Children Bill, 1999: Committee Stage (Resumed).

SECTION 16.

I welcome the Minister of State and her officials. Before proceeding to amendment No. 5 to amendment No. 33, are there suggestions regarding the time to be spent at this meeting?

I suggest we conclude at 4 p.m. because I need to be in the House for the Order of Business. I have also submitted a Private Notice Question. It has not been granted yet.

Is it possible to resume after the Order of Business?

I anticipate a lengthy Order of Business. I would be surprised if it finishes before 6 p.m. I am not sure there is much point in resuming.

Has the Private Notice Question been allowed?

A decision on that will be made before 2.30 p.m.

Is it agreed to meet until 4 p.m.? Agreed.

Before we proceed to the next amendment, I wish to point out that we are now on day four of Committee Stage of this Bill, yet we have no minutes of the previous meetings. That is unacceptable. We are effectively taking Committee Stage in the way it was previously taken in the Dáil. For the sake of members who are trying to keep track of the debate it is unsatisfactory that we should continue with Committee Stage without access to the record of the previous meeting. If the secretariat does not have the resources to produce these records we should not resume Committee Stage after today's meeting until the House is organised in a manner that enables us to perform properly as a national Parliament and get the record of previous parts of this debate. It is not unreasonable to have a record of Committee Stage meetings that have been held a week previously. In this instance it has been at least two weeks since our last meeting and the transcripts are still not available.

I understand from the Editor of Debates that there is a problem in that regard. However, I will raise this matter at the meeting of the Chairmen of committees. This is not the only committee of the House which is experiencing problems in that regard.

I will oppose taking of any further Committee Stage proceedings after today's meetings unless I receive an assurance that, before our next meeting, we will be supplied with transcripts of all of the previous meetings. People outside the House who wish to follow our proceedings are being deprived of information. Given that the media has absolutely no interest in what we are doing, it is important that those with a degree of expertise who work in the area of child care and who have an interest in what we are trying to achieve and the groups from which we receive submissions have access to the minutes of our meetings. Members must also have such access. That is not happening and it is not acceptable.

We will see what can be done about this matter.

Amendment No. 5 to amendment No. 33 is consequential on amendment No. 6 to amendment No. 33. Amendment No. 7 to amendment No. 33 is an alternative to amendments Nos. 5 and 6 and amendment No. 8 to amendment No. 33 is consequential on amendment No. 5 to amendment No. 33.

I move amendment No. 5 to amendment No. 33:

In the second line of the new section 23V(2)(a), after "1998," to delete "and".

Perhaps the best way is proceed is to refer to the section and then the amendment being proposed. Section 23V(1) as proposed in the Minister's amendment states that a person shall not arrange or undertake a private foster care arrangement for the purposes of adopting a child under the Adoption Acts, 1952 to 1998. Section 23V(2) states:

Any person undertaking a private foster care arrangement in respect of a child shall not apply under those Acts to adopt the child unless-

(a) the child is eligible for adoption under the Adoption Acts, 1952 to 1998, and

(b) the relevant health board hasconsented to the continuance of thearrangement pending the completion ofan assessment of that person under those Acts.

Amendment No. 5 proposes to delete the word "and", which appears after the term "1998,", from section 23V(2)(a), while amendment No. 6 proposes to delete paragraph (b) in its entirety. I will address in a moment the impetus behind those two amendments, which are interrelated. Amendment No. 7 to amendment No. 33 is an alternative to amendments Nos. 5 and 6.

I want now to place in context the position as it stands at present. If a child is in long-term foster care, if it has been in the care of foster parents for in excess of 12 months, if it has been effectively abandoned by its parents and if there is no reasonable possibility of the natural parents reassuming a parental role, the foster parents are currently empowered to invoke the provisions of the Adoption Act, 1988, in order to seek to effect an adoption. The 1988 Act contains a specific provision which allows for the adoption of children born either inside or outside marriage in circumstances in which it is, by and large, inevitable that they will remain in care or in the care of third parties for the remainder of their childhood. A foster parent who has been fostering a child for a long period can use the provisions of the 1988 Act to effect an adoption.

The Adoption Act, 1988, appeared as a consequence of a Private Members' Bill I published in 1987, which, in turn, reflected provisions in a Government Bill published by the former Minister for Health, Barry Desmond, shortly before the then coalition Administration left office in 1987. There had been a public outcry about the fact that there were large numbers of children in either institutional or foster care who were ineligible for adoption, who had no prospect of ever returning to the care of their natural parents, who also had no prospect of becoming part of an adopted family and gaining the security that being adopted would have given them in the context of their relationship with their foster parents and who would lose out on the legal advantages to be gained from being adopted in terms of obtaining support and inheritance rights.

The new section 23V proposed in the Minister's amendment represents a radical change in the law. That change has not been debated. Like everything else connected with the Bill, apart from providing broad commentaries on issues affecting children, the media has absolutely no interest in examining the detail of what we are doing or considering the long-term implications.

We should be wary of including in the legislation the new section 23V(2)(b). When invoking the provisions of the Adoption Act, 1988, a foster parent is obliged to make an application to the Adoption Board which, in determining whether it is in the interests of the welfare of the child in its care that an adoption order should be effected, must hear evidence or submissions from a variety of different people. It is required by the legislation to hear the views of the health board that placed the child with its foster parent or the health board within whose area the foster parent resides. The Adoption Board must also hear what the adoption applicants - at that stage they will have been acting as foster parents - the natural parents, the health board social worker and anyone else who it considers to have an interest in the child's welfare, have to say. The board will then make a preliminary decision that it is in the interests of the welfare of a particular child or in that child's best interests that an adoption be made, provided the child is freed for adoption. I am using non-technical language here to illustrate how the Act works.

For a child to be freed for adoption, an application must be made to the High Court. There have been a number of cases where such applications have been made. The application to the High Court, by way of legal proceedings, can be brought by the health board on behalf of the adoption applicants requesting the court to make orders to free the child for adoption. It is also open to the individual applicants to make their own application to the High Court. Should a health board unreasonably delay bringing the application to free the child for adoption to the High Court and if the adoption applicants employ private solicitors to make an application, the health board in question must pay the fees involved.

I believe Deputy Shatter is confusing two separate issues. Amendment No. 33 is concerned specifically with private foster care, while the foster care provisions to which the Deputy is referring are still in existence.

I know that. If the Minister of State will bear with me, I will continue with my explanation of the amendments. If that explanation is wrong, she may correct me.

I referred to health board arrangements. As matters stand, if for some reason a child is being brought up by other family members, a relations or some other people and has been with them for a long period, but may not have been placed with them by a health board, under the Adoption Acts, those family members, relations or other persons can use the procedure to which I referred earlier to effect an adoption. The Bill before us will put in place a number of additional provisions to regulate private foster care. In the context of adoption application, we should not put in place an additional barrier in respect of private foster parents seeking to effect an adoption under the 1988 Act which does not apply to foster parents who wish to effect such an adoption some years after a child has been placed with them by a health board.

On the assumption that the protections in the private foster care area will operate, the reality is that the Adoption Board would be slow to take the view that an adoption is in the interests of a child's welfare if a health board opposed such an adoption being processed. However, there are circumstances where health boards get it wrong. There are cases where health board social workers make value judgments about child welfare with which many people disagree, for example, the Adoption Board or foster parents. At present, in this context, the Adoption Board exercises an independent assessment of the course of action that is in the interests of the child's welfare. If the Adoption Board determines it is in the interests of a child's welfare that he or she should be adopted, the child cannot be adopted until effectively there has been a High Court decision on whether the child should be freed up for adoption.

The provision erects an additional barrier. It effectively states that if a child is in long-term foster care as a result of a health board placement, the normal procedures as they currently apply under the 1988 Act will continue. However, if a child has been in the private foster care of a couple for years, the couple cannot use the 1988 Act to effect an adoption unless they have a prior consent to the continuance of the fostering arrangement from the health board. Some social workers have ideological views that if a child is put in foster care, he or she should never be adopted, even if he or she has had no contact for a number of years with his or her natural parents, because the natural parents may resume contact at some stage. Some social workers feel a child should retain his or her original surname and that it is fine for a child of a particular racial origin to be fostered, but they should not be adopted by particular couples of a different racial origin.

There have been many wonderful theories about this area over the years. Issues that were ideologically and politically correct in the 1970s were debunked in the 1980s, while issues that were correct in the 1980s started to be debunked in the 1990s. There is a need to ensure foster parents with children in their long-term care, regardless of whether they are private foster parents or foster parents as a result of court orders and health board decisions, are treated equally and that the focus is the welfare of the child. The Adoption Board should continue to be the arbiter in this area in the manner envisaged under the 1988 Act and health boards should not be given an unnecessary veto that does not add anything extra to the considerations that take place.

Section 23V(1)(b) gives the health boards a special power to veto the processing of adoption applications under the 1988 Act uniquely where such applications are made by private foster parents. I do not understand why that is necessary. I also suspect in the context of private and public foster parents being treated differently that this provision could be unconstitutional. My proposal is that the provision should be deleted.

My other concern is that if private foster parents have had a child in their care for eight or nine years and they take the view that it is in the interests of the child's welfare to adopt him or her, the health board could decide that it does not want to get involved because it does not necessarily agree with the foster parents or it feels the adoption application is premature. In such circumstances, the health board would be allowed - I am open to correction on this from the Minister - to effectively take the view that because it disapproves of the adoption application being made under the 1988 Act, it will not allow the fostering arrangements to continue The health board could threaten couples who have undertaken the long-term foster care of a child that if they dare to invoke the 1988 Act after a child has been with them for up to eight years to effect an adoption, it will hang the sword of Damocles over their heads in terms of terminating the fostering arrangement.

There is no valid basis for this. It is an example of the nanny state gone mad. People who have looked after a child for many years in a manner that has not given rise to any difficulty or controversy could become the playthings of health boards. The focus will move from the welfare of the child to the perceived current applicable social work theology in these areas. Therefore, I oppose the subsection.

If the Minister is not convinced by my argument that section 23V(1)(b) should be removed, the alternative is to insert an additional subsection in section 23V. This would create section 23V(3) which would state that a health board shall not unreasonably withhold its consent to the continuation of a private foster care arrangement as referred to in subsection (2)(b) and in particular such consent shall not be withheld solely because a foster parent applies under the Adoption Acts, 1952 to 1988, to adopt a child in his or her care. This would ensure, if the Minister is insistent on health board consent as a prerequisite, that this consent, if it was being unreasonably withheld, could be subjected to review by the courts. This is the least best alternative because, in the context of the process that would be necessary and the assessment the Adoption Board would have to undertake, another layer of possible court adjudication should not be added. It should be much more straightforward.

I do not intend to accept any of the amendments. Amendment No. 5 is a technical amendment which depends on the acceptance of amendment No. 6. However, the purpose of the section is to prohibit people from using the mechanism of private foster care to circumvent the adoption procedures under the adoption Acts. Deputy Shatter largely concentrated on long-term foster care when the issue is often private foster care. The main difference is that, in the context of foster care, there is a pre-assessment of the families involved and the child is then matched. The amendment relates to children being placed privately where no pre-assessment takes place and the arrangement is notified only to the health board. The child is not specifically matched to the couple. It is important this mechanism is not used to circumvent the assessment procedures for adoption which are rightly strict.

Regarding Deputy Shatter's comments about social workers and the adoption procedures, it is important to point out that the Framework Document launched last year, which is being used throughout the country, sets down the guidelines that should be used by everybody in assessing couples for suitability for adoption. They are working well in overcoming the difficulties that existed in the past in relation to procedures and prejudices in the assessments carried out. The Framework Document has enabled great progress to be made in that regard.

Deputy Shatter implied that the provision involves an amendment to the Adoption Act. However, it is an amendment to the Child Care Act. Under section 23V(1) of this Bill, arranging or undertaking a private foster care arrangement for the purpose of adopting a child is prohibited. Subsection (2) is designed to accommodate bona fide situations where a child is in private foster care and a genuine relationship has developed between the foster carers and the child. It allows carers to apply to adopt the child, subject to the condition that the child is eligible.

Under the Adoption Act, the prospective carers would also have to undergo an assessment. Subsection (2)(b) allows the private foster care arrangement to continue pending the completion of the assessment if the health board consents. This is an important protection for the child. If the subsection was deleted, it would undermine the protection and the intention of subsections (1) and (2). The provision is an enhancement of the protection for children.

This Part is an amendment to the Child Care Act. The provisions are, therefore, governed by section 3 of that Act which obliges health boards, having regard to the rights and duties of parents, whether under the Constitution or otherwise, to regard the welfare of the child as the first and paramount consideration. Therefore, boards will at all times have to act in the best interests of the child when making any decisions about leaving the child with foster carers. Given this principle, amendment No. 7 is unnecessary and it flies in the face of all reasonableness that a board could or would withhold its consent under the new section 23V(2)(b) because a person in this position applied to adopt a child.

Amendment No. 8 is another amendment to the new section 23V. The purpose of section 23V(3) is to allow a health board apply to the courts for any one of a number of remedies where a board is of the opinion that a person has contravened sections 23V(1) or (2). These remedies are that a board obtain under the Child Care Act, 1991, an emergency care order, an interim care order or a care order. Alternatively, a health board can apply to have the arrangement terminated and the child returned to his or her parent or guardian.

As I have pointed out before, this Part has been deliberately incorporated into the 1991 Act to ensure all the legal protections for children apply to this Part. This Part is not designed to reinvent the child care legislation. As it is built on the existing legislation, no new procedures are proposed for the provisions governing the taking of children into care. The effects of the proposed amendments would be that, in all cases under the new section 23V where a health board sought a District Court order, the person arranging or undertaking the private foster care arrangement would have to be notified and given an opportunity to give evidence. This would mean, in the circumstances that a health board applied for an emergency care order, the court's power to grant such an order would be constricted by the need to hear of the evidence of the party who may potentially be the person who created the circumstances in which the order was being sought in the first place. This could have the effect of prejudicing the issue of section 13 of the Principal Act in the circumstances envisaged in this section.

Any issues of natural justice relating to situations envisaged in this section can be dealt with by the provisions of section 14 which determines the notification to be given by health boards where a child is placed in care under an emergency care order, and by section 17, which addresses the issue relating to interim care orders and the current provision relating to care orders. It should be noted that, under section 22 of the Child Care Act, a court may, of its own motion or on the application of any person, vary or discharge a care or supervision order or condition attached to that order.

We see this as an important additional protection for children which does not amend the adoption Acts. Private foster care should be seen as different from general foster care to which Deputy Shatter referred. In those circumstances and for the reasons I outlined, I do not propose to accept the amendments.

I am not as up to speed as the Minister of State or Deputy Shatter, but I am slightly concerned about the new section 23V. Section 23V(1) states:

A person shall not arrange or undertake a private foster care arrangement for the purpose of adopting a child under the Adoption Acts, 1952 to 1998.

Most cases of private fostering with which I am familiar involve grandparents, aunts, uncles or other relations. If in future such a relation applies to adopt the child in question, who decides it is an illegal or irregular application? Most cases with which I am familiar involve young children who have been in the care of a member of their extended family, sometimes from the time they were born. If that member applies to adopt the child, the section appears to suggest that cannot be done under any circumstances. My reading of it is that it rules out a member of the extended family adopting the child.

In section 23V(2)(b), the Minister of State has phrased it in the positive that a health board cannot withhold consent. However, it can from my reading. It states that a relevant health must have consented to the continuation of the arrangement. If a child is placed in private foster care, what involvement does a health board have in that? If I foster my sister's child, does a health board have any contact with me at any point from the day I foster that child? As I read the section, if I wish to adopt the child, I cannot proceed to the next point if a health board does not consent to its continuation.

Deputy Shatter referred to how trends change. I attended a meeting of the Law Reform Commission when it prepared its previous document on adoption. I was shocked by the statement of a health board social worker from Dublin who said under no circumstances should a child be put up for adoption and that, regardless of the circumstances, the best place was with his or her natural mother or father. I do not know if that is an acceptable view but I do not believe it to be a valid one. However, if that social worker were called to my home to see if she would consent to the private fostering arrangement I had with a family member - I cannot comment on cases where it is a member of the extended family - I am sure she would not agree to the continuation of that arrangement.

I am slightly concerned by this section. Perhaps I have not grasped what the Minister of State has said and it is covered in the adoption Acts. It appears to be an impediment to people with a private fostering arrangement proceeding to adopt the children they are fostering, and I would not like to see any barriers placed in the way of such arrangements being made.

I accept the Minister of State's point about ensuring this does not provide a quick route to adoption and that there is a difficulty with people feeling that, if they take a child into their care in an informal way, it could lead to a quicker processing of an adoption application. That said, we are familiar with numerous cases where, for one reason or another, a child's parents are not in a position to care for him or her and a family member, generally the child's grandmother, takes the child into her care. The experience by and large is that health boards are not involved in that. I have encountered situations where neighbours have taken in children of a family on the point of eviction where the children did not want to move with their mother. Three or four years later, the neighbours were still caring for the children and there had been no involvement by a health board social worker.

The provisions in the Bill might be fine in an ideal world where a health board can cope with the demands placed on it, but there are umpteen situations where children are well cared for, sometimes in unusual circumstances of which social workers would not necessarily approve, and the host family has been content to provide that care for seven, eight, nine or more years. The health board has been neither interested nor had the time to get around to being involved in any way in such care arrangements.

I support Deputy Shatter's amendment that a health board should not unreasonably withhold its consent to the continuation of a private foster care arrangement. We are all familiar with situations where a health board has been unreasonable in dealing with some cases, and health board staff clearly operate at times with their own prejudices. There is a need for some halfway house and the safeguard that a health board would not unreasonably withhold consent is a fair compromise in this situation and I support it.

If a social worker were to be involved from the beginning in some of these informal arrangements and if it were an ideal world, another family might be chosen. However, the reality is that families are not available and, often, ad hoc arrangements entered into informally work out quite well. In cases where the arrangement has worked for a number of years, it would be unfair to expect the family to wait for the health board to conduct a full assessment. God knows when that might happen in the context of the current pressure on services, where a person may have to wait several years for a full assessment and there would be a number of hurdles in the meantime, given people's prejudices. The idea of this safeguard to ensure the health board would not be unreasonable in handling an application is a fair one and I support it.

In relation to Deputy McGennis's question, extended family members would not be excluded from this at all. Deputies McGennis and Shortall are correct in talking about the lack of involvement of health boards at the moment in relation to private foster care. One of the purposes of this section is to ensure the health board would be notified of such foster care arrangements existing, so the link is then made and there can be some follow-up. At present there is no obligation on people undertaking a private foster care arrangement, whether it is in relation to children coming from Chernobyl or private arrangements made here, to inform the health board at all, so it could be totally oblivious of the fact that a foster care arrangement is in existence. Under this provision notification would have to take place so the health board would then be aware of this and some follow-up work can take place, if necessary, with the family.

Another issue mentioned by both Deputies relates to what happens on the ground as opposed to in the legislation. I am concerned that prejudices would be working against couples seeking to adopt but to refer not just to the manual of the Framework Document, the training now given to social workers undertaking assessment means everyone is working to a certain procedure throughout the country. That is working well and looking at the numbers being assessed, the numbers being turned down at the end of the process are minimal. It appears to indicate that the problems of the past have been wiped out.

This is pre-assessment?

The consent of the health board is needed pre-assessment, so it might not be the same staff or health board worker who would agree that a child should stay until it is assessed. It could be a completely different body.

No, but the couple could still apply to be assessed and then they are in the adoption assessment process. They would then go through that system. This does not exclude extended family members at all and I hope the prejudices have been wiped out. More importantly is the fact that this comes under the Childcare Act, where the interests and welfare of the child are paramount. That is the overriding consideration no matter what we are talking about. To say a health board would unreasonably withhold its consent is probably going against its duties and responsibilities under the Childcare Act.

The Minister of State's response is depressing. She has her departmental brief, which she has read to us, but I am not impressed.

The legislation already ensures that in the context of private foster care there is some form of notification to the health board. We amended this to provide that where a child goes into private foster care within two weeks of being placed the health board must be notified. So this section has nothing to do with notifying people about private foster care placements. That has been dealt with in an earlier section and this section has no relevance to that at all.

I was replying to the points raised by Deputies McGennis and Shortall.

I understand that but I am trying to work out why this section is drafted as it is. The Minister of State and I are agreed on that; this section has nothing to do with that particular issue.

The adoption Acts contain stringent provisions to ensure that we no longer have direct placements for adoption purposes. It is a criminal offence to have a direct placement for adoption purposes, so between the adoption Acts and this Bill, if and when it becomes law, we will have regulation of private foster placements and prohibition in the adoption Acts on private adoption placements. As I understand it, this section is about providing a procedure relating to private foster parents invoking the adoption Acts. That is all this is about and nothing more mysterious than that.

On the basis that the only Act they will invoke to effect an adoption in the absence of a mother or natural parent or guardian signing a consent to adoption is the 1988 Act, then it all boils down to this being about the circumstances in which foster parents can rely on the 1988 Adoption Act to effect an adoption. One can only use that Act if a child has been in one's care for a minimum of 12 months. If two weeks after the child has been placed in one's care the health board must be notified, then presumably the notification means something and some form of assessment or check will be carried out. If the child is still in one's care 12 months later, presumably the health board has no problem with one acting as foster parent, otherwise it would have taken action under the Children Acts.

What should be the position of foster parents regardless of whether they are private foster parents or what we might euphemistically call public foster parents? First, there should not be different rules applicable to them. One is either a foster parent or one is not. One can become a foster parent as a consequence of the health board carrying out an assessment on one and, subsequent to court orders being made or agreed arrangements being put in place with natural parents, the child is placed with one and also, if, as a consequence of the child being placed with one privately, for whatever family or social difficulties that have arisen, and the health board being notified within two weeks and then presumably carrying out assessments or checks to ensure it is appropriate for one to act as a foster parent. So 12 months down the road there is no particular reason for distinguishing between one kind of foster parent and another. The only issue here relates to what legal provisions should apply to people who have children placed with them with the intention to act as foster parents deciding it is in the best interests of the child to adopt the child and applying under the adoption Acts to do so.

We are seeking here to put a discriminatory legal regime in place. What is proposed is that private foster parents be treated differently to other foster parents. I do not know why that is and the Minister of State has not provided me with a reasonable reason it should be. Is she aware of large numbers of private placements for adoption which have resulted in adoption orders being made? A number of adoption orders are still made in favour of family members - grandparents, uncles or aunts - in the overall number of adoptions effected. However, do we have at present under existing law a widespread problem of private adoption placements? The Minister of State can clarify that. The answer is that we do not. Why then should private foster parents be treated differently here to other foster parents? Why should the ordinary arrangements under the 1988 Act not apply?

If I have a child in my care for five or six years as a foster parent and I want to adopt and I apply to the Adoption Board, that board is not going to make a decision without hearing from the different individuals and witnesses I referred to, including the relevant health board personnel. Neither will the board make a decision until its own social worker has carried out a professional assessment of the suitability of the couple to adopt. Why should we put a special veto arrangement in place to be exercised by health boards to specifically target private foster parents? I do not understand why.

The Minister of State has mentioned protections for the welfare of the child but those are all in place. There is no additional protection prescribed by this and Deputy McGennis is right in that it gives the health board power in that if the individual social worker disapproves of people who have acted as foster parents for five or six years and apply to adopt a child, he or she can encourage the health board to bring an application under child care legislation to take the child into care under section 13, 17 or 18. Alternatively, the health board can make an application to the court that the foster care arrangement be terminated and the child returned to his or her parents or guardian.

This is not about providing protections for children, but about health board control over adult foster parents who have properly cared for a child for a number of years being able to make the same judgment that other foster partners can make, namely, to adopt a child by making a simple application to be assessed by an adoption board.

The Minister of State said that all the provisions of the Child Care Act will apply regarding amendment No. 8 should health boards continue to have the power to apply to the District Court for a form of care order should foster parents seek to adopt a child, or for an order to terminate the foster care arrangement and return the child to his or her natural parents.

If a health board makes an application for either of the above, my amendment suggests that no order should be made by the District Court pursuant to subsection (3) of this section without the person who is arranging and-or undertaking a private foster care arrangement being notified of the application being made to the District Court and being given a reasonable opportunity to give evidence to the court.

The Minister of State is correct is stating that, if the application is made under section 23V(3)(a) which relates to section 13, 17 or 18 of the Child Care Act, 1991, the provisions of that Act concerning the notification of the foster parents will apply. There are no provisions in that Act, however, concerning section 23V(3)(b) which constitutes a new type of order. It is not an order concerning the taking of the child into care. Neither is it an order under the Child Care Act, 1991, as we now know it. It extends a new power under the Act to terminate a foster care arrangement and return the child to his or her parents or guardians for no reason other than the foster parents applied to adopt the child under the 1988 Act. There is no provision about notifying the foster parents of the initiation of that type of application.

Perhaps the Minister of State is suggesting that the general provisions regarding notification in the Child Care Act will apply. If she gives me such an assurance, then so be it. It is important, however, that we understand the framework of the section which does not deal with child welfare. If the Adoption Board receives an adoption application from foster parents, it is obliged under section 3 of the 1974 Act to regard the welfare of the child as the paramount consideration. The Adoption Board is an independent body established to assess welfare issues concerning an application to adopt a child. It may well be that where a child has been in foster care for five, six or seven years the Adoption Board may take the view that the child is doing well in the care of his or her foster parents and should remain in their care. It is not appropriate and in the interests of the welfare of the child, however, that an adoption order be affected because the Adoption Board might take the view that an adoption order could prevent further interaction between the child and his or her natural parents having heard background information which indicates that there is a reasonable prospect of that type of interaction taking place in the future in a manner conducive to the child's welfare.

The section seems to envisage that if one applies to adopt in circumstances where it may not be appropriate to do so, the child will be taken away. That is wrong, misconceived and an unnecessary way of bludgeoning into legislation a mechanism which I predict will give rise to much trouble and difficulty. The provision will cause unnecessary difficulties for private foster parents and children and place private foster parents in a unique legal category, distinct from other foster parents, should they decide to invoke the provisions of the 1988 Act to adopt a child. There is no need for this provision.

Private foster care is not a problem. It is, however, a growing issue, particularly concerning children being brought to Ireland from abroad. Some have expressed concern that couples are bringing children to Ireland with a view to circumventing assessment for intercountry adoption. We all agree that this is undesirable, particularly so given that in the case of an adoption, the assessment takes place first and then a match is made between the child and the couple. In the case of private foster care, the child is placed with the couple without the necessary matching. We are suggesting that those who apply to adopt would then undergo an assessment. There is a significant difference between the kind of assessment which takes place for foster care and that for adoption.

It is important to clarify that a health board cannot stop a couple applying for an adoption. Section 23V(3)(b) proposes that the board should agree to the child continuing in that placement while the assessment is taking place.

The health board can decide not to agree to the child remaining with the foster parents while the assessment is taking place and, effectively, terminate the prospect of the adoption being processed. If the health board can refuse to consent to the continuation of the private foster care arrangement where an adoption application is made, that is, in effect, a veto.

Let us take the example of a child from Chernobyl who is registered as he or she will be in Ireland for 14 days, who is with a couple for three weeks who then decide to apply for adoption. The couple would then have to undergo the assessment.

They could not do so. Under what legislation could they apply to adopt the child?

They cannot apply to adopt the child, but they can apply for an order of suitability to adopt. That is all one receives.

Does the Minister of State mean that they could apply for a foreign adoption?

What has that got to do with it?

This would be an assessment of a couple's suitability to adopt which every couple has to have.

This is getting more bizarre by the minute. Is the Minister of State suggesting that, for example, if a couple in Cork on a health board waiting list for assessment for foreign adoption agree to take a child visiting from Chernobyl into their home for two or three weeks, because they are thinking of being assessed for suitability for a foreign adoption generally, not concerning the child in question, the health board could veto the placing of a child with them?

Not at all.

That is what the Minister of State is suggesting. It is getting more bizarre by the minute.

That is not what I said. We are trying to avoid a situation where people bring children to Ireland and then apply to adopt on the basis that they have the child and the case is one of hardship, thus jumping up the list for intercountry adoption.

Is the Minister of State referring to the child in question?

Will the Deputy, please, allow the Minister of State to conclude? I will allow him to reply later.

Under such circumstances the health board cannot stop a couple applying for adoption. That is not what is stated. Section 23V(3)(b) consents to the child continuing in that arrangement pending the completion of the assessment under the Acts. I have indicated that all the legal protections for children which apply under the Child Care Act will apply in this case.

Chairman, I am freezing to death. I do not know what is going on in this room but I have had a cold blast of air hitting me for the past 20 minutes. I do not know what has happened since the start of the meeting but we are back to where we started.

The Office of Public Works was contacted prior to this meeting and is addressing the matter. I agree the situation is not satisfactory.

It is completely unacceptable; if the clerk cannot confirm within the next few minutes that action will be taken, I will propose the adjournment of this meeting.

Is there a specific point which the Deputy wishes the Minister to address——

I am not remotely finished with this section. I do not know whether Deputies McGennis and Shortall wish to comment; I do not want to dominate the discussion.

In the instance outlined by the Minister; has a specific lobby signalled its concern about children being brought into this country?

There is not any specific group or lobby but word is coming from around the country that, in certain cases, children are coming into the country before the completion of the adoption assessment. While this is an issue of concern to health boards, it is not yet a serious problem.

If a couple is fostering a child from Chernobyl, for instance, and applies to be assessed for adoption, are they applying to be assessed as suitable parents for adoption in general or as suitable parents for that child?

As suitable parents for adoption.

So they could not adopt that child?

They could if the child was available for adoption.

So, they could adopt that child if the child was available for adoption and if they were deemed suitable?

Are there many instances of this happening?

The number is growing.

How many children have been adopted in this way in the past year?

I do not have the exact figures to hand.

Will the Minister outline how many of the children from Chernobyl who have visited Ireland in the each of the past five years have ultimately been adopted by the foster parents with whom they spent two or three weeks?

Is this measure designed purely to deal with queue jumping or does it take the children's best interests into account?

I would be interested to hear the extent of this problem. The Minister emphasised the need to deal with the foreign adoptions. I would have thought it was illegal to take a child into the country under the circumstances outlined. Will the Minister clarify whether that is the case? Will she indicate whether this is merely a potential loophole which must be closed or a growing problem?

The Minister did not address our concerns in respect of informal private adoptions which are very common, particularly among family members. Does she accept our concern that health boards may put obstacles in the way of people for whom such arrangements work quite well and who wish to apply for adoption?

Deputy Shortall is correct in saying that one cannot just bring a child into the country and hope to adopt it subsequently. Such children usually come in on an official or semi-official platform. For example, a German organisation places children in Ireland with German families. Other groups of children may come into the country for health or holiday reasons. When those children are in the country for such purposes, people may decide they wish to adopt them. The health boards feel some couples are attempting to circumvent the adoption regulations and assessment procedures.

Is that not illegal?

The children would be in the country on a bona fide basis. For example, a couple hosting a child from Chernobyl may decide they would like to apply for adoption and the health board could tell them to proceed with an adoption application but that they would not be allowed to keep the child while that application was processed. Alternatively, it could decide to allow the couple to hold on to the child during that process. We want to ensure that people will not deliberately seek to abuse their position to jump the queue.

On family adoptions, which are far more common, if a child is in foster care with a family on a long-term basis, it would be very unreasonable for a health board to remove the child simply because an adoption application was made. I do not believe that would happen as a health board, if it were in any doubt, would have ample opportunity prior to such an application being made to get an emergency care order, a care order or an interim care order.

Health boards are often unaware of such informal arrangements.

We have overcome that by ensuring that all such arrangements are registered.

There are many situations in which such arrangements work perfectly well for many years without any involvement from the health board, generally because it does not have the resources to become involved as it prioritises emergency cases. If, after a number of years caring for a child, a family decides to apply for adoption, will they be confronted with the hurdles which could be put in place by a health board social worker who is either prejudiced about the suitability of the existing arrangement or where the arrangement might not have been to the entire satisfaction of the health board had it been involved from the outset? I am sure the Minister will acknowledge that such prejudice could exist. In such situations the best could end up being the enemy of the good. The family might not be the ideal one but the arrangement may have worked satisfactorily for a number of years.

If the health board were to become involved if an adoption application were made, it could take a considerable length of time to allocate a social worker to investigate the family and all manner of issues could be raised which might not really be relevant to the reality of the situation in which the child lives. The health boards' inadequate resources could result in delays in these circumstances and unfair obstacles could be put in the way of families which have cared for a child for a number of years. It would be reasonable to include a safeguard to the effect that a health board would not withhold consent unreasonably in such circumstances. The Minister is emphasising foreign adoptions while we are concerned about the more common family adoptions here.

Unfortunately, the amendment encompasses both types; they cannot be differentiated.

It is important that all private foster carers would be notified to the health board to avoid the type of situation where informal arrangements existed for years but where the families involved might have benefited from the support of a social worker or the health board. Health boards will now be aware of all private foster care arrangements which last longer than 14 days. That will benefit everyone.

The vast majority of adoptions here are family adoptions and we must do everything we can to facilitate those. It is obviously best for a child to be with his or her family or wider family and foster care is the next best option. Residential care should only be used as a last resort. Everything possible should be done to support the foster care and adoption system. This provision will strengthen the supports available to foster carers. Deputy Shatter's amendment is probably based on individual knowledge of prejudices that existed. I hope the health boards act at all times in the best interests of the child. They are obliged to do so under the Child Care Act, therefore, the amendment is perhaps unnecessary.

All the arguments have been very well articulated and are very clear but there is a difference of opinion.

I had a query to which the Minister of State has not replied. In the past 15 minutes, she has given us additional information which I do not understand. She should clarify this issue. This provision will affect every private foster care parent who wishes to adopt in the future, therefore, we need to be very careful. She has not explained the reason for the different treatment between private foster care and other foster parents. I raised the issue that this could be an unconstitutional differentiation and she has not responded.

For some reason, children visiting from Chernobyl have come into the discussion. Will the Minister of State inform the committee of the number of children in each of the past five years who visited Ireland to stay temporarily with foster parents and who have been adopted by the people with whom they stayed or the number of people who have been fostering such children for two or three weeks who, having received the children, attempted to retain them in this country and applied to adopt them? The Minister of State said, "There is a German group which place German children with German families." Will she indicate who is the German group, how many German families have obtained children in this way in an attempt to circumvent the current adoption restrictions and how many children have been adopted by this group? I presume they have not adopted as a group but that some families have adopted. She said she is getting word from some health boards that this is a problem. I do not understand the problem because the Adoption Act, 1991 lays down very strict provisions concerning the recognition here of foreign adoptions. Clearly one cannot effect a foreign adoption and have it subsequently recognised in this State unless the Adoption Board has adjudicated that one is suitable to adopt. There are not that many couples adopting children from outside Ireland who are retrospectively trying to get the adoptions recognised or themselves determined to be suitable because this cannot be done under the Act. Therefore, that group does not exist.

Will the Minister of State give the numbers, not from hearsay or a rumour that has gone round some health board, but from concrete information in her Department? Is she in a position to furnish the committee with the numbers of children who in each of the past five years have in some way been brought to Ireland with the intention of having them adopted under Irish adoption provisions, but who have been brought in under the pretence of a private foster care arrangement, and the number of children who have ultimately been so adopted? We are working in an area about which we have no information. Apparently major changes will be put in place in current adoption law and practice. This is adoption and not fosterage. This is about the procedural steps which can be taken to adopt a child who is placed in one's foster care. We are about to make a fundamental legal change based on no concrete information.

Has the Minister of State received representations from the Irish Association of Social Workers specifically in favour of, or against, the provision she is inserting in the legislation? Has she received any views from them on this proposal?

Most of these questions have already been put. Will the Minister of State answer the queries to the best of her ability. Following that, I would like to put the amendment.

First, I did not give any new information in relation to non-national organisations or children from Chernobyl. I made the comments when introducing the section. I understand that 2,500 children come to this country under the foster care placement schemes. I do not have figures on the number of children under whatever scheme who are adopted. I am only aware of the number of couples who have got their declarations of suitability to adopt and the number of adoption orders which have been effected each year.

I am sorry to interrupt the Minister of State, but has a single couple in Ireland adopted a child from Chernobyl who stayed with them for two weeks?

I do not have that information. The only information the Adoption Board has relates to those who have been deemed suitable to adopt and the number of orders which have been made. This is not a change in the adoption laws, it is a change under the Child Care Act. This is designed to give added protection to children who come here on a fostering basis.

Is the amendment to the amendment being pressed?

Amendment put.
The Select Committee divided: Tá, 7; Níl, 8.

  • Coveney, Simon.
  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Neville, Dan.
  • O’Sullivan, Jan.
  • Shatter, Alan.
  • Shortall, Róisin.

Níl

  • Ardagh, Seán.
  • Hanafin, Mary.
  • Kelleher, Billy.
  • Killeen, Tony.
  • Kitt, Michael.
  • McGennis, Marian.
  • McGuinness, John.
  • Wright, G. V.

I move amendment No. 7 to amendment No. 33:

In the new section 23V, after subsection (2) to insert the following:

"(3) A health board shall not unreasonably withhold its consent to the continuation of a private foster care arrangement as referred to in paragraph (b) of subsection (2) and, in particular, such consent shall not be withheld solely because a foster parent applies under the Adoption Acts, 1952 to 1998, to adopt a child in his or her care.".

Amendment put.
The Select Committee divided: Tá, 7; Níl, 8.

  • Bradford, Paul.
  • Coveney, Simon.
  • Finucane, Michael.
  • Fitzgerald, Frances
  • Neville, Dan.
  • Shortall, Róisin.
  • Shatter, Alan

Níl

  • Ardagh, Seán.
  • Hanafin, Mary.
  • Kelleher, Billy.
  • Killeen, Tony.
  • Kitt, Michael.
  • McGennis, Marian.
  • McGuinness, John.
  • Wright, G.V.

It is like a refrigeration box here. I propose we adjourn the meeting.

Is section 17 agreed?

We do not want to rush through sections even where there are no amendments because there are issues we may want to raise.

Is it agreed that the meeting be adjourned?

We are finishing Part III. This means the Minister for Justice, Equality and Law Reform can take over the next Part.

I am sure that is a great relief to the Minister of State.

There are a few more amendments.

I do not want the committee to rush through matters that are important. This room is intolerable. We have been freezing here for the past hour and a half.

That is not the end of that section.

Section 17 is agreed so we will conclude on that and start on section 18 when we resume.

Can we not finish Part III?

What section is Part III?

I think that ends Part III, does it not?

Section 17 is the beginning of Part IV. Part III is concluded.

Thank you, Chairman.

I thank the Minister of State, Deputy Hanafin, and her officials for their presence here today.

I propose that at the next meeting hot whiskeys should be served to all those brave enough to put up with these sort of conditions.

Excellent.

We could have them now.

A hot Ribena.

In fact, Deputy McGennis made a very good proposal, Chairman, that you should now buy us all one in the Dáil bar, which I second. It is a very good idea.

Chairman, I did not suggest that you should purchase them, but that we should have them now.

I think the heat is coming back on.

It is just a rush of blood to your head because you are getting out of here.

The Select Committee adjourned at 3.33 p.m.