Amendments Nos. 58 to 60, inclusive, 64 and 68 are related and can be discussed together.
Adoption Bill 2009: Committee Stage (Resumed).
I move amendment No. 58:
In page 60, subsection (2), line 7, after "Authority" to insert the following:
", which shall give consent to that information being given where the adopted person and the person placing the child for adoption have agreed through a tracing mechanism which shall be established by the Authority that the information can be given".
These amendments deal with the authority providing a tracing mechanism, the right of an adopted person to have access to birth certificates, and to promote the development of services to assist people who were adopted and persons who placed their children for adoption to trace one another.
These were issues raised at the Joint Committee on Health and Children by groups, particularly those representing those who have been adopted. It is an aspect of the legislation that needs to be developed. The Bill rightly addresses the issue of inter-country adoption as it is ratifying the Hague Convention. However, it also seeks to update our adoption laws but does not make provision for a tracing mechanism. The existing mechanism is non-statutory and voluntary. While our amendments accept the willingness of the adopted person and natural person in such a process is necessary, it is important a statutory footing is given to the tracing process and the right of an adopted person to his or her birth certificate like anyone else. This is about giving an adopted person the same rights as everyone else in this regard. This is an equality issue and I hope the Minister of State will incorporate these amendments in the legislation. Otherwise, it will not be complete, failing to address the important issue of post-adoption services and access and the right of adopted persons to the same information others have.
Yesterday, I had four visitors to the Oireachtas and I was informing them I would be attending the select committee on the Adoption Bill. A conversation then arose about foreign adoptions and adopted persons tracing their natural parents. Out of the four, two of them were adopted, and while they did not know each other, they had a similar experience of hitting a blank wall when it came to tracing. I suppose it is something they approach intermittently until they get to a certain point and then go after it hell for leather. It was quite unusual that two out of the four were adopted. It struck me that the issue of adoption must be far greater than even we believe it to be. Tracing is vital and as much information as possible should accompany a child at all times.
I have raised before the issue of family history. We were discussing that before the position of their particular situations was announced. When the position was announced, one of them agreed with me and said that if someone were to ask whether there was a history of something or other in the family, he could only reply, perhaps on his wife's side but that he did not know about his own. In this day and age when it is possible to trace everything back through medical history, not having such a history is something we must look at seriously. It does not have to be an identifying history, but nevertheless there should be a history. In terms of birth certificates, there should be as much information as possible. It is great to put one's hands on one's birth certificate and know where one comes from. One might never want to trace one's natural parent, but it is important to know him or her and as much information as possible should therefore be available.
One of the adopted persons told me he had made attempts in the past, albeit not very strong attempts, but he met with what was literally a blank wall. He wrote a letter which was never even acknowledged. He does not know whether it reached the person to whom it was addressed. Nothing came back. I believe this section of the Bill is vital, therefore, if this legislation is about children, and I therefore support Deputy O'Sullivan's amendments.
At this stage I despair of any real prospect of this Bill being a truly reforming measure outside the area of dealing with the Hague Convention and inter-country adoption. If there were any serious attempt on the part of the Government to address the very important issues that have just been raised, these would be contained in the Bill. The impression has been given that for the past 12 to 14 years the Government has been wrestling with the dilemmas posed by this issue to produce the best solution. It appears the only solution is to leave matters as they were, so I believe it is futile to labour this issue to any great extent because, quite clearly, we are not going to see any change.
I agree with all the comments made by the two previous speakers and it is worth putting on the record of the committee some simple basic facts. Scotland, since the introduction of adoption in 1930, has provided that adopted persons on reaching the age of 17 have the right to obtain a copy of their original birth records. In England and Wales, adopted persons on reaching the age of 18 have had a similar right since November 1976. Those adopted before the enactment of the English Children's Act 1975 must first undergo counselling. In the North, the Adoption (Northern Ireland) Order 1987 extends the same rights to adult adoptees to have access to their birth certificates. In 1984 the review committee on adoption services addressed this issue and was divided on it. That division related to what should be done in the case of adoptions already effected before publication of the report and before any changes in the law. A majority were of the view that all future adoptees should have a right of access to their original birth certificates on attaining the age of 18.
Effectively, nothing has happened to implement much of what was in that report. Much of what was in that report has been ignored in this Bill. To put matters in perspective, there have been various Department of Health and Children documents addressing the need to put in place arrangements to facilitate contact between adopted persons and birth parents, but the law we are now enacting essentially just reflects what was in the 1952 Act. Of course there should be statutory revisions which allow for the obtaining of birth certificates, and certainly where all future adoptions are effected. There should be a statutory procedure applied to previous adoptions and not just a discretionary procedure, the application of which is uncertain.
Power should be vested in the adoption authority that is being established to require all adoption societies that remain in the State to furnish all their old records which should all be centralised. They should not be left in different locations. Quite clearly, however, we are not going to address any of this. Neither are we addressing the increasingly important medical issue of people knowing about family backgrounds so that they may have access to information about possible inherited illnesses or the propensity within particular families to have cardiac or cancer related problems. Unfortunately, instead of enacting modern legislation to reflect the values of 2010 and issues that practically every other country has addressed in modern adoption law, Ireland is largely ignoring them. I have no wish to labour this because I do not see it resulting in any positive initiative by the Minister of State. However, I deplore the fact that the issues which have been long debated in this State and have been the subject of a myriad of reports and promises are not being addressed in a manner in any way different from the law we have had since 1952, with the minor amendments since then.
I shall start with the stuff Deputy Shatter is coming out with about this being a futile exercise. It is obviously not a futile exercise. The Adoption Bill would not already have taken up three days on Committee Stage were it a futile exercise. If parliamentarians believed this was a waste of their time, they would not have put in so much effort. Equally, in the Seanad it occupied seven or eight hours on Committee Stage, not to mention Second Stage which, far from being a futile exercise, has attracted a tremendous amount of interest from parliamentarians.
The Deputy referred to some of the reports that appeared in 1984. For the three years after 1984, I would remind the committee, Deputy Shatter's party was in Government and he was even a Member of the Parliament at that time. For three years in the 1990s Fine Gael was in Government and in any of those six years the option existed to act on the recommendations from 1984 to which Deputy Shatter referred, but nothing was done. A more generous analysis would suggest that these are very complex issues, not very easily resolved and it is not easy to legislate for them.
By contrast this Government proposed radical changes in relation to adoption that are reflected in its proposal in the Twenty-eighth Amendment of the Constitution Bill 2007, which received all-party support in the most recent report chaired by Deputy Mary O'Rourke. That will effect a sea-change in adoption in this country, and quite rightly so. It is worth making those points because we have heard this stuff about 1984 too often.
To return to the substantive issues before the committee, at the outset it is my intention to bring forward legislation specifically on the area of tracing. It requires separate legislation, however. This is a consolidating measure we are looking at today, with some changes, to try to effect the transposition of the Hague Convention into Irish law. Specific legislation in the area of tracing is required. The present situation is to the effect that the Adoption Board has done extraordinary work in the past five or six years, in the first instance setting up the National Adoption Contact Preference Register, which has attracted many thousands of applications for registration and effected some 700 to 800 matches since its launch in March 2005. It has a very detailed framework for contact and tracing which was published in 2007. It was widely publicised and was the product of widespread consultation with the old adoption societies, representative groups and various Departments.
The matter has been examined in court, and in IOTv. B, the Supreme Court recognised “a person’s unenumerated constitutional right to know the identity of his or her natural mother”, but stated that this had to be balanced against a natural mother’s right to privacy. It also stated that neither set of rights was absolute. This case dealt with what was effectively an illegal adoption — it was a kind of pre-1952 adoption — so the assumption must be that in a legal adoption, those safeguards have to be even greater. The court provides guidance on the criteria that would allow for the release of records under section 86.
The closed adoption idea is based on a stigma of single parenthood and parenthood outside marriage. In so far as an argument is still made for privacy, it continues to be based on that stigma and that is inappropriate in 21st century Ireland. For that reason, I reject these amendments and indicate that I intend to bring forward legislation specifically on the issue of tracing.
I welcome the fact the Minister of State has spoken about getting rid of stigma and the importance of providing information where possible. I do not agree that we should wait for another Bill, however, because it has taken long enough to bring this Bill forward. The issue can and should be addressed in this Bill. It should be a comprehensive adoption Bill dealing with all aspects of adoption prior to amendments to the Constitution. I do not see why the tracing and information elements should be left for another Bill.
Amendment No. 58 refers to an agreement "which shall give consent to that information being given where the adopted person and the person placing the child for adoption have agreed through a tracing mechanism which shall be established by the Authority that the information can be given". It is a carefully worded amendment and it is in the context of an agreement by both the natural parent and the adopted person. We received a submission on the issue of the birth certificate, which stated the following.
I am very concerned that an adopted person's right to know they are adopted is not contained in the Bill. In fact, the birth certificate that is proposed will hide from an adopted person the fact that they are adopted. I find this very alarming, as I know of many adopted people who would never have found out they are adopted if they had not received their adoption certificate when they applied for the long form birth certificate.
There is a great lack of knowledge and Deputy Lynch's story illustrates that. We do not know how many people in this country are adopted. I have been dealing with a family for some time and it has taken them an age to find out the background to their son's natural parents. A health difficulty in the family could not be clarified because they did not have access to basic information about that child's background. We are not saying that unless there is agreement, there should be no information on identity, but we are saying that the information should be given that is required and that can be given. That idea is contained in these amendments.
I accept that the Minister of State has goodwill in this area, but I believe he should address these issues in the Bill. It is not too late to do that, especially in uncontentious areas like those in amendment No. 58. I cannot see any difficulty with that amendment nor with having access to an accurate birth certificate. There is also a need to obtain information about hereditary illnesses and so on.
I have thought long and hard about this and we have had these discussions about tracing before. I have met the Natural Parents Network of Ireland and many adopted people, and as Deputy Lynch pointed out, there are about 40,000 natural parents in Ireland alone who gave up children for adoption. I have also spoken to members of the Adoption Board about the issue, and they told me that they are anxious to see legislation in this area, but they are also learning about the inter-country adoption aspects of tracing, and they are only beginning to gain experience in this area. They want to bring both aspects into legislation, but they do not have sufficient knowledge to be able to inform us of what is needed for tracing legislation in the area of inter-country adoption.
The first wave of inter-country adoptions occurred in the early 1990s. Some of those individuals are now coming of age and beginning to take an interest in tracing. Therefore, it would be more appropriate to wait until we have a little bit more knowledge and experience of this area. There is a perfectly good system for tracing in this country. It has worked well. The percentage of successful matches in Ireland, at around 10% to 20%, is typical of any other country that has a contact preference register. Great credit is due to the Adoption Board for the work it has put into this area. I ask for forbearance in this area because we intend to bring forward further legislation.
Is it true that following the enactment of this Bill, a birth certificate can be issued that will not indicate in any way that the child has been adopted? The situation in respect of inter-country adoptions would be entirely different because the fact the child was adopted would be obvious. If the adoptive parent in Ireland has the option of not indicating this on the birth certificate, that parent may very well not do so. That is not right. A child has a right to know fundamental things about himself or herself, even if only as an adult. That is important.
I think the Minister of State is entirely wrong to say this matter should wait until we work through the complexities of tracing inter-country adoptions. We have had legal adoption in this country since 1952. The Minister of State referred to the number of natural parents who placed children for adoption. The Adoption Board stated that we need statutory provisions to address this issue. In the absence of a proper statutory background, the board has made a great contribution in this area, as have other groups such as Barnardos. We need a statutory background and there is no reason not to enact a Bill that addresses this issue in the context of domestic adoption to see how well that works in practice, and adapt it to inter-country adoptions.
This is about making choices and decisions, and this type of Bill exists in many other countries. There is no reason the Government could not have learned over the past decade from the experience of other countries, taking on board the best principles when drafting our own Bill.
On a final point, I should note my own amendment No. 68. The Minister of State made reference to the IOT case which stated there was a balance between the rights of the child and the question of privacy. I agree with the view expressed by the Minister of State that the privacy issue has been based on stigma. The amendment I have tabled deliberately did not deal with past adoptions because I did not think the Minister of State would address them in this legislation, but it dealt with all future domestic adoptions. If we enact a provision which expressly allows a right of access at the age of 18 to one's birth certificate for all adoptions effected following the coming into force of this measure, then there is no privacy issue because anyone whose child is adopted following the commencement of the legislation knows that when the child reaches 18, he or she will get access to the birth certificate.
The privacy issue that arose in the Supreme Court judgment arose because in that case, although, as the Minister of State said, it was not a proper, lawful adoption, when the child was given away for adoption, the natural parent was given an assurance that the parent's identity would not be revealed. No such assurance can be given in a environment post the enactment of this legislation if it expressly states that, when one's child is 18, the child will get access to a birth certificate.
I deliberately took the minimalist approach in my amendment based on the fact it did not create a problem with regard to the privacy issue and could address one small bit of this problem in a simple and direct way without dealing with the complexities of the issues that arise out of circumstances where children have been placed on the understanding that the natural parents are guaranteed some form of anonymity. That guarantee, of course, was always wrongly given because there was always a provision in the legislation that allowed for access to birth certificates if a court adjudged it was in the interests of the welfare of a child that the child would get it. The whole anonymity issue was built on a false foundation in the legislation but it was operated in practice, which is a matter we cannot ignore.
There is nothing the Minister of State has said which would create a difficulty in regard to accepting amendment No. 68, although I do not expect he will do so.
The Deputy describes the situation in the UK but in other countries there is a veto in regard to the release of records. The European Court of Human Rights has ruled on this area and has made judgments which could be criticised because they diminished the right of a child to information to some extent, although this is recognised in the convention on the rights of the child. It is a very sensitive and delicate area which has attracted different views and judgments. This is why I am strongly of the view that it will require separate legislation which needs to be teased out rather than by way of amending this legislation.
In regard to Deputy Kathleen Lynch's specific question, section 89 sets out the circumstances in which an abridged certificate is released. Section 89(2) states "A certificate referred to insubsection (1) may not disclose that the person to whom the certificate relates is an adopted person.” While I realise the Deputy is opposed to that, my undertaking is that we will address these issues in the round in separate legislation, which I believe is the right way to proceed.
We have spent the past ten years working on legislation in seeking to ensure that information is available, whether through the Freedom of Information Act or all of the other legislation. To insert this in this legislation is wrong and this element of the Bill should be withdrawn. I do not see the point of it and feel it goes against all we have tried to do.
- Broughan, Thomas P.
- Connaughton, Paul.
- Lynch, Kathleen.
- Neville, Dan.
- Reilly, James.
- Shatter, Alan.
- Andrews, Barry.
- Aylward, Bobby.
- Conlon, Margaret.
- Flynn, Beverley.
- Ó Fearghaíl, Seán.
- O’Hanlon, Rory.
- Power, Seán.
- Scanlon, Eamon.
I move amendment No. 59:
In page 60, between lines 7 and 8, to insert the following subsection:
"(3) A child shall be entitled to a copy of his or her birth certificate not later than his or her 18th birthday, and a natural parent shall be entitled to a copy of the adoption certificate in respect of his or her child not later than the child's 18th birthday.".
I move amendment No. 60:
In page 60, between lines 7 and 8, to insert the following subsection:
"(3) Where in accordance with this Act and regulations thereunder an adopted person who is supplied with a copy of his or her birth certificate, he or she shall be supplied at the same time with a copy of the relevant entry in the Adopted Children Register.".
I move amendment No. 61:
In page 61, between lines 7 and 8, to insert the following subsection:
"(4) For the purposes of ensuring that every child the subject of a proposed entry in the Register of Intercountry Adoptions has appropriate access to support services, the adoptive parents shall notify the Health Services Executive of the presence of the child within the State, within such period as may be prescribed.".
Subsection 82(1) provides for health services for all children, with no distinction made for adopted children. Members will recall that we discussed this issue on another occasion. The section provides that where a child enters the State after his or her adoption in another state by adopters habitually resident in this State, the latter are obliged to notify the Health Service Executive and the authority of the child's entry as soon as practicable and not later than three months from the date of entry. As I mentioned previously, I am considering whether the three-month period provided for should be reduced in the best interests of the child. If necessary, I will bring forward an amendment in this regard on Report Stage. As section 82 captures the essence of the proposed amendment, I do not propose to accept the amendment.
The Minister of State seems to fully accept the rationale behind the amendment. Allowing such an extended period between entry and registration could cause difficulties. However, if the Minister of State is prepared to introduce an amendment on Report Stage, I will not press my proposal.
Subsection 90(4) states:
Not later than 3 months after the date when a child first enters the State after his or her intercountry adoption in another state by
parents habitually resident in the State, the adopters shall ensure that an application to the Authority is made undersubsection (3) to enter particulars of the adoption in the register of intercountry adoptions.
What happens if an application is not submitted within three months?
Section 147, which sets out the offences arising under the Bill, includes in subsection (4), reference to the provision we are discussing regarding the requirement to register an adoption within three months. Subsection 147(4) states, "A person is guilty of an offence if the person fails to discharge a duty to which the person is subject undersection 90(4).” The penalties for the prescribed offences are set out in section 148.
It is extraordinarily draconian to render it a criminal offence for a person who has properly adopted a child abroad not to make an application to the authority within three months of entering the State in accordance with subsection 90(4). All subsection (3) stipulates is that the particulars of the inter-country adoption be registered for the purpose of having it recognised. That a person should fail to do so within a timeframe of three months should not make him or her criminally liable to prosecution. There must be a better way of dealing with this. There are all types of reasons that such a delay could happen. For example, a person might arrive in the State and suddenly find that a child is ill or that a grandparent or other family member has died. Such persons, who have been through the system, assessed as suitable and have effected an adoption, should not be liable to prosecution.
I assume that where an adoption is not registered with the authority within three months, that if it is done after four months, for example, there will not be a barrier to having it recognised and registered. That must be clearly stated because the section might be interpreted to mean that an adoption registered three months and one day after entering the State would not be registered and recognised. I urge the Minister of State to take another look at this. There should be some type of provision indicating that there may be particular circumstances that justify a delay. I am not satisfied that we should be so quick to criminalise people in this context.
That is the position that has obtained all along. As I said, I am inclined to look at shortening the registration timeframe, in which case the issues raised by the Deputy may be more likely to arise. There may be an argument for looking at some form of statutory defence of reasonable delay and coming up with a phraseology that would ensure it is not an offence that would automatically attract a penalty. We may be able to find some way of doing that.
What will happen, for instance, in the case of adoptive parents who were genuinely habitually resident in England, the United States or elsewhere for five years, where they adopted a child, and have now come back to Ireland? Will they have an open-ended timeframe in which to have the adoption registered and recognised? How will that fit into this particular structure?
The Deputy is describing a situation in which a child is adopted into another receiving country, such as the United Kingdom, and has lived there happily enough.
Yes, I refer to a scenario in which a family has genuinely lived elsewhere and has not been assessed as being suitable here——
The family then comes to live here——
Eventually such a family might come back to Ireland three or four years after the adoption and seek to have their adoption to be recognised. While I previously have expressed concern about the manner in which the legislation deals with this issue, the Minister of State has told members that such adoptions will be recognised. For this to happen, presumably one still must register with the adoption authority, which then will make a decision, but one will not be obliged to so do within three months of landing in the State. It is rather odd that people who have been assessed in Ireland as being suitable must operate within a timeframe and could be criminalised, whereas those who have not been assessed here as being suitable and about whose suitability we will be reliant on external authorities, will not have a timeframe and cannot be criminalised.
Does the Deputy suggest that we should assess their suitability? That is the logical——
No, I simply am raising the issue.
I note his point but——
The manner in which this issue is being dealt with in this context is problematic.
If an adoption has been effected in another country, obviously some kind of statutory regime of assessment of suitability and eligibility is in operation. Were we to unpick every single adoption effected outside the State to that extent——
I do not suggest that.
No, but this is the reason there is a difference.
I move amendment No. 62:
In page 65, subsection (1), between lines 10 and 11, to insert the following:
"(d) promoting the development of post adoption services;”.
I move amendment No. 63:
In page 65, subsection (1)(d), line 12, after “adoption” to insert “and post-adoption”.
I move amendment No. 64:
In page 65, subsection (1), between lines 12 and 13, to insert the following:
"(e) promoting the development of services to assist persons who were adopted and persons who have placed children for adoption to trace one another;”.
I move amendment No. 65:
In page 66, subsection (3), lines 8 to 11, to delete paragraphs (a) and (b) and substitute the following:
"(a) two shall be adopted persons elected by such body or bodies as are, in the opinion of the Minister, representative of adopted persons,”.
This amendment proposes that "two shall be adopted persons elected by such body or bodies as are, in the opinion of the Minister, representative of adopted persons". Its purpose is to put adopted persons on the board of the adoption authority. It speaks for itself and is intended to ensure that the voice of adopted persons is heard in the authority.
The adoption authority is not a representative body. It will have statutory responsibility for a number of quasi-judicial functions relating to the making of adoption orders and the registration of inter-country adoptions. It is the Government's view that such decisions should be made based on the advice and opinion of experts in these areas. A small expert authority is considered important in ensuring the consistency and continuity of decision-making in this complex and highly specialised field. I consider the construct contained in the Bill to be the optimum to ensure good governance and strong decision-making based on international law, Irish family law and good social work practice. Any proposal to include individuals from the adoption triangle immediately will give rise to calls for birth parents or adoptive parents to be represented. The adoption authority can establish committees to provide assistance and advice to the authority and the voice of all such groups may be included on such committees. The authority will also provide, as does the Adoption Board at present, a regular forum for engagement with a variety of representative groups for adult adoptees, birth parents and adoptive parents.
I accept that expertise will be required on the board and note it will include a social worker, a barrister or solicitor, a medical practitioner, etc., as well as someone with training in psychology. However, a solid argument exists in favour of someone who has direct experience of being adopted. Such a voice should be heard because it is a unique type of experience that no one else could have and it should be represented in some way. While I would prefer the inclusion of such a provision within the legislation, the Minister of State might provide an undertaking that it would be intended to have the voice of adopted persons on the board. Such people have a unique perspective on the entire adoption process and an adopted person on the board would bring a level of knowledge and expertise that would not be available to the other experts on it.
This appears to be a sensible proposal. Is there a way in which adopted people or adoptive parents could be linked to decision-making without being on the board? The Minister of State should indicate ways in which their expertise could be used. I take it from the Minister of State's response that he is not for turning on this issue as far as board membership is concerned. However does he agree it would be reasonable to use directly these people, who have such definitive information, commitment and so on, in whatever way is possible? I do not mean an obscure committee of some sort.
I fully accept the Minister of State is committed to doing what is right. However, when the entirety of this Bill is considered, it appears as though the person whose life will be most affected by the process will be excluded in every way along the line. For example, I find it staggering that one may not get a birth certificate. As children cannot articulate their rights, one expects legislation to do this for them. However, the experience of those who have been adopted, which in the main is highly positive, cannot be represented either later when such people can articulate their own position.
The Bill is straying from its original intentions to put the child at the centre of this issue, which worries me. It always worries me when boards are composed entirely of professional people who are experts in their field. Surely, when one is dealing with children, a range of experiences is required. While I acknowledge that people with expertise in respect of the law are required, otherwise what is generally needed is a wide-ranging experience of dealing with children, with whom they are placed and how this happens.
I reiterate the point that other representative groups then would legitimately claim that they also should be on the board and this could be extended to other groups that are involved in the adoption process. My experience of this area suggests it is extremely complex, particularly in respect of inter-country adoptions. Many decisions of the Adoption Board of Ireland end up being reviewed by the High Court and it is a huge responsibility. There is nothing in particular to prevent one of the aforementioned individuals, such as a barrister or a solicitor, from being an adopted person. While I am not disinclined to consider this possibility, principally and primarily, such people must be experts and must have practice. As this will be a statutory board, a minimum level of expertise is essential. At present, the Adoption Board meets almost every week to deal with highly complex issues, as well as all the issues pertaining to tracing. Its members are highly cognisant of the views expressed by representative groups, which meet them on a regular basis, as they do with me and other Deputies. Such groups are highly articulate and are good at getting across their point. I am concerned that there is some weakness in the board because of that absence. Since it is carrying out a complex quasi-judicial function, we must draw on people with expertise. Great care will be taken in appointing the board to ensure we have that expertise.
Amendments Nos. 66 and 67 are cognate and may be discussed together by agreement.
I move amendment No. 66:
In page 67, subsection (1), lines 36 and 37, to delete all words from and including "vacancy," in line 36, down to and including "authority." in line 37 and substitute "vacancy.".
This amendment would remove the prohibition on members of a local authority being on the Adoption Authority. I see no reason for an automatic prohibition. It is provided for in other legislation that members of local authorities cannot serve on various bodies, but there is no reason that a member of a local authority would not be an expert on adoption law, a barrister, a social worker or so on. Being a local councillor is not a full-time job. As I see no reason for the prohibition, I would be interested in the Minister of State's opinions on it.
It is a quasi-judicial body that, while not a court, is similar to one and makes court-like decisions. All of us have been heavily lobbied by prospective adoptive parents. Were a politician also on the board, imagine the type of lobbying he or she would receive. It would not be appropriate.
I move amendment No. 69:
In page 71, lines 23 to 28, to delete subsection (2).
This amendment would remove the subsection detailing that the chief executive cannot comment on Government policy. This provision has been creeping into legislation all over the place and the chief executives of various bodies are being gagged. It is a negative development because chief executives have a fair amount of knowledge about the operation of their organisations, be it this one or another. That they cannot comment on Government policy seems to be a denial of freedom and public information. Their being able to comment would be constructive. If issues need to be addressed, Ministers should be told about them. Who better to do so than the chief executive running the organisation on a day-to-day basis? Will the Minister of State accept my amendment?
I assume that, if said chief executive had something positive to say about the Government, there would be no problem. This is only about the negative side.
This is a standard provision, as Deputy O'Sullivan pointed out. We are dealing with a quasi-judicial body that is making decisions on people's rights with powers analogous to those of a court. As such, the imperative to acknowledge its separation from Government policy is even greater. I am not inclined to accept the amendment.
How stands the amendment?
It is an important principle in all legislation, so I will press it to a voice vote.
I agree with the Minister of State. Were we to allow the chief executive officer to comment on policy and political matters, we might as well allow Members of the Dáil, local authorities and the European Parliament to be on the board. I take the Minister of State's point that, if the authority is quasi-judicial, it is important that a chief executive officer not involve himself or herself in political debate. I have no doubt that he or she would draw attention to issues pertinent to his or her job, but the provision in the Bill is to preclude him or her from becoming involved in political debate.
Amendments Nos. 70 and 74 are related and may be discussed together by agreement.
I move amendment No. 70:
In page 79, between lines 33 and 34, to insert the following subsection:
"(4) Reference to this section is inserted in Part I of the Third Schedule to the Freedom of Information Act 1997.".
We received some submissions on this matter. It is appropriate that the Bill refer to the Freedom of Information Act. I accept that elements of the work of the authority should not be subject to the Act, given the large amount of personal information dealt with, but this does not mean that there should be no reference whatsoever. There may be factual information on numbers, for example, or information that is not personal but is relevant and important in terms of public knowledge and debate. I am not insisting that all of the information should be subject to freedom of information requests, but elements of the authority's information should be subject to such requests. For this reason, I have suggested the Act be referred to in the Bill.
I am tabling amendment No. 74 to insert a new section 161 to bring the general administration records of the authority under the provisions of the Freedom of Information Act in accordance with Government policy in this area. The new provision, by amending section 46 of the Act, also has the effect of excluding from that Act any records of the authority relating to or arising from the making of an adoption order or the recognition of an inter-country adoption order effected outside the State. My amendment accepts the Deputy's concerns in this area and, for that reason, amendment No. 70 is unnecessary.
Is the amendment being pressed?
No. I thank the Minister of State for accepting the principle of my amendment.
I move amendment No. 71:
In page 83, between lines 14 and 15, to insert the following subsection:
"(6) Notwithstandingsubsection (1)(a), a person may carry out an activity described in paragraph (g), (h) or (h) of section 4 so long as that person is not also carrying out an activity described in paragraphs (a) to (f), (i) or (j) of that section or any of the activities described in section 5.”.
I move amendment No. 72:
In page 93, between lines 13 and 14, to insert the following subsection:
"(3) Regulations may make provision for an entitlement to leave from employment for the purpose of travel by prospective adoptive parents in order to complete the intercountry pre-adoptive process.".
This is a proposal from the Irish Congress of Trade Unions. The amendment seeks to provide entitlement to leave of absence from employment for the purposes of prospective adoptive parents travelling to complete the intercountry pre-adoption process. It is a practical proposal. If one must travel abroad in these situations, time off work would greatly facilitate parents. I am interested to see if the Minister of State is disposed towards this.
Adoptive leave is already provided for when a child returns home for the benefit of the child. Prospective adoptive parents must retain and build up holidays since they do not know when the referral will come so they might have years of holidays built up. It is a very untidy situation for them. Nevertheless, this is not the appropriate legislation to deal with this. There is an employment rights issue and it should be properly dealt with in employment legislation. Consultation with employers would be required to ascertain their views. Let us bear in mind that if one adopts from Mexico, one could be there for six months on average. Employers would like their views incorporated into any decision. This amendment is better suited to employment legislation.
That is a valid point. The provision would need to be subject to negotiation. I would like the Minister of State to open up discussions in this area because it is a practical problem people encounter. Perhaps this is a growing number but it does not amount to a huge number of people. I take the point made by the Minister of State that if someone will be away from employment for a long period it will be difficult for small employers. I will not press the amendment but I ask the Minister of State to give an indication that he will examine this. The Minister of State has acknowledged the difficulties in this area. Perhaps he can examine it in conjunction with other Ministers to see if there is room for flexibility.
I am slow to indicate that I will take this up with employers or other Ministers. However, I accept the situation is untidy. I will undertake to give consideration to the points made by Deputy O'Sullivan. I do not want to indicate which way we will go on this but we will try to think of solutions to the issue.
Perhaps some of the bodies representing various groups can make suggestions on this point.
They raised the issue with me but they have not made any suggestions.
I move amendment No. 73:
In page 93, subsection (1), lines 16 and 17, to delete all words from and including "ensuring" in line 16 down to and including "bodies" in line 17 and substitute the following:
"promoting the carrying out of the activities specified in sections 4 and 5 by accredited bodies".
This seeks to change the wording. This was raised by support groups concerned about whether they must become accredited bodies. It seems inappropriate that support groups should have to become accredited bodies but it is not very clear in the legislation how they can carry on their functions without being accredited bodies. Will the Minister of State consider changing the wording? I presume he has given consideration to this matter because it is an issue that has been brought to our attention by several bodies. It is a genuine problem and none of us would want the bodies to go out of existence if they are providing genuine support to families in this situation. I ask the Minister of State to consider my point. I do not know if the wording is a wording he can accept but perhaps he can give some indication that he will address the matter.
I made an amendment, No. 8, some time ago to section 4. Section 4(g) and (h) refer to activities that do not require a body to become an accredited agency. As such, the fear expressed has been dealt with by that amendment. The purpose of this section is to enable me to make regulations under the Act. The purpose of the regulation is to regulate rather than promote activities. The accredited body may apply to be registered to make arrangements for the adoption as set out in sections 4 and 5. For that reason, the amendment is not accepted.
Can the Minister of State clarify if he is satisfied the support bodies will not become accredited bodies in order to provide support they provide?
Yes, if they come within the three subsections I referred to on page 18, including amendment No. 8. If those activities are not related directly to the placing of a child for adoption there is no need to be accredited. Under the Hague Convention there is a need to be accredited if one is involved in the placement of a child for adoption or the activities referred to in section 4.
I move amendment No. 74:
In page 98, before section 161, to insert the following new section:
161.—The Freedom of Information Act 1997 is amended in section 46(1) (as amended by section 29 of the Freedom of Information (Amendment) Act 2003 and section 74 of the Safety, Health and Welfare at Work Act 2005), by inserting the following after paragraph (dc):
"(dd) a record held or created under the relevant statutory provisions by the Adoption Authority or an employee of the Authority, relating to or arising from the making of an adoption order or the recognition of an intercountry adoption effected outside the State, within the meaning of the Adoption Act 2010, (other than a record concerning any other functions of the Authority or the general administration of the Authority),”.”.
I move amendment No. 76:
In page 13, line 14, to delete "SIGNED" and substitute "DONE".
The word "done" is technically correct and it is used in the Hague Convention, as can be seen at the end on page 116 of the Bill at the end of Schedule 2 which contains the convention. Once the convention is done and opened for signature it can be signed by any State at any later time. Stating it was signed on 29 May 1993 is inaccurate in so far as it was not signed by all countries on that date. In the Seanad, the Minister of State explained that the practice is to use "signed" rather than "done" in statute law. However, my very learned legal adviser tells me there are many examples in statute law of using the word "done" rather than "signed". He gave me the reference of Schedule 7 of the Europol (Amendment) Act 2006. I will not pretend to be as learned in these matters as other members of the committee and the Minister of State but I understand precedents exist for using "done" rather than "signed".
The Deputy must have been up all night looking up those references.
As Deputy O'Sullivan stated, this matter was raised in the Seanad and as I stated there, the Irish practice is to use "signed". I have been advised by the Office of the Attorney General that this is still the practice and I must accept his view on that. For this reason I will not accept the amendment.
We had some discussion yesterday as to whether the Attorney General was right about everything. My legal adviser is also a very learned man so I wonder whether the Minister of State can re-examine this matter prior to Report Stage. My legal advice suggests it is inaccurate to state that it was "signed" as in fact it was "done" or "agreed" rather than "signed".
I thank the Minister of State and committee members for their co-operation over what has been an extended period. Good work was done over those days and we look forward to the Bill proceeding to Report Stage.
I thank the Chairman and his secretariat for all of the work they put into this. I also thank my officials who put in an unbelievable amount of work. It is important to acknowledge that and to thank the Deputies for their contributions.