We resume our discussion with representatives of the Children's Rights Alliance. I welcome Ms Jillian van Turnhout and Ms Maria Corbett, as well as Ms Deirdre McTeigue from the Irish Foster Care Association. I draw their attention to the fact that while members of the joint committee have absolute privilege, the same privilege does not extend to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable. The delegates are welcome. Members have received and studied their detailed presentation, although I believe Deputy Shatter may not have received it. We wish to hear the delegates' executive summary, after which members will have a number of questions for them.
Discussion with Children’s Rights Alliance.
Ms Jillian van Turnhout
On behalf of the Children's Rights Alliance, I express our appreciation to the joint committee for providing us with this opportunity to make a presentation. The Children's Rights Alliance campaigns for the rights and needs of all children under 18 years. It is a coalition of more than 90 non-governmental organisations, all of which are committed to the full implementation of the United Nations Convention on the Rights of the Child. I am joined by Ms Deirdre McTeigue who is the director of one of our member organisations, the Irish Foster Care Association, and the alliance's policy director, Ms Maria Corbett. In the precious time the committee has kindly afforded to us we wish to highlight a number of key points on the Adoption Bill 2009.
I will begin by stating, like previous speakers, that adoption is the right of the child. It is a pathway towards realising a child's right to grow up in a family. When discussing adoption, we must rightly focus on the story of prospective adoptive parents, but we must also be careful not to lose sight of the fact that adoption is about children. It is about their rights and needs. Adults do not have an automatic entitlement to adopt a child. In all adoption decisions the best interests of the child must be paramount and the voice of the child should be heard in adoption proceedings according to his or her evolving capacity. Unfortunately, at times the adoption system can fall foul of criminal activity, including corruption and the sale or trafficking of children. It is thus critical that a rigorous verification process be put in place for all adoptions. Furthermore, when engaging in debate on inter-country adoption, there is a need for responsible commentary to ensure all children adopted into Ireland are equally valued and respected. No child should be stigmatised based on how his or her birth country conducts its inter-country adoptions, either in the past or the present.
Noting these points, I underline that the alliance welcomes the Adoption Bill 2009 as critically important legislation that should be enacted. The Bill provides for the direct incorporation into domestic law of the 1993 Hague Convention. As members are aware, the convention is the international setter of standards that provides the best available framework for managing the risks associated with inter-country adoption. Its incorporation will make a difference to children's lives and is a hugely positive step for children in Ireland. It also will further the implementation in Ireland of the United Nations Convention on the Rights of the Child and I hope lead to Ireland's ratification of the United Nations optional protocol on the sale of children, child prostitution and child pornography.
We express our utter frustration that it has taken 13 years to get to this point. Ireland signed the Hague Convention in 1996 and, basically, we have sat on it until now. Of the 55 countries which have signed the convention, only Ireland and Russia have yet to ratify it. The delay is unacceptable, especially given Ireland's comparatively high rate of inter-country adoptions in comparison with our European neighbours. In the interim period a situation has been allowed to develop where inter-country adoptions, of which there were 490 in 2008, operate under different levels of safeguards than those for domestic adoptions, of which there were 200 in the same year. Incorporating the convention will lead to standardisation and bring all adoptions within the same set of rigorous standards. In consequence, we call for enactment of the legislation.
The Bill can be strengthened, specifically to uphold children's rights. First, there should be a provision to include the voice of the child which should be strengthened to provide for the appointment of a guardian ad litem and remove the age limit of seven years. Second, clarity is required before the Bill is enacted as to how the transition period will be managed between dealing with applications currently in train under the 1991 legislative provisions and the enactment of the Adoption Bill. It is imperative that during this transition period no child is left in a legal limbo. Third, we are greatly disappointed that the Bill makes no provision for pre-adoption or post-adoption services to support the adoptive child. Adoptive children may require specialised support at various points during their lives on issues linked with their adoption status, including issues of identity, a sense of loss and abandonment, family relations and multiple loyalties. Fourth, we believe the phrase “the best interests” should be used in the Bill in place of the term “welfare”, in line with international best practice. I highlight section 19 of the Bill, in particular, in this regard. Fifth, the Bill does not provide for statutory information and tracing services. We believe this to be a serious omission that must be remedied as a matter of priority.
If time permits during our discussion, I also wish to outline the position of children who are not eligible for adoption. I refer to children who have been abandoned — the reason we have asked our colleague from the Irish Foster Care Association to attend — as well as children of marriage and children over 18 years of age. We have provided the committee with a detailed submission that also includes areas which are not addressed by the Bill but which we seek to have addressed, either within the Bill or in the form of a commitment in the near future, including open and semi-open adoptions and a definition of the family. To allow the maximum time for questions, I will set aside our presentation. Ms McTeigue, Ms Corbett and I are happy to participate in the question and answer session.
I thank Ms van Turnhout for being so succinct.
The difficulty groups have is that they are covering much of the same ground. While I had not seen the Children's Rights Alliance's submission until today, I read through it quickly as Ms van Turnhout was speaking. There is not much within it with which I disagree.
I do not wish to detain the joint committee by asking questions simply for the sake of it. However, I wish to raise an issue that is intermingled with the Bill and the work being done by the Joint Committee on the Constitutional Amendment on Children, of which Deputy Conlon and I are members, on the rights of the child. There is a reasonable prospect that the work in question will be completed by 16 December, as originally envisaged. I do not know whether this will be achieved because a number of that joint committee's members have been involved in dealing with issues arising from the Murphy commission report and because of the budget this week. However, I certainly envisage that if the work is not completed by 16 December and the joint committee requires an extension of time, there is no reason the report will not be completed by the end of January. The joint committee is getting to that point and just might make it by 16 December. However, I am not convinced, given the time constraints. The issue is important to this Bill. I should follow procedures correctly by also raising it with the Chairman. It is of vital importance that Committee Stage is not taken until the report of the Joint Committee on the Constitutional Amendment on Children is issued. At worst, it will be issued by the end of January and at best before Christmas.
Approximately 2,000 children have been in care for five years or more, the overwhelming majority of whom have no prospect of being brought up within the home of their original family or biological parents. Such children will remain in care until they are adults. For many such children and many of the people who took them on as foster carers, some of whom initially thought it would be a short-term foster care arrangement, the option of adoption is hugely important. This issue cannot be addressed adequately in the Bill unless the recommendations of the Joint Committee on the Constitutional Amendment on Children are known and if it is known whether the Government will take on board these recommendations. I am not revealing any confidences of that committee in so far as there are differences about the wording of constitutional amendments. All members of the joint committee are absolutely agreed that an amendment to the Constitution is needed to facilitate the adoption of children who have no realistic prospect of returning to their biological families and have been in long-term care. This is highly pertinent to the Bill. The reason I raise the issue is that the Bill essentially re-enacts provisions taken from the Adoption Act 1988. It has been promised for 20 years and contains all the omissions and defects about which members have heard today and in respect of which the Children's Rights Alliance has presented. Were the Joint Committee on the Constitutional Amendment on Children to produce its report, would the delegates consider it to be important to take the opportunity to have a constitutional referendum prior to finalisation of the Bill? There is no reason this could not happen. Were that constitutional referendum to be successful, the Bill could be used as a vehicle to make new provisions in our adoption legislation to facilitate the adoption, where it is appropriate and in their best interests, of as many as 2,000 children in long-term care with no chance of returning to their natural families.
My second question pertains, in particular, to the Adoption Act 1988 which allows, in limited circumstances, the adoption of some of these children. I firmly believe the HSE is not using the Act appropriately. It largely is being ignored and a number of the aforementioned children could be adopted under current adoption law were the HSE to use the Act. I intend to ask this question of one of the later groups to appear before the joint committee also. Does the Children's Rights Alliance have an insight into the reason it is not being used because no more than a handful of adoptions are effected under the Act? Do the delegates believe there may be a belief on the part of HSE social workers that the constitutional barrier is even greater and that there is a lack of familiarity with the provisions of the 1988 Act?
I also welcome the delegates and will be brief, just as Deputy Shatter said he intended to be.
I apologise.
I concur absolutely with Deputy Shatter on the issue of foster children. As Ms McTeigue is in attendance, I wish to ask questions on issues pertaining to foster children. If anything illustrates the need to include the rights of children in the Constitution it is the predicament of some foster children who are in a position that must be remedied. I wish to specifically ask Ms McTeigue how the Bill might be strengthened, albeit presumably without having held the constitutional referendum in advance of its passage. What might members do on that issue? The alliance raised the issue of removing the age limit of seven years. I ask Ms van Turnhout to expand briefly on that point.
I also welcome the delegates and thank them for their succinct presentation and the additional information provided for members. Ms van Turnhout has spoken clearly and indicated the issues the alliance considers it to be important that members should raise. A similar vein has run through all the groups and speakers this morning. I hope the work of the Joint Committee on the Constitutional Amendment on Children will be completed by Christmas or as quickly as possible thereafter because it will be important for the two processes to proceed side by side. I also share Deputy Jan O'Sullivan's concern about children who have been in long-term foster care, who may have no contact with their birth families but yet have no definite structure regarding the families in which they have received love and happiness throughout their lives, which is important. I also wonder about the seven year age limit. Some children may be mature at the age of seven, while others may not necessarily display such a level of maturity. I ask Ms van Turnhout to tease out this matter a little for members.
I have a query on the distinction made in the Bill between children from families in which the parents are married and those in which they are not. Have the delegates taken legal advice in this regard? If we are to cherish all the children of the nation equally, this requires explanation. Whatever about the eventual work of the Joint Committee on the Constitutional Amendment on Children, this probably is a breach before we ever get there.
Perhaps when responding to questions, the delegates also might advert briefly to the subject of open adoption.
Ms Jillian van Turnhout
I apologise, but unless I write down everything, I might forget to respond.
Members will remind Ms van Turnhout.
Ms Jillian van Turnhout
I thank the Deputy. First, he raised the important issue of a children's rights constitutional amendment. Obviously, the Children's Rights Alliance has been to the forefront in campaigning in this regard and would love to see it in place. The difficulty I have pertains to the question of whether, after the Joint Committee on the Constitutional Amendment on Children has produced its report, the Government really is committed to bringing it before the people in a timely fashion. While I would like to believe it would, I am not convinced it will. Therefore, when we consider this Adoption Bill, I am highly conscious that it consolidates seven Acts. While it will help us to ratify the Hague Convention, it falls short of modernising our adoption laws. Perhaps this is the next step we must take. We need to consolidate and the Bill is required, but it is not the answer to all the issues we have outlined, as have other groups, to members today. I am trying to strike a balance between the two.
The issue of long-term foster carers is very important, which is the reason we have asked Ms McTeigue to join us today. Perhaps I can deal first with the issue of the proposed removal of the age limit of seven years. The reason we have raised this issue is we consider seven years to be arbitrary. A phrase such as "in line with the age and maturity of the child" could be included, which would leave the matter open. One could appoint, for example, a guardian ad litem in circumstances in which one believed a child may need support and help. I refer to the Baby Ann case as a prime example of a scenario in which the inclusion of a seven-year limit would not solve the issue. That is the reason we do not agree with picking an age out of the sky, rather than making a provision in line with the age and maturity of the child, which would allow one to deal with each case appropriately as it arises.
It probably first arose in respect of Canon Law.
Ms Jillian van Turnhout
I will not comment on that issue. On children who are not eligible for adoption, it might be important to provide an outline, as there are three categories. I will ask Ms Corbett to outline them from a policy perspective and then ask Ms McTeigue to provide some real life examples.
Ms Maria Corbett
The three categories pertain to domestic adoptions, that is, children living in Ireland. The first comprises children who have been abandoned by their parents. As Deputy Shatter correctly noted, the Adoption Act 1988 attempted to address this issue, whereby it allowed for the adoption of children of married parents and set out the criteria. While I do not have a legal background, my understanding is that the High Court has given a high definition and raised the threshold regarding when children of married parents can be adopted in court cases that include the unreported 1995 case of the Western Health Board v. An Bord Uchtála. It has been set out that the High Court can only grant such an adoption where there has been a total failure, for physical or moral reasons, on the part of the parents in their duty towards a child for the previous 12 months. This language echoes that of Article 42.5 of the Constitution but adds that it must have extended over the previous 12 months and that such a failure is likely to continue without interruption until the child reaches 18 years. It is very difficult for people to foresee what will happen over such a long period. The court must be convinced that the parents will not change their minds and re-engage with the child, but this is very difficult for the court to determine. In addition, the failure to parent constitutes an abandonment of all constitutional rights on the part of the parents. This abandonment must be complete for adoption to take place. This is the difficulty with regard to adoption of these children. We have approximately 2,000 children in long-term foster care who could be adopted if we could get over this issue.
I am not sure we can go back and look for Supreme Court or other court rulings on the issue. We have been working on a constitutional amendment as the way to solve this problem and feel that is the most robust solution. The 1988 Act was referred to the Supreme Court to test its constitutionality. Therefore, it would be very difficult, almost impossible, for this 2009 Bill to amend the phrasing of that Act. The proposed Bill has just re-imported the phrasing from that Act into the Bill. Therefore, with regard to children who have been abandoned, we feel the constitutional route is the appropriate and only way to go to get past the difficulty.
The next category concerns children born to married parents. Where children are born to married parents, the parents cannot voluntarily give up their child for adoption. This is linked to marital family rights under Articles 41 and 42 of the Constitution. We do not have any data as to how many children fall into this category, but it is clearly discriminatory that the option of adoption is not available to children whose parents were married.
The third category does not involve a constitutional issue and could, potentially, be dealt with in the Bill. As Ms van Turnhout said, we do not want to delay the enactment of the Bill, but we would consider it a positive move if it was possible to make small amendments now. We hope that can be done. The issue concerns children over the age of 18, children who have grown up in foster families and integrated themselves into the family and feel part of it but do not have the legal rights of a child of the family. What we seek to do is make provision for a child who has turned 18 and the foster family, where both parties are in agreement, to undertake a legal arrangement whereby the child is adopted. We understand from the Irish Foster Care Association that the issues with regard to inheritance and succession rights have already been dealt with. We understand adoption of such children is just a legal issue. Resolution of this issue would bring permanency and be important on a personal level for these children.
Ms Deirdre McTeigue
In response to the question as to why the HSE does not use the 1988 Act more, it is very difficult for parents to admit abandonment because they must admit to being a total failure. The whole thrust in foster care now is that birth parents are very much part of the children's lives. If, for example, a mum with access visits her child in a foster family and loves the child but is not able to parent that child, it is very unfair to expect her to agree to abandon all her constitutional rights. In such a case an open adoption would be more appropriate. That would be like transferring to what happens in many fostering situations currently. In such cases birth parent and foster parents have worked out the relationships. Children know who their birth parents are and they have access and visit for communions and confirmations. At this time of the year there is significant activity with regard to access for Christmas. Once everybody involved understands their position and a care plan is arranged, such arrangements can work extremely well. Obviously, when there is conflict, issues arise. The threshold, since such adoption was contested, has been higher, but when open adoption works it works really well.
I would like to give an example of the case of two children where open adoption would make a big difference. This concerns a situation involving two half-siblings who were placed with a foster family. The second sibling had a different father and was adopted by the foster parents. Both of the children were placed in foster care at the same time due to neglect issues, but the first child who was born within marriage cannot be adopted. The child, who is now a teenager, thinks the foster family does not love them enough to make the adoption. Even though this issue has been explained, it is difficult to understand why there is such a difference. When consent forms come home for school outings or whatever, the form for one child can be signed, but the form for the other must be signed by the social worker. These are real difficulties in the day-to-day life of foster families.
We have welcomed the amendment to the Child Care Act 2007, which expanded some of the rights of foster parents to sign forms for medical cards and passports. However, this does not go far enough. Many of the foster carers who phone our office want adoption, where in every way but in the legal sense the children are part of the family.
There is a similar problem with regard to those over 18. We know that children who have come into care have been at risk and there are serious reasons they are in care. Often when they are in their early 20s they realise they could have been adopted at 17, but at that stage they did not want to get into conflict with their birth family. If there was conflict, once over 18 those children could consent to their own adoption if this was agreed in legislation. We had discussions on this issue with Deputy Brian Lenihan when he was Minister of State with responsibility for children. We also raised the issue again with the current Minister of State, Deputy Barry Andrews. We would welcome legal provision for open adoption because it works very well in many fostering situations.
I reiterate that many of the changes we are discussing require resources. We would like to see those resources being offered.
Ms Jillian van Turnhout
On the issue of open and semi-open adoptions, we are very aware that semi-open adoptions are happening currently, but they have no legal footing or basis. Ireland has, historically, operated a very closed system. A more open system of adoption would facilitate the child's right to know his or her origins and identity and would allow for preplanned and controlled access to the birth parents. The current closed system is weak and with regard to unmarried fathers, hinders the vindication of their child's right to their identity and to know their father. As we learn more about life, we realise that identity is very important as we go through life.
Adoption legislation in Ireland will need to be amended if we have, and hopefully we will have, successful passing of a constitutional amendment on children's rights. We propose that legislative provisions for open or semi-open adoptions be published in advance of any referendum that will allow the Oireachtas to legislate for the adoption of children in long-term foster care who have been abandoned by their birth parents. We want these provisions already in place rather than waiting for something to happen and then deciding to do something about it.
I will now ask Ms Corbett to touch on the issues of family and guardianship.
Ms Maria Corbett
Much of our discussion today has focused on the fact that the adoption system here is final. We spoke already about step-parent adoptions. If a step-parent adoption takes place, the birth father loses his legal connection to the child. The same is true for other adoptions. The birth father loses his connection if consent has been given for the adoption. This is the current difficulty. If we are to begin a process whereby children in care are adopted, we feel it would support the constitutional amendment provision we seek to have passed to have semi-open adoptions in Ireland.
Let me give an example. A mother with severe psychiatric difficulties is unable to parent her children, but they are her children and she has a connection with them. However, the children need to be given a permanent home. Perhaps they are in long-term foster care and the foster family would like to adopt them. If that adoption goes forward and the children are adopted under an open adoption process, the children would be able in some way to keep a connection with their mother. The children would understand their identity and have a connection with the mother in some way. This issue needs to be re-examined.
In the case of birth fathers or other family formations, we need to look at the issue of guardianship, wardship or special guardianship. This Bill has not addressed any of these issues and we need detailed consultation with the relevant stakeholders and those affected to see how we should manage these issues. The difficulty is we are coming from a system where things have been very black and white. Adoption is a closed system and the child loses the connection to the birth families. Now we need to reflect the reality of modern Ireland. We need to be able to give children a permanent home, but also respect their identity and birthright in terms of the circumstances of their birth.
It strikes me, thinking about the children involved, to wonder to what extent there is age-specific expertise on how to talk to a child who has been adopted. How is it explained to them and at what point? Is it the adoptive parents who explain it? That is something on which we have not focused but which is very important to the child.
Ms Deirdre McTeigue
There is a lot of literature in this area. We rely not so much on Irish books but on others such as the children's books published by BAAF, the British Agencies for Adoption and Fostering. There is age-appropriate literature starting from fairy tales and stories. As we said earlier, a child's comprehension of adoption matures as he or she matures; children understand more as they get older. The best case is that children grow up knowing they are adopted; they know the word and they know there are all types of children, some with different mammies and daddies, as well as step-families and blended families. That is one of the things that happens in the assessment. Often when parents are being assessed they are so hell-bent on getting approved that this information does not stay with them. That is why post-adoption services — that is, after the date the child is placed — are important. If the child arrives at 18 months or two years, it is even more important that the information is passed on in a child-friendly way and with due regard to the age of the child.
Ms Jillian van Turnhout
That is why we stress the need for pre- and post-adoption support services, which is not dealt with in the Bill.
Do the witnesses have concluding remarks?
Ms Jillian van Turnhout
We are open to further consultation and we will make known to the committee any other issues we have. It is important the legislation progresses. As I said, we need to ratify the Hague Convention, but it should not be a full stop after that. We need to modernise the way in which we deal with adoption in Ireland. I do not think this issue should be put to bed; this is one step in a process.
I thank the witnesses for their presentation, which was very helpful.