Tairgim:
Go léifear an Bille an Dara hUair.
I move:
That the Bill be now read a Second Time.
The purpose of this Bill is to provide for a constitutional amendment which would ensure that adoption orders made by the Adoption Board cannot be declared to be invalid on the grounds that they were not made by a court. If the Bill is passed the issue will be put to the people by referendum. I am sure that I am expressing the view of the entire House when I say that it is my sincere hope that the people will approve of the proposal and that I have every confidence that they will do so.
This is a straightforward measure which will, I hope, receive general approval. I think that technically it is a better provision than the similar one in the Private Members' Bill which was defeated here on 25 October. Later on, I propose to explain why the Government have decided to confine the Bill to this single issue but I must first of all indicate why a Bill to amend the Constitution on the lines of the present one is thought to be necessary or desirable.
In 1976, in McL. v. An Bord Uchtála and the Attorney General, the Supreme Court declared that a particular adoption order was invalid. They did so on the basis that there had been defects in the processing of the case and the court did not have to decide whether there was any basic constitutional defect in the Adoption Acts by reason of the fact that those Acts provide that adoption orders are to be made by a body which is not a court. The processing defects revealed by the Supreme Court's decision drew attention, in turn, to procedural difficulties which the Acts themselves gave rise to, but those difficulties were dealt with by a number of provisions in the Adoption Act, 1976. Accordingly, the present Bill does not arise from anything that was decided by the Supreme Court in that case. Nevertheless, the case has a bearing on the introduction of the Bill because ever since the Supreme Court judgment there appears to be no doubt that the opinion has been held in legal circles that if the court had had to deal in that case with the constitutional position they might have considered themselves obliged to find that, in making adoption orders, the Adoption Board were purporting to exercise powers of a kind that the Constitution reserves to the courts. The Government accept that there were grounds for fearing that that might have been the outcome.
I am not of course saying that, if the issue were now to be raised before the Supreme Court, the court would necessarily rule against the validity of the present system. On the contrary, I am advised and believe that a strong argument could be put to the court in favour of validity. That view is strengthened by observations made by Mr. Justice Walsh in giving judgment in the Supreme Court in the case of G.v. An Bord Uchtála as recently as 19 December last. The case did not raise an issue as to the validity of the adoption system but in the course of his judgment Mr. Justice Walsh considered the essential character of adoption in relation to family rights and duties and stressed that he was, I quote, "not to be taken as in any way impugning the validity of statutory provisions allowing for legal adoption". A little later in his judgement Mr. Justice Walsh, after mentioning that there were "instances where the Board ... is bound to act judicially," pointed out that it was well established that "the obligation to act judicially does not mean that the body or the person or persons so bound are thereby deemed to be exercising a judicial function or powers of a judicial nature."
None of the other judgments in that case contains any statement casting doubt on the constitutionality of the present system. Neverthless, differences of judicial opinion are always a possibility sooner or later, and there seems to be no avoiding the conclusion that there would be a risk of an unfavourable decision and that such a decision, if made, might well have—though I do not say it would necessarily have—retrospective effect in the sense of invalidating all orders made up to now. I am aware that there is a great deal of unease among adoptive parents and others in regard to the present position. Approximately 26,000 adoption orders have been made since the system was introduced and the effects of a finding that they were invalid would be nothing short of disastrous. One must remember that an adoption order, unlike an order for custody for example, involves a fundamental and permanent change in the relationship between the adopted person and his natural and adoptive parents.
The draft amendment proposed in the Bill is retrospective in its effect, as of course it needs to be in order to achieve its objective. It is wide enough in its scope to permit of an adoption system involving an agency other than the Adoption Board as the authority in adoption matters if the Oireachtas should think fit to provide for such a system in the future, though I would like to emphasise that no such change is in fact envisaged.
I should like to make it clear that the Bill does not and cannot guarantee that there will never again be a danger of an adoption order being held to be invalid. It would be impossible to provide such a guarantee unless the Constitution were to go so far as to provide a time limit within which an adoption order is to be challenged if it is to be challenged at all.
Such a provision would be open to the most serious objections. It would mean that an order obtained in violation of the most basic provisions of the law would be upheld. It would mean that issues of fraud or misrepresentation could not be raised. It would mean—and I would like to emphasise this—that even if it could be shown that the child had been ineligible for adoption because, for instance, of his being legitimate, and that the existence of the adoption order was depriving him of a right of inheritance, and that he himself wished to have the adoption order set aside, nothing could be done.
There are other objections. To provide that an adoption order in a particular case would be immune from challenge after a specified period would be to open the way for carelessness if not worse on the part of some people dealing with adoption. It would encourage the taking of risks where risks ought not to be taken. It would create a situation in which an order of the board would have a higher status than an order of a court, since of course an order of a court is liable to be set aside on the basis that it was wrongly made.
There is no way, realistically, that we can offer to adopters an absolutely watertight guarantee that an adoption order cannot be challenged. All we can seek to do is create a situation in which the risk of a successful challenge is so small that it would not in practice be a source of concern to the general body of adoptive parents, just as people who get married are not worried by the risk that a court may some day declare that a particular marriage was null and void.
A declaration that an adoption order is invalid does not, of course, mean that the court will necessarily give custody of the child to the successful challenger. Custody is a separate issue, as I shall be saying in more detail later.
I now turn to certain matters that are not in the Bill but which, for one reason or another, have been advocated by some interested persons or groups. I think it is both right and necessary to do that, especially against the background of the debate that took place here last October on the Private Members' Bill introduced by Deputy Mrs. Desmond. It is my hope that, when the issues are analysed, there may not be very much difference between those who supported that Bill and those, including myself, who opposed it. There will no doubt be some issues on which differences of opinion will remain but there are certain fundamental points on which I believe there is likely to be basic agreement if the issues are first of all clearly identified. I hope that what I have to say will help towards their identification.
The point was made by Deputy Barry Desmond when seconding the Private Members' Bill that that Bill was essentially put forward as a basis for discussion and I accept that. Some speakers on that occassion also made the point that we are dealing with delicate issues and I accept that too, but I think it may be even more important to realise that the issues involved are not only delicate but also complex and that it is necessary to be very careful about the implications of particular proposals. I hope therefore that it is clear that nothing that I propose to say is intended in any way as point-scoring over anybody who spoke on the last occasion.
There are, I suggest, three seperate even if in some ways related questions to be looked at and they might conveniently be taken in the following order: first the question of the child's welfare being, I quote "the first and paramount consideration", second, the general question of distinctions in status between legitimate and illegitimate children and, third, the question of adoption being confined to illegitimate children and orphans.
Statements such as that the welfare of the child must always be the "first and paramount consideration" have been made from time to time by various people as if that were a simple straightforward proposition the meaning of which was clear and the principle underlying which was self-evidently right as a principle to be applied in all cases and circumstances. In fact the phrase "first and paramount consideration" is one the meaning of which has been the subject of much argument and which, if adopted as a universal principle to be applied in all circumstances and if interpreted in a way in which it certainly could be interpreted, would be likely to lead to consequences which would be unacceptable to the great majority even of those who have advocated it. This is especially true in the context in which we are now considering it, namely, the context of a constitutional provision. Before I come to deal in any detail with that, however, I think it is necessary to put what I propose to say in its proper context by correcting the frequently repeated but entirely erroneous statement that, as matters now stand under our Constitution, children have no rights, or that they have no rights as individuals, or that they have no rights otherwise than as members of the family where they are subject to their parents.
Unfortunately, it seems that, when somebody publicly says something like this, and says it confidently enough, it is taken up by others who do not bother to check whether there is any basis for it. Nobody has ever produced any statement from any reputable legal authority in support of the proposition that children have no rights as individuals under the Constitution, and obviously they could not do so.
The Constitution guarantees various rights for people—and children are people. Indeed it may be that the courts would hold that children, especially young children, have certain natural rights over and above the natural rights of adults, such as rights of support. Be that as it may, the Constitution itself makes it explicitly clear that children have constitutional rights. It refers, in Article 42.5, to the "natural and imprescriptible rights of the child", not as rights which the Constitution finds it necessary to guarantee in explicit terms to children in particular, but as rights which are already guaranteed to them. The Article quoted takes the existence of those rights for granted and refers to them on that basis.
In looking at the question of the meaning of the phrase "first and paramount consideration", it may be convenient to begin with the Private Members' Bill. In part II of the schedule to that Bill, it was proposed that the following sentence, amongst others, should be included in the Constitution:
"In the enactment of laws relating to children, the welfare of the child shall be the first and paramount consideration."
This is, I believe, the first time I have seen that particular proposal put forward and I am not sure whether it was a considered proposal meant to be accepted as it stands or whether it was meant as a rough draft intended to give expression to something that is really quite a different idea. It is, on the face of it, similar to a provision in a draft—I emphasise the word draft—convention on the rights of the child which is at present under examination under United Nations auspices but, apart from the fact that that text is not finalised, the context is different, partly because it is a much narrower and more specific context than that proposed in the Private Members' Bill but also because, even if the convention was finalised in its present form and this State became a party to it in that form, the provision in question would be in the nature of a guide for Parliament rather than a rigid legal document to be interpreted by the courts.
Taken as it stands in the Private Members' Bill, the proposal would mean that any and every enactment relating to children would be open to be challenged in the courts on the basis that the legislation did not reflect the principle that the welfare of the children concerned was the first and paramount consideration. Virtually all social legislation could be challenged on the basis of such a provision and the courts would be liable to be called on to decide what the principle meant in the context of any particular piece of legislation and whether the legislation complied with it. There could of course be wide differences of opinion on both those issues and the effect of the proposal would be to transfer a very large area of decision-making on social issues and priorities from the Oireachtas to the courts. Such a transfer would be inappropriate and undesirable. The courts would have an impossible task and the Oireachtas would be in an impossible position. It is quite a different matter to ask the court to decide a question concerning the welfare of a particular child in a particular case, but that is not what was proposed in the Bill.
Apart from that fundamental objection there is another equally fundamental one which can be illustrated by an example. If the Oireachtas passes an Act providing, for instance, certain succession rights for a spouse and for children, that Act is a law "relating to children" even if it relates to a parent as well, and it would therefore be affected by the proposed provision. It is, however, immediately apparent that there could be no possible ground for having a constitutional requirement that such an Act should comply with a principle that the welfare of what is called "the child" should be the first and paramount consideration. If that were the principle, it could be argued that the whole estate, or at the very least the greater part of it, must be left to or for the benefit of "the child". There are other, equally basic, objections but perhaps I have said enough on the particular proposal as put forward in the Private Member's Bill.
The more usual, and on the face of it more acceptable-looking, proposition is that the law should provide—and in the present context that would mean that the Constitution should provide—that in any dispute or question concerning the adoption or custody of a child, a court or other authority should make its decision on the basis that the welfare of the child is the first and paramount consideration. In fact I assume that is really all that the sponsors of the Private Members' Bill had in mind but, even if it was not, it is certainly included in what they proposed. For that reason and because it is an idea that has been put forward on various occasions it is essential to examine its implications.
I think it as well to say at once that I believe I can show that the enactment of such a provision in our Constitution, far from being, as is sometimes suggested, self-evidently necessary and right, is on the contrary both unnecessary for the protection of children and highly undesirable—that it would in fact be a potential threat to the well-being of families and therefore of the children in those families. I would add immediately that it could pose an even greater threat to adoptive families than to other families, and I think from some statements I have seen that many adoptive parents are coming to appreciate that. Furthermore, I think I am justified in concluding from certain things said by Deputy Cluskey and Deputy Mrs. Desmond here last October that both of them, at all events, whatever about other Deputies, would agree with me once they realise certain implications of this possible innocent-sounding formula if it were elevated to the status of a constitutional principle and made to be of general application. I shall come back later to those particular remarks of theirs that I have in mind because I think they are important and reflect some fears that I share.
The expression "first and paramount consideration" is to be found in the Guardianship of Infants Act, 1964, and in the Adoption Act, 1974. It is not at all to be assumed, however, that an expression would have the same meaning if enacted as part of the Constitution, where it would have equal status with other provisions of the Constitution, as it has in an Act of the Oireachtas where it has to be interpreted on the basis that it is subsidiary to the provisions of the Constitution. In considering this point, it is first of all necessary to look at the phrase "first and paramount consideration" both in its present setting as part of the Guardianship of Infants Act and in its setting as part of the Adoption Acts—and, in my view, there are important differences between those two settings.
Unfortunately there has been, in many contributions to this area of discussion, a confusion between two different things, namely, on the one hand a specific right such as right of custody, which is something that is both limited in scope and essentially temporary in character—in the sense that it is subject to periodic review—and, on the other hand, general parental rights and obligations whether in the context of the ordinary family, so to speak, or the family based on legal adoption.
The Supreme Court has more than once made it clear that the courts will make this distinction and possibly reach different decisions on the different issues, not only as between one case and another but even in relation to a single case. Thus, in a dispute between a father and mother, or between parents jointly and a third party, the fact that the court awards custody to one claimant by no means indicates that it will not in appropriate cases uphold the right of the other party to have a say in such matters as the education of the child. When the Supreme Court quashed an adoption order in the 1976 case, McL. v. An Bord Uchtála and the Attorney General, the order of the court did not award custody to the natural parents despite the fact that they had married. It left the question of custody to be decided separately. Failure to appreciate that point, and the distinction which it reflects, has led to misunderstanding. It is therefore essential, in the context of our present debate, to look separately at the two issues which for present purposes can be stated to be custody—or custody and guardianship— on the one hand and adoption on the other.
Custody is governed by the Guardianship of Infants Act, 1964, which, as I have said, provides that the welfare of the child shall be the first and paramount consideration. It has been repeatedly alleged— and I concede with some apparent justification—that there may be some cloud or question-mark over the constitutionality of that provision. Why, then, do we not take steps to remove that question-mark? Basically, because of a combination of three reasons. Firstly, it is, I suggest, apparent rather than real. Secondly, it cannot be removed without the risk of creating far greater and potentially very harmful doubts in other respects. Thirdly, even if it should ever transpire that there was some basis for the doubt, the consequences of such a finding would be likely to be minimal, as I shall explain presently.
It is impossible, of course, to be certain beyond all possibility of doubt that the constitutionality of any provision of the law may not be called in question, but I am advised and believe that the provision in question, in the Guardianship of Infants Act, is quite safe unless it is some day given an interpretation different both from what it was generally thought and intended to have when it was enacted and from the interpretation which the courts have given to it since its enactment up to now. If, on the other hand, it were on some future occasion to be given an interpretation different from what it was generally believed to have, and from what the courts have in practice been giving to it, it might of course then be declared unconstitutional but, in that event, what the courts would be doing would be striking down something that was never intended in the first place, and the presumption must be that we would be left with a position in which the law would still be what it is at present believed to be. To explain this, I have to refer briefly to the history of the provision.
As a statutory phrase, "first and paramount consideration" was first used in the English Guardianship of Infants Act, 1925. The phrase was, as I understand, selected in order to establish or to clarify that, in a dispute between parents about custody, the two parents were to be on an equal footing. In other words, the Act put an end to any idea that the father had a superior right. What the phrase "first and paramount consideration" means in the English Act when the dispute is not between the parents but between a parent or parents on the one hand and a third party on the other is of course another question. It is, however, a point of interest to us here because a look at what I might call the history of its interpretation in the English courts can help to throw light on the underlying problem of finding words to reflect accurately concepts that are difficult to formulate precisely. For the moment, however, I shall concentrate on developments here.
The enactment of the Constitution in 1937 meant that, by reason of its provisions, the father and mother were joint guardians of the children and that, in the event of a dispute about custody, there was no presumption in favour of one as compared with the other. The old common law rule had been that the father was the legal guardian.
The courts, for their part, developed a jurisprudence which, broadly speaking, meant that in any dispute between parents concerning the custody of a child, the welfare of the child was the predominating principle and that in any such dispute between a parent and a third party, while there was a clear presumption in favour of the parent's claim, this would be set aside if the welfare of the child required it. A leading case—and I would like to emphasise the importance of this for reasons that will appear later—was In re Kindersley [1944] I.R. III in which the then Supreme Court laid down the principles to which I have just referred. More specifically, the Supreme Court, in Kindersley, made it clear that in applying the concept that the predominating principle was the welfare of the child, the Court must act (I quote) "with circumspection" and in accordance with other established principles that had been set out earlier in the same judgment in the following words at page 130:
In exercising the jurisdiction to control or to ignore the parental right, the Court must act cautiously, not as if it were a private person acting with regard to his own child—and acting in opposition to the parent only when judiciously satisfied that the welfare of the child requires that the parental right should be suspended or superseded.
This was the background against which the Guardianship of Infants Act, 1964, was enacted. That Act provided, in section 3, that where in any proceedings before a court a question arises concerning such matters as the custody, guardianship or upbringing of a child, the court in deciding that question shall regard the welfare of the child as the first and paramount consideration. The Official Debates show quite clearly that, as far as the Dáil and Seanad were concerned, that provision was intended to be declaratory of the existing law—no more and no less. There is weighty judicial opinion, to which I shall refer presently, in favour of the proposition that it achieved precisely that objective and, by implication, that it is not unconstitutional. However, even if that weighty opinion were to be overruled, and the Supreme Court were some day to say that the words of the Act must be interpreted as having gone beyond the objective of being merely declaratory of the previously existing law, that those words allow no presumption in favour of the parental claim and that they go so far that they must be declared unconstitutional, no actual harm would result. There might be some inconvenience in the fact that the statutory provision as such could no longer be invoked but we would be left with the position as declared in Kindersley which is what at the moment we all believe to correspond with the present law. It is scarcely to be contemplated that the statement of principles made by the then Supreme Court in Kindersley as recently as 1944, and therefore well after the enactment of the Constitution, might itself be unconstitutional.
It is nevertheless appropriate to examine more fully the question whether the 1964 Act seems to be in any danger of being declared to be unconstitutional. The point that is usually made against it relates to a statement made in a High Court case in 1966, by Mr. Justice Henchy, now a Judge of the Supreme Court. In his judgment in that case—In re J. an Infant [1966] I.R. 295—he said the following at page 308:
Having regard to the inalienable right and duty of parents to provide for the education of their children, and their right in appropriate cases to obtain custody of the children for that purpose, I consider that s. 3 must be interpreted in one or other of the following ways: First, by regarding it as unconstitutional, or, secondly, by reading it in conjunction with Articles 41 and 42 as stating, in effect, that the welfare of the infant in the present case coincides with the parents' right to custody. I need not choose with these two approaches, as neither would affect the conclusion I have already reached that the parents must have the custody. I wish, however, to make it clear that I expressly reserve an opinion (counsel not having raised the matter) as to whether it was competent for the Legislature to provide that in a case such as this, where the parents are jointly seeking custody of their child for the purpose of giving effect to their inalienable right and duty to provide for its education, the Court should be bound to decide the question of custody by regarding the welfare of the infant as the first and paramount consideration.
It will be noted that Mr. Justice Henchy made it abundantly clear that in making these observations his purpose was to indicate that on one—and one only—of two possible interpretations of section 3 of the 1964 Act he—or another judge or judges—might at some time have to decide that the section was unconstitutional. The reason why he expressed no opinion on this question was that this was unnecessary for the purpose of his decision in the particular case and the matter had not been argued before the court. Moreover, the possible interpretation of the section which might have made it unconstitutional was an interpretation quite different from what it was intended to have if one is to judge by the Official Reports of the Debates in the Dáil and Seanad.
Another case that is sometimes thought to cast some doubt on the 1964 Act is one that arose in 1950, namely In re Corcoran [1950] 86 I.L.T.R. 6, where in a 2-1 majority decision of the then Supreme Court it is suggested that the English provision on guardianship, which was similar in terms to what was introduced here in 1964, would be inconsistent with our Constitution. By way of explanation, I should mention that the reference to the English Act arose from the fact that the case had strong English "associations". However, it is quite clear that the interpretation ascribed in that judgment to the English Act is materially and relevantly different from that subsequently ascribed by at least two members of our Supreme Court to the same phrase in our Act of 1964. That subsequent case is B. v. B. [1975] I.R. 54—a case which was decided in 1970 though not included in the Reports until 1975. It is to be noted that in that case the Supreme Court actually applied the provisions of the relevant section of the 1964 Act, something which is, I suggest, highly unlikely to have been done by the court if the section were unconstitutional—highly unlikely even though no constitutional challenge was raised, just as no such challenge was raised in the 1966 case. Not only did the Supreme Court—and it was the full Court sitting with five members—apply the relevant section of the 1964 Act but there are various references by the then Chief Justice, the late Mr. Justice Ó Dálaigh, and Mr. Justice Walsh which suggests positively—and not only by the negative evidence that the court was willing to apply the section to the case before it—that those two judges at all events had no doubts as to its constitutionality. Moreover, while the case concerned two parents who were in dispute, there are references in the judgment of Mr. Justice Walsh which clearly imply his acceptance of the validity of the provision not only in relation to a dispute between two parents but also in a case involving a third party against both parents because he refers in at least two separate places to a parent or parents and the references to parents must relate to a dispute involving a third party against both parents jointly.
I propose to read for the House from the judgment of Mr. Justice Walsh the following brief extract which explains what I have been referring to:
The Act does not purport to encourage any alteration of the established practice of the Courts that they must act very cautiously in exercising the jurisdiction to interfere with parental rights, and the court will act in opposition to the parent or parents only when judicially satisfied that the welfare of the child requires that the wishes of the parent or parents should be overruled.
It will be noticed that the wording clearly echoes that used by the Supreme Court in the Kindersley case in 1944 about the Court having to act "cautiously" in interfering with parental rights and it expressly says that the Act does not purport to encourage any change in the established practice. I suggest, therefore, that there is something very close to a specific decision that the 1964 Act provision, properly interpreted in the Irish context, is not unconstitutional. For the sake of completeness I should add that in the recent case of G. v. An Bord Uchtála to which I have already referred there are references in the judgments to the 1964 Act provision without any suggestion that it is unconstitutional.
Why then, it may be asked, can we not put those words "first and paramount consideration" into the Constitution, seeing that there is such high authority for the proposition that they give due weight to the parental claim while at the same time guaranteeing that the welfare of the child is the dominating principle? Would it not be helpful to do so and what are the objections?
The answer—confining ourselves for the moment to the question of custody, as distinct from adoption where entirely different issues and much more serious objections arise—is, firstly, that on that very argument there is no possible need to do so, since the argument is that the law, at all events the law as the Oireachtas intended it to be, is safe from challenge, and secondly that it could be dangerous to do so. What courts and individual judges have said about the phrase so far is said in its context as part of an Act of the Oireachtas which has to be interpreted in the light of overriding constitutional provisions and, to an extent, in the light of previous court decisions, for the courts, of course, do not approach the interpretation of a statute in an historical vacuum. Indeed, as I have already mentioned, there are natural rights in connection with the family which the Constitution recognises and protects, though without specifying them, and these rights, when they are relevant, are necessarily a part of the background against which statutory provisions fall to be interpreted. If, however, such a provision were to be enacted as part of the Constitution, it would then be in a new setting and context and the courts might find themselves compelled to give it a different interpretation from what it has been thought to have up to now and one that would be quite unacceptable to the great majority of the public.
The history of the interpretation of the phrase in England gives grounds for such a fear. When the Oireachtas in the Guardianship of Infants Act, 1964, adopted the phrase from the English Act of 1925, it did so against a background of post-1925 English case-law which gave solid reason for believing that the phrase accurately expressed the idea that it was intended to express here—in other words, the idea, broadly speaking, that the child's welfare should be the dominating principle but with a clear presumption in favour of the parental claims. Subsequent decisions in the English courts modified that position and the present interpretation in England is that laid down in the House of Lords decision of 1969—J. v. C. [1970] A.C. 668—a decision which seems to amount to saying that, since the welfare of the child is the first and paramount consideration, it must prevail over all other considerations combined.
Accordingly, where the welfare of the child is at issue at all, the practical result is the same as if it were declared to be the sole consideration, though of course parental claims are still relevant to the extent that they can be shown to be for the welfare of the particular child in the particular case.
From time to time after the decision of the House of Lords in that 1969 case, English courts, in an effort to do justice as they saw it to the claims of an unimpeachable parent in a dispute with the other parent in a custody case, seem to have striven to avoid the implications of the decision. In so doing they relied to some extent on a decision of the Court of Appeal in 1962 in which the court said that, although the welfare of the child was the first and paramount consideration, yet it was not the sole consideration. But the Court of Appeal has since stated firmly that, since the House of Lords case, the earlier case can no longer be regarded as good law in so far as it might be relied on to justify preferring the claims of an unimpeachable parent to the welfare of the child.
Obviously it remains true that, as the Court of Appeal pointed out, to say that something is to be the first and paramount consideration is not the same as saying that it is to be the sole consideration; and in the recent case of G. v. An Bord Uchtála Mr. Justice Walsh made the same point in relation to the similar provision in our 1964 Act. Yet the fact remains that some English decisions suggest that it is possible for a court to interpret the expression "first and paramount consideration" in such a way that, although it is admittedly something less in law than the sole consideration, it in practice outweighs the combined effect of all other considerations.
I am not suggesting that it is certain or even that it is likely that our courts would adopt such an interpretation just because the provision had been elevated to the status of a constitutional provision but only that we certainly could not by any means exclude the possibility that they might at some stage consider themselves obliged to do so. In fact, if contrary to what I have myself argued the judgment of Mr. Justice Henchy in the case In re J. an Infant were to be interpreted as casting a serious doubt on the constitutionality of the 1964 Act, that same process of reasoning would inescapably lead to the conclusion that to elevate the provision to that of a constitutional principle would be likely to change the law in a way that was never intended by the Oireachtas when enacting the 1964 legislation.
We therefore can see that, even in the limited context of custody, risks would attach to the use of any such phraseology in our Constitution where the overriding constraints of the existing constitutional provisions would no longer operate as such. I repeat that I do not, of course, say that if such phraseology were adopted in the Constitution, our courts would necessarily interpret it as it has been interpreted in England but only that they might feel obliged to do so and that it is unnecessary to take the risk. I am even prepared to assume that where the issue is one of custody the differences between the English interpretation and that heretofore adopted in Ireland may possibly be more important in terms of principle than of practical consequences in particular cases.
Even if that is so, I would see no possible ground for throwing overboard the principle now underlying our law. I think it will be the view of most if not all Deputies, as it is, I have no doubt, the view of the vast majority of the public, that where there is a dispute about a child's custody between a parent and a third party, the policy of the law should continue to be that there should be a clear presumption in favour of the parent, though one which will be set aside where the welfare of the child requires it.
What I have just been saying concerning the phrase "first and paramount consideration" has been said in the context of possible disputes about custody of children. When it comes to the question of its possible introduction into the Constitution on the basis that it would also apply to the field of adoption, where what is at issue is the permanent vesting of parental rights in an adoptive couple, the objection becomes far more pronounced both as regards the principle involved and as regards the obvious practical consequences.
It is necessary to bear in mind that, when one is speaking in this context of the field of legal adoption, one in practice is referring to disputes about the consent of the parent and, in Ireland, to the question whether or on what basis a mother's refusal to consent to the adoption of her child may be overruled. It is this question of adopting against a mother's wishes that has to be kept in mind.
It is a matter of some interest that quite a few of the criticisms that are voiced from time to time against certain aspects of our adoption system tend to be linked with suggestions, expressed or hinted, that we should apply English procedures and regulations. It is all the more remarkable, then, that there appears to have been no advertence whatsoever to the fact that although English law, as I said earlier, has since as far back as 1925 applied the phrase "first and paramount consideration" to the law governing custody of children, it has never done so in relation to the law of legal adoption. The fact that it has not done so is all the more significant for the fact that it is a matter of public record that such a proposition was considered in England but rejected as inappropriate; and the relevant English statute, which was enacted as recently as 1975 and re-enacted in a consolidating Act in the following year, uses instead the phrase "first consideration". Since both countries are what are called common law countries and have many legal principles in common, it is instructive to look a little more closely at the English experience.
The English Act of 1975—now re-enacted in the consolidating Act of 1976—was largely based on the Houghton Committee Report of 1972. That committee issued a working paper in which they floated the idea that the "first and paramount consideration" formulation applicable to custody proceedings should be imported into adoption law. Subsequent developments are interesting.
Partly because of submissions made to them, partly because they had the benefit of a House of Lords clarifying decision in a related area in the meantime, but mostly it would seem because of their own further analysis, the committee when they came to make their report, positively rejected this formulation on the basis that it was inappropriate for adoption. Their main reason for rejecting it was that, when analysed, it becomes clear that acceptance of it as a principle would mean that where, as would normally be the case, the issue was whether the court could or should overrule a parent or parents who was or were refusing consent to adoption, the court would in fact be obliged to overrule the parental wishes even if reasonable—I emphasise the words "even if reasonable"—if the court was of opinion that another decision by the parents would be better.
To add further to the point, the Government-sponsored Bill that was introduced likewise refrained from using the "first and paramount consideration" formula even though it used a different formula from what the committee recommended: the Bill as introduced required the court "to take full account of" the welfare of the child but in the House of Lords an amendment was made adopting for all practical purposes the wording recommended by the committee, which was "first consideration".
One further point may be noted from English experience. If a court had the right and duty to overrule the wishes of a parent on the basis of the court's own opinion about what would best serve the interests of the child and to do that even though the parent was unimpeachable and the parent's wishes reasonable, the court would be exercising a jurisdiction on the basis, only, of its own opinion and, certainly at times, on the basis of its idea of a balance of probabilities. The British Association of Social Workers, commenting on a Home Office consultation paper which apparently was issued before the enactment of the 1975 Act, said that it was
dangerous to imply that parental rights should rest upon a balance of probabilities about a child's future welfare; the logical extension of this could be arbitrarily to decide which families within the community are the most suitable for bringing up children and to transfer children from other families to them.
The quotation is as given in "The Children Act, 1975; Text with Concise Commentary" by M. D. A. Freeman, at page 72/3, and the author goes on himself to comment:
Myth would then supplant reality and poor parents would lose their children to middle-class families (cf. Jordan, Poor Parents, 1974).
I refer to these matters because I believe that they serve as a salutary warning against the grave danger of assuming that propositions that might sound— and even actually be—innocuous in a sociological essay can validly and safely be transplanted into a legal context, whether it be a constitutional context or even an ordinary statutory one. Words in the Constitution or a statute must be able to stand up to the scrutiny to which they are liable to be subjected in proceedings in the Courts and it is too late at that stage to say: "But that is not what I meant." True, a statute can be amended but, in a context such as the present one, not so easily as to prevent damage being done; and of course a constitutional provision, even if found to have repercussions of an unforeseen and undesired nature, is very difficult to change.
In setting out for the information of the House some material about experience in England as to the possible implications of the phrase "first and paramount consideration" when not subject to the overriding constraints of provisions such as the present provisions of our Constitution, I am not to be taken as saying that I regard the other phrase, namely, "first consideration", as suitable and appropriate in the context of a constitutional provision governing adoption. All I am saying is that, in such a context, it would be less objectionable than "first and paramount consideration", but neither phrase is necessary, or acceptable, in a constitutional context.
I have pointed out already that, when one speaks of disputes in the context of legal adoption, one is generally if not invariably speaking of a situation where there is a refusal to consent, or a withdrawal of a consent already given. Accordingly, I was glad to note that several speakers on the Private Members' Bill adverted more or less directly to this question of consent.
I refer first of all to the contribution made by Deputy Dr. Browne because he brought out very clearly the possible conflict involved and the need to recognise the role of the parent. In a less direct but nevertheless very significant way, the problem was touched on both by Deputy Cluskey and, in her reply to the debate, by Deputy Eileen Desmond. They spoke of the problem of the mother of an illegitimate child giving her consent to adoption when the child is only six months old, the problem being that, because of various pressures, some mothers might not be able to make a considered decision at that stage. In effect, these Deputies wondered if we should substitute a longer period for the period of six months to which they referred. It is those remarks that I had in mind when, towards the beginning of my speech, I said they had expressed fears which I shared.
Having regard to what they said, I think it may come as something of a shock to both Deputies to hear that the period is not six months but only six weeks. It was six months on the introduction of legal adoption in 1952 but the Oireachtas reduced it to six weeks in the Adoption Act, 1974. In other words, that Act allowed a mother to give a valid consent to the making of an adoption order when the child is only six weeks old and, apart from any waiting period that might be required by statutory regulations, it allows the Adoption Board to make an adoption order immediately after that period of six weeks. Even if such a period were to be prescribed—which in fact has not been done—the law is such that the board are authorised to give an exemption in any particular case. It is true that, in practice, the board would be most unlikely to be able to be satisfied with the suitability of a placement as early as six weeks after the birth of the child even if the placement were made immediately after birth, but the House should be under no illusion about the fact that, by the Act of 1974, the Oireachtas certainly envisaged that adoption orders could properly be made well before the expiry of the six-month period which Deputy Cluskey and Deputy Mrs. Desmond thought was already possibly too short. There is therefore much less legal protection than they thought for the mother's interests.
The law gives even less weight to the mother's interests than what I have said so far would indicate. One of the well-known features of adoption law is that a consent may be withdrawn up to the date of the making of an adoption order and accordingly it might be argued that, although a consent may be given when the child is six weeks old, the adoption order will not in practice be made for some time after that and the consent can be withdrawn if the mother meanwhile changes her mind. The position is not as straightforward as that because the withdrawal of consent may, in effect, be overruled. The reason is that the 1974 Act also introduced a provision to the effect that, if a mother agrees to place her child for adoption but later refuses formal consent, or withdraws a formal consent already given, an application may be made to the High Court for a custody order in favour of the people with whom the child is placed and the High Court may also authorise the Adoption Board to dispense with the mother's consent.
The House will appreciate that the very existence of those provisions for an application to be made to the High Court, no matter how reasonable they may be in themselves, can act as a deterrent to a mother who might be disposed to withdraw a consent already given, even if the consent was given as early as six weeks after the birth of the child. I think I would be correct in assuming that at least the three Deputies I have mentioned might be unhappy about this situation and I, for my part, believe that it needs to be looked at again. I have mentioned it now because it underlines in a very useful and specific way the grave dangers associated with any idea of a constitutional requirement that, in this area and irrespective of circumstances, the welfare of the child must be paramount. Putting it shortly, if the Constitution were to have such a requirement in relation to adoption, it would be open to be construed as meaning that a child could be taken from a mother against her will and adopted on the basis that, as a single parent, she would be unlikely to be able to provide for the welfare of the child as well as a suitable married couple with a confortable home and the means to provide the best possible education for the child.
If anybody were to say "But that is not what I mean", I would have to reply that that is not what some people mean, but it is not what they mean that counts but what the Constitution would say. Furthermore, let us be under no illusions about this. There is a school of thought which does not hesitate to say that neither unmarried mothers nor married parents should have any rights at all in relation to a child and that the value of the blood-tie is a myth. I received, shortly before Christmas, a document from a certain organisation which I do not intend to name for reasons that will be apparent in a moment but which is actively engaged in lobbying in relation to legislation governing children. Since the document, though written in 1976, was sent to me officially by the organisation only very recently, it must be taken as representing their current policy also. I will quote from it the following:
In judgments on consent, as in other matters, the welfare of the child should, if necessary, supersede parental rights where these conflict. Indeed, parents have duties, not rights. While having due regard to the rights or needs of a child to belong to his own natural family, the blood-tie in itself should be seen to be of little value to good parenting.
The statement that "parents have duties, not rights" is startling and, some might think, especially so where as in this instance the context in which it is made concerns the question whether a child should be taken away permanently from its natural parent against the wishes of that parent. It may seem possible at first sight to take such a statement as just a rhetorical flourish. But it is clear from the sentence that precedes it and the sentence that follows it that the statement that parents have no rights cannot be taken as just a rhetorical flourish. The preceding sentence, if it is to have any real meaning, must mean that where the parent concerned refuses consent to an adoption the question of whether the child should be adopted should depend entirely on the view taken by the court as to what will best conduce to his welfare. That, in turn, inescapably means that the court deciding the question would be required to disregard entirely the wishes of a parent, if the court considered that the child's welfare would be better served by his being adopted. As I have already mentioned, precisely that proposition was rejected in England in the context of the 1975 Act.
Let me say immediately that I feel sure that most of the people involved in that organisation would not really wish to see a baby taken away from its mother against her will simply on the basis that this would be for the child's welfare and that the mother has no rights. Yet, as I have said, that is what the document implies and I am afraid that that is precisely what some people, a minority, mean. I am happy to think, from what was said here in the debate on the previous Bill, that it is a view which would get little support in this House. I want to make it quite clear that it will get no support at all from me. It ought not to get support from adoptive parents or prospective adoptive parents because, if the rights of natural parents can be set aside, then likewise the rights of adoptive parents can be set aside and there will be no security in legal adoption. I fear that that is an aspect that has—quite understandably— not always been fully appreciated by some persons whose immediate interest was to bring to an end a possibly anxious waiting period and to obtain as soon as possible an adoption order for which they had applied, though on the other hand I believe that most adoptive parents would recognise the implications and would not in fact wish to see such a principle introduced.
The House will no doubt be glad to hear that that is all I have to say on the proposal for a constitutional amendment on that particular issue, but Deputies who have patiently borne my lengthy comments will have appreciated the serious reasons for the rejection in England of the expression "first and paramount consideration" as one appropriate for adoption law; and since our Adoption Act, 1974, incorporates that formula, they may wonder if what I have said against it implies that our 1974 Act is open to those objections or is likely to be interpreted as meaning that the wishes of a mother even if reasonable are liable to be overruled.
I am not dealing here today with that Act and I shall confine myself to a few brief comments. The provision in the 1974 Act was not in the Bill as introduced but was the result of an amendment put down in the Seanad and accepted by my predecessor. There are, therefore, no official records to show what meaning it was thought—or intended —to have in situations such as I have posed today. However, there were some references to that provision in the judgments in the recent Supreme Court case and, while I shall need more time to study their implications, I am glad to be able to say that they appear to suggest that the provision would not be interpreted as requiring or authorising either a court or the board to disregard the wishes of a mother, even a mother acting reasonably, merely on the basis that that would in the opinion of the court or the board be for the greater welfare of the child. I think it will be clear from what I have already said that, if the courts were in fact to give the provision any other interpretation, it would create a position calling for an immediate change in the law.
I cannot say, however, that I am entirely satisfied that the references in the two judgments I have mentioned are sufficient to obviate the need to study the provision further and I intend to do so as soon as possible.
I now return to the text of the Private Members' Bill. It contains provisions which propose the deletion from Articles 41 and 42 of the Constitution of the words "inalienable" and "imprescriptible", which are used in those Articles to characterise the rights of the family. It also proposes that equality of rights be accorded to all children without regard to status at birth. It further proposes to authorise the enactment of laws providing for the transfer of parental rights to substitute parents. These provisions could have very far-reaching consequences indeed, consequences which many people might find wholly unacceptable.
I recognise, of course, that one of the motivating factors of those who drafted the Private Members' Bill was the desire to remove the disabilities that attach to illegitimacy and I think that the overwhelming majority of people would sympathise with that aim. I doubt that anybody with a normal human sense of concern for others would want to see disabilities imposed or maintained for their own sake, or would want to punish innocent children. The general objective, therefore, would undoubtedly command almost universal support if and in so far as it can be achieved without undermining the legal support for the family unit in our society. That, however, is a difficulty and one which we have to face.
We ought first of all to recognise that there is a difference between social stigma and legal rights or lack of them. The social stigma of illegitimacy is no doubt considerably less now even than a generation or so ago. But in the matter of certain types of legal rights we ought not to adopt uncritically changes that have been made in other jurisdictions. It is a matter of fact rather than opinion that in the background to some of those changes is a widespread rejection in some countries of the institution of marriage by couples who, for a longer or shorter term, choose to enter into what is often called a "stable relationship". Thus in many instances, the approximation of the legal rights of legitimate and illegitimate children reflects a trend towards the rejection of marriage.
There are a number of differences in law between the position of the legitimate and illegitimate child. One of these is the right of inheritance. The consequence of the proposals in the Private Members' Bill would be that the illegitimate child would have the same rights as the legitimate child to succeed to his parents' property on their death. Apart from the principle involved, the unqualified elimination of the difference in the position of the legitimate and illegitimate child in this respect would, in practice, apply to some very different situations.
Thus the child born of a single encounter between a married man and a chance acquaintance would benefit to the same degree as the child of a long-term though irregular union. There are of course, some who will ask, "why not?" and, if one had to think only of the particular child, that too would be my attitude. But it really is not as simple a matter as that. In recent years our law has more and more come to recognise that the property of a family man is not something over which he ought to have unrestricted power as against his wife and their children. For example, we have on our Statute Book the Succession Act which effectively means that, to a significant extent, the property of a man at his death is to be regarded as family property. In more recent times—and with the support of all sides in the House—the Family Home Protection Act, 1976 and the Family Law (Maintenance of Spouses and Children) Act, 1976, reflect a growing awareness that a man's wife and family have rights in respect of what the law had traditionally regarded as his exclusive property.
There are sound practical reasons as well as reasons of major principle for those developments, not least being the fact that in most cases a wife and family make a large contribution one way or another towards the accumulation of whatever property may come to be possessed by the husband. A change in the law which, in practice, could result in a stranger to the family becoming entitled to an equal share with the child or children of the family or entitled to share in a way that diminishes the right of a wife or widow, could be very unfair as well as being, arguably, a very bad principle. We must remember also that in the normal course of events the person who succeeds to a parent's property is likely to be a middle-aged person rather than a minor. If, however, the person in question were in fact still a minor, there would be a very real possibility that it would be the child of an irregular union in which the male partner was a man who had deserted his wife and their family. That, of course, is not the child's fault but the law does not require that the child be ignored for inheritance purposes. A man or woman is perfectly free to leave property by will to his or her illegitimate child.
The central point at issue is that, as I believe, the vast bulk of the people in this country would not wish to see either the Constitution or the ordinary law changed in a way that could involve any serious erosion of the position of the family founded on marriage. That is not to say that no change in the law is feasible or desirable in regard to illegitimate children. My view at this stage is that a full analysis of all the factors might very well lead to an acceptance that there should be certain changes that would accord greater rights to illegitimate children than is now the case. That is the kind of analysis that I am confident the Law Reform Commission will in due course provide. I do not think there can be any doubt that the Oireachtas is quite free under the Constitution as it stands to make changes in that direction. It is, of course, possible that the provisions in the Constitution for the protection of the family founded on marriage might set some limits to legislative change in this area—it might be, for instance, that a law that deprived a wife and the minor children of a marriage of a proper share in the inheritance of property that the family had been involved in would run into constitutional difficulties. I do not think the Constitution ought to be changed on that account.
Turning now to the question of adoption of legitimate children, I would not be at all happy about a provision, such as that proposed in the Private Members' Bill, which would permit parental rights to be transferred against the wishes of the natural parents or which would permit parents, of their own volition, to divest themselves permanently of their parental duties. Obviously the law should, and does, provide that a child may be taken away and kept away from its parents if they ill-treat it intentionally or otherwise. The Constitution as it stands makes explicit provision for that and, as I say, the law already provides for it and there is no reason why the law in this area cannot be strengthened if the need for that arises.
But the pressure for a change to permit the adoption of legitimate children continues. A recent statement on this point as quoted in The Irish Press on 31 January is to the effect that this Bill does nothing to alter the position of those legitimate children whose parents are unable or unwilling to provide them with a stable home background.
People who make such statements should examine them more closely and consider where what they are proposing can lead.
There is no possible way of devising a system for the adoption of legitimate children which would not lead to the possibility of parents giving their children for adoption even if they were perfectly capable of rearing them themselves. No criteria of neglect or abandonment could eliminate collusion between natural and adoptive parents to fabricate neglect or abandonment. In any case, by what principle could the law provide that parents would be able to divest themselves of responsibility for their child by neglecting it—and thus freeing it for adoption—and not be able in a more responsible, even if still basically irresponsible, way to arrange for the adoption of their child by agreement with a more affluent couple? If adoption of legitimate children were to be allowed, there would be no valid option but to permit parents to hand over their children for adoption if they themselves so desired and I doubt that many people would seriously wish to see adoptions on this basis become possible.
Even if the adoption of legitimate children could be confined to abandoned or seriously neglected children, serious problems relating to the consent of the natural parents would arise. I must stress the uniqueness of adoption: it is permanent and irreversible; no change in the behaviour or circumstances of the parties can affect it. I do not believe that the public generally would accept a situation where parental rights—not just custody rights but all rights—would be permanently transferred against the wishes of the parents. That appears to me to be what the Private Members' Bill would involve in certain circumstances. Moreover, the argument that the proposal in this regard is not mandatory is not sustainable.
We must remember that, with the exception introduced in 1974, to which I have already referred and about which I have misgivings, the adoption procedure is based on the free consent of the parties. Supposing that a parent of a child who, for one reason or another, is not able or is not willing to rear the child in a manner that some of us might consider appropriate refuses to give his or her consent to its adoption, is the consent to be dispensed with at the behest of some agency? A great number of people would, I have no doubt, be very disturbed to think that they might be at risk of losing their children because some official felt that the children would be better off adopted. I have already quoted from two Supreme Court judgments which emphasise that the courts are most reluctant to disregard the wishes of parents in regard to the custody of their children. The need for caution is, of course, far greater when what is in question is adoption rather than custody. But some of those who advocate change in this area appear to think that such caution is unwarranted. Some people appear genuinely to believe that parents have duties not rights. In the matter of a "stable home background" we might ask ourselves if any of us would pass the test of some psychiatrists and psychologists. I would like to make it quite clear that while these observations are being made in the context of arguments about the adoption of legitimate children I would apply what I have said about parental consent equally to the mother of an illegitimate child.
Finally, I must make the point that legal adoption, while it is a great boon and far too valuable to be put at hazard by experimental ideas that have not really been developed, is not a cure-all for child care problems. It has to be borne in mind that children who have to be taken from their parents are often beyond the normal age at which adoption takes place and integration into a new family is not realisable in many cases. In most such cases, legal adoption would in fact be a very risky undertaking.
To sum up, I am convinced that it is necessary to amend the Constitution in the manner proposed by this Bill and, on the other hand, I believe that not only is there no demonstrable need for any further changes on the lines proposed in the Private Members' Bill but, on the contrary, that such changes would be very inadvisable. In fact some of them would, I believe, be unacceptable to some of the Deputies who spoke in favour of the Private Members' Bill because they themselves made observations —very important observations—which are really incompatible with what was actually in the Bill. For the benefit of any Deputy who may be disposed to look at English experience, I would reiterate, briefly, that they have consciously rejected, for instance, that adoption law should have a provision about the welfare of the child being first and paramount. All this is not to say that there is no room for change in, for instance, the laws affecting illegitimate children. Such changes can be made under the Constitution as it stands but the question of accepting or rejecting any such change should await the outcome of the deliberations of the Law Reform Commission.
I commend the Bill to the House.
