Discussion with Barnardos.

We now resume our discussion with representatives of Barnardos Ireland. I welcome Ms Norah Gibbons and Ms Catherine Joyce. Before I begin I draw the witnesses' attention to the fact that members of the committee have absolute privilege but the same privilege does not extend to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice that members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

The detailed submission from Barnardos has been circulated to members, although Deputy Shatter may not have received it as he is not a member of the committee but is joining us for our deliberations today. I ask Ms Gibbons to proceed with the executive summary, after which we will go to members for questions.

Ms Norah Gibbons

I thank the Chairman and committee members for the invitation to attend today's meeting.

Since 1977 Barnardos has been a service provider in the area of adoption. In addition, it has advocated over many years for some of the important changes in this Bill. However, we think there are some further changes that would be helpful. Since 1997 we have offered a service to adopted people, adoptive parents and birth families with regard to information and tracing, and since 2007 we have worked in partnership with the HSE in the Dublin-Wicklow-Kildare area offering a post-adoption service for people who have adopted from overseas. We are the only agency offering such a service and the only post-adoption service for those involved in inter-country adoption. We are only available, sadly, in the Dublin-Wicklow-Kildare area, although our helpline and e-mail service is of course available nationwide. There is a need for our service. A total of 164 new adoptive parents have contacted us in 2009 alone.

In general, we welcome this Bill, but urge that it be finalised as soon as possible because, as Deputy Shatter said a moment ago, the clock is ticking and problems are building up, particularly with regard to the number of people that will need to be considered in terms of transitional arrangements. It is important to promote the rights, welfare and protection of children in the adoption process and to finally ratify the Hague convention, which Ireland so readily signed up to in 1992. We think it important that the Bill gives the proposed adoption authority the regulatory function necessary under the convention and we urge that the 1993 publication, The Implementation and Operation of the 1993 Hague Intercountry Adoption Convention: Guide to Good Practice, be adopted as a useful best-practice tool in considering the many issues that arise.

I will deal briefly with some changes we think would strengthen the current Bill. To echo previous speakers, the adoption process is a challenging and complicated one. It needs to be very rigorous because, by its nature, it takes major and final decisions for children and has a permanent effect on birth and adopted families and, in inter-country adoptions, the communities involved. We must remind ourselves that Ireland was a placing country in inter-country adoption in the 1950s and early 1960s. Those children came back to find out who they were and ask why their families and their country placed them for adoption. Our process, in terms of information and reasons provided, was found wanting. This was one of the things that attracted much attention, both nationally and internationally, in the mid-1990s.

We believe the best interest of the child must form the basic, underlying principle of the Bill. We ask the committee to consider section 19, which refers to the welfare of the child as the first and paramount consideration, and strengthen it by using the international principle of the best interest of the child. It is a stronger statement. We are passing an Adoption Bill to carry us through to 2010 and beyond and we should use that instrument.

We also ask that the voice of the child be represented independently in adoption, particularly in contested cases. This needs to be provided for on a statutory basis. We remind members of the Baby Ann case in 2006 in which the child was not represented independently. I do not make any comment on the outcome of the case, which may have occurred anyway. It probably would have occurred because of the constitutional rights of the married family. One aspect of the case that was distressing, however, is that there was nobody there to speak for the child. We would like to see this dealt with in the Bill. We are considering a constitutional amendment, with which Deputy Shatter and others here are closely involved, and this is another place in which this issue can be dealt with by making sure the voice of the child is represented.

Let us consider the wider issue of adoption in our own country. Who can be adopted? It is always of concern that the children of married parents can only be adopted in limited circumstances. In particular, we must consider the needs of children in long-term foster care, where there is no prospect of rehabilitation. These children should be freed for adoption when it is clearly in their best interests, because we absolutely agree that a permanent solution is the best thing for children, especially if it gives them the strength of a family around them. We are aware that the Joint Committee on the Constitution is considering this issue and we wonder about the wisdom of passing an Adoption Bill without waiting for the deliberations of that committee to be included. Clearly, if the Bill goes through before the committee's deliberations have been completed and we then have a constitutional amendment, the Act will need to be amended to recognise this, which can be done in subsequent legislation.

We welcome section 18 which deals with the need to consult the father. We have learned much from our experience in the area of adoption. In the past, children were placed for adoption whose fathers may have wanted to be involved in their child's life or may even have offered an alternative by allowing the child to live with them, but they were not even consulted. Thus, we welcome that section of the Bill. I reiterate that in the interests of children, we need to be clear in our application of both best practice and best law.

The area of consent and how it is obtained, and the need for a full understanding of both the short-term and long-term consequences, is controversial but very important. Practice has sometimes been tardy in this country. The birth mother in the Baby Ann case asked for her child back when the child was nine months old. The child was two by the time the case finally came before the Supreme Court. Time delays are not in anyone's best interest, but this is especially the case for children. We would like to see the HSE being in a position to make an application to dispense with consent. It is not good that it is always up to adoptive parents to go to court and fight for the consent of a birth parent to be dispensed with. We need to remember that children grow up. They need full explanations of everything that happened with regard to their adoption. It is not good practice to set two sets of parents in opposition in this way when we can avoid it.

We would welcome some restriction on the time limits for withdrawing consent, but insist that if this is provided for, independent counselling must be available for birth parents. With all due respect to my colleagues in the statutory agencies and adoption agencies — I am not casting aspersions on their practice — it is difficult to straddle two sides of the same fence. To be the person who has placed the child with adoptive parents and also the person who is trying to listen to what the birth family are saying and take their consent in a meaningful way is a difficult position to be in.

We would also like to see statutory provision for open or semi-open adoption placements. I was surprised not to see such a provision in the Bill. We now have a small number of stranger adoptions in Ireland. The practice is that many adoptive families organise contact with the birth families. We do not understand why an attempt has not been made to provide for that good practice in our law. In a step-parent adoption, a birth parent — father or mother — must give up his or her own constitutional rights to the child. We wonder why the idea of special guardianship has not been considered in such cases.

On the issue of inter-country adoption, when the Bill is passed, the Hague Convention will become our standard. I do not say our gold standard because standards must be agreed with many countries and often what is reached is not a gold standard but a standard acceptable to most. No new bilateral arrangements should be entered into and those in place should afford children the same protection as the convention. We do not say other states cannot do this, but it is up to Ireland — the country receiving the children — to be absolutely sure that is the case. Where states do not comply with international standards, the integrity of inter-country adoption is threatened and it causes everyone, including adoptive parents, to wonder whether the best interests of their children are being considered. It behoves us to make sure the arrangements we enter into are of the highest standard.

There is a need for ministerial regulations arising from the Bill and they need to cover everything. I refer to measures to promote transparency in placement, itemised and limited fee structures, and accountability in all matters. These are serious issues and Barnardos argues that we need monitoring and inspection of assessment, placing decisions and intermediary and post-placement work. We are not part of the adoption system, except on a non-statutory basis. We have no objection to becoming part of it on a statutory basis in respect of our post-placement work and would welcome this.

With regard to post-adoption services, in our work since 1977 we have seen first hand the challenges faced by families. However, the fact that we are saying adoption brings challenges does not mean we think adoption is bad or that families looking for support are not doing the very best for their children. In fact, they are making positive parenting decisions. There is nothing in the Bill which would provide an absolute statutory right to tracing and information for adopted persons. I had the honour of being appointed by the Government to sit on the Ryan commission and in that forum I listened to many people who had lost contact with their families. They spoke about the damage and hurt caused when records were not available. I concur. We acknowledge the work of the National Adoption Contact Preference Register, but it has no statutory basis. We ask that birth certificate and relevant documentation be available to adopted persons. Such a system has worked satisfactorily in the United Kingdom since the 1970s. No earthquakes have been caused by it, as has often been said to me when I have advocated such a system which is long overdue in Ireland.

The Hague Convention must now be the standard. There is a need for transitional arrangements. We are faced by a problem of our own making because this is the last country to ratify the convention. Time is ticking and we are building up the problem. My preference and that of Barnardos would be for the Hague convention and any bilateral agreements we have; however, we recognise that potential adoptive parents who are at the declaration stage have a difficulty, as does Ireland. We considered chapter 8 of the good practice guide, the consultation paper of the Law Reform Commission and the actions taken by other countries and think the declaration stage is the best cut-off point. We would not agree that the process should return to the start and include everyone who has ever put his or her name on an application. We understand there are some 450 or 500 couples at this stage. The principle on which we base that decision is that of safeguarding the status of the child and making sure we do not leave children without status. The Adoption Authority of Ireland must issue guidance notes to all such families. It must vet the documentation from placing countries to ensure any child placed for adoption is properly available for adoption.

I would welcome questions from members.

The representatives of Barnardos are welcome and I welcome their submission. What Ms Gibbons has covered largely reflects what I said in the Dáil on Second Stage of the Bill, but it is important that these points are set out clearly.

What the representatives said about the Bill, other than the Hague Convention issues, was charitable. It is important that we implement the Hague Convention, but the Bill is a lost opportunity in the way it is drafted. Reports on our adoption services have been produced by various bodies — some appointed by the Government, some outside government and some voluntary agencies — since the 1970s. They highlight anomalies and things we need to change. The issues raised by the representatives have all been mentioned in previous reports which indicated deficiencies and inadequacies in our adoption legislation. They all need to be addressed, but I will raise two or three, in particular.

One concern I have arises specifically from the Bill. It was many years ago when we gave constitutional status to the Adoption Board or other bodies which were not courts to deal with adoption issues. Ms Gibbons referred to section 18 of the Bill. It is very important that we respect the rights of fathers of children born outside marriage. However, when we examine the way the system is working and the provisions in place to comply with the European Convention on Human Rights, we can see that only a small proportion of fathers express interest in children who are made available or considered for adoption. It is extraordinary how few fathers of children born outside marriage appear to be interested in their children in circumstances in which the children have not been born as part of an ongoing cohabiting relationship.

Does Ms Gibbons have any concerns that the structure of the Bill will create unnecessary barriers to adoption in circumstances in which children have been born outside marriage and the fathers have not been involved with the children or shown any interest in them? It appears to require in certain circumstances a series of High Court applications. The High Court is being brought in to deal with circumstances that could best be dealt with by the adoption authority. I do not see the need for the making of certain decisions by the High Court as prescribed by the Bill, provided they are made by the adoption authority in a considered and transparent manner with all the correct legal protections. I would be interested to hear the views of the representatives on this issue.

Ms Gibbons expressed reservations about bilateral agreements, but the Hague Convention envisages the establishment of bilateral agreements. Is her reservation essentially about the State's failure, to date, to monitor adoption procedures in countries with which we have had bilateral agreements? Would that issue not be addressed adequately by a proper monitoring structure which may perhaps be given statutory force in the Bill?

The third issue raised by Ms Gibbons is one with which some members will be familiar. The majority of domestic adoptions effected appear to be in circumstances in which the biological mother marries someone who is not the father of her child but who wishes to have rights to the child and the mother wishes to confer such rights. Thus, the majority of domestic adoptions place mothers in the odd position of adopting their own children.

A report commissioned by the Government in 1984 stated we should have a guardianship structure to deal with the issue which was mentioned by Ms Gibbons. Can she understand why it was not addressed in the legislation? We could establish legislation that would confer guardianship rights on such husbands and, in a small minority of cases in which the father of a child marries a woman who is not the child's mother, wives, although this happens infrequently. Is there any reason the full conferring of guardianship rights, financial support and obligations and inheritance obligations could not adequately address that issue? Would that put an end to the artificial situation where children are adopted by their own mothers?

In the context of the services provided by Barnardos, will the representatives comment on whether they have experienced any queries from or difficulties with children who have been adopted in such circumstances and who have wondered whether their mothers are truly their biological mothers or simply adoptive mothers? When I use the word "simply," I am not deriding adoptive parents. I suspect this does give rise to confusion on the part of some children. Has Barnardos experienced this?

I apologise for being late; it was unavoidable.

We have all been reading volumes of material on the subject of the Adoption Bill. We started off with the premise that it was a very sensitive issue. Therefore, we must be fair to both sides. The Bill is limited in trying to cover everything.

My question is on domestic adoptions which, as others have pointed out, usually involve a biological parent marrying a person who is not the parent of his or her child. One can understand the reasons for this; it is attractive to the mother — it is usually the mother who is involved — and the new stepfather. However, where does that leave the natural father and grandparents of the child? We should make an effort to ensure contact with natural parents and grandparents is encouraged and maintained. I understand, in view of the sensitive aspects of the issue, that a person who adopts the child legitimately would not necessarily want the child to maintain contact with its birth parent. We are talking about fragile relationships. What about the child's interests? What if we go further and imagine a situation where the child's adoptive parents have died? What is the position if the link with the other natural parent has been severed? It is more complicated than simply saying it makes for a better and more rounded family.

My main interest is in the amendments the delegates would like to see made on Committee Stage of the Bill. They have articulated with great clarity the areas in which they would like to see amendments. Is there anything else in the Bill they would like to see addressed?

I welcome the delegation from Barnardos. I regret that, as mentioned by Ms Gibbons, the post-adoption service is only available in Dublin and mid-Leinster. Perhaps the representatives could comment on what will be required to provide post-adoption services which they have rightly advocated for the entire country in the context of the Bill, although we are moving away slightly from the actual wording of it.

I would like to follow up on the mention of a voice for the child. Ms Gibbons referred to the Baby Ann case and how issues of consent and time delays affected the rights of the child. In such circumstances decisions made by the birth parents may impinge directly on the rights of the child. She also mentions that the deliberations of the Joint Committee on the Constitution will probably not have been completed — or produced a result — by the time the Bill is finalised and that it might be necessary to amend the legislation after the committee has made its recommendations and the people have spoken in a referendum. That is of major concern because we want to place the rights of the child at the heart of the legislation. I do not know whether there is a magic bullet in terms of how we might do this in advance of a constitutional change. Everybody is advocating that the rights of the child be specified in the Constitution; it is the wording that is causing difficulty.

I was a member of the Joint Committee on the Constitution when we considered the family and the issue, mentioned by Deputy Lynch, of natural fathers — when they do and do not have certain rights. For example, if the natural father has had no involvement with the child, does he have any rights? These are difficult issues, but they are in a certain way at the heart of the legislation. Is there anything we can do with it now to safeguard the rights of the child in these specific areas in advance of a constitutional referendum?

Ms Gibbons suggested birth parents should have the right to independent counselling. How would we provide for this in the legislation? I presume it would involve a straightforward amendment. What sort of people would provide such independent counselling? I also support the right to tracing of birth parents and access to a birth certificate on the same basis as any other person. Could this be done by way of a simple amendment to the legislation?

Ms Norah Gibbons

I will try to do justice to these very good questions. If I omit anyone's matter of interest, I ask him or her to mention it to me.

I will deal with the issues of step-parent adoptions and fathers' consent together. I concur with Deputy Shatter — I have heard the discussion and I am aware of some of the issues involved — that it may be considered to cause difficulties if a father who is not involved with the child is approached for consultation. However, it is far too easy to make the assumption that the father is not involved because he does not want to be. While we welcome the High Court decision, there have been cases in which this was an issue. For example, there was a case before the High Court recently in which a father had not been consulted as part of the work of the Adoption Board. This places a major burden on the adoptive parents and also on the adopted child as he or she grows up in knowing that the father was not asked whether, in his view, adoption was the best course of action. It may well be that fathers have been dissuaded through various means from being involved in their children's lives. However, unfortunately, in our own wider services, there are too many cases in which we are trying to get fathers to become involved. They are not beating down the door when there are problems with their children; we must go looking for them and try to involve them, particularly where there has not been a relationship.

There is an anomaly with step-parent adoptions and I do not think we should have birth parents adopting their own children. Under the current arrangements, when birth mothers — the great majority — come and talk to us, it is difficult to make them understand that they are giving up all of their rights to the child. They do not understand that they must do this in order to get them back but in a different format.

Let me interrupt Ms Gibbons briefly. I have met some birth mothers who have been highly concerned and almost panic stricken about this issue. I am highly conscious that the comments made at this meeting will be reported. In a sense, even though they will give up all of their rights, simultaneously with the making of the adoption order the rights are conferred back on them.

Ms Norah Gibbons

They get them back.

Consequently, this problem is more theoretical than real. Those who are going through this process and who have asked that this order be made should not be panic stricken and should not immediately conclude that their rights pertaining to their children are gone. Those rights will be returned to them immediately by the Adoption Board. However, this is a highly artificial process and the wrong way to deal with the issue.

Ms Norah Gibbons

It is. My point is that such persons get them back when the adoption order is made. However, it means that the natural father, even if he has been greatly involved up until the day before, will be removed from his child's life on a legislative and constitutional basis. Nevertheless, many parents do sensible things for their children and continue to make good working arrangements. I would like to have seen the concept of guardianship included in the Bill as another way of dealing with the issue. Alternatively, it could be dealt with through open adoptions or contact options which are not provided for in the Bill. Barnardos considers this to be problematic and such provisions should be included.

Some young people are left to consider the reason this happened. At some stage in their lives they ask themselves why their mothers felt obliged to adopt them and whether they really are their mothers. People who were not adopted at all often wish or believe they were, when they go through their teenage years and run into problems with their parents, as all our children inevitably do. This is a concern and an opportunity to include such provisions.

On post-adoption services, the reason the Barnardos post-adoption service offered to children and families from overseas is only available in Dublin, Kildare and Wicklow is that this is the only part of the HSE with which we have been able to negotiate an agreement to provide for it. It is a very small service and Barnardos has put money into it through voluntary funds collected to enable our two staff to get up to speed and make absolutely sure that what we are offering is the very best international gold standard. We have sent our staff on training courses and are continuing to do so. The service is not available throughout the rest of the country because its importance is not recognised. This is the reason Barnardos would have liked it to have been placed on a statutory basis. I am conscious there are many demands on the State and its coffers. However, we always have made the point that issues arise on foot of our society's decision to bring children to be adopted into our country where they can find very good adoptive homes. For example, I refer to the serious attachment and bonding issues pertaining to children who have been brought up in institutions. This is not the fault of their excellent adoptive parents but is a fact of life arising from the children's earlier experiences over which Ireland had no control.

On the prospect of including the voice of the child in the Bill, it simply needs an addition. I discussed this matter with the Minister of State with responsibility for children, Deputy Barry Andrews, in another context and he told me there was nothing in the Constitution to stop the courts from looking for the voice of the child. I told the Minister of State that while I was delighted to hear that, it was not actually happening. One always can find ways of saying the children are too young or do not know. We must get over this and recognise that the voice of the child should be heard and that rights of the child to be represented should be in place.

Independent counselling is performed in other states. In the United Kingdom, for example, when final consents are given to an adoption, they are not taken by either the adoption agency or the placing agency but by a person named as a reporting officer as part of the guardianad litem role. I did this myself when I worked in the United Kingdom. One operated independently and ensured the mother in question understood the wider consequences beyond what would happen in the short term because as with other issues, adoption can be seen as a way of solving problems, sometimes including those of other people. Thankfully, this is less the case nowadays. Independent counselling is provided for this purpose. There no longer is a great need for it because the number of stranger adoptions or adoptions in general in Ireland is small. A panel of qualified people could be empowered to perform this task who would only be called upon when the need arose. I do not suggest an entire new structure which would require funding be set up.

Deputy O'Hanlon invited me to comment on any other issues pertaining to adoption. In raising the issue Deputy Shatter has reminded me of the position of Irish people who adopt overseas where they have been resident and then bring the children back to live here. We should provide to make sure such adoptions also are recognised here. This is extremely important from the perspective of the rights of the child and to secure the child. A situation arose where because that had happened, it was possible for the High Court to make highly imaginative arrangements in respect of a child who had been sent back to an orphanage in the country from which he had been adopted. We must think seriously about providing for and safeguarding the situation of a child who is in the country. Consequently, I agree this would be a welcome addition.

My concern about inter-country bilateral agreements definitely is based on the failure of the State to ensure absolutely that countries with which we enter into bilateral arrangements and only have adoption procedures in respect of freeing and placing children for adoption are properly monitored. The structures are not in place to allow us to do so. Were they in place, I might take a different attitude, but as a child care organisation, Barnardos takes the perspective of considering what is in the best interests of the child and trying to represent this. Unless I saw strong structures to make sure all inter-country bilateral agreements did correspond and did offer at least the same level of protection, I would not be in favour of them. However, I could be convinced otherwise, were the structures in place and were I convinced the State would take this matter seriously.

I believe I have covered all of the issues raised. If there is something I have not covered, I will be happy to revert to it.

I will revert briefly to Ms Gibbons on the structure. There is no particular reason the Bill could not be amended to confer the necessary powers on the proposed adoption authority to monitor any bilateral agreement and one could have a structure within this. Ms Gibbons might comment briefly on this point.

The other issue on which I meant to ask Ms Gibbons to comment was whether she would agree that, in the context of the bilateral agreement with Vietnam, it was a fundamental mistake for the State to be a party to an agreement that linked humanitarian aid with inter-country adoption. It is absolutely essential that in any future bilateral agreements the issue of aid have absolutely no connection with adoption. It should not be part of a bilateral adoption agreement because even when such aid is well spent and well understood, it gives rise to the suspicion and concern that decisions may be made to place children for adoption whom Irish couples will innocently adopt without realising that those involved in making the decisions may benefit, either individually or in organisations, from such aid.

If Barnardos is able to or wishes to draft specific amendments, it should forward them to the joint committee. I certainly would welcome specific proposed wordings on open and semi-open adoptions, as well as on special guardianship arrangements.

I call on Ms Gibbons to conclude, if possible.

Ms Norah Gibbons

I absolutely concur with Deputy Shatter that humanitarian aid should play no part in inter-country adoptions. I am reminded of the many people adopted into the United States of America, in particular, who have spoken to us. They were able to secure their own adoption papers through their freedom of information legislation and had come back to Ireland. They spoke to us about their parents sending cheques over for many years to the so-called orphanages from which they had been received. They saw such payments as being for them, which caused them a great deal of distress. Moreover, the work of the child abuse commission has revealed that the institutions to which the money went certainly did not spend it on the children. If anyone needs to be reminded of this, it is contained in the report on child abuse. Consequently, I agree absolutely that such linkage should have no part in such agreements. While I agree the Bill could be amended to put in place the aforementioned structures, it would require both the structures and resources to ensure those structures worked, were independent and involved direct reporting to avoid the scenario in which the same people would do the same job. Again, the commission's report is clear that when one has inspectorates, they cannot involve the same people as those who were doing the placing and ratifying everything because otherwise one would get into what is described as——

Such reports should be published.

Ms Norah Gibbons

Yes, they should also be independent and have some force. It is of no use to send an independent person to make inspections if such inspections have no force other than to be mentioned on paper in order that everyone can make political statements or speak to the media about them. That is of no use to the children unless the underlying issues are addressed. Barnardos will be pleased to forward such amendments as we can draft. While drafting legislation is not my forte, others in the organisation may be better at it. Certainly, we will be happy to suggest where they need to be made.

I thank the representatives for their most informative presentations and we look forward to continued engagement with Barnardos on these matters.

Sitting suspended at 12.01 p.m and resumed at 12.02 p.m.