I welcome the fact that this Bill is before the House. There has bee need for some time to address the consequences of the judgment handed down by the European Court of Human Rights in the Keegan case to deal with the problems which have arisen with regard to some foreign adoptions. I will direct my initial remarks to the foreign adoption issue.
It came as no surprise to me that the provisions of the 1991 Adoption Act excluded the possibility of the Adoption Board recognising some adoptions effected by Irish people outside the State. When published by me in its original form no such difficulty would have arisen. It was Deputy O'Hanlon who insisted as Minister for Health, in return for the Government accepting its enactment, that certain amendments be made. I warned this would mean some adoptions would not be recognised. On the other hand, if I had not accepted those amendments, the effect would have been that the Government would have defeated the Bill and it would not have been enacted. I am proud to say the Adoption Act, 1991 has resulted in the region of 650 adoptions effected by Irish people outside the State being recognised.
I welcome the provisions in this Bill to change the aspect of the 1991 Act which has given rise to so much difficulty and which should result in the possibility of recognition being extended to adoption orders made in a variety of countries. There is, however, a degree of uncertainty outside the House as to the exact effect it will have.
The Adoption Board made available a list of the countries whose adoptions give rise to difficulties with regard to recognition. It is clear, as no doubt the Minister of State is aware, that in some countries there are two types of adoption process in operation pursuant to the legal system. The difficulty that arises is that under current law we will recognise one and not the other.
To get over this difficulty it would be helpful if the Minister of State would refer to the list of countries formulated by the Adoption Board and advise the House, whether based on the advise available to him, he is satisfied that those countries' adoptions can be recognised. In so far as there are countries whose adoptions still fall outside the net he should put this on the record.
This is a difficult and complex area. The general public is entitled to know not just in general terms that we are amending our laws to facilitate the recognition of foreign adoptions from some countries such as China but to have a clear list of those countries whose adoptions will be recognised in the future. That should not cause a difficulty for the Minister of State.
Anyone in this House who has shown any interest in the adoption issue during the years has been in receipt of correspondence from a small group of parents who have adopted through the ordinary form of adoption in Paraguay. They want to know where they will stand if this Bill is enacted. There are a number of other similar forms of adoption included on the list made available by the Adoption Board.
There are one or two issues on which the Minister of State might enlighten the House. There has been a difficulty in putting in place the workings of an agreement between the Irish and Romanian authorities to facilitate the continuing possibility of Irish people adopting children in Romania. From my knowledge, over two years ago there was a draft agreement in place which was about to be put into operation but I have been told that there are teething problems here. Will the Minister of State tell us whether it is working, what communications are taking place between the Department or the Department of Foreign Affairs or the Adoption Board and the relevant Romanian authorities and whether to date any adoptions have been completed in Romania by Irish persons living in the State under the terms of any such agreement?
The catalyst for this legislation was the desire of a number of Irish people to adopt in China. From the discussions I and others have had with the Chinese Ambassador and other Chinese representatives it is clear the Chinese authorities have no difficulty or objection to properly assessed individuals or couples from Ireland adopting children in ophanages in China who have no real possibility of every returning to a family life with their natural parents. The main concern is that, if Chinese adoptions are to be made in favour of Irish couples, they should be recognised in the State.
It is intended to enter into a formal agreement with the Chinese authorities to be operated under the auspices of the Adoption Board to facilitate couples in Ireland who have been assessed as suitable to adopt outside the State effecting an adoption in China? What timescale does the Minister of State envisage for the enactment of this Bill? How soon will it be possible for arrangements to be operational between this State and China?
I am aware of a number of couples who have the possibility of adopting in China if only the legal difficulties at this end were resolved. They have dealt with this matter by being assessed in Ireland as suitable and have dealt directly with the authorities in China having obtained in China the legal help they require. Will that option still be open to people or will there be a formalised arrangement in place between this State and the Chinese authorities? Is it intended to put formalised arrangements in place between this State and any other state to facilitate Irish couples adopting abroad?
I welcome the fact that this Bill will change the cut-off date in the 1991 Act with regard to adoptions effected by Irish people outside the State who at the time of adoption were resident in Ireland and did not go through the new assessment procedures when the Act became operational. I can well remember telling Deputy O'Hanlon and the officials of the Department of Health that the cut-off date they insisted be included in the Act was far too short and that a number of couples involved in completing foreign adoptions would not have those adoptions recognised. At that time I formed the view that once their plight and the numbers became known it was inevitable that retrospective recognition would be extended to those adoptions in a future adoption Bill. That is being done under this Bill and I welcome it, but this difficulty should not have arisen in the first place. It was created either by bureaucracy or by a lack of insight in 1981 into the timescale for the completion of foreign adoptions. There was an unnecessary harshness about the way the then Government dealt with that aspect of the issue. However, I was very grateful to that Government for ultimately accepting my Bill and for not engaging in what too frequently over the years has been the knee-jerk reaction of automatically rejecting an Opposition Bill. This Bill tidies up some of the difficulties which arose from the amendments the previous Government insisted be made to the 1991 Act. These difficulties should not have arisen in the first place and I thank the Minister for addressing them in this measure.
The second issue with which the Bill is principally concerned is the Keegan case. There is no doubt that the consequences of this case need to be dealt with by way of legislation. My concern in addressing the issue of the natural father's rights — an issue which must be addressed — is that in some instances children may be retained unnecessarily either in fosterage or a residential institution for un unduly lengthy period of time when they would be better off, during the early weeks or months of their lives, being placed with adopters in circumstances where adoption is inevitable. On Committee Stage we can tease out in detail some of the technicalities of the Bill as they relate to the position of natural fathers. I am strongly of the view that the rights of natural fathers and the rights of children to have a relationship with their natural father must also be protected. We need to ensure that we do not erect a barrier which could give rise to difficulties in the adoption process.
I wish to raise a matter which I hope the Minister will consider between now and Committee Stage. Section 7E (3) sets out how the Adoption Board can deal with adoptions in circumstances where a natural father, having been notified, advises that he does not wish to prevent the adoption taking place and what should be done in cases where the natural father clearly wishes to prevent the adoption and brings court proceedings. Will the Minister clarify what will happen if the identifiable natural father who is notified neither says he agrees to an adoption proceeding nor is opposed to it and simply does nothing? Should there not be a cut off date by which such natural fathers cannot impede the process? What is the position of a natural father who is notified and does nothing and a decision is then made to place a child? If the natural father takes a different view six or seven months later before the adoption order is made, will he be able to stop the adoption? The natural father will be in a different position from the natural mother in that he will not be a guardian and will not have the same constitutional rights as her, based on the court's current view of our Constitution. Even though the natural father has done nothing for an extended period of time he could at the very last moment veto the completion of an adoption by the Adoption Board. I hope we will have an opportunity to tease out these matters in more detail on Committee Stage.
My overriding view of the adoption process is that it must operate in the best interests of the children concerned. This is an essential prerequisite. While respecting the rights of parents and of adopters, we must ensure that we do not act in a way which is clearly contrary to the best interests of the children affected by the laws we are enacting.
I wish to refer to the provision which will prevent any further direct placements by a natural mother with third parties for the purposes of having a child adopted other than with third parties who are relatives of the natural mother. Up to now a natural parent could place a child with a person they knew, whether it was a relative or another third party who was not a relative. Concern has been expressed that this provision has been the subject of abuse to some extent in that in some circumstances people who have not been assessed for adoption or who have been assessed as unsuitable can, through personal contact with the natural mother, have a child placed with them in circumstances where such placement should perhaps not take place.
I understand these concerns but I am also concerned about the effect of the proposed blanket prohibition. I wish to deal with the most immediate oddity which arises from this provision. We have seen from the most recent reports of the Adoption Board that the adoption process is becoming dominated by adoption orders made in favour of natural mothers in conjunction with their husbands, that is in favour of the mother who has a child outside marriage, who subsequently marries someone who is not the father of her child and who adopts her child with her husband in order to give him the same parental rights. In 1994 43 per cent of all adoptions — that is 184 adoptions out of a total of 424 — were effected by birth mothers with their husbands. Will the Minister look at the provision dealing with direct placements? Are we proposing to criminalise natural mothers who jointly apply with their husbands to the Adoption Board for an adoption order? Is it being suggested that the natural mother has made some direct placement with her husband in such cases? This is a very serious issue. Will the criminal law become involved in such cases? Will the ludicrous position arise where a health board or an adoption society will have to separately assess the husband to determine whether he is suitable?
The Adoption Board has recommended that there should be different procedures to deal with this type of inter-family adoption. If possible, the Minister should provide for such procedures in the Bill. We certainly should not criminalise husbands in circumstances where adoptions are applied for jointly by them with the natural mother. In these circumstances the husbands will not be a relative of the child. Perhaps they are regarded as a relative of the mother and that solves the problem. Will the Minister clarify this point?
The Adoption Act, 1988, has been the subject of correspondence between me and the Minister's office. This Act allows for the adoption of children who have effectively been abandoned by their parents. The adoption applications are processed before the Adoption Board and the High Court has to make what can be euphemistically described as a freeing order which states that a child is free to be adopted by the people with whom he or she has been placed. In determining whether to make such an order the High Court is required, where appropriate, to have regard to the wishes of the child. For more than 100 years our custody and guardianship laws have provided that the courts may have regard to the child's wishes in cases where there is a dispute about the future upbringing of the child. For decades it has been the practice of judges, where appropriate, to interview children separately on occasion in chambers.
Appalling procedures are being adopted by a number of health boards whereby a child of four, five, six, seven or eight years who is the subject of a High Court application is brought to court and kept hanging around. A legal view has developed that it is necessary for the chid to be in the courts to witness the proceedings or, at the very least, to be outside the door of the court. This is a terrifying experience for a number of young children who have been adopted under the 1988 Act and has given rise to serious concerns about their future security.
The legal advice the Minister of State is getting that this is required under the Act is wrong and I say that in the strongest possible terms and I ask him to convey that to the health boards. The suggestion that because the Supreme Court made a decision about the constitutionality of the 1988 Act means there is an obligation to bring these children to court is a complete and utter nonsense and is not an issue that was ever pronounced upon by that court.
No child, particularly a young child, should be unnecessarily subjected to our court system where custody or adoption cases need to be resolved. This is a serious issue and needs to be addressed. If the Minister cannot address it by legislation, the Attorney General's office or the Adoption Board should ask the High Court by way of case stated to direct whether it is necessary that such children should be automatically brought into court in all such proceedings or whether lawyers acting in cases of this nature should ask a judge if he wishes to interview such a child. Where the judge feels the need to see the child appropriate arrangements can be made that do not involve children hanging around the courts for one, two or three days while a High Court hearing is taking place.