Seanad Éireann díospóireacht -
Wednesday, 26 May 2004

Vol. 176 No. 17

Adoptive Leave Bill 2004: Committee Stage (Resumed).

SECTION 7.

Debate resumed on amendment No. 5:

In page 5, line 35, after "meetings" to insert ", including any overseas meetings, familiarisation visits, interviews or assessments,".

—(Senator Terry).

Mr. D. McDowell

Perhaps we have cause to be grateful that the Minister is bound by social partnership because the argument he has used could be deployed against providing any measure of adoptive leave at all. It could be used against providing any measure of leave or holidays. It could certainly have been deployed against the extension of paid and unpaid leave introduced following the review a number of years ago.

We now have a total of almost six months leave, paid and unpaid. Some is paid by the State, frequently topped up by employers. I am sure Senator Terry would be happy to limit the addition of leave to a maximum of two or three weeks to cover the possibility of having to make foreign trips in order to complete the legal process of adoption. That would hardly place an undue burden on an employer.

People do not make these visits wilfully. Adoptive parents would be happy to complete this process in a day or two if they could. They are obliged, because of the legal procedures properly insisted upon by Ireland and the country from which the child is being adopted, to go to there for a couple of weeks. Adding this period to the six months leave already provided for would not impose the type of burden to which the Minister referred.

Senator Terry's question is important. I do not have up to date figures for adoptions in Ireland and for adoptions by Irish parents abroad. It would not surprise me to learn that the proportion of adoptions which takes place abroad is high. If we are introducing a measure which is intended to improve the lot of adoptive parents we should not exclude the large percentage of them who go abroad to adopt children, at least as regards this provision. If the Minister has those figures I would be interested to hear them.

Mr. J. Walsh

It is amazing what one can draw up on to support an argument. A short while ago Senator Terry made a strong case for equality between adoptive and natural parents. She now argues for inequality. She asks that people who are adopting children be allowed time off work for overseas meetings, familiarisation visits, interviews or assessments.

Ms Terry

They are all part of the adoption process.

Mr. J. Walsh

How could such a system function practically? Adoptive parents will travel abroad for genuine reasons, but how could an employer control a system which allows an employee to travel anywhere in the world to examine adoption systems and see if he or she could adopt a baby? Such a system would be wide open to abuse and would be uncontrollable.

This is not a serious amendment. Next week we may be presented with a proposal to bring the rights of natural parents into line by obliging employers to give paid leave to people who want to go on conception holidays. The mind boggles. We must be practical. Until now, adoptive parents have had no paid time off.

Ms Terry

They have had time off.

Mr. J. Walsh

The Minister is bringing their rights into line with those of natural parents. This is a progressive measure. It is not necessary to go beyond that point.

It is open to employers to give adoptive leave. Many employers do so, by agreement with their employees, if they can afford to do it. However, we must be mindful of the many employers who have neither the financial nor the human resources to take on additional obligations and impositions.

The Bill is a progressive measure and we should support it, but common sense must be applied. The measures taken by the Minister are common sense. The Opposition's proposals have no connection with reality.

Mr. D. McDowell

There is a temptation to chuckle, as some did, when Senator Walsh makes certain comments. Many adoptive parents would find offensive the notion that they go away to enjoy a few glasses of Chianti while checking out India, China or Siberia and considering whether they might like to adopt a child. That is not the way it happens. Adoptive parents undergo a serious, lengthy and tedious procedure in their dealings with authorities in these countries. They then have to undergo a process of familiarising themselves with the legal system and perhaps meeting the child and with individuals, the equivalent perhaps of our social workers, who check them out. That is no holiday. The notion that a person wishing to go to India on holidays would tell his or her boss he or she was going there to check out adoption procedures is unfounded. It does not happen that way.

Mr. J. Walsh

Not at the moment.

Mr. D. McDowell

People in this type of situation do not consider it funny. Those who opt for foreign adoption are frequently people who have tried to adopt Irish children or to have children naturally. The notion that people would choose to say they are going to a particular country to find out about foreign adoptions as an excuse to go on a holiday is offensive. While I know Senator Walsh did not intend his remarks to be taken that way, they could be interpreted that way by some people.

I sense the Minister is minded to refuse this amendment. However, perhaps he might provide us with the statistics in terms of the number of foreign adoptions vis-à-vis Irish adoptions.

Minister for Justice, Equality and Law Reform (Mr. M. McDowell)

I am minded to refuse the amendment. Whatever merit such a scheme would have and subject to whatever controls would have to be put in place, there is no reason in the world to suggest an employer should bear this cost. It is one thing for the Labour Party or Senator Terry to suggest the Exchequer should fund exploratory visits abroad with a view to adoption. However, it is difficult to tell small and medium sized business employers that they must bear the cost of paying the wages of such a person and his or her replacement because legislators who were not party to the agreement on which this Bill is based believe it would be a nice thing to happen from the point of view of would-be adopters. The amendment suggests that rather than put our hands in our pockets collectively, the employer should bear the cost involved.

Senator McDowell is correct in that at present there is no suggestion that people tell their employer they are off to a far and distant land with a view to adoption to disguise they are going on holiday. However, if one had a system whereby the employer was obliged to pay for such investigative time off, he or she would then be legitimately entitled to seek proof of the process and to ask, based on the fact that he or she is obliged to pay for such time off and for the employee's substitute, how long it will take the person to familiarise himself or herself with India and so on. I do not believe that is a reasonable course of action to propose.

Mr. D. McDowell

What does the Minister believe is reasonable?

Mr. M. McDowell

The amendment is not reasonable. We cannot visit on employers running small companies in competition with others, in addition to the liabilities such competition imposes, an obligation to bear the expense of an employee and his or her substitute while the employee in a year prior to adoption makes a number of visits abroad for a number of weeks each time. If we want to go down that road, the matter will have to be dealt with in social welfare legislation. With the greatest of respect, the issue has nothing to do with adoptive leave legislation.

Senator Terry and Senator McDowell asked for figures on adopters. I do not have with me figures which apply to all adoptions. The information I have is Department of Social and Family Affairs adoptive benefit statistics since 1995. Not everybody in receipt of foreign adoption benefit is covered. The number of adoptive benefit recipients were: 1995, 52; 1996, 45; 1997, 64; 1998, 88; 1999, 110; 2000, 105; 2001, 110; 2002, 215; and 2003, 183. The number has grown by a multiple of three or four since 1995. I do not believe, for the reasons I mentioned, that is the full picture.

Ms Terry

How many are foreign adoptions and Irish adoptions?

Mr. M. McDowell

I do not know.

Ms Terry

That is important information.

Mr. M. McDowell

I presume the statistics do not differentiate between the two. I am unable to give that information to the Senator.

Ms Terry

That information is relevant to today's debate.

Mr. M. McDowell

Yes, it is, and my next point is also relevant to today's debate. I can understand a proposal that the Exchequer subsidise trips abroad for the purpose of adoption if that proposal is to be part of the social welfare system, be it wise or unwise bearing in mind the other areas to which the money could be addressed. What I do not understand is a proposal that we should decide the employer is to be liable for such trips plus the expense of a temporary employee. That is not fair or reasonable. It is not a fair incident of employment that it be done at the employer's expense.

Ms Terry

It is important we are given the statistics regarding the number of foreign adoptions vis-à-vis Irish adoptions. It is obvious from the statistics given that the number of adoptions has grown considerably since 1995. However, very few Irish babies have been adopted into Irish families since 1995 because, thankfully, mothers in difficult situations are now able to keep their babies. The increase in the number of adoptions must refer to foreign adoptions. That must be the case because we know, anecdotally, that there is not a great number of Irish babies available for adoption.

Perhaps the amendment seeks too much and in that regard could be looked at again. However, I would have expected a recognition from the Minister of the large number of foreign adoptions taking place. I have used the word "large" although that cannot be confirmed today. Perhaps before we meet again the Minister will confirm how many foreign adoptions have taken place. I agree with many of the points made by Senator McDowell.

In listening to this discussion some of the things said — I include the Minister in that regard — have set me back 20 years. I was not a Member of this House then and obviously do not remember what was said when issues such as maternity leave and other entitlements given to women to encourage them back into the workforce were being discussed. I accept such entitlements are given at a cost. We also have to accept that somebody has to bear the brunt when dealing with families and children. In trying to strike a balance between the cost of such entitlements to parents and employers, we must also recognise that this is something we have to do. I will look again at this issue before Report Stage and hope also the Minister will reconsider it to see if a compromise can be reached.

We spoke earlier of the two weeks pre-placement provision. Perhaps such time could be used to allow parents take unpaid leave to do the necessary work for completion of the adoption.

The Minister is not giving due recognition to foreign adoptions.

Mr. J. Walsh

I refer to Senator McDowell's comments. He acknowledged that I did not intend to be critical of adoptive parents and their present practices. Not alone did I not intend to be critical, but I did not say that. Senator Terry was present in the House and I am not sure if Senator McDowell was present when in the debate on Second Stage I fully recognised the role played by adoptive parents in society. I acknowledge the points made by the Opposition that more adoptions will be of children from overseas. The amendment proposes time off work for anyone who informs his employer he is travelling abroad to familiarise himself with adoption procedures abroad or for adoption interviews or assessments. This will be wide open to abuse and I have no doubt it would be abused. It would be very bad law and it would be very easy for this House to impose that provision on employers. Nobody could deny it is an impractical issue which could not be controlled. This House should not make such laws.

There is an issue of equity between adoptive and natural parents. The proposal in the Government amendment is one which can at least be controlled. The time off allowed can be validated and verified by employers. Many parents of adopted children have travelled abroad at a cost to themselves. Any State grant should be given subsequent to rather than prior to the adoption. Many social welfare regulations are abused by certain sections. We should not pass laws which we regard as being wide open to the possibility of abuse. I oppose this amendment and I see no merit in it.

Mr. D. McDowell

I wish to say a final word on the matter. I will not revisit the issue with Senator Walsh. There is another point that should be made. Foreign adoption as an option is really only available to people who have some measure of means. It is in most cases pretty expensive although most of that expense is not something that is imposed by this country or has anything to do with it, good, bad or indifferent; it is imposed by the authorities in the country where the adoption is taking place. Foreign adoption is a significant financial burden. We have a responsibility to do what little we can to ensure that childless couples wishing to adopt abroad and who are not as moneyed as those who currently do so, will have some little benefit conferred upon them. At the very least we should not actively put hurdles in their path.

It will come as no surprise to the Minister that I disagree with him about imposing the cost on employers. We should not become bogged down on this issue now. When an employer takes on an employee, he does not just take on the responsibility of paying for work done; it is a longer and more complicated contract than that. That is what the panoply of our welfare legislation for the past 30 years is all about. The Minister and I would disagree on that and certainly on how the cost should be imposed, but that is not really the point.

The central thrust of Senator Terry's amendment should not be lost. Adoptive parents or putative adoptive parents should at least be entitled to time off, at the very least on unpaid leave. I urge the Minister to consider this proposal between now and Report Stage and before it comes before the Dáil.

Mr. M. McDowell

I sometimes wonder how any of these things would work in practice. I know that would-be adopters of foreign children make considerable sacrifices, sometimes unsuccessfully, to go to places and return with nothing or return with arrangements which have fallen through or whatever. I do not underestimate the sacrifices they make and I salute them. However, I am not dealing here with a clause of the social welfare legislation to create a new allowance for would-be adopters equivalent to a kind of pre-maternity allowance for a natural couple. This amendment proposes to make it part of the contract of employment that the employer must pay the wages of employees if they travel abroad for periods of time which could be weeks on a number of occasions and employ someone to stand in for them. That is a serious issue from the point of view of an employer.

I throw into the equation, if I may, that this would apply to reasonably well-to-do people on reasonable salaries. An individual who was making his or her way as, for instance, a self-employed painter, would have none of this. The Exchequer would say, "We do not do that kind of thing; we only do it for employees and we are only concerned with making employers liable. We do not give any help ourselves to people who are either out of employment, on the one hand, or alternatively, self-employed on the other." We should remember the realities.

I agree that self-employed people have some advantages in the way things are in this country but one of the disadvantages is that if they decide to go to India to adopt a child, not merely in many cases is it entirely at their own expense, but it is at grave risk to the viability of their business and the like. Likewise, for people who are not in employment, this provision would be of no assistance to them. An unemployed couple who want to adopt a child would be in the worst of all positions because they would be given no assistance from the State and see better-off people having as an incident of their employment a significant subsidy to go abroad on visits preparatory to adoption.

This is a case of a bridge too far. It may well be, as Senator Terry hints, that in ten years' time, someone will read my speech and say this was a little flint-hearted and flint-faced of me. However, I am here in my own time, talking about my own time and talking about employers and employees of my own time.

Mr. D. McDowell

The Minister would regard that as a compliment anyway.

Mr. M. McDowell

I remind Senator Terry to think back 20 years ago to 1983 to 1984 when this country was going through one of its worst crises ever with mass unemployment and emigration, huge taxation and the IMF knocking on our door. They were not exactly halcyon days. The success of the economy has improved things immensely and has created the leeway in which we can have minimum wages of €7 an hour. All the advances we have made in large measure are based on not losing the run of ourselves and not making employment something that is highly taxed and highly expensive in international terms. We need only look back 20 years to see how employment can be driven from the economy and how people can be driven out of employment and onto welfare if the system does not keep some handle on basic economic realities.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Government amendment No. 7:

In page 7, to delete line 7 and substitute the following:

"meetings to be attended.

(4) References in this section to pre-adoption classes and meetings are references to such classes and meetings held within the State.'.".

An Cathaoirleach

This amendment has already been discussed with amendment No. 5.

Amendment put and declared carried.

Question put: "That section 7, as amended, stand part of the Bill."

The Committee divided: Tá, 26; Níl, 16.

Tá

• Bohan, Eddie.
• Brady, Cyprian.
• Brennan, Michael.
• Callanan, Peter.
• Daly, Brendan.
• Dardis, John.
• Dooley, Timmy.
• Fitzgerald, Liam.
• Glynn, Camillus.
• Hanafin, John.
• Kett, Tony.
• Kitt, Michael P.
• Leyden, Terry.
• Lydon, Donal J.
• MacSharry, Marc.
• Mansergh, Martin.
• Moylan, Pat.
• O’Brien, Francis.
• Ó Murchú, Labhrás.
• O’Rourke, Mary.
• Ormonde, Ann.
• Phelan, Kieran.
• Scanlon, Eamon.
• Walsh, Jim.
• White, Mary M.
• Wilson, Diarmuid.

Níl

• Bannon, James.
• Bradford, Paul.
• Browne, Fergal.
• Burke, Paddy.
• Burke, Ulick.
• Coghlan, Paul.
• Cummins, Maurice.
• Feighan, Frank.
• Finucane, Michael.
• Hayes, Brian.
• McDowell, Derek.
• Norris, David.
• O’Toole, Joe.
• Phelan, John.
• Ross, Shane.
• Terry, Sheila.

Tellers: Tá, Senators Dardis and Moylan; Níl, Senators U. Burke and Terry.

Question declared carried.

Progress reported; Committee to sit again.