Deputies O'Sullivan and Shatter have made their points in regard to amendment 42. Does the Minister of State at the Department of Health and Children wish to respond?
Adoption Bill 2009: Committee Stage (Resumed).
SECTION 34.
Debate resumed on amendment No. 42:
In page 31, between lines 24 and 25, to insert the following subsection:
"(2) Where the application is by a natural parent or relative of the child, the Authority may decide to waive such of the provisions of this section as are unnecessary for the protection of the child's welfare.".
(Deputy Jan O'Sullivan)
I ask Deputies to refresh my memory.
I spoke about situations where a parent and his or her partner adopt their own child and would have to comply with all the strictures of the section. Some requirements should be waived in these circumstances. I am particularly concerned that parents would have to fulfil financial requirements where they are in effect adopting their own children.
We discussed this matter with the Adoption Board. I am not attributing to the board the view that the assessment of both natural and step-parent together is a requirement that has stood the test of time and has ensured excellent outcomes in step-parenting. As there is no compelling argument in favour of changing course at this stage, I am not inclined to accept the proposed amendment.
Is the amendment being pressed?
I will press it in light of the section's requirement of adequate financial means to support a child. If a natural parent and a step-parent are involved, finance should not be an impediment.
Amendment put and declared lost.
Question proposed: "That section 34 stand part of the Bill."
I want to raise an important issue pertaining to section 34. I fully support much of the section but I have concerns about certain aspects of it.
Subsection (b) links to subsection (a), which requires that where a couple are to adopt, the authority must ensure each party “is a suitable person to have parental rights and duties in respect of the child”. However, section (b) provides: ”without prejudice to the generality of paragraph (a), is of good moral character, in good health and of an age so that he or she has a reasonable expectation of being capable throughout the child’s childhood of....”. The section goes on to list a series of criteria.
We previously discussed the requirement of good health and I wish to raise one more issue in this regard. However, the major issue I wish to raise concerns the age requirement. I presume the Minister of State is familiar with the fact that the age of prospective adopters is a particularly difficult issue in light of the approach taken by the HSE social workers and the Adoption Board. There have been instances of people who are eminently suitable to adopt being ruled out on age grounds alone. This has taken place in circumstances where the age issues are of questionable sense. My experience of this derives from advising different individuals for many years wearing my legal hat. Such people have sought to deal with the adoption process and have been in receipt of draft reports from HSE social workers which, effectively, laud their parenting capacities. However, the usual conclusion in cases involving a couple older than 48 years of age, and certainly if the couple is older than 50 years even by one year, is that because of their age the HSE will not recommend them as suitable to adopt.
I have had experience of school teachers who have worked with children for many years and who, in their late 40s or early 50s, have concluded they will not marry but have sought to adopt. I have also encountered couples who have married in their 40s and who have been unsuccessful in having children. Among that group are husbands and wives who have sought to be assessed for adoption at an age between 45 and 48 but, because of the length of time it takes to get through the system, one or other parent may be older than 50 years when the report is finalised. Some of these reports have been truly bizarre. I recall one such report which applied to a paediatric nurse who was judged unsuitable to adopt because of her age. Her parents were in their early 80s and were one to judge her capacity for longevity by comparison, they were well, healthy and had been interviewed on the matter. Were one to judge on any genetic grounds, in so far as any of us can predict these things, her capacity for longevity should have been considered in respect of a family history of longevity.
I recognise very genuinely that the Adoption Board, including current and previous members and the current and previous chairman, has dealt with these cases with great insight and sensitivity. They have held hearings and there have been several instances in which decisions have been made and individuals ruled out by the HSE on age grounds. I believe I am right in saying that for the first time this Bill makes age an express provision as opposed to simply a consideration of suitability to adopt.
It is my recollection that at an earlier stage, not during this Minister of State's time, we reached a point where social workers in some regions of the HSE had adopted an ideological view that if anyone more than 45 years old sought to adopt, for example, a married couple in which the husband was 46 years and the wife 42 years of age, they were simply ruled out. One of the Minister of State's predecessors had to issue non-statutory guidelines to the Adoption Board to get over that particular problem because it was headed for legal difficulties. The system was no longer truly judging someone's suitability or applying the provisions of the Adoption Act 1952, it was pre-judging people's suitability based on an age requirement. That would have ended up in the High Court and the HSE had to back off. I am very concerned about the age provision expressed here. I urge the Minister of State to deal with the issue of suitability without reference to someone being of an age such that he or she has a reasonable expectation of being capable throughout the child's childhood.
I recognise there are some excellent social workers in the adoption services and I have no wish to be misunderstood in this regard but I have encountered some who lack experience, including some who have come out of college with certain ideological views. On occasion, a 26 or 27 year old social worker with very little experience has considered people in their mid-40s and taken the view that they are ancient and that there is no way they should adopt children. I have encountered such examples and I found myself raising questions with people of this mindset.
Some of the odd replies that come back are quite extraordinary. When I was 25 or 26 years of age I believed anyone more than 45 was absolutely ancient and anyone more than 50 years should have been out on a pension. Now that I am older, I have a different view of the world. However, 25 or 26 year old social workers, fresh out of college with a couple of years experience and still wet behind the ears are very prone to ideological views about age. There are cases involving husbands in their 50s in new relationships or second marriages after a divorce. Such men are parenting children and may have younger wives but they do not go through the difficulties experienced by people in the adoption area.
I will put several suggestions to the Minister. I refer to the specific inclusion of an age provision. I realise the Minster of State will not say as much but, if I had to guess, I believe it is included because he has been lobbied on this issue by social workers in the HSE who may have their noses out of joint because they disliked the fact that, on occasion, the Adoption Board has disagreed with them. I urge the Minister of State to remove the reference to age but to leave in the reference to someone being a suitable person of good moral character and, subject to one proviso in the area of good health to which I will revert, generally in good or appropriate health. The rest of the provisions, sections 34(b)(i) to 34(b)(iv), could remain in place. However, the age issue is a little timebomb that will result in people who would be absolutely appropriate and good parents, being discriminated against in circumstances that apply to domestic adoptions and intercountry adoptions.
I suggest to the Minister of State this age provision is contrary to the Hague Convention and I further suggest the Minister of State should examine Article 15 of the Hague Convention that, fortuitously, is at the back of this legislation. Article 15 relates to intercountry adoption and requires that where "the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry 20 adoption, as well as the characteristics of the children for whom they would be qualified to care". I believe there is a specific reason the word "age" is not in this article.
Of course, age comes into suitability and if I were 70 years of age, I would not expect to be deemed suitable to adopt a young baby. However, we are in a different environment today. People lead longer and healthier lives and there is no reason people in their early 50s should be automatically excluded from the adoption process. I do not maintain this is the Minister of State's intention but this is how it will be interpreted by the HSE. This is the way HSE social workers currently apply existing legal provision in the absence of age discrimination and the legislation invites this approach. Unless the Minister of State can provide an assurance that there will be statutory guidelines or regulations issued to ensure this does not take place, one could have 52 or 53 year olds who are healthier, spry and more capable as parents than 38 to 42 year olds and one could have the reverse as well. In the absence of the Hague Convention specifically referring to age, what is the genesis of the age provision in this legislation? I believe it is because of the difficulties of the impact of the ideological view of age applied by some social workers in the context of the preparation of suitability reports and because the Adoption Board takes the opposite view. That is all I wish to say about the issue.
The final issue, about which I will be a good deal briefer, is the reference to being "in good health". As a principle, I accept that if a couple are to adopt they should be in good health. Will the Minister of State define what this means? For example, let us assume a child is placed with a couple, both of whom are deemed suitable but then one becomes seriously ill before the adoption is complete. Let us further assume the child had been with them for more than one year and has clearly formed bonds with both parents. Following the death of the ill party, could the child simply be removed from the surviving spouse and in those circumstances, how should this good health provision be applied?
The second possibility that occurs to me is the circumstance of an unmarried mother who marries someone who is not the father of her child. These people are living together for a number of years, she becomes unwell, is told she has two or three years to live, and she wants her child to be jointly adopted by herself and her husband and wants the child to have all of the legal rights the child would normally have to a father if the child had been born in a marital situation to her husband. Is there a problem in the context of this good health provision?
I raised my issue in this regard on amendment No. 41, but it adds to Deputy Shatter's point. Where there is a couple adopting and one of them may not be in such good health or may be a little older, if we also allow adoption by a single person then in a sense are we being unfair on a couple where one of them may be ill but the other one may be quite capable of doing the physical end of the carrying of the child? I wanted to add that point, which I made already on amendment No. 41.
The issue of age has been discussed widely over the past few years. Clearly, any decision about the eligibility and suitability of an individual to adopt is based on what is in the best interest of the child to be adopted. Age is a factor in one's ability to provide parenting to a child over his or her childhood. If one is adopting a very young child such as one under the age of one, a person's age is of particular significance. There can be no doubt about that.
If social workers had an ideological resistance to adoption, as Deputy Shatter suggests,——
To adoption by older couples.
——to adoption by older couples, one would think that there would be an age limit, but there is not. There is no age limit whatsoever in the Bill. It allows, initially, the social worker, the local adoption committee and, subsequently, the Adoption Board — the Adoption Authority of Ireland as it will be — to consider that as part of the equation, but ultimately having regard to what is in the best interests of the child proposed to be adopted, which is the appropriate issue.
It is also worth mentioning that many sending countries have an upper age limit that they require. For example, in Thailand, the upper age limit is 44 for an applicant. In other countries, the age gap between the applicant and the proposed adopted child is a factor, and that must be considered and cannot be too great. This is significant when one is adopting older children as opposed to infants.
I would support the inclusion of the age in that because it allows the various different stages, from social worker onwards, to give due consideration to all factors that might impact on a parent's ability to raise a child. This child has already lost his or her natural parents and, clearly, if a person is considerably older, the chances of this child being orphaned again is significant. It is trauma enough, as we have seen from all research, to lose one's natural parents, but then to lose one's adopted parents is obviously a significant issue.
However, it is regarded in conjunction with one's health and, as Deputy Shatter stated, nowadays the age of 70 is the new 50. No doubt people are living much longer than they did when the original adoption legislation was promulgated in the 1950s when the average life expectancy in Ireland would have been perhaps in the early 60s. Now it is over 80, one of the highest in the European Union. It is a significant factor.
I do not like the sort of derisory attitude of Deputy Shatter towards social workers who are recently graduated. The truth is the vast majority of our social workers are of that age group and they do a very tough job, mostly under intense pressure. To describe them as wet behind the ears because they are in their 20s is not really suitable commentary to make about professional persons who make professional decisions independently, based on their experience and what they have learned in their various courses.
As Deputy Shatter stated, the Hague Convention view is that regard must be had to people's ability to be suitable as adopters. Now there are more older proposed adoptive parents because of later marriages in Ireland and perhaps fertility issues not coming to people's attention until their late 30s and early 40s, but what Deputy Shatter is describing is bad practice. That is something that one corrects in terms of how one deals with the cohort of social workers who are doing assessments rather than through this legislation in specifying that age should not be a factor. I am strongly of the view that consideration of age and good health, which are described together in this section, is the correct way of proceeding.
The Deputy asked me to define what is meant by good health. Obviously, going back to the Hague Convention, Article 15 states that regard must be had to family and background medical history. It is simply to reflect that, and also our old legislation, and to ensure that a person has the capacity to parent a child in a way that is in the child's best interests.
The Deputy also asked me a specific issue about an unmarried mother who proposed to have a step-parent adoption in circumstances where she is terminally ill. There is a careful system where the social worker will assess, the local adoption committee will make a recommendation and the Adoption Authority of Ireland will then make a determination about a declaration. All of that is determined by what is in the best interests of the child. Clearly, if this child, as Deputy Shatter describes him or her in this situation, has been with this step-parent for a period of time, I do not foresee how the Adoption Authority of Ireland could determine in any way other than that it is in the best interests of the child to be adopted in those circumstances.
The Minister of State makes reference to bad practice and I would agree with what he says. I suppose my next question is to ask him what steps he can take to correct a bad practice of which the Adoption Board could confirm to him it has had experience? There are individuals who find themselves at the receiving end of such reports who do not seek advice and help, and probably just give up on the adoption process. There are others who do and who may find the Adoption Board determines they are suitable. What is there that comes out of this Bill that would facilitate ensuring that such bad practice does not recur?
I have a final question on section 34. Addressing the section so far has really been in the context of determining suitability to adopt, be it domestically or intercountry, but the criteria prescribed by the section also require that the new adoption authority will not recognise any intercountry adoption effected outside the State unless all of these various criteria listed are complied with. In that context, what of adoptions that are effected outside the State by individuals who are habitually resident outside Ireland? When such adoptions are effected the parents are not assessed for adoption within Ireland but they are determined to be suitable elsewhere. They then come back to Ireland and apply for recognition of an adoption order,——
Have we not dealt with this previously?
It is in the new section.
No. When they apply for recognition of an adoption order, does that mean they must be reassessed in Ireland based on all of these criteria? How else could the adoption authority——
That is a recognition issue.
The Bill states one cannot recognise either. If section 34 did not contain the words "or recognise an intercountry adoption effected outside the State", this issue would not exist. The specified criteria are normally utilised to determine whether someone is suitable to adopt before an adoption order is made. There are two types of circumstance in which this might arise. A declaration of suitability might be given by the central authority or under a bilateral agreement, or a couple can adopt abroad in a country covered by the Hague Convention and ask for the adoption to be recognised on their return. There will be no decision in Ireland as to suitability without those criteria being complied with so it does not give rise to a difficulty. However, where a couple genuinely live abroad for some years and are not assessed in Ireland but adopt in compliance with local domestic law, be it in England, America, Africa or Asia and seek recognition of the adoption in Ireland, it is recognised. However, this section seems to require that the Adoption Authority of Ireland cannot now recognise an adoption on that basis but must commence a formal assessment on all the issues to which I referred.
I assure the Deputy there is no requirement for an assessment. The adoption authority in such situations would rely on the definitions of intercountry adoption in section 3 of the Bill and of intercountry adoption effected outside the State. There are two different definitions for these purposes. We had a similar discussion in a different context but the same response applies.
Question put and agreed to.
Amendment No. 43 not moved.
Section 35 agreed to.
SECTION 36.
Amendments Nos. 44 and 45 are related and may be discussed together by agreement.
I move amendment No. 44:
In page 31, subsection (3), line 40, after "Executive" to insert the following:
"but have special knowledge and experience related to the purposes of the committee".
The amendment is to ensure that persons appointed by the HSE who are non-employees of the HSE have knowledge and experience of the purpose of the local adoption committee.
I am very concerned about adoption committees. This legislation sets out in some detail the composition of an adoption authority. It imposes all sorts of rules and regulations for determining people's suitability and for the recognition of adoption but creates, within the HSE, what appears to be a whole series of adoption committees. The Minister might clarify how many of these committees there will be.
There is no specification as to the eligibility criteria for membership of these committees. Who in the HSE determines who will be appointed to the committees? Is it Mr. Garland, who co-ordinates the child care operation? The Minister appeared to say in response to a Dáil question that he had difficulty in identifying the individual with overall charge of the child protection and welfare service because the positions were so disparate.
How many committees will there be? How many people will sit on a committee? Other than non-employees of the HSE, could they be members of local groups, such as the Knights of Columbanus, the masons or Youth Defence? Who will nominate them and where will they come from? I am aware of some adoption committees comprising individuals who believe themselves to be suitable but have no training. One or two committees include school teachers or principals from the local area but I am not sure what role such people can play in assessing people's suitability to adopt. One needs some specialist knowledge and it is a mystery how some of these have been put together up to now. I have heard of very odd questions being put to individuals who come before these committees.
Much of the time the committees do not matter because a social worker makes a recommendation on a person's suitability and, more often than not, the committee will simply agree. A difficulty arises, however, where there is a personality clash between the social worker and the people being assessed or where there is some complexity in the background to a case. I do not know what expertise these people have to adjudicate in such cases but it is the recommendations of these people which go to the Adoption Board. Most times the Adoption Board will accept their recommendation but the social worker who is assigned to a couple carries out the main assessment and produces a report in draft form. That report goes to a senior social worker, is approved and ends up in front of an adoption committee comprising people who do not necessarily have any expertise in adoption. It is a bizarre and unnecessarily Byzantine system.
The Minister of State criticised me for saying certain things about newly-qualified social workers but I do not believe newly-qualified social workers should ever work in the adoption service. A social worker should have a minimum of five years' experience in social work in other child care areas before he or she is involved in adoption work. Adoption work is a particular specialty which requires a certain level of experience. By and large there are very good social workers in this area and they are the people who have the expertise. The assessment to go directly to the Adoption Board should be the one prepared by the social worker who carries out the assessment as an employee of the HSE and has been adjudged by the HSE to have the expertise to do the job.
I do not understand why adoption committees are stuck in the middle of this process and there is one strange aspect to what they do. If the committee decides it will reject a couple as suitable to adopt they are told they can appeal but the appeal is to the same adoption committee that made the original decision. In no judicial or administrative system in the world would that be regarded as appropriate as it is not a real appeals system. These committees make decisions which fundamentally impact on the welfare of children.
We should not make provision for these committees at all as they are a piece of HSE ad hocery. As they operate at present they do not have a statutory basis. They are now being given a statutory basis but I believe they are superfluous and unnecessary. I generally have faith in social workers to do the job properly, despite criticisms I have previously voiced. Not all of us get everything right all of the time and one needs a certain level of experience to work in the adoption area. However, for a professional social worker to need the imprimatur of a committee of unqualified individuals, with no known expertise in the area, in order to send a report to the Adoption Board is just as bizarre as calling in a gynaecologist or cardiologist to conduct an examination of an individual with health difficulties and not allowing their recommendations to be implemented without first being considered by a group of landscape gardeners. It makes absolutely no sense. What, if any, is the rationale for these committees? If there is a rationale, I do not believe the Minister of State’s amendment is accurate. It refers to “special knowledge and experience relating to the purposes of the committee”. One cannot have that unless one is a member of the committee because one will not have experience of what the committee does. I am not sure what purpose the committee has beyond second guessing the professional who has made the assessment. I object, in principle, to these committees, but if they are to be established, let us at least specify that the individuals on them should have a connection to, an insight into and an expertise in adoption.
Thus, in a roundabout and long-winded way, I come to my amendment. I propose that we add a new subsection, which provides that the membership of an adoption committee should not exceed five persons because, currently, the number is unknown. It could be three or 25. It could comprise all the pals of whoever is running the local HSE area, it could be half the local rugby team or it could be anybody. If the committees are established, I propose the following subsection:
(5) Each adoption committee shall be comprised of at least one member who is:
(a) a senior social worker;
(b) a child psychologist;
(c) a child psychiatrist; and
(d) a person who has adopted a child at least three years before their participation in the activities of an adoption committee.
Why have these committees at all? What is their function? If a social worker has recommended that a person or couple is suitable for adoption, I do not know what these committees will do. If a senior social worker were supervising the committee, I could see some sense in this. Is it not the function of the Adoption Board to ensure this oversight and to ensure everything is appropriate? I do not see the point in this additional layer on top of the role of the social worker who does a great deal of work assessing the suitability of the adopter and so on. Why are they there at all?
My only concern with Deputy Shatter's amendment is that child and adolescent psychiatrist teams do not have enough psychologists, psychiatrists and so on. They are very much depleted in the context of doing the work they are supposed to do. Children have to wait for psychological assessment currently in the system and I am concerned that if these professionals are diverted to work on adoptions, the shortages will be worse. Apart from that, I have no difficulty with the amendment. I do not see the purpose of these committees but perhaps the Minister of State will outline their purpose.
There are ten committees, which usually meet each week. Their purpose is to ensure one social worker does not make the decision because, as Deputy Shatter said, there might be a reason he or she did not get along with the applicants. In the process before the application comes to the local adoption committee, the social worker meets the applicant on five or six occasions and one might never know what occurred. The purpose of the committee is to then make a recommendation to the HSE.
Mr. Phil Garland, the assistant national director for children and families, has overall charge of this area. I made the comment referred to by the Deputy in the House or in reply to a parliamentary question some time ago but he has since taken his position. It is clear, therefore, what the purpose of the committee is and the safeguards are well motivated.
How many individuals are on each of the ten committees in existence? What is the current composition in the context of the professional or other background of the appointees? There should be transparency about this and we should know the names of the individuals.
Does the Deputy want me to tell him all the names?
Yes, ten committees are making fundamental——-
I am supposed to know all the names?
Ten committees are making fundamental decisions about whether people are——
Clearly I do not have that information to hand.
I appreciate the Minister of State may not have it to hand but——
This is for a different meeting, surely.
If I table a parliamentary question about it, I will be told this is the responsibility of the HSE and it does not fall within the Minister of State's remit. In approximately eight months, I will receive a letter from the executive, if it remembers to write to me, after I have tabled another two parliamentary questions complaining about their failure——
It will not happen today.
I do not expect the Minister of State to have the information but I will come back to this on Report Stage. Before then, will he inform committee members of the numbers of individuals on each committee, their names, their background——
This is clearly an operational matter for the HSE.
It is not appropriate that individuals would be named before the committee.
I do not want to draw this out but I did not expect the Minister of State to know the names of everyone on the committees.
The Deputy asked about their qualifications, which I can outline now if he wants.
However, I expect him to know how many individuals are on each committee and what renders them suitable to be on such committees.
Are senior social workers on the committees? How many members are on each committee? If the committees are large in number, I would have concerns because, inevitably, some people will not have the expertise required and they could make an incorrect recommendation.
I do not want to keep coming back at the Minister of State and I am not trying to be unfair but the individuals on these committees are paid out of public funds to attend meetings and a payment will be made under this section in accordance with a scale determined by the Minister with the consent of the Minister for Finance. In addition to the numbers and the professional qualifications of the committee members, we should also know who appointed the current committees. Mr. Garland has only been in place for a few months and I presume the current committees have been around for some time. Did they just emerge over the horizon and form amoeba-like or were they appointed by someone?
If the Deputy gives the Minister of State an opportunity, he might address those questions. With regard to detailed identification of members of these committee, it is not appropriate to our work.
They are in receipt of public money.
Perhaps the Deputy could ascertain that information by way of parliamentary question or the Minister of State might acknowledge it.
Based on my recollection of biology, an amoeba is a single cell organism.
It keeps on sub-dividing and has a boring life. There is no fun before one sub-divides it.
Typically the skill mix — this is not guaranteed in each case — is social worker, occupational therapist, adoptive parents, psychologists, public health nurse, psychiatrist, adult adoptees, superintendent, child welfare officer, child care manager, general practitioner and, typically from outside, a schoolteacher. This is not dissimilar to the skill mix proposed in the Deputy's amendment.
What about the number of members?
I do not know the numbers. I will undertake to get that information before Report Stage.
I appreciate that is the skill mix on some of these committees.
Typically.
If the intention is to retain ten committees, we should know the current skill mix on each committee. I have nothing against schoolteachers, given that they deal with children all the time and they do a fantastic job. Why would a schoolteacher rather than a paediatrician be a member of a committee? On what basis are these decisions made?
The committees meet every week. Deputy Jan O'Sullivan referred to the fact that the priority of our child protection and welfare service is not adoption but the protection and welfare of children who are here and we try to tailor our resources accordingly. I undertake to provide further information about that.
Will that information include the basis for the selection of the current individuals?
I will attempt to provide the details.
Amendment agreed to.
I move amendment No. 45:
In page 31, after line 40, to insert the following subsections:
"(4) The membership of an adoption committee shall not exceed 5 persons.
(5) Each adoption committee shall be comprised of at least one member who is:
(a) a senior social worker;
(b) a child psychologist;
(c) a child psychiatrist; and
(d) a person who has adopted a child at least three years before their participation in the activities of an adoption committee.”.
Amendment put and declared lost.
Section 36, as amended, agreed to.
SECTION 37.
Amendments Nos. 46 and 47 are related and may be discussed together.
I move amendment No. 46:
In page 32, subsection (3), between lines 42 and 43, to insert the following:
"(d) submitting the assessment report prepared in accordance with paragraph (c) to the applicants for correction and/or clarification, which may be submitted by the applicants to the Health Service Executive within 6 weeks of the receipt of the assessment report.”.
Amendment No. 47 is related. This amendment relates to the section dealing with assessment reports and the need to ensure that if they are inaccurate, they will be properly amended. Essentially, this is the function of the proposal.
When delivering its recommendation and assessment report to the authority and the HSE, the adoption committee will ensure applicants are provided with a copy as well. Section 40(4) provides that the authority may refuse a declaration only if it has given the applicants an opportunity to be heard first. The practice to date suggests this offers sufficient safeguard to capture the concern expressed in Deputy Shatter's proposed amendment.
I will revert to that matter and to amendment No. 47. I have no wish to continue to return to the same issue but when an assessment is undertaken at present the draft report goes to the applicant or prospective adopters. They may propose that amendments be made and any amendments may or may not be incorporated in the report. Often, when amendments are incorporated they may correct factual background in the original report by the social worker, which may be inaccurate, or in cases where there has been some misunderstanding between the social worker and the prospective adopters. An amended factual background may or may not result in a change to the decision. The original draft report may have deemed someone unsuitable based on some factual background information.
I have encountered situations in which inaccurate factual background resulted in people being deemed unsuitable to adopt, but when the factual background was corrected they continued to be deemed unsuitable to adopt. The report, with corrections included, goes to the Adoption Board. I have read one or two remarkably incoherent reports in which it appears a decision was made that certain people were unsuitable but no coherent reason was given as to that unsuitability, especially when corrections were made.
Following this step, if the applicants continue to seek a declaration of suitability, the Adoption Board may request that they set out in documentary form the detail with which they disagree. This used to be a written submission but my recollection is that, in more recent times, the Adoption Board has requested this should be put in an affidavit. I may be incorrect in this assertion because it is probably a year since I have had an involvement in notifications of this nature. It seems where prospective adopters disagree with the content of a draft report and they set out their disagreement and factual amendments in writing, if the report goes to the Adoption Board recommending their unsuitability, it is a mere administrative procedure that the HSE would, at the same time, send whatever correcting documentation it receives from the adopters to the Adoption Board for it to make a judgment on the matter in an oral hearing. At the moment there is nothing to stop the prospective adopters sending material directly to the Adoption Board in any case and I acknowledge that. However, it might assist the Adoption Board to know whether what it has received from the prospective adopters is the same as the objections lodged with the HSE.
This is a child welfare issue as well and it is important that if any new adoption authority were to take a different view to the HSE, it would have sight of any such submission. I am not saying that when people are deemed unsuitable the decision is always wrong. There will be people properly determined to be unsuitable to adopt. However, it is important that if a particular submission is made by such people to the HSE which it does not accept, the adoption authority would have sight of it. The amendment is simply to ensure that it does so.
I intend to provide an outline of what actually happens for the benefit of the committee. The process in place is that the report is completed by the social worker at the end of the assessment period. Applicants are invited to read the report and may retain a copy from the social worker. Any factual inaccuracies are amended at this stage before the matter goes to the local adoption committee. If there is a difference of opinion the applicants are invited to provide a written submission that is included with the report that goes to the local adoption committee. The committee then reviews the report and the written submission and reaches a determination. If the applicant receives a negative decision or if further clarification is required, the applicant may meet the local adoption committee within two weeks of the decision. Following the meeting with the applicant, the committee reaches its final decision and the applicants are informed in writing. The social workers report, the applicants submission and all documentation is then forwarded to the Adoption Board and future contact takes place between the Adoption Board and the applicants as per its procedures.
This system has worked well. Deputy Shatter seeks to amend the legislation to prevent the Adoption Board being confused by some of the documentation or messages from the documentation. However, as the Deputy pointed out, these matters can be sorted out or clarified in the oral hearing before the adoption authority. This will continue to be the case if such issues arise. The measure is proportionate given that the decision-making body is the adoption authority rather than the local adoption committee. The preparation of the report is carried out in a fairly non-adversial, collaborative way. There will be contentious situations in which someone is very unhappy with what a social worker or team have to say about an applicant but we cannot provide against all disputes.
Is the amendment being pressed?
I am pleased the Minister of State has indicated the practice now is that any corrections or objections in respect of adopters are sent by the HSE to the Adoption Board along with the social worker's report. That was not always the case. Over the years, the Adoption Board received the HSE or health board view of suitability but not any objections to that and, therefore, this development is helpful. The Minister of State should bear in mind that my proposal is to ensure that what he maintains is the practice now would remain the practice. I am willing to withdraw both amendments to allow the Minister of State to consider the matter further before Report Stage. If the practice now is as the Minister of State describes it, then the Bill should reflect that practice.
Amendment, by leave, withdrawn.
Amendment No. 47 not moved.
Section 37 agreed to.
Section 38 agreed to.
SECTION 39.
I move amendment No. 48:
In page 33, between lines 22 and 23, to insert the following subsection:
"(4) The applicants are entitled to have a personal or legal representative be in attendance at any meeting or other proceedings convened by the adoption committee, or any other authority, in carrying out its function in accordance with subsection (1) of this section.”.
This amendment is to include a new subsection (4) in section 39 to read: "The applicants are entitled to have a personal or legal representative be in attendance at any meeting or other proceedings convened by the adoption committee, or any other authority, in carrying out its function in accordance with subsection (1) of this section.
Subsection (1) of section 39 requires, as soon as practicable after the receipt of the assessment report, that the adoption committee considers the report and makes its recommendation to the authority. Subsection (2) states that a recommendation must contain the reasons for it, and the section provides that the committee must deliver a copy of the recommendation and of the assessment report to the authority, the HSE and the applicants.
My amendment proposes that in the context of that procedure, the adoption applicant or applicants in going before an adoption committee should be entitled to be accompanied by a third party if the applicant or applicants wish. The third party need not always be a lawyer, but the applicant or applicants should be entitled to be accompanied by a lawyer if they so wish.
The anomaly of the adoption committee — the Minister of State referred to it earlier in dealing with that committee — is that it sort of makes a decision, if I could put it in legal terms, at first instance. It gets a report from the social worker and determines suitability or unsuitability. If it decides someone is unsuitable, it then says that if the person does not like this, he or she may come along and it will give the person a hearing in two, three or four weeks' time. The committee has already prejudged the issue and has made a decision.
I know of no circumstances in which an adoption committee, having determined someone's unsuitability, reversed that decision following an oral hearing with the person three or four weeks later. I would be interested if the Minister of State was able to inquire between now and Report Stage from the ten committees as to whether that has happened at any time in the past ten years. I am also not aware, because we do not have this information as there is no transparency, of circumstances where a social worker has determined someone to be suitable and the adoption committee has said the person is unsuitable. This is why I cannot figure out what the function of these committees are and I would like us to have that information available to us.
I am aware that people are nervous going through an adoption process. Prospective adopters, from day one, from the moment they embark on whatever courses they are required to take, all the way through the assessment process and all the way up to the adoption committee, feel that their lives are entirely dependent on the goodwill, help, support and favourable views of their social worker and the adoption committee. People are terribly emotional going through this process and feel extraordinarily vulnerable.
The people who will be involved in an oral hearing of any complexity in front of an adoption committee are those who are the recipients of a report which states they are not suitable. They go before this committee emotionally distraught, feeling that they must impress the committee, and yet with no clue of how to deal with the circumstances in which they find themselves.
It is quite anomalous that if there is a hearing in front of the Adoption Board at present, one can be represented by a lawyer. That does not mean the lawyer speaks all the time for the applicant or applicants. The Adoption Board will ask direct questions of the individual or individuals and it is quite correct the members of this committee can do so. However, occasionally one needs some assistance and follow-up, at least to ensure that correct procedures are applied, one is being treated reasonably and one is not asked questions that are so obscure and irrelevant as to be unfair.
This amendment is designed to ensure people can be accompanied when they go before a committee. There is nothing in the legislation that states one can be so accompanied. People are entitled to that right and the legislation should express it.
One could follow that logic down to the point where at the six meetings that prospective adopters have with the social workers, they should be so entitled. One is being asked questions in an emotionally fraught situation. We all know how emotionally tough the adoption process is, everything that precedes it and, unfortunately, even everything that follows a declaration. Therefore, arguably one could say that there should be legal representation at the meetings that occur with the social worker.
As I stated earlier, the practice is not meant to be adversarial and legalistic. It is meant to be consultative, collaborative and, if you like, inquisitorial, if one wants to use the other word that is described to distinguish from the adversarial model of investigation.
In the experience of one former chair, no applicant has appeared before a local adoption committee with legal representation. The vast majority of people do not go before the local adoption committee personally anyway. It is only a very small minority, and a very small minority of that who may wish to have legal representation. The quasi-judicial authority is the Adoption Board and it will make the determination that may attract the possibility of having legal representation. I do not believe that the earlier parts of the process necessarily require legal representation.
Does the Minister of State know of any case in which an adoption committee has made an initial decision that someone is unsuitable and changed its mind after an oral hearing?
No, I have not been through case files.
Then what is the purpose of the procedure?
It is not to say that it has not happened.
We are wandering away from the subject matter.
We are not.
Deputy Shatter is speaking about representation.
No. It is about how this works in practice. We can have all sorts of wonderful theory.
Deputy Shatter's amendment is about applicants being accompanied——
It is.
——not the principle of the hearing in the first instance.
It is about whether these hearings are real and people are given a real opportunity to address issues that have proved to be difficult, or whether these hearings are just window dressing, we go through the motions and nothing ever materialises out of them. This is legislation about how our adoption service presently works and how we intend it to continue working. I am just asking the question.
It is a reasonable question. The reasonable answer is that this stage of the process is not intended to be legalistic. Serious questions of law do not arise. The social worker will have carried out a series of meetings with the prospective adoptive parents. The parents themselves would have attended courses over a period of time. They will, unfortunately, have to have waited some period of time as well. The local adoption committees will share the report, and make factual corrections as I just described. There is an opportunity to make a written submission if they are at odds with certain findings and conclusions. The legal aspect of it arises when the judicial authority, namely, the Adoption Authority of Ireland, has the case. That is when people may require legal representation and even then it is very irregularly the case.
Amendment, by leave, withdrawn.
Section 39 agreed to.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill."
There is something odd about this section and the Minister of State might consider it between now and Report Stage. Section 40(1) states: "The Authority may issue a declaration of eligibility and suitability in favour of a person or a married couple married to each other who have applied under this Act to the Authority for, as may be appropriate, an adoption order, or the recognition of an intercountry adoption ...". One will look for a declaration of eligibility and suitability if one has applied for an adoption order, but by the time one comes to seek to have it recognised, one will have already had one's declaration of eligibility and suitability.
This goes back to the original point about the differing definitions in section 3 for an intercountry adoption effected outside the State and an intercountry adoption. In the case of a domestic adoption the declaration is clearly intended for an adoption order or otherwise for recognition of an intercountry adoption. If it is done outside the State, it involves the registration of a recognition of foreign adoption.
I have trouble with the section's wording.
I accept that it is somewhat untidy.
I merely ask the Minister of State to have another look at the wording. I do not want to get lost in the technical and legal argument. I am sure there is no ill intent behind it but I do not think it works because there is a technical problem with the way it is phrased.
I will re-examine the section before Report Stage.
Question put and agreed to.
Section 41 agreed to.
NEW SECTION.
Imove amendment No. 49:
In page 35, before section 42, to insert the following new section:
"42.—In the event that a recommendation by the Health Service Executive under section 37 of this Act declines to recommend the issue of a declaration of eligibility and suitability in favour of the applicants and, the Authority, having considered that recommendation in accordance with section 40(2) of this Act, issues a declaration of eligibility and suitability, the Authority shall instruct the Health Service Executive to amend the recommendation issued under section 37 to reflect the final decision of the Authority under section 40 and the Health Service Executive shall comply with such instruction.”.
I am genuinely astonished this issue is not addressed in the legislation because the Adoption Board knows it has been a source of difficulty for some time. In a nutshell, if adopters are found to be unsuitable by the adoption committee, a recommendation to that effect is entered in the report to the Adoption Board. Where the board disagrees with the committee's finding, it makes a declaration of suitability. However, when the adopters seek to adopt abroad, their record contains both a declaration of suitability from the board and a family assessment by the HSE which concludes they are unsuitable. The board has no statutory power to require the HSE to change its conclusion nor does it prepare an independent report which the adopters can use when they seek to adopt. Individuals who were found suitable by the board are stuck with reports which describe them as unsuitable.
To facilitate individuals caught in this plight, the board has invented a mechanism to give effect to its own decisions by writing a letter which attests to their suitability and refers to the aspects of the report with which it disagrees. The individuals concerned then try to adopt abroad with a declaration of suitability from the adoption board, a lengthy report of up to 20 pages from the HSE with a conclusion of unsuitability, and a letter from the board correcting the report. This bizarre combination has created significant problems for people who find themselves in this situation. They go to a country, the adoption procedures of which comply with Hague criteria, and present two contradictory reports from two Irish bodies. How does that facilitate adoption?
If the Adoption Board is the final authority, people who were judged suitable are entitled to a family assessment report reflecting their suitability. They should not be burdened with reports which the board found to be inaccurate or to have reached wrong conclusions.
This Bill must correct that problem. I do not mind whether the Minister of State accepts my amendment or agrees to bring his own amendment forward on Report Stage. The existence of this difficulty is acknowledged by the registrar and chairman of the Adoption Board. When it first encountered the issue, the board asked the HSE to amend its reports but it refused to do so and it does not have a statutory relationship with the board. Under this legislation, it will not be under any obligation to the adoption authority. I hope the Minister of State will at least agree that the issue must be addressed. We cannot expect the adoption authority to be the final arbiter if we then say "tough" to adopters who are found to be suitable but have an assessment report indicating otherwise.
My knowledge of proceedings is not as detailed as Deputy Shatter's but he makes a very good point. It must be confusing where people attempt to adopt on the basis of contradictory reports. Assuming that the adoption authority is to be the final arbiter, it is logical that the amendment should be incorporated into the Bill.
The amendment proposes the destruction of a HSE report which is grounded in the principle of child welfare. This is not a decision one should take lightly. Given how often we speak about transparency, we should be extremely cautious in advocating the destruction of such reports. If a planning inspector recommended against a development only to be overruled by the planning authority, does one erase the inspector's report? I appreciate the example is not entirely analogous. However, if a Circuit Court judgment was successfully appealed to the High Court, would the latter order the erasing of the original finding? Similarly, would the High Court order the erasing of a decision of the Adoption Board? I do not think it would.
The Deputy seriously underestimates the capacity of a sending country to distinguish between the recommendation of a local adoption committee and the determination by a quasi-judicial body acting as the central authority on behalf of the receiving country. I will listen to him if he wishes to elaborate further or address the points I have raised but I am not inclined to accept his amendment at this stage.
The Minister of State has advised us that adoption committees have no judicial function and that they deal with matters informally and do not make the final decision because they send their reports to the Adoption Board as the judicial arbiter. He claimed that the committees are such informal and friendly places that visitors do not require legal representation or to be accompanied by a third party. However, he is not aware of how the committees function in practice and he cannot outline a single instance of an adoption committee changing a view as a consequence of anybody coming before it. He said the adoption authority was the final arbiter but if the HSE states a person is unsuitable, the authority cannot put together a report to the contrary. Those two things just do not work. Either the adoption committee is the final arbiter or it is not.
Let us not pretend how things work. A declaration from the Adoption Board can state that a person is suitable but the Adoption Board does not carry out the family assessment. If a person goes to a country which has proper adoption laws and wants to ensure a person is suitable to adopt, the authorities will not only look at the declaration of suitability from the Adoption Board but will also look at the family assessment report, which they will seek out.
Article 15 of the Hague Convention aims to assure the recipient country as to a person's suitability on a broad range of grounds. The Adoption Board makes a declaration of suitability based on five principles contained in its guidelines but the detail is contained in the report. Happily for most people, the report coincides with the decision of the Adoption Board, but for a small minority of people it will not. A body with the authority to carry out an assessment will not always be perfectly correct so its assessment will have to be adjudicated on by the Adoption Authority of Ireland. If the adoption authority, as the adjudicating authority, declares somebody to be suitable it will have to disagree with the original report.
I will give an example from a case with which I dealt, without revealing the identity of the individual concerned. The individual in question was either 51 or 52 years of age and a single adopter who had worked with children all her life. She received a brilliant report, saying she was eminently suitable to adopt apart from the problem of her age. The report could not be certain that she would be in good health by the time a child placed with her as a young baby reached its late teenage years. For some reason the social worker making that recommendation lost sight of the fact that, to get over the age problem, she had said she would be very happy to adopt a child aged between five and seven years. She had worked with children who had problems, so she came from a background that enabled her to understand the position. In addition, she had two parents in their 80s but the recommendation was that she was not suitable on age grounds.
There was another mistake of a factual nature in the report, giving a second reason she was judged not suitable. At the hearing in front of the Adoption Board it was held that she was eminently suitable and the board made a declaration to that effect, but that means there was a decision by the Adoption Board that she was suitable and one from the HSE maintaining that she was unsuitable. That is outrageous. I declare my interest in that I represented this person in the hearing in front of the Adoption Board some two or two and a half years ago. She experienced great difficulties in effecting an adoption because she had two contradictory documents.
I do not mind if the HSE, for record-keeping reasons, holds onto its report or wants to record the fact that, on the direction of the adoption authority, it has corrected a part of the report under the direction of the latter. I do not mind if the adoption authority, having made a declaration of suitability, then has the statutory power to authorise a social worker to prepare an amended report, which will then be a report of the adoption authority and not of the HSE. However, it is quite wrong for individuals to find themselves in that predicament.
There is another issue. I have no doubt that if somebody who found themselves in this position was prepared to take court proceedings he or she would be successful, at least in the European courts in proceedings taken under Article 8 of the European Convention on Human Rights, although that person might not necessarily be successful in our courts in the context of the way the convention is applied here. We should avoid putting anybody in a position in which he or she has to undertake an exploratory journey such as that.
I will not press the amendment but ask the Minister of State to reflect on it and talk to the Adoption Board on the matter. Its members are fully aware of this problem. I do not suggest that my proposal is a unique solution as there are a number of possible solutions. However, there must be a procedure which ensures that, where someone has a declaration of suitability, the social worker family assessment report contains all the background information which other states value for intercountry adoptions, as well as the judgment that the person in question is suitable.
I thank the Deputy.
Although I disavowed the legal nature of the local adoption committee, Deputy Shatter makes a very fair point. There has not been any overturning of a local adoption committee's recommendation in two or three years and the Deputy may have been involved in the only one.
I have been involved in a number of cases and I am more than happy to outline them to the Minister of State.
I will undertake to have a look at the position again.
Amendment, by leave, withdrawn.
Section 42 agreed to.
SECTION 43.
Question proposed: "That section 43 stand part of the Bill."
I disagree with the formulation in section 43(1)(d), where the reference is to “the father of the child or the person who believes himself to be the father”, which we discussed at great length at the last meeting.
Question put and agreed to.
Section 44 agreed to.
SECTION 45.
Question proposed: "That section 45 stand part of the Bill."
This may be an issue that can be addressed if the constitutional amendment on children's rights is dealt with but it could be addressed in this legislation on Report Stage. The issue relates to a situation where a widow or widower who has a child aged 5 or 6 remarries and, after two or three years, wants the new spouse to be the official parent of the child. The present law does not allow the widow or widower to jointly adopt their own child and there is no mechanism to allow the new spouse to acquire parental rights by way of guardianship of the child.
This section deals with the adoption of a child where the child's adopters have died but there is a need to address this aspect of the law. I do not think it requires a constitutional amendment. If a child is born of a married couple and the only survivor of the marriage wants to jointly adopt the child with his or her new spouse, it would not alienate the parent's constitutional rights as the widow or widower would continue to be a full parent of that child. This is an anomaly of our legislation at the moment.
Full clarity will come with the proposed wording of the constitutional amendment. It may not be required because the individual has died in this case.
Can the Minister of State look at it on Report Stage? It is a very simple section and could contain a provision to facilitate a widow or widower to jointly adopt their own child with their new spouse, should they wish to do so and subject to all the necessary procedures and assessments being undertaken. It would provide a new eligibility criteria for an individual who is adopting. It is something that happens in every other country in Europe.
There are specific constitutional provisions regarding marriage and therefore I do not think I should give the Deputy false hope. This is properly dealt with in the constitutional referendum wording and that will give us an opportunity to make those changes at that time.
Question put and agreed to.
SECTION 46.
Amendment No. 50 is in the name of Deputy O'Sullivan. Amendments Nos. 50 and 51 are cognate and may be discussed together.
I move amendment No. 50:
In page 36, subsection (1)(b), line 41, after “oath” to insert “or affirmation”.
In this amendment I seek a legal clarification regarding "an oath" and I suggest it should include "or affirmation". The person who has given me legal advice on this Bill suggested this should be the case because the Interpretation Act of 2005 does not say that "oath" includes affirmation. It has a rider and it includes affirmation only for those entitled to affirm. The entitlement to affirm in the Oaths Act 1888 applies only to proceedings and it is not clear that proceedings includes proceedings in this instance which is not a court but an administrative body.
This issue was raised in the Seanad. Section 21(2) of the Interpretation Act 2005 provides that the word "oath" includes affirmation. The Office of the Attorney General gave us specific advice on this section.
Will the Minister of State assure us that includes proceedings before an administrative body as well as before a court?
That would have been part of the Attorney General's consideration.
I will bow to the view of the Attorney General.
I am always amazed how people bow to Attorneys General. It would be an interesting statistic to know how many court cases the State loses based on the advice of Attorneys General of different persuasions over the years.
The current Attorney General has an outstanding record.
I knew the Minister of State would say that.
Chairman, I will be reverting to my legal adviser, and if he suggests that I resubmit the amendment on Report Stage, I certainly will. Perhaps the Minister of State will have another chat with the Attorney General
I will.
Amendment, by leave, withdrawn.
Amendment No. 51 not moved.
Section 46 agreed to
Section 47 agreed to.
SECTION 48.
Question proposed: "That section 48 stand part of the Bill."
This section provides that the Authority may take evidence orally or by affidavit. Normally the hearings of the Adoption Board are based on oral evidence. I would be interested in learning if this phraseology reflects what was originally in the 1952 legislation. One difficulty has arisen which the Bill does not address and I wonder if the Minister of State will provide for it in regulations.
I am sorry to keep coming back to procedures that operate in the Adoption Board at present. These hearings are not held in public and are a mystery to most people. Generally I praise the way the board operates. This is a difficulty the board experiences through no fault of its own. At present if the board holds a hearing and there is disagreement between adopters and social workers who have undertaken assessments, one would expect a normal hearing would involve both the social worker or social workers and the adopters being at the same hearing on the same day and that the social workers' view would be expressed and the members of the Adoption Board would raise any questions that need to be raised in the presence of the adopters. If the adopters want to ask a question of the social workers, they could do so. If they had legal representation, their legal representative could do so. Equally one would expect the social workers to be present while the adopters are in front of the board. They would have their say and be asked questions and if the social workers felt it appropriate to ask questions of the adopters that would happen. That is not the way the procedure works.
The Adoption Board has been advised that pursuant to Article 6 of the Hague Convention, the procedure should work in the way I have described it, but it does not work that way because social workers or the HSE have refused to co-operate. I am not sure whether the social workers or the HSE have refused to co-operate with a procedure whereby social workers are present at a hearing in front of the Adoption Board at the same time as the individuals they have assessed for adoption.
To navigate the system, the Adoption Board will now hold a hearing in the morning at which the social worker will attend. The applicants wishing to adopt or their legal representative are not present because social workers will not agree to their presence. In the afternoon, at a separate hearing the people wishing to adopt will be present. That is contrary to Article 6 of the European Convention. The Adoption Board knows that and has received advice to that effect. I suspect the only reason there has not been a court case is because we have a good Adoption Board composed of people who on these two separate hearings have fully explored all the questions that they feel they need to ask to ensure they get replies. There is no transparency.
The adopters are entitled to hear what is being said about them by social workers at what is supposed to be a hearing that complies with certain judicial principles. Social workers are entitled to know what is said as well. The procedure is contrary to the welfare of children. If child welfare is the central issue, there is always a risk that adopters may say something to the Adoption Board that has not been raised with the social workers and may result in a favourable decision being made in circumstances where it should not be made. With an Adoption Board comprising different people who are not as alert, there is a risk that something will be said by the social workers about the adopters that the adopters are not aware of and is not put to them. It is an inappropriate form of hearing. The Adoption Board has tried to deal with this by getting sworn affidavits setting out certain background information. I do not know whether social workers see the document the adopters submit to the Adoption Board. If the new adoption authority is to apply proper procedures and if there is to be a proper hearing, the Minister of State needs to address this issue.
The reason I am raising this is to give the Minister of State an opportunity to come back on Report Stage. The legislation needs to expressly state that those involved in hearings before the adoption authority and who are providing assistance to the authority should be present to hear what is said and have the opportunity to ask questions of each other. If this does not happen it will give rise to some form of litigation at some stage which is completely contrary to the welfare of adopters and not in the interests of the State. My primary concern is to protect children. There must be a proper hearing. This is an inappropriate form of hearing which derives from an unwillingness by social workers to subject themselves to questions from those wishing to adopt. I do not know if this problem is created by the HSE or social workers.
The entire process is designed to ensure that social workers and prospective adoptive parents have every opportunity to discuss issues in the lead up to the day on which they might appear before the authority. Hence the local adoption committee has this opportunity to share documents with the prospective adoptive parents and can make corrections and alterations as it sees appropriate. Allowing evidence to be given by affidavit means that individuals know in advance of a hearing what issues arise between the parties and are able to prepare accordingly. In the absence of an amendment, I am satisfied that is the correct procedure to follow.
Does the Minister of State feel it is appropriate that each of them have separate hearings so neither hears what the other says before an adjudication is made by the adoption authority?
I have never sat in on a hearing. It does not sound right to me because judicial principles apply about being able to hear the case against a person and being able to reply accordingly. It is not a court of law, however, so it is not a red flag for me and it has a procedure in advance to allow such issues to be teased out. It is not the same as a court of law and I do not, therefore, expect the same principles to apply equally as they would in a judicial hearing.
There is a legal principle, audi alteram partem, which applies to semi-judicial and administrative bodies that are making decisions. There is a due process provision in Article 6 of the European Convention on Human Rights. The Adoption Board knows this procedure is wrong but has no choice but to go down this route. Even if someone swears an affidavit, if there is an oral hearing on a Tuesday morning with social workers present, and adopters arrive on a Tuesday afternoon for a hearing, they have no idea what was said about them at the morning hearing.
I am conscious that no amendments are being taken on board so I did not table a specific amendment on this. However, I will lay down a marker that I have no doubt that if this is not addressed in this legislation, and if this legislation is based on the advice of the Attorney General, and he has been good so far, he will not be good on this issue. Somewhere down the line there will be a court case and this procedure will be found to be in breach of principles of constitutional justice and in breach of Article 6 of the European Convention on Human Rights.
It is like the other difficulty. The Adoption Board knows it is in difficulty on the issue but has not been the subject of litigation so far because of the considered way the current membership of the board has dealt with these hearings. It is a completely Kafkaesque approach that is being imposed on the Adoption Board and I ask the Minister of State between now and Report Stage to find out if it is being imposed by the HSE or whether it derives from difficulties with the social work organisations.
The Deputy has raised the issue in stark terms, stating that it will end up with a challenge, so I will raise it directly with the authority but it has not said anything to me about this problem. It has never indicated any dissatisfaction with the section. The Adoption Board would not stand on ceremony in telling me if it felt anything in the functions given to it in the Bill was not adequate. I will ask the authority if it feels there are significant problems we can sort out on Report Stage.
From my recollection, the Adoption Board has acknowledged in writing that is in receipt of advice from senior counsel.
It has not written to me.
It has acknowledged that it has received senior counsel's opinion to the effect that it is acting in breach of Article 6 of the European Convention on Human Rights.
The matter can be raised on Report Stage.
There is no choice but to deal with matters differently. I would ask that this issue be specifically raised with the chairman of the Adoption Board before Report Stage.
Question put and agreed to.
Sections 49 and 50 agreed to.
SECTION 51.
I move amendment No. 52:
In page 39, subsection (3), lines 3 and 4, to delete all words from and including "subject" in line 3 down to and including "1964" in line 4 and substitute the following:
"in accordance with the Guardianship of Children Acts 1964 to 1997".
I question the reference to the Guardianship of Infants Act 1964, although I know it deals with the welfare principle as being of first and paramount consideration. The point I make in the amendment is that other elements of guardianship in Children Acts from 1964 to 1997 are also relevant and must be taken into account.
The information that I have is that the citation is correct. The reference to the 1964 Act includes amendments to that Act and for that reason the amendment is not accepted.
Is there not subsequent legislation that is relevant?
It is anticipated in the phrase "the Guardianship of Infants Act" which includes the amendments that followed it in that reference. That is the drafting protocol.
It is a legal point and I am not a lawyer but I have received legal advice that it must be differently worded. Would the Minister of State check his legal advice before Report Stage?
I will.
Amendment, by leave, withdrawn.
Section 51 agreed to.
Sections 52 to 57, inclusive, agreed to.
NEW SECTION.
I move amendment No. 53:
In page 46, before section 58, to insert the following new section:
"58.—Where prospective adopters agree to an open adoption and know or are introduced to the father and/or mother of the child the Adoption Authority may make an access order in respect of that child in favour of either the mother or father of the child or both of them to take effect immediately after the making of an adoption order.".
My amendment seeks to address an approach that has been taken for some years on occasions with the small number of domestic adoptions that occur in circumstances where they are not family adoptions.
This applies to an open adoption where the parties know each other, where a domestic adoption takes place and it is the intention of the natural or biological parent, most often the mother, to maintain some relationship with the child being adopted. This could be said to apply to circumstances where a natural mother jointly adopts with her husband, who is not the father of the child, and the biological father is known to the parties and wishes to maintain a relationship with the child.
I have previously raised the issue of ensuring some form of legal mechanism to guarantee the non-adopting biological parent some continuing contact with the child that has legal force. I propose a new section in the Bill that reads, "Where prospective adopters agree to an open adoption and know or are introduced to the father and/or mother of the child the Adoption Authority may make an access order in respect of that child in favour of either the mother or father of the child or both of them to take effect immediately after the making of an adoption order."
At present, where an adoption is effected, the adoption authority cannot do that. I recall an incident that I was involved in as a lawyer many years ago where I represented adopters, where the mother had signed a final consent and then withdrew that consent. The child had been with adopters for two and a half years by the time it reached the courts. The mother was a troubled individual who had been meeting with the child. She was agreeable to the adoption reaching a final conclusion provided she was guaranteed that she could continue to have some access to the child. She wanted to have the facility to meet the child twice a year. This was agreed and in the end the adopters could adopt the child. There was a written agreement to facilitate the mother meeting the child. It had to be explained to her by her lawyers, as I explained to the adopters, that once the adoption was effected, that legal agreement had no real validity, it could not be enforced by the courts and she was no longer in law a parent of the child. Any agreement with regard to access to a child, even where parties are parents, can always vary based on the welfare of the child. However, the truth was that she had no legal enforceable agreement in any sense of the term and relied on the good faith of the adopters. I am presuming and hoping, since it is some years since all of this was agreed — I never heard from the parties again — that it all went well for them.
However, there is no reason this should not be the case in circumstances where people know each other, there is an intent towards continuing contact and the biological parent wants some assurance that he or she has legal grounds for maintaining that contact. There are issues of child welfare to be considered if we accept that children should have the facility of knowing who their biological and natural parents are. Even where the parent is not able to care for the child, he or she should be able to get to know him or her and maintain a relationship. It is in the interest of children's welfare that we should have this type of provision in our legislation and it does not exist at present.
My amendment No. 54 is inserted in the same place as Deputy Shatter's amendment and although they are not grouped together, essentially I am raising similar issues and so, perhaps, I can speak about it now.
It is to the effect that there should be some possibility of access, with natural parents or somebody who acted in loco parentis being able to apply to the board for access after the adoption. The idea that an adoption order must terminate all pre-existing relationships or affection in all circumstances seems very stark and black and white. I am trying to do something similar to what Deputy Shatter is trying to achieve in saying that it should be possible to apply to the court for access. People can apply for access in the case of non-adopted children in various circumstances, but as I read it, this is an absolute blanket provision whereby there is no possibility of looking for access under any circumstances.
The proposed amendments, including amendment No. 54, would provide for open adoption. Section 58 provides that upon an adoption order being made, the child concerned shall be considered to be a child of the adoptive parents, born to them in wedlock. I do not particularly like the word "wedlock" which is somewhat outdated, but in any event this provision brings legal certainty for the child and the adopters. However, there is no barrier to the adoptive parents, as Deputy Shatter indicated, making arrangements with the birth parents regarding access. The concept of adoption set out in this Bill involves a complete severance of the links with the natural parents of the child. Correspondingly, the adoptive parents become for all legal purposes the parents of the child, with full parental rights and duties. There is no legislative half-way house. Such a child and parents have all the protections and rights afforded to a child and his or her parents and family under the Constitution.
The Irish model is generally accepted in Europe. It is recognised by both the European Convention on the Adoption of Children and the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption. To suggest that there could be enduring links or rights to persons outside the family would obviously mean a very serious change to the Irish concept of adoption. This would be quite far-reaching, with obvious practical implications. It is interesting that the example which Deputy Shatter gave is of a consent being withdrawn very late in the process. Much of what we are trying to do in the Bill is to ensure that things such as that do not happen and consent and placement are properly counselled. This is to try to avoid unfortunate situations where a child might be placed for a considerable period of time — Deputy Shatter mentioned two and a half years — when the consent is withdrawn and an issue arises.
I will not accept the amendments on the basis that they would be very far-reaching and depart from our understanding of adoption.
There is a very distinct difference between the amendment I tabled and that of Deputy O'Sullivan. I would not agree with a provision whereby a post-adoption order could be made which would mean a natural parent could at any time make application for access. That would destabilise the child's situation, in particular, and create a good deal of unnecessary upset for everyone concerned. It would be inappropriate in the event of an open-ended application being made, for instance, some ten or 15 years after a child had been placed with an individual or couple for adoption. However, it was the practice of some of those involved in our adoption processes, in health boards and I presume still in the HSE, to encourage couples in particular to enter into open adoption arrangements in some circumstances. Whatever the legislation said about an adoption order giving full and final parental rights, the practice was to encourage some adopters over the years to maintain contact with the child's biological parents.
Will the Minister of State say whether this practice has ceased? Among the small number of domestic adoptions that are non-family adoptions, is it the case that this is no longer the position? In the type of adoptions that I have previously talked about at some length, involving the biological or natural mother and her husband, there are instances where the natural father may have played a minor role in a child's life and wants to maintain some involvement while being willing to co-operate in the adoption taking place provided he has some secure knowledge that he can continue to play a role in the child's life. That type of situation requires there should be some form of access arrangement. It does not mean that the adopters do not have full parental rights. This is about contact rather than exercising guardianship rights or making fundamental decisions about the child's custody or care. I emphasise it is not about giving the natural parent in these circumstances any right of any description to seek custody of a child. It is about contact alone. That, I would suggest to the Minister of State, is different and is not a problem as regards other European countries.
It is a real issue. The majority of our domestic adoptions at the moment are family adoptions, as the Minister of State knows from the statistics. Within those family adoptions there are some natural fathers who have agreed to facilitate those adoptions. They must now be asked for their view. More people would facilitate such adoptions in the interest of children's welfare if there was a possibility that the adoption authority could make such access orders where it was in the best interest of the child to do so. The Minister of State should not reject what I am saying on the basis that he has given me. There is a genuine issue here.
I should also wish to hear whether social workers are still encouraging open adoption arrangements in non-family adoption cases. Part of a developing ethos that we went through in the 1990s was to introduce the adopters to a small number of biological or natural mothers placing their children for adoption. In some instances they were not introduced, in the sense of everyone knowing each other's names, but in others they were, leading to the adoptions becoming open adoptions. Where people lived in the same area, although not necessarily the same town, it meant that they would meet on occasions. This is an area of some delicacy and sensitivity and must be looked at from the perspective of the best interests of the child. For some children, it may be in their best interests to have some formal arrangement by way of contact, but that would not interfere with the guardianship or parental rights.
I still wonder if in certain circumstances where a natural parent desires to maintain contact with his or her child, whether adoption is the right choice. That is why I have referred to the various safeguards and procedures that take place at the earlier stage. Is it not more appropriate that some type of long-term foster care arrangement be made or some form of guardianship application? I am not unsympathetic to the idea of open adoptions and believe that there is a good deal of discussion around this, particularly as regards the domestic situation where there may be a more enlightened way of dealing with these types of issues, sensitive as they obviously are. However, in the context of this legislation it would be very far-reaching to depart from the simple concept of adoptions sundering the rights of a natural parent and establishing a child as though he or she were a child of wedlock. It would require a great deal more consideration and discussion before we could depart from that basic principle.
The protections this legislation would put in place are no different from those in place for the past 20 years. It involves the same basic provisions to ensure people are given information and counselled and there is nothing dramatically different in this case. I reviewed the adoption review report of 1984 because I sought to ensure my memory was correct on this issue. It was something we had to address back then. I discovered that I addressed the issue in three editions of my family law book as well. We could address this issue in the Bill as well. I have raised it and I do not intend to press my amendment. I will revert to the matter on Report Stage. However, I call on the Minister of State to inquire, outside the family adoption concept of a natural parent adopting his or her own child with his or her spouse, into the extent in which open adoptions take place among the small number of domestic adoptions, although they may not be recognised in the legislation we are enacting.
Amendment, by leave, withdrawn.
SECTION 58.
Amendment No. 54 has already been discussed with amendment No. 4.
I move amendment No. 54:
In page 46, paragraph (b), line 18, after “duties” to insert the following:
", apart from the right to apply to the Court for access in accordance with section 11B of the Guardianship of Infants Act 1964 (inserted by section 9 of the Children Act 1997), which section is hereby declared to apply to a natural parent of, or relative of, or person who acted in loco parentis in relation to, the child prior to the making of the adoption order”.
In theory this has not been discussed because the amendment was not actually grouped with amendment No. 4. Is that correct?
It was discussed with amendment No. 4 on the first day of the debate. The Deputy made reference to it earlier. Is the Deputy pressing the amendment?
I did not realise it had been discussed already.
Is the Deputy pressing the amendment?
Amendment, by leave, withdrawn.
Section 58 agreed to.
Sections 59 to 61, inclusive, agreed to.
SECTION 62.
Question proposed: "That section 62 stand part of the Bill."
This section illustrates classically why we should do more than simply put together all our existing legislation into one compact tranche. Normally, we do not address side headings of Bills but the side heading explains the section relates to "Affiliation orders". Within the past year, I found myself involved in a court case in which a judge gave a particular application to the side heading and I understand the recent Interpretation Act requires us to do so. The courts have been unable to make affiliation orders since the enactment of the Status of Children Act 1987.
This section refers to any affiliation order in force in respect of a child. Since the courts have been unable to make affiliation orders as a result of the Status of Children Act 1987, I do not believe there is or could be anyone under 18 years, either at present or in the future, who would be the subject matter of an affiliation order. This section removes the relevant legislation from the 1952 Act based on provisions contained in legislation enacted in 1931 which required an enabled dark horse to make affiliation orders. An affiliation order was a maintenance support order that an unmarried mother could seek for the support of her child against the father of that child. Since we enacted the Status of Children Act 1987, which amended the Family Law (Maintenance of Spouses and Children) Act 1976, we simply make maintenance orders in favour of children born outside marriage. We no longer make affiliation orders. This section must be redrafted in its entirety and it is quite bizarre that we are including it in the legislation.
We will examine that. I have never come across an affiliation order. It must have escaped my attention but each section has been gone through bit by bit. However, we will go back to the Attorney General and have another look at it.
Will the Minister of State point out to the Attorney General his record is not absolutely perfect?
We have never lost one yet.
Will the matter be revisited on Report Stage?
If the Attorney General examines the minutes or the transcript of this meeting, I assure the committee we will not issue an invoice for legal fees for that advice.
I am sure he will study it in great detail. I thank Deputy Shatter. Is it agreed that section 62 stand part of the Bill?
No, it is not.
Is the section opposed?
Yes, because it is a nonsense.
Question put and declared carried.
SECTION 63.
Amendment No. 55 has already been discussed with amendment No. 1.
I move amendment No. 55:
In page 48, subsection (2), lines 26 and 27, to delete all words from and including "that Act," in line 26 down to and including "this Act." in line 27 and substitute the following:
"that Act—
(a) if the persons who applied under the Adoption Act 1991 had been issued with a declaration of eligibility and suitability before that date, the adoption may proceed under this Act as if—
(i) it were commenced under this Act,
(ii) the persons had applied under section 37 of this Act, and
(iii) section 40(1)(b) of this Act read “in another contracting state or a state that, in the opinion of the Authority, applied standards regarding the adoption concerned that accord with those in the Hague Convention”,
and
(b) in any other case,
the adoption may proceed under this Act as if it were commenced under this Act.".
Amendment agreed to.
Amendment No. 56 has already been discussed with amendment No. 1.
I move amendment No. 56:
In page 48, between lines 27 and 28, to insert the following subsection:
"(3) The Authority may appoint an agent or agents to specified countries to ensure the appropriateness of proposed adoptions in the transitional period and may authorise an adoption from a country that has not ratified the Hague Convention where it is satisfied that the adoption is in the best interests of the child and—
(a) the process is well advanced or a declaration has been received, or
(b) the authorisation is to enable a person or couple to adopt a sibling for an adopted child of a similar cultural background.”.
Amendment put and declared lost.
Section 63, as amended, agreed to.
Sections 64 to 72, inclusive, agreed to.
SECTION 73.
I move amendment No. 57:
In page 53, lines 8 to 10, to delete subsection (4).
I tabled this amendment because normally an international agreement is only binding between contracting states at the level of international law. Any breach of its provisions is a matter between the two states only. The Constitution does not require international agreements to be given the force of law in the domestic sphere. The Office of the Attorney General has advised that the provision I propose to delete, namely, section 73(4), provides for bilateral agreements to have force of law without having gone through the democratic process, which could give rise to constitutional problems.
Amendment agreed to.
Section 73, as amended, agreed to.
Sections 74 to 80, inclusive, agreed to.
SECTION 81.
Question proposed: "That section 81 stand part of the Bill."
I refer to section 81(1)(c). Will the Minister of State explain this provision? It deals with the adoption authority entering into an agreement with a non-contracting state, that is, a non-Hague Convention state that is not a party to a bilateral agreement. It deals with such an arrangement if the arrangement relates to the adoption of a specific child by prospective adopters habitually resident either in the State or in the non-contracting state, if a declaration of eligibility and suitability in the State, or an equivalent instrument, has been issued, or if the prospective adopters are relatives of the child. Who would be regarded as relatives of the child for the purpose of that section?
A "relative" is defined in section 3. This is just to make an exception so that where somebody has a declaration and is in a non-Hague Convention non-bilateral sending country, and is a relative of the child, and it is compliant with the Hague Convention, then he or she can effect the adoption.
It creates the oddity that there could be a person adopting a brother or a sister.
On whether one could have a situation of a brother adopting his brother, the definition states ""relative", in relation to a child, means a grandparent, brother, sister, ....". Deputy Shatter is referring to an adult brother adopting a child. Why would he adopt his brother?
I suppose the theory of this is there could be a person aged 21 adopting a brother aged six.
Why would the person do that? What would be the purpose?
I have no idea. I am not sure exactly the purpose of this section. I could understand situations where grandparents adopt and where aunts and uncles adopt. Normally, we would not have immediate siblings adopting. I just wonder whether this section needs a little more attention in the way that is phrased.
I am not sure it would be in the best interests of a child that such a type of adoption be recognised. If someone is one's brother or sister, he or she should remain one's brother or sister. I do not know whether the Minister of State should create legal relationships where such a person is formally the child's parent in this sense, or that we should so recognise them. I appreciate that these are exceptional cases involving a specific child, but in that provision in section 81(1)(c), where we use the phrase “are relatives of the child” and apply to it the definition contained in section 3, perhaps if we are to adopt this formula, there should be a “relatives of the child” definition for the purpose of this section which excludes brothers and sisters. I ask the Minister to consider that.
There is an argument in adoption studies about the artificiality and the difficulty that arises from perhaps grandparents adopting their own grandchildren. The Adoption Board has constantly told us — but we ignore it — that natural parents should not, in the marital situation, need to adopt their own children. It is difficult to perceive a situation that could be regarded as in the best interests of the child where a brother or a sister was the adopter. That takes the artificiality of the parenting relationship to a point where, perhaps, it should not be in the legal sense. I ask the Minister of State to give some consideration to that.
The point is that it is highly unusual. Frankly, I do not see how that could arise. Obviously, it must comply with the Hague Convention and as such, must be in the best interests of the child. It is not as if it would be, in some way or another, suppressing the best interests of a child. It would have to pass that standard in addition to the other requirements of the section.
Question put and agreed to.
Section 82 agreed to.
SECTION 83.
Question proposed: "That section 83 stand part of the Bill."
We agreed to adjourn at approximately 4.15 p.m.
There is approximately one minute to go.
We will have something of a discussion on the adopted children register and issues related thereto.
Is that on section 83?
Yes. While section 83 is fine, I refer to the following section. Perhaps we could return on section 84. We will conclude this tomorrow.
Question put and agreed to.
Progress reported; Committee to sit again.
The select committee adjourned 4.15 p.m. until 11 a.m. on Wednesday, 3 March 2010.