Seanad Éireann díospóireacht -
Wednesday, 22 Jan 1964

Vol. 57 No. 6

Adoption Bill, 1963—Committee and Final Stages.

Minister for Justice (Mr. Haughey)

May I ask your permission, sir, and the permission of the House to make a brief statement before we go on with the Bill regarding an error which occurs in the Official Report of the Second Reading debate on the Adoption Bill? The interjection by me, recorded at the top of Column 271, Volume 57, No. 5, should read:

"It would be if it were there, but it is not there."

This error was not made by the Official Reporter. It arose through some confusion in the correction of the typescript of the report and the responsibility was entirely mine. I have arranged for a correction to be made in the revised report.

The reason I mention this now is that Senator Miss Davidson has told me that she considers that the report, as it now stands, makes her appear to have said that she regards the Board as irresponsible. The Senator, of course, did not express any such view. I am sorry for any misunderstanding that may have arisen and I am grateful to the House for permitting me to clarify the position.

Section 1 agreed to.

SECTION 2.

Professor Dooge

I move amendment No. 1:—

In pages 2 and 3, to delete subsections (1), (2) and (3) and substitute the following:—

"( ) Notwithstanding anything contained in paragraph (c) of section 10 of the Principal Act, an adoption order may be made for the adoption of any child who was illegitimate at birth."

Under the present Act, the position is that a child must be either an orphan or illegitimate at the time of adoption for a valid adoption order to be made. This position, to be carried out with due scrupulosity, would require inquiries to be made in respect of every adoption order immediately before the making of the adoption order. This is something which we realise should not be looked for. It is little surprise that cases have occurred during the operation of the Act where orders have been made in good faith which, under this provision, are not valid orders.

In Section 2 of the Bill, the Minister has brought in the proposition that, in the case where an adoptable child has been legitimated but not re-registered, adoption can proceed under certain conditions. He has also brought in a provision that the Board need not inquire, that they can presume at the time of making the order that no marriage has taken place which would legitimate the child.

I have brought in this amendment because I think it is simpler. It gets the effect which the Minister is looking for without the special provisions. It is better to make a clean cut and to say that if a child is illegitimate at birth, then the position is that, so long, as the mother consents to adoption, that child may be adopted. This does not rob the mother of any right because the mother could even withdraw her consent previously given at any time up to the final granting of the order and this withdrawal, of course, would have the result that the proposed adoption would collapse.

It is preferable to do it this way rather than to bring in this artificial thing that we say that if the child has been legitimated under the 1931 Act but has not been re-registered in accordance with this act, the child can be adopted but if the child is legitimated and re-registered, then the child is not available for adoption even if the mother consents.

Also, it is preferable to avoid putting a provision into the Bill whereby we say that the Board may make a presumption. The wording here is "unless evidence is adduced to the Board." In other words there is almost a suggestion here—I do not think I am being unfair—that the Board can go ahead and make orders with at least one eye shut in this regard. I do not think this is quite the way in which we should legislate in this matter. I propose this amendment whereby a child who was illegitimate at birth, is, independent of the subsequent history, available for adoption. This would be a simpler method of achieving what the Minister desires and with which I think we all agree.

Mr. Haughey

If it is only a matter of putting the draftsman to a bit of trouble in order to achieve exactly what we wanted, I think we should do that rather than opt for the simple way of doing it. Senator Dooge's amendment would not, I think, achieve what he and I both want. First of all, there is an objection to it in principle. In all our law and in all our policies governing these matters, it has always been the objective to ensure that the legitimated child is, to all intents and purposes and in every possible respect, put on a par with the legitimate child, in other words, the child who is legitimated by the subsequent marriage of its parents should for the rest of its life, be in exactly the same position as if it were a legitimate child.

Senator Dooge's amendment would cut across that principle to some extent in so far as it would put all legitimated children into the same boat. In the case of the legitimated child who has been re-registered, I think there is no question of it being permitted to be adopted. The father has, by the re-registration, fully acknowledged that child and in no circumstances should it be deemed eligible for adoption.

I mention that objection in principle purely en passant. I am not suggesting it would necessarily be conclusive if some other important element entered into the situation. However, it is something to which we should have regard. The Department of Health, who have an interest in this matter, are very anxious that we should maintain the principle, that, to the greatest possible extent, the legitimated child will be exactly on a par with the legitimate one.

Apart from that, Senator Dooge's amendment does suffer from the following defect. My objective, and his, is to obviate the need for last-minute inquiries by the Board which can cause embarrassment and give rise to some very troublesome incidents. If we adopted his amendment, the need for these last-minute inquiries would not be obviated. In the case of a legitimated child, the father has full parental rights and his consent to the adoption would have to be procured and thus the need for last minute inquiries to determine whether legitimation had taken place, thus rendering the father's consent necessary, would arise.

Therefore, from the point of view of drafting, my draft—while it is, if you like, cumbersome compared with the comparative simplicity of Senator Dooge's amendment—achieves precisely what we want to do without interfering with the principle I have mentioned. Senator Dooge's amendment has the merit of simplicity but it does not achieve what we want to do, namely, to obviate these last-minute inquiries.

Professor Dooge

Surely the Minister has provided in subsection (3) that the Board need not make such last-minute inquiries? Surely subsection (3) —which is the subsection of Nelson's eye—allows the Board to ignore them? This is merely by reference to what the Minister said. He said a legitimated and re-registered child is a fully acknowledged child: I do not agree with him. Such a child may be fully acknowledged in law but the only child that is fully acknowledged in fact in so far as we are concerned with child welfare is the child which the mother and father are prepared to take into the family.

Mr. Haughey

That is what a re-registered child is.

Professor Dooge

Yes. The Minister seems to feel that my amendment would allow a legitimated and re-registered child to be adoptable. It will not, if the mother refuses her consent. Surely, if the mother and father are to take the child into part of their family, the provision in relation to the mother's consent can destroy any attempt at adoption. It will ensure that a child whom the mother and natural father, who have now united, wish to bring into the family can be brought in through the mother's power to withhold consent to adoption.

Mr. Haughey

May I interrupt? I do not think the Senator understands. The Senator's amendment is a blanket one. As such, it covers all illegitimate children. It covers children who are illegitimate at birth; it covers children who are never legitimated and it covers children who are legitimated. In that respect, it is objectionable; it does not differentiate between the illegitimate child and the legitimated child. All our law seeks to ensure is that once legitimation takes place, the stigma of illegitimacy is for ever wiped out and that the child becomes an ordinary member of the family.

Professor Dooge

I have gone farther than the Minister in this principle. I agree with the Minister when he said that in law once the marriage of the parents takes place, the child is legitimated. But, in Section 2, he proposes to allow the adoption of a legitimated but not re-registered child where the mother and father consent.

Mr. Haughey

Yes, but, apart from the principle, which I merely mentioned en passant, the Senator must recognise that his draft will not achieve what we both want. There will still be the necessity for last-minute inquiries in the case of a legitimated child because in the case of a legitimated child the consent of the father will be necessary and therefore the Board will have to enquire if there has been a marriage.

Professor Dooge

Would the consent be necessary if subsections (1) and (2) were deleted as is proposed in my amendment?

Mr. Haughey

The Senator proposes to delete subsections (1), (2) and (3). Orders made by virtue of subsections (1) and (2) need the father's consent, normally.

Professor Dooge

My amendment would delete these.

Mr. Haughey

Yes, but still the consent of the father would be necessary. The Board would be under an obligation to inquire if there had been a marriage of the parents.

Professor Dooge

In what section or under what statute would they be required to make these inquiries?

Mr. Haughey

Under Section 14 (1) of the Principal Act, 1952, which says:

An adoption order shall not be made without the consent of every person being the child's mother or guardian or having charge of or control over the child, unless the Board dispenses with any such consent in accordance with this section.

I take it that the Senator really only wants to do the same as I do except that he says his way of doing it is simpler. Surely if that is all that is involved he can accept my way of doing it, if it is only a question of a difference of language, particularly as I say to him that his draft is, first of all, objectionable in principle and does not achieve what he wants to do, namely, obviate need for the Board to make last minute inquiries.

Professor Dooge

The argument largely devolves on the consent of the natural father with which I should prefer to deal on the section. Accordingly, I withdraw the amendment although I am not completely convinced by what the Minister has said.

Amendment, by leave, withdrawn.

Question proposed: "That Section 2 stand part of the Bill."

Professor Dooge

On this question which appears in subsection (2) in regard to the consent of the natural father, there is a tendency in legislation about which I am not very happy. The position is that legitimation can only occur in the case where there is a subsequent marriage between persons who could have married at the time the child was born. Here we have the position of placing a natural father who failed to marry the mother of the child before its birth and who subsequently marries, into the position of having an undesirable degree of control over the future of that child.

My argument is that, as the law stands, if the mother refuses to consent, the adoption cannot take place. Our criterion must be that we would wish to see this child a member of a family, preferably a member of the family of its own parents. If we look on this as our criterion, if the mother wishes the child to be a member of the newly-formed family then the mother will refuse to allow that child to be adopted away from her newly-formed family. So, the existing situation under which the mother's refusal to consent is sufficient. If, on the other hand, the mother does not wish the child to become part of the family the mother will then be willing to consent to its adoption. When we bring in the consent of the natural father we have the position that if he also consents to adoption the child can become part of a family. He does not add to or subtract from the position. However, if the natural father does not consent he can condemn that child to an institution. The mother's refusal to take it into the family means it cannot be part of the family of its parents but the refusal of the natural father means that it cannot go into any other family. If we take the welfare of the child as the criterion we may by bringing in the rights of the natural father be bringing in something harmful to the child.

I do not know what legal principles are involved but it appears to me that we are giving rights here which can prevent a child being a member of a normal family to a person who had an opportunity to legitimate that child before its birth and did not take the opportunity.

Mr. Haughey

I am afraid, with all respect, that is very muddled thinking. Do not all of us want, if possible, to see these children legitimated by the subsequent marriage of the parents? The child will then grow up in the natural family with all the status and rights of the legitimately born.

Professor Dooge

That is most desirable.

Mr. Haughey

It is most desirable. Once that happens there is a legitimate family with the father entitled to all the rights of a father, including the right to refuse consent to the child's adoption by some other family. I do not think the Senator's arguments stand up for one moment.

Professor Dooge

My point is that where the mother is unwilling to have this child brought into the newly-formed family, where we have a difference of opinion between the mother and the natural father——

Mr. Haughey

Yes, but the——

Professor Dooge

——where the mother is unwilling that this child be brought into its natural family, the Minister will agree there are circumstances under which the mother would feel this and she might have good reason for feeling that the child born before the marriage should not be a member of the family. Under these circumstances, if the child is not acceptable to its mother, the next best thing is for it to go into another family.

Mr. Haughey

But we are dealing with the natural father as well as the natural mother.

Professor Dooge

Yes, but we are allowing the natural father——

Mr. Haughey

And now the legitimate father.

Professor Dooge

Only now the legitimate father—and we are giving him the right to condemn the child to an institution until it is 16 years of age——

Mr. Haughey

No.

Professor Dooge

——rather than be adopted into another family.

An Leas-Chathaoirleach

Is Section 2 agreed to?

Professor Dooge

Having raised this point, I should like to have the opportunity of putting down an amendment for Report Stage.

Mr. Haughey

I was going to ask the House to give me all Stages of this Bill this evening. I am not doing that in order to stampede the Bill through the House but because this Bill is being anxiously awaited by a number of families who are vitally concerned and for whom the provisions of the Bill will mean a very great deal: they will be enabled to adopt children who they have not been able to adopt up to now. Senators know that we have a very heavy legislative programme coming up and it was my earnest wish that we would get all Stages of this Bill this evening. On that basis I was prepared, indeed, to make one or two concessions in the Seanad which I had hoped would find favour with Senators. I may mention that I was prepared to make these concessions on Committee Stage as an indication of how anxious I am to get the Bill through.

Mr. Fitzpatrick

Could it be there is something else coming up?

Mr. Haughey

I do not understand.

Mr. Desmond

Am I correct in saying that strangers can come into the country and remain for five years and are then entitled to apply for an adoption order?

An Leas-Chathaoirleach

That will arise later on.

Mr. Haughey

There are amendments.

An Leas-Chathaoirleach

Amendments have been tabled.

Mr. Haughey

I mention this to Senator Dooge so that he can continue to discuss Section 2 to the end at this point, provided he is prepared to give me the Report Stage later.

Professor Dooge

I think I have stated my position on it.

Question put and agreed to.

SECTION 3.

Professor Dooge

I move amendment No. 2:

In subsection (1), to delete paragraphs (a) and (b) and substitute "the application is made before the child attains the age of sixteen years".

We come again on this amendment to a question on which I unfortunately find myself once more taking the opposite view to that held by the Minister with regard to the best means of achieving the maximum degree of welfare in relation to certain types of children. It is only proper that I should on the Committee Stage of this Bill state quite clearly what I believe are the principles involved. There is general agreement that infant adoption is preferable but there are many people who believe that children over seven years of age should have their cases for adoption considered on their merits.

The Minister has told us that he cannot agree with this point of view and that he feels the difficulties involved in adoption over seven are so great that the whole of child adoption would be endangered if adoptions of children over seven were allowed. In support of this contention, the Minister referred to a quotation he gave in the Dáil. It will be found in volume 206, column 908 of the Official Report. The quotation was from the report of a European Seminar on Inter-Country Adoption. I should like to express my viewpoint now that the way in which the Minister introduced these quotations into his argument shows that he failed to point out clearly that these quotations, being part of a report on inter-country adoption, were largely directed towards the problems of such adoption. Thus, in the first quotation, the Minister did not commence his quotation at the beginning of the paragraph of the United Nations Seminar Report. The first sentence reads:

Here a word of caution should be posed concerning the consideration of children over seven years old for inter-country adoption.

That is the first sentence and, in the good writer, it is the topic sentence which gives us the background; what the Minister quoted were the sentences following. The last sentence of the paragraph—it was not quoted by the Minister—reads:

The task of the rehabilitation of an emotionally damaged child is one for experts and such children should not be subjected to the hazards of transportation to a new country with a new language, culture, etc.

The Minister's first quotation was clearly directed towards inter-country adoption and I submit it is not relevant, certainly not directly relevant, to the problem of the appropriate age for adoption within a country. In the second quotation, the Minister quoted the last sentence:

For a child of seven identity and emotional ties may also include identification with his——

There then follow five dots, and the word "neighbourhood". When we turn to the United Nations report we find this reads "identification with his country, language and neighbourhood". Neighbourhood comes third and is not necessarily the most important of the barriers of which the writer was talking in this report. I think, therefore, we should look beyond what the Minister said and I should like to put on record here now two other quotations indicating how thinking has developed in regard to this question of the adoption of the older child. The first quotation is 12 years old and there has been a great deal of development since then but, even 12 years ago, in a Report on a Workshop held in May, 1951 in New York, attended by 94 agencies, on the subject of "Adoption Practices, Procedures and Problems", there is the statement:

In actual practice close to 50 agencies report that they accept for adoptive placement children of any age. The trend is towards placing a child of any age for whom a home can be found. With the exception of four agencies that place only infants the agencies for all practical purposes have no age limit if a home can be found.

I should like also to place on record a quotation from an article by Ann Leatherman, M.Sc., on placing the older child in adoption, which appeared in the journal Children, in the issue of May-June, 1957, published by the United States Department of Health, Education and Welfare:

Older children, those between six and fourteen, who are without parents, have special needs. However, progressive child placement agencies and their board members are no longer saying that older children cannot be placed for adoption, for many such childrren are being placed with considerable success.

I submit there are a number of cases of children above seven years in which we have a duty to see that their cases are examined on their merits by the Adoption Board. We do not look for adoption on such a widespread basis for children over seven as for children under seven but it is, I think, unfair that a complete curtain should be brought down.

The Adoption Board, on which the Minister relied when he spoke of the success of the operation of the 1952 Act, recommended the raising of the age in its reports for 1957 and 1960. As far as can be gathered from the Minister's Second Reading speech, the Board again recommended in their memorandum to him that the age should be raised, with the limitation on this occasion, that the child should be placed before seven. So far the Minister has not brought forward any real grounds for his belief that the adoption of children over seven years in special cases would endanger infant adoption. As I have said, there is no need for such adoption to be widespread. Subsection (1) of Section 3 refers to "the particular circumstances of the case."

The section as drafted gives the Board discretion to limit adoption over seven years in any way they wish. If the section were amended as I have suggested here, there is no doubt that the present Board, on the basis of what they said in their memorandum to the Minister, would limit such adoption to those placed before seven years of age. This appears to be the opinion of the present Adoption Board. It would appear that the Board of 1960 or 1957 might not have put in that particular limitation. But I think there is a case, not for the widespread adoption of children above seven, but for a right in those cases to come before the Adoption Board for special consideration. This is the reason I have put down the amendment raising the age of possible adoption to 16 years, taking that age as being the age at which children would normally leave an institution.

Professor Stanford

Senator Dooge has made a very cogent and lucid case for raising the age. I agree with him entirely. On the Second Reading, I quoted statistics from legislation in other countries showing they do accept a much higher age for adoption. These countries have gone into the matter with very great care. I do not see that there are any particular circumstances in this country making it desirable to keep the age down to seven or nine. In fact, I think this is one of the great faults in this piece of legislation. We are keeping the age far too low. I know the Minister has given strong reasons for this, but I personally do not find them entirely convincing. I would support Senator Dooge very strongly in his very reasonable and well substantiated plea.

Miss Davidson

I, too, strongly support this amendment. As Senator Dooge said, we are all convinced that infant adoption is the best, but there does not seem to be the slightest necessity to restrict the age to seven or nine years. Cases are bound to arise where suitable and successful adoptions could be arranged for young people of a much higher age group. The owner of a business with no children of his own might find in a young worker in his business, a boy perhaps taken from an institution, whom he might wish to adopt as a son, to take into his home and eventually pass his business on to him. He might want to do this in a firmer way than by merely making a will in the boy's favour, willing the business to him, fearing that circumstances might arise where the will might be contested and the legatee might have to face court proceedings because a distant relative felt that he had a greater claim to the business to which by that time the boy concerned—perhaps now grown to manhood — might have contributed greatly in building up a valuable asset.

I cannot think of anything more dreadful than that we should keep young people confined in institutions merely because there was no opportunity for their legal adoption before attaining the age of seven or nine years and then at 16 years being turned out unfitted to take their places in the world except in menial posts. There should be an opening in the Adoption Acts to permit of adoptions at a higher age than seven or nine years. I support the amendment.

Mr. Ross

I support this amendment very strongly. We are all agreed we must approach with great caution any adoption after the age of seven, but I am quite satisfied there must be many cases in this country in which adoption could take place after the age of seven and any time up to the age of 16.

Mr. Haughey

Not many. I think most people will agree they are a very small minority.

Mr. Ross

When I said "many," I was thinking of more than a handful. I am quite prepared to say there must be one case, and if there is one case where we can give a boy or girl a home, roots and a background, we should pass this amendment.

Mr. Haughey

I have all along said that there will be cases where this could be done with advantage, but I have gone on to say that I could not in the interest of a very small minority of cases do something which, to my mind, would undoubtedly involve a risk of interfering with the structure of the adoption system as a whole.

To take the point made by Senator Dooge concerning the report of the Seminar quoted in the Dáil, if the Senator is accusing me of not quoting in full from that document, I, in turn, can accuse him of not quoting in full from what I said in the Dáil. At the bottom of Col. 907, Vol. 206, No. 7 of the Dáil debates, I made it absolutely clear what I was doing. I said:—

It is clear frorm the context, and otherwise, that what the report has to say about inter-country adoption applies equally to adoption inside the country.

Of that I was fully aware, and I made it clear to the House that the report was dealing with inter-country adoption, but that it is also true that the reasoning applies also to adoption inside the country.

Senator Miss Davidson must not be familiar with the report of this European Seminar. The Senator spoke about a child being made heir to a business. That is the sort of thing that is specifically condemned by this Seminar. If I may quote from page 8 of the report:

With the trend away from the older concept of adoption as providing for the continuation of a family, providing an heir, to the more modem child welfare concept, adoption practice is increasingly based primarily on the interest of the child. The traditional concept was focussed on parents, on fulfilling their need by providing a child for them, whereas the modern concept is focussed on the child, on providing substitute and suitable parents for the child.

The importance of adoption being focussed primarily on the welfare of the child was repeatedly emphasised by the Seminar.

Miss Davidson

I would say to the Minister that I had not the full reports, but I still feel it would be no harm for that young boy to be adopted.

Mr. Haughey

Some Senators have referred to the practice in other countries. I am aware that many other countries have legislated to the effect that older children may be adopted. But these countries have legislated on the older concept that adoption is mainly a convenience for the adopters. Many countries are now moving away from that concept and closer to our concept, which is that adoption is primarily for the benefit of the child. They are acknowledging that it is the child's welfare which is important rather than consideration of family or inheritance.

Mr. Fitzpatrick

Surely it would be in the interests of the child to put him in a position to inherit the business?

Mr. Haughey

No. The Seminar is very specific on that. One of the things about which it was quite emphatic as not being a good reason for adoption was children in materially poor circumstances but part of a family group being given to adoptive parents who could offer various kinds of material advantage. When I am told of the higher ages at which children may be adopted in other countries, my reply is that their adoption code is on a different basis from ours. In many countries, adoption orders can be revoked; in our case, adoption is irrevocable. We are concentrating on the child and we are concerned with the interest of the child. Our adoption code is designed to help make the child in every possible way a normal member of the family into which he goes. It is for that reason we insist on infant adoption and that we resist opening the gates, lest we weaken the emphasis on infant adoption. In so far as we can do so, we should try to ensure, in the interest of child welfare and because of this concept that it is the child that matters, that the age is not raised.

I am the first to admit, and I have admitted in the Dáil, that somebody could produce cases where satisfactory adoption could take place at the age of ten or 11, 13 or fourteen, but the higher the age, the greater the risk of failure and it would not take very many failures to cast a shadow of doubt on the whole structure. To my mind, the structure is so important and the continuance of the success we have achieved so far is so desirable that it would be wrong to raise the age, no matter what people may be persuaded, for sentimental and other reasons, to advocate.

Most of the things I have said about this I have said already on the Second Stage, but perhaps I might repeat a few of the points. Senator Dooge mentioned the Adoption Board. I have already indicated that the Adoption Board have considered this matter very fully and, despite their original inclination, have, on reflection, agreed that the restriction of the age limit is desirable. There is also in this country a number of registered adoption societies. Not one of these societies has come forward in support of the proposition that the age limit should be raised.

Professor Dooge

The Minister may be unfortunate in that respect because members of the House have received representations from registered adoption societies in this connection.

Mr. Haughey

Registered adoption societies—I want to be careful about this. There has been correspondence by persons who are members of registered adoption societies but the societies as such have not supported this correspondence or the arguments put forward. I do not know what correspondence Senators have received but, as far as I am concerned, if there is a single adoption society in the country which has a view to put forward on this, it is reasonable to expect that it is to me, as the person responsible for the framing of this piece of legislation, that the representations would have been submitted in the first instance. However, as far as I know, not a single registered adoption society in this country has supported this proposition. Neither have I received any representations from local authorities or from persons in charge of county homes, or institutions of that sort, in favour of the proposal.

I do not know what practical experience the Senators who have spoken have of adoption work but I know that, if necessary, I can mobilise 90 per cent and probably even a greater percentage of persons engaged in practical adoption work in support of the ideas enshrined in this piece of amending legislation. The reason why there has not been any volume of public support for my proposals is that the people who support them—and they are the vast majority of adoption workers in this country—do not believe that the best interests of adoption are promoted by public controversy of this sort.

I would appeal to the House to reject this amendment because if we were to enact it, we would be doing a bad day's work. There are many arguments which may be put forward one way or another but my main point is that by accepting this, we would tend to weaken the whole valuable structure of adoption which we have built up so far.

Professor O'Brien

I did not intend to take part in this debate but I have listened to the discussion with an open mind and I am convinced of the correctness of Senator Dooge's amendment. I am in perfect agreement with the Minister when he says the purpose of adoption is the benefit of the child. Nobody disputes that and anybody who argues that is really pushing an open door. However, Section 3 of this Bill does accept that there may be exceptions to the age of seven years, that there may be exceptional circumstances in which a higher age of adoption may be legitimate and successful. I do not see anything sacred about the age of nine years and, as Senator Ross has said, there are cases in which older children could benefit from adoption. If the age of seven years is to be broken at all, I see nothing wrong in raising it higher than nine years in certain exceptional cases. I cannot see that the exercise of discretion under this section would in any way injure a child under seven years who is adopted or that it would conflict with the object of the legislation, the benefit of the adopted child.

Mr. Haughey

I fear Senator O'Brien misunderstands the position. It is not just a matter of raising the age from seven to nine or from nine to 16. What is involved here is the age at which the application can be made to the Board for an adoption order for a child which has been placed before the age of seven years of age. The Bill provides that the child must be placed with the family before it reaches the age of seven but goes on to provide that the application for the adoption order may be made at any time before the child reaches the age of nine. Thereafter the Board may make the order at their discretion. Normally the Board would make it within about a year or so but need not necessarily do so. There is no limitation as to when they may make an order, but the Bill rigidly insists that a child, in order to be adopted, must be placed with the family before it reaches the age of seven. Thus the age of seven remains the watershed.

Professor Dooge

With reference to the European Seminar of the United Nations, I think the Minister's statement in the Dáil that what applies to inter-country adoption applies equally to adoption within the country is not a valid point.

Mr. Haughey

I did not say that. May I quote what I said? In order to rebut the Senator's suggestion that I was purporting to apply the Seminar's statements about inter-country adoption to domestic adoptions, I quoted from the Dáil report:

It is clear from the context, and otherwise, that what the report has to say about inter-country adoption applies equally to adoption inside the country.

The reference is to the report.

Professor Dooge

I do not think there is much profit in quoting the report backwards and forwards to one another. It refers to the recognised difficulties of the adoption of older children and the added difficulties of inter-country adoption, changes of culture, etc.

There is one other point to which I would like to advert. The Minister conveyed the impression—it may not have been intentional—that he thought that the various arguments brought forward here were based on what Senators had read in the public Press. I should like, as a member of this House who takes an interest in this Bill, to say that I feel I would be very wanting in my duty in regard to a measure of this sort if I relied completely on newspaper columns in the public Press. I made specific inquiries from people I knew were active in this particular field. I made them in many directions and I found conflicting views between them. From the various views which those people, active in this field, put forward, I reached conclusions and put my views in good faith to this House. I think the approach of Senators to legislation is that we do our best to bring forward in this House arguments based on information. We have not got the facilities which the Minister has but we are not careless; neither do we rely on what we happen to read casually in the newspapers; nor do we rely completely on the representations made to us by interested parties. We make our own inquiries on these matters.

The Minister also remarked that certain of these arguments were based on sentiment. They are based on sentiment in so far as they are based on a desire to see the welfare of children promoted. There certainly are difficulties in regard to older children but I do not think they are anything like the difficulties which have to be faced by children who have to live their lives up to 16 years of age in an institution and then leave the institution in order to make their way in the world. Anything that can be done to alleviate that position should be done. I think basically we are agreed on that.

Mr. Haughey

Is that not the point? I want to force them out of the institution into the adoptive homes at an earlier age.

Professor Dooge

The Minister is utterly convinced that if he allows anyone over seven years—nine in exceptional circumstances — to be adopted, child welfare in regard to adoption is endangered. He has not convinced me on that point, and the only thing for me to do is to press the amendment and let Senators express their opinions on it.

Mr. McAuliffe

As a member of a local authority and a national teacher with experience of children coming from institutions, I am in thorough agreement with the Minister's attitude on not increasing the age. This Bill makes it easier to adopt children than it was before and anything that makes it easier to adopt children is very welcome so far as I am concerned.

In my time as a teacher, I saw many boarded-out children. We should try to get an alternative to that system as soon as possible. I saw children who remained in institutions until they were nine or ten years of age and were then boarded out, and I can say that they were never as obedient to their foster parents as children who were boarded out at a younger age. The very same thing would happen if we agreed to a higher age for adoption. We should give the age in the Bill a trial. I think it is quite sufficient because encouragement should be given to have children adopted at birth, if possible. I do not support the amendment for that reason and because of my experience of children who were boarded out at a later age than eight or nine years.

Mr. Brosnahan

What Senator McAuliffe has said is quite valid as an indictment only of boarding out and not of what Senator Dooge has recommended. It is not an indictment of adoption at a later age. I have heard child psychologists say on several occasions that any kind of home is better than an institution. As a matter of fact, the want that is experienced by children in institutions is being got around by suggesting that visitors to the institution should adopt the role of the father figure, that there should be some identification between the child and the adopter. That does not happen in institutions.

It is a well-known fact—and the people who conduct institutions will tell you—that there is that want in the institutions. Many children who pass through them do not turn out well and do not develop well. It is far better to have a child in a family milieu where he can identify with one or two adults rather than have the amorphous situation which exists in institutions. It is most important that children should be given the opportunity of adoption at a later stage. I do not think there is any body of opinion now which could prove that adoption at a later age will be a failure. If it were a failure in a large number of cases, I do not think that would take in any way from the genuine efforts which the Minister is making to have adoption at the infant stage.

Mr. Haughey

If Senator Brosnahan agrees that adoption is preferable to leaving a child in an institution, then he must agree with my efforts to get children out of institutions at as early an age as possible.

Mr. Carton

That is, before the age of seven.

Mr. Brosnahan

I would agree with the Minister, provided it does not constitute a barrier to all those at present in institutions above the age of seven or nine years who might have an opportunity of being adopted.

Mr. Murphy

It seems to me that the reasoning of the Minister is based on the assumption that the people who would adopt a child at a later age would do so for the purpose of exploitation, that they would await a situation where the child would be advanced in years and then adopt.

Mr. Haughey

That is one of the factors, but not the only one.

Mr. Murphy

I thought it might be.

Mr. Haughey

It is a subsidiary element in the situation, but not the main one. The real factor is that it is only an infant child who is likely to be assimilated into a family.

Question put: "That the words proposed to be deleted stand".

The Committee divided: Tá, 25; Níl, 16.

Tá

• Boland, Gerald.
• Brennan, John J.
• Browne, Seán.
• Cole, John C.
• Connolly O'Brien, Nora.
• Costello, John.
• Donegan, Bartholomew.
• Farrell, Joseph.
• Fitzsimons, Patrick.
• Flanagan, Thomas P.
• Hogan, Daniel.
• Killilea, Mark.
• McGlinchey, Bernard.
• Mooney, Joseph M.
• Nash, John Joseph.
• Nolan, Thomas.
• Ó Ciosáin, Éamonn.
• Ó Conalláin, Dónall.
• Ó Donnabháin, Seán.
• Ó Maoláin, Tomás.
• Ruane, Thomas.
• Ryan, Eoin.
• Ryan, William.
• Sheldon, William A. W.
• Yeats, Michael.

Níl

• Brosnahan, Seán.
• Carton, Victor.
• Crowley, Patrick.
• Davidson, Mary F.
• Desmond, Cornelius.
• Dooge, James C.I.
• Fitzgerald, John.
• Fitzpatrick, Thomas J.
• L'Estrange, Gerald.
• McDonald, Charles.
• Mannion, John.
• Murphy, Dominick F.
• O'Brien, George.
• Quigley, Joseph.
• Ross, J.N.
• Stanford, William B.

Tellers:—Tá: Senators Farrell and Ó Donnabháin; Níl: Senators Carton and Fitzpatrick.

Question declared lost.

Business suspended at 6.15 p.m. and resumed at 7.30 p.m.

Professor Stanford

I move amendment No. 3:

In subsection (1), to add the following:—

"or

(c) if the applicant is a relative of the child."

The purpose of the amendment is to extend the raising of the age limit from seven years to nine years to persons who are relatives of the child. The Minister showed some favour to this suggestion both in the Dáil and on Second Reading here and if he now agrees to it, I shall not argue the point.

Mr. Haughey

I was attracted to the idea in the Dáil and particularly to the way in which Senator Jessop put his point of view in the Seanad. I still have mixed views about it; it is still very much a matter of balance, but in view of the fact that quite a number of people seem to think that the balance of advantage is in permitting a relative to adopt a child older than seven or nine years, I think I should go some distance to meet that point of view. If the House permits, I have an amendment here which meets the point and which I shall circulate now. If adopted, it will meet the views of Senators Stanford and Jessop.

An Cathaoirleach

Could we take it on Report?

Mr. Haughey

It is suggested that we leave the amendment to the Report Stage which I hope to get tonight.

Professor Stanford

I agree to that.

Amendment, by leave, withdrawn.

Question proposed: "That Section 3 stand part of the Bill."

Professor Dooge

There is just one point on which I should like reassurance from the Minister. Is he satisfied that in paragraph (a) of subsection (1) the requirement that an applicant shall have had the child in his care is sufficiently broad so that a child who had spent a long period in hospital would still be legally in the care of the applicant?

Mr. Haughey

Yes.

Professor Dooge

There is a further point on section 3 (3). Subsection (3) permits certain outstanding cases to be cleared up and many of these cases are now in an unfortunate position because originally we had no adoption legislation and even when we had the legislation of 1952 many people, particularly those who had not had the benefit of the help of an adoption society, were not aware of the exact extent to which things could be remedied under the temporary provisions of the 1952 Act. There are many cases of children who had been, as it were, informally adopted under what was the old system and against all the canons of good adoption practice these children have grown almost to manhood unaware that they are not the children of the parents with whom they live and they have not been subject to an adoption order. This subsection (3) is, as it were, a final chance to remedy these special cases and it is as a temporary and non-recurring provision that I want to deal with it.

If we look at the effect of subsection (2) on such cases we see that, before making an adoption order in relation to a child to whom section 3 applies, the Board shall give due consideration to the wishes of the child. The position, of course, at the moment is that with 80 per cent of our children being handled through adoption societies and these adoption societies urging parents as to the best way gradually and carefully to make these children aware of their particular position in the home, no real difficulty does arise but in some of these outstanding cases, the provision in subsection (2) whereby the wishes of the child would have to be ascertained would mean, in fact, that a child, in order to be adopted legally under subsection (3), would, for the first time, have to be told and told rather suddenly of its particular position.

I would suggest to the Minister that it might be desirable to amend subsection (2) to make it less mandatory, to give the Adoption Board a discretion so that in certain cases, where it was satisfied that it was in the best interests of the child having regard to the particular circumstances, the Board could dispense with the requirement of ascertaining the child's wishes.

I put this forward, not as something that should be a permanent feature of adoption practice, but as something which might help to alleviate hardship in cases which have resulted because of the fact that we have not always had legal adoption and it has taken some years for people to get used to it.

Mr. Haughey

Yes, it is a suggestion but I am afraid, on balance, again, I would be against it. As Senator Dooge would agree, if I understand him correctly, in the normal case the proper thing for the adoptive parents to do is to inform the child and put things on a proper footing at the earliest suitable date. I am not sure that in these special cases with which we are dealing here there should be any difference. Most adoption workers are agreed that it is important that there should be no question of persons "living a lie", that it is important that the adoptive parents should be frank with the child.

There is also, of course, the question of the birth certificate. The child would discover the facts of its adoption, if it came to look for the long birth certificate. On the whole, I think it is better that the adoptive parents frankly discuss the situation with the adopted child and put the matter on a proper basis.

When we are dealing with children of 18 and 19, apart altogether from the question of good adoption practice and the relationship between the child and its adoptive parents, there is the fact that it is necessary and desirable that the child should be consulted because having come practically to man's estate he is entitled to have a say in his own affairs.

Professor Dooge

May I just make a point? What worries me is this: It is good adoption practice that the child should be made aware of its position, but, as in all matters of delicacy, this should not be a sudden frankness, but, rather, a gradual unfolding of what the position is. It is the sudden element here that makes me somewhat nervous in regard to this aspect. I take it the section as it stands is absolutely mandatory on the Board?

Mr. Haughey

Yes.

Professor Dooge

The Board has no discretion?

Mr. Haughey

No, just what it says: "having regard to its age and understanding".

Professor Dooge

They would have to take a very broad interpretation of "understanding" to be able to close an eye in regard to the matter that I have been referring to. The Minister sees no hope?

Mr. Haughey

I would prefer that the Senator would not press me on that matter.

Professor Dooge

Again, we do have some children whom in a sense we have failed to look after in this regard. They are non-recurring cases and it is a matter of regret to me that these special cases could not have been dealt wth on a temporary, non-recurring basis.

Mr. Haughey

Of course, they will still have two years. We are giving to the end of 1965. They could spread the gradual process over a year.

Professor Dooge

We can only hope for the best.

Question put and agreed to.

Section 4 agreed to.

SECTION 5.

Government amendment No. 4:

Before subsection (2) to insert the following new subsection:

"(2) Section 11 of the Principal Act is hereby amended by the substitution for subsection (4) of the following subsection:

‘(4) An adoption order shall not be made unless the applicants are ordinarily resident in the State and have been so resident during the year ending on the date of the order.'"

An Cathaoirleach

Is the House agreeable to taking amendments Nos. 4 and 5 together?

Mr. Haughey

Senators will recall that in my Second Reading speech I dealt at some length with the proposal in this Bill to drop the requirement that an applicant for an adoption order must, unless he has resided here for five years, be an Irish citizen. I explained that citizenship in that context was an unsuitable and, indeed, an inappropriate test as far as applications for adoption orders were concerned. I also pointed out, as Senators will recall, that we were the only country in the Council of Europe which prohibited resident foreigners from adopting children. Still, it is clear that a number of people, including a number of the Senators who spoke here, are a little unhappy about the situation and suggestions have been made that this proposal will open the door to all sorts of undesirable practices.

In answer to those suggestions I have maintained all the time that, of course, the Adoption Board is still there and will grant adoption orders only in cases in which it is satisfied as to suitability, etc. and it has this solemn statutory obligation to be satisfied before granting an adoption order to anybody.

However, there has been some confusion about it, as I have said, and there has been talk about people flying in here, adopting children and flying out again. As I have said, that is a misunderstanding of the position. This cannot happen and the reason we are making this change is to try to open the way for suitable, desirable adoptions which at the moment are being prevented because of this more or less technical provision. I might instance the case of foreigners residing here for two or three years who wish to adopt a child, who are absolutely suitable in every way, and who so satisfy the Board. Because of this provision, they cannot do so for maybe three or four years more. Circumstances might change and they might even have to leave the country. That is the main reason why we are dropping this requirement. Apart from the fact that it does not mean very much in itself, it also has the side effect of possibly preventing suitable adoptions.

I realise that some people are still a little unhappy about the sweeping nature of the proposal. In order to meet these objections, I am proposing to put in a one-year residence qualification. That is what is enshrined in my amendment. Here, again, of course, I must accuse some Senators of taking conflicting positions. On the one hand, they urge me to give the Board more powers and more flexibility and here, where I want to give the Board more or less freedom to decide these cases on their merits, without any statutory restriction, Senators are urging me to put statutory restrictions on the Board.

In an effort to meet Senators who have spoken and taken an interest in this matter, I am putting forward this compromise proposal of a statutory obligation of one year's residence.

Miss Davidson

On Second Reading, I gave my reasons for opposing the deletion of certain safeguards in the existing adoption legislation. I stress them again. It would be a most unfair action to open wide the door to non-nationals to come in here, make a short stay and then depart into the unknown with a small Irish citizen. I know the Minister has said investigations were made and backgrounds studied, but in such an important matter, where the whole future of a child is concerned, can satisfactory investigations be made at such long range in the teeming cities of the world outside Ireland? I hold they cannot.

I understand that people here in Ireland seeking to adopt children are informed by some societies that there is a waiting list for children. If this is so, why is there need for provision for adoption by persons from abroad?

I felt it necessary that I should table an amendment to endeavour to hold up, to some degree, an adoption by a non-national in order that his character and background might be studied over a period of three years. However, as the Minister has agreed to make provision that an adoption order shall not be made unless the applicants are ordinarily resident in the State and must have been so resident during the year ending on the date of the order, I will withdraw my opposition to the Section. I offer the Minister my thanks for his action.

However, I feel that I must say a few more words on the contents of the amendments. I would ask if we have any moral right to permit children to be taken out of the country at all when we are constantly deploring the scarcity of children in our population and when, at the same time, we are working towards and hope soon to achieve a situation where there will be such a prosperous economy here that there will be a need for the hands and brains of all our children. We are giving away a very valuable commodity. I say all this at the risk of the Minister being offended by my insisting on this point of view.

Surely there is nothing of doctrinaire theorising in this attitude, to repeat the Minister's castigation, and nothing inconsistent in this approach? Certainly, I am in favour of allowing more adoptions when these adoptions are favourable to the children concerned.

I would ask the Minister if he will examine the situation and see if it would be possible to have these children adopted at home. Eithne Carbury sighed—"They are going, going, going and we cannot bid them stay". Here is an opportunity where I feel we can bid them stay and help to build up the prosperity of their own country.

I would like to ask the Minister if there is any way other than under the Adoption Act, through the adoption societies and with the sanction of the Adoption Board by which children are allowed to leave the country with persons other than relatives, persons who have spent a brief holiday here, with a view to adoption. I ask for this information quite frankly because of a recent news item which seemed to indicate that children were being taken out of the country in contravention of Section 40 of the Adoption Act of 1952 and, as it seemed to me, in contradiction of the Minister's statement in reply to Senator Brady, where he said, as reported at Column 301, Volume 57, No. 5, of the Official Report:

Nobody who lives outside this country can apply here under our law to adopt a child, Irish or otherwise.

The Minister told us that one of the first things he did when he came to office as Minister for Justice was to take an interest in legal adoption. All credit to him for that, but when I began to wage my private war to have a Legal Adoption Act put in operation, I doubt if the Minister was even in politics. I was not successful in my efforts to persuade the Government of the day to do this—for what reason I do not know—and I have never been other than generous in the praise I have given to the Minister's Party for having introduced and passed into law the Adoption Act of 1952. I consider that Act to be a good and useful one. My desire is to see it made an even better one. For that reason, I am grateful the Minister has agreed to tighten up somewhat on the qualifications of persons from other countries who desire to adopt Irish children. I should like some information as to how these children are taken out and if there are any age limits covering them.

Mr. Desmond

Take non-nationals who come and reside here for a certain period and become eligible to apply for the adoption of a child. Originally strangers, having spent so many years here, they qualify for consideration. Has there been any examination of the fact that, having adopted a child, they may then leave the country? Has the Minister any view on that aspect of the matter? It may not happen but it is possible. In the event of its happening, are there safeguards because the child may be taken out of its own country?

Mr. Ross

I should like to support the Minister's amendment but there is a point on which I should like some clarification. I do not think there is any likelihood that any foreign person or couple will come and live here for a year just for the purpose of adopting a child. Therefore, it seems that the period of one year is a perfectly safe period. However, what is the meaning of the phrase "ordinarily resident in the State"? If it has the same meaning as the income tax meaning, I think it could mean a period in a financial year of greater than six months. "Ordinarily resident" seems rather an ambiguous phrase there. Perhaps the Minister would tell us what he has in mind. If it means 320 days out of the 365 days in the year immediately preceding, or 11 months out of the 12 months immediately preceding the order, well and good, but if it means just over six months, it may not be so good.

Mr. Fitzpatrick

The amendment proposes that the applicant shall be ordinarily resident in the State and have been so resident during the year ending on the date of the order. I presume it takes quite a while to get an adoption order through from the date of the application and under this amendment a person could come into the country today and apply for an adoption order tomorrow and then everything would start moving from there. I suggest to the Minister that it might be more reasonable to put down an amendment making it obligatory on the applicant to be ordinarily resident in the State for 12 months before the date of his application.

Mr. Haughey

It is important to recognise at the outset exactly what we are dealing with here. There are two entirely separate matters involved. One is the question of persons adopting children here by our law; in other words, going through the procedure of getting an Irish adoption order. The other set of circumstances is where some person, usually an American, comes to this country and takes a child to America for the purpose of adopting it under American law.

Now, if we deal with the latter category first, the Act of 1952 provides that —and it is really illegitimate children we are concerned with here—an illegitimate child under the age of one year cannot be taken out for adoption at all; between the ages of one and seven, it can be taken out only with the consent of the parent or guardian. That has always been regarded as a reasonable compromise between the desirability of having a child adopted and the natural rights of parents. Do not forget that we as a Legislature must always have regard to the fact that the family is the basic unit of society and to the constitutional rights of parents. When the 1952 provision was passed, it was regarded as a reasonable compromise. You cannot of course stop parents who have legitimate children from sending them anywhere they wish. They are their own children and they are free to look after their destinies and to control their lives as they see fit. We cannot interfere with the natural rights of parents.

There is another aspect of these cases where children are taken to America for adoption, that is, that they cannot go unless they are in possession of Irish passports. The Minister for External Affairs will not grant a passport until he is absolutely satisfied about the conditions and the circumstances of the people and the surroundings to which the child is going. This is not an unreal or imaginary satisfaction. The Department of External Affairs have machinery whereby reputable agencies in the United States of America make the most exhaustive inquiries and are in a position to satisfy the Minister that it is in order for him to give a passport so that the child may go out to a particular American family to be adopted by them. That is a satisfactory situation and I want to say to those people who think it is a bad thing that an Irish child should go to America to be adopted that I think it is preferable that a child should go to a suitable American home, about which everybody has been satisfied, and be adopted and grow up as a member of a family rather than spend his early life in an institution here. There is no argument about that.

If the time ever comes when there are more adoptive parents here than there are children waiting and suitable to be adopted, then we will certainly review the situation, but until that stage comes, it would be wrong for us to prevent the adoption by American parents who are suitable in every way of Irish children who would otherwise have to spend their early lives in an institution. I can assure Senators also that the numbers involved each year are relatively small and with the safeguards there are, it is not a situation which need cause us any disquiet whatever. Indeed, in so far as it results in some children getting a satisfactory home life who would otherwise spend their early lives here in an institution, it is something we can be pleased about.

I myself had experience of an exact case of this sort where a young Irish child was sent abroad to Irish-Americans and I know how satisfactorily that particular case worked out. I am satisfied that in view of the inquiries made by the Department of External Affairs, the situation is one which need not cause us any concern.

Now we come to a different category entirely, that is, people resident in this country seeking to adopt children by Irish law. The first thing we must think about in that connection is that these are people who are prepared to submit themselves to examination by the Irish Adoption Board, who are prepared to have their circumstances and their background inquired into. It seemed to me that we should give the Board complete flexibility in this matter and not insist on any residence qualification because I felt that the residence qualification of five years was, by tying the hands of the Board, preventing the Board from agreeing to adoptions by suitable foreigners resident here. I am not sure that that original idea was not right and that we could leave it safely to the Board to satisfy themselves as to the suitability of such people, but, as I say, I have allowed myself to be persuaded and I am proposing a period of one year's residence. This, I think, should meet the majority of the fears which have been expressed in this regard.

As regards what constitutes ordinary residence, it would seem to me that that is a question of fact. "Ordinary residence" would seem to me to mean exactly what it says. This is something which would have to be interpreted by the Board in the light of experience. They would probably decide that ordinary residence here means what the Senator said, 330 days out of 365, or something of that nature. I do not think the Board would ever interpret it in the strict legal "income tax" sense.

Miss Davidson

The Minister said very few children go out. If he gave a little push, could he not have those children adopted here, considering there are so few of them?

Mr. Haughey

All I can hope is that, as adoption becomes better known, and every year the numbers are going up, eventually all children will be adopted in Ireland. It is not I, of course, who do the pushing. It is not I who should get any credit. It is the adoption societies. The better they do their work and the more devoted they are, the nearer they will get to a position in which we will have a queue here waiting to adopt the children available. When that day comes, we will certainly consider whether we should prevent any children being taken out of the country for adoption.

Miss Davidson

I know people who have been told they must wait because there is a long waiting list. The preference would seem to be for the foreigner.

Mr. Haughey

That would not be general, I think. A great deal of tact must be exercised in these matters and some particular adoptive parents might have been told there was a queue in order that there might be time for inquiries to be made, or something like that.

Miss Davidson

How is contact made with the Department of External Affairs? How do people in America know?

Mr. Haughey

A child cannot leave the country without a passport and people wishing to take a child out must have a passport for the child.

Miss Davidson

It makes one uneasy when one sees a report about people on a ten-day visit adopting a child.

Mr. Haughey

That just could not be. I have not seen the report.

Miss Davidson

These people have already had a child but, even so, a ten-day visit seems an extraordinarily short period.

Mr. Haughey

Before that child could leave the country, there would have had to be an application for a passport and detailed inquiries into the background of the people in America, a report back here, and a decision taken on that report. Only then could a passport be issued. Ten days is nonsense. It just could not be.

Miss Davidson

Is there any upper or lower age limit?

Mr. Haughey

Seven is the upper limit.

Professor Dooge

On the Second Stage, I referred to the fact that there is no published figure available in regard to the number of children leaving the country in this way. The Minister undertook to inquire if information was available.

Mr. Haughey

About 100 go to America.

Professor Dooge

Could this number not be made available to the Adoption Board? I think the number should be published in the report of the Adoption Board. It may not be strictly part of their function, but it is relevant to it. We should have that figure readily available.

Mr. Haughey

The Senator realises the Adoption Board have no function in regard to a child taken out for adoption in America. I will see if some administrative arrangement can be made.

Mr. Crowley

Is it 100 per year?

Mr. Haughey

I am not sure how accurate that figure is.

Professor Dooge

There is a very widespread feeling that the adoption code is being broken in this manner. If the statistics were included in the annual report of the Adoption Board, those sufficiently interested to read the report would be able to see the correct position. There should be some annual published statement. We are all agreed, I think, that we would like to see this number shrink as the number of adoptions here grows. I think these two figures should be shown in the report.

I am satisfied the Minister's amendment will prevent the gross abuse some of us fear. In particular, I think it covers the case of the non-resident citizen. That is a good thing. It was equally objectionable that Irish citizens should not have to comply with a residence qualification.

Professor Jessop

I should like to endorse what the Minister has said with regard to the procedure when a foreigner wishes to take a child out. I rang up—any member of the community can do the same—the Passport Office and get a statement as to what the office requires before a child over one year old can be taken out for adoption in another country. It is a most complicated procedure and, as the Minister said, it would certainly take much longer than ten days.

Amendment agreed to.

Amendment No. 5 not moved.

Question proposed: "That Section 5, as amended, stand part of the Bill."

Professor Dooge

On the Second Stage, I raised the point that the amendment in regard to the age of married couples creates a difficulty. If placement were made two years before adoption, before the age of 25, we would get what might be the undesirable position of married people aged 23 years having children placed with them for adoption. I do not think that would be a very good adoption practice and I bring it forward now as something to be noted. It is something which might well have the attention of the Board. It is typical of things which can be dealt with by regulation. There are many points which are not really matters in regard to which the Legislature can lay down hard and fast rules. It might well be that the Board, which, so far, has produced regulations only in regard to statutory forms, would consider certain guiding principles which could be made in the form of regulations.

Question put and agreed to.

Sections 6 and 7 agreed to.

SECTION 8.

Question proposed: "That Section 8 stand part of the Bill."

Miss Davidson

First of all, I should like to thank the Minister for his explanation of the mix-up in the report. As I said, it put me in a rather bad light with the Adoption Board and I am very grateful to the Minister for his explanation.

With regard to the section, I have again examined the proposal in Section 8 and I have found nothing to change my views expressed on Second Reading. I said then that the section is dangerous and is most unfair to a child. In effect, it seeks to grant an interim adoption order in respect of a child where the Board is not satisfied that the applicant is, among other things, of good moral character and is not a suitable person to have parental rights and duties, but where the Board is of opinion that, before the expiration of the probationary period, the applicant is likely to come up to the desired standard.

I should like to know why the Minister feels it necessary to put in a provision of this kind.

Mr. Haughey

The Board feel they want it.

Miss Davidson

It cannot be related to his desire for increased suitable adoptions because it would be most harmful to leave a child aged up to seven years in what might be most unsuitable surroundings. I feel it would be far too grave a risk to leave a child in such a place for any length of time in the faint hope that the doubtful atmosphere might clear away and resolve itself into a suitable home in which a child might grow up in happiness and security.

I hope the Minister will agree to take out the offending section. There can be no reason for its inclusion if we are honest in our desire that anything put into the Act must be for the good of the child concerned. I was very sorry that our usually good-tempered Minister was somewhat intolerant on Second Reading in regard to the views put forward by some of us in these benches. I should have thought he would have realised that not one of us is against him in the matter of legal adoption. He might not have agreed with all our views but he should have known that such were put forward in an effort to improve the measure in the interests of the helpless child. I, therefore, hope most sincerely that the Minister will give deep consideration to this obnoxious section and, indeed, that he will take it out of the Bill altogether as it can do nothing but harm to the measure.

Professor Dooge

I feel this section as drafted is objectionable. However, I would not go quite as far as Senator Miss Davidson in expressing total objection to it. I think it is at least careless drafting to say we find ourselves in the position that we are empowering the Adoption Board to make an interim order up to two years giving custody of a child to people where there is a doubt of their good moral character or where there is a doubt as to whether they have sufficient means to support a child. I agree there is a case to be made for giving the Adoption Board power to make an interim order where there is some doubt as to whether the person is a suitable person to have parental rights and duties in respect of the child.

The Minister, discussing this on the Second Stage at column 263, mentioned in regard to this section such matters as health and ability to establish parent-child relationship, where a trial period might be of some value. There is some point in what the Minister says here; but to take Section 8 as drafted and to say that the Board can make an interim order when it is not satisfied in any of the provisions of the section of the principal Act—in other words, as Senator Miss Davidson says, to allow the Board give custody of the child to people whose good moral character or whose means is in doubt—is something which I think is objectionable. What should be done in regard to this section is that it should be amended so that the Board would be empowered to make an interim order only when it is not satisfied in regard to the third requirement, namely, that the applicant is a suitable person to have parental rights and duties in respect of the child.

Mr. Haughey

Again, I have considered this matter. I want to assure the Senators concerned that all of these points have received the most detailed, careful, long and anxious consideration by myself, by my advisers, by the Board and everybody concerned. I think Senators are tilting at a windmill in this section. First, some people have recommended the British legislation and others have spoken about what has been done by legislatures in other countries. The British legislation has this provision, perhaps not exactly as I am proposing it but very much on the same lines. In many other countries there is provision for a trial period during which the suitability of the proposed adoption is on test.

If the suitability is on test, it follows that the competent authority, whoever that may be—here it is the Adoption Board; in Britain it is the courts—is not completely satisfied about the suitability of the person concerned. If the Board were to be completely satisfied beyond any shadow of doubt, there would be no reason for any interim order and they should make the final adoption order. It is only in cases where they are satisfied as to the suitability of the home but want to have a further test period before making the final irrevocable adoption order that they have this interim period. It is nonsense to suggest that the Board are ever going to tolerate a situation where a child is placed in a home completely unsuitable morally. If we ever get to that stage, it would be up to myself or some succeeding Minister for Justice to remove a totally incompetent and inadequate Board from office. If we ever get to that stage, we could throw our hat at the whole system of adoption here because it would be utterly meaningless. Our whole structure of adoption is built around the Board and depends on the Board's discharging suitably and adequately their statutory functions and the obligations placed upon them.

I want to accuse the Senators of some confusion of thought on this matter. On the one hand, they urge me to give the Board more freedom and flexibility. "Leave it to the Board to decide" I am told. Here I am leaving it to the Board to decide. I am giving them this discretion, this period in which they can have a further test and inquiries made and satisfy themselves beyond any doubt. Yet Senators are objecting to this. I think I am entitled to accuse them of that amount of inconsistency in their approach. If we trust the Board to do their job properly, I feel there is absolutely no danger in this provision, and it can be a useful one in certain circumstances. It is unthinkable to me that the situation would ever arise in which the Board would permit a child to be placed in a home the morality of which was in any way subject to question.

Miss Davidson

Could I ask the Minister to help me fix my mind on this? Can the Minister give me an example of where the Act as it stands was not complied with and where he felt it necessary to put this in in order to give an unsuitable home another chance?

Mr. Haughey

I want to explain that this is at the Board's request. They want this. I am doing here what they have asked for. I am not wishing it on them. The initiative did not come from me. I would visualise a case of this nature. The Board could have before them an application from a couple who appear to them to be very suitable and in respect of whom all the various testimonials and so on had been procured and about whom satisfactory replies had been received through all the usual channels of inquiry. But on the day before the order was to be made, a suggestion might be made to the Board that the people were unsuitable. That very fact would put them on notice. They would say: "Very well. In this case, we will not make a final adoption order. We will make an interim adoption order for a test period to give us further time to go into this, probably unjustified, suggestion".

Miss Davidson

Could I take it to mean that if the Minister actually knew that the family had passed the first test but it came to light that a mistake had been made and they were not, as the Act says, morally suitable——

Mr. Haughey

Not even that. I would not go that far. It is not that anything would come to light but some rumour, some imputation or anonymous letter might come to the notice of the Board which would give them pause.

Miss Davidson

It can be said that definitely the Board would not act if they knew there had been a bad background. It would give them six months to pull out of the background.

Mr. Haughey

If there were a case where the people concerned were morally bad, the Board would be very naive to think that in six months, they would become morally good. That would be unthinkable.

Miss Davidson

Yes. Therefore, it would be something in the nature of a shadowy doubt?

Mr. Haughey

Yes.

Professor Jessop

I fully accept what the Minister says regarding the Adoption Board's attitude and the likelihood of its using its powers in the interests of the child under this Section but it reads badly when it is set out in the Act that the Board "is not satisfied". That is a rather categorical statement. If some qualification were put in, for example, that the Board "is not yet satisfied" or "not fully satisfied" it would certainly read better and leave me feeling a little more satisfied that the matter would not be open to misinterpretation by other people.

Professor Dooge

I should like to support Senator Jessop on that point. What the Minister said in the most recent intervention is something to which we cannot object but what the Minister has said is far better described by allowing this section to read: "The Board is not fully satisfied". If on the Report Stage the Minister would insert the word "fully", he would not weaken the section.

Mr. Haughey

Senator Dooge is long enough here to realise that, draftingwise, "fully" adds nothing to the phrase.

Professor Jessop

Is there any word which, draftingwise, would meet the point?

Mr. Haughey

I am sorry for this horrible Americanism "draftingwise".

Professor Dooge

The Minister has for the second time said in discussing a section of this Bill that Senators have been inconsistent in that we have looked for more discretion in certain sections and looked for less on other sections. I should like to point out that if on the different sections we find ourselves in conflict with the Minister he must be similarly inconsistent in looking for less discretion in the first case and more discretion in the second.

Question put and agreed to.

SECTION 9.

Question proposed: "That Section 9 stand part of the Bill".

Professor Dooge

Section 9 deals with the power of the Adoption Board to adjourn. It is my opinion that adjournment is less desirable than the interim order which is dealt with in Section 8. Adjournment gives absolutely no legal custody or protection to the adoptive parents. If a mere adjournment is made then the child who is being placed can be reclaimed within a very short period by a mere telephone call to the office of the adoption society. We certainly should not be any looser in respect to adjournment than in respect to an interim order. There is a limitation of two years under Section 17 (1) of the Principal Act to the period of an interim order, and there should be a similar limitation in regard to adjournment.

The purpose of adjournment by the Board surely is to enable the Board to complete its inquiries. A period of two years is reasonable in this regard and there should be a provision there for an overall limitation on adjournment. The Board should not be in the position of being allowed to keep the adoption society and the adoptive parents waiting for a very long period. If it has these shadows of doubts it should make an interim order and should not adjourn and adjourn without making an interim order.

Mr. Haughey

Looking at it from the point of view of the adoption society, the parents and the child, it is likely that sometimes such a provision by forcing the Board to decide might force them to refuse, whereas by adjourning they might be able to resolve the problem. The adjournments would not so much be concerned with suitability as are interim orders. In the matter of adjournments I should like to see the Board having complete freedom because they might in a particular case be waiting for some circumstances to change through the effluxion of time.

What are we worried about here? Are we worried that the Board will dilly dally and never come around to consider a particular case? If the Board were to do that the applicants could apply to the High Court for an order of mandamus to make the Board decide the issue.

Professor Dooge

I do not share the Minister's faith in mandamus. He may very well be correct. The Minister has said that the Board instead of adjourning and adjourning in order to allow something to resolve itself would have to refuse the application. This might be the best thing to do because the Board might adjourn and adjourn and then if the matter failed to resolve itself they would refuse eventually. The child would then be older and would have formed emotional ties with the family with whom it has been placed. If the Minister is not willing to place a statutory limit on adjournment, if he would undertake to convey to the Adoption Board that concern was expressed at the possible undesirable effects of continual adjournments, that might meet the point.

Mr. Haughey

Although I know there is no need for me to say to the Board that it is undesirable to have unnecessarily protracted adjournments, I have no hesitation at all in undertaking to convey to the Board the views expressed here by Senators. If Senator Dooge is aware of any case which was been unduly adjourned or protracted unnecessarily I would certainly undertake to have it investigated to the extent of having it brought to the attention of the Board.

Question put and agreed to.

SECTION 10.

Miss Davidson

I move amendment No. 6:

Before section 10, to insert a new section as follows:—

"( ) Notwithstanding anything contained in section 2 (4) of the Children (Amendment) Act, 1957, where the nursing and maintenance are undertaken with a view to adoption, notification to the health authority shall not contain any reference to the name of the child or the name and address of the person from whom the child is about to be or has been received."

When speaking on the Second Stage of the Bill on the proposal to withdraw Section 2 of the Children (Amendment) Act where a child is being placed with a family with a view to legal adoption, I asked the Minister, if the local authority supervision were withdrawn, could the Adoption Board exercise a satisfactory supervision on its own. The question was not answered but I believe the Board has not got the necessary staff and if it were forced to recruit persons to carry out the inspections, it would be an unjustified expense when the local authority trained and experienced staff is there to do the job——

Mr. Haughey

They will still be there. The Adoption Board will still be able to avail of their services.

Miss Davidson

When the Minister was speaking on that point in the Bill, he talked about duplication of inspection. He said: inspection by the Adoption Board, by the local authority, and I forget what the third was.

Mr. Haughey

I spoke about two different systems of inspection, one by the Adoption Board and one by the local authority. The difference now is that there is only one system of inspection. For the purposes of that inspection the Adoption Board are perfectly free to avail themselves of the services of the local authority, if they so wish, but the inspection will be conducted by them, and the report will be to them and not to the local authority.

Miss Davidson

I said on Second Reading that I did not think that there was any necessity for duplication of inspection. As I read the Act, I think the Board were intended to deal only with legal adoption procedures to meet applications from prospective adopters and that they were not intended to undertake inspections. It would appear that the local societies are now going to undertake inspections. At least they will have to do so if we cut out the local authorities. I think we should leave the local authorities in because they are especially well fitted by reason of their local knowledge to judge whether or not a person and his home are suitable to receive a child given by way of legal adoption. It would not be difficult to deceive an outside inspector about the circumstances of a place about to receive a child, as I said before, especially as the visit would be notified in advance. On the other hand, the local authority inspector would not be so easy to mislead.

If the amendment I propose were accepted, it would meet the objection to any embarrassing details being given about the child while leaving him under the valuable local vigilance which Section 2 of the Children (Amendment) Act gives him. I can appreciate the Minister's desire to ease the situation for the adopters when the child begins to ask questions concerning his background, but much as I should like to help in such a sad and difficult situation, I do not think the unfortunate child would find much comfort in being told by his adoptive parents that they did not know whether or not he was legitimate.

Another point is that we Irish being what we are, very few orphan children become available for legal adoption. Hence it is taken for granted that those children who are available for adopttion are, in the main, illegitimate. The Minister's laudable concern that the child might be branded as illegitimate when it has to be notified to the local authority for supervision could be allayed by a simple amendment to subsection (7), Section 2 of the Children (Amendment) Act, making that section apply not only to illegitimate children but also to orphan children. To do this would entail inserting in the section after the word "illegitimate" the words "or orphan". That is how the section should have been worded in the first instance, and the amendment should be made without delay for the sake of the children to whom it applies.

I understand that private adoptions are arranged. Would the withdrawal of the Children (Amendment) Act mean that a person who arranges a private placement will also be exempted from the obligation to notify the local authority of the placing of a child with a view to subsequent legal adoption?

Perhaps I may be permitted to say here that on re-reading Section 19 of the explanatory memorandum, one particular phrase disturbed me. The phrase reads: "As regards children placed by a registered adoption society, it is proposed that the exemption should be conditional on the Society's notifying the Board of the placement, so that the Board may, if it thinks it necessary, carry out an inspection forthwith." I feel the words, "may if it thinks it necessary" are too loose. It would be better to insist on inspection in all cases and the inspection should be before rather than after a placement. I therefore ask the Minister to accept the amendment.

Mr. Haughey

I have said a great deal on this already but I must say to Senator Miss Davidson that while it is a bad thing to err, it is worse to persist in error. With regard to the question of inquiries, in the First Schedule of the 1952 Adoption Act, paragraph 11, the Board are specifically empowered to make inquiries. The paragraph states:

(1) The Board may make such enquiries as it thinks necessary for the fulfilment of its function.

(2) A member or officer of the Board may visit the homes of the child, the guardian of the child, the applicants for an adoption order and the person to whom custody of the child has been given under an interim order.

(3) The Board may authorise an officer of a Department of State or of a local authority to make enquiries and visits on behalf of the Board.

The Board are specifically endowed with powers of inquiry in the 1952 Act, so it is a complete misreading of the situation to suggest that they do not carry out inquiries but confine themselves to some remote sort of process.

A real objection, and probably the main objection, to this whole question of the local authority coming in is, as I said before, that it subjects people who are about to adopt to two systems of inspection. Why should we do this? These are charitable people who are offering their homes to illegitimate or orphan children, who are going to make them members of their families, and why should we treat them, prima facie, as doubtful and suspect people whom we would submit to rigid inspection?

Miss Davidson

Why was it put in?

Mr. Haughey

It was put in in error; it was put in by mistake. It was a mistaken concept the very first day, as illustrated by the amendment put in by Senator Miss Davidson.

Miss Davidson

Whose mistake?

Mr. Haughey

I do not want to be controversial, but certain groups of people put it forward and got it adopted at the time without knowing fully the difficulties and the troubles it would bring with it.

Miss Davidson

I did not mean to be unfair to the Minister. My purpose was to convey that a Minister for Justice must have had some reason for putting it in.

Mr. Haughey

It was not the Minister for Justice. That is the whole point. It was not the Minister for Justice, who has responsibility for adoption matters, who made this amendment. This was done by way of amendment to the Children Act. It was not done by the Minister for Justice but by another Minister. Unfortunately, at that time, regard was not had to its implications on the whole system of adoption. Otherwise, it would never have been inserted.

The very fact that Senator Miss Davidson now has had to come along and put down this amendment to attempt to rectify the situation proves how ill-conceived the proposal was in the first instance. Now Senator Miss Davidson is trying to mend her hand further by suggesting another amendment to do away with this thing which in fact the section does at the moment. Its very operation brands certain children as illegitimate who need not be so branded ever. Why place on record that a child is illegitimate when we are trying to ensure that this fact need never be disclosed?

Miss Davidson

Would the Minister help me to understand it a little better? Will the Adoption Board send people all over the country? Will they be able to do so? Will they have the staff? It seems to me to be very extravagant.

Mr. Haughey

If it is only a question of extravagance——

Miss Davidson

It is not.

Mr. Haughey

——the Senator need not worry. She can rely on us to be prudent. If I were a Senator pressing the Minister for Justice, I would urge him to be extravagant.

Miss Davidson

Not needlessly.

Mr. Haughey

We can let the watchdogs of the Department look after the question of extravagance. Senator Miss Davidson's position is indefensible. If she is worried that the valuable services of these local authority officials will no longer be available to the Adoption Board, that is simply not so. The Board will be able to call on the services of any official of a local authority. Provision is made in the 1952 Act for that. Not only will the services of local authority officials be available but those of other public officials will as well.

The essential difference is that the Children Act envisages completely different standards altogether from those required for adoption. When we are dealing with adoption we are dealing with background, education and other factors of that nature which do not enter into the inspection made by the local authority under the Children Act.

The services of all these officials will still be available to the Board and the whole point is that they will be reporting to the Board and not to the local authorities who have no locus standi in these matters. Local authorities are entitled to do adoption work themselves but, actually, three registered societies have been formed by some local authorities to do that work on their behalf.

In other words, the local authorities themselves, in these cases, realised they were unsuitable people for adoption work and they went to the trouble of setting up and registering certain societies to do adoption work in their areas. Surely that proves that local authorities realise they have no really suitable role to play in this matter of adoption. Some people are supporting the Children Act provision for some doctrinaire reasons which I do not understand. It achieves nothing but brings several disadvantages. I say without fear of contradiction that adoption has worked heretofore because the local authorities did not implement the provision.

Mr. Fitzpatrick

I have some knowledge of rural Ireland and of local affairs and I think it is undesirable that investigations into the suitability of prospective adoptive parents or children should be made by local authorities. It is a delicate business in the country: it is something the parents who want to adopt children like to keep secret, and I think most parents would like to have the investigations carried out by a complete stranger rather than by perhaps a native of the locality in which they live or at at any rate a resident of the locality. I fully appreciate the force of Senator Miss Davidson's argument that a local official would have more knowledge.

However, I believe the official who makes the investigations should be an officer of the Adoption Board coming from Dublin. That official can and will, I feel sure, use such means as he thinks are necessary to get the information he requires, but the people concerned will not be embarrassed by having the native, or resident of the locality, coming to see them. There is no doubt that people considering adopting children would be embarrassed and are embarrassed by having local people coming to visit them.

Miss Davidson

I would like to thank the Minister for his explanation. I know he will agree it is a matter on which he can scarcely blame me when a Minister did not understand it.

Mr. Haughey

I trust I am now restored to the Senator's good books.

Miss Davidson

That is the first time the Minister has said anything nice about me.

Amendment, by leave, withdrawn.

Sections 10 to 12, inclusive, agreed to.

Title agreed to.

Bill reported with amendments.

Agreed to take remaining Stages today.

Bill considered on Report.

Government amendment No. 1:

In page 3, lines 26 to 29, to delete paragraphs (a) and (b) and substitute the following paragraphs:

"(a) (i) the applicant has had the child in his care since before the child attained the age of seven years, and

(ii) the application is made before the child attains the age of nine years,

or

(b) the applicant or, if the applicants are a married couple, one of them, is the mother, natural father or a relative of the child."

Mr. Haughey

As I explained earlier, this amendment is to meet the point raised in the Dáil and subsequently urged here very logically by Senator Jessop and others. Amendment No. 2 is consequential. These amendments were framed for Committee Stage but there were some minor inconsequential amendments in the wording and I think the two amendments do achieve what Senator Jessop and others had in mind.

Amendment agreed to.

Government amendment No. 2:

In page 3, line 34, to delete:

"Paragraph (b)" and substitute "Subparagraph (ii) of paragraph (a)".

Amendment agreed to.

Professor Stanford

I am satisfied with these amendments—that they achieve the objects we had in mind— and I am grateful to the Minister for them.

Professor Jessop

I should also like to express my gratitude to the Minister.

Bill received for final consideration and passed.