The amendments are opposed. To the extent that Deputy Shatter's proposed amendment deals with the citizenship situation that arose from adoptions recognised under Irish law, the new section is superfluous because it states what the statute law already is. Adoptions undertaken abroad are recognised in Ireland pursuant to the provisions of the Adoption Act, 1991, as amended by the Adoption Act, 1998. It has been pointed out correctly that the effect of the 1991 Act is that a foreign adoption which meets the criteria set out in that Act is regarded under Irish law as if it were an adoption order made under the Adoption Acts. As far as the citizenship of a person adopted by an Irish citizen is concerned, section 11 of the Irish Nationality and Citizenship Act, 1956, provides that the adopted person is an Irish citizen from the date of the adoption.
To the extent that the Deputy's amendment relates to adoptions not recognised under Irish law, that is, adoptions which do not meet the criteria set out in the 1991 Act, as amended, the amendment is inappropriate and, to that extent, unacceptable. If an adoption does not come within those criteria it does not make good law to extend Irish citizenship to such a person. I appreciate there are circumstances where Irish parents have undergone an adoption process in the country of origin of the child, but that process has not resulted in an adoption which meets the criteria we have laid down in statute for recognition under Irish law. I understand this arises most frequently because adoption in the countries in question maintains links of guardianship andcertain residual rights of the natural parents.
Irish adoption law is predicated on their being a complete severing of the legal links between the child and the natural parents and the forging of new legal links of an equal nature between the child and its adopted parents. The 1991 legislation, as amended, takes that as the cornerstone of the recognition of foreign adoptions and in so doing broadens considerably on the rather restrictive view based, among other things, on the test of domicile taken by the courts up to that point.
I recognise the problems faced by the adoptive parents in these special circumstances and their concerns for the rights of their adopted children. However, I must be conscious of the fact that, in law, the natural parents of such children continue to have an entitlement to be heard and to have a say in the future of their children. The issue that needs to be addressed in relation to these children is not the piecemeal question of citizenship in isolation, but the whole package of rights and relationships which Irish law should or should not recognise as existing between such adopted children and their natural parents.
We must also consider the rights and relationships between the children and their adoptive parents and between the natural and adoptive parents. There is, therefore, a whole package of rights and relationships, none of which can be considered in isolation, because it would be wrong to do so. My colleague, the Minister for Health and Children, is undertaking a review of the law on the recognition of foreign adoptions with such considerations in mind. The review is in the context of the preparation of legislation necessary to ratify the Hague convention on inter-country adoption.
I strongly urge that this is the proper context in which to address the issue, not only of the citizenship of these children - one cannot take citizenship in isolation - but also of the other rights and relationships in question. It must be recalled that this Bill is dealing with citizenship. It is dealing to an extent with the implementation of the Good Friday Agreement and the consequences of the entitlement regarding citizenship now in the Constitution.
The citizenship legislation of certain countries abhors the notion of dual citizenship to the extent that the acquisition of citizenship of another country may act to deprive the person of his or her citizenship of origin. Deputy Shatter's amendment would mean our law imposing Irish citizenship on a child who, by virtue the nature of the adoption, maintains legal links with his or her natural parents and maintains citizenship of the country of origin. Such a law might conflict with the rights under the Constitution of the child and of its natural parents primarily, by changing the citizenship status of the child without reference to the natural parents' guardianship rights and possibly also, depending on the approach to dual citizenship in the country of origin, by depriving the child of its citizenship of origin without regard to the wishes of its natural parents.
From the side note to the proposed new section it appears that the intention of Deputy Howlin's amendment is to address the question of Irish citizenship by descent from a person adopted outside the State before 1991. My understanding of the effect of the Adoption Act, 1991, in tandem with the Irish Nationality and Citizenship Acts is that once the adoption comes within the criteria of the 1991 Act, as amended in 1998, and at least one of the adopters is himself or herself an Irish citizen, the adopted child becomes an Irish citizen. Citizenship by descent through an adoptive link operates in an analogous fashion to citizenship through a natural link. If a non-national child is adopted by an Irish adoptive parent, that child is an Irish citizen within the adoption and this applies whether the adoption is conducted under Irish law or is a foreign adoption which meets the criteria of the 1991 Adoption Act. If a person so adopted goes on to have a child of his or her own abroad that child is in turn an Irish citizen because the parent was an Irish citizen at the time of the child's birth.
I recognise that there is a class of persons whose Irish citizenship dates not from the date of the adoption but from the date of the commencement of the Adoption Act, 1991, on 30 May of that year. They are set out in sections 3, 4 and 5 of the legislation to which Deputy Shatter referred and which he introduced to the House. These are persons adopted by an Irish parent by means of a foreign adoption order before that date, with the exclusion of those cases where the Irish parent was domiciled in the jurisdiction where the adoption was made. For a person in that class who gave birth outside Ireland before that date, the child is not an Irish citizen and does not acquire it by reason of the parent's later acquisition of Irish citizenship. That is a reasonable and consistent way for the law to operate, though it is always open to a person born in these circumstances to apply for naturalisation. The Deputy's amendment envisages this possibility.
However, the thrust of the amendment as drafted is to give a certificate of naturalisation granted in those circumstances retrospective effect to the birth of the child. I will not be drawn into the storm in a teacup regarding Mr. Cascarino or the European Cup, but the thrust of the amendment is to give a certificate of naturalisation granted in those circumstances retrospective effect to the birth of the child. That would be unacceptable in principle. There is a difficulty with it in that it could have all sorts of subsequent ramifications and side effects which would almost definitely at least give rise to a major degree of uncertainty regarding our law. It is on that basis that I must oppose that amendment.