I move: "That the Bill be now read a Second Time".
The purpose of this important Bill is twofold. First, it contains the Government's legislative response to the judgement of the European Court of Human Rights in the case of Keegan v. Ireland. Second, it provides for certain amendments of the current law on the recognition of foreign adoptions.
Before dealing with the individual provisions of the Bill, it might be helpful to the House if I outline the background to the Bill. The judgment of the European Court of Human Rights in the Keegan case was in favour of the father of a child born outside marriage who was adopted against his wishes. The relationship between him and the child's mother lasted for two years, during one of which they cohabited. The pregnancy was planned and they were also planning to marry. However, early in the pregnancy the relationship broke down. Shortly after the birth, the child was placed for adoption by an adoption agency at the request of the mother but without the knowledge of the father. As soon as he discovered this, he sought to block the adoption by applying for guardianship and custody of the child. His applications, which went as far as the Supreme Court, were ultimately rejected and the child's legal adoption was finalised in 1990.
Mr. Keegan then brought an application before the European Court of Human Rights under the European Convention on Human Rights. On 26 May, 1994, the European Court delivered its judgment. The court found in favour of Mr. Keegan on two grounds. It held that his relationship with the mother of the child had the hallmark of family life for the purposes of Article 8 of the European Convention on Human Rights. The fact that Irish adoption law permitted the secret placement of the child for adoption without his knowledge or consent amounted to an interference with his right to respect for family life under Article 8. The court also upheld, as a violation of Article 6 (1) of the Convention, Mr. Keegan's complaint that he had no right to challenge the adoption placement and had no standing in the adoption procedure. The judgment did not affect the validity of the adoption order made in respect of the child, nor did Mr. Keegan wish it to.
In accordance with Article 53 of the convention, the State is obliged to make the necessary changes to our domestic adoption laws in order to bring them into line with the convention. These changes are provided for in the Bill now before the House.
I should mention at this stage that a number of important developments, aimed at giving greater recognition to the position of the father of a non-marital child, has taken place in Irish adoption practice since the Keegan case was determined by the courts here in 1990. These developments are designed to ensure that adoption agencies endeavour to consult fathers and ascertain their attitude before children are placed with adopting parents. While these changes occurred too late to benefit Mr. Keegan, they are acknowledged by the European Court of Human Rights in its judgment. These measures form the basis of the Government's legislative response to the judgment.
Central to the Government's approach is the introduction of a new statutory procedure for consulting fathers of a non-marital child, before the child is placed for adoption by an adoption agency, so as to afford him an opportunity of exercising his right to apply for guardianship and-or custody of the child, if he so wishes. Where a father raises no objections, the placement may proceed without further reference to him. However, if he is opposed to the adoption, the placement must be deferred for a short period to enable him to institute proceedings for guardianship and-or custody of the child. If the father's application for guardianship is granted by the court, then the adoption cannot proceed without his consent. If he is awarded custody of the child, then that will effectively be the end of the matter as the child will no longer be available for adoption.
The advantage of this approach is that, since the child would not have been placed with adopting parents, the question of the child developing bonds with a new family would not arise. This was a crucial factor in Mr. Keegan's case which ultimately militated against him.
The Bill provides for certain exemptions from the requirement to consult the father. It also provides for the prohibition of the direct placement by the mother of a child for adoption with non-relatives. I will address these two matters in some detail when dealing with the relevant provisions.
It has to be acknowledged that the introduction of a consultation procedure will give rise to some delays in the placement of children for adoption. However, this is unavoidable in order to facilitate the exercise by a father of his right to apply to court for legal rights in relation to the child which, if successful, would entitle him to veto the adoption. In this context, I must stress that the absence of such a provision in Irish adoption law is at the heart of the judgment of the European Court in the Keegan case.
At the same time, however, it is important to keep the sense of proportion in relation to the involvement of fathers of non-marital children in the adoption process. It is not envisaged that the introduction of the new statutory consultation procedure provided for in the Bill will result in any significant increase in the number of fathers wanting to take on legal rights and responsibilities. Experience since 1990 indicates that in the majority of cases, the father shows little or no interest in the child and does not seek to be involved in the adoption process. This is borne out by the statistics of the Adoption Board for 1994. Of the 199 adoption orders made during 1994 for children placed by adoption agencies, in 34 cases only was there contact between the agency and the father.
The Bill also provides for certain amendments of the Adoption Act, 1991, which contains the current law on the recognition of foreign adoptions. The main purpose of these amendments is to facilitate the recognition here of adoptions effected in countries, such as the People's Republic of China, whose adoption laws permit the termination or revocation of adoptions in particular circumstances.
Deputies will recall that earlier this year Deputy Woods introduced a Private Members Bill proposing to recognise Chinese adoptions effected in favour of Irish residents. While the Government was sympathetic to the overall objective of that Bill, it found itself in the position of having to oppose it because the proposals contained in it were fundamentally defective. If implemented, they would have created anomalies in our statutory recognition system and would have resulted in the inequitable treatment of different categories of adopters and of adoptions effected in different countries. At the time, I gave an undertaking on behalf of the Government that specific legislative proposals would be brought forward to address the difficulties that have emerged in the operation of the 1991 Act. The carefully framed amendments of that Act are contained in sections 10 to 15 of the Bill before the House.
The House will be aware that an appeal to the Supreme Court by the Adoption Board against a decision of the High Court to recognise Chinese adoptions is pending. I understand that this appeal is due to be heard tomorrow. However, irrespective of the outcome, the Government considers it desirable that the position generally should be clarified in legislation as the adoption laws of a number of countries, other than the People's Republic of China, permit the termination of adoptions in certain circumstances.
The opportunity is also being availed of to make certain other worthwhile changes to the 1991 Act. The most significant of these is the extension of the deadlines for the recognition of adoptions effected abroad in favour of Irish residents who had not completed the pre-adoption assessment procedures introduced by the 1991 Act. A small number of cases have come to light in which the adopters were unable to finalise the adoption process in the foreign country concerned until after the deadlines. The Government considers that it is in the interests of the children concerned that their legal status here be regularised.
I will now turn to the main provisions of the Bill. Section 1 contains definitions of key terms used in the Bill. Section 2 provides for the insertion of new and substitute definitions in section 3 of the Adoption Act, 1952, which is the principal Adoption Act. The revised definition of "relative" includes a member of the extended family of the father of a child.
Section 3 empowers the Adoption Board, with the consent of the Minister for Health, to make rules governing the new procedures for consulting the fathers of children being proposed for adoption. Section 4 inserts a new Part IA — sections 7A to 7F — in the Adoption Act, 1952, setting out various requirements to be followed by adoption agencies before placing children for adoption.
Section 7A provides that "father" for the purposes of the new Part IA includes a person who believes himself to be the father. This is to ensure that a father whose paternity has not been formally established will not be excluded from being consulted.
Section 7B imposes a restriction on the placing by an adoption agency of a child under the age of four weeks for adoption. This new restriction is necessary in order to ensure that a child will not be placed with adopting parents by an adoption agency before the father has had an opportunity, following the birth of the child, to notify the Adoption Board of his wish to be consulted. However, it should be noted that a child may be placed for adoption within four weeks of birth where the father has been consulted and raises no objections, or where the agency has been exempted by the Adoption Board from the requirement to consult him. At present a child may be placed for adoption immediately after birth, although the mother may not give her consent to the making of an adoption order until the child is as least six weeks old. As most children are not placed by agencies with prospective adoptive parents within the first six weeks of birth, this restriction will have little or no impact on present adoption practice.
Section 7C enables a registered adoption society, in accordance with regulations made by the Minister for Health, to arrange for appropriate care for a child pending his or her placement for adoption. This will give registered adoption societies specific statutory authority to make interim arrangements for the care of children. The health boards are already covered by the Child Care Act, 1991.
Section 7D contains a new statutory procedure to enable the father of a child to notify the Adoption Board of his wish to be consulted in relation to (a) a proposal by an adoption agency to place the child for adoption, or (b) an application by the mother or a relative of the child for an adoption order relating to the child. Such a notice may be given before the birth of the child.
Section 7E requires an adoption agency proposing to place a child for adoption to endeavour to ascertain the identity of the father, including requesting the Adoption Board to provide it with a copy of any notice received from the father. Where the identity of the father is known to the agency, it must take such steps as are reasonably practicable to consult him about the proposed placement. Where a father indicates he has no objection, the agency may proceed to place the child with adopting parents. If a father objects to the proposed placement, the agency must notify him and the mother that it is deferring the placement for a period of not less than 21 days for the purpose of affording him an opportunity to make an application to court for guardianship and-or custody of the child. If notice of such an application is not received within the deferral period, the agency may then place the child for adoption.
However, if at any time before the child is placed for adoption the agency receives notice of an application to court by the father, the agency will be precluded from continuing with the placement until the court proceedings have been concluded. Provision is made for the expedition of any such proceedings in the best interests of the child concerned.
Section 7F provides for exemptions from the requirement on an adoption agency to consult the father in the following circumstances: (a) where the agency is unable, after taking such steps as are reasonably practicable, to consult a father whose identity is known to it; (b) where the nature of the relationship between the father and the mother or the circumstances of the conception of the child are such that it would be inappropriate to contact the father, for example in the case of rape; (c) where the identity of the father is unknown to the agency and the mother refuses to reveal his identity; (d) where the mother makes a statutory declaration stating that she is unable to identify the father and the agency has no other practical way of ascertaining his identity.
The approval of the Adoption Board must be obtained to the placing of the child for adoption in the case of (a), (b) or (c).
As the House will appreciate, it would be impracticable to impose an absolute requirement that the father be consulted in every single instance. Cases will inevitably arise where it would be inappropriate to consult a father about a proposed adoption placement. Where, for example, a child is conceived as a result of a casual relationship during a holiday romance and the father is not even aware of the birth of the child, it would be unreasonable to require an adoption agency to contact the father since such a relationship could not be deemed to have the hallmark of a family life within the meaning of the European Convention on Human Rights. Similar considerations apply in the case of rape or incest.
Most difficulty will arise where the mother refuses to reveal the identity of the father. I have considered whether the placement of a child for adoption should be prohibited in such circumstances. However, I have concluded it would not be in the best interests of the child to deny him or her the possibility of becoming a member of an adoptive family where the mother does not intend to bring up the child herself, and it is clearly her wish that the child be placed for adoption. I am conscious of the effect a requirement to name the father could have on mothers. In an extreme case, a woman might opt for an abortion rather than allow the father to have any involvement in the post-birth situation. The Bill accordingly provides that where a mother refuses to name the father, the adoption agency must counsel her to attempt to obtain her co-operation. A mother cannot be compelled to name the father and this is as far as the law can go in the matter.
Section 5 extends the present categories of persons entitled to be heard by the Adoption Board on an application for an adoption order to include, among others, the child and the father or a person who believes himself to be the father. Conferring a statutory right on the father to be heard on an adoption application addresses the finding of the European Court of Human Rights in the Keegan case that he had no standing in the adoption procedure.
Section 6 sets out new consultation procedures to be followed by the Adoption Board where an applicant for an adoption order is the mother or a relative of the child and no adoption agency has been involved in the case. The board must take such steps as are resonably practicable to consult the father in relation to the application. It may arrange for a health board to assist it in carrying out its functions under this section. The board is exempted from the requirement to consult the father in the same circumstances as are provided for in section 7F.
Section 7 prohibits a parent from placing a child for adoption with a person who is not a relative of the child. It also prohibits a person from receiving a child who is not a relative of that person for the purpose of adoption otherwise than from an adoption agency.
The purpose of these measures is to ensure that private adoption placements cannot be used as a means of circumventing the new procedure for consulting the father in cases where the mother does not want him to have any say in the matter.
However, there are other compelling reasons for prohibiting the direct placement by the mother of her child for adoption with non-relatives. The Adoption Board, in successive annual reports, expressed grave concern about such placements because they lack proper safeguards for both the child and the mother. In the case of replacement arranged by an adoption agency, the prospective adopting parents will have undergone a detailed assessment of their general suitability. This pre-placement assessment provides an essential safeguard for the welfare of the child, a safeguard which is absent in private adoption arrangements. Indeed, it is not unknown for the adopting parents in such cases to have previously been turned down by an adoption agency. The involvement of an adoption agency also provides an important protection for the mother. She is assured of receiving non-directive counselling about the wisdom of adoption in her particular circumstances so that if she decides to have the child adopted, her decision is an informed one. In a private adoption, there is no guarantee that the mother receives objective counselling as to the appropriateness of adoption. In fact, experience has shown that the mother's position is often compromised.
A further disturbing feature of private adoption arrangements is the possible involvement of third parties, which is of course illegal. In a number of cases investigated by the Adoption Board, it emerged that the mother did not know the adopting parents prior to the pregnancy and that they were put in contact with one another by a third party.
If a child is available for adoption, there is a duty on the State to ensure the best possible placement for the child with a couple who have been properly assessed and who are considered by those with professional skills in such matters to be most likely to meet the child's needs. I am reinforced in my view by a letter I have received from Treoir, the Federation of Services for Unmarried Parents and their Children, which lends its unequivocal support to the prohibition on private adoptions provided for in section 7.
Section 8 provides that it shall be an offence for a person knowingly to make or furnish any false or misleading statement or information to the Adoption Board or an adoption agency. Section 9 deals with offences generally and provides, among other matters, for the prosecution of offences up to 12 months after they were committed.
Section 10 provides for certain modifications to the definition of "foreign adoption" contained in section 1 of the Adoption Act, 1991. This is intended to facilitate the recognition under Irish law of adoptions effected in countries, including the People's Republic of China, whose laws permit the termination of adoptions in particular circumstances.
Paragraph (b) of the existing definition of a "foreign adoption" requires an adoption effected abroad to have essentially the same legal effect as an Irish adoption order in relation to the termination and creation of parental rights and duties. This condition has given rise to most difficulty, particularly in relation to the recognition of adoptions granted abroad which are broadly similar to an Irish adoption in their legal effect, apart from the fact that they may be terminated in particular circumstances prescribed by the internal law of the country concerned. In order to provide for the recognition of such an adoption, the words "for so long as it is in force" have been incorporated into the substitute condition, "essentially" has been modified to "substantially", and "parental rights and duties" has been replaced by "guardianship".
Paragraph (d) of the existing definition of a "foreign adoption" provides that the law of the place where the adoption was effected required the relevant adoption authority, before effecting the adoption, to give due consideration to the interests and welfare of the child. While Chinese adoption law does not specifically contain such a requirement, it is founded on the principle that "adoption shall be in the interests of the upbringing and growth of adopted minors". Accordingly, the substitute paragraph (d) is designed to facilitate the recognition of adoptions effected in the People's Republic of China and in other countries whose adoption laws have as their fundamental purpose the promotion of the welfare of the child.
Section 11 provides for a technical amendment of section 2 of the 1991 Act. Section 12 extends the grounds for the recognition of a foreign adoption effected in a place other than that in which the adopters were domiciled or resident on the date of the adoption. At present, such an adoption will only qualify for recognition here if it is recognised in the country where the adopters were living at the time of the adoption. The new provision is designed to deal with cases where persons who, while living in an Islamic country or a country whose laws do not provide for the recognition of adoptions, adopt a child in some other country. I am aware that a number of Irish citizens have found themselves in this situation and the new provision will be of particular benefit to them.
Section 13 extends by 12 months the deadlines set out in the 1991 Act for the recognition of adoptions effected abroad in favour of Irish residents who had not completed the pre-adoption assessment procedures introduced by that Act. As I have already mentioned, a number of Irish residents were unable to finalise the adoption process in Romania and in certain other countries before the deadlines. The purpose of the extension is to ensure that their adoptions will qualify for recognition.
Section 14 provides for technical amendments to section 6 of the 1991 Act. Section 15 amends section 7 of the 1991 Act, which empowers the High Court to give directions in relation to entries in the register of foreign adoptions maintained by the Adoption Board. The amendments are designed to deal with situations where a foreign adoption which has been recognised here is subsequently terminated under the law of the place where it was effected. A person seeking to have recognition withdrawn must apply to the High Court for an order directing the board to cancel the entry in the register. The court shall not give such a direction unless satisfied that it would be in the best interests of the adopted person to do so. Where the court gives such a direction, it may make such orders as appear to it to be necessary, including orders relating to the guardianship, custody, maintenance and citizenship of that person.
Section 16 provides that sections 2 to 9 shall come into operation 90 days after the enactment of the Bill. This is to give the Adoption Board time to make the necessary rules governing the new procedures for consulting the fathers of non-marital children and to give the adoption agencies an opportunity to put in place arrangements for the operation of those procedures. Section 17 contains standard provisions regarding short title, collective citation and construction.
The Bill represents a major development in our adoption legislation. The provisions for improving the position of the fathers of non-marital children in the adoption process are a reasonable response to the judgment of the European Court of Human Rights in the Keegan case. The Government is satisfied that the provisions address the specific issues raised in the judgment and that they will bring our domestic adoption laws into line with the European Convention on Human Rights. While it cannot be guaranteed that a child will never again be placed for adoption without the knowledge of a father who has established family ties similar to those established by Mr. Keegan, the enactment of the new provisions will minimise as far as possible the likelihood of this happening in the future.
The amendments to the Adoption Act, 1991, are designed to introduce greater flexibility into our statutory system for the recognition of foreign adoptions. I am confident that they will be warmly welcomed by people who wish to adopt in countries whose laws provide for the termination of adoptions. I know that there will be an equally positive response from those adoptive parents whose adoptions will qualify for recognition once the legislation is enacted.
This is the first of a number of Bills that I propose to bring before the House to reform and update the law in relation to adoption. The establishment of a comprehensive legal framework for post-adoption contact between birth parents and adopted persons and access to birth records is a priority of the Government. The need for such a framework is fully recognised and I am currently engaged in wide-ranging consultations with the various interest groups.
It is my firm intention that the necessary enabling legislation will be brought forward as quickly as possible after the Supreme Court determines a case stated to it by the Circuit Court which will have a direct bearing on the nature and scope of the framework that will be put in place. In the meantime, I am proceeding with arrangements for the establishment, on an administrative basis, of an adoption contact register to assist adoptees and birth parents who wish to be put in touch with one another.
I also intend to bring forward legislation to provide for the ratification of the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption. The primary objectives of this convention are to provide safeguards to prevent the abduction, sale of or trafficking in children and to establish a system of co-operation amongst countries in order to ensure that intercountry adoptions take place in the best interests of the children concerned. The convention was signed on behalf of the Government on 19 June in order to demonstrate our support of the instrument and its objectives and to signal our intention of ratifying it in due course.
The Bill before the House represents a significant step forward in the evolution of our adoption laws. The progressive measures contained in it address satisfactorily two major issues. I commend the Bill to the House and I look forward to hearing the contributions of Deputies.
