I welcome the fact that this Bill is before the House today. However, it is only correct that I say that the lethargy displayed by the Government in bringing this Bill before the House is little short of scandalous. It is over a year ago when a Private Members' Bill to provide for the adoption of abandoned legitimate children was introduced in this House by me on behalf of the Fine Gael Party. It is over a year ago since Government Deputies unitedly voted down that Bill, some of them doing so expressing doubts as to whether this reform was necessary. In fairness to the Minister, I should say he acknowledged that the reform was necessary and simply said he was going to introduce his own Bill.
It is estimated that there are between 1,000 and 1,500 children in long-term residential or foster care who could benefit from the possibility of adoption being extended to them. Those 1,000 to 1,500 children have had to wait a further year before that benefit could be extended to them because the Government saw fit to vote down a Private Members' Bill, many of the provisions of which largely correspond to those contained in this Bill. Any of the amendments that the Minister has made to the Private Members' Bill which we brought before this House and which are contained in this Bill, in so far as they will assist the position, could quite easily have been made during a Committee Stage debate on the Private Members' Bill in June of last year and the Bill could have become law over a year ago.
In welcoming the Bill it must be remarked that it is little short of scandalous that it has taken the Minister over a year to bring it into this House. The Bill was published in July 1987 and there was a Second Stage debate in the Seanad in July, 1987. Then virtually nothing happened with that Bill until end April/beginning of May this year when Committee Stage and then Report Stage were taken in the Seanad. That is most regrettable. I also think it regrettable that some of the protections that were provided for prospective adopters, contained in the Private Members' Bill that Fine Gael published, are not contained in this one.
At a later stage I intend to deal in detail with some of the problems inherent in the provisions the Minister has inserted in this Bill with regard to the costs that will be involved in the bringing of legal proceedings to effect the adoption of an abandoned illegitimate or legitimate child in the circumstances in which the Bill envisages that adoption orders can be made. Indeed, there is a great deal of confusion in what the Minister has said about that issue in this House today which shows a complete lack of understanding on his part of the reality of what happens currently when adopters find themselves thrown into the stress and upset of court proceedings, or when a natural mother finds herself thrown into the distress and upset of court proceedings when difficulties arise currently in processing an adoption application under the law as it stands, even without the enactment of this Bill.
In so far as the provisions of the Bill will extend the possibility of adoption to children currently deprived of that possibility, who have had, throughout their childhood no possibility of resuming a normal family life with their parents, the Bill is welcome. Indeed, it is noteworthy that, whereas in this jurisdiction we are only now getting around to allowing the adoption of abandoned legitimate children, since 1929 in Northern Ireland the laws there have allowed the adoption of such children. We are the last country in Europe to deal with this issue. It is an indictment of the ways in which this House deals with child care issues. We are great verbalisers in expressing public concern about the welfare of children. but we are extraordinarily lethargic, in the legislative sense, in translating our verbal concerns into legislative action that generally improves the position of children within this State. One wonders how many thousands of children since the foundation of this State have found themselves living throughout their childhood in residential care who, if our legislators had years ago, or even in recent decades, the insight into dealing with this area, could have benefited from having extended to them the possibility of living within a family, with the security of adoption extended to their relationship within that family. Indeed, as a result of the provisions of this Bill there are many children currently in foster care who will be provided with the possibility of a greater degree of legal security within a long-term fosterage relationship in circumstances in which relationships with their natural parents have long since ceased and where there is no possibility of that relationship being resumed.
One might well pose the question: how many thousands of children in years gone by could have benefited similarly? I am absolutely of the belief that, had not the Government publicly embarrassed themselves this time last year by voting down the Private Members' Bill introduced in this House by the Fine Gael Party, had they not experienced the backlash of adverse public reaction to their actions within this House in voting down our Bill, we would not have this Bill before the House today.
The Bill is here and I hope we can give it a relatively swift legislative passage. In saying that I hope also that on Committee Stage we can introduce a variety of amendments which I believe will be necessary to ensure that the Bill truly works in extending the possibility of adoption to the children it is designed to assist.
The Minister is correct in saying he has introduced a somewhat different measure to the measure introduced as a Private Members' Bill by Fine Gael or to the measure introduced by Deputy Desmond as Minister for Health during the course of the previous Administration. The Minister has given health boards a far more extended role under the provisions of his Bill than they were given under the previous Bills.
The procedure that is envisaged is that a child that has lived for approximately 12 months or longer in a fosterage arrangement can be adopted. In order for the child to be adopted first application will have to be made to the Adoption Board for the board to determine whether it would be appropriate for it to make an adoption order with regard to the particular child the foster parents seek to adopt. That is a procedure that is similar to the procedure in the previous Bill.
If the Adoption Board is satisfied it would be in the interests of a child that such an adoption order be made, having heard any submissions or held any oral hearings it feels are necessary which would involve the foster parents, the local health board, the Adoption Board's social workers and possibly also the naturral parents, the Adoption Board can give a preliminary adjudication that in its view it would be appropriate that a particular child be adopted. In order for the child to be released for adoption a High Court order will then be required and two different groups can apply for such order.
The Minister says that he primarily expects that under the provisions laid down in this Bill it would be the health board that makes the application. First the foster parents who want to apply to adopt the child will have to apply to the health board and ask the board to make the appropriate application to the High Court. The Bill says that if the health board considers it proper to do so an application may be made by it for an order.
We have eight different health boards in this country and each board applies different procedures in dealing with a variety of different matters that come under its jurisdiction. Each health board has social workers who work in the child care area. In my experience, despite the existence of departmental guidelines of a non-statutory nature which apply to the general area of child neglect, certainly in other areas beyond the areas in which the departmental guidelines apply, each health board employs a variety of different approaches and procedures in dealing with issues relating to children. Because the departmental guidelines are grossly deficient and do not cover a variety of areas in which there is a need to give guidance to health boards to ensure uniformity of approach, even in dealing with children at risk, different health boards operate different practices and procedures, and individual community care areas in individual health boards often simply because of the different personalities of the people involved in the individual community care areas operate and apply different procedures.
If a primary role is to be given to health boards in determining whether it is proper to make application to the High Court to have a child released for the purpose of adoption, there should be a provision in this legislation to require the Minister to provide, by way of statutory regulation, a minimum code of practice to be applied by health boards in the operation of the powers conferred upon them by this Bill. There should be some guidance to health boards as to what is meant by the phrase "if the health board considers it proper to do so". In what circumstances will the health board consider it improper to do so?
There are the obvious ones where clearly if a child is only in temporary care it would not be proper that it be adopted but presumably if that were the case the Adoption Board would not have autorised the completion of the first stage of the process, that is, a determination that it would be appropriate to make an adoption order. If there is a possibility of parents who have suffered temporary ill health regaining their health and properly and fully caring for their child, clearly in those circumstances, it would not be proper for an adoption order to be made.
Is it to be left to individual directors of community care who may simply have medical experience and medical expertise to determine in a particular health board area whether it is proper for a health board to go ahead and make such application? Will the decision be left to the senior social worker in the health board overall or in the community care area in which the child resides, or will it be left to the individual social worker who has been involved with a particular family to make these decisions?
Let us take the case of a social worker who is dealing with a family who have a number of inadequacies at a social work level, who is providing them with social supports and where that family is dependent on that social worker. If they have a child or children in long term foster care and have lost contact with the children or children, the social worker may realise the family is really not adequate to care for those children but nevertheless the social worker needs to maintain a good relationship with that family. Is the social worker going to have to stand in judgment and determine in those circumstances whether it is appropriate that the adoption order be made when he or she believes it is in the interests of the child that an adoption order be made, but that for her or for him to so inform a director of community care for the purpose of the health board making a decision could either end or jeopardise the relationship built up with the inadequate parents for whom the social worker is providing social support? Will that social worker deem it not proper to authorise the adoption of a child in the interests of maintaining a relationship with inadequate parents and of ensuring that the parents accept the social worker as an appropriate person to provide them with help with the various problems they have in the family?
What happens if there are some social workers or directors of community care or health boards, some of them doctors, some of their politicians, possibly none of them with any expertise in this area at all, who decide as a matter of health board policy that in no circumstances will this health board authorise an application to the High Court to provide for the adoption of a legitimate child? What happens then to all of the children in that health board area who are in long term foster care with no prospect of being returned to live with their own families where the health board itself decides that as a matter of policy they will never involve themselves in making such applications because the health board believes that no legitimate child should ever be adopted?
There is a great difficulty in determining what is meant by the phrase "if the health board considers it proper to do so". It is my belief that if the Minister wishes to give the health boards this central role this House should, in the context of this legislation, spell out some basic criteria the health boards should have regard to in determining whether it is proper to bring such applications.
This House should spell out that it would be improper under the terms of this legislation for a health board, as a matter of overall policy, to make a decision that it will never involve itself in making such applications either because, ideologically, that health board believes that no legitimate child should ever be adopted regardless of whether there is a possibility of it being returned to its parents or if the health board makes that decision for other reasons. What other reasons could the health board introduce as a matter of policy to ensure that no such applications were made by it with regard to children living within the health board area? We all know that the health boards at present are hard up for cash. We all know there have been massive cutbacks in the health area. We all know that the health boards have been looking at various ways in which to save money. I am not opposed to health boards providing efficient services at an economical level that does not result in excessive State expenditure — though I would argue with the Minister about his approach in that area. It is not a matter to be dealt with under this Bill.
In relation to this Bill, let us assume that a health board has 100 children in long term foster care in its area whose social workers are advising it that there is no possibility of their ever again living with their parents and that they have had virtually no contact with their parents for many years. They are children between the ages of, say, five and 12 who have not seen their parents since they were six or ten months old and whose parents have shown no interest in them. We have a health board — let us assume it is the Midland Health Board or the Western Health Board — who have been advised by their social workers that they have over 100 children on whose behalf such an application could be made. The health board decide, because this Bill provides no funding to enable them to fulfil their functions, that financially it is not on for them to process High Court applications to have children within their area adopted who should be adopted under the provisions of this Bill. If health boards are to play the role which the Minister envisages for them there is an absolute necessity for a uniform set of standards to be applied by all health boards which have statutory force.
Some of the matters that need to be dealt with should be incorporated in this Bill, others can be dealt with by way of a statutory instrument or statutory regulation. The scenario I am painting in the context of health boards opting out of fulfilling their statutory functions is not all that far fetched because we still have a number of health boards who are refusing to operate all the functions which they can operate under the family planning legislation because a majority of the members on the board object to so-called non-natural methods of family planning. As a matter of policy the health board do not provide any family planning services or provide the financial backup to provide such advice regarding artificial methods of contraception.
If a health board can rule as a matter of policy that it will not exercise statutory functions in the family planning area, it can equally as a matter of policy under this Bill determine it will not exercise the statutory functions assigned to it to enable the adoption of abandoned legitimate children. I have given the Minister some of the reasons that could arise. If he believes the health boards should primarily initiate these court proceedings and if he believes that in the vast majority of cases the health boards will do so and it will not be left to the applicants to adopt, he would need, if he is serious, to ensure minimum standards and set down criteria on the basis of which a health board would determine that it was proper that they involve themselves in the making of such an application. Otherwise, I believe there will be a number of health boards who will not exercise their powers. The central role which the Minister envisages for health boards under this Bill will not become a reality in parts of the country. Instead of having an Adoption Act setting a uniform law applicable throughout the country, it will be applied in differing and varied ways in different health board areas.
Another defect in the Bill, as drafted, is that there will be no way of knowing whether health boards are properly carrying out their statutory functions as envisaged in the Bill. There is no provision in the Bill which requires health boards, for example, to report annually on the number of applications made by a health board to seek to have a child released for adoption under the provisions of the Bill. If we are serious not only in seeking to ensure that we have on the Statute Book a measure that, in legal theory, extends the possibility of adoption to such children, there is a need not merely to ensure uniformity of approach on behalf of health boards but there is a need to monitor the performance of health boards and to ascertain within each area on an annual basis how many such applications are being brought by health boards.
Health boards should be required to provide annual statistics and information to the Department of Health as to the number of children it has in long term residential care and long term foster care. There should be a monitoring process so that, if it appears there are a large number of children in long term foster care and in long term residential care within a particular health board area and that that health board are not seeking to have any of these children released for adoption, a statutory power should be given to the Minister to require the health board to give an explanation as to why they are not seeking to have some of these children freed for adoption. There is a complete lack of monitoring provisions to ensure that health boards are operating correctly. The need for such monitoring provisions is emphasised by the lack of adequate current statistics as to what the position is in reality in this area.
In my opening remarks I have had to say that there are between 1,000 and 1,500 children in long term residential and long term foster care. I am not saying all of these children either will be or should be adopted under this Bill. Some of those in long term care may be there in circumstances where they are still having regular contacts with their natural parents and it would neither be in the children's interests nor the parent's interests, nor envisaged, that they would be adopted. The problem is we do not have up to date statistics. During a debate in the Seanad in July 1987 the Minister had to resort to quoting 1983 statistics regarding children in long term residential and foster care. When I tabled questions in this House to the Minister with regard to up to date statistics concerning the position of children in long term residential or foster care within each health board area I have, on a number of occasions, got the 1983 statistics — I got them in 1985, 1986 and 1987. The Department should ensure that health boards supply them annually with the necessary information. It will be even more important that that information is provided so that the Department and the House can monitor the manner in which the health boards are operating this legislation following its enactment.
The Adoption Board have a statutory requirement to make an annual report to this House of the number of adoption orders they make each year and must give certain other information with regard to adoption. That is to ensure there is a degree of accountability on the part of the Adoption Board for the statutory functions they have to fulfil. If we are now giving these statutory functions to health boards they should be similarly accountable.
The Minister in the Child Care Bill is setting up local child care advisory committees who will operate within each health board area. Perhaps it is possible for us to ensure that the necessary health board information as to how this Bill is being operated is supplied initially by the relevant health board personnel to the child care committees. It should not be kept spread between the different health boards with no central control, and the Department of Health and Members of this House, unless they happen to be members of local health boards, unaware of what is happening overall throughout the country. Therefore, I suggest seriously to the Minister that this obligation be imposed on health boards to provide information directly to the Department of Health and that an annual report be produced, possibly by the Minister's Department, on the basis of information being furnished directly to them by health boards, setting out the position with regard to the operation by each health board of the powers conferred on the health board by this Bill.
I want the Minister to explain in his reply what additional funding he is making available to health boards to enable them to fulfil their functions under this Bill in making application to the High Court. Also I want him to explain what additional funding he is going to provide to health boards to enable them to meet the legal costs incurred by natural parents and prospective adopters under the provisions of this Bill. The reluctance of health boards to involve themselves in any sort of High Court proceedings is evident in one area. Everyone in this House acknowledges the inadequacies of our child care laws. They have been documented and talked about for 25 years, and shortly we will be dealing with a new Child Care Bill which the Minister has brought before the House. In similar jurisdictions in other countries, England, Scotland, Northern Ireland, Australia, New Zealand and other common law countries which have a legal system similar to ours, where their legislation has on occasion proved inadequate to protect children at risk either local authorities or health boards or their equivalents in all those countries have resorted to using wards of court procedure to have children made wards of court and to get protection orders with regard to children where the ordinary care legislation cannot be used. It is noteworthy that that procedure is very rarely used in this country by health boards despite the inadequacies of our children laws. It has been used during the past 20 years on half a dozen occasions at most. That is because the health boards, despite the fact that the children have been at risk, have not wished to involve themselves in the expense of High Court proceedings. The Minister is imposing an obligation on them to so involve themselves under this Bill and there is a need to ensure that they exercise those powers.
The Minister referred in some detail to the provisions in the Bill with regard to the issue of costs. I want to deal with those in the context of the other option as opposed to the health board bringing an application. Health boards must consider whether it is proper to make an application to have a child freed for adoption, and this Bill now provides for a time limit in doing that. I think that was an amendment introduced on Committee Stage in the Seanad. If within a period of three months from the date upon which a request is made to a health board to make an application to the High Court the health board does not so do, the applicants to adopt can themselves apply to the High Court for such an order. The Minister, of course will tell me that if a health board as a matter of policy decide never to make such applications the prospective adopters as foster parents themselves can go ahead and do so; but of course, if as a matter of policy health boards can make such decisions they will not be playing the central role the Minister referred to. If under this Bill a health board take no action — and they may take no action, not because they think a child should not be adopted but because they do not want to incur the expense or the board themselves have made some sort of policy decision based on outdated and anachronistic views of social policy —the adopters can then bring their application to the High Court. My belief is that, if a child is in long term foster care and if as far as the foster parents know the child has lost all real contact with its natural parents and if the Adoption Board have already adjudicated, which they must under this Bill, that it is appropriate that the child be adopted provided the High Court will release it for adoption, a couple who have in good faith cared for that child and who in good faith want to adopt it and who because of our legal and constitutional system are forced to apply to the High Court to be allowed to adopt even after the Adoption Board have deemed it appropriate for the child to be adopted, that couple should not be placed at financial risk of incurring High Court legal costs.
The Minister has suggested that the provision he has now made in this Bill will protect the couple from incurring such costs. I say to the Minister it will not adequately do so and that there are a number of peculiarities about this provision which will require remedy. Unfortunately, much of what the Minister said today about legal aid and the new revolutionary changes being introduced is misleading. I do not believe the Minister is intentionally misleading the House. He may not understand in practice what happens in reality in this area. Maybe there is some breakdown in communication between the Minister for Health and the Minister for Justice or between their officials, but it is essential that this is teased out. This Bill will not work to allow legitimate children to be adopted if a couple fear they are putting themselves at risk of major financial outlay by seeking to adopt a child; and, as the Bill is presented at present by the Government, each couple who seek to adopt under its provisions will find themselves in that position if a health board refuse to co-operate with them, and there is no guarantee the health board will co-operate.
The Minister in his speech referred firstly to something called the Attorney General's scheme. That scheme has no relevance at present to this Bill. It applies in a completely different area. The Minister said that where disputes currently arise with regard to adoption adopters can get some assistance with their legal costs under the Attorney General's scheme. That is correct, and the Minister said correctly that the Attorney General's scheme has been criticised for being inadequate. He goes on to say that the new procedure he is now adopting will solve all these problems, so that this wonderful change has taken place, that now natural parents and adopters will be able to apply for legal aid under, I assume, the civil legal aid scheme.
I want to tease this out carefully. I dealt with this issue in this House at some length when I introduced the Fine Gael Private Members' Bill. I was accused by some members of the Minister's party of seeking to provide easy money for lawyers, something they like to try to use in this House whenever I introduce any law reforming legislation. I am interested in ensuring that all those who, bone fide, involve themselves in an adoption process as a result of this Bill or under existing legislation do not find themselves, through no fault of their own, involved in High Court and Supreme Court cases which could result in their incurring considerable outlay by way of legal costs. My only interest is to protect the adopters in those circumstances and to protect the natural parents who also, through no fault of their own, get involved in court proceedings.
Under the Adoption Act, 1974, a child may be placed for adoption by a natural mother. We will assume the child has been born outside marriage and that the mother is not married. She places her child for adoption with a married couple and she signs an agreement to do so. Six months after the child has been placed for adoption, the Adoption Board make contact with the mother and ask her to give what is known as the final consent. The mother is invited to consent to the adoption order being made, having previously agreed to the child being placed for adoption. The mother is uncertain, she has been thinking about the situation for six months and she is not quite sure if she wants her child adopted. She asks for a bit more time and, three months later, she is asked if she will consent. She still wants more, time, and five months later, she is again asked if she will give her consent. This time she also refuses and says that she wants her child back. The child has been with the adopters for well over a year, they do not know the mother and she does not know them. The child is bonded with them. The adoption society tell them that although the child has been in their care since it was one week old — the child is now 16 months — they regret to have to tell them that the mother wants her baby back and they ask them to return the baby. They refuse, they say the child has been with them since he was one week old and knows no other parents. They say he is part of their family and that he does not know his mother.
The adoption society tell the mother the adoptive parents have refused to give up the child. The mother says it is her child, she carried it for nine months and gave birth to it. She says she has made a terrible mistake and wants her child back. They end up going to lawyers. The mother brings High Court proceedings seeking to have her child returned to her. The adopters bring proceedings under section 3 of the Adoption Act, 1974, asking that they be allowed to retain the child in their custody and that the mother's consent be dispensed with so that the Adoption Board can make an adoption order. The adopters know nothing about the mother, apart from the fact that she has changed her mind; the mother knows nothing about them except that her child is with a married couple who, she has been told by the Adoption Society, are caring properly for her child.
Let us stop there for a moment. At present, what lawyers would they consult? Since the civil legal aid scheme was established in 1980, a non-statutory scheme, the mother has always been able to go into one of the Government law centres. There is nothing revolutionary in the Minister now telling us that the mother can go into such a centre. She has been always able to get legal assistance from one of the solicitors there, provided her means are such as to qualify her for civil legal aid. If she needed to bring court proceedings, she would be represented by counsel paid for through one of the Government law centres.
A whole series of cases have been brought under section 3 of the Adoption Act, 1974, in which mothers have been represented by one of the Government law centres. What the Minister has told us in regard to his arrangements with the Department of Justice is nothing new. Some mothers in these circumstances may not qualify for assistance in one of the Government law centres because they may be in full-time employment and their financial means may be such as not to satisfy the means test. If they bring court proceedings under the Attorney General's scheme, as it currently stands, they would employ a lawyer in private practice and, at the conclusion of the court case, a judge can make a recommendation that they get some help through the Attorney General's scheme in discharging their legal costs. Under that scheme, a small contribution is made by the Attorney General's office, usually one or two years after the case has concluded, towards discharging some of the legal costs incurred by the mother.
At present, the mother is not obliged to go into a law centre even if her means qualify her for legal aid. She can still go to a solicitor in private practice and she can get some of the legal costs paid for her through the Attorney General's scheme. There is nothing revolutionary about a mother in those circumstances going into a law centre. Equally, under this Bill if the Minister said nothing about legal costs, if the married parents under the Bill were in a position whereby they were seeking to prevent the High Court freeing their child for adoption and if their means and income were such that they qualified for legal aid in a law centre, under the current Departmental administrative rules which govern civil legal aid, they could go into a law centre and get legal representation.
What about the adopters? Currently, in regard to proceedings under section 3 of the Adoption Act, 1974, in theory they can get assistance from a Government law centre. In practice, most natural mothers qualify for it because their means tend to be low. Virtually no adopters can ever get legal assistance from a law centre because one of the suitabilities looked at is their financial circumstances. If a couple's means are so low as to render them qualified for legal aid from a law centre, it is unlikely that they would have been deemed suitable to adopt. Under the current scheme, prospective adopters can apply for assistance through a Government law centre but, if they make that application, they will be denied legal aid because they will not be able to fulfil the provisions of a means test.
Under section 3 of the Adoption Act, 1974, adopters go to lawyers in private practice and they then issue proceedings or defend proceedings brought by the mother. At the conclusion of the case, a recommendation could be made — until 1 April this year — that their fees should be assisted through the Attorney General's scheme. The Attorney General's scheme has been criticised because it did not fully meet the real legal costs incurred by adoptive or natural mothers in proceedings brought under section 3 of the Adoption Act, 1974. It was based on a scale of fees which bore no relation to the work involved or the nature of the court proceedings that take place in adoption cases. It was rightly criticised.
I would like to return to what the Minister has done. I do not know whether this is being done simply out of a lack of understanding of the problem, whether this is being done under the camouflage of a lack of understanding of the problem or whether the Government simply want to leave people who want to adopt under our existing laws legally high and dry when they find themselves in the state I described. The Government have surreptitiously and secretively removed even the small bit of assistance that the Attorney General's scheme currently extends to adopters caught in the type of problem I described.
I will go back to the couple who have had a child with them for 16 months and who are forced to bring proceedings. As they have had the child placed with them for adoption, presumably they would not qualify for legal aid through a law centre. The Minister has not said that the means test will no longer apply under the scheme in the context of adopters and natural parents. One assumes that the current means test will continue to apply. Let us say that the couple who have had the child with them for 16 months want to adopt the child but the mother has brought proceedings and taken them to the High Court. The couple bring proceedings asking the High Court to dispense with the mother's consent so that an adoption order can be made. Ultimately, the High Court case takes place and it runs for six days. High Court cases relating to adoption rarely run for less than three days when they are contested in the courts and often run to four, five or six days. Let us say that at the end of the case the adopters win, the court dispenses with the mother's consent but does not make an order for costs against the mother because everybody feels sorry for her position. Indeed, if such an order were made she would not have any money to meet it.
In such a case the adopters who have had a child placed with them by an adoption society, who know nothing about the mother, who are relying on social workers in the society to ensure that everything runs smoothly, find themselves through no fault of their own 16 or 17 months later in the High Court. In order to complete the adoption process the adopters have had to go through a six day High Court hearing in which they are represented by solicitors and counsel. The mother may have both senior and junior counsel whose fees are paid by a law centre. The adopters at the end of the six day hearing may be told by the High Court that they can adopt their child but they have to foot the bill for that. The mother may appeal to the Supreme Court and six months later there may be a two or three day Supreme Court hearing with the Supreme Court confirming the High Court decision. The adopters would finally be allowed to adopt.
As a result of the Minister's decision in terminating the application of the Attorney General's scheme the adopters will not get any assistance whatever from the State to meet the bill for the legal costs they have incurred. At the end of a six day High Court hearing, and a two or three day hearing in the Supreme Court, the costs may run into thousands of pounds. The adopters would have been forced to bring court proceedings through no fault of theirs to protect the welfare of a child placed with them and would have been held by the courts to have acted properly. In my view it is a scandal that the Government have abolished the scheme. The only reason there is not a public outcry about that is because it is too complex to explain what it is all about. It is not easy to translate it into a simple headline in a newspaper. In recent years there have been upwards of 60 adopters who have had to involve themselves in proceedings under section 3 of the Adoption Act, 1974.
The Minister should not be abolishing the Attorney General's scheme as it applies to adopters in these circumstances. He should be replacing it by a statutory measure which ensures that the full legal costs that the adopters incur in such court cases are met and discharged by the State. Instead, he has abolished the scheme. The Bill does not do anything for those adopters, but the Minister seems to be suggesting that abolishing the scheme is extending some great new benefit to the adopters. The Minister is saying to every adopter that, if a child is placed with him or her for adoption and if ten, 12 or 18 months later the mother changes her mind before the adoption order is made and finalised, the State will not do anything to help that person ensure that the welfare of the child placed with the adopter is protected by our courts adjudicating what should be done in the best interests of a child.
It is astonishing that the Minister is taking this course. If the Minister is going to say to me that there is something in the Bill of relevance to section 3 of the Adoption Act, 1974, and the court proceedings brought under it, I will in return say to the Minister that that is not so. If his officials so advise him they are wrong. I am concerned that — possibly not out of any malicious intent but merely out of a lack of understanding of what is involved — following the enactment of the Bill and the new procedures that will then apply there will be a number of adopters who will find themselves considerably at risk. They have been at risk financially for some years in these circumstances because of the inadequacies of the Attorney General's scheme, which needed to be changed to deal properly with this area.
However, even the small pittance of help that that scheme currently extends is being taken away under the Bill — not in the Bill itself but as a matter of practice, according to the Minister's speech. He has told us that the Attorney General's scheme will not apply any more in adoption cases. If the Minister means that he is only talking about the Bill and that the Attorney General's scheme will apply to cases brought under section 3 of the Adoption Act, 1974, he should tell the House. In that event he should explain to us why he should have one scheme for prospective adopters who have legitimate children or children born within marriage placed with them and another scheme applicable to adopters who have children born outside marriage placed with them. That does not make any sense.
The Bill varies substantially from the Fine Gael measure in that the Fine Gael measure sought to ensure that, whether applicants for adoption are seeking to adopt an abandoned legitimate child under the provisions of the Bill or whether applicants for adoption were seeking to adopt an abandoned child born outside marriage, as a result of proceedings brought under section 3 of the Adoption Act, 1974, the legal expense incurred by all adoption applicants would be met promptly by the State. I do not mind whether the expense is met through the health board, provided they are properly funded, through the Adoption Board, through the Attorney General's office or through the office of the Chief State Solicitor. I do not mind what the source is. But when we are taking about the welfare of children, when we are talking about adopters who find themselves through no fault of their own caught up in proceedings of this nature, the State has an obligation to ensure they are not put at a financial loss. The State has an obligation to ensure that the financial hardships that could result from being faced with High Court and Supreme Court proceedings do not prevent prospective adopters taking court actions where it is in the interests of the welfare of the child that they do so.
I want the Minister to explain the reason he appears to be providing one set of measures to protect prospective adopters in the area of legal costs who are seeking to adopt children who are, in effect, born within marriage, while removing a protection of a minimal nature that exists as a matter of practice for adopters who are seeking to adopt children born outside marriage.
There is another aspect of the Bill that gives rise to further concern. The Minister says that if a health board does not bring an application the adopters can bring an application and, if they succeed, the health board can foot the bill for the legal costs incurred by the adopters. Again, the adopters, apparently, must apply to a law centre. If one assumes the means test will rule them out, they will not get legal aid. Under the Bill as drafted, the adopters could in good faith in the interests of the child's welfare seek to adopt, yet the health board would still not meet their legal costs.
There is a curious difference in the treatment this Bill applies to the natural parents of the child whose adoption is sought and the prospective adopters. The natural parents who oppose the adoption application to the High Court and do not get legal aid through a law centre will have all their legal costs met by the health board, regardless of their financial circumstances. The adopters will only have their costs met by the health board if they succeed in having the child freed for adoption. If they do not get the order they are looking for from the court they will be penalised and will have to foot the bill for the legal costs themselves. That does not make sense.
It was suggested by the Minister of State, Deputy Leyden, in a moment of frankness in the Seanad that he was trying to construct some sort of impediment against adopters or foster parents making vexatious applications to the High Court and this is why there is to be no protection against legal costs for adopters who do not succeed in having a child freed for adoption by making an application under this Bill. Let us assume a foster parent has had a child for 18 months: what would be a vexatious application? It would be vexatious if the foster parent could rush into the courts and ask for an order freeing the child for adoption, without doing anything else. The courts might discover that throughout the period the child was in foster care he or she had been visited by the parent or parents and there was a possibility of the parents resuming care of the child. Under this Bill no foster parent can unilaterally run into the courts and do anything. There is a sifting procedure.
Before any foster parent can ask the courts to free a child for adoption, the Adoption Board must hold a preliminary hearing. They must hear what has to be said by the health board, the adopters, and the natural parents and must make an adjudication as to whether it would be appropriate in the best interests of the child to have it adopted and must indicate whether it would or would not have it adopted if the child were freed for adoption. The role given to the Adoption Board is a protection against anybody making a vexatious application. Neither the health board nor the adopters can be the moving parties in an application to the High Court for an order freeing a child to allow it to be adopted unless the Adoption Board has already made an order that it would be appropriate for the child to be adopted, on the basis of the information available to them and the assessments carried out by their social worker.
Under this Bill foster parents who have had a child placed with them for two or ten years may go through the Adoption Board procedure which results in the Adoption Board deeming it appropriate that an adoption order be made. They might succeed in getting an order in the High Court that the child be freed for adoption, but the natural parents could appeal to the Supreme Court. For technical reasons of constitutional law the Supreme Court could rule out the possibility of that child being freed for adoption, even though it might be in the interests of the child's welfare to be adopted. If that happened the adopters could not have their legal costs met by the health board. They would be penalised for the fact that they had lost in the Supreme Court. They might have lost in the High Court due to technical legal reasons or something could have emerged during the course of the hearing about the background of the natural parents that the foster parents knew nothing about since the health board never communicated it to them for reasons of confidentiality. That matter relating to the natural parents, about which the adopters knew nothing, could be the determining factor in the High Court's deciding the child should not be freed for adoption, even though in the absence of that factor it may have appeared quite reasonable that it should.
This Bill should ensure that foster parents or prospective adopters who make a bone fide application to the High Court to have a child freed for adoption, having already had it deemed appropriate by the Adoption Board that the child should be adopted, will have their legal costs met by the health board, whether they win or lose their case. If they are acting in good faith and the child has been in their care for some time and if it has been deemed appropriate by the Adoption Board, there is no rational reason for penalising them and requiring them to pay their own legal costs. All adopters under this Bill could find themselves in a situation where natural parents were automatically taking every case from the High Court to the Supreme Court because they were protected against any possible financial loss, even if they lost the case. All adopters could be at risk of losing out on the possibility of adopting a child whom they wish to adopt because of the dangers of some technical legal issue arising in a Supreme Court appeal.
This Bill does not provide the protections for adopters the Minister has suggested. It leaves every adopter vulnerable where court cases have to be taken. There is no guarantee in the Bill as drafted that any health board will act within the three months laid down to commence court proceedings. There is no protection against any health board refusing as a matter of policy to bring any proceedings of this nature. Prospective adopters, foster parents who have had children with them for many years and who will remain with them for the rest of their childhood, are given no real protection in circumstances where a health board does not act. It is even more extraordinary that the Minister has removed protections available to adopters under existing practice. I hope the Minister will look again at this aspect of the Bill. I am sorry for spending so much time on this point and I apologise to other Members but it is a central and crucial issue. It appears that the way section 3 of the 1974 Act is operating is not understood by the Minister's officials. If it is, I do not know how he could have been given such advice.
The Minister correctly says there are different legal views as to the constitutionality of allowing the adoption of legitimate children. The Minister's Bill and the previous Bills which have come before the House have sought to take into account the difficult constitutional environment in which this legislation must operate and have reflected the language contained in the Constitution with regard to children's and parental rights. It is essential that there should be a degree of certainty in the area of adoption and that couples who adopt know that adoption orders are valid. When introducing the Fine Gael Private Members' Bill in this area I expressed the hope that if the Bill got through the Dáil and the Seanad it would be referred by the President to the Supreme Court under Article 26 of the Constitution for a determination as to its constitutionality.
The Minister said in his speech today that he believes this Bill is constitutional and that he has been so advised by the Attorney General's office. I ask the Minister — I know it is an independent function of the President — to publicly make it known, as I am now publicly making it known that it is in the interests of ensuring the proper working of this legislation that at an early stage a decision is made as to its constitutionality. This Bill should be referred by the President, as my own Private Members' Bill should have been if it had been successful, to the Supreme Court under Article 26 so that there is an adjudication as to its constitutionality and so that prospective adopters and natural parents do not, under proceedings brought under the Bill, find themselves embroiled in a whole series of constitutional actions to tease out the constitutionality of the measure.
