Seanad Éireann díospóireacht -
Wednesday, 7 Mar 1979

Vol. 91 No. 5

Private Business. - An Bille um an Séú Leasú ar an mBunreacht (Uchtáil), 1978: An Dara Céim. Sixth Amendment of the Constitution (Adoption) Bill, 1978: Second Stage.

Tairgeadh an cheist: "Go léifear an Bille an Dara Uair anois."

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Mr. G. Collins)

The purpose of this Bill is to ensure that adoption orders made by the Adoption Board cannot be declared to be invalid because they were not made by a court. If the Bill is passed it will be put to the people in a referendum. I am sure that I am expressing the view of the entire House when I say that it is my sincere hope that the people will approve of the proposal and I have every confidence that they will do so.

This is a straightforward measure which will, I hope, receive general approval. I think that technically it is a better provision than the similar one in the Private Members' Bill which was defeated in the Dáil on 25 October. Before I go on to deal with the Government's reasons for not accepting some other proposals that have been made, I propose to indicate briefly for the record why a Bill to amend the Constitution on the lines of the present one is thought to be necessary.

In 1976 the Supreme Court declared that a particular adoption order was invalid. They did so on the basis that there had been defects in the processing of the case and they did not proceed to consider whether there was any basic defect in the Adoption Acts from the constitutional standpoint by reason of the fact that they provide that adoption orders are to be made by a body which is not a court. May I say in passing that the court order did not award custody of the child to its natural parents but left the question of custody to be determined separately. The processing defects that were found by the Supreme Court to exist drew attention, in turn, to procedural difficulties which the Acts themselves gave rise to but those difficulties were dealt with by a number of provisions of the Adoption Act, 1976. However, the opinion in legal circles ever since the Supreme Court judgment has been that had the court to deal with the constitutional position, they might have considered themselves obliged to find that, in making adoption orders, the Adoption Board were purporting to exercise powers that the Constitution reserves to the courts.

I am advised and believe that a strong argument could be made in defence of the constitutionality of the present position, but equally I accept the weight of the opinion I have referred to and I am conscious that there is a great deal of unease among adoptive parents and others in regard to the present position.

The effect of a finding that the Adoption Board in making adoption orders have been purporting to exercise powers they do not possess would be nothing short of disastrous. Unless the court were to avoid by some means giving their decision a retrospective effect, it would mean that each of the 26,000 or so orders that have been made by the board over the last 25 years since formal adoption began would be invalid or, at best, would be declared to be invalid at the request of any interested party. The consequences of a single order being declared to be invalid can be traumatic for the parties involved. The consequences of a great number of orders being upset would be frightful. One must remember that an adoption, unlike an order for custody, for example, involves a fundamental and permanent change in the relationship between the adopted person and his natural and adoptive parents.

It is, of course, possible that, on hearing the matter argued before them by counsel, the Supreme Court would find that the Adoption Board's position was in accordance with the Constitution. The risk that they would not is, however, in the Government's opinion, great enough to justify this Bill. The Bill is expressed to be retrospective in its effect, the intention being that past as well as future orders will be protected by the amendment. It is wide enough in its scope to permit of an adoption system involving an agency other than the Adoption Board to be the authority in adoption matters if the Oireachtas should think fit in the future to make such a change, though as far as the Government are concerned no such change is, in fact, envisaged.

I now turn to what is not in the Bill. I know that arguments have been adduced by a number of people who, in one way or another, have interested themselves in the field of adoption, that provision should be made to permit the adoption of certain categories of legitimate children.

Sections 2 and 3 of and parts of the Schedule to a Private Members' Bill that was introduced in the Dáil were clearly intended to enable legislation permitting such adoptions to be passed. The proposition may appear to be both humane and unexceptionable. I am afraid, however, that a fuller analysis will show that the change proposed could and almost certainly would have effects far beyond what many, even of those advocating the change, might consider reasonable. There is no possible way of devising a system which would not lead to the possibility of parents giving their children for adoption even if they were perfectly capable of rearing them themselves. No criteria of neglect or abandonment could eliminate collusion between natural and adoptive parents. I do not think that many of the advocates of change in the adoption law would wish to see adoptions on this basis become possible. Moreover, even if the adoption of legitimate children could be confined to abandoned or seriously neglected children, serious problems relating to the consent of the natural parents would arise. Here I must stress the uniqueness of adoption: it is permanent and irreversible; no change in the behaviour or circumstances of the parties can affect it.

We must remember that, with a relatively minor exception which was introduced in 1974, the adoption procedure is based on the free consent of the parties, including that of the child's mother in the case of an illegitimate child. Supposing that a parent of a child, who for one reason or another is not able or is not willing to rear the child in a manner that some of us might consider appropriate, refused to give his or her consent to its adoption, is the consent to be dispensed with at the behest of some third party, even if that party is a welfare agency? A great number of people would, I have no doubt, be very disturbed to think that they might be at risk of losing their children because somebody else felt that the children would be better off adopted. It seems to me that, while we should certainly see what can be done to strengthen and extend our services for deprived children, we should not look on adoption as the panacea for all the problems. Its very finality makes it inappropriate even in a number of cases of the kind that tend to be mentioned in support of it.

A particular type of case has been the subject of representations. That is the case where a child is born to a married woman who claims that her husband is not the father. It has been suggested that the presumption in law that a child born to a married woman is her husband's is too difficult to refute and that in consequence many children in this category cannot be given in adoption. Some people have contended that the position of these children is an argument for a change in the law that would permit the adoption of legitimate children.

I think that it is necessary in these cases to analyse carefully what the real difficulty is. The possibility of adoption undoubtedly could arise in such cases where the husband either does not want to have the child in his home or does not know of the child's existence, and it is where he does not know that the difficulty is most likely to arise. Permitting the adoption of legitimate children would not in fact solve this difficulty. Even if the law allowed the adoption of legitimate children, it obviously would have to provide for parental consent and that would include the consent of the father, and there would of course be a presumption that the mother's husband was the father. There would therefore be precisely the same difficulty as at present about by-passing the mother's husband.

It may be that there could and should be new procedures to reduce the difficulty of showing that such a child is not the child of its mother's husband, but it is important to realise that what is involved is not the barrier to the adoption of legitimate children—for the child in question is not legitimate—but a method for the establishment of a fact, namely the fact that the mother's husband is not the child's father. That fact would have to be established no matter whether the adoption of legitimate children was permitted or not, and it would have to be established by a means or a procedure that would be acceptable in the light of all the circumstances, including the inherent importance of what is at issue. A presumption that the child of a married woman is also her husband's is quite clearly one that operates in the interests of the overwhelming majority of children. The consequences of a system whereby a mother could declare her child to be illegitimate, and in practice make the child illegitimate in the eyes of the law, by a statement to that effect could be very serious and far-reaching, even if a sworn statement were required.

In this area, as in others in the adoption field, there is a risk of people being swayed by the consideration of what are undoubtedly very hard cases into making laws which could be very bad for the general body of persons who might be affected by it. As I have said there may be room, consistent with protecting the rights and interests of the overwhelming majority of children, to make some change in the present position, but it would need very careful consideration and, for the reasons I have given, it is not relevant to the present Bill.

The next topic which I propose to deal with is the suggestion by some of those who have spoken on adoption matters that it is desirable that the Constitution should contain a provision making it mandatory on courts and, in appropriate cases, the Adoption Board, when considering a case involving a child to regard the welfare of the child as the first and paramount consideration.

I believe that it would be wrong and highly dangerous for such a provision to be written into the Constitution. At present the phrase is to be found in section 3 of the Guardianship of Infants Act, 1964 and in section 2 of the Adoption Act, 1974. It has been suggested that those provisions are not in accordance with the Constitution and that, accordingly, the Constitution should be amended to make them constitutional. I do not consider that section 3 of the 1964 Act is in any danger of being held to be in conflict with the Constitution, unless it is first of all given an interpretation significantly different from that which it was undoubtedly intended to have when enacted in 1964. If it were to be given such an interpretation, it would matter little whether it was declared unconstitutional or not, as I have no serious doubt that, having been given a meaning so different from what was intended, it would have to be changed by legislation if it were not declared unconstitutional.

I went into this topic at considerable length in my Second Stage speech in the Dáil and I do not propose to weary Senators by covering the ground again here. I assume that Senators who have a special interest will have read that speech in any event.

Section 2 of the Adoption Act, 1974, is not a provision about which I am happy. The case for such a provision was being strongly urged by some in the very early days after the 1976 Supreme Court decision when it was assumed—wrongly—that the court had not only quashed the adoption order but had awarded custody of the child to its natural parents, thereby in the eyes of some people failing to have sufficient regard to the child's interests. If in the context of legal adoption the provision were to be construed by our courts as the English courts appear to have construed the similar one in the context of guardianship, I would be very concerned indeed.

Another suggestion that has been urged on me is that provision should be made in the proposed constitutional amendment for the abolition of the concept of illegitimacy. Such a change would mean among other things that a child would have the same inheritance rights to his parents' property, irrespective of whether they were married to each other or not. My approach to this matter is that I do not rule out the possibility of some changes in the law to accord new rights to illegitimate children. I believe we should await the results of the studies proposed to be carried out in this area by the Law Reform Commission before taking any decisions. What I am opposed to is any change in the Constitution which would be liable to undermine the legal status at present guaranteed to the family based on marriage. In taking this view, I believe that I am reflecting the attitude not just of a majority but of the overwhelming majority of the public.

To sum up, I am convinced that it is necessary to amend the Constitution in the manner proposed by this Bill and, on the other hand, I believe that the need for further changes of the kind I have mentioned has not been demonstrated. On the contrary, I believe that the case against some of them is compelling. Some critics of the Bill say that they recognise that the problems I have referred to are serious ones but suggest that a constructive and imaginative approach would find a way round them so as, for example, to put illegitimate children on an equal footing with legitimate children and to permit the adoption of legitimate children who are neglected or abandoned. I am afraid, however, that the difficulties are not ones that can be got round. The element of certainty and security which the current law affords to the vast majority of persons concerned could be seriously threatened by some changes intended to benefit small minorities of cases but which would have repercussions in other cases that would not be advocated by anybody.

I commend the Bill to the House.

Mr. Molony

I should like to compliment the Minister and his Government on the confidence they have that this Bill will go through the House without difficulty. I understand the Taoiseach has already given the date on which the referendum planned under this Bill will take place. I know a lot of people in the past have complained that the Seanad is not regarded as of sufficient importance by the Government, but we now have come to the stage of absolute ridicule of the House when the Government will announce the date they plan to hold a referendum when the Bill enabling such a referendum has not even been passed by the Seanad, indeed has not even been put to it.

It is over two years since the Surpreme Court in a judgment made reference to the difficulties involved in this area. It is nearly two years since the joint opinion of two very eminent senior members of the Bar expressed their views as to the constitutionality of adoption orders made since the Adoption Board was founded 25 years ago. When that news was published by the media at the time the feelings amongst thousands of people involved were, in one extreme, the feelings of near hysteria and, on the other extreme, certainly a feeling of a quite cold fear. In all cases there was a feeling of incredible disbelief that our Constitution, particularly the provisions of the Constitution relating to the family which were certainly drafted with the best intentions of social well-being and social good in mind, could be turned around, as it were, and viciously threaten to break up the relationships that had come about in families throughout the length and breadth of Ireland because of adoption orders made. As the Minister has said, the Supreme Court never actually decided that the adoption order in that case or in any other case was unconstitutional for the reasons now being brought forward by this Bill. They expressed the view at the time that if they had to consider it they were concerned that they might have to find that the adoption orders and the Adoption Act itself were unconstitutional because the Adoption Board were exercising functions which under the Constitution were properly the preserve of the courts and of the judicial system.

I do not think it is entirely relevant at this stage whether the Adoption Act and the adoption orders were constitutional or not. The position really is that once the Supreme Court gave that warning over two years ago they were saying to the Government and the Legislature it was time to get their house in order. The real pity is that it has taken two years to bring about this simple amendment which is contained in this Bill today. It is a pity that people had to suffer great fear immediately after the announcements were made and everybody who knows people who had an adopted child, no matter how well educated or how understanding they were on the law or the Constitution, knows how worried and concerned they were about it. It is to be regretted that it took so long to alleviate the worry and the inevitable fear those people had.

Having said that, I support the Bill in so far as it goes. I regret that two years have been lost which could, perhaps have been devoted to a greater study and review of all our adoption laws and the question of legitimacy. I regret that the Law Reform Commission were not asked to do this two years ago and were not given the resources to do it within a reasonable time; and two years would have been a reasonable time to carry out a major review of our adoption and legitimacy laws generally. The point has been made by many people that a constitutional referendum is unusual; it is expensive and difficult. It is likely that we will have to wait a long time before we have another one, unless an immediate necessity arises. We can only presume that the Government have decided that this is the absolute extent of the reform they are going to allow in this area, that their policies do not allow for any further review. After taking two years to come up with such a simple reform, presumably they have given the matter the fullest consideration and have decided, not just as a matter of legal difficulty but as a matter of social policy, that they do not propose to go further. That is a pity; it is an opportunity lost. If in the course of the next two or three years we should decide, and I hope we do, that our adoption laws need greater review, then our Constitution will most likely require to be amended further. I regret that we will have to go to the expense of doing that twice. If we have a change at all, this Bill will not provide for it.

There are many problems in this field. The basic problem of legitimacy or illegitimacy as a status requires urgent examination. I know that over the past couple of decades the social stigmas that attached to illegitimacy have disappeared to an extent. People accept more readily now a one-parent family, that a mother having had a child, the father never having married the woman and not living with her, raises the child herself. I know there are some women who are proud to do that. I know we all hold the family as sacrosanct and as the basic unit of our society. I know many people if they have a child and are not married are proud to raise that child. It says something of our development as a nation and a community that we are more tolerant in that respect.

To say at this time that we should now remove all differences that illegitimacy vis-a-vis legitimacy brings about would be a dangerous thing. I say so for particular reasons. The main areas we are concerned about are succession, property rights and so on. In regard to succession, there are undoubtedly examples where it would be quite just that an illegitimate child should share equally with a legitimate child. There are also instances in which it would be manifestly unjust that an illegitimate child should partake of the parents' estate equally with the legitimate offspring of the family. I can think of examples where a man may have fathered a child and subsequently married and raised a family of three or four children; 20 years later on an intestacy the four or five children who lived with him and had been involved in the home and maybe in his old age helped him along, have to meet with somebody who is a complete stranger to them and to the family, who was never associated with them, and who would say because of the change we might bring about that he should share equally in the estate of the father. I do not think that would be entirely fair.

We may reach the stage where as a community we would decide that it is fair. I certainly do not think it would be right, or a just law. For that reason I would not propose that there should be such a change, constitutional or other, that would bring that situation about. I feel, however, that it is a matter which should be under constant review. I know it is a matter that will be going before the Law Reform Commission and I look forward to the report of the commission on this subject. Whilst the Law Reform Commission have published very interesting papers there seems to be a need to judge with a greater sense of priority what they should deal with. I do not want to mention some of the reports they have published, except to say that they have all been excellent documents for people interested in law reform. I believe that the Law Reform Commission as a matter of social policy should be asked to deal with areas like adoption and legitimacy and areas where legal difficulties are being encountered in bringing about changes in the law. They should give such areas greater priority. If they have difficulty because of the absence of resources in dealing with them reasonably quickly, then their resources should be improved.

I was interested that Deputy John Kelly spoke on the question of amending the Constitution. He specifically mentioned that judgments which the Minister mentioned in his speech were not available in printed form. These are judgments that are two or three years' old. Long before I became a Member of this House it was a source of great annoyance to me that even the laws passed by these Houses were not available in printed form. It is a national disgrace that any young solicitor or anybody who is interested in the law who wants to acquire a set of the Acts of the Oireachtas is told by the Government Publications Office that the laws of the land are out of print. It is something that should be looked at and certainly, as Deputy John Kelly mentioned, judgments like this in printed form should be available. It is just not possible for somebody who wants to consider this Bill, for example, to consider also the court's attitude. The Supreme Court has a very important role in areas of law like this. It cannot be done if one does not know what its opinion is. The Minister is responsible for this area as Minister for Justice and it is something for him to look into.

We all know the disadvantages of being illegitimate. One of the outstanding disadvantages of being illegitimate is that a legitimate child who is not an orphan is not entitled to be adopted. I know that this has been a bone of contention for some time. I see no reason why the law should not be changed so as to allow for the adoption of legitimate children. I know that the Minister has considered this and has decided against it. That is his right. I know and accept his reason that it would present difficulties in drafting and preparing legislation and having suitable and proper legislation. By amending the Constitution suitably at this stage, he is not allowing for the adoption of legitimate children. What he is allowing for is that the Oireachtas in the future, or the Government, might in their wisdom conceive of some way whereby legitimate children could be adopted and suitable legislation could be produced. The problem at the moment is that because of the nature of the Constitution and because of specific provisions within the Constitution, we just cannot provide for the adoption of legitimate children and that is a mistake we are making. Another opportunity is being lost and I regret this very much indeed.

The Minister has rightly drawn the attention of the House to the importance of realising what we speak of when we speak of adoption. A good definition of adoption is taken from a paper read by Father John O'Mahony, Secretary of St. Anne's Adoption Society in Cork and published in the Children's First Newsletter of spring 1977. He says simply that adoption is best defined as the provision of permanent substitute family care for familyless children. He rightly goes on to say that it is distinguished from all other forms of child care by the fact that the natural parents' rights vis-a-vis the child are severed. The legal relationship that exists between a natural parent and child is severed by the making of an adoption order. I can see many reasons why we should be loath to do away with that relationship, when a legitimate child's parents are alive. However, I think that there are circumstances that give good grounds for changing one's view on that.

Father O'Mahony in the same paper goes on to refer to this under the heading "The Need for Adoption". I would like to read the paragraph to the House. It reads:

It is very important for those working in adoption agencies to realise that a child's right to family life should first and foremost be met by his own natural parents. Therefore, it is the first duty of a society to do all it can to ensure that parents have the support they need to meet the rights and the needs of their children. We have, therefore, a first duty to help people to rear their own children, and adoption should only be resorted to when there is no reasonable likelihood of natural parents. Even with reasonable support, being able to provide an adequate form of family life for their children. That last sentence requires very careful consideration—there are a number of key words in it—these are: reasonable livelihood, reasonable support and an adequate form of family life. Where it is fairly clear that, even with normal help, a parent is not going to succeed in being an adequate parent, there is no obligation to turn the world upside down to help that parent and child to stay together. On the contrary, research shows that the interest of the child is best served by separation from the natural parent in that type of situation. We should be very careful that prejudice or cultural attitudes do not cause us, as social workers, to give importance to the natural link in itself where there is clear evidence of the inadequacy of the quality of parenting being offered to the child.

That paragraph sets out very well the case that is to be made for allowing for the adoption of legitimate children. I know that the Minister has considered it and has decided against it.

This Bill will amend the Constitution. The amendments proposed to the Minister in the Lower House and those that I urge him to make do not allow immediately for the adoption of legitimate children but would allow the Oireachtas and the Government in future to decide, having given proper consideration to the matter, to introduce legislation to allow for it. That is what is important. We will not be making a decision here today nor will people next July be making the decision. The decision will be made by the Legislature in the future following full consideration of all aspects involved. I am prepared to wager that in the next decade, constitutional amendment or not, that legislation will come. It is something that will become more and more contentious in the future. Ultimately, under pressure, the Government will have to give in to it.

The problems involved are very great. I was interested in the amendment that was introduced by Deputy O'Keeffe in the Lower House and which was ruled out of order on procedural grounds. The Minister gave reasons to the Deputy at that time on Committee Stage of the Bill as to why, even if the amendment was in order, he would not accept it. I am inclined to agree with him. The amendment proposed would have been too broad and would, possibly, have allowed for a Government with not the best social intentions in mind to introduce legislation that would not be in itself worth while or good. It has now become clear that the family articles in our Constitution are such as are causing too much difficulty in this area and are too restrictive on legislators and on the courts alike. They appear to be a little bit contradictory. Article 41.1.1º, the basic Article which includes the two difficult words that cause all the problems states:

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

The words "inalienable" and "imprescriptible" are the difficulties which any court would have in dealing with the rights of natural parents to a child regardless of what interest they have in their child's welfare themselves. Article 42.5 states:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

The State is not living up to its duties under Article 42.5 because there are many children who are legitimate who have been abandoned by their parents, who are not orphaned and have no reasonable prospect of ever being accepted back by their parents or if they were accepted back, of being looked after properly. The truth is that in circumstances like that the State has a duty to move in. The State does move in where parents misconduct themselves or ignore their responsibilities to a serious extent: the children are taken from them and are put into care. The legitimate child is discriminated against there.

If one goes into an orphanage and sees a legitimate child in care and another child which is not in care but which is illegitimate and one knows that one can foster either of them or can adopt just one of them, any one interested in bringing a child into the family will want to adopt. Such people will not want to bring somebody into their home who, after creating a relationship with them over a number of years, might be taken from them again. The constitutional provisions that allow that are discriminatory and should be looked at. I do not know how we will get around this, presuming that the Cathaoirleach takes the same view as the Ceann Comhairle in the Dáil that the amendment proposed by Deputy O'Keeffe should not be brought in again on Committee Stage in the Seanad. However, there are other ways of going about it. The Minister told Deputy O'Keeffe in the Dáil that he would review this matter again and see whether he could do anything. He has brought in the Bill as it left the Dáil. He has not suggested any amendments that he might make on Committee Stage and he has not specifically said whether, having reviewed the position again, he has changed his mind. I am sure there is room for manoeuvre. Perhaps by the deletion of the "inalienable and imprescriptible rights" from that Article, even though it is something that none of us would like to do because we regard the family in such a sacrosanct way, we would not, in the eyes of the courts, bring about any positive change in their attitude to the family but we would enable them to look more mercifully at legislation designed for the adoption of legitimate or illegitimate children. Everybody, I suppose, will refer to the fact that 1979 is the year of the child and it is appropriate to consider these matters at this time. I hope that the Minister and his experts in the Department may come up with some solution to this very difficult problem between now and Committee Stage.

Mrs. Robinson

I am rather surprised not to find any Senator from the other side of the House offering at this stage. I am also sorry that the Minister thought he might weary Senators by going into detail on the subject. On the contrary, we are particularly interested in the background and in the terms of this Bill.

Like Senator Molony, I feel this is a very disappointing Bill, particularly in this year of the child. It is a very narrow Bill and one which fails to solve the basic constitutional problem in the McLoughlin case. It is a Bill that stemmed from the McLoughlin case, to which the Minister referred in his speech, and arose out of the ensuing enormous public controversy and worry to adoptive parents. It has failed to solve the major problem in the McLoughlin case. Although the issue of the powers of the Adoption Board was raised in argument, it was not dealt with in the judgments of the Supreme Court in the McLoughlin case. It may have been a shadow in the background. It has been a shadow in the background of adoption ever since the establishment of the Adoption Board because of the provisions of Article 37 of the Constitution. The major problem in the McLoughlin case was a problem of conflict between fundamental rights of adults and the rights of a child. This Bill does resolve that issue. I deeply regret to say that we could still have another kind of McLoughlin case. This Bill—an amendment to the Constitution—unless it is amended by the Minister in this House, will not close the gap. That is the most serious and damaging criticism of this Bill that can be made. The Minister is inviting the people to come out and support in a referendum a Bill which fails to close the particular constitutional issue raised in the McLoughlin case.

The special problem in the McLoughlin case and in similar cases is that the parties, the natural mother and the natural father of the child, married and then they sought to have the adoption order set aside. Although in the decision of the Supreme Court the adoption order was struck down on procedural grounds—the mother was not sufficiently informed of her rights and did not give a full and free consent in the circumstances and the Supreme Court was critical of the procedure at that time—the basic issue is the potential clash between the inalienable and imprescriptible rights of the parents and the welfare and best interests of a child.

I would like to refer to the judgment of Mr. Justice O'Higgins, the Chief Justice, on this issue. In considering the submissions put forward by counsel on behalf of the Adoption Board that it would be harsh and unjust to uproot a child from the adoptive parents on the grounds that the natural parents had married and now had the full, inalienable and imprescriptible fundamental rights under the Constitution, the Chief Justice said in response:

It has been argued by counsel for the Board

meaning the Adoption Board,

that in this case the Plaintiffs' failure to take action earlier than they did, with the consequent effect on the child in relation to his surroundings, renders it unjust and contrary to the child's interests to remove him now from the care of his adopting parents. No one can be unmoved by such a plea or feel anything but compassion for all those involved in this human drama. In coming to a just conclusion, however, one must not allow compassion to confuse or permit sympathy to conceal fundamental rights.

That is the major issue which surfaced in the McLoughlin case and the problem is that it can surface again. I should like to give the Minister one or two examples of situations where and adoption order could be challenged on constitutional grounds, even if we pass this Bill as it now stands and even if we appear to be, as the Minister said, closing the gap in the McLoughlin case. It is not closing the gap that I have referred to of reconciling conflicting constitutional rights—the constitutional rights of parents in a married situation to the inalienable and imprescriptible rights of such parents.

For example, if, after the passage of this Bill and its adoption in a referendum, a matter comes—as it does quite frequently—to the Adoption Board to determine on the legitimacy or illegitimacy of a child, a child born to a woman who is married but she makes the case to the Adoption Board that the father of the child is not her husband, the Adoption Board make a determination that the child is illegitimate and, therefore, eligible for adoption—then the child is placed for adoption and adoptive parents apply to get an adoption order. An adoption order is made and it subsequently transpires that that woman was lying, that she had her reasons for defrauding, and there is evidence that the child is legitimate. That adoption order can be set aside on constitutional grounds; it can be attacked on the grounds of the inalienable and imprescriptible rights of the parents and that this is a legitimate child not eligible for adoption.

Similarly, if a natural mother places a child in adoption and then marries the natural father and if there is any defect —and there are a number of reasons why there might be a defect—in the adoption procedure it would be sufficient to take the case outside the safeguards of the 1976 Act. For example, one ground that is giving cause for increasing worry in adoption procedure is where a couple apply to adopt a child and they are married but may not be married for the purposes of the civil law. There may have been a Catholic Church annulment and a re-marriage or a divorce which our courts may not recognise. Although the couple concerned may consider themselves to be married and may apply as a married couple, if they are not married that would be a sufficient defect to take the case outside the safeguards of the 1976 Act. It would still leave the situation that there could be a successful challenge of the adoption order years later because of the fundamental, inalienable and imprescriptible rights of the parents once they became married parents.

This was the major issue in the McLoughlin case. There was the long shadow of the doubt about the Adoption Board. This was one of the grounds in the Labour Party's Bill, a different way of ensuring the constitutionality of the Adoption Board. It is desirable and necessary to ensure the constitutional security of the Adoption Board in making adoption orders and having them made. But if the Minister is trying to say that he is closing the gap raised by the McLoughlin case, he is not. This was not mentioned in the judgments in the McLoughlin case. It was not the ground in the McLoughlin case. The Minister, in this Bill, has omitted to consider the ground in that case.

This Bill can be criticised, first, for not achieving the purpose the Minister says it will achieve and, secondly, it can be criticised on a broader plane as a minimalist and very poor attempt by the Government to address themselves to a very complex and important area relating to the welfare of children and parents. I am one of those interested Senators to whom the Minister referred. I was struck, in his long detailed speech in the Dáil, by the number of petty and niggling reasons put forward for not doing something rather than attempting to argue the possibility of grasping some of the major problems in this area. I shall go through some of the arguments raised by the Minister. They are very moth-eaten and insubstantial arguments to place against the importance of securing, first, a constitutional balance which sufficiently safeguards the rights of a child and prevents the Constitution from being, as it is at the moment, too adult and parent-centred and, secondly, for ensuring rights to different categories of children.

The Labour Party's Bill to amend the Constitution was much more appropriate for the International Year of the Child and was making positive steps to introduce genuine reform in this area. Apart from dealing with the constitutionality of the Adoption Board and ensuring that the adoption orders were secure, it was also dealing with two categories of children who might be regarded as being discriminated against in this area. The first category is the illegitimate child—I shall refer in some detail to the question of the rights of illegitimate children—and the other is legitimate children who have been abandoned from birth or so ill-treated by their parents that they cannot be left in their custody. They are legally ineligible to be adopted. We condemn them to grow up in institutions or in the much less secure system of fosterage. Fosterage can be a good second best if it works well but it is prone to all kinds of difficulties and insecurities. It is not anything like the full family which a child ought to be entitled to under our Constitution and laws.

The problems in this area are major problems many of which stem from legal grounds, either from the Constitution or from our laws. For the Minister to come in in this minimalist way in the International Year of the Child shows that neither he nor, apparently, the Department of Justice are sufficiently aware of the very substantial hardship and misery caused in this area and of the acute problems that are arising.

I should like to deal with one problem which may not be sufficiently realised by the public. It arose from a case that the Minister referred to several times and quoted from in the Dáil. It is called the G. case. It was one of those triangular cases where the natural mother had placed the child for adoption and then, not having signed any final consent, and finding herself in a position to support and bring up the child herself, asked to have the child back. The adoptive parents wished to resist handing the child back and the matter ultimately came before the Supreme Court. The issue arose and had to be examined by five judges of the Supreme Court—and all five gave judgments—as to whether or not an unmarried mother has a constitutional right to the custody of her child. That is a very important issue and yet the Supreme Court could not agree on it. That is why, in referring to little quotations from the G. case, the Minister totally ignored that there is a very basic problem: under our Constitution because of certain wording in it, judges of the Supreme Court cannot agree on whether an unmarried mother has a constitutional right to the custody of her child or not. I refer, first of all, to the judgment of Mr. Justice Kenny where he says:

While the Constitution deals with the rights of parents of legitimate children and "the natural and imprescriptible rights" of the child, it says nothing about the custody of legitimate or illegitimate children. As Article 42 acknowledges that the Family is the primary and natural educator of the child and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children, it inferentially gives those who have married and are living together a constitutional right to the custody of their children. But it does not do this for the mother of an illegitimate child for she cannot claim the benefit of Articles 41 and 42 and, in my opinion, is not given a constitutional right of custody by Article 40.3.

Article 40.3 relates to the personal rights of the citizen. Mr. Justice Kenny went on to say:

It seems to me that there is an equation in the passage of "natural rights" and "constitutional rights". I do not accept that there is such a connection particularly as the word "natural" is so ambiguous. It may mean, when used in connection with the relationship of mother and child, the link between them formed by the facts that she has conceived the child, that is issues from her body and is fostered and nurtured by her or it may mean that the theory of natural law on which so much of that part of the Constitution dealing with Fundamental Rights is based, recognises such a right.

In my opinion the mother of an illegitimate child has a statutory right under the Guardianship of Infants Act, 1946, to the custody of her child but has not a constitutional one.

That is one judge of the Supreme Court faced with the provisions of the Constitution trying to reconcile the position and expressing the view that she does not have a constitutional right to the custody of her child but only has a legislative right. Mr. Justice Henchy dealing with this——

An Cathaoirleach

Is the Senator referring to a Dáil question?

Mrs. Robinson

The Minister referred to his speech in the Dáil and said he would not weary the Seanad. He implied that those of us who were interested would have read his speech in which he raised all those issues. This is a very important issue and I hope that the Minister will allow me to refer to the Labour Party's Bill and to develop the whole question as to the kind of Bill we should have. I do not intend to take up too much of the time of the House but it is a major issue and I would like to put forward the kind of problems that we have and the sort of Bill we should expect particularly as it will involve the people in a referendum, which is a very complex and expensive procedure.

Mr. Justice Henchy referred to the issue of the rights of the natural mother and said:

Rights and duties in regard to the custody of a child who was born out of wedlock and who is not a member of a family in the constitutional sense of the word are not encompassed, expressly or impliedly, by any of the constitutional provisions I have cited. Rights and duties arising under those provisions are by the terms of their constitutional recognition confined to children of a family founded on marriage, and they are vested not in one or other parent but in the parents.

Again, Mr. Justice Henchy concluded that the natural mother in a relationship with her child or indeed the natural father and the natural mother in their relationship with their children, have no constitutional right to the custody of their children. We should pause there and think. We are not only talking about the normal situation of a natural mother with her child with no sign of the natural father but we are also talking about very stable relationships where, for legal reasons, there is not a marriage in the sense of the civil law. We are talking about a case, for example, where one or other party had a Catholic Church annulment and the parties remarried in the Catholic Church. They have children. They have no constitutional rights to those children according to those two judges of the Supreme Court. They only have a legislative right under the Guardianship of Infants Act. This would seem to be a major problem arising out of the wording of the Constitution and a problem which should concern us very much as legislators.

I quoted two judges from the Supreme Court who expressed in their judgments the view that the natural mother has only a legislative right and not a constitutional right. Happily the other three judges of the Supreme Court and, therefore, a present majority of the Supreme Court, went the other way and decided that the natural mother does have a constitutional right to her child. I refer very briefly to the judgment of Mr. Justice O'Higgins, the Chief Justice, and he said:

In the first place it should be noted that the mother is not the mother of a family in the sense in which the term is used in the Constitution. Article 41 of the Constitution which recognises the family as the natural, primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law, refers exclusively to the family founded and based on the institution of marriage. It is this family which under Article 41.2 the State guarantees to protect in its Constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State. But the Plaintiff is a mother and as such she has rights which derive from the fact of motherhood and from nature itself. These rights are among her personal rights as a human being which the State is bound under Article 40.3.1º of the Constitution to respect and to defend and vindicate.

The Chief Justice found that the natural mother has constitutional rights as part of her personal rights under Article 40.3 of the Constitution.

Mr. Justice Walsh, who was a member of the Supreme Court for this case, affirmed the constitutional right of an unmarried mother. He stated:

The mother and her illegitimate child are human beings and each has the fundamental rights of every human being and the fundamental rights which spring from their relationship to each other. These are natural rights. It has already been decided by this Court in Nicolaou's case that among the mother's natural rights is the right to the custody and care of her child. Rights also have their corresponding obligations or duties. The fact that a child is born out of lawful wedlock is a natural fact. Such a child is just as entitled to be supported and reared by its parent or parents who are the ones responsible for its birth, as a child born in lawful wedlock. One of the duties of a parent or parents, be they married or not, is to provide as best the parent or parents can the welfare of the child and to ward off dangers to the health of the child.

On what might be thought to be a very basic issue the provisions of the Constitution create enormous difficulties, so much so that the Supreme Court have divided three to two on rights of citizens of this country, such as unmarried mothers or parents in a situation which would not be recognised by the State as being a valid marriage, where one of the parties has been divorced, and divorce is not recognised here, or where there has been a Catholic Church annulment and remarriage have a constitutional right or not. The number of people in that situation is growing year by year. There are a rapidly increasing number of Catholic Church annulments and remarriages by one or other party and families who would be most surprised if they were told that they do not have protection under our law and Constitution. The wording of the Constitution in relation to rights is a basic issue for us as legislators to consider.

I am very disappointed that the Minister seems to disregard the need for or the desirability of looking at the provisions of the Constitution dealing with these kinds of rights. The Minister resists the increasing call for the extension of the right to, and the facility of, adoption to legitimate children. The Minister repeated what he said in the Dáil that this might give rise to a problem of parents trying either to give away or sell their children. This seems to be an extraordinary argument to put forward. First of all, it is common practice in most other jurisdictions for legitimate children to be eligible for adoption. It does not seem to give rise to a queue of people trying to sell their children. It is not even the case with the unmarried mother. The pattern at the moment is that an increasing number of unmarried mothers, despite the social prejudice, the economic disadvantage, the problems of lack of support and the social stigma involved are trying to keep their children. More unmarried mothers are keeping their children and bringing them up themselves now than was the case in 1952 or even in the sixties under the operation of the procedures. The Minister's argument is very hard to understand.

We know—and this was referred to in the Lower House by Deputy O'Keeffe —that there is the small problem, and it should not be exaggerated, of children who may be born to married parents. It may be the case where the child, although born to married parents, is illegitimate, that the husband is not the father of it, or there may be other circumstances. Some of these children are sent to Northern Ireland so that they can be adopted there, so that they can have the facility of adoption as legitimate children. That is one kind of problem. Far more important than that is the number of young children who spend their early lives in institutional care. We cannot estimate the effect on a young child, on a baby in the first year of its life of being in institutional care, not having the advantage of that first valuable eight or nine months of forming the personal bond of a child living in family circumstances. We are only beginning to understand that the impact of the first two years of a child's life may have an effect that can never be redressed, or the child may be forever somebody who lacked the opportunity of being a normal, happy well-rounded person. We should use every effort to try to ensure that any child has the right to grow up in a family, that any child has the right to be eligible for adoption if the circumstances of the child are such that the child cannot stay with its parents. We know of a numbers of instances where married parents have totally disclaimed their responsibilities as parents, where young children have been beaten and maltreated by parents or just abandoned, and the problem of the unwanted child and the child being transferred to an institution, perhaps transferred immediately as a baby or in very young years and then having only the option of short-term or even longer term fosterage but nothing like the security and the legal rights which strengthen the family links of adoption. Therefore, it is deeply disappointing that the Minister refused to accept the amendment which was contained in the Labour Party's Bill to amend the Constitution and has produced no similar amendment here.

I should like to refer to the Bill tabled in the Dáil by the Labour Party, in particular to the sections of it which delete words from the Constitution which give rise to the kind of problems which the Supreme Court was trying to cope with in the G case that I have just referred to. This would be to remove from Article 4.1.1º the words "inalienable and imprescriptible". The effect of that would not be to undermine the family, to in some way cause enormous hardship; the effect of it would be that, where parents had abandoned their rights or so abused their rights that they should not have any other right, the welfare and interest of the child could be considered and the child could be given an opportunity of life with another family but would not be condemned forever by the fluke of the kind of parents the child had and the fact that those parents would not assume any responsibility. We cannot rest easy on the fact that the child's parentage can affect that child for the rest of its life and it can never escape from the situation, even if it is totally abandoned and there is ample proof that the parents would not assume their responsibility. The amendment proposed in the Labour Party's Bill of removing the word "inalienable" in Article 42 is a follow-up of that. In any case, the words "inalienable and imprescriptible" cause great difficulties. It is very difficult, even for the Supreme Court with judges sworn to uphold the Constitution, to ascertain precisely what is meant. After all, the rights are not inalienable and imprescriptible when the child becomes an adult. Clearly, adults leave the home and that is the end of it. They form new relationships themselves. They may or may not marry, have children, whatever the circumstances may be. So they are inalienable and imprescriptible during their childhood but what is inalienable and imprescriptible?

We now have two kinds of constitutional rights. We have the constitutional right, identified by a majority of the Supreme Court, of the natural mother to the custody of her child, but it is not an inalienable imprescriptible right. It is a right that she can alienate. This raises the question of what exactly are their inalienable and imprescriptible constitutional rights when the fact of them being inalienable causes such hardship and such suffering to young children growing up in the State and condemns them to institutional care or condemns them to the much less secure position of fosterage. This is a major area where the Minister and his advisers should have been actively considering how to introduce a balanced referendum on this issue.

The other major area is the question of the rights of the illegitimate child. I recall that in this House there have been a number of debates. In particular, there was a debate on this whole question of giving rights to an illegitimate child. Senators on both sides of the House, in response to a Private Members' Bill that I had tabled with some other Senators, made it clear then that they were in support of a change so that the discrimination against illegitimate children could be removed. The Minister makes a halfhearted attempt to meet that area. He gives a watery indication that he may look into it. One has to read his indications with great care because over a year ago he was in this House telling us that he would introduce civil legal aid without any delay and we have not heard anything more about that. The indication that he might look into the question of the status of the illegitimate child is much more watery and diluted and very vague indeed.

Once more, one must examine the interest of the Minister and his advisers in this problem. Do they really care that children are discriminated against legally by the fact of their parentage? Do they really care that because of the lack of any facility for terminating a marriage in Ireland the picture is becoming more and more clouded and complicated? Many people who think they are married are not married. Many people who think their children are legitimate have illegitimate children. Is it not about time, in particular in the context of a country where you cannot legally terminate a marriage, that we came to terms with the enormous problems posed by the very narrow definition of "family" in our Constitution and the difficulties that this gives rise to? The fact that the constitutional definition of "family" confines it to a family based on marriage may to the lay person sound very appropriate and appear to be something that, as a country, we should totally adopt. The problem is that by making a constitutional matter and a constitutional standard of what a family is we have all the kinds of problems that I have been outlining: the problem of whether or not the natural mother has rights, the problem that certain people who may think they are married do not have any constitutional rights and are not a family under the Constitution. I do not believe that the people want this sort of situation to get worse. We may not have termination of marriage but we do have breakdown of marriage. The more the problem of breakdown of marriage deepens and gets more complicated because of the Succession Act, the more this becomes a major social issue.

Perhaps in that context we may see some movement about it because it seems as though there has to be a major lobby and a major area of discrimination before the Government and the Department of Justice are prepared to act on the matter. It is not enough that there is, and has been down the years, legal and constitutional discrimination against illegitimate children because they have appeared just to be the offspring of unmarried mothers and therefore unfortunate and regrettable but not really a major concern for policy makers. It is regrettable if we have to wait until the social problems become so convoluted and so strong and irresistible that it becomes a mainstream lobby. A Government must lead in removing any injustice that exists. The blatant discrimination against the illegitimate child flies in the face of the equality of the citizens as human persons which is proclaimed in Article 40.1 of the Constitution.

I am not at all impressed with the Minister's moth-eaten argument that it would somehow undermine the rights of the legitimate wife and legitimate children if one were to give succession rights to an illegitimate child. The reason I am not impressed by that is that the Minister himself is singularly failing to bring in the kind of legislation which would give the best protection to the married wife and legitimate children in present circumstances.

If we want to protect the wife within marriage and the children within marriage—and of course we want to protect them and to ensure that they have security—then why not introduce legislation dealing with property within marriage? Why not introduce legislation which provides that during the lifetime the wife has a property interest and share in the property of the husband or marriage and vice versa? Why do we have to wait until after death? There is this curious anomaly, curious paradox, that it is not until somebody dies that the spouse gets a legal right to the estate. During the lifetime she will not have any property rights unless she brought in money herself, unless she has invested in the family home or has made a financial contribution. That is how you meet the real concern and real worry of the wife within marriage and the children of the marriage. You do not do so by penalising the child born outside wedlock. Similarly, there is the growing social problem that many children who think that they were born within marriage, think that they are legitimate, but are not. When the time comes for father or mother to die they will realise that they do not have any succession rights. Unless they have been provided for expressly in a will they may very well find themselves without any provision. This is a major social problem, a major problem relating to the relationships between people.

It is not as though the issue of adoption and the whole question of family rights could be reduced to the single matter which is dealt with in this Bill. This was the third matter dealt with in the Labour Party's Bill. Having dealt with the question of removing the phrase relating to inalienable and imprescriptible rights so that legitimate children could benefit from adoption, the Labour measure then proclaimed rights for the child and, in particular, said that there would be no discrimination on the basis of parentage. The section would have contained a Schedule and would have added new provisions to the Constitution as follows:

1. That children shall enjoy special protection by law and other means to enable them to develop physically, mentally, morally and spiritually to their fullest potential and in conditions of freedom and dignity and in the enactment of laws relating to children the welfare of the child shall be the first and paramount consideration.

2. Equality of rights under the law shall not be denied to any child on the basis of status at birth or parentage.

3. The State acknowledges the family as the social unit best fitted to provide the continuity of care essential to the upbringing of a child. Where, however, the welfare of the child requires it, whether by reason of the death of the parents or by reason of their unwillingness, neglect or inability to discharge their parental duties, the State shall supply the place of the parents by appropriate means which may include the enactment of laws providing for the transfer of parental rights to substitute parents.

This is the kind of provision in the Constitution which would allow very careful legislation. I am all for taking into account a number of the matters raised by the Minister, particularly in his longer speech in the Dáil. There should be evidence of manifest abandonment or neglect by married parents in order to invoke the provisions. Where there is manifest abandonment or manifest ill-treatment followed by abandonment and no parental link subsisting, and where the child is therefore placed in a home and will grow up in a home, then the Legislature, as in every other country, should be in a position to say that this child can be adopted and can have a substitute family with all the legal security of that.

I should like to turn to a matter which the Minister dealt with in some detail in the Dáil and which he just touched on in his briefer speech this afternoon. That is the question of the phrase which is contained here, which is also in the Guardianship of Infants Act and the Adoption Act, 1974, that the welfare of the child should be the first and paramount consideration. I read with care the arguments the Minister put forward about the problems that can arise and it was a matter that was dealt with in some detail by the Supreme Court in the G. case. Problems could arise. The use of the word "paramount" can potentially give rise to problems. I am aware that Mr. Justice Walsh has distinguished between the first and paramount consideration and then the other considerations, the second, third, fourth and fifth considerations. Nevertheless, I could see that it might possibly, if it were to be the overriding provision relating to all laws relating to children, which is what is contained here, give rise to difficulties. That is a point that could well be discussed on Committee Stage of a Bill like this where one would try to examine, first of all, whether it would be better to insert the substitute wording "the best interests of the child" or whether that provision is necessary at all in the Constitution if you have the affirmation contained in the rest of the section.

I go some way with the Minister in his argument that there are problems relating to a clause which would give overriding consideration to the welfare of the child in all legislation and in all such circumstances. However, I do not accept the Minister's confidence that there is no problem under the present situation where the Constitution lacks appropriate balance between parents and children, between the rights of adults and the rights of children, and where there is an imbalance against the rights of the child in the wording of the relevant portion of the Constitution.

I do not accept the Minister's confidence that there is no issue relating to the statutory provisions referring to the welfare of the child being the first and paramount consideration. The Minister seemed to think that this was not a problem. He referred in the Dáil to a number of cases in the longer judgment but he did not refer to a more recent case where this issue again arose in the Supreme Court. He referred to the case of J. where Mr. Justice Henchy had seen this as a problem, but he did not refer to a judgment of 22 June 1977 delivered by the Supreme Court in the matter of the Guardianship of Infants Act, 1964, J.V.D. and Others. This was a case where the father wished to recover the custody of the children. The children were legitimate. They were children born within marriage and the father was living in England with another woman. The children were with the grandparents. The mother was dead and he wished to get custody of them. In the judgment the very interesting thing is that the Supreme Court went quite a distance, indeed, it is very refreshing to see the possibility of the Supreme Court, despite some of the difficulties in the wording of the Constitution, being able to identify the rights of the child within the Constitution. This is an example of that. Mr. Justice Kenny said in his judgment:

Counsel for the Plaintiff, when asked whether he wished to argue that S. 3 of the Guardianship of Infants Act 1964 was repugnant to the Constitution, said that he did not.

So it was not an issue here where you have a father with inalienable and imprescriptible rights. He had to be asked if he wanted to argue that because the Supreme Court are aware that there is a problem there, that if you have a married parent with inalienable and imprescriptible rights challenging an order made under the Guardianship of Infants Act where the first and paramount consideration is the interests of the child, it raises a conflict of constitutional rights and that potentially that section may not stand constitutional challenge. As I have said, the Minister in his recital of cases did not refer to this case and did not note, as I think one must note, that the Supreme Court felt they had to ask whether the issue was going to be raised because they are well aware that it is an issue on which substantial argument could take place and where potentially section 2 of the Guardianship of Infants Act could be struck down.

What I have been attempting to do is to outline some of the major legal issues, some of the major social issues and some of the major problems which are getting worse and worse under the present system because we have increasing incidents of marriage breakdown, we have no termination of marriage, we have discrimination against the illegitimate child under our law and we have a discrimination against the legitimate child under our adoption law in the provision that they are for all time and under statute barred from being eligible for adoption.

If the Minister tables a Bill to amend the Constitution it should not confine itself to one single issue, an issue which the Minister attributes to the McL. case and which was certainly in the background and in the arguments by counsel but was not part of the judgment and decision of the Supreme Court. I have nothing against providing for the security of the Adoption Board in making the orders they make and for the adding to Article 37 of what is proposed in this Government measure. As I have outlined at the beginning, the Minister does not meet the other major constitutional problem which was raised in the McL. case. He does not give the more than 26,000 adoptive parents the security that he is purporting to give them. The Minister still leaves them with the fact that if there is a challenge by married parents, if the unmarried mother marries the natural father, or if it was argued that the child placed for adoption was an illegitimate child, that the husband was not the father of the child, or if there are other defects in the procedure such as that the adoptive parents, although considering themselves to be married when they apply to adopt, are not in fact married under our law because one or other of them had an impediment in that he or she was either divorced in a way that would not be recognised or had been party to a Catholic Church annulment, those kinds of defects can still render the status of the adoption uncertain and can allow it to be challenged years afterwards on constitutional grounds. The 1976 Act did not cover this; the 1976 Act did not change this. The only way we can change it is by ensuring constitutional security for all adoption orders.

Like Senator Molony, I am somewhat surprised that the Minister did not refer to the learned opinion submitted by two of the leading senior counsel at the Bar who gave as their opinion that, apart from dealing with the question the Minister deals with here—the question of the powers of the Adoption Board—there also should be a time limit within which an adoption order could be challenged. The Minister should seriously consider this point. He should examine the possibility of introducing an amendment on Committee Stage which would provide for a time limit within which adoption orders could be challenged. The reason sometimes given for not wanting to have a time limit after which there could be no challenge to an adoption order is that it would be a substantial curtailing of rights in a particular situation, that even if a basic defect arose that the adoption order would remain valid.

When we are dealing with something as vulnerable and as precious as the welfare of a child it is appropriate that that legislative and constitutional decision be taken. It is a matter for legislative policy how long the period should be. It would be legitimate to think in terms of a period of one year or, at the very most, two years after which an adoption order could not be challenged on constitutional or legal grounds because at that stage the interests and the welfare of the child would be very strongly the need to remain within the family which had become the real family for that child.

The Minister has not given adoption orders the full security that they ought to have; he has met only half the problem that arose in the McLoughlin case and, above all, he has produced the most minimalist Bill on this question of adoption and the constitutionality of adoption orders that it was possible to devise. He has left out of the picture all the other problems and needs of children which are so important and worthy of attention in this International Year of the Child.

Mr. E. Ryan

I welcome this Bill, which is a very necessary one to allay the worry of many people who have adopted children and who have, in doing so, acted in a very desirable way, in a way which is certainly acting in the spirit of true charity. It is essential that the Government and the Oireachtas have a duty to ensure that people who have adopted children will not be worried that the adoption order is likely to be invalid because of decisions of the courts or anything of that kind. Certainly, in such a situation it would not only be a tragedy for the adoptive parents but in many cases also for the child who is adopted. The Oireachtas will have to go as far as possible to ensure that that kind of situation will not arise in the future. When I say as far as possible, there is a limit to how far we can deal with that situation and make sure that it will not arise.

The Minister stated that he cannot make the position watertight. Of course this is so. It is a very complex situation. No matter what laws are passed or constitutional amendments made there may be still a defect. There may be something that the Supreme Court will, in due course, decide is not covered by the Constitution or that in some way the order is invalid. Of course there are, as Senator Robinson has mentioned, a number of cases where, in spite of this amendment, an order could prove to be invalid. Inevitably that kind of situation is going to arise.

In the first place we must realise that even if this amendment is passed and even if an order is made which appears to be in impeccable order, something may have been wrong. There may have been fraud of some kind or the status of the parents, for instance, may be quite different from what was understood to be the position. In that case the adoption order will have to be set aside. That kind of situation, no matter what we do, may occur in the future. There is no way of making the situation watertight.

This Bill deals with an Adoption Board and the query has been raised as to whether this Adoption Board have the same power as a court. One must realise that every court, except the Supreme Court, can make a wrong decision and its orders can be queried, can be set aside, and shown to be invalid. In these circumstances it would be quite inappropriate that we should have a situation where the orders of the ordinary courts of the land, and of the highest courts, can be set aside and declared invalid, but the orders of the Adoption Board are completely immune from any examination by the courts.

It has been suggested that there should be a time limit and that any adoption order which is not queried within a certain time limit cannot then be interfered with. It seems to me that that suggestion has very little merit. If there is a serious defect in that adoption order, if the parents of the child were married, and the child is legitimate, and the parents, for one reason or another, did not realise at the time that they were the legitimate parents, and if one or both of the parents at the end of a certain period make their appearance and say that they want to take back their child who was born when they were married, then I cannot see the force or the equity of a situation in which they could not get back their child in these, perhaps, extreme circumstances, merely because a certain time has elapsed. Having a time limit is, in my opinion, a very crude way of dealing with the problem. It is a serious problem which can give rise to a great deal of anguish and suffering. Nevertheless, to apply an official time limit is not the way to deal with the problem, no matter how unfortunate it may be. That is not the answer to this kind of situation. I do not think there is any absolute answer to it. The Acts in existence, and the suggested amendment, now go as far as it is possible to go at present to deal with this situation. All that one can do, in the circumstances, is to hope that the courts will administer the existing law in the best way possible.

Senator Robinson mentioned the McLoughlin case. In stressing what the issue was in the McLoughlin case she was tilting at windmills. The Minister never stated that this Bill was to try to cure the defect that arose in that case. He made it quite clear that this Bill was designed to cure the long shadow that was thrown in that case. It was not the particular issue that was argued in that case. It was a question of whether or not the Adoption Board have a right to make adoption orders. The Minister, in this Bill, tried to deal with that specific problem and this Bill will deal with the problem if the people vote for acceptance in the proposed referendum.

Everybody speaking has, as it were, his or her own favourite rights. Senator Robinson talked about a number of rights which certain people should have, but the more she pressed a particular right, the more she was ignoring other rights. The problem of all who have spoken on this Bill in this House and in the other House, and outside the Houses, is that they had a particular right which they considered the most important one, and they were concerned that it should be established to the exclusion of, or certainly take precedence over, other rights. The Constitution sets out all kinds of rights—rights of family, rights of children, rights of parents, rights of citizens. There are bound to be cases where these rights will come into conflict. It is impossible to pass any law, to pass any amendment of the Constitution which will give a black and white kind of situation where everybody's rights are clearly defined and where there will be no future conflict. That is an impossible concept; it is not capable of being achieved and it is certainly no wonder that the Minister did not find it possible to introduce a Bill here which would reconcile all these rights and put them in their own little boxes and make sure that there would not be a future conflict.

In regard to the specific issue that is before us, that is the passing of a Bill which will enable a referendum to be held on this question of the competence of the Adoption Board to make adoption orders, in passing an amendment to the Constitution, it is absolutely essential that it should be on a simple, clear-cut issue which people understand and on which they can vote individually. If an attempt were made, as apparently some Senators and others would wish—to introduce an amendment to the Constitution which would define all kinds of different rights, some conflicting, the probability is that the people, the voters, would be so confused and so uncertain as to which were and which were not the most appropriate and desirable rights, that they would end up deciding not to vote for anything. It is absolutely essential, when you are putting something as sacrosanct and important as an amendment to the Constitution, that it be a simple, clear-cut amendment, and something on which the people can make up their minds one way or the other. The Minister is quite right in putting forward this amendment, which is a simple one, and one which people will have little trouble understanding, and, for which, I have no doubt, they will vote. If it were more complicated and tried to do too many things the probability is that the amendment would not be passed at all.

There have been a number of cases made for other amendments of the adoption laws. It has been suggested that in certain cases it should be possible to make adoption orders against the wishes of the parents. I am entirely against such a provision. It is, of course, true that there are parents who do not look after their children, and it is true that there are parents who behave in the most irresponsible way in regard to their children and it is quite clear that they are not capable of looking after them. In these circumstances there is a provision for putting the child in custody, which is the proper, or certainly an acceptable way of dealing with that situation.

Having an amendment which would enable a child of negligent parents to be adopted is going much too far. It is objectionable because the adoption order is permanent; that is, of course, what we are trying to ensure in this Bill. It is quite possible that parents who may neglect a child and behave in an irresponsible way may change entirely their attitude in the course of time—sometimes perhaps in a very short time. They may become responsible and be more than anxious, willing and competent to look after their child. It would be most undesirable if, in such a situation, they were faced with the irrevocable situation that their child was adopted and they could not get it back. Even though there are exceptional cases where it would appear that a child should be adopted in spite of the wishes of the parent, the way to deal with it is to put the child in custody. Merely because there are occasionally very bad cases of neglect one should not try to make a fundamental change. Hard cases make bad law. Certainly it would be very bad law to provide for adoption in such circumstances. On the balance of justice and injustice, I would be very much against a situation where adoption would be allowed against the wishes of the parents.

The other situation which has been advocated is the case of adoption of a legitimate child. We have the situation where a legitimate child is described as being discriminated against because he is not capable of being adopted; we have the situation where an illegitimate child is discriminated against in many other ways. To come back to the question of the legitimate child, again, as in the situation which I have mentioned, of adopting against the wishes of the parent, there are cases where it would appear that allowing adoption of a legitimate child would be, on balance, a very desirable thing. One can argue both ways, but on balance it is something which should not be done. It should not be permitted, because, in the long run, it would create just as much injustice as provide justice. In some cases it might only encourage a situation which would create injustice.

Although there are views on both sides of this argument, I would come down very much against allowing a legitimate child to be adopted. The main objection is that it is irrevocable. If, at a later stage, one or other of the parents wished to take back the child from adoption and had very good arguments for so doing, with an irrevocable adoption the court would be involved, and even if it were not involved, there would be an extremely undesirable situation from the point of view of natural justice. If the matter were brought before the court, the court would be in the position of facing the proposition, the argument, that this was a legitimate child, whose parents or parent wished to take back the child and were not able to do so. From a public policy point of view and from the points of view I have mentioned, it is undesirable that this should be permitted. If you were to permit the adoption of legitimate children in such a situation it would be impossible to decide between the cases where it was right to allow this and where it would be wrong to do so. It would be interfering with the fundamental concept of the family in the Constitution, which concept should not be undermined in any way. Every possible effort should be made to ensure that it is not undermined. The case can be made for the adoption of legitimate children but, on balance, I would certainly be against it.

Certain observations and views have been expressed about the rights of the child as compared with the rights of the parent. Some who have advocated the rights of the child and who have talked about this being of paramount interest have gone too far. One quotation I have seen suggested that parents have no rights; they have only duties. It is a refreshing concept, in this day and age, that anybody should suggest that any section of the community, or any individual, has duties only and not rights. Nowadays people seem to be obsessed with their rights and almost totally unconcerned about their duties.

The right of the child is a very important right which must be protected as far as possible. Parents have rights also and the objective should be to do justice and to ensure that the rights of both are balanced, as far as that is possible. It is not always possible to do so completely, and to the satisfaction of everybody concerned.

When I am talking about rights, I should like to mention one matter of rights, that is, the right of the natural father. Section 16 of the 1952 Act specifically excludes the right of the natural father. This section 16 deals with those who may be heard on the application for an adoption order and, curiously enough, he is the one person specifically excluded, not by name but not included in the list of those who may be represented. It is understandable, perhaps rather old-fashioned, for people to assume that natural fathers never want to be concerned, never are concerned for the future of an illegitimate child and that may be right in most cases. There was, however, a case some years ago in which the natural father was very anxious to retain his right as father of the child and to marry the mother, but he was not allowed even to appear at the hearing of the adoption order. On a previous occasion in this House, when an amendment to the Adoption Act was being passed, I pressed the Minister to amend that particular section but I did not succeed in having it amended. At present, when there is, perhaps, a more liberal view taken of these things and a new approach to rights such as that, this is one section of the Adoption Act which should be amended.

In general, this Bill is a very good one. It is a simple Bill, and sets out to achieve a simple but very important objective. Although it may not do, and obviously does not do, everything that all concerned with adoption would like to see done, it is important that it should at this stage achieve one important fundamental aim, which is to ensure that the competence and right of the Adoption Board to make adoption orders is clearly cop-perfastened. When that has been done we can move on to other rights and other necessary changes.

Mr. Alexis FitzGerald

I certainly agree with Senator Ryan that what is in this Bill is welcome. I also welcome the provisions which have been designed to allay the anxiety created by the court decision which has been referred to. I have a great deal of sympathy with the view that, as regards that matter, that is at far as the Bill ought to go, that is to say, with regard to—to use Senator Ryan's words—"copperfastening" past orders of the Adoption Board. I see great difficulties in attempting to do that any more extensively than has been done.

I am unhappy about one matter that Senator Ryan dealt with, which is the position of illegitimate children. I should say as I said not long ago in this House that I am very concerned about the legal position of illegitimate children. I expressed myself on this matter some years ago and, in my own thinking, changed my view with regard to the law relative to illegitimacy, moving, to use political language, from a more conservative to a less conservative position. I see the very greatest difficulty arising from an attempt to abolish absolutely, in legal terms, the distinction between legitimate and illegitimate children. I refer to this point merely in so far as I know that anything I want to do for the status of illegitimate children—and there is very much I want to do—can be done within the Constitution. If I am right in that—that is my judgment on it—I leave the position of illegitimate children to one side.

I am unhappy, however, with what I feel is bad thinking with regard to the position of legitimate children. Legal advice as recently as 1974 was that it was constitutionally impossible to adopt legitimate children. The Minister indicated in his very learned speech in Dáil Éireann that this was a view to which he had still to pay great respect. I note, however, in a recent judgment—the case has been referred to already a number of times, the G. case, that Mr. Justice Walsh takes a different view with regard to this. I may add that when I addressed myself, with some passion, to this subject in 1974, I expressed the view that it was constitutionally possible to adopt legitimate children. What I find disturbing today is to find that, even if it were constitutionally possible to do so, there is apparently an opinion that one should not do so, that, quite apart from constitutional provisions, there would be something legally dangerous in providing for the adoption of legitimate children. On the constitutional point—which is my precise criticism, in so far as I criticise this Bill—this is still a matter of constitutional doubt and the constitutional issue should be cleared out of the way now.

Opinion has been expressed in this House, in the other House, and in many other places in this land, that there ought not to be in the Constitution a prohibition against the enactment of divorce and that matter should be left to the Oireachtas. There has not been a great deal of dissent about that, except, of course, that people would be damned if they removed that from the Constitution and it would be seen immediately as the first steps to the enactment of divorce laws. Once that particular matter is in the Constitution it will not be removed unless its removal is immediately followed by divorce legislation, and if that is the mood of the people, to have it so.

This is a different matter. This is a matter where legal thinking, as to what it is desirable to do in relation to adoption and children, has been clouded by some idea that there is a constitutional prohibition. There are two Articles which have to be referred to. The first is Article 41 which refers to the inalienable and imprescriptible rights of the family. The other, Article 42, refers to the natural and imprescriptible rights of the child. Unfortunately I did not have an opportunity to read what the Minister said on Committee Stage in the Dáil. I do not mind telling the Minister that I had a hand in the amendment that he was looking at, though he eventually found it defective. I will read all about it. The amendment was an endeavour to reconcile this problem. It was simply designed to do this: to place no limit on what could be done for the child where there is a failure in duty or where there is a justification for the State to intervene. That is to make clear what is already Mr. Justice Walsh's view as to the meaning of that Article, to write it down so that it is so and, if the Legislature so desires, it can by appropriate laws and subject to the appropriate restrictions and with the appropriate safeguards provide for adoption of legitimate children.

The position is outrageous in my view that a handicapped father whose wife has died leaving a little child can do nothing about that child and it is in the best interests of that child that the father should now die because if he does not die the child cannot be adopted. "Oh, please let God take Daddy away", are the words the child would utter if it could only mouth what would be in its own interest. It seems we must stand over that because the Constitution requires that we as legislators should not legislate to provide for that case. In such a case the orphan is better off than the legitimate child. I do not say that in the case of legitimate children there should not be a different procedure. That might be for a different part of the statute. It may well be that an adoption of that kind should not be done except by the courts. There are different types of circumstances. There are circumstances where one or both parents want to alienate their rights for the benefit of the child, knowing their own inadequacy and incapacity, knowing that they can broaden the horizons of that child and do better for him.

It is no use saying, as I think the Minister said, that there is no way of preventing collusion. The courts are very aware of the possibilities of collusion in these cases and it is a collusion anyhow of a benignant kind resulting in the adoption by a pair who satisfy the court as to their credentials. Let us not get into a discussion about what the statute ought to be, what the law ought to be when we are dealing with legitimate children. Let us cure the defect in our public institutions which has meant that Government after Government since 1952 or 1954, when the adoption code was first introduced, have been unable to help people in that category.

Senator Ryan referred to cases of people repenting subsequently and wanting to come back and take the child and so on. These are the rare cases and not the cases that should be thought about. The more usual cases are the cases where, because the child is legitimate, it has to go into an institution. It cannot be adopted because there is one parent alive. The adoption code does not come to the rescue and it is not available for the courts where they are applying Article 42.5 which provides:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with one regard for the natural and imprescriptible rights of the child.

They can go further in aid of an illegitimate child under that section by providing for adoption than they can in the case of a legitimate child.

It is not beyond the wit of the Minister's advisers, if there is a will to do it, to make a simple amendment to this Article which simply makes it possible for us to get together to see how we can best solve this great human problem or help in its solution, which is all we can do. There is not ever a total solution to this kind of problem. There will always be cases falling down, but we will strengthen the State's arm as guardian of the common good to supply the place of the parents where the parents are failing in their duty or where there is an inability to perform a duty or a deep desire to make things better.

In the name of the sanctity of the family, is it right to deny entrance to a family to unfortunate children? Here we are talking about a pair proper to the duty of adopting children, willing to take such a child into their family, to make that child one of that fundamental unit group inspired by the love of the pair who are adopting. In the name of an Article designed to protect that family as a group, we are saying, "No, you cannot take in that child because it has a vestigial claim on it", or because of some theoretical, philosophical reason. The natural law's face has changed many times and continues to change in the light of realities. We are failing in our duty in my view unless we recognise this.

It is no use saying that out of the activities of the court processes eventually this will all be cleared. It may or it may not. It takes many years for the courts to decide lots of things. Meanwhile this problem lies unsolved. I would ask the Minister to reconsider this. God knows there are no politics in this. If there are, I am out of my mind. He should ask himself if it is not possible to clarify that in the sense in which Mr. Justice Walsh has already held it to be. Then we will at least clear out of the path the question of the constitutional issue and we can table Private Members' Bills until they go through the ceiling. Each one can have his own view on that. Some people may have very different views on this subject, but it should be a matter for the Oireachtas then. Let us face realities: we are not going to go back to the people with another referendum on this matter, not for years. That is my only point and I press the Minister with it.

Mrs. Cassidy

As up to now the only speakers to this Bill have been lawyers, I feel like a fool rushing in where angels fear to tread. Be that as it may, I welcome this Bill which will go a long way towards allaying the fears and anxieties of adoptive parents and will do away with the uncertainty and the fear which they have suffered during recent years.

As the Minister said and as Senator Ryan has emphasised, there is no way to offer an absolutely watertight guarantee that an adoption order cannot be challenged. This Bill goes as far as is necessary to maintain the delicate balance of rights, the rights of the family, the rights of its individual members and the rights of others who are given the protection of the Constitution. Adoptive parents are entitled to this relief and they are entitled to expect that the adoptive process should be secure from challenge. They do not want to be and resent being regarded as different and thereby somehow inferior to other categories of parents. They were slow to organise themselves into an association to seek this relief. They simply want to be left alone to get on with the job of rearing their families like everybody else.

The Minister covered in a very detailed way many aspects of the law as it relates to children and to the family. He commented in a way that is very helpful to non-lawyers on the measures which are desirable in these areas of law and the measures which are not. This is both necessary and welcome because it demonstrates that the legal implications of apparently desirable measures are very different from expected and can often have the opposite effect to what is intended. The broadness of the Minister's approach in his speech to the Dáil and in his speech this evening has enabled the House to discuss two such apparently desirable measures. The first is whether it is desirable to abolish the legal concept of illegitimacy and, secondly, whether it is desirable to extend the categories of adoptive children in order to include legitimate children.

With regard to the first I would ask this question: does this mean that by abolishing the legal concept of illegitimacy we also abolish the concept of legitimacy? The concept of legitimacy is a very necessary concept and a very desirable one. Children of a union recognised by the State and given constitutional protection are entitled to their legitimacy and all that implies by way of rights of inheritance, rights to the family name and the right to acknowledge the blood tie. After all, the State does not impose the stigma of illegitimacy, nor does society: the parents of the illegitimate child do that. I do not think it desirable that the institutions of marriage and the family should be weakened in any way in order to acknowledge people in an amorphous mass. When social attitudes change, then legislative change is desirable and necessary to reflect these changes. After all, the day may come when we will all be very happy to live in a hippy commune with flowers in our hair. But at the moment, and as of now, the family as defined in the Constitution must remain the fundamental unit of society.

The present position of legitimate children as being outside the provisions of the adoptive code often gives rise to very tragic situations, particularly because these children in many cases have known what it means to belong to a family, have experienced family life as their natural birthright. Again, the problem is one of balancing rights within a constitutional framework. There may be a possibility in future legislation of including legitimate children if, perhaps, they were allowed to revert to their former status at the age of 16 and if their rights of inheritance and all the other rights to which they are entitled because of their legitimacy could be guaranteed or protected in some way. This type of legislation would be very welcome.

I should like to point out that a curious anomaly exists at the moment whereby married women are subject to discrimination. The unmarried mother has rights guaranteed to her as an individual by the Constitution. She has rights with regard to her child; nobody can take her child from her, nobody can insist that she gives it up for adoption, she has duties towards it, she has obligations, she is obliged to see that it is cared for and educated. But if at any time she finds herself unable to cope with her responsibilities, if, for example, she wants to get married and her husband does not want to accept the responsibility of another man's child, then she has the right to offer her child for adoption and thereby ensure that it gets a good home. The married woman in a similar situation, if she is deserted by her husband or if he dies and leaves her with a child to bring up or if she wishes to marry again and if that husband has no wish to bring up somebody else's child, has not the right to offer that child for adoption.

I would suggest that while acknowledging the special position of the married mother it is regrettable that the State acknowledges the unmarried mother merely as a social problem. This implies that somehow the bonds of affection that exist between the unmarried mother and her child are somehow inferior to those that exist between a married mother and her child. This is, of course, nonsense because people who are married have a prior commitment, each to the other, which must come before any subsequent commitment they may acquire as parents and these two commitments are not always compatible.

There is a section of the adoption code to which I should like to draw attention. Section 14 of the 1952 Act requires that orders made under the Adoption Act have to be published in Iris Oifigiúil. As far as I am aware, most adoptive parents think, and think wrongly, that the adoptive process is a secret and a private one but it is possible to trace an adopted child right back from the adoptive parents to its natural parents. I ask whether this is a desirable thing.

I welcome the Bill as a careful and well-thought-out solution to a very pressing problem.

Mrs. Hussey

I should like to refer to the announcement last week of the date of this referendum. I went to the trouble of getting a copy of the statement which was issued by the Government Information services on 1 March. It announced the date, 5 July, on which this referendum will be held and there was nothing in it at all to say it would depend on whether Seanad Éireann would pass it. It was just a straight announcement. I am wondering what is the thinking behind taking the trouble to issue that statement the week before this Bill was to come before the Seanad. Either the Minister for the Environment, from whose office this was issued, considered that the Seanad would rubber stamp this Bill or else he considered that, if we did not pass it, 90 days would have elapsed anyway so it would go before the people for the referendum. Either form of thinking strikes me as being an insult to this House. It is extremely regrettable that such an announcement should have been made a couple of days before this House was to discuss this Bill. The last time the Seanad rejected a Bill it was also in regard to a referendum and the people went on to reject the referendum proposal.

I am extremely impressed at the concern of very eminent Senators in this House on the subject of this Bill and the sincerity with which that concern has been expressed. I am very disappointed at the limited terms of this Bill. I should like to mention the question of the adoption of the legitimate child. If family life breaks down for any reason the only choice open to the legitimate child is fosterage or institutional care. In fact, it is conceivable that the parent or parents of such a child could plead that that child was receiving unequal treatment compared to illegitimate children who have the choice of being received into and made part of a family unit. Such a choice is not open to the legitimate child. That is the case and it strikes me as something that we should not stand over.

We have to face up to the fact that family life for one reason or another very often does break down. We are now more conscious of the fact that family life breaks down. I do not know if it is breaking down more than it used to, whether the facade that used to be put up is no longer put up and society knows more about it. But family life does break down a great deal and there are a great many children who are condemned to extreme insecurity, agony of mind and bad upbringing because of the breakdown of their natural family environment.

It is not adequate for the Minister or legislators to plead that there are great difficulties which will arise in regard to complications over property, families colluding and so on. The law makers are here to make laws, to overcome difficulties and complications and it strikes me as being extremely irresponsible for us to say that it is to difficult to go into that area. Our first duty is to protect people and the individual, and surely children are deserving of the protection of this House more than any other section of the society because they are unable to speak for themselves. There are a great many cases of simple abandonment of children. There have been cases of children abandoned and three or four years later the natural mother turning up, finding that the child has survived the abandonment, be it behind a church or somewhere else, and getting that child back because now her circumstances have changed. The child has had three or four years of some kind of secure life and is now dragged out of that back to a situation which, at best, can only be described as unlikely to be very secure.

I was very alarmed by the clear indication given by Senators Molony, Robinson and FitzGerald of the confusion which exists in the minds of lawyers going to the judges of the Supreme Court about exactly where the rights of children and parents lie. That sort of confusion must be broken through and tackled. This is a responsibility that we have. In a debate like this one is reminded that this kind of area has, perhaps, been neglected even more because of the lack of women involved in any stage of law making or consultation in this kind of area. When the Minister talks about referring these questions to the Law Reform Commission, I remind myself that there is no woman on the Law Reform Commission and that there was, in fact, a woman on it who no longer is there. The Law Reform Commission was set up to a large extent as a result of a great deal of lobbying and pressure and dedicated hard work on the part of many women's groups to draw the attention of society to the gross inadequacies of the law in many social areas. The fact that we now have a Law Reform Commission which once again reflects the lack of female participation in public life strikes me as being extremely bad. Once again, I would ask the Minister to consider that question and to consider changing that situation as quickly as possible.

When this Bill was published many people expressed their deep disappointment at the failure it represents to take a major step forward in one area. I would disagree with Senator Cassidy when she says that social thinking has not changed. Social thinking has changed enormously and this Bill does nothing at all to catch up with new social thinking based on new information and new expertise. There will be difficulties taking any steps in the areas of social legislation. We know that there are difficult questions which arise in trying to change the law as it affects rape, criminal conversation and the laws relating to domicile. They all raise difficult, related, legal questions, but we have a legal profession and legislators who are paid very well by the people to try and sort out those problems. I should like to add my voice to those of other Senators and say that this represents a failure of the Minister to grasp this nettle and I hope that he will reconsider the inadequacy and the narrow terms of reference of this Bill.

Minister for Justice (Mr. G. Collins)

I should like to thank Senators for the welcome which they have given to this Bill. Some of the Senators gave it a warmer welcome than others and I think only Senator Hussey did not welcome the Bill at all. I would say to Senator Hussey and Senator Molony that there is no need for their suspicious political minds to run away with them because of the fact that the Minister for the Environment announced the date for the holding of the referendum. The date is so far away that, even if there were outright opposition to the legislation before this House, one would be reasonably safe in assuming that the time would be sufficient to consider the legislation which is before the House.

Mr. Molony

What if it were rejected?

Mr. G. Collins

That would be a different matter altogether. If that is the attitude of the party to which Senator Molony professes to belong, surely that attitude would have been shown in the other House.

Mrs. Hussey

It was announced only last week.

An Cathaoirleach

The Minister to continue, without interruption.

Mr. G. Collins

One of the reasons which brought about the announcement by the Minister for the Environment was to ease the minds of those who have adopted children and those who are adopted persons themselves. Newspapers have been speculating for a long time about the possible date of the referendum.

The point raised by Senator Hussey and by Senator Molony is a technical point, indeed one not worthy of the contributions one would expect in this House from its Members. Let me say that in no way was there meant to be an insult to the Members of this House, or indeed to the only two Members of this House who would like us to believe that it was an insult to the House the way the date of the referendum was announced. That was neved intended. If I might say to Senator Molony, the begrudging welcome which he gave the Bill did not really do him justice. One would have expected more from an up-and-coming young Senator but because of the fact that he is not here very long one would excuse him. However, it is fair to say that a reasonable amount of time has gone by since the case which brought about the legislation which is before us now. Let the good Senator not forget that his party were in Government for over 12 months of the period during which he says we are waiting for the legislation and this Government for 20 months, so let us not try to score cheap, political, technical points on a matter which, as Senator FitgGerald said later on, should be outside politics. We managed to get this Bill through the Dáil without any hassle whatsoever and I would have thought that we would have every reason to expect the same sort of treatment here.

With regard to one or two other matters that were raised by the two Senators I have mentioned, which have nothing whatsoever to do with the Bill, that is the priorities and composition of the Law Reform Commission, if the good Senators take advice from some of their more senior and more experienced colleagues they will understand that appropriate representations should be made to effect what they desire.

A point was raised by Senator Molony, and referred to in the other House by Deputy John Kelly, on the availability of certain legal documents. I am not the person responsible for the publication of the Acts that the Senator mentioned. I share the concern of the Senator and Deputy Kelly and others that every effort should be made to have these documents available.

I shall comment briefly on one or two of the points raised by Senator Hussey. It is quite obvious that at most she has read the Bill. That is probably as much as would appear from her contribution. The vague generalities made by her and the confusion evident in her contribution clearly shows that she has not studied the Bill, clearly shows that she has not even read the records of the discussion which took place in the other House. I do not think it is right that I should be accused of being irresponsible for bringing this Bill before the House, for what is in the Bill. Certainly it is not good enough with the back of one's hand to dismiss, as Senator Hussey seems to dismiss, what is in the Bill as not being adequate. I should not be so irresponsible as to plead legal complications and so on as my reasons for not having in the Bill matters to which she referred. I have dealt at very great length with what is in the Bill and given a very long commentary on my reasons for not having in it matters which people believe should be in the Bill. There is no question of irresponsibility whatsoever and if irresponsibility is to be laid at anyone's door, well, I will let this House decide for itself.

I reject the allegations in Senator Hussey's comments that our Judiciary are confused. That is a sweeping statement that should not have been made and should be withdrawn at the first opportunity. I can only quote from my notes as naturally I have not got the official record of this House, but members of the Judiciary right up to the Supreme Court are accused by Senator Hussey of confusion.

With regard to the argument advanced by more than one Senator, but especially by Senator Alexis FitzGerald, to the effect that the Constitution should be amended to permit the adoption of legitimate children, I believe that it is possible that the Constitution would permit the adoption of legitimate children and, as Senator FitzGerald did say, Mr. Justice Walsh's judgment in the G. case appears to suggest that it does. A specific change in the Constitution to make clear that such adoptions are possible would, however, represent an acceptance that there ought to be such legislation. Do we want to make it possible for the parent or parents of legitimate children who are not under any social stigma to give their children away finally and irrevocably? In any case the possibility of a change of mind on the part of such parents leading to conflict must be greater than in the case of an adoption of an illegitimate child. It is not good enough to say on the question of the legitimate child that the law makers should overcome difficulties and just leave it at that. The simple answer is that they cannot and those who maintain that they can, in particular Senator Hussey, would appear to want some welfare agency to determine when a child should be permanently removed from its parent or parents.

There is nothing new in what Senator Robinson said. I stand over what I said here today and what I said at much greater length in the other House a couple of weeks ago. I recognise here as I did in the other House that there are hard cases but I would not be prepared to put the generality of cases at risk in order to make provision for some hard cases. On the other hand, I believe the present measure will give absolute security to the overwhelming majority of adoption orders. I could not see my way to sponsoring a measure that said that, after two years, shall we say, an adoption order should not be capable of being struck down. I am quite sure that if a court was to consider itself bound to strike down an order, for example, if it had been obtained by fraud as was mentioned by Senator Eoin Ryan, it would consider all the circumstances including the interests of the child. I know that the legislation which I have here on behalf of the Government will copperfasten the validity of the overwhelming mass of orders. This is what we set out to do. This is what the Bill is all about.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.

Ordaíodh go dtógfaí Ceim an Choiste De Céadaoin, 28 Márta 1979.

Committee Stage ordered for Wednesday, 28 March 1979.