimately, what unfolded was that children's rights were subsumed within parental rights. While I am certain Deputy Jan O'Sullivan did not intend the amendment in this way I am concerned by the way in which it is phrased. If it is incorporated into our adoption law, it would amount to the exact opposite of the approach recommended by the committee on children's rights, it would be contrary to the approach in our existing adoption legislation and contrary to the approach in the Guardianship of Infants Act 1964.
I thank Deputy Shatter. A Dáil vote has been called. Is the amendment being pressed?
I wish to make some more remarks on it.
We shall come back to the matter. We will suspend the sitting until the Dáil vote has been taken and we will return to the debate then.
What arrangements are we making for lunch?
We will suspend the sitting between 1 p.m. and 2.10 p.m.
When will we finish?
We will finish at 3.30 p.m.
Are we coming back?
Is there any point in coming back? We will probably not get back until 12.50 p.m. at this rate.
Very well. We will suspend the sitting until 2.10 p.m.
Sitting suspended at 12.35 p.m. and resumed at 2.10 p.m.
My concern is international adoption. We talked earlier about the definition of welfare. I am concerned that in the balance of concerns about welfare, with an impoverished woman in another country versus a family in Ireland, it is necessary to ensure there is a balance of concern about welfare and that the issue surrounding the welfare of the child being best served by being with the natural parent rather than anyone else should be inserted in the Bill.
When the Minister initially replied, he expressed an understanding of what I was trying to achieve and I know Deputy Shatter has suggested there are other implications with regard to the rights of the child. I want to ensure that the interests of the child in another country should be reflected in the Bill. That is the purpose of the amendment. It clearly accepts the welfare of the child is paramount and that factor should be considered in the legislation.
I said I would consider this and I take on board Deputy Shatter's remarks as well about exercising all due caution. Any amendment would have to be considered in the usual way and advice must be taken about its applicability, especially an issue like this, which goes to the core of the nexus of the adoption procedure — the welfare of the child, everything flowing from that and how that welfare is interpreted. We will look at this and approach it with all the necessary caution.
Amendment, by leave, withdrawn.
Amendment No. 22 not moved.
Amendments Nos. 23, 62 and 63 are related and may be discussed together.
I move amendment No. 23:
In page 24, between lines 12 and 13, to insert the following subsection:
"(2) In order to vindicate the welfare of the child referred to in this section, the State shall support the provision of comprehensive post adoption specialised services that respect the child's best interests.".
This amendment deals with the issue of post-adoption services and amendments Nos. 62 and 63 deal with the functions of the Adoption Authority of Ireland. We seek to ensure that post-adoption services are included as part of the functions of the adoption authority. This is an area that has been left out of the Bill and is very important in terms of people who have been adopted. It is important that the full range of services be provided such as tracing, the right to access to a birth certificate in the same way as anybody else has a right to access their birth certificate. We have had a number of submissions in this regard. I urge the Minister of State to accept this amendment because the Bill is deficient if it does not include the whole range of post-adoption services.
I could not agree more with this amendment. There is an issue also with medical files. Medical files can be made fairly anonymous but the medical history of the mother, or the father if known, should be included. When a child is very young its adoptive parents can have a difficulty when asked questions as to whether there is a history of such and such and they simply do not know. Given that comprehensive histories are taken from people, through whatever process, it is important when a child is being adopted that a comprehensive medical history of the families be made available in terms of whether, for example, there is a history of heart disease in the family. This information can be passed on anonymously with the child. It should be part and parcel of the paperwork that comes with the child. It is very important and would save much grief. There are other issues such as the birth certificate which we have dealt with earlier. A medical history of the family that is placing its child for adoption is very important.
We know there are certain states where, if an adoption order is made, there is a requirement that some post-adoption reports be furnished to them. Russia is one such state. A difficulty has developed for a number of people who have been deemed suitable and eligible to adopt in affecting adoptions in Russia because of the HSE's failure to write post-adoption placement reports. This is about ensuring that the welfare of children is protected. I do not believe that if people have been properly assessed and have gone through the adoption system and adoption orders have been made, either their child or the adoptive parents should, on an ongoing basis, be subject to oversight. They should be treated as all parents are treated who have a child born to them. If people are willing to adopt in a foreign state that applies Hague principles, but is not a party to the Hague Convention, and are willing to agree to an adoption in circumstances in which they know following the making of an adoption order, there is a requirement for assessment reports back on an annual basis for two or three years, we should facilitate that reportage. I will say no more than that. In the vast majority of instances where adoptions are properly affected abroad and recognised in this State, people are not subjected to that type of ongoing reportage. Our law does not address that issue. It is something that this Bill should deal with.
We have no specific provision in regard to post-adoption services in the Bill on the basis, as I have explained in the Seanad and elsewhere, that adopted children have the same eligibility and entitlements to social and health services and other services as all other children in Ireland on an equal basis. The Bill does make statutory provision in section 82 for the notification by adoptive parents of the adoption on return to Ireland with the child. This notification must be made to both the Adoption Authority of Ireland on return for the purpose of registering the child as well as to the HSE so that the child receives all of the normal health surveillance services from public health nurses that is available through the public health system. It is a very topical issue on which all Deputies and Senators have received representations. I am sympathetic to the issue but the difficulty arises with preferring an adopted child over a biological child for the availability of resources that might be required. Article 9 of the convention refers to the requirement that post-adoption services be provided, which I acknowledge puts us in a difficult position. Perhaps the best approach to take would be to look at the Child Care Act as it would be an expansion of the function of the HSE to provide post-adoption services. I do not think it goes into the area of tracing as Deputy Lynch has mentioned. That comes up in later amendments.
Not tracing.
I am sympathetic to the idea and we will discuss that later.
In regard to post-placement reports that are required by certain countries and may be required by more countries in the future, this has been a difficulty for us in the past. Although the HSE and the Adoption Board do not have to comply in terms of the work they do in this area, they do many post-placement reports and a good deal of work with families which they convey to the relevant authorities in sending countries, which is a requirement. The only undertaking is by adopting parents who would complete an affidavit saying that they will provide post-placement reports but there is no way the State can enforce that requirement. It is an area of difficulty because an adopted child has the same rights as any biological child across the board. The same rights apply under the Child Care Act, the same protections are afforded by the HSE and the same education, health and social services are provided to every child in the State, regardless of whether they are adopted. I am sympathetic to the issues relating to attachment which may be uniquely an issue for adopted children, although there are attachment issues that arise for children who are not adopted.
I acknowledge that the HSE funds Barnardos to do this kind of work. Barnardos, in its most recent report, identified the fact that it is getting funding from the HSE for post-adoption services and it is available. In 2009 Barnardos dealt with more than 100 cases in this area. For the reasons I have outlined I am not inclined to accept the amendment.
Is the amendment being pressed?
When Barnardos appeared before the committee and acknowledged it was funded to do this work, it specifically said it would like post-adoption services to be put on a statutory basis. The view of Barnardos was that it should be stated in the legislation. I understand the Minister of State's point that children are equal. There are specifics in the life of an adopted child that are different from the life of a child who is not adopted in the areas of attachment and so on. Other examples would include the Disability Acts and the Education for Persons with Special Educational Needs Act. We recognise in legislation that specific sections or groups of children have particular needs.
The child with special needs would have the same rights.
I understand that, but there is legislation in which we single out specific groups of children for recognition. I do not understand how saying children who are adopted should have certain rights post-adoption is going against normal legislative procedures. As I said, Barnardos specifically asked us to seek to have this provision inserted in the legislation.
Does the Minister of State have anything to add?
No. I stand over the point I have made. The Deputy is right to say preferment is understood in the case of children with special needs. However, I stand over the point I have made that an adopted child with special needs is preferred in the same way. That is as it should be.
With respect, the Minister of State is making a different point.
I understand the point the Deputy is making, namely, that positive discrimination is not unusual in legislation, but in this instance the entitlement of a child is the same, regardless of the problems that may be manifesting and whatever their cause. If they are caused by family breakdown, addiction or violence in the family or an attachment issue in adoption, there is no discrimination. Services are provided to meet a need. That is the point I make.
Amendment put and declared lost.
Section 19 agreed to.
SECTION 20.
I move amendment No. 24:
In page 24, between lines 25 and 26, to insert the following subsection:
"(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 vest 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.”.
Amendment put and declared lost.
I move amendment No. 25:
In page 25, between lines 4 and 5, to insert the following subsection:
"(7) In exercising its functions in relation to recognition of an adoption effected outside the State, the Authority shall insofar as possible recognise an adoption effected outside the State by a person who was ordinarily resident in the jurisdiction in which the adoption was effected at the time it was effected.".
We discussed this issue to some extent at the beginning of the debate. It concerns persons who have adopted children outside the State and returned to live in Ireland. People may have emigrated, adopted abroad and, for one reason or another, returned to live in Ireland with their adopted child or children. The intention of the amendment is to ensure the adoption would be recognised. The Minister of State read from a rather complicated section of the Bill but I suggest my amendment would be a clearer way of stating such adoptions would be recognised in the State.
I believe it was section 57 about which the Minister of State was talking. If an adoption is effected — I am open to correction by the Minister of State because I took another look at that section yesterday evening — by an individual or a couple ordinarily resident in another state as opposed to being habitually resident after the commencement of the legislation, I do not believe we preserve a provision to recognise it. I understand we will recognise it only where there is habitual residence. In the context of ordinary residence, it would have to be for a minimum period such as one year but there is genuine concern about this issue. One would have to be more than ordinarily resident in the jurisdiction; it would have to be for a minimum period of one year. I raised this issue as part of the discussion on the first amendment. I do not want to prolong the debate unnecessarily other than to await the Minister of State's response but the actual phraseology of the amendment, as proposed, presents a problem because someone could be ordinarily resident somewhere for a couple of weeks. There is not a timeframe defined within it. If we stick to the concept of habitual residence, we will find that some people who are genuinely living, working and adopting in a foreign country and who will return to Ireland will discover their adoptions are not recognised.
Members will remember the Tristan Dowse case, to which the High Court and the Supreme Court gave much consideration. There was also a Law Reform Commission paper on the various aspects of intercountry adoption. As I said yesterday, advice was sought because it is a sensitive issue and much has happened since it came to our attention. It already includes provision for the Adoption Authority of Ireland to recognise an intercountry adoption effected outside the State. The definition of an intercountry adoption effected outside the State is to be found in section 4(1) and covers the circumstances set out in Deputy O'Sullivan's amendment, that is, where two people living outside the State adopt a child under the laws of the state in which they are living, they may apply to have that adoption recognised by the Adoption Authority. The matter is somewhat complicated. As Deputy Shatter said, it refers back to section 57(3). It is complicated because it is so unusual but it is covered. A great deal of effort has gone into making sure it is covered. The advice of the Attorney General has been provided. On that basis, I do not propose to accept the amendment because it is not necessary.
Amendment, by leave, withdrawn.
Question proposed: "That section 20 stand part of the Bill."
There is a curious provision in subsection (6) which the Minister of State might explain. It reads: "Where an application is made to the Authority [that is, the adoption authority] under this section, the Authority, of its own motion [in other words, by making its own decision I presume] or on the application of an interested person, may adjourn from time to time the making of a decision whether to make or refuse to make the adoption order or to recognise an intercountry adoption effected outside the State, as the case may be,". If an application is made to the authority — let us deal with an intercountry adoption — to recognise an adoption effected outside the State, the authority must ensure the terms of the legislation and the convention provisions are properly complied with, or if there is a bilateral agreement, that it is complied with, or if people genuinely lived outside the State in the circumstances we discussed, that they did so and that there are grounds for granting recognition, but I am somewhat at sea about the suggestion that it might adjourn from time to time a decision as to whether to recognise an intercountry adoption on the application of an interested person. I do not know who the interested person might be or how we should define someone as such. Who is in mind? If people go through the procedures properly — let us assume it involves a couple or an individual who lives in Ireland and are or is deemed suitable and eligible, the adoption is effected in a Hague Convention state and everything is dealt with properly — on what basis could an interested person delay matters? I have taken a look at the definitions section of the Bill and there is no definition of "interested person" in section 3 or in this Part. The Minister of State might shed some light on the matter.
It is discretionary. The authority may adjourn from time to time a decision, depending on its view of the information brought to its attention. I understand the wording "an application of an interested person" , comes from the 1952 Act. It is to try to establish locus standi for somebody to bring attention to the authority in the course of its consideration of an application for an adoption order or in recognising an inter-country adoption. I appreciate the point made by the Deputy and I have some sympathy with it. It probably requires to be delineated specifically what kind of person and on what grounds the person can be brought in. I accept the point the Deputy is making.
I want to be helpful.
I accept that.
If a matter is before the adoption authority on which it has to make a decision, it may have some issues about which it, as an authority, wishes to seek further information in which case it would be entitled to adjourn an application, but I do not understand how some unidentified third party who are not adoption applicants or the HSE, if it was involved, could interrupt the whole process.
The Deputy has made the point well and the Minister of State has accepted his point.
This applies equally to domestic adoptions. There are defined provisions in the Act as to who is a person the authority should hear on domestic adoption applications.
I accept the Deputy's point and I will examine it. The point about inter-country adoptions, in particular, is that information comes to hand from time and it requires utter vigilance and to be alive, so to speak, to such information that is presented. I am not sure that is what was intended by the section, but we will have a look at it and talk to the authority about its position on this. This is just one of the terms that was transposed.
It would not have been something intended in the 1952 Act because no one had any perception of inter-country adoption in those days.
It might have been from a different angle.
Is section 20 agreed?
I presume we will return to the issue on Report Stage.
Yes.
Question put and agreed to.
NEW SECTION.
I move amendment No. 26:
In page 25, before section 21, to insert the following new section:
21.- A person or couple who has or have prior to the commencement of this Part adopted a child from another country, may notwithstanding this Act conduct a second or subsequent adoption from that country within ten years of such commencement 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.".
Is the amendment being pressed?
No, but I will return to it and I might modify it slightly in terms of the timescale included in it.
Amendment, by leave, withdrawn.
SECTION 21.
Amendments Nos. 27 and 28 are cognate and amendment No. 43 is related. Therefore, amendments Nos. 27, 28 and 43 may be discussed together by agreement.
I move amendment No. 27:
In page 25, subsection (1), line 5, after "Executive" to insert "or other accredited body".
Amendments Nos. 27 and 28 are being taken together and amendment No. 43 is related. Amendments Nos. 27 and 28 are to section 21, which, at subsection (1) states:
By notice delivered to the Health Service Executive at any time after an application under section 20, the applicant or applicants may discontinue the proceedings that are the subject of that application, without liability for any costs of the proceedings.
The proceedings under section 20 are an application to the adoption authority to make an adoption order or to recognise an inter-country adoption order. Structurally, I would have thought that if someone intended to discontinue an application, it should be by notice to the adoption authority and not to the HSE. At that stage the proceedings would be before the adoption authority, which would be asked to progress matters to make a decision and then presumably a decision would be made by the applicants not to continue with the matter.
It is rather odd that the notice under this section should go the HSE, which then has an obligation to pass it on to the adoption authority. It is even more odd for the following reason. As we discussed earlier, this Bill does not envisage that the HSE is the only body involved in adoption, rather it envisages that we will have accredited bodies. We know that some of our existing adoption societies will assume that role. It may be that other bodies will be formed to become accredited bodies. If it is a body other than the HSE which has been involved in the carrying out an adoption assessment and in the furnishing of a report to the adoption authority, why in heaven's name a notice to discontinue an application would go to the HSE completely escapes me. I believe it should go to the adoption authority.
However, if for some reason this rather circuitous procedure is proposed, amendments Nos. 27 and 28 seek to ensure that the reference in the section is to a notice being delivered to the Health Service Executive or other accredited body. It seems that the body which has been directly involved with the individuals concerned, at the very minimum, should be the body to receive the notice. These are technical amendments to the section and amendment No. 43 is a related amendment.
My amendment No. 43 is to section 35, which deals with applicants defined. Section 35 states: "In sections 36 to 39 “applicants” means persons who apply to the Health Service Executive under section 37(1), and, if there is only one applicant, means that applicant.” I also seek to accommodate the possibility of bodies other than the HSE being involved. This amendment is intended to include those. It proposes the insertion of the words “or to an accredited committee or body on behalf of the Executive”.
I am not inclined to accept the amendments. The notice of discontinuance is contemplated after a section 20 application. As we discussed earlier in terms of the possibility of accredited bodies having a role in the assessment, as Deputy Shatter mentioned, assessments are already carried out by a body other than the HSE. Nevertheless, it would always be my intention that the Health Service Executive would have a central role in the assessment because ultimately adoption is a measure designed to provide child protection and child welfare and the HSE is the only body in the State with the capacity and a statutory role in terms of child protection. As a result it is important that the HSE would have that role exclusively and would have the responsibility then to notify the authority of discontinuance.
Is Deputy Shatter pressing his amendment?
I would like to respond. We currently have a small number of adoption societies which operate with efficiency and professionalism and it is proposed essentially to downgrade them. That is what the Minister is saying. Instead of they having a degree of autonomy, applying the guidelines of the adoption authority or Adoption Board, applying the regulations and the statutory provisions and employing professional social workers, they will operate in some way under the supervision of the HSE. If any of these bodies, including the HSE, should be supervised, it should be done by HIQA, not by the HSE.
The HSE does not have a glorious history in child protection. I will not delay the meeting dealing with this issue. I am always concerned to preface such a comment by saying that there are extraordinarily good dedicated professional social workers and others working in our child care services. However, the HSE as a body has been appalling in a large number of respects, namely, in its failure to provide uniformity of services, in its failure to appropriately intervene to protect children at risk, in its failure to acknowledge mistakes made, in its failure to publish reports into children who have died while in the care of the HSE or shortly thereafter, in its obsessive secrecy in the way it operates, in its lack of accountability to the Houses of the Oireachtas, in its utter failure, which I know the Minister of State probably will not admit, even to keep him, as Minister of State with responsibility for children, adequately informed of child protection issues, events and disasters that occur, which, on occasions, he only learns of when they see the light of today in newspapers. I would not laud the performance of the HSE as being such as to require that it involves itself in the workings of an accredited body whose standards have been approved by an adoption authority and which is set up to do a professional job in the area of adoption and to develop an exclusive expertise in that area.
I do not accept the approach taken by the Minister of State. It is wrong. If we to provide for accredited bodies under this Bill, they should be allowed to properly perform their function in the adoption area without the HSE's interference. If we are going to have quality control, HIQA should provide it. These are appropriate amendments to make to the Bill.
Has the Minister of State anything to add?
I would not agree that we are downgrading accredited bodies; quite the contrary, we are providing for regulation of accredited bodies in recognition of the work they are doing. Regulating them requires that we ensure there are minimum standards. This legislation is trying to effect an improvement in standards across the board. It is not about lauding the HSE or downgrading accredited bodies but ensuring that, once we get involved in a much more substantial way in the regulation of accredited bodies, we have an obligation to ensure the single authority in the country which has responsibility for child protection will be involved in the important step in the process described in section 21. With regard to the rest of the soliloquy about the failures of the HSE, I am sure it will be ventilated again on another day. Therefore, we will have to leave it until then.
The HSE is the wrong body to supervise anyone. It has been systemically incapable——
The Deputy is repeating himself.
——of even applying its own child protection guidelines.
The Deputy has made his views clear.
Amendment put and declared lost.
I move amendment No. 28:
In page 25, subsection (2), line 9, after "Executive" to insert "or other accredited body".
Amendment put and declared lost.
Section 21 agreed to.
Section 22 agreed to.
SECTION 23.
Amendment No. 29 has been discussed with amendment No. 2.
I move amendment No. 29:
In page 25, subsection (1), lines 20 and 21, to delete paragraph (b).
In order to revisit them on Report Stage I will withdraw amendments Nos. 29 to 31, inclusive, in the vague hope the Minister of State will give consideration to them. He said he would give some consideration to amendment No. 31.
Amendment, by leave, withdrawn.
Section 23 agreed to.
SECTION 24.
Amendment No. 30 not moved.
I move amendment No. 31:
In page 25, subsection (2), line 36, to delete "understanding" and substitute "maturity".
I do not know if the Minister of State has given consideration overnight to accepting the concept of maturity as opposed to understanding. He might have given it some mature reflection.
We will revisit it on Report Stage.
Amendment, by leave, withdrawn.
Section 24 agreed to.
Amendment No. 32 not moved.
Section 25 agreed to.
SECTION 26.
Amendment No. 33 not moved.
I move amendment No. 34:
In page 26, lines 25 and 26, to delete subsection (4) and substitute the following:
"(4) A consent may be withdrawn within 3 months of being given and shall be irrevocable thereafter.".
When consent has been given to an adoption, it is given subsequent to the agreement to place. Many months will have passed. I do not believe it should be open-ended.
Amendment put and declared lost.
Section 26 agreed to.
SECTION 27.
I move amendment No. 35:
In page 26, subsection (1)(a), to delete lines 31 and 32 and substitute the following:
"(i) that the consent may be withdrawn within 3 months of being given and is irrevocable thereafter,".
This deals with the same issue we have just dealt with.
Amendment, by leave, withdrawn.
Section 27 agreed to.
Sections 28 and 29 agreed to.
SECTION 30.
I move amendment No. 36:
In page 27, lines 39 and 40, to delete subsection (1).
This relates to people who believe themselves to be fathers, even when they are not. This section is not required and creates more problems than it is worth.
Amendment put and declared lost.
Amendment No. 37 not moved.
I move amendment No. 38:
In page 28, subsection (4), lines 12 and 13, to delete all words from and including ", after" in line 12 down to and including "Court," in line 13.
This relates to the High Court approval issue. Given that the Minister of State is set in his ways, there is not much point in pursuing it.
Amendment, by leave, withdrawn.
Amendment No. 39 not moved.
Section 30 agreed to.
SECTION 31.
Question proposed: "That section 31 stand part of the Bill."
This is the section under which the court can dispense with the consent of a parent to facilitate an adoption order being made where parents have either withdrawn an agreement to place or failed, neglected or refused to consent to an adoption or have withdrawn a consent already given. We discussed this issue at some length this morning but there is one issue to which I wish to return because the Minister of State did not respond to it. In fairness to him, I said I would return to it on this section.
During the years far too many adopters have suffered substantial financial consequences following the placement of a child with them, with the child being in their care in some instances for from two to five years, and in finding that the only way to bring the adoption process to a conclusion was by taking High Court proceedings. In the overwhelming majority of cases where such proceedings have been taken the courts have dispensed with the natural parent's or parents' consent, found it is in the interest of the child's welfare that the adoption be permitted and have authorised the Adoption Board to make an adoption order. There have been many of these cases in the High Court and a small number have been appealed and heard in the Supreme Court. Even though they are doing what is in the best interests of the child placed with them and are caught in these circumstances through no fault of their own, the adoptive parents, in order to protect the welfare of the child and complete the adoption, can incur legal costs running to many thousands of euro. There have been cases that have taken anything from three to five days in the High Court, followed on occasion by one or two days in the Supreme Court. In addition, preliminary court applications must be made. The adoptive parents bear the burden of that expense.
It is anomalous because in other provisions in the legislation which replicate what is contained in the Adoption Act 1988, which allows the High Court to determine what should happen to a child who has been essentially entirely abandoned by parents with no real prospect of being brought up by them and where there has been an absolute failure of parental duty, prospective adopters are in a different position. One is in the odd position that if one has a child in one's care, essentially in foster care, for perhaps five or ten years and there is no prospect of the child's returning to the natural parents, one can ask the HSE to assist in carrying out an assessment and making a report to the Adoption Board as to whether it is appropriate and in the best interests of the child that one adopts the child.
If the Adoption Board makes a preliminary finding on this issue one can then apply to the High Court to free the child for adoption. It can ask that the High Court address that application. Following that, one of two things will happen — either the HSE makes the application, or the prospective adopters make it. If the HSE does not deal with it in a reasonable time, the prospective adopter's legal costs are paid for by the HSE. Here we have two different groups of people — one with whom a child has been placed for adoption, and one with whom a child has been placed with them for fostering. However, through no fault of their own, but as a consequence of actions of the natural parents, each, in order to adopt that child, has to seek an order from the High Court. If one travels the fostering route and goes through the trauma of court proceedings with one's own legal representation, one's legal costs are paid for. However, if a person has simply had the child placed with them, and the mother or two natural parents will not sign consent, an application is made to the High Court. If one is fully successful in those proceedings, with the State paying the legal costs of the natural parent — and even when adopters have been successful in the High Court, if the natural parent then appeals to the Supreme Court and the State pays the legal fees again through a law centre — the adopters are paying their own private lawyers and have to fight the whole issue again in the Supreme Court, facing an inordinate amount of expense.
As an Opposition Deputy, I cannot table an amendment to a Bill which is an expense to the Exchequer because it will, correctly, be ruled out of order by the Chairman. That is the problem we have and is why I cannot table an amendment on this issue. I urge the Minister of State, however, to look at amending this provision to provide a statutory basis for providing protection to adopters who act properly in the best interests of children from incurring substantial expense in resolving these sorts of dispute. The State really should discharge the legal costs incurred by them. At the moment it discharges the legal costs which are practically always incurred by the natural parent, but never by adopters.
Is the Deputy saying that, as regards the unusual 1988-type cases, the cost of the applicant or agency is the issue? When we are visiting this issue concerning the constitutional amendment and the possible referendum that may follow, it will obviously be more significant because hopefully there will be a greater body of people who will be in a position to adopt. It will expose an anomaly in that situation. I am not aware of the costs that are involved. The Deputy is probably in a better position to tell the committee what kind of costs are involved. If we are talking about three to five days in the High Court, I do not know what the ballpark figure is in that situation.
What happens, effectively, is that the natural mother is usually represented by senior and junior counsel. In many cases, the adopters are represented by senior and junior counsel also. In the context of lawyers in private practice, the adopters can incur legal costs of anything between €20,000 and €100,000 depending on how many days they are in court and whether they find themselves in the Supreme Court. In my firm, I have taken on cases for nominal fees because of the position that adopters are finding themselves in. However, there are cases that have been fully fought through the courts where I am aware that people have incurred very substantial costs. The Chief State Solicitor's office is familiar with what senior and junior counsel are paid for brief fees for difficult cases. These cases can become very difficult with legal submissions. The reality is that many adopters cannot afford to carry the bill. Over the years in many of the cases in which I have been involved, I have been aware of this. The other area that gives rise to expense in such a case is where expert evidence often has to be called by a child psychiatrist about issues of attachment, bonding and the impact on a child of being removed from adopters. At the moment, that is all dealt with as a consequence of evidence given by a child psychiatrist operating in private practice whose fees for attending court and providing reports must also be paid. It really does put many adopters under considerable financial pressure, although fortunately it is a minority of adopters who find themselves in this position. The oddity is that from 1974 to 1988 the State recognised that. The Minister of State might examine the scheme that used to operate in the Attorney General's office. It did not meet the full level of costs that many adopters incurred, but it certainly made a reasonable contribution to them. There is a need to address this issue because people simply cannot afford to be put in these circumstances. To be frank about it, there are not always lawyers who are willing to represent them through the courts without the proper fees being paid.
The Deputy's case has been strongly made. Does the Minister of State have anything to add?
I accept the points. I know there are detailed issues involved, but the range of costs is extraordinary and incredible. The Deputy said the Chief State Solicitor's office should know the range of fees, but tax costs are different from what the Chief State Solicitor is paying.
No; there is a reason for that. May I conclude on this, Chairman?
The point has been made that the costs are inordinate. I do not think we need to barter on the matter.
I want to explain one thing to the Minister, which I think is very important. The reason the Chief State Solicitor's office would know about this is that in all of these cases the Adoption Board is formally represented. There are three sets of barristers: one for the Adoption Board, one for the natural parent, and one for the adopters.
The point I am trying to make is that the costs are often much higher.
Often the case involves days of hearings because social workers who have dealt with the mother are brought into court to be cross-examined.
The Deputy has already made that point.
It is a lengthy procedure, but the Chief State Solicitor's office has always represented the Adoption Board and would be in tune with the type of proceedings.
The Deputy will find that the costs are much lower for the Chief State Solicitor.
The costs of the Chief State Solicitor's office would be much lower because the barristers are often only playing a nominal role in the proceedings.
Yes, they are charging much less.
Could we have a bit of order? Does Deputy Lynch have something to add on this matter?
Having listened to this, it strikes me that perhaps it should not be in the High Court at all. We will not deal with it in this legislation anyway. When it comes to family law on domestic disputes or disputes about what is in the child's best interests, I am not certain that the High Court is the place to have them resolved, even though legal issues might arise. We should examine the possibility of putting something else in place.
The family court is there.
For about 20 years we have had a separate system of family courts, instead of having family cases distributed between the District, Circuit and High Courts. There is an issue in the area of adoption surrounding the calibre of the judiciary who hear these cases. I agree with Deputy Lynch. There is not a need for three different courts, including the High Court, in dealing with family cases. What we need is a separate, unified family court system. Unfortunately, however, to date, the Government has turned its back on that proposal.
We are going beyond the scope of the section.
Very substantially, Chairman.
Can we move on?
I presume the Minister of State may come back to us on Report Stage on this issue.
I am inclined to suggest that this issue would be much more relevant to legislation that might arise in the context of a referendum.
Question put and agreed to.
Section 32 agreed to.
SECTION 33.
I move amendment No. 40:
In page 29, subsection (1), between lines 38 and 39, to insert the following:
"(b) the applicant is a spouse of the mother or father of the child,”.
This amendment concerns the issue of, as the Minister of State put it more succinctly than I, a step-parent or a spouse of a natural parent where a child has been born prior to marriage. The parent forms a relationship with someone else and then marries. It is to allow an adoption order to be made in respect of them alone and to preserve a position where the mother has the same rights as the adoptive spouse but she is not adopting her own child. We discussed this at great length yesterday. I am not entirely clear, possibly from tiredness at this stage, as to whether the Minister of State said he would give some further thought to all of this. I will give him a moment to respond.
No. I said yesterday that I thought it would be more appropriate to guardianship legislation.
Amendment put and declared lost.
Question proposed: "That section 33 stand part of the Bill".
I want to raise an issue on this section for discussion purposes. The section essentially allows for applicants who are a married couple living together or where the applicant is the father or mother or a relative of the child to adopt. Section 33(1)(c) states: ”the applicant, notwithstanding that he or she does not fall within paragraph (b), satisfies the Authority that, in the particular circumstances, the adoption is desirable and in the best interests of the child”. The subsection seems to envisage any applicant who is not the father or mother of the child, on his or her own, adopting a child where the authority is satisfied it is in the best interests of the child. That is my understanding. It gives the authority a discretion where someone does not fall within the category of paragraph (b) to allow a single individual to adopt a child who is essentially unrelated to the child.
I have some questions for the Minister of State in this regard. Is there a reason section 33(1)(c) would not allow two applicants who are not a married couple to adopt a child where in the particular circumstances the adoption is desirable? Will the Minister of State consider amending the Bill in this way? I want to give some examples of the circumstances that occur to me to which this might be relevant.
Let us take the following situation. A husband and wife tragically die in a car crash and there is a child of six or seven years who survives, either not having been in the car or because he survives the crash, who is then brought up by two maiden aunts who have not married and live together in the one home, where that child is to be brought up by them for the rest of his childhood. Is there any reason they should not be allowed to jointly adopt the child? Is there any reason, if an adoption order is made, that it should only be made in favour of one aunt when both are acting as joint parents? This is a non-controversial, straightforward situation in which it would seem adoption might be considered.
The other area I want to raise with the Minister of State for discussion purposes is the blind spot in the civil partnership legislation which interacts with the Adoption Bill. The civil partnership legislation allows gay couples to register a civil partnership and details various rights and obligations they have to each other. Its blind spot is that it ignores entirely the possibility that a gay couple might be bringing up a child in a broad range of circumstances.
For example, take a similar situation to that mentioned. A child is born to a husband and wife. The father dies in a car crash. The wife establishes a gay relationship, sets up home and engages in a civil partnership where the wife's partner is effectively a second parent to the child. If she had set up home in those circumstances with someone who was her husband, there is an issue as to whether adoption should be permitted and, equally, there is an issue in this situation as to whether adoption should be permitted. What would be the difference between someone who has a child outside marriage marrying the person who is not the father of their child and their jointly adopting that child, and someone who has a child either outside marriage and then enters a permanent civil partnership and wants to jointly adopt a child in those circumstances, or does so after her husband has died?
I raise these issues. I know they are of great sensitivity and that people have a diversity of views on them, some of them expressed more in heat than in light. However, we are enacting adoption legislation simultaneously with the Civil Partnership Bill going through the Houses. The Civil Partnership Bill is entirely blind to children and it seems the Adoption Bill is entirely blind to the Civil Partnership Bill. The Minister of State, rightly, in dealing with adoption, pointed to the Tristan Dowse case, which gave rise to a major issue. The case was only finalised before Christmas before the Supreme Court, which addressed the issue of a gay couple living together, one of whom mothered a child by donor as a consequence of the assistance of a man she was not married to, when essentially the mother and her gay partner are to all intents and purposes acting as that child's parents.
These are issues that people in this Parliament find on occasion too hot to handle. We are addressing the civil partnership issue. There are children being brought up within different relationships, such as the maiden aunts example I gave and within gay partnerships. I would like to hear the Minister of State's view on whether these issues should remain essentially ignored as if they are not part of our social system and part of our State, or whether it is desirable that we should begin addressing them.
Let us start from the same point we start from in regard to all of these very difficult issues, which is that adoption is a child protection measure, not an attempt to give effect to the rights of heterosexual couples or homosexual couples, or anything of that nature. It is an attempt to find alternative care for children who are adoptable and to find loving couples for them. The rules, as we all know, are that a couple must be married and, as such, neither heterosexual nor homosexual couples can adopt — that is very clearly the position in section 33.
To go through the examples Deputy Shatter has raised, I will deal first with the situation where the husband and wife die in a car crash, the child of six survives and two maiden aunts who are cohabiting want to raise him. The question is why one would stop two maiden aunts adopting, or if there were three, four or five in the family, why they could they not all adopt the child. Clearly, one wants to provide solidity——
All five would not necessarily reside in the same room, although, theoretically, they could.
Theoretically, they could. That is about the maiden aunts' rights. We want to bring it back to what is in the best interests of the child. In those circumstances, clearly the child could be adopted by one or other of the maiden aunts in order to secure his or her future.
Equally, in the civil partnership area, it is true that, as the Deputy describes, the wife of a deceased husband could enter into a gay relationship and the question was whether her new civil partner could become the adoptive parent. The answer is "No". The child still has a mother, living under the same roof and providing this child with the parenting that is required. The other circumstances of the mother's life are beside the point. On the gay mother who used a sperm donor to impregnate her and give birth to a child, the Supreme Court made the right decision. She remains the mother of the child, the father remains the father and the child's rights have been vindicated in that way. Therefore, I am comfortable with the section.
Question put and agreed to.
SECTION 34.
I move amendment No. 41:
In page 31, line 4, after "them" to insert the following:
"(or either of them, if a failure by one only of the married couple to comply with this section would not seriously threaten the welfare of the child)".
This amendment reopens the hornet's nest we have just discussed. It concerns the issue of a married couple as opposed to one person adopting. I am not all that convinced by my amendment but I tabled it to ensure a discussion on the basis that one partner in a couple could be a good parent, while the other might not be suitable for all parenting duties. This brings us back to the issue in which a child is adopted by one person who may be his or her natural parent and a partner who may not be suitable. The purpose of the amendment is to tease out the issue of whether both partners in a marriage or partnership must be suitable to be parents if the child is to be placed in their home. The welfare of the child is paramount in all these matters and I presume will be the overriding factor. The welfare of the child has to be paramount in these circumstances. It could be suggested there is discrimination against married couples in that both spouses must be entirely suitable, whereas in the case of one person adopting, he or she may live with somebody else but he or she is the only one in the household who must be suitable to be a parent. That is somewhat convoluted.
I see where the Deputy is coming from. The issue was raised in the Seanad and I am strongly of the view that both parents should be suitable for adoption, assessed accordingly and understand and buy into adoption completely because it is an enormous step to take. As the Deputy rightly said, this is about protecting the welfare of the child. Section 34(b) outlines the criteria required to be met by parents in an assessment and if one parent cannot prove, for example, that he or she values and supports the child’s needs regarding ethnic identity and so on, that is a serious——
I am more concerned about cases where one partner is seriously ill or physically incapacitated and the other might make a wonderful mother or father.
Section 34(b) reads, ”without prejudice to the generality of paragraph (a), is of good moral character, in good health and of an age so that he or she has a reasonable expectation of being capable throughout the child’s childhood of...”. The Deputy is querying what will happen if either parent is not well. We must go back to the basic principle that we are trying to find a family for a child, not the other way around.
I take that point, which is important.
That is a key issue. A large number of families will meet the standard. We would dilute the principle of protecting the welfare of the child in not requiring both parents to satisfy the assessment process.
Amendment, by leave, withdrawn.
I move amendment No. 42:
In page 31, between lines 24 and 25, to insert the following subsection:
"(2) Where the application is by a natural parent or relative of the child, the Authority may decide to waive such of the provisions of this section as are unnecessary for the protection of the child's welfare.".
Where a natural parent adopts his or her own child, the provisions, particularly those relating to finance, should not be as strictly applied as to those who are adopting a child who is not their own. Section 34(c) states the applicant should have “adequate financial means to support the child”. This provision should not necessarily be obligatory in the case of the natural mother, in particular.
The Adoption Board has stated time and again that natural parents should not have to adopt their own children and I have some sympathy for that position. I hope to deal with the matter in different legislation. We are trying to achieve a rigorous assessment process in this Bill. Even a natural parent has to understand the consequences of adoption. A step-parent must understand what adoption means and the consequences. Therefore, I would not like to dilute the principle that the assessment should be applied to both husband and wife who are adopting together. The Deputy is, perhaps, thinking of a safeguard. The section provides that each parent must have adequate financial means to support the child but if they are married to each other, they will share their financial wealth.
If they are on social welfare and have significant outgoings, the State would not want to prevent the mother from adopting her own child because she might be deemed not to be financially solvent. The interests of the child would be better served by him or her being with his or her natural mother rather than with somebody else who might have more money. That is what I am trying to get at.
Does this mean that if one is poor, one is not entitled to the love and company of a child?
This issue highlights the anomalous nature of a parent having to adopt his or her own child with his or her spouse. If this provision is applied and I am a parent with a spouse and we both have a reasonable income, there will be no difficulty financially in us jointly adopting but if I am a parent on social welfare with my own child and the person I marry has a modest income but I want her to assume a parental role with my child because she has a good relationship with the child and it is in the child's interests, there will suddenly be a financial barrier which is expressed in different terms in the legislation. This is one of the few sections that does not replicate what is included in the 1952 Act and subsequent amending Acts. It is the wrong way to go.
I am depressed by one aspect of the proceedings. The legislation presents an opportunity for the Minister of State to sweep the cobwebs from our adoption legislation. He has accepted that for years the Adoption Board has stated it should not have to make adoption orders in favour of mothers requiring them to adopt their own children when conferring parental rights on their husbands. This is a classic example of why it is wrong. If we take an additional week or two before taking Report Stage, there is no reason the Minister of State could not amend the legislation to address the issue. We have talked about it at length on Committee Stage, with a procedure in place for the Minister of State to do so. It is important that we address it rather than put it off. I am conscious that it is now 3.30 p.m. I want to raise other matters on this section. Perhaps it is appropriate for the Minister of State to respond on the subject.
I ask Minister of State to respond before we adjourn.
I do not want to finish this section today.
We will deal with the amendment but not finish the section.
I was hoping time would intervene. Deputy Shatter makes a fair point. I agree that we must address the issue in legislation.
Perhaps the Minister of State will consider the matter and deal with it when we meet again.
I can provide a full answer at that stage.
We will return to this matter at our next meeting which is likely to be held in the week after next.
Progress reported; Committee to sit again.