Private Members' Business. - Adoption (No. 2) Bill, 1996: Report and Final Stages.

Amendment No. 1 is in the name of the Minister of State. I observe that amendment No. 6 is related and I suggest we discuss amendments Nos. 1 and 6 together, by agreement, if that is satisfactory. Agreed.

I move amendment No. 1:

In page 4, between lines 18 and 19, to insert the following:

"5A.—Every rule made by the Board under section 5 and every regulation made by the Minister under section 7C shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the rule or regulation is passed by either House within the next 21 days on which that House has sat after the rule or regulation is laid before it, the rule or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".

These amendments address a point raised by Deputy Woods on laying rules made by the Adoption Board before the Houses of the Oireachtas. The Adoption Acts do not currently contain any such requirement. Rules made by the board should be laid before both Houses and be subject to annulment by negative resolution, as should any regulations made by the Minister under the Acts. Accordingly, amendment No. 1 provides for laying before both Houses of the Oireachtas rules made by the board under the amended section 5 of the Adoption Act, 1952 as well as regulations to be made by the Minister under the new section 7C of that Act.

The purpose of amendment No. 6 is to require that any future regulations made by the Minister under section 9 (3) of the Adoption Act, 1991 are also laid before each House of the Oireachtas. The power of the Minister to make regulations under that section relates to the proof of foreign adoptions. I am advised this matter cannot be dealt with by way of a single amendment and two amendments are necessary because provision for making ministerial regulations is already contained in the 1991 Act.

When this Bill is enacted the Minister will also have power to make regulations under the 1952 Act governing the care of children by registered adoption societies pending their placement for adoption. As the 1952 Act predates the 1991 Act, separate provision must be made for laying regulations before both Houses under the two Acts. These amendments more than meet the point made by Deputy Woods and they will ensure openness and transparency in the preparation of rules and regulations under the Adoption Acts.

I thank the Minister of State for taking my point on board because it is important that there be openness and transparency in this area. Many Members of the House are concerned about the way in which the adoption laws are being implemented. In our view they are too restrictive and relate to a past era, particularly when one considers the number of children available for adoption in Ireland compared to the number available abroad. It is likely that in future children coming up for adoption will be from countries other than Ireland. That is evident from the statistics given on the earlier Stages of the Bill.

When we pass legislation concerning adoptions we must ensure that its objectives are implemented by the Adoption Board and by the Minister and his Department. The interpretation of the legislation and carrying it through into regulations is a very important aspect of implementing the will of Members of this House. Our impression is and the court cases which have been held indicate that a very narrow interpretation has been taken of the views expressed here. We want to facilitate people in adoption cases. We want to be helpful, considerate and kind. We realise the officials implementing the views expressed in the House and carried through in the legislation are bound by legislation as it is passed but far too often legislation is interpreted in a more restrictive way than was intended by the Oireachtas. For this reason I am happy the Minister is responding to this need and ensuring the regulations and statutory instruments will be laid before the House where they may be annulled if such a resolution is passed by either House within the following 21 days without prejudicing the validity of anything previously done hereunder.

I congratulate the Minister on taking up this issue and on the detailed way in which he has followed it through in these two amendments. It is the right thing to do. It will be helpful and will ensure the House stays in touch with developments. The House will be informed, will know what is happening and will be able to express a contrary view if necessary. We are very happy to support these two amendments.

I recognise the necessity for flexibility but I also emphasise the importance of certainty and permanency. It is very important, particularly in this field, that we know exactly where we stand. In our consideration of these matters, we must always bear in mind the paramount consideration of the welfare of the child.

Amendment agreed to.

Carlow-Kilkenny): Amendment No. 2 is in the name of the Minister. Amendment No. 3 is an alternative and these may be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 5, line 38, to delete "his attitude towards" and substitute "whether or not he objects to".

Amendment No. 3 is identical to an amendment Deputy Woods agreed to withdraw when this Bill was before the Select Committee on Social Affairs. I indicated I had difficulty with the amendment because it would have a narrow focus and would not reflect cases where the father supports the mother's decision to have the child adopted. However, I gave an undertaking to the committee that I would give further consideration to the matter. Amendment No. 2 is the result of that consideration. It satisfactorily addresses Deputy Woods' misgivings about the present wording of the paragraph in question as well as meeting my concern that any revision should be broad enough to comprehend non-objecting fathers. The Deputy might therefore agree to withdraw his amendment.

I thank the Minister for giving consideration to this matter. My amendment reads:

In page 5, line 38, to delete "his attitude towards" and substitute "whether he objects to".

The Minister agrees to delete the words "his attitude towards" and proposes that we substitute the words "whether or not he objects to". I am very happy with that. I thank him for meeting the point and am very happy to support his amendment.

Amendment agreed to.
Amendment No. 3 not moved.

Acting Chairman

Amendment No. 5 is an alternative to amendment No. 4 so these may be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 4:

In page 11, to delete lines 26 to 30 and substitute the following:

"‘(b) the adoption has, for so long as it is in force, substantially transferred, under the law of the place where it was effected, to the adopters, the rights and duties of guardianship, or parental authority over the child,',".

This is the substantive issue which we have discussed for quite some time in this House. The purpose of this Bill is to facilitate parents in making foreign adoptions. We have a problem, however.

We are happy the Minister has in the body of the Bill dealt with the issues in relation to the adoption of Chinese children. That is a very progressive step on the part of the Minister. However, legally adopted children living in Ireland will not be recognised here because the Government refuses to recognise what are termed ordinary adoptions made in a number of countries, including France, Belgium, Poland, Russia, Paraguay and Peru. These adopted children of Irish couples are consequently prevented from having an Irish passport or from inheriting the family home, farm or property. They can be disadvantaged in applying for schooling and medical services. These issues have been raised with us by parents on behalf of these children who are living here at this time.

The Adoption (No. 2) Bill will continue this discrimination and discourage Irish couples who wish to adopt abroad by refusing to recognise these ordinary adoptions. This is still a very serious problem for the families concerned and particularly for the children concerned. We strongly favour the recognition of foreign adoptions on a basis that is both generous and realistic. The Minister must be realistic and there must be a high degree of certainty in what is done. Amendment No. 4 effectively proposes lowering the threshold. It would allow for the recognition of these foreign adoptions and would put an end to this discrimination and facilitate both the children and their parents.

We feel very strongly that this amendment should be made. It would solve the outstanding problems and be widely welcomed by the children concerned and their adoptive parents. Amendment No. 5 is an alternative to amendment No. 4 and reads:

In page 11, to delete lines 26 to 30 and substitute the following:

"‘(b) the adoptees, under Foreign Simple Adoption Decrees shall have the same legal entitlements in effect as those arising from an adoption effected by an Irish Adoption Order up to and until the birth mother exercises those rights, which have not been severed completely, in the appropriate Court of Law,',".

We have had a great deal of discussion with people who are concerned about this area, parents and their advisers and we do not mind which way the Government goes about it as long as it makes it possible for these adopted children to live here as Irish citizens. The parents recognise there may be some weaknesses, but they want to be facilitated and are very realistic in their approach. I know the Minister would want them to be realistic. We do not mind whether the Minister takes amendment No. 4, or amendment No. 5 or puts forward his own amendment. He has not yet put forward an amendment and that is disappointing and a little surprising. There is still time. The Minister might think again about the issue before the Bill goes to Seanad Éireann and consider the effect of what we are doing on these families. Perhaps he would try to be a little more generous and flexible while maintaining certain basic and essential principles. There has been great difficulty in getting information about the detail of adoptions in some countries. We are told that in some cases there is sufficient legal certainty to recognise adoptions here. We could take action by recognising certain adoptions and by saying in what circumstances we will do so.

We hoped the Minister would bring forward proposals to deal with this issue. It may be that the Minister has not had time to do so and needs more information. I understand he has been seeking further information. I have a letter from the adoptive parents of the Paraguayan children who have been trying very hard to have the matter resolved. One group sought assistance from our Embassy in Buenos Aires. The preliminary result of our Ambassador's investigations of the question gives the lie to the custody order disparagement. They are so radically at variance with the interpretation upon which the Minister bases his claim to be unable to extend recognition to simple adoptions as to raise fundamental questions about the reliability and the validity of information and advice which is given to the Minister. My understanding is that the Minister is taking further advice, that he has initiated a process to try to get further advice in Paraguay and to turn every stone to try to resolve the issue. That might have suggested the Bill might be postponed to give the Minister and his officials an opportunity to fully investigate the matter. I ask the Minister, when he has the extra information, to publish in full all the legal advice he has received from Irish sources and in relation to the accommodation of simple adoptions within an extended system of recognition. Will he say what view he now takes of the adequacy of the legal advice on which he relied on Second and Committee Stages of the Bill, given the preliminary views of our Ambassador in Buenos Aires on the status of Paraguayan simple adoption decrees? Will the Minister also inform the House what action he has taken in response to the communication to him of the preliminary results of the Ambassador's investigations in Paraguay, because there is a suggestion that these adoptions could be recognised here? In addition will the Minister provide an assessment of whether, in the light of the Ambassador's initial interpretation of the status of Paraguayan simple adoptions, they would now be recognised under section 10 of the Bill? I accept that the Minister may not yet be in a position to fully confirm that and may need to take fuller advice on the issue. For that reason this amendment should have been postponed until the Minister had an opportunity to clarify these issues. If the Minister feels the adoptions would not be recognised in the present circumstances, will he consider introducing an amendment which would clear up the outstanding issues here?

We feel strongly that this question should be addressed and settled here and now. It may be that the Paraguayan simple adoptions can be recognised here if there is sufficient certainty regarding the legal arrangements in Paraguay. If that is the case, why should they not be included on the list of recognised adoptions?

We are proposing an amendment on Report Stage which would overcome this problem. We ask the Minister to consider tabling an amendment even at this late stage. If he is not prepared to do this, will he again look at the question between now and the taking of the Bill in the Seanad to see if it is possible to give these children the recognition we want to give them? It may be that there is legal certainty about the adoptions and the Minister will have no difficulty. I understand the Minister is still taking advice in Paraguay, and for that I commend him. However, we are pushing ahead when it would be preferable to have the matter resolved before finalising Report Stage. If this cannot be done I ask the Minister to consider introducing an amendment in the Seanad.

I assumed my amendment had been included among the amendments tabled by Deputy Woods but, as we have so little time, I will address the Deputy's amendment. There is a difficulty regarding the recognition of foreign adoptions. The amendments before us try to get around the practical difficulties encountered by the adoptive parents of these children. We had a long discussion about this on Committee Stage when we heard that there were difficulties regarding succession rights, inheritance, taxation etc. There are also practical difficulties that may not occur to people. For example, a baby may not be able to travel with its adoptive parents because of technical and legal difficulties.

On Committee Stage we tried to impress on the Minister — and he was not unwilling to listen — that we must try to find a way around such practical difficulties. We are not talking about a huge number of cases. It does not matter whether we are talking only about one or two because the problems are very real to the people involved. They have adopted children within the law and now have a family and do not wish these children to be taken away from them. I cannot conceive any way in which the Minister would want that to happen. If the Minister is examining the situation we will not press these amendments but, if not, the least we can do on behalf of these people is to press the amendments before us. It is terribly important that the plight of these people is recognised.

It gives me no satisfaction to say I received the same correspondence as Deputy Woods from the parents of adopted Paraguayan children. I was very disturbed by their interpretation of the Minister's attitude. Will he answer the various questions they put to him and say what simple adoption actually means? The Minister said he was advised an ordinary or simple adoption decree amounts to little more than a custody order. The preliminary advice to us from our Ambassador in South America — admittedly it is a difficult and slow process to get this information — is that is not the case. If that line can be pursued by the Minister this would alleviate the grave difficulties facing these people. I will curtail my contribution on these two amendments to give the Minister an opportunity to reply and I hope it will be positive.

It was necessary for me to oppose two identical amendments put down by Deputy Woods when the Bill was before the select committee. For the benefit of the House I will again set out the reasons it is not possible to recognise simple adoptions as full adoptions. A statutory recognition system is confined to adoptions granted abroad which have a broadly similar legal effect to an Irish adoption in terms of the termination of the rights and duties of the birth parents and the creation of a new permanent legal parent-child relationship between the child and the adoptive parents.

Since the effect of the recognition of foreign adoption is to accord it the same legal status as an Irish adoption order, it follows from this that the foreign adoption must have similar characteristics. However, this is not the case where simple or ordinary adoptions are concerned. Such an adoption does not sever the existing legal relationship between the child and the birth parents. While parental authority passes to the adopters, the rights and duties derived from the blood relationship are not superseded. The child and the natural family thus maintain certain fundamental legal ties with one another. I have been advised that it is not possible to recognise simple adoptions because to do so would be to accord the adoptions a legal status beyond that which they were ever intended to have under the laws of the countries where they were granted and beyond that which the birth parents would have given their consent to under those laws.

I reiterate that in countries such as Paraguay where dual systems of simple and full adoption are operated, it is for the relevant adoption authority to decide which type of adoption decree is the appropriate one to make by reference to the provisions of its internal adoption laws. Since those laws make a clear distinction between the two types of adoption decree that may be made in respect of a child, I have been advised we must respect that distinction and not seek to accord a simple adoption a legal status beyond that which it has under the law of the country where it was granted.

Our adoption laws have evolved on the basis that they protect the interests of the child and respect the rights of the birth parents as set out in the Constitution. In the case of inter-country adoptions, it is proper that our laws must give the same respect to the rights of birth parents abroad as they give to Irish parents. It is not that long ago since Irish children were being sent to the United States and elsewhere for adoption. Recent revelations have brought home to us the anguish and distress suffered by some of the mothers of the children concerned. We must learn from that unfortunate experience and ensure our laws do not undermine the remaining rights vested in birth parents abroad whose children are brought here on foot of simple adoptions.

There is no anguish or distress among the children we are talking about.

Acting Chairman

As it is now 2.15 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister of State at the Department of Health and not disposed of are hereby made to the Bill; that Fourth Stage is hereby completed and that the Bill is hereby passed."

Question put.
The Dáil divided: Tá, 64; Níl, 54.

  • Ahearn, Theresa.
  • Barry, Peter.
  • Bhamjee, Moosajee.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Broughan, Tommy.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Burke, Liam.
  • Bruton, Joan.
  • Byrne, Eric.
  • Carey, Donal.
  • Connaughton, Paul.
  • Connor, John.
  • Costello, Joe.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • Deasy, Austin.
  • De Rossa, Proinsias.
  • Doyle, Avril.
  • Durkan, Bernard J.
  • Ferris, Michael.
  • Finucane, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Gallagher, Pat (Laoighis-Offaly).
  • Harte, Paddy.
  • Higgins, Jim.
  • Hogan, Philip.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenny, Seán.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McDowell, Derek.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Mulvihill, John.
  • Nealon, Ted.
  • Noonan, Michael (Limerick East).
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Penrose, William.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, John.
  • Ryan, Seán.
  • Sheehan, P.J.
  • Shortall, Róisín.
  • Spring, Dick.
  • Stagg, Emmet.
  • Timmins, Godfrey.
  • Upton, Pat.
  • Walsh, Eamon.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Aylward, Liam.
  • Brennan, Matt.
  • Briscoe, Ben.
  • Browne, John (Wexford).
  • Burke, Raphael P.
  • Callely, Ivor.
  • Clohessy, Peadar.
  • Connolly, Ger.
  • Cullen, Martin.
  • Davern, Noel.
  • Dempsey, Noel.
  • Doherty, Seán.
  • Ellis, John.
  • Fitzgerald, Liam.
  • McDowell, Michael.
  • Moffatt, Tom.
  • Morley, P.J.
  • Moynihan, Donal.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • Flood, Chris.
  • Foley, Denis.
  • Foxe, Tom.
  • Geoghegan-Quinn, Máire.
  • Harney, Mary.
  • Haughey, Seán.
  • Hughes, Séamus.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Keogh, Helen.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, James.
  • O'Rourke, Mary.
  • Power, Seán.
  • Quill, Máirín.
  • Smith, Brendan.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Woods, Michael.
Tellers: Tá, Deputies J. Higgins and B. Fitzgerald; Níl, Deputies D. Ahern and Callely.
Question declared carried.