Tairgím: "Go léifear an Bille an Dara hUair."
I move: "That the Bill be now read a Second Time."
This Bill to amend the 1937 Constitution has three distinct purposes, each of which aims to secure the rights of children. The first and immediate purpose is to ensure that adoptions are safeguarded and made constitutionally secure. The other purposes come within the broader ambit of children's rights, towards which we, the legislators, should be addressing our minds as we approach 1979, the year of the child. These other purposes are the removal of discrimination against illegitimate children and the extension of the category of children who can be legally adopted.
Legislation on adoption belongs to this present century. It was enacted in most countries between the two world wars to cater for the great masses of homeless children who were the victims of these clashes between great powers. England and Wales produced adoption legislation in 1926, Northern Ireland in 1929, but despite pressure since the late forties from our adoption societies, it was late 1952 before a Bill was enacted here to legalise adoption. It is true to say that there was a certain reluctance and opposition to the legislation and there were reservations to the Bill that was enacted. There were fears that it would deprive parents of their rights and the Act reflected some of the fears that were prevalent and attempted to safeguard the rights of parents. There was great preoccupation with the rights of parents during those years.
In 1971, Father James Good, speaking with considerable authority and experience on the subject of adoption, criticised the provisions of the 1952 Act for not being sufficiently child-centred. Adoption, he said, was not for the purposes of providing children for childless marriages, it was not for the purpose of relieving parents of their responsibilities, nor for saving the State expense, but to provide homes and families for homeless and familyless children.
Father Good was correct. This must be the prime purpose of adoption legislation and the amending Acts of 1974 and 1976 reflected this thinking and sought to provide that the child's welfare be placed first in cases of custody disputes. Indeed, such thinking had also been reflected in section 3 of the Guardianship of Infants Act, 1964, which sought to ensure that the child's welfare be of paramount importance.
There is no doubt now, however, that these legislative measures, with their emphasis on the rights of the child, are constitutionally valid and there is doubt on constitutional grounds also as to the legal validity of adoption orders made by the Adoption Board since it was established in 1952.
With regard to adoption orders, since the famous McL case decided by the Supreme Court in June 1976, adoptive parents have lived in a state of great anxiety and they have freely expressed their anxiety to all our political parties. It is in response to representations from the Adoptive Parents' Association as well as from the many caring organisations who concern themselves with the welfare of children and also because the Government have not acted, that the Labour Party have put forward this Bill.
In the McL case a five year old adoption order was quashed by the Supreme Court because the Adoption Board had made a mistake in administrative procedure. It had not fully informed the natural mother of the consequences of her consent to adoption and of her right to withdraw that consent up to the time of the making of the adoption order. In this McL case the natural parents had since married and, as the order was defective, the child was legitimated and he and his natural parents formed a family with all the rights and privileges which Article 41 of the Irish Constitution affords families based on marriage.
The decision of the Supreme Court to quash the adoption order in this case was disturbing to all adoptive parents because such a case though rare, could recur. They also felt that the board could have made further administrative errors in any of the 23,721 cases since 1952. Most disturbing of all, however, was the fear raised by the McL case that the whole system of adoption might be unconstitutional.
The case made by counsel for the natural parents in the McL case was that the Adoption Board, in considering a case and deciding whether or not to make an adoption order, were exercising powers of an unlimited judicial nature and were therefore trespassing a field which the Constitution reserved to the High Court.
Article 37 of the Constitution permits the exercise of functions and powers of a limited judicial nature by any person or body of persons duly authorised by law, notwithstanding that such person or such body of persons is not a judge or a court, but the point argued was that the making of an adoption order, which would affect the whole future of the child whose adoption was being considered, could not be considered as exercising limited functions and powers.
The McL case was decided on the validity of the individual order and the judges, quite deliberately, I think, did not go on to consider the constitutional issues which were raised at that time. Following the McL case, the Government enacted the Adoption Bill of 1976 as an emergency measure to deal with the fears that had been raised making the child's welfare of paramount consideration, but still the constitutional issue remained unclear and the doubt persisted in the minds of adoptive parents.
In their great anxiety to have the matter clarified, the Adoptive Parents' Association commissioned an opinion from two eminent barristers, Messrs. Barrington and Condon. Their opinion, given on 8 March 1977, sustains the fears that existed with regard to the unlimited nature of the functions and powers of the Adoption Board, and also with regard to the constitutional validity of the provisions of the 1974 and 1976 Adoption Acts, which placed the child's welfare first.
The legal opinion at that time was that the first problem—the unlimited nature of the functions and powers of the Adoption Board—could only be solved by writing adoption into the Constitution. Our amendment to Article 37 of the Constitution is an amendment, along the lines suggested by this opinion of March 1977, by the addition of the following sentence:
The Adoption Board established under the Adoption Acts 1952-1976 shall be deemed in considering adoptions and in making or deciding not to make adoption orders to be exercising limited functions and powers.
This is an urgent and appropriate amendment. It is now nineteen and a half months since that legal opinion was given which I think made Government action imperative. It is unbelievable that no action has been taken by the Government in that time. The Government have been in power for 15 of those nineteen and a half months and must be held primarily responsible for the lack of action in that area and for the unnecessary pain and suffering caused to 25,000 families who were concerned in the intervening years and who adopted children between the coming into operation of the original Adoption Act and the present day. It is indefensible that legislation of this nature should give pride of place to many other pieces of legislation that we have. At present we have a Bill before the House in regard to capital gains tax. That Bill must be passed but surely it is a reflection on the priorities of the Government that such Bills take preference over a Bill to alleviate human suffering such as a Bill to suffering the Constitution and ease the sufering of people involved in regard to adoption.
Sections 2 and 3 of our Bill amend articles 41 and 42 of the Constitution by deleting the words "inalienable" and "imprescriptible" as they apply to family rights and parents rights respectively. These amendments remove doubt as to whether Irish adoption laws, to the extent that they make the welfare of the child the paramount consideration in adoption matters, contravene Articles 41 and 42 of the Constitution which have been interpreted as giving priority to parental rights over children's rights. In fact, legal opinion exists that notwithstanding the 1976 Adoption Act a court might feel obliged to quash an adoption order and return a child to its natural parents—provided they have married—regardless of the welfare of that child. One could recall in the sense of a statement such as this a statement made by the Chief Justice in the McL case when he warned: "One must not allow compassion to confuse or permit sympathy to conceal fundamental rights". Such a decision could be taken and we can well imagine its traumatic effects. Our amendment places beyond doubt the validity of the 1974 and 1976 Adoption Acts and it eliminates the danger of such a decision.
We must also bear in mind that the courts have decided that a family in this State under Article 41 of the Constitution means a family based on marriage and does not include a family comprised of unmarried parents and their children. This results in discrimination against illegitimate children and it is the elimination of this discrimination that we propose as the second purpose of this Bill. Deletion of the words "inalienable" and "imprescriptible" as they apply to the rights of parents and the inclusion which we propose of the words "equality of rights under the law shall not be denied to any child on the basis of status at birth or parentage", would remove the present legal discrimination against the illegitimate child.
We believe this reform is very urgent. It has already been carried out in a large number of countries such as New Zealand, Germany, Switzerland, Norway, Sweden, Denmark and Iceland. Its practical effect would be to give children born out of wedlock the same right of succession under the 1965 Succession Act as children born within marriage, provided paternity is established. At present a child born out of wedlock has no rights of succession whatever in this country to the property of its natural father and only a very limited right to succeed to the property of its mother—the right only exists where the mother has no legitimate issue. It is a disgusting and shameful law which penalises and victimises innocent children with some vague notion, apparently, of discouraging adultery and fornication.
The association, Cherish, which is very well equipped to speak on this subject in welcoming this Bill says it is totally unacceptable that some children of a nation are discriminated against by virtue of the marital status of their parents. They say that this discrimination has the effect of prohibiting a child from succeeding to the estate of his father or fraternal relatives and brings into question his right of inheritance to the estate of his mother. They add that nothing but the total abolition of the status of illegitimacy is acceptable. They welcome this Bill. They are people who are affected by it and people whom we seek to help by putting forward this Bill.
The Council for Social Welfare held in Dublin in 1976 in a submission on children born out of wedlock stated:
We are concerned with the rights of all children and that they should be treated equally. We regard it as unchristian that children born out of wedlock should, as a result of the actions of their parents be victimised by legal distinctions between them and children born to married parents. Consequently, we wish to urge that the legal disabilities imposed on these children should be removed.
They recommend that there be no distinction between children before the law and that children born out of wedlock be given rights of succession.
The Irish Council of Civil Liberties which is deeply concerned with rights of children in a report on children's rights under the Constitution deplores the concept of illegitimacy as "one of the law's most shameful creations" using as it does innocent children as tools and recommends that a clause be added to the Constitution forbidding discrimination between different classes of children based only on difference in the marital status of their parents. The Sixth Amendment of the Constitution Bill, 1978 will have the effect of alleviating the disgust of all these groups of people in regard to the present situation. It will bring to an end the discrimination that exists between legitimate and illegitimate children. It is a reform that is long overdue and we commend its purpose to the House.
The third purpose of the Bill is to extend the facility and benefit of adoption to a wider category of children than orphans and illegitimate children. At present children of married persons, whether abandoned or however illtreated, do not qualify for adoption. This is so because of the rights and duties married parents are given under Articles 41 and 42 of the Constitution of 1937 which are described as inalienable or imprescriptible or both. The amendments in sections 2 and 3 of the Bill proposing that those words be deleted would overcome this difficulty.
As the Constitution stands, married persons cannot divest themselves of their rights and duties in respect of their children, even those parents who seriously neglect and ill-treat their children, who have no interest in the welfare of their children, and who are not fitted for the care of children. Even in their case the Constitution still insists on preserving rights which they may have abused over and over. This appears to me to be a ludicrous situation. Children of such parents need help. They are worse than homeless. They are entitled to benefit from the warmth and security which could be theirs, and which would be theirs, in an adoptive home but for this cruel constitutional barrier which still exists. Many of them are condemned to spend their lives in institutions, and that is indefensible. I submit each day a constitutional amendment is delayed, and a subsequent referendum is delayed, will result in deprivation and perhaps irreparable damage to other young lives. The matter is urgent. In their statement in 1976 the Council for Social Welfare said:
5.5. It is most destructive experience for a child to be abandoned by his parents. When a child is abandoned, whether by married parents or by single parents, or where they do not make reasonable effort to provide a secure home environment for him, then the interests of the child demand that an equivalent home environment should be created for him with, or even in extreme cases without, the consent of the parents.
5.6. We are aware that children can be left in care until they are of an age to enter employment and earn wages, at which stage their parents reestablish contact with them. We have known of such children returning then to live with their parents and suffering morally and physically as a consequence. The law offers no protection to these children against either their exploitation or their removal from the jurisdiction by their parents.
5.7. Children should no longer be seen as objects of the law but rather as subjects with rights, and this concept of children's rights should be embodied in the law. In any conflict situation the child's welfare should be paramount.
5.8. When for any reason, parents are unable or unwilling to fulfil their obligations towards their children, the State as the ultimate authority must intervene to protect the rights of those children.
In her submission to the newsletter "Children First" Anna Lee the coordinator of Cherish said:
We would consider it a matter of utmost urgency that discrimination against children by reason of their parentage alone should be prohibited. There is no possible justification for allowing the present legal discrimination between different classes of children based only on differences in marital status of their parents to continue.
She was referring to the concept of illegitimacy and the discrimination against illegitimate children. She went on to say:
Adoption should be made available to all children regardless of legal status where it might be seen to serve their best interests. Thus, the adoption of legitimate children with living parents should be made possible so that they may be offered a secure and stable family life if their biological parents are unable or unwilling to provide such a life.
Very many authoritive sources agree on this issue. It is in response to the submissions of all these people that we have broadened the concept of our Bill to provide for the two other purposes I have mentioned: the ending of discrimination against illegitimate children and the broadening of the category of children who may be adopted.
It is important to add that this Bill will not in any way undermine the family because Clause 3 of Part II states quite clearly:
The State acknowledges the family as the social unit best fitted to provide the continuity of care essential to the upbringing of a child. Where, however, the welfare of the child requires it, whether by reason of the death of the parents, or by reason of their unwillingness, neglect or inability to discharge their parental duties, the State shall supply the place of the parents by appropriate means, which may include the enactment of laws providing for the transfer of parental rights to substitute parents.
We acknowledge the family as the social unit best fitted to provide the continuity of care essential to the upbringing of the child.
There is at present a shortage of children for the number of prospective adoptive parents eager to provide the security, warmth and comfort of an intimate caring family relationship in full adoption. At the same time, a considerable number of children are condemned to institutions or the lesser security of fosterage, excellent though fosterage is in many instances.
The present situation is ludicrous. It is ridiculous. It can be resolved by the passage of this Bill. The Bill is not narrow. It is well rounded. It secures the rights of children as well as alleviating the immediate problems. It is an appropriate measure as we approach International Children's Year.
It is the duty of the Government to protect and vindicate the rights of children. In the 15 months they have been in office they have been totally negligent in that area. It is also the duty of the Government to allay the fears of the adoptive parents throughout this State. By accepting this Bill, with its framework for reform in the two areas of adoption and illegitimacy, they will be bringing to an end a great deal of human suffering in this country. They will also be clearing the way for further legislative reform in the area of child welfare without fear of constitutional challenge.
I confidently recommend the Bill to the House.