Amendment No. 7 is related to amendment No. 6; amendment No. 8 is an alternative to amendment No. 7 and all may be discussed together. Is that agreed? Agreed.
SECTION 10.
I move amendment No. 6:
In page 10, paragraph (a), between lines 41 and 42, to insert the following:
"(i) by the substitution of the following for paragraph (a):
‘(a) the consent to the adoption of every person whose consent to the adoption was, under the law of the place where the adoption was effected, required to be obtained or dispensed with was obtained or dispensed with under that law either—
(i) at the time the adoption was effected, or
(ii) at a subsequent time when, if the adoption which was initially granted did not have the effect in that place of terminating a pre-existing legal parent-child relationship, it was converted into an adoption having that effect by virtue of such consent being obtained or dispensed with under that law (the date on which the adoption was initially granted being construed for the purposes of this Act as the time the adoption was effected),'".
The purpose of this amendment is to provide for the retrospective recognition of simple adoptions which are subsequently converted into full adoptions in the countries in which they were effected. Deputies will be aware that some countries operate dual systems of adoption known respectively as simple or ordinary adoption and full or plenary adoption. Full adoption has a broadly similar legal effect to that of an Irish adoption order in that it severs the legal relationship between the birth parents and the child and creates a permanent new legal parent-child relationship between the adopters and the child. Full adoptions effective in countries which operate dual systems of adoption already qualify for recognition here under the Adoption Act, 1991. However, simple or ordinary adoptions are much more limited in their legal effect. While such an adoption transfers parental authority to the adoptive parents, the rights and duties derived from the blood relationship between the birth parent or parents and the child are not superseded. I am advised that a simple adoption amounts to little more than a custody order.
The effect of the recognition of a foreign adoption here is to accord it the same legal status as an Irish adoption order. This means that the child is regarded in law as the child of the adopters as if the child was born to them within marriage. It follows from this that the legal effect of the foreign adoption must be broadly similar to that of an Irish adoption. It must have similar characteristics to an Irish adoption order in terms of the termination and creation of parental rights and duties. However, this is not the case where a simple or ordinary adoption is concerned since such an adoption does not extinguish the legal relationship between the child and the birth parents.
I have been advised that to recognise simple adoptions here would be to accord them a status beyond that which they have in the country where they were granted and, in particular, beyond that which the birth parent or parents would have consented to under the law of the country concerned. It is important to bear in mind that in countries where dual systems of full and simple adoptions are operated it is for the relevant adoption authority to decide which type of adoption decree is the appropriate one to make by reference to its own adoption provisions. Thus, if a simple adoption decree is granted, the relevant authority must have had good reasons for doing so rather than granting a full adoption decree. Since it has made a clear distinction between the two types of decree that may be granted under its internal adoption laws, I have been advised that we must respect that distinction and not seek to accord the simple adoption decree a legal status beyond that which it has and was ever intended to have, under the law of the country where it was granted. In view of this it is not possible to accept amendments Nos. 7 and 8.
I understand that a number of countries which operate dual systems of adoption provide in their laws for the conversion of simple adoptions into full adoptions. This amendment provides for the recognition of an adoption converted in this manner retrospective to the date on which the simple adoption was originally granted. A requirement for recognition would be that the consent of the birth parents to the adoption being converted into a full adoption was obtained or dispensed under the law of the foreign country concerned.
My amendment will be of benefit to those who have already been granted a simple adoption and who succeed in having it converted into a full adoption. Where this is not possible, it will continue to be open to couples to apply for an Irish adoption order for the child. This option is available in any case where an adoption effected abroad does not qualify for recognition here.
I tabled amendment No. 9 to section 16. Is it because it is in a different section that it cannot be taken with these amendments? It deals with the same point. Will I be able to put that amendment separately?
The advice from the Bills Office is that it is not related. It can be taken separately.
I welcome the Minister's amendment which provides for retrospection in cases where an adoption is converted from a simple to a plenary one. I am upset at the language used, for example, "to accord them a status beyond that which applied where they were granted the adoption in the first instance". I would change that to "to accord these children a status". We are talking about children, not about disposing of cattle. I do not find that language helpful. Are we going to be legalistic or compassionate with these children? Will we be caring and supportive or will we throw the book and say that the relevant authority must have had good reasons? The relevant authority never intended these children to have any greater legal status. Surely we can make decisions regarding these children who are often here for a number of years.
The Minister's amendment provides for what started out as a simple or ordinary adoption and is later converted to a plenary one. Its effect as a plenary adoption will be backdated to the date of the original simple adoption. That is welcome but it is saying that the ordinary adoption is not sufficient. It means that if one gets a plenary adoption it will be recognised and registered. That, unfortunately, is the legal position as the Minister and his advisors see it. This puts pressure on the person who gives up the child for adoption in the first instance. The adoptive parents are asked to go back to this person to have the circumstances changed. That seems to be against the general trend in modern adoptions.
The Government should not hide behind these alleged legal difficulties. We wanted the Government to take action in March this year on the problem of Chinese children but the Supreme Court ultimately came to its rescue towards the end of July. We could have put that beyond doubt in March or April if the Minister had wanted to bring in alternative legislation for that purpose. The Government should not use these difficulties to avoid making a compassionate response to the plight of these children and the needs of Irish couples who have to adopt abroad.
The recent annual report by the Eastern Health Board states that only seven babies were placed for adoption in its region last year, while the number of applications for foreign adoptions rose to 74. This issue will become increasingly important, not just for the people who are directly affected at this stage but for many more in the future. Most future adoptions will be foreign adoptions and, therefore, if the Government is serious about facilitating Irish couples who adopt abroad, it must provide recognition for these foreign adoptions on a realistic and generous basis. To refuse recognition to ordinary or simple foreign adoptions is a narrow-minded, legalistic response which fails to follow the open-hearted generosity of Irish couples who are willing to adopt children from abroad, often at great expense to themselves and, in doing so, give those children their only chance of a normal caring home.
The provision in the 1991 Act for the revocation of registration where the foreign adoption is lawfully revoked by the birth parent is an adequate safeguard of the rights of the birth parent and the adopted child. In that respect the Supreme Court finding is relevant to this matter also. While the foreign adoption is in force, it should have the full benefit of the adoption order under the law. Anything less would be a mean and niggardly treatment of the adopted children and create potential injustices in this country. That is why I tabled amendment No. 7 which provides that, so long as it is in force, the adoption has substantially transferred, under the law of the place where it was effected, to the adopters the rights and duties of guardianship or parental authority over the child. This would be adequate and would overcome the problems which will arise for the families who have adopted children from Paraguay, Peru and the other countries mentioned in the list.
If a foreign child is adopted into an Irish family where there are children already and the parents were later killed in an accident, would it be tolerable that the adopted child would have no rights to inherit in the same way as the birth children of the parents? If this were so, the adopted children could be left totally deprived. Such would be the position under the Bill. An even more compelling example of injustice is where the adopted child or children were the only children. If both parents were killed and were intestate, other relatives would be legally entitled to the home and estate of the parents. In such a case the failure to provide adequate recognition would leave the children orphans and penniless. This should not be allowed to happen. If there is to be recognition it must be to the extent of putting the adopted child in the same position legally as the birth child of the adopted couple. In short, there must be full recognition as if the adoption were an Irish adoption. Any form of partial recognition cannot be countenanced.
The Minister has suggested that the families should look for recognition in Ireland. However, he knows all the diffculties they face in doing that, where they already have a simple adoption order but there is the safeguard of possible revocation. In these circumstances, the Minister's position would be satisfactory if he were to give these children the recognition they seek and deserve in Ireland. I urge him to reconsider this matter, to be generous while being realistic and to be sensitive and caring in his approach to these children. Some of them are here already and are watching to see what we will do and how we will treat them. Other families will be adopting in the immediate future from countries with simple adoption procedures or where they will only be able to get a simple adoption order. There is an onus on us to ensure they are properly looked after and to do everything we can to secure their position in Ireland. For instance, at present they would have difficulty getting a passport and that is intolerable. That would apply to children from a number of countries. Those countries are not marked on the current list but on the previous list even countries such as France, Luxembourg and Belgium did not have a plenary adoption arrangement. Apparently they are on another list over the page.
Are you a one-page man too?
It is well known that I am not — I had some 66 scientific papers, which were far longer than one page, published in international journals.
There are practical difficulties, including issues such as inheritance of the family home, farm or property, and I understand they can be disadvantaged in applying for school and medical services and passports. A child growing up in Ireland, who wants to be an Irish citizen but cannot become one, experiences many practical difficulties. They are unlikely to turn up with £1 million, which the Government requires for the special recognition of citizens. Is it possible to take the extra step and recognise their position? Will the Minister accept my amendment? I agree to the Minister's amendment and I ask him to reciprocate by accepting amendment No. 7.
I am struck by the temerity of Deputy Woods in reminding the committee of the passports issue. I thought he would prefer to forget about that matter rather than bring it to the forefront of political debate.
I share a number of the concerns outlined by the Deputy in relation to the children whose position is not addressed by the Bill. I accept there are significant legal difficulties in the way adoption has been traditionally handled. The strong and well thought out adoption system in Ireland is based on what was a historical reality. Deputy Woods mentioned that just seven Irish babies were placed for adoption with the Eastern Health Board last year. This is an extraordinary figure and shows that adoption must face a new era. The Bill tidies up an element of the older laws but these issues will not go away. If they are not dealt with today, they must be addressed soon.
In common with the Minister and others, I was struck by the correspondence from the parents of Paraguayan children about their position. Although they may not be as significant, the same applies to the other groups. As a consequence, the parents cannot travel with their children and the children have no inheritance or legal rights. They face huge tax implications on inheritance because they are not relatives. The issues are enormous and while I accept the committee is not ready to make the move today, the matter should be addressed quickly. In the context of the solutions mentioned by the Minister, such as seeking plenary adoptions, can the committee do anything in that area to encourage diplomatic efforts to support such approaches, if that is the only way the adoptions can be legitimised in Ireland at present? Is there some room for manoeuvre in that area?
The committee visited Sweden almost two years in the context of its work in relation to children. It was pointed out that Sweden has a tradition of accepting immigrants and approximately 10 per cent of the population is immigrant based. In latter years there has been a large number of foreign adoptions because there are no non-marital children in Sweden — in so much as people bother about marriage there — given the wide availability of contraception and abortion. They tend to rely entirely on foreign adoptions, particularly from the Third World.
I am sure other countries had to face these issues. Have the measures they used to deal with them been examined? Is a new regime necessary or it is expecting the impossible to tag on the new types of adoption to existing laws which worked well and were strong in terms of the situation which applied? While I accept there are legal difficulties in the current position, there are issues which will not go away for the Minister or politicians.
An increasing number of children from abroad are living in Ireland and it is likely there will be more. Parents are providing a great opportunity for these children which their domestic circumstances could not offer them. We support this move internationally and perhaps the Minister can provide ideas on where we could proceed in response to that, such as supporting these people in plenary adoptions if that is the only option. The matter should be examined further in terms of how other countries are responding and perhaps the committee should commit itself to returning to this issue with a package of proposals designed to comprehensively respond to this group.
I agree to some extent with the Minister of State's amendment but, unfortunately, it does not address the difficulty which has been identified. The list circulated by the Minister earlier shows that 11 countries fall under the dual system of adoption. Consideration should be given to the points regarding the small number of Irish children placed for adoption, just seven in the Eastern Health Board area last year, and the human dimension that people want their children recognised and to have the same rights as any other child. It is difficult for these people to understand the obstacles placed in their way and why legislators cannot come to grips with the problem.
The Minister listened to the many arguments put forward during the debate and to the cases made by the parents of adopted Paraguayan children. He is sympathetic, but perhaps the approach taken to the matter is too conservative. There must be a way around it to ensure the practical difficulties in relation to inheritance and passports are addressed. It is beyond belief that the parents of an 18 months old child cannot travel with the baby. This must place enormous stain on families. Whatever about the taxation and inheritance issues, it must be extremely difficult in human terms for parents who cannot travel with their babies.
I am sure everybody listened to the lobbyists, particularly those on behalf of Paraguayan children, and one could not be unmoved by their position. I will move an amendment later but I am prepared to agree to Deputy Woods' amendment. In purely human terms, we must address the issue — that is most important. Nobody wants to be accused of being heartless about this and I am sure nobody is; they are trying to be as practical as possible on the Government side and stay within the legal parameters. However, the onus is on the Minister to find a way around this. The issue will not go away. I know of one parent whose wife stayed in Paraguay for ten weeks to get through the labyrinth of bureaucracy that faced them there. People like that are not going to give up and go away or give up their children easily. Neither do they want to disrespect the rights of the birth mother. Their intent is to have a happy family life and bring up their children as best they can. From that point I would like the Minister to redouble his efforts to ensure we can get through this impasse.
I will take the last point first. If I could find a way to resolve this difficulty I would accept it. If Deputy Woods or any other Deputy has a proposal for getting around this difficulty, I would be a very happy man. When I met the deputation from Paraguay and couples who brought in Paraguayan children I told them they had my complete sympathy and if I could find a way around it I would but I cannot ignore the legal problems.
I thought it should have been clear when I referred to "them". I was referring to simple adoptions, not to the children per se. Deputy Woods told me it was a child we were talking about. I could not agree more. This has to be emphasised time and again in this discussion. The child is our major concern and that is so in the whole child care area. I do not have it painted on the wall of my office but it might as well be. The interest of the child is the paramount consideration. We have concern and sympathy for couples who have no children of their own and because of circumstances cannot get a child to adopt in this country. We do our best to assist them but at the end of the day my concern must be the interests of the child.
There is no point in saying I am legalistic and not compassionate as I cannot ignore the realities. There was even a suggestion that I advocated putting pressure on the birth mother in particular and that the Government should not hide behind legal argument. That is nonsense. I am not advocating putting pressure on the birth mother. Anyone in this country who remembers the disclosures a few months ago of the circumstances in which children left this country to go to the United States and elsewhere would strongly resist any suggestion that pressure be put on birth mothers. We know the pressure put on birth mothers in this country to give up their children and I would not advocate that. I would be careful to ensure that would not happen.
I am not going to discuss Deputy Woods' Bill on Chinese adoptions. Most of that Bill was nonsense as I said at the time. It was intrinsically bad. As regards what he said about the Supreme Court, I would remind him that the Government approved my proposals to sort out Chinese adoption problems in March this year, four months before the Supreme Court gave its decision.
The alleged legal difficulties are real and substantial. They have been the subject of detailed consultations with the Attorney General. If we could have found a way around them, as I said, we would have been only too happy to do so.
I am fully aware of the difficulties couples who have been granted a simple adoption abroad encounter in having the children's legal position regularised here. I am aware of the problems Deputy Flaherty and others referred to. Deputy Keogh referred to inheritance problems, the family home and passports. It has not been possible to ascertain the precise number of children who have been brought into this country on the basis of a simple adoption. In the years 1995 and 1996, the Adoption Board received seven applications for the recognition of such adoptions. Five related to Paraguay and two to Mexico. Obviously, not all of the couples granted simple adoptions have applied to the board for recognition. As simple adoptions cannot be recognised here it is vitally important that couples do not apply for them. It has been suggested to me that because of the emotional aspect of adoption, of which I am very aware, couples act with their hearts rather than their heads. I understand why they do that, possibly in similar circumstances I would do the same myself, but this is not acceptable.
The Adoption Board alerts couples to the distinction between simple and full adoptions. It is crucial that adopting couples heed this advice. They must act responsibly and avoid effecting adoptions abroad that do not qualify for recognition under Irish law. In the interests of children who are available for inter-country adoption, it is essential that there should be no doubt about their legal status in the country in which they are to be brought up. The element of certainty and permanence is a crucial one.
I recently met a delegation of parents who have been granted simple adoptions in Paraguay. I am aware of the practical difficulties they are experiencing because of non-recognition of their adoptions. While I have every sympathy for these couples and others who are in a similar situation, I see no way around their problems unless they have their adoptions converted to full adoptions in Paraguay or obtain Irish adoption orders for the children concerned.
I reiterate the legal advice I have received and it is the best available: it is simply not possible to provide for the recognition of simple adoptions here because to do so would be to accord them a legal status beyond that which they have in the countries in which they were effected. I reiterate that if any Member of this committee or the House who can show me a way around these legal problems I would be happy to accept it.
Deputy Flaherty asked about other countries. In other countries, many children in these categories are not allowed into the country at all. They are turned back if they have been through the simple adoption procedure. We have allowed them in but the parents bringing them in are aware of the problem. They ignored the difficulties and I cannot find any way around them.
At the outset I had some sympathy for the Minister of State and the difficulties which he was facing in terms of the law and that is why I asked him not to be unduly concerned with it. Instead, he should think of the care of children and the caring ministry he has which he mentioned. As he went on, I became less and less sympathetic and, eventually, I became quite annoyed.
He said the Government approved the proposals for the Chinese babies in March and they are contained in this Bill. There was a Private Members' Bill in March. What he is saying is that the Government approved the steps we proposed when the Private Members' Bill was going through the House. I said at that time that if he wanted to bring in his own Bill, or measures to deal with that issue urgently, we would withdraw our Bill. But no, he has left it. I said at the time, and it is on the record of the House, that it would be the end of the year before that legislation can or will be passed. It could possibly have been passed a little sooner. I am very disappointed with that. The fact that the Minister was so clear cut and actually had approval at the time is an extraordinary way to deal with an issue of such sensitivity and importance.
My real concern arose when the Minister quoted figures for 1996 in relation to Paraguay and Mexico. He then went on to say that he strongly recommended that couples not apply for such adoptions. How can he do that? People have adopted successfully. The children are here and they are happy. The only thing that is making them unhappy is this Government because it will not take the steps to facilitate them. He may say that this Government cannot find a way to facilitate them. It does not know how to do so. If that is the case then why not accept the amendment which I have tabled? There is a way to do it and it can be done. As Deputy Keogh said, if there is a will there must be a way.
The Minister again offended me when he talked about these parents acting irresponsibly. Working within the legalistic parameters and talking about simple adoptions is not adequate. That is not a solution and it is solutions we are seeking for children who are here from any of these countries and who are experiencing these difficulties. The Minister has admitted that there are real and substantial difficulties in the legal area, in relation to travel, passports and inheritance. There are also difficulties with taxation. The Minister of State should either table an amendment which provides a solution or accept our one.
I am not going to get involved again in a discussion with Deputy Woods on his Bill. He knows my view and time has indicated how right I was when I described it as a nonsense. It was a very badly thought out Bill. There was not even a vehicle through which one could have amended it sufficiently to make sense of it.
It forced the Government to come to a conclusion about the proposals.
It did not.
They made a decision in March. It was very effective in that sense. It was not such a nonsense as you would like to suggest. Would you give up that childish thing of calling everything on the other side of the House a nonsense?
If Deputy Woods wants to believe that, then I am prepared to let him but it is not the reality. I reiterate what I said earlier about people acting responsibly. From now on people should not go abroad to effect simple adoptions in the sure and certain knowledge that these problems will arise. I underline that point. We have looked around to find a solution. The Hague Convention on inter-country adoptions, which Ireland signed on the 19 June with a view to ratifying, is an international legal instrument for improved co-operation. It will provide a procedure for the conversion of simple adoptions into full adoptions in the countries where the adoptive parents live. My amendment is modelled on the provision in question. Unfortunately, the Hague Convention does not make any provision for dealing with simple adoptions which have taken place to date. That is the reality.
Amendment agreed to.
I move amendment No. 7:
In page 10, paragraph (a) (i), to delete lines 43 to 45 and in page 11, to delete lines 1 and 2 and substitute the following:
"‘(b) the adoption has, for so long as it is in force, substantially transferred, under the law of the place where it was effected, to the adopters, the rights and duties of guardianship, or parental authority over the child,',".
Question put.
The Select Committee divided: Tá, 9; Níl, 12.
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Tá |
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Brennan, Matt. |
Moffatt, Tom. |
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Coughlan, Mary. |
Smith, Brendan. |
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Flood, Chris. |
Walsh, Joe. |
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Geoghegan-Quinn, Máire. |
Woods, Michael. |
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Keogh, Helen. |
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Níl |
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Bradford, Paul. |
Hogan, Philip. |
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Costello, Joe. |
Kemmy, Jim. |
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Crowley, Frank. |
Kenny, Seán. |
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Currie, Austin. |
Lynch, Kathleen. |
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Fitzgerald, Frances. |
McGinley, Dinny. |
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Flaherty, Mary. |
Pattison, Séamus. |
Amendment declared lost.
Amendment No. 8 not moved.
Section 10, as amended, agreed to.
Sections 11 to 15, inclusive, agreed to.
NEW SECTIONS.
I move amendment No. 9:
In page 12, before section 16, to insert the following new section:
"16.—Section 3 of the Adoption Act, 1974 is hereby amended by the insertion of the following subsection:
‘(4) Where an adoption would constitute a foreign adoption within the meaning of section 1 of the Adoption Act, 1991, but for its failure to comply with the requirements of paragraph (b) of the definition of "foreign adoption" therein contained, any person whose agreement to the placing of the child for adoption in this country is required under the law of this country shall be deemed to have so consented.'.".
This amendment involves consideration of the same difficulties discussed earlier. It deals with the problems of ordinary adoption decrees under the law of countries such as Paraguay and the other ten countries specified on the list supplied by the Minister. The Minister explained on Second Stage that he was advised that ordinary or simple adoption decrees amount to little more than a custody order and in view of this the revised definition of a foreign adoption will not facilitate the recognition of ordinary or simple adoptions. He had been advised that it is not possible to provide for the recognition of such adoptions because to do so would be to accord them a legal status beyond that which they have in the countries in which they are granted. In other words, recognition of the foreign adoption decree is not possible in such circumstances. We already know about the numerous legal consequences which flow from the recognition or non-recognition of an adoption order. These relate to citizenship, succession and taxation. In many cases the child's entitlement to enter the country may be an issue.
When advising the adoptive parents of Paraguayan children how to overcome these obstacles, the Minister said it is open to Irish residents who have been granted a simple adoption decree to make an application for an Irish adoption order in respect of the child. In other words, rather than having a foreign adoption recognised, the Minister recommended that the adoptive parents apply for an Irish adoption order in respect of the foreign child. However, that is not as straightforward as it sounds.
One of the most important provisions in applying for an adoption order in this context is section 3 of the Adoption Act, 1974. That section allows an applicant for an adoption order to apply to the High Court for an order dispensing with the consent of any person whose consent is otherwise required under our laws. However, that section is currently not available for use in this context because an application cannot be made unless the person whose consent is to be dispensed with has previously agreed to the placing of the child for adoption. Obviously a Paraguayan mother has not agreed that the child be placed for adoption under Irish law because the issue has not arisen. Her agreement has been given for placement or adoption under Paraguayan law.
This amendment proposes that where an adoption would constitute a foreign adoption but for the problem identified by the Minister of State, where the agreement of any person to the placing of the child for adoption under Irish law is required, this should be deemed to have been so agreed. The practical effect of this is that the applicant for the adoption order will then be able to apply to the High Court for an order dispensing with the consent otherwise required for the making of the adoption order. The law already provides that the test for the High Court in determining such an application is the best interests of the child. By enabling applicants for adoption orders in respect of Paraguayan children, for instance, to apply for the dispensing of consent under section 3 of the Adoption Act, 1974, a considerable practical obstacle to the advice of the Minister would be removed.
I have serious reservations about this amendment. Section 3 of the Adoption Act, 1974, was introduced to deal with a situation where a mother who had agreed to the placing of her child for adoption failed or refused to give her consent to the making of an adoption order or withdrew a consent already given. Where such a situation arose before the enactment of the 1974 Act, the child's legal adoption could not be finalised. The introduction of section 3 provided relief to adopting parents who found themselves in this unfortunate situation by enabling them to apply to the High Court for an order authorising the Adoption Board to dispense with the mother's consent to the making of an adoption order in their favour in respect of the child.
It is essential to understand that section 3 of the Adoption Act, 1974, was specifically designed to deal with adoption placements which take place within this jurisdiction. Before a mother places a child with a registered adoption society for adoption, in accordance with section 39 of the Adoption Act, 1952, the society must furnish her with written statement in a prescribed form explaining clearly the effect of an adoption order on her rights and the provisions of the Adoption Acts relating to consent to the making of an adoption order, including the circumstances in which her consent may be dispensed with. The society must ensure that the mother understands the statement and that she signs a document to that effect. The document signed by the mother may be produced at proceedings under section 3 of the 1974 Act as evidence that she agreed to the placing of her child for adoption.
The purpose of this statutory procedure is to ensure that the mother is made aware of and fully understands the legal implications of agreeing to the placing of her child for adoption. Since the question of explaining the legal effect of an Irish adoption order and the provision of Irish adoption law relating to consent does not arise where a person is consenting to the adoption of a child under the law of a foreign country, I fail to see how that person could be deemed to have agreed to the placing of the child for adoption in this country for the purposes of section 3 of the Adoption Act, 1974. The arguments against including such a provision in our adoption laws are overwhelming. In the circumstances I urge Deputy Keogh to withdraw her amendment.
We are back to the legal labyrinth. This amendment admits some of the points the Minister has made. Section 3 of the Adoption Act allows an applicant for an adoption order to apply to the High Court for an order dispensing with the consent of any person whose consent is otherwise required under our law, but that is not available for use in this context. We should link this issue to the best interests of the child, which is a test before the High Court. I submit that that would constitute sufficient protection for the rights of those involved. This is an effort to solve the difficulty in which we find ourselves.
Deputy Keogh may find herself in a morass or a labyrinth but my position is absolutely clear on the legal advice I have been given. It is neither a morass nor a labyrinth, it is the reality.
The Minister says that no matter what proposals are made, his legal advice will not go along with it. The Minister is here to provide us with solutions, we are not supposed to provide him with solutions. Each one of us has a secretary. The Minister has the expertise of the Attorney General and the Attorney General's office, a very distinguished office, a practical and experienced office not just in terms of the narrow legalistic approach but also for solving problems. The Attorney General is a man of the world. He has solved problems for people in business, including high profile matters which became the business of this House. He has found solutions, not always narrow legalistic solutions, for people in a whole range of circumstances.
Deputy Keogh and I have come up with different approaches but the Minister is not coming up with anything positive. He is being negative; he is not solving the problem. He is going so far as to tell people not to adopt these children, which is a pretty horrific approach. We want solutions from the Minister. If he does not accept the solutions we put forward, the onus is on him to come forward with a solution. He will have failed in his duty if he cannot find one; the Government will be failing in its duty if it cannot find a solution. We need a solution. These children want a solution to this problem, even if it is not a comprehensive one. They want to be able to travel, to inherit, to have the benefits of education, etc. as any other child. They want all these things and arrangements should be made to provide them. If one attends a drugs meeting with 800 people present, they do not want labyrinthine details but solutions.
This is what we are seeking here and why we are pressing different amendments which propose different solutions. The Minister of State continues to stonewall. He offers no hope to the children concerned, which is unacceptable. These children deserve our attention and sympathetic, sensitive care. If he does not see solutions in what we propose I urge him to return on Report Stage with a workable solution to this difficulty. Deputy Keogh and I accept that this is a difficult issue. The Minister of State likes to be disparaging and laugh at amendments proposed by the Opposition, as he has done here today. This is unacceptable.
It is insufficient to tell people not to adopt children in the first instance. We want a solution and we want the Minister of State to return on Report Stage with workable and practical proposals that will solve the problem these children face at present and which other children will face in the not too distant future.
I am surprised at the suggestion by Deputy Woods that I laugh at or disparage amendments proposed by the Opposition. This is not the case. I have accepted one amendment and half accepted another.
Governments must do their best to provide solutions. Our committee system is an example of participatory democracy where the Opposition can propose amendments, as it has done today, and suggest solutions and ways around difficulties to which Ministers, if they have any sense of responsibility, as I have, will listen.
However, this trouble stares us in the face. Does Deputy Woods suggest that we open the gates and do not have any rules or regulations? Does he suggest that we dispense with the law? If we did that the children would suffer.
The Deputy was not present at the recent conference in Stockholm which I attended. I listened carefully to reports of the abuse of children around the world and the ways in which the law is flouted. It was a successful conference and it put the issue of the abuse of children and child sex tourism up the agenda in European and international terms.
However, we were warned to be careful about inter-country adoptions and the way in which such adoptions are being abused in some parts of the world. I cannot dispense, therefore, with the well thought out legislation we have had in place for a considerable time.
My paramount consideration is the welfare of the children involved. I must also be concerned about the position of birth parents, especially birth mothers and with those who bring these children into the country although my highest priority is not for them, especially after today when they have been warned about the situation and after it has been spelt out, but to protect the position of the children.
I have already explained that, from a public policy point of view, it is not possible to recognise simple adoptions and that in the future prospective adopters should not effect simple adoptions. I reiterate that I am keen to find a solution to these difficulties and a way around the legal and other problems which I cannot ignore. I told the representatives of the Paraguayan children that this was my position.
I recognise the practical difficulties for couples who have already adopted children from abroad under simple adoption procedures. I will look, with the greatest sympathy, at the practical problems concerning passports, inheritance and the other problems for those children already living here. I will try to find some way in which this situation can be ameliorated and, if possible, I will only be too glad to advise on this on Report Stage.
The type of amendment I proposed seeks to ensure the utmost protection for the child in this case. I do not know if, in this instance, it is helpful to talk about child abuse and so on. While it is a concern it is not specific to the type of protection that we are trying to allow here.
The objective is that there would be a test before the High Court as far as these children and their parents are concerned. It is also paramount to provide the utmost protection for these children. This is why I proposed this amendment. It attempts to use what is already in existence, and recognised, and to take it a step further.
The Minister of State rightly said that there is a huge problem here. Whereas perhaps people will heed his warning about seeking to adopt children where only a simple adoption process is possible, the reality is that there are now children in the state of limbo. What are we to do with these children? What about the practical difficulties that arise?
The Minister of State said he would re-examine the matter before Report Stage. This issue must be addressed because, if not, this mess will not go away. It must be resolved. I understood the term "limbo" had been abolished in theological terms and we cannot reestablish it in this Bill. I was going to press this amendment but I will withdraw it and reintroduce it on Report Stage. I will re-examine this difficulty in light of the Minister's response and try to find a better solution. Perhaps the Minister could seek more advice on the matter. I am unhappy to tell people we cannot find a solution to this problem. That is the worst of all worlds.
The Deputy is no happier than I am.
I accept that and I know the Minister was sympathetic when he met them. This affects only a small number of people but it must be solved. The Minister might say it is wrong to try to adopt children from countries where procedures cannot be put in place but, unfortunately, some families have already done so and it would be unthinkable to separate them. Some people are afraid that will happen. It is also unthinkable that a child cannot be part of a family, which is extremely important. I will withdraw my amendment and table it again on Report Stage.
I welcome the Minister's commitment to look at the practical and legal difficulties for the groups involved before Report Stage. This Bill will also be discussed in the Seanad. When I spoke on Deputy Woods' amendment I said it might require some second ad hoc adoption package. The Minister mentioned the protection of children, which is important. The Minister said the two mechanisms are a full adoption order or a plenary adoption order. Are there any figures to show how many people successfully adopt children using these methods?
The Minister indicated that many countries do not allow children to be adopted under simple adoptions. What legal mechanisms allow for that? Have we thought about adoptions in seven or eight years' time? What can be done in relation to people who have lived here for eight, nine or ten years? Perhaps the Minister might have some information on these areas.
I do not have the figures with me, but I will ask the Adoption Board to send them to me. I would have thought the Adoption Act, 1991, meant there would not be a large number.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 12, before section 16, to insert the following new section:
"16.—(1) There shall be maintained by the Board a register to be known as the Voluntary Contact Register.
(2) The said register shall contain—
(a) in a section to be known as Part A, such details as may be prescribed in regulations made by the Minister of the identity of birth mothers and fathers and their children in respect of whom adoption orders have been made by the Board or in respect of whom an entry has been made in the Register of Foreign Adoptions;
(b) in a section to be known as Part B, such details as may be prescribed in regulations made by the Minister of the identity of the adoptive parents and their adoptive children in respect of whom adoption orders have been made by the Board or in respect of whom an entry has been made in the Register of Foreign Adoptions;
(c) no details of the birth mothers shall be entered in Part A of the register, or disclosed therefrom, without her written consent;
(d) no details of the birth father shall be entered in Part A of the register, or disclosed therefrom, without his written consent;
(e) no details of the adoptive parents shall be entered in Part B of the register, or disclosed therefrom, without their written consent;
(f) no details of a child shall be disclosed from Part A or Part B without the written consent of the child once he or she has reached the age of eighteen, or in all other cases, without the written consent of his or her adoptive parents;
(g) where a person who is the subject of an entry in one part of the register consents in writing to details of the entry being disclosed to a person who is the subject of an entry in another part of the register, then the fact of such consent shall be registered in that other part of the register.".
This amendment seeks to insert a new section in the Bill to provide for the establishment of a voluntary contact register. We have had considerable debate on this issue, particularly when we heard about the children who were adopted by American families in the United States and whose names were changed. This contact register has been promised for a long time and the Minister referred to it on Second Stage. I tabled this amendment to push this process forward. A previous Minister for Health, Deputy Howlin, also promised to set up a contact register.
Subsection (2) (e) provides that a person may register their consent to their details being disclosed to another person who is registered in another Part. A natural mother, for example, registered in Part A may cause to be registered in Part B the fact that she is consenting to details of her entry being disclosed to the adoptive child. It will then be open to the child to inspect those details if he or she wishes to register their own consent to the birth mother inspecting their details. There should be a voluntary register and the birth mother should be able to contact her children if they so wish.
I would like to hear the Minister's response because I do not know what progress he has made on a voluntary contact register.
The establishment of a comprehensive legal framework for post adoption contact between birth parents and adoptive persons and access to birth records is a priority of the Government. However, as I stated in the Seanad on 26 June this year, the Circuit Court has stated the consultative case to the Supreme Court dealing with the right of children who were informally adopted in this country prior to the enactment of adoption legislation to know the identity of their natural parents. The judge in the case has referred a number of questions to the Supreme Court for decision, such as whether the natural child has a constitutional right to know the identity of his or her natural parents and if there is a constitutional or legal right to the information sought on the part of the child, on the one hand, and a constitutional or legal right to nondisclosure on the part of the birth mother, on the other hand. Which right should prevail?
Pending the outcome of the case before the Supreme Court, I announced I was proceeding with the establishment on an administrative basis of an adoption contact register to assist adoptees and birth mothers who wish to be put in touch with one another. I met the Adoption Board to discuss the establishment of a voluntary contact register and my Department is developing proposals in this regard. I am aware of the anxiety of many adoptees to obtain information in relation to their birth parents and their desire to know more of their natural identities.
I am also aware that many birth parents wish to make contact with the children they gave up for adoption many years previously, sometimes in very traumatic circumstances, to find out how their children have developed since then. These are natural, heartfelt desires to which we are all sympathetic. My Department is currently developing proposals for the establishment of a voluntary contact register on an administrative basis. It is my firm intention to introduce legislation to provide a comprehensive framework for post adoption contact and access to birth records once the complex legal and constitutional issues involved have been clarified. It would seem prudent to proceed on an administrative basis pending clarification of the difficult issues involved and, once such issues have been clarified, to deal comprehensively in legislation with the many sensitive and deeply personal issues involved relating to access to birth records and post adoption contact.
I am, therefore, opposing the proposed amendment as it will result in a piecemeal legislative approach. In any event, the register envisaged by the Deputy could be established on an administrative basis which is what I am currently proceeding to do. The Deputy's amendment is the wrong vehicle and is unnecessary.
At what stage is the Minister in this administrative procedure? How soon after the constitutional elements are clarified, assuming they will be, can the Minister proceed with a voluntary contact register?
The setting up of a voluntary contact register on an administrative basis is at an advanced stage. To answer the second part of the question, I do not know when the Supreme Court will deal with the issues or what the result will be. I do know, because I, my officials and others have seriously considered it, that there are issues involved where the Supreme Court could be helpful. I am lucky or unlucky enough to have to deal with a number of very sensitive issues in a number of areas, but the most sensitive issue is where there are two competing rights. There is the right of adopted children to know as much as possible about their backgrounds and parentage, particularly in circumstances where medical records are so important today. These children have an obvious desire to know about themselves. On the other hand, there are birth mothers who gave up their children in traumatic circumstances in many cases, where they received a pledge of total confidentiality. In many cases, they have not told their husbands and children they had another child. This is an extremely sensitive issue.
There are legal implications and, as far as I am concerned, it would be imprudent to introduce legislation on this matter without the benefit of the Supreme Court decision. It will be my intention to proceed with this as quickly as possible in the particular circumstances of the case.
As the Minister will know, I also put forward a proposal for a voluntary contact register in March. There is a widespread demand for it. I am glad the Minister is pursuing the matter on an administrative basis. I urge him to proceed as quickly as possible. I have been involved in a number of cases where the mother had not told the father of the situation and when she eventually did, she was overjoyed at the way it worked out. It was a great relief after many years. It is an extremely sensitive issue when the two rights are balanced: the right to privacy and confidentiality genuinely and freely entered into and the right of the child to know its parents. I look forward to the Supreme Court's decision on that issue. It will be interesting but there will be practical difficulties arising from it. I support Deputy Keogh in her attempt to bring forward the voluntary register as early as possible.
I was uncertain the Minister would accept the amendment, but it is important to put down a marker to ensure we pursue this. I am glad to hear the Minister of State say that the administrative side of the matter is proceeding apace. The result of the constitutional case will be interesting because it is a fine balance as to which of the rights should be upheld. I can foresee enormous difficulties. The trauma experienced by a woman who discovers that someone had demanded to know of her would be enormous. On balance, I believe that confidentiality should be upheld. The outcome of the case will be interesting. I am glad to hear part of the Minister's response. It is something I will pursue and, once the result of the case is known, we may revisit it. Perhaps the Minister will then bring forward his legislation.
I am interested in the development of the voluntary register. Which body or court took the case for clarification to the Supreme Court?
The Circuit Court.
Did that arise out of hearing a case? I have a different view from that of Deputy Keogh. None of us are Supreme Court judges which is probably just as well, but it might indicate the difficulties in reaching agreement. I believe the absolute primary right is that of the child to know. While confidentiality may be desirable, the other right seems to me far superior. I have seen situations where relationships buried in the past were reawakened. We have heard plenty about that on the media. It may not work out for everyone, but for many people it is an enriching and expanding experience in their lives. One does not have the right to hide from it. I am glad that everybody accepts the sensitivity of the issue. I look forward with some anticipation to the Supreme Court's decision.
Amendment, by leave, withdrawn.
Question proposed: "That section 16 stand part of the Bill."
Section 16 states:
Sections 2 to 9 of this Act shall come into operation on the day that is ninety days after the date of the passing of this Act.
Why 90 days? This will affect the Chinese babies. The first ones affect the Keegan case.
That is right.
Three months before they come into operation seems like a long time. Why is it so?
It is to give the Adoption Board time to make the necessary rules governing the new procedures for consulting the fathers of children proposed for adoption, and to give the adoption agencies an opportunity to put in place arrangements for operating the new procedures.
It still seems like a long time since the issue has been before the Committee and will be debated in the House. Could they not start now? Following Report and Final Stages the Bill will go to the Seanad. The clock could start ticking now.
Question put and agreed to.
Section 17 agreed to.
Title agreed to.
I propose the following draft report:
The Select Committee has considered the Bill and made amendments thereto. The Bill, as amended, is report to the Dáil.
Is that agreed?
Report agreed to.
Ordered to report to the Dáil accordingly.
I thank the Minister of State, Deputy Currie, his officials, Ms Frances Spillane and Mr. Bernard Carey, and Members who took part in the discussion for their contributions.
The Select Committee adjourned at 6.25 p.m.