Seanad Éireann díospóireacht -
Tuesday, 2 Jul 1985

Vol. 108 No. 12

Recommendations of Review Committee on Adoption Law: Motion (Resumed).

Debate resumed on the following motion:

That Seanad Éireann takes note of the recommendations of the Review Committee on Adoption Law and recognises their value; and calls upon the Minister for Health to introduce legislation without delay implementing these recommendations.

—(Senator Robinson.)

Mr. Ferris

On the last occasion I said it was the Minister who had requested this review of the whole area of adoption and I commended him for doing so. I also commended members of the committee on the excellent report they produced. It is appropriate that we, as a House of the Oireachtas, should discuss the various aspects of the report and, indeed, the motion calls on the Minister to take whatever legislative action is required. Page 99 of the report contains a summary of the main principles and recommendations. One of the most interesting in that section of the report is the setting up of a central adoption authority. The committee were of the opinion that there should be a specialist adoption court which should be the single authority having a nationwide jurisdiction and having sufficient autonomy within the legal system to develop its own special style and procedures. They also went on to recommend that the adoption court should have High Court status and function as a distinct branch of the High Court which would give it the legal standing that they feel is required in the area of adoption and that it should be presided over by a judge especially appointed for that function.

That is one of the main recommendations. The Minister, Deputy Desmond, who is present and welcome will, I hope, respond in a positive way to that section of the recommendations. There is no doubt that this is a highly complex area. It is one in which many of us have been involved and have taken an interest. It involves the future livelihood and happiness of many children who, unfortunately, for various circumstances are without parents and in need of people to take care of them and look after them properly.

This report points up the various problems that face both adoptive children and adoptive parents. Fortunately, the Government are coming to grips with this whole area of social legislation on a regular basis now. Having had a referendum and a constitutional amendment giving special responsibility in this area, it is appropriate that the Government should then follow through with the necessary legislation to put adoption in its proper format and address ourselves to the areas that need urgent attention. The motion calls on the Minister to act without delay.

I should like to compliment the Senators who put down this motion to give us the facility to discuss it. I am looking forward to Senator McGuinness's response to the debate at a later stage this evening.

Mr. Browne

In speaking of adoption, it is difficult to come down on one side or the other because, while it is grand that illegitamate children can be adopted, I am sure it must be very hard on the mother to sign over her new-born baby and have him or her given over to the care of somebody else. There is always this mixture of happiness and unhappiness in a situation like this. Indeed, the happiness of the people who adopt these children counteracts to a certain extent the unhappiness, perhaps, that is felt by the natural mother. People who adopt children invariably are very kind and loving to those children. As a teacher, I see some of them every day and I admire them immensely for the care they give. In fact, I often think they nearly go overboard in being kind to the children they adopt. They seem to give them all the love and attention they would give to their own. I compliment people who adopt children and give them a nice home.

We have discussions at different times on the role the State plays in encouraging, some people say, the birth of illegitimate children. That is very harsh because if single girls find themselves pregnant, we must look after them. It is very easy to say it is time the Government put a stop to all this business of illegitimate children being born and girls being encouraged to have more children. Because of their financial state some parents do not allow them to get married because they bring in money. That is a very narrow-minded line to take in a situation that certainly demands help. If the mother has to go to work as well as to look after the baby, then everybody suffers.

I have great sympathy for the single mother when it comes to housing. Everybody knows housing is based on a points system of some sort or another and it is much more sensible for councils or corporations to house three people — husband, wife and one child — than to house a single mother and child. Through no fault of their own they are beaten in the numbers game. I know there is limited accommodation which would be suitable for them but invariably, where you have a family-type home built, it is not so easy for councils or corporations to give a single woman a home because they have not got enough houses to go around. They are trying to accommodate as many people as possible.

There are all forms of problems with housing and it is difficult to sort out what the best line to take is when it comes to giving houses to single mothers. In our case we plan to give them smaller houses. Some of them want to stay in their own places. It is not easy to solve all the difficulties. Some of them want to stay near their own place and they do not want to move, but it is not always possible to give them exactly what they want.

There is also the question of who can adopt. There is the question of whether children who are born within a marriage and who are being neglected can be adopted. This has to be dealt with and it is a difficult role. I hope the people who will gain will be the children who are born out of wedlock who have absolutely no hand, act or part to play in their role in life. I hope they will be able to lead a happy life and bring happiness to those who adopt them. I hope that mothers who hand them over will not live a life of regret and I hope that the recommendation will be implemented and that everybody will benefit.

Mr. O'Leary

I welcome the opportunity to contribute to this debate. The Senators who put down the motion should have our support. It is right that we in the Seanad should examine the report of the Review Committee on Adoption Law. We should take this opportunity to consider the points raised and dealt with in that report, and we should also examine the very basic questions concerning adoption. In addition to the specific recommendations which are contained in the report, from the contributions which other Senators have made there appear to be very basic policy decisions to be taken by the State with regard to the future of children who are available for adoption and with regard to the retention of the pool of children available for adoption. In my experience children who are adopted prosper in precisely the same way as the natural children of the adoptive parents or other parents in the same social strata as the adoptive parents. The benefit to the adopted children cannot be exaggerated. There is also an incidental benefit for the adopting parents but this report is right in putting the great emphasis not on the beneficial effect which adoption may have on parents but on the beneficial effect it has on the children themselves. The interests of the children must be paramount in this matter as in so may other matters which deal with family law.

It is also right and proper as the committee suggests and considers that we should examine, the circumstances in which the number of children available for adoption has fallen over a period of years in spite of an increase in the number of children born out of wedlock. In speaking of children born out of wedlock, I am not talking about children who are born into stable relationships, because I am quite sure the number of children in that category is rising. I am also quite sure that the number of children in the category born outside of wedlock to a single mother who is without a stable relationship is also on the increase. If you believe, as I do, that social policy and social norms can be affected by legislation, it is reasonable to consider whether the legislative framework which we have established has encouraged people to keep children, or whether it is in the best interests of the children that the State should encourage that state of affairs.

Other Senators have referred to the availability of certain allowances for unmarried mothers which are termed an inducement to the mother to keep her child. We must be reasonable and say that this would be a very small inducement, indeed, because the amount of money involved is quite small. But it is the way in which the money is given that has a corroding influence on the relationship between mother and child and has a corroding influence on the decision of the mother to place that the child or not to place it for adoption. First, the money is only available if the child is not sent for adoption. Secondly, the money only continues to be available if the mother does not earn money outside the home.

We are encouraging people to keep their children by giving them a small amount of money and this brings about a situation where there is a reduction in the numbers for adoption and, on the other hand, we are not paying those people sufficient money to be able to rear their children in a proper way. We must choose what we want to do. We either pay people a substantial sum of money so they can rear their children in a proper way — and there are social implications in doing that as well — or else we change our policy completely. But now we have the worst of both worlds. We are inadequately supporting the children of unmarried mothers if they need adequate support, and they are condemned to a cycle of poverty which has a very serious social implications in many of our urban centres.

When I look at these basic considerations in the report which we have before us, and in particular paragraph 2.3, I think that raises as many problems as it solves. I will quote briefly from it. It says:

The question of whether the single mother should retain her child is fundamentally a matter for herself since it involves considerations which will deeply affect her future life and that of her child. Her choice should be a real one and should not arise from necessity.

This is the point emphasised by the committee. We would like to emphasise that point and to stress the importance of having available a range of State supports for families in difficulty so that no mother is obliged to give a child for adoption because of economic problems that would otherwise be created for her. But it ducks the question here. It ducks the question as to what our policy is. Do we want children to be available for adoption or do we not? The interest of the mother is not the primary consideration, it is the interest of the child. What is the primary interest of the child in those circumstances? In the overwhelming majority of cases the best interest of the child is served by adoption.

I have come to that conclusion having observed the family structures, adoptive families and families where the parents were unwed. In the vast majority of cases the interest of the child is served by the process of adoption. We cannot compel that situation and we should not compel that situation but we should decide what is our priority, what is our objective and we should so frame our policies that we should encourage that policy or that objective. I would like to see the Members of the House give more consideration to that aspect of the problem because that is the real, fundamental question which has yet to be answered by the State. The answer in my view is that adoption has proved so successful that it should be encouraged.

There are a number of other points raised by the committee to which I would like to refer briefly. Paragraph 3.4 of the committee's report deals with the question of the adoption of legitimate children and it comes to the following conclusion and I quote:

In all the circumstances, we recommend that all children should be eligible for adoption irrespective of the marital status of their parents.

This is a tremendous change in the law and one which I recommend and which I support. Obviously there are circumstances in which the children of married people become available for adoption and have to be dealt with by the social services in one way or the other. I support 100 per cent the recommendation that these children should not be disbarred from the process of adoption merely because of the marital status of their parents. That is a fundamental change which is recommended by this committee.

Another recommendation to which I would like to refer is in paragraph 3.13 of the report. This paragraph deals with the adoption of foreign children. Here the committee makes the following recommendation:

We would be opposed to any measures which would encourage or facilitate trafficking in children from foreign countries for adoption purposes.

This is a very sensible and very proper line of approach for the committee. It is true that children in other countries may be in urgent need of attention and in urgent need of care, but it is important that in so far as children would be adopted by people in this country that it should come as a result of real, genuine contact with that country and contact with the parents or the guardians of the children in that country. The creation of a market, so to speak, in adoptive children is not one which we should recommend. The suggestion in the report is that where a foreign child is to be adopted it should be done through a registered adoption agency, society or health board which adequately meets the exceptional circumstances in which the adoption of a foreign child may be called for and permitted.

I would like to refer to paragraph 4.25 of the report which also merits our consideration and it is one which gives rise to a considerable difficulty and that is the age of adoptive parents. It is right and proper that persons should have reached the age of 21 years before they would be eligible to be considered suitable for adoption. I note that they make that recommendation and I support it irrespective of the change which has now taken place in the age of majority. They recommend that both parents should have reached the age of 21 years and that is very sensible. It is when you come to the upper age limit that the problem arises. It is important that there should not be too big a gap but the establishment of an inflexible rule where parents who have reached 40 years of age should as a result of that fact be ineligible for adoption does not take into account the range of individual circumstances and, indeed, the range of ages of parents which include quite a number of fathers who are over 40 years of age and, indeed, a substantial number of mothers who are over 40 years also. While it is right and proper that most people who adopt children should be in their twenties and thirties it is important that we should not create a statutory bar in this regard.

Paragraph 9.18 of the report is one to which I would also like to refer briefly. This paragraph deals with the question of the adoption court. We will have so many courts eventually that between the adoption court, the family court, the small claims courts and various specialists, and the employment appeal tribunal that eventually the law will be broken up into small categories. I do not think that the adoption court should be presided over by a single judge. The balance which having more than one judge, or more than one adjudicator, gives is more important than the administrative convenience which appears to be the main reason that the committee have decided to recommend that the adoption procedure should be presided over by a single judge.

Finally, we come to the very difficult area of the right of the child to know its parents. This is all dealt with in chapter 12. The general philosophical approach is correct, that the child should have the maximum amount of information with regard, first of all, to the fact that he is adopted. That is a generally accepted point of view now. We would have to give very serious and extra consideration to the identification by children of the parents or parent of the adopted children if they have expressly expressed the wish not to be identified. Here you have a conflict of rights; the right, on the one hand, of the child to know that it is adopted and the right of the parent, who in the meantime may have built up a totally different kind of life, and the adoption might have given that parent the right and the opportunity of building up that different kind of life.

It is important that a person's privacy should also be recognised. In all the circumstances if a conflict exists, the right of the parent to privacy should be paramount in this regard. While obviously different rules would have to apply for cases in which the consent was given prior to this, there should be no question in those cases of disclosing who the parent is even in respect of future cases. I do not think we should allow unwed mothers — because that is basically what it will be — of children who are subsequently adopted, to be expected to live with the possibility that they will be exposed in 20 years time when the person wants to find out who the natural parents are.

In all the circumstances, the right to know is a limited right. It must be limited in some way. I recommend that the suggestion of the committee in that regard should be viewed with considerable reservation.

Having said all that, it is right to say that the report of the Review Committee on Adoption Law is a welcome addition to our store of knowledge in this regard. It makes very positive recommendations. The people who worked on it are to be highly commended. The time has now come for some standing committee of this House, whether it is a legislation committee or some other committee of this House, to examine the updating, in a non-political and non-party way, of the adoption laws so that we can move forward in the future with a common all-party approach on this vital matter.

Minister for Health (Mr. B. Desmond)

This motion, in my view, merits the attention and support of every Member of this House. I am very pleased to have the opportunity to hear the views of Members of the Seanad in advance of finalising my legislative proposals on this subject.

The report is of exceptional importance and is part of a process which was initiated some years ago. The aim of that process is to unify responsibility for the health and general welfare of children in the Department of Health. This has been universally welcomed as a sensible move and the Department of Health and myself as Minister have now assumed responsibility for all those children's services which can usefully be centralised under one ministerial control.

I received responsibility for adoption services in 1983 from my colleague, the Minister for Justice. It soon became apparent in the Department of Health and to me that, with the experience of 30 years of adoption and over 30,000 adoptions, this was a particularly opportune moment to thoroughly examine the whole adoption process. I established the review committee and asked them to investigate the adoption services and make recommendations for their improvement.

I have already placed on record, and I do so here again, my appreciation of the valuable work of the review committee. They produced a first-class report covering all aspects of the adoption services, making many recommendations and all in excellent time. On receiving the report, I indicated my acceptance of its recommendations in the main. This is not to say that there may not be some changes in emphasis in the implementation of the recommendations. However, taken together, the proposals provide invaluable guidance in the difficult task of drafting new adoption legislation.

I agree with Senators that there must be new adoption legislation. It is unacceptable, for instance, that children, abandoned or neglected by their natural parents, can be denied an upbringing in a family setting through adoption, simply because their natural parents, who have lost all interest in their children, are still alive. The present law, leaving aside a technicality, is that only orphans and illegitimate children can be adopted.

One of the main recommendations of the review committee is that all children should be eligible for adoption. I support that recommendation and I am glad to see that it finds favour with Members of this House who have spoken on this motion. The report points out that this proposal carries with it constitutional implications, and I am seeking advice of the Attorney General on this at present. That process is now almost completed. It has been a very complex consultation.

Another proposal with far-reaching consequences and over which, too, there hangs some Consitutional doubts, is that, in certain exceptional circumstances, consent to placement for adoption could be dispensed with. I do not propose to go into the Constitutional implications of this question because I am seeking detailed advice on the issue. However, I would like to remind the House of the compelling reason for this recommendation. There are, at this moment, children in care whose parents know little and care less about their welfare, but who would be unwilling for their own reasons, to consent to their placement for adoption. This proposal seeks to provide a mechanism, only to be used in the most exceptional of circumstances, whereby these children can be given the chance of a happy family life.

While I am on the subject of consent to adoption, I must mention an important recommendation of the review committee, namely, that consent to adoption should be irrevocable. I strongly support this proposal which would put an end to much heart-searching, indecision and uncertainty. I believe that this would be in everyone's interest.

Senator Robinson has expressed some unease with the review committee's recommendation to give a natural mother, who has not formally consented to adoption, a right to reclaim her child up to three months after placement with the prospective adopters. After this she would have to go through the courts if she wanted the return of her child. Senator Robinson was concerned that, although giving an automatic right to the natural mother, once the initial three months of the placement had passed the "onus", as Senator Robinson referred to it, would transfer to the natural mother and the scales suddenly become weighted in favour of the prospective adopters.

While I accept that the recommendation could possibly be perceived in this way, I would nevertheless hasten to point out that it considerably strengthens the hand of the natural mother in this position. At the moment she does not have any guarantee of the return of her child, irrespective of the circumstances, and must undertake court proceedings in all instances, with the major uncertainty that entails.

The review committee felt that the welfare of the child, which must be the chief consideration, called for recognition of the bonding between child and prospective adoptive parents and stipulation of a point beyond which the child could not be removed without full independent consideration of all the circumstances. I must say that I am inclined to agree with this line of argument but, as I made it clear in the Dáil on the Children (Care and Protection) Bill, I am always ready to consider constructive proposals in this area.

The introduction of an irrevocable consent would demand a very high quality of counselling, especially for natural mothers, by those working in the adoption services. The review committee consider that, quite simply, there are too many adoption agencies to deal with the relatively small number of about 600 children now been presented annually for adoption. The inevitable result is that some of the smaller societies are involved in so few adoption cases that full time, or even adequate part time, professional service can be provided only with difficulty and at a very high cost in financial and voluntary terms.

I am not for one moment questioning the well-meaning work of these societies, but good intentions are not enough. The report found a need for greater professionalism in the adoption services, particularly since it is envisaged the adoption agencies providing in the future a full range of counselling services to natural mothers and adopters. I am quite sure that the implementation of the report's recommendations in this area, many of which do not require statutory change, will bring about a noticeable improvement in the performance of adoption agencies.

I have also taken careful note of Senator Magner's contribution on the difficulty which prospective adopters of a minority religion or no religion can experience in trying to adopt a child.

I now want to turn to the question of the adoption court. The report recommends the formation of a new adoption authority, to be called the Adoption Court, to function as a seperate and distinct part of the High Court. This is a radical proposal. It involves the creation of a special court the jurisdiction of which could be such as to involve not only adoption matters but all issues involving the custody or guardianship of children involved in adoption applications. The review body put forward a well argued case for it and it will receive the serious consideration of the Government.

The report also deals with the difficult question of an adopted person's right to information on his origins. Under present law it is almost impossible for an adopted person to discover the identity of his or her natural parents if he or she should set out to do so. The adoption process itself has been built on a foundation of secrecy and anonymity, with the identity of the natural mother a closely guarded secret. The review committee recomended that a more open system should operate in future. They decided by a majority decision, to recommend that in all future adoptions — here I would stress future adoptions — an adoptee should have the right of access to his original birth certificate on reaching the age of 18 years. They also recommend, again by a majority decision, against making this provision in any way retrospective. That these are the only non-unanimous decisions in the report is an indication of the sensitive nature of this issue. On balance, I am inclined to agree with the majority view of the review committee and I believe that their recommendations are sensible and would be accepted as reasonable by most people.

I have dealt in my reply with some of the main points of this very excellent report. Indeed, I am very glad of the opportunity afforded me to speak on this subject and the serious issues involved and to listen to the detailed views of Members of this House. I would like to assure Members that I have taken on board their views and I look forward to discussing this issue in far greater detail when adoption legislation, based on the report, comes before this House. I want to assure Senators that I will be doing my utmost, in consultation with the Attorney General and the approval of the Government, to bring forward this legislation as a matter of urgency. I look forward to bringing it before the House in due course.

Mrs. McGuinness

I should like to start, in replying to this debate on the motion, by thanking, first of all, Senator Robinson who proposed the motion on my behalf. Unfortunately, I was abroad at the time the motion was proposed. As Senator Robinson said, I was uncontactable, which was true. I am most grateful to her for having so competently proposed it. I would also thank the Minister for his courtesy in coming into the House and making his views clear to the House on the implementation of the report. As I said earlier this afternoon in connection with the report of the Working Party on Women's Rights, very often the crunch issue in these circumstances is the issue of implementation. It is certainly very encouraging for Senator Robinson and myself to have the Minister come in and showing, so clearly, that his intention is to implement the recommendations and to deal with the matter as quickly as possible. Indeed, some of the problems that have arisen in the adoption field are problems that are fairly long-standing and certainly were well to the fore even at the time when I was a member of the Adoption Board some years ago, and have continued to be so in the issues that arise before the courts at present and the issues that arise within the deliberations of the Adoption Board.

The Minister and the Senators who have spoken on this motion have mostly touched on the main problems that arise. I would like to refer to what I see as the main problems and then speak a little about the recommendations made by the committee, whom I compliment on their report. The report is a very excellent report. The main thing now is to have their recommendations implemented.

First of all, there is the question of elegibility, both of children and parents. Here I would go back to what Senator O'Leary has described as the basic policy decision as to whether we really want children in these circumstances to be adopted rather than to be kept by single parents. While I appreciate very much what Senator O'Leary said, part of our difficulty is that it is difficult to reach correct balance in this situation, where you have a balance between the rights of adopters, the rights of natural mothers and the rights of children. Clearly we all would prefer, as the review committee have suggested, that the rights of children should be first in this area. While we agree on this, that does not mean that adoptive parents and natural parents have not got rights also.

One of the most difficult issues that has been before the Adoption Board, before any Minister for Health who is dealing with this, before the committee and, indeed, before the courts regularly, is the balance of these rights. While I understand what Senator O'Leary is saying about adoption being the best solution in many cases, the problem is that it is very difficult to make a general rule in this situation and very often one must judge in the individual case. One of our difficulties in this is that there has been a lack of research into the results of adoption in this country.

Some years ago, when I was a member of the Adoption Board, there was a concrete proposal for research into the results of adoption and we asked a number of adoptive parents would they be willing to take part in giving information for such research. The replies we got were extremely encouraging. They were all willing to answer questions and to take part in such research. The rationale they gave was that if this would help other adopters and above all, if this would help children they would be delighted to take part in it. For some reason, which I am not clearly aware of, this research was never carried out. Before we make a decision as to whether adoption, or staying with their natural mother, is the best for these children, we need to carry out the basic research into the outcome of adoption. I recommend that this be done.

With regard to eligibility, practically every speaker has referred to the problem of legitimate children who have been abandoned by their parents, or who are not cared for by their parents. Undoubtedly one of the really crunch issues here is that legitimate children in certain circumstances should be available for adoption so that these children may be given the right to a normal family life.

I would go along with the report, with the Minister and with what everyone else who has said that in certain well defined cases legitimate children should certainly be eligible for adoption. As the report has said, this gives rise to constitutional issues. Perhaps it gives rise to them even more in the train of a recent decision in the Supreme Court in an adoption case where the natural parents had married subsequent to the placement for adoption but prior to the adoption order, and where the constitutional rights of the married family were very much emphasised. Clearly, before the Minister can reach any decision about whether this legislation can be brought in without a constitutional referendum, he will have to study, with the assistance of the Attorney General, the Supreme Court judgment in this case.

It may need a constitutional referendum. If it does, I urge that such a referendum should take place. I really regret that the opportunity was not taken when we had a former referendum on adoption to bring in a clause which would cover this situation because, undoubtedly, in the present situation there are adoptive parents available for the children who are eligible but the children who are ineligible are denied their right to have a normal family life. This is something that must be attended to.

The second main item to which I should like to draw attention — indeed this was referred to by Senator Robinson, the Minister and other speakers — is the standard of adoption practised. I can only say that I go along very much with what is said in the report and what has been said by the Minister about this. We have long had a problem about varying standards in adoption societies. Nobody is suggesting that anyone running an adoption society is deliberately operating low standards but, with the number of children available and the number of adoptions that take place, it simply is not possible for the very small societies to provide the sort of standards that are needed. Standards in placement, in assessment of possible adopters and so on, are of vital importance because, when those standards drop below a certain level, later we get problems about the making of the adoption order, the consent of the mother, and so on.

It is absolutely essential that the standards of adoption societies should be a matter for statutory regulation. We have long had what is described as a sort of voluntary regulation system which has worked to a certain extent. Even with all the goodwill in the world I do not feel it can work properly, I urge that the recommendations in the report be brought in as quickly as possible in this area. Again, it may not require much in the way of legislation but it is an essential part of the matter.

Another area where problems arise frequently is the area of consent, the consent of the natural mother and the way in which this operates. At present the real problem is that the natural mother signs the consent to place her child for adoption and at that time it is generally known as form ten. At a later stage she is asked to make what is called the final consent and she signs a form and an affidavit giving final consent. In fact this is not the final consent in the sense that she still has, theoretically, the right to change her mind until the day the adoption order is made. In effect, this leaves the natural mother in a state of indecision and agonising, deciding, deciding and deciding again right until the time the adoption order is made.

I welcome the recommendation in the committee's report that there should be a cut-off point in this, that there should not be this open-ended business of the natural mother not being in a position to make a final decision until the actual adoption order is made. This is the situation that has occurred in all the applications to the High Court under section 3 of the 1974 Adoption Act. Here again we get into the question of the balance of rights between the natural mother and the adoptive parents. The rights of the child must be paramount.

Senator Robinson had certain worries about this, and in a sense I share her worries. At the same time, the period recommended by the committee is probably about the right one in which the mother has a right to reclaim her child. The present situation is that there has been a sort of swing in the balance of rights. Up to the 1974 Act the natural mother had always the right to reclaim and in a sense the rights of the adopters and the child were lesser rights. Since the 1974 Act and because of the way in which the 1974 Act has been operated, very often the natural mother has had few rights and even if the child was being placed for a very short time she could face great difficulty. If the adopters make an application under section 3 to the High Court, she can find it very difficult to reclaim her child. The recommendations of the committee here are quite reasonable.

The fourth difficult area is the right to know. The Minister, Senator O'Leary, Senator Robinson and others have referred to this. As the Minister has said, it is clearly a sensitive area in that it was the only area in the report on which a consensus could not be reached. I very much appreciate the difficulties outlined by Senator O'Leary. This is something of which anybody who has worked with the adoption board would be conscious. It is very difficult for a natural mother who was assured of confidentiality at the early stage to have her new life changed by the reappearance at a later stage of the child she had placed for adoption. My feeling is that the majority of the committee were right to say it would be very difficult to do this in a retrospective fashion, that one would have to do it from here on out, saying to the natural mother: "This right will be given to the child and you must respect it".

Mr. O'Leary

That would stop future adoptions. It would kill the whole system.

Mrs. McGuinness

Senator O'Leary is perhaps wrong in thinking that this is the way in which all adoptions are now arranged because there has been a marked change in adoption practice in recent years and quite a number of societies make the natural mother known to the adoptive parents. They meet and discuss the matter before the adoption takes place. I would prefer to see things moving in this area. In the past we have always gone in for a very closed kind of adoption with nobody knowing anything about anything. That is not necessarily the case, in adoptions in other jurisdictions and in other eras. We have had very open kinds of adoption just as we have had very open kinds of fosterage, say, in old Irish law situations. I would prefer to see the development of a more open type of adoption with more contact between the natural mother and the adopters. There have been a few cases recently where, in settlements in the High Court, there has been continuing access by the natural mother to the adopted child, even after the adoption order. It is worth looking at that.

We should try to create a more open sort of adoption and not hide the fact that the girl has had a child and has had it adopted. She should not have to pretend for the rest of her life that this episode never happened. People's attitudes to unmarried mothers are changing and the unmarried mother need not necessarily consider any longer that this is something she must hide. Therefore, if we bring in this legislation in the future it need not necessarily kill off the system of adoption, if we adapt our system of adoption to suit it.

I have not got a great deal of time available to me, but I would like to refer to the business about the adoption court. It is a pity to divide the law up into a lot of little boxes as it were. I would suggest that the adoption court could form an integral part of a family court situation and the recommendations of this committee come very close to the recommendations of the Joint Committee on Marriage Breakdown about a family court and the need for advisers and so on. I hope that the adoption court will in the end form part of an integrated family court system and therefore it would not be so much divided up into little boxes and therefore I think that the recommendation of the committee in that field could be carried out in that way.

There are a couple of things that I would like to mention that perhaps are not referred to in the report. First of all there is the possibility of a second adoption relating to the same child, which can occur. In our present situation you can have a position where a natural mother will adopt her own child singly in order to give the child a legitimate birth certificate and for various other reasons which seem good to her. If she then married and the man whom she married would like to become in a real sense the father of the child a second adoption order cannot be made and I would suggest that this is something that should be considered, that in this type of case a second adoption order should be allowed so as to allow the husband to become father of the child in a real sense. Again this can happen in cases where, for instance, if the natural mother had died and the natural father had adopted the child and if he remarries there cannot be a second adoption order. It is possible to look at this and see if a second adoption order provision would be suitable in this type of case.

Again, there is the question of religion. Senator Magner has referred to this and when we think about this we will always have to think about the whole history of adoption. All the Churches at the time of the introduction of adoption — and after all, the original debate on adoption in the other House was the occasion of the first using of the famous phrase about the "belt of a crozier"— were inclined to feel that adoption would be used as a method of proselytising children. Since 1952 we have had well over 30 years experience in adoption and it is quite clear that no adoption society and no adoption authority have been using this as a method of proselytisation and we can very well forget about this fear. I appreciate what Senator Magner said, being a member of a minority religion myself, about the difficulties that he outlines about members of minority religion. This also applies to people who, for one reason or another, describe themselves as being of no religion. At present under the 1974 Act the mother has, as it were, to express a preference with regard to religion and perhaps it might be better if the mother were asked rather than what is her preference if she has any preference with regard to the religion of the adopters. Then she could be left in a position where her main decision is to choose the best parents for her child without first saying, "They may or they may not be the best parents for my child but they must have a certain religion".

The difficulty of this is that in most cases the natural mother is being advised by an adoption society which itself has a religious orientation whether Catholic or Protestant, and it may be very difficult for the mother to say to the person counselling her, "I am not basically particularly worried about the religion of the adopters provided they are going to do the best for my child". This is a whole area where difficulties continue to arise. Also, it is true to say that couples of mixed religion and couples with no religion feel that at present societies are overwhelmingly denominationally controlled and that they may not have a chance if they apply for adoption and they just may not apply.

A number of societies are, as it were, under the aegis of health boards. I would ask the Minister who has the over-riding responsibility for health boards to look at the situation and make sure that where a society is, so to speak, part of the health board, they do not become denominationally orientated or, if they are already so, that this should be changed because quite often the so called health board society will have inherited the sort of religious orientation that was pre-1984 and we need to look at that again. Another thing is that at present there is an excellent welfare staff working with the Adoption Board and whatever areas of criticism there may have been about the Adoption Board or the adoption societies none of these has been directed towards the actual welfare staff of the Adoption Board. If we are to change the system and bring in an adoption court I feel that we should try, if possible, to integrate the present adoption welfare people who have vast experience in the field, who really give an excellent service. I believe that they should be integrated into the new system.

The age of adoptive parents was referred to and their eligibility and I agree with Senator O'Leary that a sort of statutory cut-off around about 40 is not desirable in the sense that basically one would not want to place children with adoptive parents who are beyond the age of natural childbirth, shall we say, because it is difficult enough for any of us to bridge the generation gap with our children and if adoptive parents are too old it would be even more difficult for them to bridge the generation gap. Nevertheless, this is an area where judgment must be exercised in each case as it comes up. We all know that some people may appear quite young at 50 whereas others appear quite old at 25 and I would think that this is a situation where we do not need a statutory cut-off, where we need a discretionary area.

Acting Chairman (Mr. Daly)

As the Senator has only 15 minutes and she has now exceeded her time, will the House agree to give her a few more minutes if she wants to?

Professor Dooge

Certainly, particularly in view of the fact that due to circumstances that were outside her control she, as the original proposer of the motion, did not have advantage of the longer time of the opening speech.

Mrs. McGuinness

I would like to thank the House very much. I will finish quite soon. There is not a great deal more that I wish to say. Just under the heading of "Miscellaneous Issues" which the review committee dealt with, they suggested that it should no longer be necessary to publish the making of an adoption order in Iris Oifigiúil. This may seem a small matter but it is amazing how much it affects adoptive parents and how strongly they feel about it. It is something that they really dislike, having this thing published in Iris Oifigiúil. I know, other Senators know and I am sure a lot of the public know that very few people might actually look through these lists with any curiosity or try to trace who is who in them. Nevertheless, I am delighted to see that this recommendation is made because I do not see what purpose is served by the publication and I think that the ending of it would be an excellent thing. Also, the recommendations with regard to the making of a will where a reference to the child of an adopter should be deemed to include an adopted child is important because at present it is only if the will is made after the making of an adoption order that it is deemed to include the child. This could give rise to difficulty because people may not be aware that they need to remake their wills after the making of an adoption order.

The question of recognition of adoption orders is important. There are international conventions on this and I see no reason why Ireland should not subscribe to them. We do now and again get problems. I can recall one in particular where a serving member of the Army had adopted an orphan child who had been placed with them in Israel when they were serving there. The question arose when the Department of Defence would not pay the ordinary children's allowance on the man's salary until he got an Irish adoption order.

The standards of the Israeli courts were similar to our own and the way in which the adoption order was carried out in Israel was exactly parallel to what we would have done ourselves. There was really no reason, legally speaking, why we should not recognise the Israeli adoption order but the Adoption Board were constrained to remake the adoption order because of the financial difficulty of the people concerned. We should iron out this position in legislation and try to have a reasonable system of recognition of adoption orders made abroad.

That more or less covers what I have to say on the report and I would again like to thank Senator Robinson for introducing it and the Senators who have contributed to the debate and the Minister for having indicated so clearly that he too wishes to have the recommendations of the review committee adopted and put into legislation. I can only say that I hope that he will be able to do so without long delay. Thank you.

Question put and agreed to.

The Seanad adjourned at 7.45 p.m. until 10.30 a.m. on Wednesday, 3 July 1985.