I move amendment No. 1:
In page 4, subsection (1) (a), line 5 to delete "if the health board considers it proper to do so" and substitute "if the health board considers it in the best interests of the child to do so".
This section sets out the procedure whereby a person in whose favour the Adoption Board have made a declaration under section 2, which we have accepted, can request a health board to make application to the High Court, in effect, for an order freeing a child for adoption. The position under the Bill will be that prior to a couple being in a position to make such an application they will normally have acted for a minimum of 12 months, and possibly for a good deal longer, as foster parents to that child. They will then have had to make application to the Adoption Board for the board to make a determination that they regard it as proper and in the interests of the child that an adoption order be made.
Before the Adoption Board can make such an adoption order and because of the constitutional position, it will be necessary for the High Court to make a determination on the basis of the criteria laid down in section 3 as to whether a child can be freed for adoption. Section 3 states that either a health board can make that application or it can be made by the foster parents. The intent of the Bill, as the Minister described it on Second Stage, is designed to ensure that in the majority of instances such applications be made by health boards. Despite the Adoption Board making a decision as to the appropriateness of a child being adopted, the health board will not be under a duty to make an application in respect of a child to the High Court to free that child for adoption. The health board will have a discretion which they can exercise in determining whether to make such an application. Under subsection (1) (a) a health board can make such an application if they consider it proper to do so. No other criteria are laid down that the health board must comply with.
I submit that where it is in the best interests of a child that the health board make such an application they should do so. There should be no ambiguity as to the basis on which a health board should exercise their powers or functions under the Bill. Accordingly, I am proposing that subsection (1) (a) be amended and that the words, "if the health board considers it proper to do so", be deleted and substituted by the words, "if the health board considers it in the best interests of the child to do so". I should like to ask the House to support that amendment. I submit that in determining whether an application should be made a health board must have some guidance. I do not know what is meant by the phrase, "if the health board considers it proper to do so". The Minister might explain in what circumstances a health board might consider it improper in regard to a child whose adoption the Adoption Board have already considered appropriate.
It is not the health board who will make the decision as to whether a child should or should not be adopted. Ultimately, it will be the High Court who will determine whether the child should be freed for adoption. The health board should afford the High Court an opportunity of making the appropriate determination, bearing in mind the constitutional rights of the child and of the natural parents and taking into account the reality of the child's family circumstances where a child has been in foster care for a lengthy period of time and where the adoption board have already, in a sense, acted as a filter to determine whether a child should be considered for adoption. To impose a duty on the health board, where they consider it in the best interests of the child to do so, to make such application would be to do something that this Bill is designed to do which is not only to balance the rights of parents and ensure they are properly protected but also to ensure that the welfare and the better interests of the children are protected. That would be the criteria to which the health board would have regard.
The health board, of course, are not compelled by paragraph (a) to make an application in any case. They have a discretion as to whether they should be so or not. The discretion should be exercised on the basis of the best interests of the child and not on whether the health board consider it proper to make such application. If the health board decide not to pursue the matter, the section allows the foster parents to initiate court proceedings. Problems arise with that and we can deal with some of them when discussing the substantive section. Problems could arise in the context of the risk the foster parents might place themselves in with regard to incurring legal costs for such court proceedings.
I ask for support for this amendment. In doing so I draw to the attention of the House that if this Bill is truly concerned with ensuring that children who have been in long-term foster care have the possibility of being adopted, the criteria the Bill lays down as to the basis upon which the health boards should make decisions are far too broad. For example, the health board consider it not proper to make such application because they have their own financial difficulties. They might regard themselves as being deprived by central Government of the necessary funding to carry out their functions. This Bill confers a power on the health board to make such applications but does not, in the context of the health board doing so, expressly provide any additional financial allocation to health boards with regard to the legal costs they will incur in processing High Court and, in some circumstances, Supreme Court cases.
It seems there are a variety of extraneous criteria the health board could have regard to such as I suggested on Second Stage. It would be possible for the health board, as a matter of policy, to decide, because they did not like the idea of abandoned foster children who were born to a married couple being adopted, that they will never make such applications. By ensuring that the health board operate on the basis of the best interests of the child rather than simply making decisions on the basis that they consider it proper to do so, it would ensure that that sort of eventuality could not take place and that the intent of the Oireachtas in this measure could not be frustrated by a recalcitrant health board who are unwilling to use this measure to protect the welfare of children or who wish to engage in some sort of political ball play with the incumbent Minister for Health in trying to embarrass him or her into providing additional funding for a health board who felt they had not got adequate funding to enable them to carry out their statutory obligations.