Committee on Finance. - Adoption Bill, 1952—Committee.
Sections 1 and 2 agreed to.
SECTION 3.
Mr. O'Higgins
I move amendment No. 1:—
In line 29 before "grandparent" to insert "natural".
I am moving the amendment really for the purpose of seeking some information from the Minister. There is a definition in Section 3 of "relative". What I am concerned with is the application of that definition to an illegitimate child. It occurs to me that there should be some clearer way of ensuring that the relationship, in the case of illegitimacy, should be traced through the natural mother, or through the relations of the natural mother. Possibly, the amendment I have suggested is not very happily worded, but I do suggest to the Minister that it should be made clear in the wording of the definition that "relative" would cover those who under the law have no relations as is the position of a person born illegitimate. If the insertion of the word "natural" does not meet the case, I would suggest that some provision should be inserted in the Bill whereby, in the case of an illegitimate child, "relative" should cover the person who would be a relative if that child had been born legitimate. However, I am in the Minister's hands in the matter.
Mr. Boland
We discussed this matter with the parliamentary draftsman, and he is satisfied that the last line—"relationship to an illegitimate child being traced through the mother only"—makes it clear, for the purpose of this Bill, that a relative of the mother is recognised as a relative of the child. The parliamentary draftsman is quite satisfied about that.
Mr. O'Higgins
Would the Minister report this point of view? I know it is the intention in the definition, and particularly in the concluding words of it, that "relative" should cover the people who would be relatives if the child had been born in wedlock. That is the clear intention. But we are legislating now in relation to a class of individuals who, at the moment, are regarded as being outside the law in relation to succession, relationship, and so on. The mere inclusion in the definition section of "relative" or the words "relationship to an illegitimate child being traced through the mother only" does not cure the position unless you provide positively that the illegitimate child shall, for the purposes of this Act, have relatives as set out in the definition section. Perhaps the Minister might discuss that matter.
Mr. Boland
I certainly will. We want to make it as water-tight as possible. That is the information I have got so far.
Amendment, by leave, withdrawn.
Question proposed: "That Section 3 stand part of the Bill."
Could the Minister say why "board of assistance" is not included in the definition of "guardian"?
Mr. Boland
The position is that the consent is required and the consent of the board of guardians or public assistance authorities would be required. They are the people who have control of the guardian.
I do not think that meets my point. I am thinking of a foundling or some child like that. In order to cover the case of a foundling, I think "a board of assistance" should be included in the definition of "guardian".
The Minister could look into that.
Mr. Boland
I will look into that to see if it is necessary. This is the first effort and there is no doubt that, as we go along, various matters will arise.
Question put and agreed to.
Section 4 agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
Would the Minister consider placing the rules before the House and having them approved by the House?
Mr. Boland
I do not see any objection to that. I will look into that and see if there is any objection.
They could be laid on the Table of the House in the ordinary way.
Mr. Boland
I have no objection to that.
Question put and agreed to.
Sections 6 and 7 agreed to.
SECTION 8.
Amendments Nos. 2, 3 and 4 may be discussed together as they are similar in principle.
Amendment No. 2 not moved.
I move amendment No. 3:—
In sub-section (2), line 22, after "members" to add "at least half of whom shall be women."
I am anxious that a number of the members of this board should be women. They would have a special point of view which could be expressed best by women and which in fact in many circumstances, perhaps, could be expressed only by women. In another amendment I make the suggestion that the Government should select women from various societies which deal largely with women's and children's problems. I would be interested to know the Minister's view on it.
I, too, would like to urge the Minister to include women on the board. There is an amendment down in my name and in the name of a member of the Dublin Board of Assistance, to include at least two women on this board. I support the proposal which has been made by Deputy Dockrell.
I think that a matter like this should be left open. My own personal experience of boards —Deputy Dr. ffrench-O'Carroll may have had the same experience—is that you want to get the people who will try to do the work. It does not matter what their sex is. I would not like to tie the Minister's hands by saying that he must put two women on the board, and he may have to go around the whole country trying to get two women who would be suitable, when he may have two excellent men available, and vice versa. He might form a board composed entirely of women. If the Minister has suitable women to put on the board, he will surely put them on. If he were to appoint a board of women only, I do not suppose any of us would have any objection. It being as it were experimental, I do not like the rigidity of saying that you must put on two women because, if you do that, every Minister will say: “We will have to get two women and we will put four men on the board”, whereas, if it were left open, it might be one man and three women.
Mr. Boland
Deputy Cowan has made my case. I do not think we should tie our hands in this matter. The Government will have to appoint the board. I am certain that, as far as this Government is concerned, we will try to get the best people. As Deputy Cowan says, there may be three or four women on the board, if there happen to be more suitable women than men available. I cannot conceive of a board without having women on it in a matter of this kind, but I do not think it is right to tie our hands.
I would not be anxious to tie the Minister's hands nor would the women's societies be anxious to do so. Provided that the Minister is prepared to start off having some women on the board, that meets the case.
Mr. Boland
I am surprised that somebody did not put down an amendment proposing that there should be two men on the board.
Mr. Boland
I did not like to say that. I do not think it would be right to discriminate. I think the Deputy will take my assurance, as far as this Government is concerned, that if we can get two suitable women, they will go on the board.
Women doing social work, nursing and so on have a much wider experience of the background and the circumstances of such cases as might be dealt with by the board than men.
Mr. Boland
As a rule, I would say so.
Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
I move amendment No. 5:—
In sub-section (3), line 24, after "Government" to add "and the Government in making these appointments shall invite nominations from such societies as the National Society for the Prevention of Cruelty to Children and the Joint Committee of Women's Societies and Social Workers".
This amendment falls to the ground by the withdrawal of the earlier amendment. I would like the Minister to bear in mind the National Society for Prevention of Cruelty to Children and the Joint Committee of Women's Societies and Social Workers.
Mr. Boland
Naturally, we will consider every name that is suggested to us. We are not going to be bound by any of these societies or anyone else. That could not be expected.
If the Minister invites nominations from anyone, they should be invited from the Adoption Society of Ireland.
Mr. Boland
The Minister will have a difficult job when he starts to accept nominations or recommendations.
Mr. Boland
That is why the selection is passed on to the Government, as Deputies will see in the Bill.
Amendment, by leave, withdrawn.
Question proposed: "That Section 8 stand part of the Bill."
Mr. O'Higgins
Could the Minister say what it is intended to do in relation to the Chairman of An Bord Uchtála? Is it intended he should be a whole-time officer for the period for which he is appointed and, if so, will he be remunerated accordingly? If the Minister would give us some information on that point, it might be of assistance to the House.
Mr. Boland
I am afraid I am not in a position to do that yet. We are not quite sure what the volume of work will be. It may be necessary to have a whole-time chairman and, if so, he will have to be paid an appropriate salary. We shall need some time to consider that.
The Government ought to consider appointing a whole-time chairman. Apart altogether from the day-to-day work, the chairman who is appointed, particularly in the experimental stages, should have time to make a study of this type of work in a great number of countries and should be able to build up a library of valuable information for future guidance. The Government should seriously consider the appointment of a whole-time chairman.
Mr. Boland
That was in mind, but we have not definitely decided.
Mr. O'Higgins
I agree with what Deputy Cowan said. It is important in the initial stages, anyway, as there will be a considerable amount of work to be done. Maybe in four or five years' time this matter may call for very little work, but in the next three or four years there will be a considerable amount of work. Whatever the Government may decide about a whole-time officer, some provision should be made whereby it is the duty of the chairman to present a report to the Minister in the next 12 months or two years on the working of the legislation itself. The Minister will concede that there will be many matters which must be remedied, and we can remedy them here only if we have a report by the chairman who operates the legislation. I suggest that some provision for that should be put into the section.
Yes, I think it should be an annual report.
Mr. Boland
We have made provision for that. Section 13 of the First Schedule says that the board shall after one year publish a report.
Question put and agreed to.
Section 9 agreed to.
SECTION 10.
I move amendment No. 6:—
In paragraph (b), line 40, before "and" where it secondly occurs to insert "unless in special circumstances, when adoption orders for children over seven years of age may be made at the discretion of the board."
This is really following the same lines as the objection to my amendment on an earlier section. I move this so that the board's hands may not be tied too much. There may be special circumstances in which it would be advisable for the board to be able to adopt a child over seven years of age. You cannot really fix any line and say that a child is over age and cannot be adopted—certainly not in the neighbourhood of seven. To leave the board's hands free would be the wisest thing to do.
I would like the board to have power to allow the adoption of children in certain cases over the age of 16. The reason I am asking that is that the board of assistance stops the payment to a foster mother when the child reaches 16. I think this board should allow a foster mother to adopt over the age of 16 and I would press the Minister to do that.
There is something in that point about boarded-out children and I would ask the Minister to consider it.
Mr. Boland
The whole idea of seven years is that at that age children are said to come to the use of reason. The idea is that an adopted child ought to be brought up as one of the family and consider itself as such.
A boarded-out child is usually brought up as one of the family, but the mother may not be able to afford it.
Mr. Boland
I suppose that the present system can continue, that is, that informally the adoption can go on and the board of assistance can continue that. The whole pressure on us to bring in this Bill was to provide a home for the children, to have them brought up in such a way as to feel they were actually members of the family. I think it is generally accepted that at seven years they come to the use of reason. After that a child will definitely know that it is not really one of the family. That is the way I feel about it. We have gone into this very carefully and I think this is good enough. There is no interference with present arrangements of people who want to go on informally. They have legal adoption under this which is reasonable. If we go over seven, it would be going too far and, of course, one could not go to anything like 16. It is not easy to argue the matter, but I have an instinctive feeling that this is the right line and that seven is generally acceptable.
This is not put from the point of view of getting them into a home, but from that of legalising the situation. There might be an informal adoption and circumstances which would render it necessary to legalise that adoption. It might mean great hardship if that were left too late. The board might wish very much that it had these powers.
Mr. Boland
Is the Deputy adverting to the fact that, in existing cases, they can go up to 21 years of age? That is provided for in the Bill. Surely, in the future, if young children are being boarded out, they will be taken before seven. The type of children generally boarded out are boarded out at a very early age.
Let us consider children who are boarded out at the moment. Suppose that a child is over seven and that the people had no idea of legal adoption until this Bill was brought in. Suppose the child is nine or ten years of age at present. That is not an adoption if the person is paid by the board of assistance to keep the child. Very often the foster-parents keep the children after the term of boarding out has expired.
Mr. Boland
I think we could provide for that. I do not see any objection to doing that. They must have been boarded out before they were seven, but even if they were up to 20 years of age now, we would provide for that matter. If the boarded-out children are not included, I will see that that will be done. I am not quite sure of the position.
I think that what Deputy M.E. Dockrell and Deputy McGrath have in mind are the consequences that flow from adoption in regard to the acquisition of property.
I think that what the Minister says would meet that point.
I was not thinking of it from the point of view of somebody who wants us to adopt a child of nine or ten years of age. Where a child has lived with a family for a long time and, through some circumstances, was not adopted, it might be necessary to adopt it in order to enable it to continue to live in that family. Obviously, it would be a hardship if it were not possible for that child to be legally adopted. That is a point I should like to cover, if possible.
Mr. O'Higgins
My opinion in relation to the Bill itself is that this amendment is unwise. With regard to the age of the child to be adopted— apart altogether from the class which should be adopted—I think it is unwise to make the provision too rigid. It is far wiser to have some flexible rule, while laying down a policy. I suggest that some amendment along the lines suggested by Deputy M.E. Dockrell would, in the final analysis, be wiser. It would ensure that the board would have the right, if they so wished in the extreme case of providing for the adoption of a child over seven. At the same time, the common-sense policy enunciated by the Minister that adoption should only be for children over six months and under seven years could be operated. At the beginning of this experimental measure there will be a number of cases where the canons of justice will dictate adoption, but who cannot be adopted if there is a statutory limit of seven years—cases not merely of boarded-out children. I am sure Deputies can imagine other types of cases in which injustice might possibly be inflicted upon children. I suggest the Minister should not draft the section too rigidly. I hope he will provide some flexible section which will enable the board in an extreme case to adopt beyond the age limit.
Mr. Boland
The trouble about flexibility is that it would become the rule.
That would depend on the board.
Mr. Boland
I will consider the amendment.
Amendment, by leave, withdrawn.
Section put and agreed to.
SECTION 11.
I move amendment No. 7:—
Before sub-section (2), to insert a new sub-section as follows:—
(2) In the case of a single woman applicant an adoption order may, notwithstanding anything contained in sub-section (1) of this section, be made at the discretion of the board.
In certain circumstances it might be advisable that a single woman applicant would be allowed to adopt a child, at the discretion of the board. Again, this is to allow for flexibility.
Mr. Boland
The object of the board will be to place the child in a family. A single woman rarely has a family of which the adopted child may become a part.
If the Minister stipulated a certain age, it might do a lot of good and make for happy homes.
Mr. Boland
We would allow widows to do it.
Mr. O'Higgins
Mr. Boland
I would be more against including a widow than against including a single woman.
Mr. Lynch
I think it would be unwise to include a single woman. A single woman is more flexible in her outlook in the course of her life. If she takes unto herself a husband, the husband may not feel the same affection for the adopted infant that she has for it. I think it would be better to leave the section as it is.
Mr. Boland
A widow could marry again, too.
I am opposed to this amendment. I agree with what Deputy Lynch has said. I do not think it is necessary to cover such circumstances at all. In fact, I think it would be undesirable to do so.
Amendment, by leave, withdrawn.
I move amendment No. 8:—
In sub-section (3), line 6, to delete "each" and substitute "one".
This amendment applies to a married couple. I want to delete the word "each" and substitute "one".
Mr. Boland
The idea was to have a certain gap of years between the adopted child and the adopters. I think it is objectionable to have them too near an age. That is why we stipulated the age of seven for a child and 30 years for the adopter or adopters. There is then a difference of 23 years. The adopted child would feel that the adopters were its seniors. If the wife or the husband of the adopter were too young the child might not feel the same relationship. That is why we wanted to have 30 years, except where either of the adopters was the parent. Then the age would be 21.
I think it would be unwise to allow the amendment.
Mr. Boland
I think we should have to ensure a good difference of age between the adopters and the adopted child.
Amendment, by leave, withdrawn.
Mr. O'Higgins
I move amendment No. 9:—
To delete sub-section (5) and substitute the following sub-section:—
(5) An adoption order shall not be made unless the applicant is an Irish citizen or in the case of an application by a married couple unless the husband is an Irish citizen.
Amendments Nos. 9 and 10 may be discussed together.
Mr. O'Higgins
Amendment No. 9, which stands in my name, is really a drafting amendment. I am in the Minister's hands in relation to it. I think that the way the matter is set out in the Bill is not a very happy way of putting what is obviously intended.
Mr. Boland
I was looking at the wrong one.
Mr. O'Higgins
Mr. Boland
It is a drafting point. I will have the matter looked into.
On sub-section (5), could the Minister tell us whether, in the event of an Irish girl marrying a non-national, she loses her Irish nationality under the Constitution?
Mr. Boland
Amendment, by leave, withdrawn.
I move amendment No. 10:—
To add at the end of sub-section (5) the following:—
"and a husband shall be deemed to be an Irish citizen if he has been residing in the State for three years prior to the application for an adoption order and intends to reside permanently in the State".
Where a person has been residing in the State for three years prior to the application for an adoption order and providing the applicant intends then permanently to reside in the State, they should have power to adopt a child.
Mr. Lynch
I think that point is already covered in legislation. If the person is sincere about securing Irish nationality, he has a right to apply under the Nationality and Citizenship Act. If he is married to an Irish girl he may be nationalised after two years' residence within the State. If he is sincere about becoming an Irish citizen, he will have applied, after the two years is up, having married an Irish girl. I do not think it necessary to push that.
I disagree with the amendment. It makes the obtaining of Irish nationality far too simple. I do not see why nationality should not be applied for in the ordinary way. I think it would be very unwise to adopt this amendment.
Mr. Lynch
If he has been residing here three years and, assuming that he has been married for the full three years, he would be entitled to apply for citizenship and would be granted citizenship, I take it, after the two years.
I thought it was five years.
Mr. Lynch
Five if he were not married.
If married to an Irish citizen.
That is only if he is married to an Irish citizen.
Mr. Boland
This is badly drafted. There may be people here who do not want to become Irish citizens. There might be a point there. I think we might make provisions for cases of that kind. There might be people living here all their lives who feel they are still British. I can see a point there. I could consider that point. We might extend the period to five years.
A genuine resident should be given the opportunity of being able to adopt a child here.
Mr. Boland
That does not mean that the conditions for obtaining Irish citizenship will be relaxed?
Mr. Boland
Mr. O'Higgins
It is only to prevent Hollywood film stars.
Amendment, by leave, withdrawn.
Section 11 agreed to.
SECTION 12.
Mr. O'Higgins
I move amendment No. 11:—
In sub-section (2), line 24, before "or" to insert "if of the same religion as the child and, if not of the same religion, of the same religion as the child".
This is an amendment to sub-section (2). Sub-section (2) provides in relation to the conditions that are to apply before the making of an adoption order that the "applicant or applicants shall be of the same religion as the child and his parents or, if the child is illegitimate, his mother".
It does seem to me that the sub-section does not envisage the case where the child may be of a different religion to the parents or one of the parents. In those circumstances, I would suggest to the Minister that an adoption order only be made if the adopters have the same religion as the child, — the religion of the child as defined later in the Bill. There may be cases where the child may not have the same religion or may not be deemed to have the same religion as both parents. I would suggest that that particular case should be covered by accepting as the rule the religion of the child.
Mr. Boland
I suppose this is the most delicate section in the whole Bill. Sub-section (6) was accepted by all the churches. We presented it and they found it acceptable. As far as I can see, we have got to have something on the Report Stage about sub-section (6). I do not like to touch the other part because it is well covered.
Mr. O'Higgins
Would the Minister hear me on one particular kind of case? If you have, as you may have, a marriage between two people who profess different religions the child probably professes the religion of one of the parents. In those circumstances, suppose an adoption order was sought it could not be given under the section as it stands. To make an adoption Order permissible under the section, you must have the religion of the adopting parents and the child's exactly the same. The section does not deal with that case. One of the parents of the child may be of a different religion. I think that should be considered.
Mr. Boland
That is so. It will be very difficult to deal with that. As the Bill stands now, it appears that the child cannot be legally adopted.
Mr. O'Higgins
Was the matter considered?
Mr. Boland
It was. It is the most delicate section in the whole Bill. As I mentioned, I can bring in an amendment on the Report Stage. The Church of Ireland has not decided what would suit it. We will move an amendment on the Report Stage dealing with sub-section (6).
Amendment, by leave withdrawn.
Mr. O'Higgins
I move amendment No. 12:—
In sub-section (5), line 30, before "if" to insert "mother or child".
The purpose of this amendment is to ensure that the position of the mother should be considered. As the sub-section stands at the moment, the position is that the "board shall have discretion to dispense with the condition as to the religion of a parent if unable to ascertain". The same thing may apply to the position of the mother and I suggest that that should be considered.
Mr. Boland
The mother is the parent, surely.
Mr. O'Higgins
I am sorry, the mother or child. It may be that in relation to the child it is not possible to ascertain the religion. The board should have discretion in the matter.
Mr. Boland
If you look at the sub-section before you, you will see that the religion of the child is that in which he is being brought up.
Mr. O'Higgins
Suppose it is not possible to know.
Mr. Lynch
In that case the Act provides that it shall be presumed to be a Catholic.
Mr. Boland
Mr. O'Higgins
That is in a Bill which is not before the House.
Mr. Boland
I think there is general agreement on that point. The majority of the population are Catholics.
Mr. O'Higgins
It may be that it might not be possible to ascertain the religion the child was brought up in.
Amendment, by leave, withdrawn.
Sections 12 and 13 agreed to.
SECTION 14.
Mr. O'Higgins
I move amendment No. 13:—
To add to the section a new sub-section as follows:—
(7) The board shall not act upon the consent of any person whose consent is necessary under this section unless the board is satisfied that such consent was voluntarily given with full knowledge of the consequences.
This is one of the matters which, in my opinion, give some anxiety in relation to any measure for legal adoption. While we can all see the desirability of providing for legal adoption, we are sometimes inclined to lose sight of the safeguards that must apply in such a measure. One of them that has been present to the Minister and the Government is the provision for the consent of the different persons set out in the Bill now before the House. My purpose in moving this amendment, which I must say, is not very happily worded, is to ensure that the consent provided for in Section 14 is a consent not merely given under the stress of a particular pressing need, but one given with a full knowledge of all the circumstances and all the consequences. I do not think that merely providing that the consent must be voluntarily given is any safeguard. Consent can be given voluntarily, but in complete ignorance. I suggest to the Minister that some provision, though not as I have set down here, should be inserted to make it quite clear that an adoption order being based on a consent can only operate if the consent is one given not merely voluntarily, but in the absolute knowledge of the circumstances and consequences.
Mr. Boland
I feel the next section makes that pretty safe. In my view, Sections 14 and 15 ensure the person concerned will be fully informed, and not rushed into any decision because there is plenty of time allowed. Sub-section (1) of Section 15 reads:—
A consent shall not be valid unless it is given after the child has attained the age of six months and within three months of the application for adoption.
Sub-section (3) of this section reads:—
The board shall satisfy itself that every person whose consent is necessary and has not been dispensed with has given consent and understands the nature and effect of the adoption order.
That gives every safeguard.
Mr. Boland
I do not think you can improve on that.
Mr. O'Higgins
I want to follow this up. I am aware of the provisions of Section 15, which merely repeat that consent is necessary. It is the manner in which the consent is given that concerns me. We are all aware of what used to be the offence of murder in this country—the destruction by a mother of her child. Until 18 months ago or two years ago, this was looked on as an offence of murder. It was never treated as such by the courts because of circumstances which were well known. It was known that in a certain set of circumstances a mother would not act sanely. The same thing undoubtedly applies if the period of time should be far greater in relation to getting rid of an unwelcome child. I do not think that the fact of providing that an adoption order can only be made six months after the birth, and that it can only be made on the written consent of the mother, is enough. I feel the onus should be put on the board to inquire into the consent itself, and to go behind the written document and satisfy itself, on evidence, that the mother who seeks to get rid of her child knows what she is doing. As I said on the Second Reading of the Bill, we can well imagine circumstances in which a mother is starving or in poor circumstances and who, by reason of her poor circumstances, wants to find a good home for her child.
Under circumstances of that kind, she would be willing to alienate her rights to her child by providing for adoption. However, starvation, or circumstances leading to starvation, do not imply a full or free consent to the adoption of a child. If we provide that a mother who alienates her rights to her child does it for all time, as she should if there is to be a proper protection for a family, we should put the onus on the board to go behind any mere document of consent, to examine the circumstances in which the consent was given and satisfy itself that the consent is not merely a voluntarily one but that it is also given in full knowledge of the consequences and of the circumstances. I do not think that Section 15 provides the answer.
Mr. Boland
Would the Deputy mind reading sub-section (3)?
Mr. O'Higgins
The sub-section reads:—
"The board shall satisfy itself that every person whose consent is necessary and has not been dispensed with has given consent and understands the nature and effect of the adoption order."
That provides for the consent itself.
Mr. Boland
Does it not put the onus on the board?
Mr. O'Higgins
I want to ensure that the board will satisfy itself that the consent is determined as a result of hearing evidence and as a result of going behind the document of consent.
Mr. Boland
I am sure it will take every step to satisfy itself.
I can see Deputy O'Higgins' point but, surely, that point should be best met if the Minister made a rule under Section 5 of the Act. In other words, the point would be better met if the Minister would make a regulation or a rule that the board should look carefully into the matter of the consent. In any event, I feel that the board would do so. It should be one of its primary objects.
Mr. Boland
I am quite satisfied that the board will take every step necessary to see that the person concerned understands what is entailed and that they will not be doing anything under pressure.
I feel it would be better if regulations were made by the Minister.
Mr. Boland
We will be making regulations, anyway, and I am sure that that point will be provided for.
Amendment, by leave, withdrawn.
Mr. O'Higgins
I move amendment No. 14:—
To add to the section a new sub-section as follows:—
(7) Where the child's mother is not of age an adoption order shall not be made without the consent of the mother's father, if alive, and if the mother lives with her parents, and if not without the consent of any person having control over or responsibility for such mother.
This is just another amendment in relation to the consent. Again, I want to ensure that if the mother is still an infant in the eyes of the law that the consent of some responsible person will be necessary for the making of an adoption order. If the mother is not of age, I suggest that the consent of her father should be necessary, if she lives with her parents. If she does not live with her parents, the consent of the person having responsibility for her should be necessary. The Minister will recollect that other provisions of the Bill suggest that where the mother is a ward of court the consent of the court should be necessary for the making of the adoption order. In my view, something similar should apply where the mother is not of age and lives with her parents or with somebody who is responsible for her. In such circumstances, the consent of her parents or of those responsible for her should be necessary for the making of the adoption order.
Mr. Boland
I feel it should be left to the mother.
Mr. Boland
That would not cover the case where the mother is very young.
Mr. O'Higgins
For instance, a mother of 15.
You could have a mother younger than 15.
Mr. O'Higgins
I know of cases where the mother was herself a child, perhaps 13 or 14 years of age. I do not think any of us would suggest that the consent of that person should bring into operation the provisions here.
Mr. Boland
I will have that inquired into.
I should like to mention this point in regard to it. We have to face up to what does happen in cases such as this, and Deputy O'Higgins, I am sure, has come across it. I have come across these cases very frequently, as all solicitors do. What really happens is that the mother or father, or both, come along with the girl who is the mother of the infant, and from a practical point of view there is no difficulty at all. I do think that it is fundamental that the consent should be given by the mother of the child as in the Bill. There is no trouble about the other point, because that is what always happens.
Mr. O'Higgins
I am not providing that the mother herself should not consent. Of course, she must. I am suggesting that, in addition to the consent of the mother, there should be the consent of her father.
Mr. Boland
There might be circumstances in which that might not be too easy. If you make it necessary, you might prevent the adoption. I can imagine cases where the girl has run away from home.
Mr. O'Higgins
That is covered in the amendment. It only provides for this if she lives with her parents.
Mr. Boland
I will look into the matter. We will try to make the best Bill we can out of this.
I think it would be best to leave it to the discretion of the board.
Mr. Boland
I think these awkward matters are best left to the board.
It might be a safeguard in many cases, but in other circumstances it might prevent the adoption taking place. As a result of domestic differences between the girl and her parents, the parents might not wish to give consent and the adoption would be prevented.
Amendment, by leave, withdrawn.
Section put and agreed to.
Section 15 put and agreed to.
SECTION 16.
Mr. O'Higgins
I move amendment No. 15:—
In line 36, before "or", to insert "and solicitor".
I am sure Deputy Cowan will support me in this amendment. Under the sub-section as it stands it is possible that a member of the Bar would have a statutory right to appear uninstructed before the adoption board. I do not think that is desirable. It should be provided in the Bill that a person who is entitled to be heard may be represented by counsel and solicitor or solicitor, because in the ordinary professional way a counsel does not appear uninstructed.
Mr. Boland
He would not in this case either. I understand that this is the common expression.
Mr. O'Higgins
It may be, but it is wrong; it is incorrect.
It is a trade union regulation.
Mr. O'Higgins
It is quite incorrect. The expression should be "by counsel and solicitor or solicitor".
I think that could be accepted.
Mr. Boland
I am not agreeing to the amendment, but I will look into the matter. I am not too sure that it is necessary.
Amendment, by leave, withdrawn.
Mr. O'Higgins
I move amendment No. 16:—
In line 37, to delete "may" and substitute "shall" and to delete "wholly or partly".
I think it should be an absolute rule that no proceedings of the adoption board should be open to public comment or anything of that kind. I think that all proceedings should be held in camera. It is obviously undesirable that the future of the child should be the subject of public comment.
Mr. Boland
Is there anything wrong with leaving it to the discretion of the board?
Mr. O'Higgins
Mr. Boland
If it is laid down that it must be heard in camera you surround it with a certain amount of secrecy. If you leave it to the good sense of the board, I think most of the cases will be heard in camera. I do not think there is any necessity to provide for it.
Amendment, by leave, withdrawn.
Section put and agreed to.
Sections 17 and 18 put and agreed to.
SECTION 19.
I move amendment No. 17:—
In sub-section (3), line 20, to delete "five" and substitute "three".
I think that three years is sufficient safeguard. I cannot understand why it should be five years for an existing adoption when the Bill provides for a probationary period not exceeding two years.
I support the amendment. I think that by putting in five years you discriminate much too strongly against people who have been awaiting this Bill and who hope to adopt children legally, particularly, as Deputy McGrath points out, as two years is provided for in the Bill as a probationary period. It is a fair request to ask that it should be reduced at least to three years.
I wish to support the amendment. I can assure the Minister that, as the result of some cases I have come up against, it would be necessary to make it three years instead of five. I think the Minister should agree to that. There are cases in which I have no doubt the board would approve of it.
Mr. Boland
I am prepared to bring in an amendment to reduce it to three years, provided the mother has consented to the child being adopted.
Where two children have been adopted, one adopted four years ago and the other one year ago, would you be prepared to make an exception in that case?
Mr. Boland
We must take one at a time. Each must be separately adopted.
Amendment, by leave, withdrawn.
Section put and agreed to.
SECTION 20.
Mr. O'Higgins
I move amendment No. 18:—
In line 32, before "to", to insert "on a case stated".
This, again, is only a matter of procedure. The section should provide that the manner in which a question of law should go to the High Court would be on a case stated. That is the usual procedure.
Mr. Boland
I am not accepting the amendment, but I will have the matter considered.
Mr. O'Higgins
The marginal note provides for a case stated, but the wording of the section does not refer to it.
Mr. Boland
The draftsman says it is all right, and, naturally, I accept his opinion.
Mr. O'Higgins
Tell him to have another look at it.
Mr. Boland
Amendment, by leave, withdrawn.
Section put and agreed to.
Section 21 put and agreed to.
SECTION 22.
Mr. Boland
I move amendment No. 19:—
To delete sub-section (10) and substitute the following sub-sections:—
(10) Regulations under Section 6 of the Vital Statistics and Births, Deaths and Marriages Registration Act, 1952 (No. 8 of 1952), (which relates to the issue of abridged certificates) may provide for the issue, as respects any entry in the Adopted Children Register, of a certificate of such items contained in the entry as may be specified in the regulations.
(11) A certified copy of an entry in the Adopted Children Register, if purporting to be issued under the seal of Oifig an Árd-Chláraitheora, shall, without further proof, be received as evidence of the facts stated therein, and any requirements of law for the production of a certificate of birth shall be satisfied by the production of such certified copy.
This amendment deletes sub-section (10) and inserts two new sub-sections in its place. The first of the new sub-sections is intended to enable a "short" birth certificate to be issued in respect of an adopted child. The second new sub-section will ensure that an adopted child's birth certificate will satisfy all legal requirements for the production of a birth certificate. There is also a printer's error which will have to be corrected. The word "requirements" in the third last line of the new sub-sections should be "requirement".
Amendment agreed to.
Section 22, as amended, agreed to.
Section 23 agreed to.
SECTION 24.
Mr. O'Higgins
I move amendment No. 20:—
In paragraph (b), line 32, after "child" to add "unless the mother be the adopter".
Under the provisions of Section 11, it is permissible for the mother of an illegitimate child to apply for and obtain an adoption order. Under Section 24 (b) one of the effects of an adoption order is that the mother shall lose all parental rights and be free from all duties in relation to the child. I think that that section should go on to provide "unless the mother be the adopter".
Mr. Boland
She is then one and the same person and she gets them all back again.
Mr. O'Higgins
I think that should be done.
Mr. Boland
If it is not clear enough, I will have it looked into, but again it is a case of the draftsman's wording. She loses them in one case and gets them all back again.
Amendment, by leave, withdrawn.
Section 24 agreed to.
SECTION 25.
Question proposed: "That Section 25 stand part of the Bill."
Mr. Boland
I mentioned earlier on Section 11 that I would consider a person who is not an Irish citizen being allowed to adopt, and it will be necessary to have a consequential amendment in this section. I mention it now so that I may be able to bring it in on Report Stage.
Question put and agreed to.
SECTION 26.
Mr. O'Higgins
I move amendment No. 21:—
To add to the section a new sub-section as follows:—
(6) A will made by an adopter or either of two adopters shall be treated as being revoked on the making of an adoption order.
I do not know how this amendment will appeal to the Minister, but I have tabled it for the purpose of emphasising the importance of an adoption order, not merely to the child but to the adopters. The idea of this legislation is to provide a home and, to a certain extent, a family for the child adopted, to give him exactly the same rights as if he were a natural and lawful child of a married couple and to impose on them the same parental duties, and also to provide that the child should have the same property rights as an ordinary child born in wedlock is entitled to expect. I think it follows logically from that that the section should provide that any testamentary disposition in the manner of a will made by the adopter prior to the adoption should immediately be deemed to be revoked on the adoption. That rule applies already in relation to the marriage of a person. On marriage, any will made prior to marriage is revoked. Adoption is also a very important step, and I feel that we should provide that no old stale will should affect the rights of children after the adoption order and that, on adoption, such a will should be deemed to be revoked.
I should like to support Deputy O'Higgins on this point. I think it is a very wise precaution. If it were not insisted on, the rights which we are anxious should be given to these children can be taken away from them, and perhaps it would be a very good idea if the board, when a child is being adopted, would, by letter or by other notice to the adopter, inform him of this very necessary requirement, so that he would know that the adoption operated to revoke or destroy a will already made and could make a new one, if he so wished.
I doubt very much if every time a family have an extra child, the father is going to change his will.
Mr. Boland
It does not happen at all. The Deputy is quite right.
It does not happen at all.
Mr. Boland
The two legal men are wrong this time.
It may be legally correct and desirable but, in practice, it is a most peculiar thing. The average man's will refers to his children but scarcely specifies whether he has one or two, or whether it is his child or an adopted child. It is a cold-blooded thing to demand that a man's will should be revoked every time his family increases.
Mr. Boland
What we are doing here is giving an adopted child the same rights as a legitimate child. On marriage, a will previously made is annulled, but not on the birth of a legitimate child. What this amendment would do is to give an illegitimate child, an adopted child, a position which the legal child has not got.
But we are giving the child two different parents.
Mr. Boland
When a child, as Deputy ffrench-O'Carroll has said, is born, it does not mean that the will is annulled or set aside. That is so on marriage, but not on the birth of a child. What we are doing in this section is putting the adopted child in the very same position as the ordinary child.
Are we not wakening a person up to the responsibilities which he takes on himself by adoption?
Mr. Boland
The child is being taken into the family as if he were a natural born child.
Mr. O'Higgins
The danger is that you will make him a poor relation.
Mr. Boland
What the Deputy is trying to do is to give him a superior position.
The parent is only being asked to make a new will.
Remembering that he has increased his family by adoption.
Mr. Boland
The Deputies are suggesting that the will be revoked.
Mr. O'Higgins
He can make the same will again.
Mr. Boland
Why should he do it, when he does not do it for an ordinary child?
Mr. O'Higgins
I want to press this point of view. I do not think that Deputy ffrench-O'Carroll's intervention is very helpful. We are not dealing with the case of an ordinary family having children in the natural way. In point of fact, we are dealing more often than not with the case of a childless couple adopting a child. In these circumstances, we are providing in this legislation that that child, in the event of intestacy, will have certain statutory rights. We are not dealing at all with the case where a couple have disposed of their property by will. Without realising the responsibilities of adoption, without realising the implications of it, they adopt a child. They die, or one of them dies, and that child may be without any property rights whatever, because of a will made prior to the adoption and before the couple considered adopting a child at all.
Where we by legislation are creating an artificial parentage we should go out of our way to stress the seriousness of that step to the adopters and their responsibility to the adopted child. I do not think that any hardship will result by providing that on adoption a previous will shall be annulled. If the adopter wants to make another will he could do so straightway; there is nothing to stop him, but this amendment will bring home to him his responsibility to the child he has adopted. In the case of a child that comes naturally there are certain obligations; we are providing by legislation for parental responsibilities and duties. The ordinary father who finds his family increased, if he has already made his will, changes that will after the birth and we should make that law.
Mr. Boland
He is not compelled to do it. He does it himself.
Mr. O'Higgins
We are trying to impose parental duties.
Mr. Lynch
There are two points of view which merit consideration. Certainly I agree with Deputy O'Higgins; he has a point which should be considered. Let us assume, however, that any will made by the adopter is immediately revoked on the making of an adoption order; it is generally well accepted that people are rather careless about making wills. Even though it is put to the adopter that he must make a new will, he may very well neglect to do so for a long period after the making of the adoption order, so not only might he fail to provide for the adopted child, but his widow might be less well looked after than he had intended in his original will. On the other hand, the natural parents of the adopted child have ceased to have any obligations regarding that child. If he is unprovided for in the will of the adopted parent he will have nobody to look after his interests on the death of the adopter. Realising the frailty of human nature, I think it would be unwise to impose on the adopter the obligation of making a new will. If a man or woman or a man and woman are sufficiently interested to go through the formalities of applying for an adoption order they will have sufficient regard to their obligations to look after the child and the man will readily alter his will to provide for it. Having regard to the difficulties if a man died intestate after the making of an adoption order, I think that the matter is better left as it is.
I do not like to butt in on the legal experts on both sides of the House, but I would like to support Deputy O'Higgins. I think that, in most cases of adoption orders, the adopters would be people without any natural children. We should all agree to that. Dealing with the Parliamentary Secretary's point about the father dying before he makes a new will, the adopted child would then be next of kin, and the legal gentlemen, I think, will agree that the child would then have a better right than if the amendment were not accepted.
I do not agree with Deputy ffrench-O'Carroll about people with a whole lot of natural children adopting another child, and I do not think that we should deal with the amendment from that point of view at all. We should have in view the fact that the majority of adopters will be people with no family of their own and who, accordingly, will be making the adopted child the legal child and giving it full rights in a will made after a previous will is revoked. If, before the people had any intention at all of adopting a child, a will was made, say, in favour of nephew, niece or some distant relation, and if they then take the responsibility of a child which is to all intents and purposes a legal child, surely that child must be safeguarded. I would ask the Minister seriously to consider that.
In answer to the argument advanced by Deputy ffrench-O'Carroll and, to some extent, by the Minister, I would say in the first instance that the very same argument could have been advanced prior to the law which said that on marriage a will was revoked. Before that law a man made a will, he married and died subsequently and the wife found that she was absolutely unprovided for. The law very wisely stepped in and said that that could not be allowed to continue. Where a man who has made a will gets married that will is automatically revoked and, if he makes no will, his wife has certain rights under intestacy.
Undoubtedly children will be adopted by people with a family, but the majority of adoptions will be made by people who have not themselves been blessed with children. We provide in this that on intestacy the child steps into a certain position and is entitled to certain rights as if it were a child born in wedlock to the parents. Deputy O'Higgins simply says that if a will was made which took no account of this adopted child that will is automatically cancelled or revoked. It does not matter if the man does not make another will. If he does not, the ordinary law operates to provide for the child. If he does make a will, obviously, if he has the interest in the child which he should have and which one would expect him to have having gone to the trouble of adopting it, he will make suitable provision for the child.
The Parliamentary Secretary said that, if the will is revoked, people are somewhat lax in making a new will. I accept that, and I think it proves how essential it is to make sure that the will is automatically revoked by law. Because of that laxity, a parent might not bother to make a will for two, three, four, five or ten years, and he might die, leaving the child without anything to claim as its own. There is a very strong case for this amendment. On the views expressed here all around the House, views with which, I am sure, the Minister himself sympathises, I would ask him to consider this. He should do so in the light of the arguments advanced and strongly advanced in favour of the child adopted.
I think that Deputies O'Higgins and Cowan and those supporting the amendment are really arguing from the particular to the universal, because there is only one set of circumstances in which this amendment is helpful, that is, where a childless couple adopt a child. We seek, in those circumstances, that a will should immediately be made to provide for the child.
We are going on the assumption that the husband has made a will in favour of a nephew or a niece, but it is much more likely that he should have made a will in favour of his wife. If he has, and if he dies a short while after the child is adopted, surely the wife is there to provide for the child.
Suppose that the two of them are killed in a motor accident.
That is just the point. You are taking particular circumstances. The amendment would make the general work of the Bill extremely difficult.
Mr. O'Higgins
In relation to the last point made by Deputy ffrench-O'Carroll I and other Deputies have some considerable experience of what, in fact, childless couples do in this country. You may take it that if a childless couple own a farm of land, the husband does not leave his land to his wife. He generously provides a life estate for the wife and he leaves his holding to a nephew or some other relation. There are any number of such people who will, quite rightly, be the first to avail of this Bill, because, naturally, if they are childless they may be anxious to adopt a child. It would be very wrong to make such a provision in respect of a landholder who, having undertaken responsibility of adoption, forgets to provide for the child he adopts. I do not think we should compel him to make a will in favour of anyone, but at least after the adoption his mind should be brought down to the question of the will. If he then decides to leave it to a nephew he should be allowed do so.
Mr. Lynch
I am not completely won over to the amendment but in fairness to the amendment and to the members of the House who are trying to make the Bill as good as we can, I would like to make a suggestion to the Minister which, I think, is more in favour of the amendment than anything else. I do not know what the Minister's point of view is, whether he will consider it or whether he will stand fast, but I did point out that the adopted child who would be unprovided for by his adopted parents in a will, will also have the disadvantage that his mother or his previous guardian has no responsibility whatever. Section 24, paragraph (b) states: "The mother or guardian shall lose all parental rights and be free from all parental duties with respect to the child." I just ask the Minister to bear that in mind when imposing the obligation of making a new will or making a new provision for the adopted child. You might leave it in the position in which it will have no right whatever or no means of sustenance whatever if the adopted parent dies. On the other hand, I still have an open mind, and possibly my mind inclines to leaving the section as it stands.
Deputy O'Higgins suggested that he wished the mind of the adopter or adopters to be directed towards making a will. Perhaps his suggestion would best be met under the regulations.
Regulations cannot override an existing law.
You could not cover this point.
No, but it could be covered in the point that whilst he would not be forced into making a will, the board could tell him that that was one of the desirable things in view of the new circumstances in which the adopted parents would be.
Mr. Boland
The point I cannot get over is why the adopted child should be in a different position from an ordinary legally-born child. Suppose there was a childless couple and an accident occurred——
Supposing the will was made before that couple adopted a child——
Mr. Boland
Supposing they had a legally-born child and the will was made before the accident. That child would be in the same position if both parents were killed. The adopted child will have the very same rights in the case of intestacy as the legal child.
Mr. Boland
I do not want to be pigheaded in this matter. As far as I can see, there is very little case. However, I will look into it, but I am not saying I will agree.
If the Minister considers it he will agree.
I think there was a great case made for it.
Mr. Boland
There was a case on both sides.
It is not possible that inclusion of the amendment might militate against the success of the Bill? Country people are usually chary about making wills, and if such a provision were included it might cause them to hesitate in adopting a child.
It would not. It does not stop marriage.
We do not want a person to adopt a child like a pet dog.
Amendment, by leave, withdrawn.
Question put and agreed to.
Sections 27 to 34, inclusive, put and agreed to.
SECTION 35.
Mr. O'Higgins
I move amendment No. 22:—
To add to the section a new sub-section as follows:—
(4) No registration shall be made under this section unless the board is satisfied as to the matters specified in sub-section (2), upon and as a result of a public hearing upon sworn testimony.
This is in relation to the registration of societies. I suggest that the hearing of any claim for registration should be a public hearing on sworn testimony.
Mr. Boland
Surely we could leave that to the board.
Mr. O'Higgins
I am in the Minister's hands completely, but it does seem to me desirable that in regard to an adoption society the public should know who is going to be registered and how they are registered.
Mr. Boland
I imagine the rules should be published, as societies are recognised, but whether the whole thing should be done in public is another question.
I think it would be sufficient if they published the fact that they had been approved.
Mr. Boland
Mr. O'Higgins
Is there any procedure for opposition?
Mr. Boland
We will have to provide for that in the regulations. There could be a notice published that some society intended to apply for registration and then anyone could object.
You could easily do that through the board. Publish a notice that an application had been received and would be heard on such and such a day. If people wanted to object they could do so, but it would not be necessary to do it publicly.
Amendment, by leave, withdrawn.
Section put and agreed to.
SECTION 38.
Section 36 and 37 put and agreed to.
Mr. O'Higgins
I move amendment No. 23:—
To delete paragraph (b), of sub-section (1), and substitute the following paragraphs:—
(b) take all reasonable steps to ensure that the said person understands the statement and
(c) be furnished with a document signed by such person to the effect that he or she has been furnished with the statement specified in paragraph (a), and understands the effect thereof.
Again this is part of a matter I raised on earlier amendments with regard to the effect of an adoption order. I am not quite satisfied that the provision in sub-section (1) (b) of the section, as it stands, is sufficient to ensure that all precautions are taken. I suggest that the society, before accepting a child, must take all reasonable steps to ensure that the person releasing a child understands the statement already set out in sub-section (8) and that he or she signs a written document to that effect.
I do not think it is enough just to say that the society must ensure that the person understands the statement and that he signs a document to that effect. I think it should be provided that the society must be furnished with a document signed by such a person to the effect that he or she has been supplied with the statement and understand the effect of it.
Mr. Boland
I shall look into that matter.
Amendment, by leave, withdrawn.
Sections 38 to 42, inclusive, First Schedule, Second Schedule and Title ordered to stand part of the Bill.
Bill reported with amendments.
Report Stage ordered for Tuesday, 15th July.
