The primary purpose of this Bill is to enable the adoption of certain categories of children, mainly legitimate children with a parent or parents alive, who are not eligible for adoption under present laws. It is very important social legislation with which I am very happy to be associated.
The House will be aware that my predecessor as Minister for Health, Deputy Barry Desmond, circulated a Bill along these lines late last year. It had not reached the stage of discussion and lapsed with the dissolution of the Dáil. Deputy Alan Shatter subsequently introduced a Private Members' Bill, which had the same objective, but this was rejected by Dáil Éireann on its second reading last month.
I had no objection in principle to the aims of those Bills. But the Government's view, is and has been, that as this is a very important legislative initiative which must be handled cautiously because of the constitutional implications, it would be more appropriate that its preparation and guidance through the Oireachtas should be the responsibility of the Government. I should like to take this opportunity to make it clear that it has not been necessary for the Opposition to push me into action.
As soon as I took up office as Minister I initiated a review of my predecessor's Bill in the light of comments and recommendations made following its publication by members of the public and the various child care interests. This Bill represents the outcome of that review. While its basic principles are similar to both Deputy Desmond's and Deputy Shatter's proposals, there are some important differences in the proposed procedures for applying for an adoption order in respect of the children concerned. This Bill also gives greater emphasis to the role of the health board and deals differently with the question of court costs.
I should now like to take the House through the arguments for this important legislative development and to outline the provisions of the Bill. The first Adoption Act was enacted in this country in 1952. The essential concept of legal adoption provided for under the legislation was an arrangement involving the permanent transfer of parental rights and duties from the natural parents to adoptive parents. It terminated the child's legal relationship with his natural parents and created a new legal parent-child relationship with his adoptive parents. Subsequent Acts, in 1964,1974 and 1976 amended and extended the Principal Act while retaining this fundamental concept.
Under the current statutes an adoption order can be made only in respect of a child who (i) is an orphan; or (ii) is illegitimate; or (iii) has been legitimated by the marriage of his parents after his birth but whose birth has not been reregistered. The child's mother or guardian or any person having control over him must consent to his adoption. Two consents are involved. There must be an initial consent to placing the child for adoption before the adoption procedure can begin. The second and final consent must be given after the child has been placed with prospective adoptive parents and before the Adoption Board can make an adoption order. This latter consent can be dispensed with in certain circumstances by direction of the High Court, for example, where the court considers that the mother is unreasonably withholding her consent and where the court believes that the child has bonded with his proposed adoptive parents.
Children who are not eligible for adoption at the moment are: a legitimate child with a parent or parents alive; an illegitimate child whose mother has not given the initial consent to his placement for adoption; a foundling infant. Even if there is a reasonable assumption that the child is illegitimate it cannot be adopted if the mother cannot be found to give the essential consent to its placement for adoption.
Since the Adoption Act, 1952, came into operation, a total of 34,617 adoption orders have been made up to 31 December 1986. There has been a decline in the number of adoptions in recent years despite the increase in the number of illegitimate births. For example, 800 adoption orders were made in 1986 compared to 1,400 in 1975. More and more single mothers are opting to keep their children. Society is obviously moving away from the attitude which views single mothers and their babies as outcasts although recent statements by bodies involved with single mothers suggest that we cannot be too complacent in this regard.
There have been many calls over the years for changes in the law to enable the adoption of children born within marriage who, for varying reasons, have been separated from or abandoned by parents who are unlikely to resume their parental role. Most of these children would be under the care of health boards either with foster parents or in children's residential homes. Some of them would have been placed by their parents with friends or relatives and might not have come to the attention of the public child care services.
The case for amending legislation has been highlighted in more recent times by the Review Committee on Adoption Services who reported in 1984. The members of that committee consisted of a cross-section of persons involved with the child care and adoption services, and included health administrators, social workers, an adoptive parent, legal experts, a child psychiatrist and a priest. The committee unanimously recommended a change in the law which would enable all children deprived of normal family life to be eligible for adoption irrespective of the marital status of their parents. This recommendation received widespread support from bodies and individuals interested in child care including the Central Council of Catholic Adoption Societies, the Adoptive Parents Association, Cherish and the Irish Association of Social Workers. I should mention that Ireland is the only country in Western Europe where legitimate children, with a parent or parents alive, cannot be adopted. In Northern Ireland such children have been adoptable since 1929.
This Bill sets out to remedy that situation in so far as it can be done within the constraints of the Constitution. Its provisions will permit, in certain severely restricted circumstances, the adoption of children, whether legitimate or illegitimate, without requiring the consent of their parents to placement for adoption. It will allow such adoptions only in those instances where for a continuous period of not less than 12 months immediately before the application, the parents, for physical and moral reasons, have failed in their duty towards the child. Furthermore, it will be necessary for the High Court to be satisfied that it is likely that such failure will continue without interruption until the child attains the age of 18 years; and that such failure constitutes an abandonment on the part of the parents of all parental rights — whether under the Constitution or otherwise — with respect to the child. The question of what constitutes a failure of duty will be a matter for the High Court to determine in each particular instance.
The Bill has been drafted in close accord with Article 42.5 of the Constitution which permits, indeed requires, the State to supply the place of the parents in certain exceptional circumstances. I have followed the advice of the Attorney General in relation to the precise wording of the entire Bill. I am satisfied that, should it be referred to the Supreme Court to be tested, there are cogent and substantial grounds for arguing successfully in favour of its constitutionality.
The procedure for the adoption of a child covered by the new legislation may be summarised as follows: Foster parents who have had custody of the child in their home for a continuous period of not less than 12 months, will be entitled to make an application to the Adoption Board for an adoption order in respect of the child.
The Adoption Board will examine the application using the standard criteria that apply to all adoption applications, that is, they will look at the eligibility of the proposed adoptive parents, their suitability as adopters, whether the child has successfully bonded with them and so on.
The Adoption Board will be required to obtain the views of the appropriate health board as to the child's need for adoption. If the Adoption Board are satisfied that an adoption order would be appropriate, they will make a declaration stating that they would be prepared to make such an order if the High Court agrees. The proposed adoptive parents may then request the appropriate health board to apply to the High Court on their behalf for an order authorising the adoption.
In considering such an application the High Court must satisfy itself on a number of grounds. They are:
(a) that for a continuous period of not less than 12 months immediately preceding the application the natural parents have, for physical or moral reasons, failed in their duty towards the child;
(b) that it is likely that such failure will continue without interruption until the child is 18 years of age;
(c) that such failure constitutes an abandonment on the part of the parent of all parental rights;
(d) that by virtue of such failure the State should supply the place of the parents;
(e) that the child has been in the custody of and has had a home with the applicant for a continuous period of not less than 12 months;
(f) that the adoption of the child by the applicant is the most appropriate way to supply the place of the parents.
If the court is satisfied on all these counts and having had due regard to the rights of the natural parents and of the child itself under the Constitution, it may make an order authorising the Adoption Board to proceed to make an adoption order in respect of the child.
The court shall not make an order without having heard the natural parents of the child concerned unless they refuse to be heard or cannot be found. Furthermore, the court must, in so far as is practicable, give consideration to the views of the child.
When the court makes an order, the Adoption Board are free to complete the adoption process and the child becomes a permanent member of the adoptive family.
The Bill permits a health board to decline to make an application to the High Court even though the prospective adoptive parents have obtained a declaration from the Adoption Board that they would be prepared to make an adoption order.
It is desirable that the health board should have this option. The Adoption Board will have looked at the case from the point-of-view of the suitability of the applicants to adopt the child concerned. However, it will not be a matter for the Adoption Board to consider whether the natural parents can be regarded as having given up their parental rights. This is strictly a matter for the High Court. The health board may, however, be of the view that it would not be possible, or would be very difficult, to establish that the parents have given up their rights and may therefore decline to bring the matter to the High Court. I would hope that this situation would not often arise and that, in practice, applications which receive the preliminary approval of the Adoption Board would always have a least a reasonable chance of securing the subsequent agreement of the High Court.
In order to ensure that no prospective adoptive parents should feel that they have been unreasonably treated as a result of the refusal, or failure, of a health board to initiate a High Court application, the Bill enables prospective adopters themselves to apply to the High Court when a health board for whatever reason, does not do so. Where this happens the parents themselves will have to bear the costs if their application fails. Where they succeed the health board, who will have been made a party to the application, will be responsible for the costs if the applicants are not covered by the free legal aid scheme.
I appreciate that some Senators might be concerned about the somewhat cumbersome procedures which the Bill proposes, in particular, the need to involve both the Adoption Board and the High Court.
The Adoption Board are a quasi-judicial body established to make adoption orders in relation to applications about which there is no dispute or where the courts have ruled that an order may be made. The board do not, however, have the status to deal with such a fundamental issue as determining that natural parents have failed in their duties towards their child and that it would be proper to transfer parental rights and responsibilities for that child to another family. The High Court only can determine such an issue. On the other hand the only body with the necessary machinery to investigate the suitability of adoptive parents is the Adoption Board. For these reasons we have had to associate the powers and procedures of both the High Court and the Adoption Board in relation to the adoption of children to which the provision of this Bill relates.
It would, in my view, be preferable if we had a family court to deal, inter alia, with all aspects of proposed adoptions. If we had such a court it would avoid the need for the two applications envisaged in this legislation. I would hope that we would have such a specially constituted court in the future but for the moment we are restricted to the existing legal machinery.
I would now like to deal with the question of responsibility for costs arising from applications under the Bill. The court proceedings will involve costs. No fees are charged by the Adoption Board. The Bill circulated by the previous Administration in 1986 made no reference to costs. It relied on an administrative arrangement under which the Attorney General's office meets costs in disputed adoption cases where the court so recommends. Following publication of the 1986 Bill there was criticism by child care groups and adoptive parents of the failure to provide formally for costs. Deputy Shatter's Bill proposed an arrangment involving the payment by the Adoption Board of costs incurred by the proposed adoptive parents, though not the natural parents, in cases where the applicant acted in good faith and in the best interests of the child.
Having considered the matter carefully I think that the interests of natural parents, adoptive parents and taxpayers generally can best be served by the provisions that I have included in the present Bill. These are contained in subsections (4) and (5) of section 3 and envisage free legal aid being availed of, where they are eligible for it, by the applicants for the adoption order and by the natural parents. Where free legal aid is not provided the court may make on order for the payment of costs by the health board. As I have already said, applicants who initiate their own High Court proceedings under section 3 (1) (b) because the health board has declined to do so and who fail in their application will have to meet their own costs.
Another provision in the Bill to which I would like to draw attention is section 5 which defines a "child" for the purposes of adoption as any person under the age of 18 years. This definition will if the Bill is enacted, apply to all children being adopted and not merely those being brought in under the proposals in the Bill.
Under the present law the age limit for adoption is 21 years. The change now proposed will bring the position into line with the new age of majority — 18 years. A married person will be eligible as now, for adoption. Under the previous Administration's Bill married persons were excluded. In the light of representations made to me I consider that we should maintain the status quo. While the adoption of married persons under 18 is likely to be a rare event, I feel we should not rule it out, particularly since the proposals in this Bill will tend to make older children available for adoption. In a very small number of cases they may be married and may, for personal reasons, wish to consolidate their links through adoption with the family with which they grew up.
In considering the impact of the provision that I am now proposing, I would like to stress that our child care policy is unequivocally aimed at keeping families together. Nothing in this Bill will weaken that basic recognition of the standing and importance of the family in our society. The Bill offers no threat whatsoever to the generality of families. It is concerned only with situations where for all practical purposes the family as a unit has ceased to exist and where the child is being denied the right to grow up in a family setting. Children who are in care due to temporary family difficulties will not become subject to adoption. Neither is it the intention that parents who are selfish or indifferent to the needs of their children will be facilitated in handing their children over for adoption. Such an idea would be alien to our family traditions and values, although it is a feature of adoption practice in other countries.
I would like to make it perfectly clear, as Minister for Health, that my policy and that of my Department is that it is generally in the best interests of a child to be brought up in his or her own family. Nothing in our present policies or in these proposals diminishes that principle. Every thoughtful and informed person involved with the child care services recognises the incomparable benefits of a family unbringing.
The main thrust of future developments will therefore be to provide family support services which will prevent or diminish the need for parents to have to part with their children on either a short-term or long-term basis. Unfortunately, there are, and will continue to be, unhappy, abused and neglected children from inadequate and broken families with multiple problems. The State, representing our collective responsibility as citizens, has an obligation to seek a secure and happier future for such children.
The Bill is not intended in any way to deter families in genuine difficulty seeking to have their children cared for temporarily either in a residential setting or with a foster family. The proposed legislation will be appropriate only in a small number of cases where all hopes of reconciliation between a child and his parents have been lost. Where a child has no prospect of returning to his natural parents, his foster parents will now have an opportunity of offering the child integration within their own family. It will, I would stress, be a matter for the court to satisfy itself that there is no likelihood of the natural parents resuming their parental duties to the child.
The most recent statistics in respect of children in care which are available to me relate to the year ended 31 December, 1983. However, I have no reason to believe that any significant changes have occurred in the intervening period in the numbers involved. There were 2,534 children in care on 31 December, 1983. They were either in residential care, foster care or under supervision at home. Of these, 897 were illegitimate; the remaining 1,637 were either legitimate or extra-marital.
It is the aim and the experience of our child care services that the great majority of children in care will eventually be reunited with their parents as a result of changes in family circumstances or improved family services. However, some children will not be so fortunate. These are likely to be children who have been in care for a number of years. They may have been abandoned, neglected, physically or sexually abused or their families may have broken up altogether. Sadly, some such children are likely to be left in care permanently.
There were 439 children — 244 illegitimate, 174 legitimate and 21 extra marital — in long term foster care for five years or longer on 31 December 1983. Without a detailed investigation of each individual case I could not attempt to give a close estimate of the number of them likely to be suitable for adoption. However it is certain that some of these children would be in a position to secure a permanent, stable environment following the implementation of this legislation.
There are also children in residential homes who may benefit from the provisions of the new Bill. There were 332 children — 265 legitimate, 64 illegitimate and 3 extra-marital — in long term residential care for five years or longer on 31 December 1983 who were admitted because they had been abandoned, neglected, physically or sexually abused or came from one parent families unable to cope or from families affected by serious marital disharmony. The majority of children in long term residential care will, I would hope, be reunited with their parents. Some children who will not be reunited should eventually benefit by the provisions of this Bill. They will, of course, have to be transferred initially to foster care for a continuous period of 12 months before they can be considered for adoption.
I would stress that I am fully conscious that many parents have their children placed by health boards in care, either residential or foster care, because of emotional, financial and environmental difficulties often of a temporary nature. The solution to the difficulties of these families does not lie in supplying a second set of parents through the adoption process but rather in providing intensive support for the parents and children. I shall use every opportunity possible to strengthen the community care services despite the present financial restrictions on health spending. Furthermore, there are sufficient safeguards in the legislation now proposed to ensure that where there is a prospect of the family being reunited the children concerned will not be subject to adoption.
It is, however, an unavoidable fact that there is a certain number of children in care because they have been abandoned, ill-treated or neglected by parents who are most unlikely ever to seek their return. It is our duty to ensure that these children have an opportunity to benefit from a full and happy life in another family. I believe the public at large will so wish and I believe it would also be the wish of this House. I hope that this legislation will be seen by every person concerned with the practice of humanity as a further important step towards reducing the injustices and deprivations suffered by children such as these.
I commend the Bill to the House.
