Select Committee on Children and Youth Affairs díospóireacht -
Wednesday, 16 Nov 2016

Adoption (Amendment) Bill 2016: Committee Stage

Chairman

At the request of the broadcasting and recording services, all attendees are asked to ensure their mobile phones are turned off completely - or switched to airplane, safe or flight modes, depending on the device - for the duration of the meeting. It is not sufficient for attendees to put their phones on silent mode as this will maintain the level of interference with the broadcasting system.

I welcome the Minister for Children and Youth Affairs, Deputy Zappone, and the officials from the Department of Children and Youth Affairs. The primary purpose of the Adoption (Amendment) Bill 2016 is to give legislative effect to the Thirty-first Amendment of the Constitution (Children) Act 2012. The important Bill before the committee makes further provision for the protection of children's rights and enhances the State's responsibility to take child protection measures. Among other provisions, it allows married parents to place a child for adoption where both parents consent, amends the criteria under which the High Court can make an adoption order in the case of parental failure and brings forward the right of civil partners and cohabiting couples to adopt.

Before we commence, I would like to draw the attention of members to some typographical errors on the numbered list of amendments. The section heading on page 2 should read "section 12". The section heading on page 3 should read "section 13". The section heading on page 4 should read "section 26". The section heading on page 5 should read "section 36". The section heading on page 6 should read "section 41". For the assistance of the committee, a corrected reprint of the amendment list has been circulated to members. It is my intention for the committee to conclude its consideration of the Bill on Committee Stage this morning. Is that agreed? Agreed. I refer members to the grouping of amendments for the purposes of debate.

Sections 1 and 2 agreed to.

SECTION 3

Chairman

As amendments Nos. 1, 3 and 11 are related, they may be discussed together.

Deputy Donnchadh Ó Laoghaire

I move amendment No. 1:

In page 6, between lines 18 and 19, to insert the following:

"(e) a birth grandparent, siblings, or other blood relative, who has played a formative, active and beneficial role in the life of that child, as may be determined by the Authority;".

I ask the Chairman to bear with me while I try to find my notes.

Chairman

Take your time, Deputy.

Deputy Donnchadh Ó Laoghaire

Would it be possible for us to return to this amendment when I find my notes?

Chairman

If we move on, we cannot return to it.

Deputy Donnchadh Ó Laoghaire

Okay. I am proposing an amendment to the definition of "relevant non-guardian" in section 3 of this Bill, which replaces section 3 of the Adoption Act 2010. The intention behind this amendment is to ensure grandparents, siblings and others who have played a significant role in the life of a child will be in a position to be considered if that child is being adopted. It is not difficult to imagine the kind of people who might be affected by this measure. I am making this proposal because, in some circumstances, the child might have had a better relationship with "a birth grandparent, siblings, or other blood relative". The child's relationship with his or her parents might have been more difficult or potentially abusive.

In such circumstances, the relationship with the grandparent, sibling or other relative may not have been difficult and the relative may have raised the child for a period in his or her young life.

The amendment does not provide that every person who is a relative should be considered a relevant non-guardian. I underline that the proposal is very much qualified and an additional three-part test would apply. The person must be considered to have played a "formative", "active" and "beneficial" role in the life of the child and it is at the discretion of the Adoption Authority of Ireland to make this determination. The purpose of the amendment is to ensure that all persons who have had a significant role in a child's life, in accordance with the definition set out in subsections (a), (b), (c) and (d), will be considered relevant non-guardians and consulted appropriately.

Amendment No. 2 is related, while amendments Nos. 3 and 11 are consequential. Amendment No. 2 is relevant because it is important that where consultation does not take place, reasons should be given outlining why a person who could be considered a relevant non-guardian has not been consulted. It is not necessary to provide a detailed statement. The reason for the amendments is to ensure that persons who have played a significant role in the life of the child, were part of his or her family and were actively, formatively, positively or beneficially involved in raising him or her would be consulted. Such consultation can be set aside or not factored in by the authority as it sees fit but such persons should at least be provided with an opportunity to engage in consultation.

Deputy Jan O'Sullivan

The Deputy's amendments appear to be reasonable. I am interested in hearing the Minister's response. We are all familiar with cases in which the persons described would be highly relevant in the life of the child.

Deputy Anne Rabbitte

I would also like to hear the Minister's response.

Minister for Children and Youth Affairs (Deputy Katherine Zappone)

The Deputy’s amendment proposes to insert "a birth grandparent, siblings, or other blood relative, who has played a formative, active and beneficial role in the life of that child, as may be determined by the Authority" into the Bill’s definition of the term "relevant non-guardian". I would like to clarify for the Deputy that where such a person has guardianship rights in accordance with subsections (c) and (d) of the definition of "relevant non-guardian", they are already encompassed within the definition, and the Bill provides that they must be consulted on the proposed adoption of a child. Alternatively, these persons may have been appointed as a guardian under the Guardianship of Infants Act and in those circumstances their consent to the adoption must be obtained.

Where such a person does not have guardianship rights and responsibilities in respect of the child, he or she may, nevertheless, be entitled to be heard by the authority in the context of an application for an adoption order in respect of the child. Section 43 of the Adoption Act 2010 Act provides for the hearing of applications for an adoption order and sets out the persons who are entitled to be heard at such a hearing. The persons entitled to be heard include a relative and any another person whom the authority, in its discretion, decides to hear. This would clearly include a person in the category referred to by the Deputy. For these reasons, I do not propose to accept this amendment.

Deputy Donnchadh Ó Laoghaire

While I am reasonably satisfied with the Minister's response, I will examine the relevant section of the 2010 Act and return to the issue on Report Stage, if necessary.

Amendment, by leave, withdrawn.

Section 3 agreed to.

SECTION 4

Question proposed: "That section 4 stand part of the Bill."

Deputy Donnchadh Ó Laoghaire

On section 4, two of my amendments have been ruled out of order. I understand and accept the reasons for doing so in the case of one of my amendments because it involves a charge on the Exchequer but-----

Chairman

The Deputy cannot speak to the amendments when they have been disallowed.

Deputy Donnchadh Ó Laoghaire

I am speaking to the section.

Chairman

That is fine, provided the Deputy does not speak to the amendments.

Deputy Donnchadh Ó Laoghaire

I apologise; I am referring to amendments to section 9.

Question put and agreed to.

Sections 5 and 6 agreed to.

SECTION 7

Deputy Donnchadh Ó Laoghaire

I move amendment No. 2:

In page 8, between lines 7 and 8, to insert the following:

"(3) Where Túsla does not consult with any of the relevant non guardians, it shall provide a written reason why it did not.".

As the amendment is related to amendment No. 1, I will withdraw it pending further consideration.

Amendment No. 3 not moved.

Amendment, by leave, withdrawn.

Section 7 agreed to.

Section 8 agreed to.

SECTION 9

Chairman

Amendment Nos. 4 and 5 have been ruled out of order.

Amendments Nos. 4 and 5 not moved.

Chairman

Does Deputy Ó Laoghaire wish to speak to the section?

Deputy Donnchadh Ó Laoghaire

Yes.

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

Deputy Donnchadh Ó Laoghaire

I accept the decision to rule out of order amendment No. 4, which I understand involves a charge on the Exchequer. However, I do not agree with the decision to rule amendment No. 4 out of order. I am not sure if I should pursue the matter with the committee secretariat or the Bills Office. In any event, I will refer to one phrase used in the section about which I have a concern. The use of the phrase "In so far as practicable" in subsection (2) is not necessary in the sense that the paragraph reads perfectly well without its inclusion. As such, the inclusion of these five words amounts to an unnecessary qualification of the right of a child who is capable of formulating views to have those views given due weight. There is no basis for making this right dependent on whether it is practicable. Usually, this phrase is used in respect of budgetary constraints or administrative difficulties. In this instance, it is being inserted to qualify what should be considered a fundamental right, namely, the right of a child, where he or she is capable of forming a view and a court is capable of ascertaining what the child's views are, to have his or her view given weight. The issue of practicality should not arise as this is a fundamental and central right. The qualification is unnecessary.

Deputy Katherine Zappone

While I appreciate the Deputy's view, I do not agree with it. It is useful to have this statement in place. As the Deputy will be aware, this is largely a technical phrase used to ensure that the implementation of the constitutional referendum is best placed within our law. It also refers to the adoption authorities in that respect. We acknowledge and recognise their role and responsibilities in this regard. While I respect the Deputy's point of view, the use of this phrase is helpful to ensure we put in place the best possible law at this time.

It may be of assistance to note that I am in consultation with the Office of the Parliamentary Counsel on the text of an amendment to this section regarding the best interests and views of the child. I intend to introduce the amendment on Report Stage on 30 November. Perhaps we can reconsider the matter at that stage.

Deputy Jan O'Sullivan

I will just pursue the matter a little. The Minister told us in a briefing that she intended to bring forward an amendment in that regard. That is welcome. We understand the purpose of it. On Report Stage could the Minister give us some information on the point raised in one of the amendments that was ruled out of order about the rights of a child to have a guardian ad litem in such situations? I do not expect her to answer now but it would be useful if we knew whether a guardian ad litem applies in such cases.

Deputy Katherine Zappone

Of course.

Chairman

The Minister will provide clarity on the matter. Is it now agreed that section 9 stand part of the Bill?

Deputy Donnchadh Ó Laoghaire

I am sorry but I wish to make another brief comment. If the Minister is coming back with an additional amendment I will wait to see what it contains but I wish to tease out my point. To follow that to its logical conclusion then it is possible that there would be circumstances in which the court might decide it was not practicable to hear the voice of the child, despite the fact that the child was capable of forming a view and the court was capable of ascertaining it. I do not understand why that should be the case or why that qualification should exist. I would appreciate it were the Minister to give the matter some thought and, in the context of the amendment she is bringing forward, were she to reconsider the formulation and wording.

Deputy Katherine Zappone

Okay, I thank the Deputy. I will do that.

Question put and agreed to.

Sections 10 and 11 agreed to.

SECTION 12

Chairman

Amendment No. 6 is in the name of Deputy Ó Laoghaire. Amendments Nos. 7 and 8 are related and I propose that amendments Nos. 6, 7 and 8 may be discussed together. Is that agreed? Agreed.

Deputy Donnchadh Ó Laoghaire

I move amendment No. 6:

In page 11, lines 27 to 31, to delete all words from and including “the” in line 27 down to and including line 31 and substitute the following:

“the child resides in the State, and”.

Unfortunately I have left my notes behind. The amendments are related. There is somewhat of a difficulty in having such a sharp cut-off at the age of 18 in terms of whether somebody can be adopted. The amendment I propose would give the person who would be the subject of the adoption, and the family, some leeway in that regard and that would be at the discretion of the Adoption Authority of Ireland. I do not ask that the removal of the upper age should be considered, although certain provisions to that effect exist in some jurisdictions, for example, France. It probably seems counter-intuitive to some that adoption should be possible after the age of 18 but it is a long process and in the 2010 Act and some of these provisions there are timeframes involved that result in a situation whereby it might not be possible to conclude the process. For example, a child could be brought into a family at the age of 15, 16 or 17 and due to the timeframes involved and administrative delays the process might not be concluded by the time the child reaches 18. That is relevant and important for a variety of reasons, in particular property rights. If what might otherwise be an adoptive parent were to die intestate that would have serious implications for what an individual might otherwise be entitled to inherit. Even if the person were to die testate it would mean that the young person would be entitled to much lower tax relief on any inheritance he or she would receive. It would also make a difference in relation to dependent child allowances and other social welfare payments. There must be some flexibility. The sharp cut-off of 18 years potentially creates difficulty for families and individuals who would otherwise be the subject of an adoption. There must be flexibility to allow for the fact that there might have been some difficulty or delay in processing an adoption after the age of 18 is reached.

Deputy Katherine Zappone

Adoption is a means of alternative care for a child where his or her family is unable to provide such care. There are no proposals to extend adoption to persons other than children, that is, to persons over 18 years of age. Such a policy change would require careful consideration, legal advice and Government approval. The primary purpose of the Adoption (Amendment) Bill is to give effect to Article 42A of the Constitution in so far as it relates to adoption and the Bill provides for the adoption of any child, regardless of the marital status of his or her parents and that in any matter, application or proceedings under the Adoption Act 2010, before the Adoption Authority or any court, the court or the authority as the case may be, shall regard the best interests of the child as the paramount consideration in the resolution of such matter, and in respect of any child who is capable of forming his or her own views, ascertain the child’s views and such views shall be given due weight having regard to the age and the maturity of the child. Adoption is a child protection intervention. The focus of it is to protect a child by providing a secure and stable environment and to provide for the child’s safety and well-being during childhood. A child, for the purpose of adoption, is a person under the age of 18 years of age so I do not intend to accept the amendment.

Deputy Donnchadh Ó Laoghaire

I have a few comments to make. The amendment does not relate to children. I accept all the points made about the best interests of the child and his or her protection and that is the primary purpose of adoption.

To offer an analogy, this is similar to the importance of considering the welfare of the child after he or she ceases to be a child such as, for example, the importance of an aftercare plan for a child that is in care. The concern does not relate to child welfare or safety. That is a paramount consideration but it does not mean property rights or entitlements they might enjoy otherwise, on reaching the age of 18, should be set aside. There is clear potential for that to happen. The Bill’s provisions set out the timeframe involved. I agree that adoption should not be a simple or quick process but it is entirely possible - I am sure it does happen - that it can be delayed until after the child reaches the age of 18. In that context there are rights and entitlements to which that adult would otherwise have benefitted if the adoption had been processed and I do not think they should be set aside. That would potentially make a significant difference to their lives in terms of inheritance, social protection payments, grants and other issues and the situation also has implications for the parents. While I accept the points the Minister made about the purpose of adoption generally the amendment relates to adoption in terms of a person’s rights after they have ceased to be a child and it is important that the issue is addressed.

Deputy Katherine Zappone

I thank the Deputy. To be perfectly clear, it would be a major policy change to introduce what the Deputy is proposing. Such a policy change would require careful consideration, legal advice and Government approval. Applications for adoption where the child is 16 years or older are prioritised by both Tusla and the Adoption Authority of Ireland. The Department has not received any requests from either the Adoption Authority of Ireland or the Child and Family Agency in that regard. I do not intend to accept the amendment.

At this stage of our exchange it seems to me that the Deputy is identifying that if the adoption process is some way delayed there ought to be some consideration in terms of adoption for a person over 18, as distinct from all of the other reasons he identified initially. Is that correct?

Deputy Donnchadh Ó Laoghaire

Yes, that is the primary reason, namely, if an adoption process had been set in train but was not completed.

Deputy Katherine Zappone

As I indicated, priority is given to cases where children are older to ensure the adoption process is completed as quickly as possible.

We have not had any requests in this regard from either the Adoption Authority or the Child and Family Agency. I am not aware of any cases where the child was prevented in that regard.

Deputy Donnchadh Ó Laoghaire

I ask the Minister to give it further consideration.

Deputy Katherine Zappone

If the Deputy has any further information, I would welcome hearing it. I will think about it again and we can discuss it again.

Deputy Donnchadh Ó Laoghaire

I do not believe that in legislation, we should just assume that because the authority is going to prioritise, it necessarily resolves it. That is a matter of administration, resources and capacity. Perhaps it has been successful thus far. This relates to legal rights and entitlements and the capacity and ability of the authority to show some flexibility. I will return to it on Report Stage. I will withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 7 and 8 not moved.

Section 12 agreed to.

Chairman

Amendment No. 9 has been ruled out of order.

Amendment No. 9 not moved.

SECTION 13

Deputy Katherine Zappone

I move amendment No. 10:

In page 12, to delete lines 16 and 17.

I am proposing to delete lines 16 and 17, of section 13 of the Bill which states "this section applies in respect of the adoption of a child by a person, other than a relevant non-guardian, of the child." Section 30 of the Adoption Act 2010 provides for consultation with the father of a child. Section 30(2) provides that in the circumstances where someone other than the father of a child is adopting the child, the father of that child must be consulted. The Adoption (Amendment) Bill 2016 will amend that section to reflect the need to consult with a relevant non-guardian, which means in respect of a child, a father of the child who is not a guardian of the child pursuant to the Act of 1964, a parent of the child under section 5 of the Children and Family Relationships Act 2015 who is not a guardian pursuant to the Act of 1964, a person who is appointed as a guardian of the child pursuant to section 6C of the Act of 1964 where subsection (9) of that section applies to that appointment but in respect of which the court has not made an order that the person enjoys the rights and responsibilities specified in subsection (11)(f) of that section or a person appointed by the court to be a temporary guardian of the child under section 6E of the Act of 1964. The proposed deletion of subsection (2) is required because, if the child is being adopted by a relevant non-guardian, consultation with other relevant non-guardians may still be required. On this basis, this provision is being deleted.

Amendment agreed to.

Amendment No. 11 not moved.

Section 13, as amended, agreed to.

Chairman

Amendments Nos. 12 and 13 have been ruled out of order.

Amendments Nos. 12 and 13 not moved.

Section 14 agreed to.

Sections 15 to 17, inclusive, agreed to.

SECTION 18

Deputy Donnchadh Ó Laoghaire

I move amendment No. 14:

In page 17, between lines 9 and 10, to insert the following:

"(7) The Minister shall provide by way of regulation for the circumstances under which this will apply.".".

I wish to get a response from the Minister. It seems quite open-ended in respect of the provision, which states:

The Authority, having regard to the particular circumstances of the case may accept an application for an adoption order in respect of a child notwithstanding that the child has not a home with the child's parent and that step parent, for a continuous period of not less than 2 years at the date of the application.

This may require additional regulations to specify "having regard to the particular circumstances". Essentially, I am just looking for a response and reassurance that there is adequate detail in preceding sections or sections in the 2010 Act which outline those particular circumstances.

Deputy Katherine Zappone

Section 18 of the Adoption (Amendment) Bill 2016 amends section 37 of the Adoption Act 2010 to provide that a couple who are civil partners of each other and a cohabiting couple and a step-parent are included in the categories of persons who may apply to the Child and Family Agency for an assessment of eligibility and suitability and for the issuance by the Adoption Authority of a declaration of eligibility and suitability in accordance with that assessment. The section also provides that a step-parent may adopt a child where that child has had a home with the child's parent and step-parent for a continuous period of not less than two years at the date of the application for the adoption order. It also provides that the Adoption Authority of Ireland has discretion around the making of an adoption order where a step-parent applies to adopt a child where the child has not had a home with the child's parent and step-parent for a continuous period of not less than two years. Provision is made for adoption in these circumstances in the primary legislation. Regulations are not required and on this basis, I do not intend to accept the proposed amendment.

Amendment, by leave, withdrawn.

Section 18 agreed to.

Sections 19 to 22, inclusive, agreed to.

Chairman

Amendments Nos. 15 and 16 have been ruled out of order because they involve a potential charge on revenue.

Amendments Nos. 15 and 16 not moved.

Section 23 agreed to.

Sections 24 and 25 agreed to.

NEW SECTION

Deputy Donnchadh Ó Laoghaire

I move amendment No. 17:

In page 20, between lines 18 and 19, to insert the following:

"Insertion of new section 58A into Principal Act

26. The Principal Act is amended by the insertion of the following new section:

"58A. A Child who has been adopted under the provisions of the Adoption Acts shall continue to be entitled to have access to his previous parents or guardians, or relevant non-guardians, prior to the adoption, should the child so wish, and provided that this is in the best interests of the child.".".

It is not difficult to imagine the circumstances under which this might apply. It is similar to the first amendment in some respects. A child may have had good relationships with other members of a family with which he or she previously resided. In most situations, an adoptive family will probably allow and facilitate access to a previous family, such as the parents themselves, where appropriate and where monitored and managed as appropriate, or grandparents, aunts, brothers or sisters. That will largely be the case but there does not appear to be any statutory basis for that child to have such access where he or she so desires. Obviously, this is the entire focus of this amendment and the legislation generally is based on the best interests of the child and the decisions and voice of the child. What I propose to do is ensure there is some statutory basis so that where it is in the best interests of the child and where that child so desires, he or she can continue to have access to his or her previous family, the family with which he or she lived or grandparents, brothers or sisters and that there is a statutory basis to ensure such children cannot be prevented from accessing those people who are so important in their lives by their adoptive parents who might not know their grandparents or brother or sister.

Deputy Katherine Zappone

I thank the Deputy. I appreciate very much the rationale and concern behind his proposal. What he says is true. I will outline why. Where a child has been adopted, he or she is considered with regard to the rights and duties of parents and children regarding each other as the child of the adopter or adopters. With respect to the child, the mother or guardian of the child and every relevant non-guardian of the child loses all parental rights and is freed from all parental duties in respect of the child. That is the law or statutory basis. Under current practice, however, there are often arrangements in place for ongoing contact between birth parents and adoptive parents and their families where there is agreement among the relevant parties. In addition, the Adoption (Information and Tracing) Bill will provide that the birth parent and adopted person can enter into arrangements regarding the sharing of information between both parties. On this basis, I do not intend to accept the proposed amendment.

Deputy Donnchadh Ó Laoghaire

I wish to tease this out a little further. I recognise that the birth parents no longer have any parental rights or duties but I am focusing on the rights of the child. The child has a past that cannot just be set aside. The fact that there appears to be no statutory right for the child is an issue. I am not necessarily thinking of the birth parents but other relatives with whom the child might have enjoyed a better relationship. If there is no statutory basis for the child to have access, we are relying entirely on good practice and, to an extent, the goodwill of the adoptive parents. Such goodwill probably exists in most circumstances but it does not necessarily exist. The adoptive parents may have legitimate fears, concerns and a sense of uncertainty over a person the child might be visiting or a person to whom the child is seeking to have access. What I propose would have to be managed in consultation with the family and social workers. The child should have a statutory right, where he or she so desires, to visit or gain access to the family with whom he or she lived previously or relatives.

Deputy Katherine Zappone

As the Deputy identified, there is no legal entitlement, for the reasons I have already identified. The current practice does go on. I have said that the adoption (information and tracing) Bill will allow for the birth parent and adopted person to enter into arrangements regarding the sharing of information between both parties. I hope this goes all or some of the way towards acknowledging the Deputy's concerns.

Deputy Jan O'Sullivan

The Minister said this issue may be addressed in the adoption (information and tracing) Bill. It is a question of the child's rights as opposed to entering into agreements that may not necessarily put the child in a very powerful position. We should tease this out with the Minister. I am not sure whether it can be done through the Bill before us. Perhaps it is a matter for the adoption (information and tracing) Bill.

Deputy Katherine Zappone

I accept that.

Deputy Jan O'Sullivan

An issue arises in terms of the child's right as opposed to that of the birth parents.

Deputy Donnchadh Ó Laoghaire

I accept what was said. I look forward to seeing the adoption (information and tracing) Bill. Generally, what we have been discussing arises where both people involved in any arrangement are adults. This is substantially about circumstances involving a child. In circumstances in which an adoptive parent, or, legally speaking, a parent, prevents a child who wants to visit a grandparent or brother from doing so, what recourse does the child have? As far as I can see, there is none.

Deputy Anne Rabbitte

I concur with the two previous speakers. The point is very well made by Deputy Ó Laoghaire. I cannot see where we are keeping the child and child's voice at the centre because they are being overruled by the adoptive parent. Am I correct in saying that? I acknowledge the Minister's statement that this will be dealt with in the adoption (information and tracing) Bill. Could we leave this and wait to see what will be in the other Bill? Is there any vision whereby we can be assured there is cover and protection for the child?

Deputy Katherine Zappone

The arrangements will apply only where there is agreement among all parties. We would have to accept that. If the Deputy is willing to withdraw the amendment, we will consider what is being raised and perhaps return to it on Report Stage.

Deputy Donnchadh Ó Laoghaire

I am satisfied to withdraw the amendment in those circumstances. The primary point is on the recourse the child has in the aforementioned circumstances.

Amendment, by leave, withdrawn.

Sections 26 to 35, inclusive, agreed to.

NEW SECTION

Deputy Jan O'Sullivan

I move amendment No. 18:

In page 22, between lines 27 and 28, to insert the following:

“Insertion of new section 89A into Principal Act

36. The Principal Act is amended by the insertion of the following:

“Adoption Information and Tracing Scheme

89A.(1) The Minister shall make a scheme (to be known as the Adoption Information and Tracing Scheme and in this section referred to as the ‘Scheme’) providing procedures for—

(a) the custody and preservation of adoption records,

(b) the creation of a Registry of Adoption Records,

(c) access to the Registry of Adoption Records by persons to whom the records relate, and

(d) the provision of an information and tracing service to facilitate information sharing and contact between adopted persons and their birth parents, and other persons.

(2) The Scheme may prescribe different rules and procedures, concerning information sharing and contact, in relation to—

(a) information provided to adopted persons where the adoption order was made before or after the commencement of this section,

(b) information provided to birth parents or adoptive parents in respect of adopted persons over or under 18 years of age, and

(c) information provided to relatives or to other persons.

(3) The Scheme shall respect the privacy of a person to whom an obligation of confidentiality, whether under an enactment or otherwise, is owed and shall require that information capable of leading to the identification of any such person is not disclosed without the consent of the person to whom it relates.

(4) The Scheme shall include provision and procedures relating to—

(a) informal adoptions,

(b) cases where false information was registered in relation to a birth, and

(c) intercountry adoptions.

(5) The Scheme may provide for offences relating to—

(a) the falsification, alteration or destruction of adoption records,

(b) false statements made for the purpose of obtaining adoption records, or in connection with the making of any application under the Scheme,

(c) the misuse of the adoption records of other persons, and

(d) the obstruction or impeding of the performance of functions, or the failure to comply with requirements lawfully imposed, under the Scheme,

and

may provide that a person who is guilty of any such offence is liable on summary conviction to a Class A fine, or to imprisonment for a term not exceeding 12 months, or to both.

(6) Without prejudice to the generality of the foregoing provisions of this section, the Scheme may include such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the Scheme.

(7) A Scheme made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the Scheme is passed by either such House within the next 21 days on which that House has sat after the Scheme is laid before it, the Scheme shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”.”.

I propose this amendment not out of distrust of the Minister. She has told us repeatedly that another Bill, on information and tracing, is due to be published quite soon. I tabled the amendment to continue to apply pressure and to ensure the legislation is published, as promised. The purpose of the amendment is to provide an enabling clause to allow the Minister to develop an information and tracing scheme. It is not detailed in the way primary legislation would be detailed. It is primarily designed to ensure that we continue to make the case for something that has long been called for by adopted persons. I refer in particular to their wish and, I believe, their right to have access to their birth certificates and other information with regard to their birth circumstances and family.

In proposing the amendment, I recognise that the Minister is likely to tell me she will publish the information and tracing Bill soon. If so, I welcome it. In discussing the previous amendment, we had already begun to talk about what is likely to be in the proposed legislation.

I stress the importance of consultation with adopted persons with regard to the information and tracing Bill because they have been lobbying for it for a very long time. From their experience, they know what they feel should be in the legislation. Their experience should be taken into account in the drafting of the legislation.

Deputy Katherine Zappone

I thank Deputy O'Sullivan. I understand and respect her reasons for tabling the amendment. It is important that she do so. In light of that, I will give a full response on her amendment proposing an information and tracing scheme.

In response to the Deputy's amendment on an information and tracing scheme, I will say a little about the Adoption (Information and Tracing) Bill which was circulated to Departments on Friday, 11 November, and will provide a statutory basis for the provision of information on both past and future adoptions. The Bill is intended to facilitate access to adoption information and operate on the basis of a presumption in favour of disclosing information in so far as it is legally and constitutionally possible to do so. It will provide clarity on the information that can be provided and the circumstances in which it can be provided.

The development of the Bill has presented complex constitutional and policy challenges in the delicate balancing of the right of an adopted person to his or her identity information, on the one hand, and the right to privacy of his or her birth parent, on the other. The Bill will provide that the Adoption Authority of Ireland will have overall responsibility for the safeguarding of adoption records, including information on informal adoptions and persons whose birth was incorrectly registered. All adoption records, currently held in a number of locations, will be transferred to the custody of the authority. The Bill will provide that the records are to be indexed and a searchable electronic database of the records will be created. The authority is to ensure all adoption records will be kept in a suitable and secure location, with access to be provided for a person to view his or her own records, where he or she has an entitlement under the Bill. The Bill will also provide that the concealment, destruction or falsification of a record will be an offence.

The Bill will provide for the Child and Family Agency to operate an information and tracing service. Where both parties consent, the agency will facilitate contact between the two parties. It will provide for structured and regulated access to information and tracing services for those affected by adoption, subject to informal arrangements or wrongful registrations.

The Bill will set out the information that can be provided and the circumstances in which it can be provided for adopted persons, birth parents, adoptive parents on behalf on an adopted child and relatives. It will also make provision for the release of information to persons who were subject to informal arrangements or wrongful registrations. A key provision of the Bill is to provide for a scheme under which the information required to obtain a birth certificate may be provided for an adopted person, subject to certain conditions. A copy of an adopted person's adoption order will also be provided, subject to the same conditions.

The Bill will also provide for information sharing between birth parents and adoptive parents in the case of a child who was adopted where both parties agree. It was originally intended to include provisions in the Bill for an information and tracing service to be provided for persons who were subject to an intercountry adoption. However, as work on the Bill progressed, a significant number of policy questions arose. They require careful consideration in the context of the 1993 Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption. A detailed analysis of the differing systems operating in sending countries is required. In addition, it is noted that in many such cases there is little additional information for persons subject to intercountry adoption over and above that in the possession of adoptive parents. Consequently, the provisions on the provision of information for persons subject to intercountry adoption were removed from the Bill. I am committed to developing policy and introducing legislation on this discrete matter as soon as possible.

The Joint Committee on Health and Children, in its pre-legislative scrutiny of the general scheme of the Bill, examined the heads of the Bill in November 2015. Following this examination, the committee indicated that there was a strong consensus among committee members that "the heads of Bill contain a considerable number of positive measures" and that the Bill would represent an "important milestone in adoption reform". In these circumstances, I respectfully believe the Deputy's concerns can be addressed most effectively by the pending legislation. A draft of the Bill was circulated to Departments on Friday last, 11 November, for observations. It is hoped to submit the Bill to the Government on 22 November to seek its approval to publish it. It will be published on 25 November, subject to Government approval. For these reasons, I do not intend to accept the proposed amendment.

The Deputy's final point was that representatives of adoptive persons had been invited to express their views during the pre-legislative scrutiny of the Bill undertaken by the committee. The report put together by the committee made a number of recommendations which had been put forward by stakeholders. It informed amendments to the general scheme of the Bill.

Deputy Jan O'Sullivan

I take it the Bill will be published on Friday week, which is not too far away. This is welcome, assuming that the Government will approve it. I thank the Minister for the information on what will be included in the Bill. I take it that it will contain the provisions put to the previous committee on which none of us, except possibly the Chairman, was a member. Will the Minister confirm this? Some people may be concerned about the removal of the section on intercountry adoptions, but the Minister has said she will be bringing forward discrete legislation to deal with that issue. We all want the legislation to take on board the views and experiences of those who have been waiting for it for a long time. On the assumption that the Bill will be published, I will withdraw the amendment. I do not know when Report Stage will be taken, but I may make a different decision at that stage.

Chairman

The Deputy is keeping her options open.

Amendment, by leave, withdrawn.

Sections 36 to 40, inclusive, agreed to.

Chairman

Amendment No. 19 to section 41 has been ruled out of order as it is not relevant to the provisions of the Bill and also involves a potential charge on Revenue.

Deputy Donnchadh Ó Laoghaire

I think I am required to make a quick comment if I am to table further amendments on Report Stage. Is that correct?

Chairman

Yes.

Deputy Donnchadh Ó Laoghaire

The sudden cut-off of the foster care allowance is difficult and problematic. The Minister should consider some form of transition payment once people have formally adopted. The two items which may be the subject of further amendments are the regulation of adoption agencies and permanent guardianship. I will refer to these matters in more detail at a later stage.

Deputy Katherine Zappone

I am considering bringing forward an amendment on Report Stage to section 2 concerning section 45 of the Adoption Act.

Amendment No. 19 not moved.

Section 41 agreed to.

Schedule agreed to.

Title agreed to.

Bill reported with amendments.