Before we get into the first amendment in the name of An tAire, he would like to read a statement to the Committee to put his amendments in context.
Procedure
With your permission, I would like to make a short statement to the Committee in order to put the amendments in context. We are all agreed on the principle and the overall objectives of the Bill. We are also conscious of and sensitive to the difficulties being experienced by Irish parents who have adopted children in Romania and elsewhere. I believe that the amendments I am bringing forward will provide an acceptable and lasting solution to the problems of these families. I also believe that they will provide a secure legal framework for the recognition of foreign adoptions granted to Irish parents in the future. The first major amendment, No. 2, that I am bringing forward defines the term "foreign adoption" for the purposes of the Bill. I consider it essential to include this definition in the Bill so as to ensure that recognition is only extended to adoptions made in countries which operate a system of legal adoption broadly akin to our own.
The Government accept the desirability of recognising adoptions granted to people who are either domiciled or habitually resident in the foreign country at the time of the adoption. My amendments, Nos. 4 and 5, are essentially technical, to improve the drafting of the present provisions without changing their essence.
Amendment No. 6 would substitute a new section for the present section 4. The essential purpose of this amendment is to provide for the recognition of adoptions granted in Romania and in other foreign countries to people living here who travelled abroad for the sole purpose of adoption. Under my proposals, people who have adopted abroad before 1 April next, will be entitled to have their adoptions recognised, if they come within the categories of persons eligible to adopt a child under Irish law and the adoption comes within the terms of the definition of a foreign adoption. Their eligibility will be determined by the Adoption Board. From 1 April 1991 people who wish to adopt abroad will be required to have their eligibility and suitability established before they travel to the foreign country. These assessments will be carried out by the health boards and will be approved by the Adoption Board. Prospective adopters will be provided with a certificate of their suitability and eligibility, which they can produce to the foreign authorities.
Amendment No. 7 provides for the establishment of a register of foreign adoptions. This register will be kept by the Adoption Board and it will be open to the people who adopt abroad to apply to have their adoptions entered in it. I believe that this will be of great practical benefit to adopters and adopted people. It will enable them to have their foreign adoptions examined and recognised without having to initiate costly court proceedings. When an adoption is entered in the register, they will be able to obtain a certificate which will be similar to a birth certificate. They can produce this certificate as evidence that their adoption has been recognised.
Amendment No. 8 would, amongst other matters, enable people whose adoptions are refused entry in the register to apply to the High Court for an order directing the Adoption Board to enter the adoption in the register.
Amendment No. 9 would impose a statutory duty on health boards to carry out an assessment of the suitability of persons wishing to adopt abroad and to transmit the assessment report to the Adoption Board for consideration.
Amendment No. 10 is technical and provides for the manner in which evidence of a foreign adoption may be given.
Amendment No. 11 would extend the classes of persons eligible to adopt under domestic legislation, so as to permit single people and married people who have separated to adopt here in exceptional circumstances where this is clearly in the best interests of the child. This will, in turn, facilitate the recognition of the foreign adoptions granted to single Irish people. The amendment would also end the distinction that currently exists as between the entitlement of widows and widowers to adopt. At present, a widower is only entitled to be granted an adoption order if he had applied to adopt the child jointly with his wife before she died. I intend to abolish this restriction. I also intend to avail of the opportunity to introduce a standard minimum age of 21 years for adopters.
I believe that my amendments develop and improve the original proposals in the Bill and I sincerely hope that they will be accepted by the Committee in the spirit in which they are proposed. I would like to emphasise that they are not being put forward for party political purposes, but rather with a view to ensuring that the Bill provides the best possible legal framework for the recognition of foreign adoptions.
What I propose, with the agreement of the Committee, is that, if the leaders of the different groups wish to make a reply to the Minister's general statement, they may do so now. Then, we will get into the amendments.
I would like to disagree with that proposal. Contrary to what the Minister states, the Minister is, in effect, presenting the Committee with an entirely new framework for this Bill. I think it is an impossibility to tease out the problems that the new framework would create and which I intend to go into now in some detail in reply, simply by the leaders of the groups making a statement and then dealing with the individual amendments — this is because, once we begin to deal with the amendments, taking on board the initial amendments will automatically mean that we are heading into the Minister's new framework. I think each member of this Committee is a Member of the Dáil and is of the same standing as every other member of the Committee. Each member of this Committee is entitled to comment on the overall framework the Minister is proposing. I would hope that, in the context of comments I am going to make and other members of the Committee make, the Minister will have an opportunity to respond.
I believe that is a constructive way of approaching matters. I do not think it should be a question of simply statements coming from each group or each of the political parties and then going into the amendments. It is everyone's desire to get the best possible Bill out of this Committee and I am very deeply concerned that while the proposals the Minister is bringing forward may be well intentioned — and certainly, in the context of the Minister's opening remarks, it seems to me that there is no ill intention in relation to any of them — some of them are ill conceived and could, in fact, create major problems where they are supposed to resolve problems. I think the Minister should have an opportunity to respond to comments I am going to make. Other members of the Committee must be entitled to comment when amendments are introduced, not only to seek to amend every single section of the Bill, but even to go so far as to try to change the title of the Bill. I do not care what title the Bill has, provided we do the job properly. We must tease this through and I would suggest that each member of the Committee be allowed to exercise their full rights to respond to the Minister's statement. I will respond in a moment when we resolve this particular aspect.
I would like to make it clear as Chairman that I am not trying to restrict the discussion, good, bad, or indifferent. I just felt that as this was a general statement on the Minister's side the leaders of the different groups would like to respond and then we would get down to the detail but if it is felt that there is another way, it is a matter for the members to decide.
On this procedural preliminary point, I have worked on one committee previously — on the Judicial Separation Bill — and it is the first time that this notion of groups at committee has been identified. I think we should abandon that and work as a committee of 15 individuals towards a common end. I welcome the Minister's statement that we are here working towards the same principles and the same idea and objectives.
I support Deputy Shatter in the process of working. If we took a bit of time to tease out and identity the principles we are pursuing today it would not be time wasted. I received the Minister's amendments yesterday morning. They may have been in circulation——
They were circulated on Friday.
If I am to carry some of the blame, can I say that I had the first opportunity to address them yesterday morning. Whether I got them on Friday, before the long weekend or not, would not have added greatly to it. They are very substantial and they represent a departure or a divergence in principle from what was originally taken on board by the Minister on Second Stage. I would like an opportunity of teasing out in a broader sense today exactly what is intended rather than getting into taking up now for example, amendment No. 1 which is a definition amendment. We are going to have to take a broad view as to where we are going with this legislation. Are we going to accept the Minister's approach and reconstruct the Bill entirely or do we hold more to what is originally published and circulated? Those fundamental decisions would be a great help. Therefore it would be worth while to have a broader discussion rather than a rehash of statements today. The Committee would work better on the basis of 15 individuals working towards drafting good legislation.
This is the first time on a committee in which a statement explaining the Minister's amendments was made but if the rest of the Committee agree to this procedure, I have no objection to any amendment being withdrawn by agreement or approved. I would hope that the Committee having set out on a good footing on the floor of the House would reach a broad consensus. None of us wants to score political points. We were told on the floor of the House that the Bill was so defective it would need major amendments. Many of us on the Opposition side felt that was not necessary. It was a relatively good Bill but I have no objection to changes in the name.
In the first amendment, the Minister wanted to define foreign adoptions in such a way that adoptions would be confined to countries that would have a legal system broadly akin to our own. It would be impossible for us to legislate for the legalities of another country, even if everything else had met the requirements such as the consent of the parents. It might be a very restrictive amendment. I would be led by Deputy Shatter's view on this because he has put so much work into it. I read the amendments as quickly as I could, as I got them late and I would like to know what the Minister is doing. It is not as simple as the statement says. We should try to get agreement on what we want to do about this problem which is a growing one for all of us. We find that people in our constituencies who have gone through an adoption process and are at present in Romania repeating the procedure are asking about the status of the children they are adopting. I would prefer if we could reach agreement and then discuss the amendments.
Before we go into the text I wish to refer to the announcement made by the Minister on Friday, 15 March and repeated again under amendment No. 6 where he sets out the provision that all adoptions that have taken place before 1 April will be recognised and all adoptions that take place subsequent to that can only be recognised if adoptive parents have got the assessments done and the approval given.
I have been told there are a number of adoptive parents in Romania at present who are partly through the process of adopting babies and who will not be back in this country before 1 April. They are worried about what is going to happen to their children and to the adoption arrangements. Even at this early stage that position ought to be clarified. I was asked by a number of groups in my constituency if I could find out today so that at least some kind of information if nothing else could be given to guide these people. The last thing they want to happen to them is to come back to Ireland on 2 April or 22 April, having gone through all the procedures, to find out that somehow they have been wrong-footed in time in relation to the law. If the Minister could give us some guidance on that it would be very helpful to a number of people.
Perhaps I could broadly indicate some of the concerns with the amendments and we might go into the substantive aspect of it. What Deputy Quill just said is one of the problems that has given rise to great alarm and concern on the part of many people. I would like to discuss that in the overall context of the Bill. I do not know whether there is any more information on that issue the Minister wishes to impart.
It is unrealistic to table measures on 15 March to be included in a Bill that will not be enacted for some weeks, in the following circumstances, according to my information in reply to a Dáil Question I tabled to the Minister for Justice to which I got a reply on Thursday last: as at 14 March, 477 letters had been issued from the Department of Justice in the period 1 January 1990 to 14 March 1991 to couples wishing to adopt children in Romania for presentation to the Irish immigration officer at the port of entry to facilitate entry clearance when returning to Ireland with the children. To my knowledge there are a number of couples currently in Romania. There is little likelihood that most of them will complete their adoption processes this side of 1 April. I am aware of couples who have made all the preliminary arrangements, who are going to Romania towards the end of this week or early next week and who have been thrown into total confusion by this cut-off date the Minister has published. This is not the approach we should be adopting and I will go into that in some detail.
I do not know whether there have been any discussions between his Department and Romanian authorities about this but this is presenting a major problem to couples who are now in Romania. I have had feedback from them. The Romanian authorities have heard that the Minister has amendments flying around this House which indicate to them that if they allow any Romanian child to be adopted by an Irish couple after 1 April in circumstances where they do not have some sort of imprimatur from the Adoption Board, not only will that child not have his adoption recognised here but there may be problems with that child being brought back into the State. When one is facing a sensitive and delicate problem such as this, it is not the way to deal with it. In the context of the Minister's framework, he may wish a cut-off date to implement the type of proposals he has but if there is to be such a cut-off date it should not be until something in the region of 1 September or 1 October next which gives an opportunity for the arrangements the Minister is suggesting to be brought into operation and which does not leave many couples who have made arrangements to go to Romania or who are currently in Romania in a legal limbo with all the pressures they have being added to by this type of proposal. That is one of the broader issues I want to raise with the Minister. I do not know whether you would like me to go into the response I want to give to the Minister's opening statement.
Perhaps I could just deal with that issue about 1 April. It was necessary to have a cut-off date because if you were to give a date such as 1 September it could mean that many people would go to Romania who have not processed in any way their desire to adopt a child abroad. It was necessary to have a cut-off date that was close to the time that this announcement was being made with the other amendments we announced last Friday. We will be flexible in terms of people whose application is being processed, particularly where they have been in touch with the Romanian authorities. A number of people have been in touch with the Department to date about that issue, but there will not be a difficulty for people, like the people described by Deputy Quill and Deputy Shatter. There will not be a difficulty for people who went out there and brought back their babies. There will not be a difficulty for people who are three-quarters of the way towards their application being processed. I am aware of a couple who have to attend a court hearing in Romania on 28 March and it is quite possible that these people will not be able to bring their child back. But it is very important that people who do not have an application processed in some way at this stage should not be encouraged by us to go abroad and adopt a child. Perhaps they have not even given it the serious thought it merits.
That is the reason that 1 April went in, but I want to assure Members that we will be flexible in terms of people who are already in Romania and those who have had their applications processed to a large extent. I suggest that these people write to the Department and we will examine their application and be as sympathetic as possible to them. Of course, I should also point out that after 1 April the criteria that will be laid down will be very practical criteria in the best interests of the child and also in the best interests of the adopting parents.
On the point of the cut-off date could I make the observation that we are not dealing with tax evaders or people who are in need of amnesty or who are likely to take great advantage of the situation. I am greatly concerned with the Minister's view that if he was to give a workable date, a time schedule people could work to — and he suggested September — it was in some way going to be circumnavigated by people who had a devious attitude about this whole matter. That is to fundamentally misunderstand the good nature, goodwill and good intent of people who are involved. We have to get away from this idea that we are into some kind of underhand racket, as has been suggested, or trafficking; we are not. There is no suggestion of that and, thankfully, it was never made at any stage in the Second Stage promotion of this Bill. I am a little worried that the Minister is now, unwittingly, introducing it by the involvement in his amendment No. 6 of a cut-off date.
I wonder whether there is not another way. This is what Deputy Shatter is trying to address in a broader debate this afternoon. There is a different way of dealing with it. His Bill proposes a different formula and a different framework which does not involve the necessity of any cut-off date. The Minister simply led in by suggesting, in response to Deputy Shatter, that there was a need for a cut-off date. I do not understand that, other than he insists upon the technical framework in his own amendment. Rather than get into the nuts and bolts of the amendment at this stage, certainly on this issue because it is very worrying, perhaps, the Minister will indicate that this date is negotiable. Will he indicate that the workability of his framework is not dependent upon such a definite and peremptory deadline, particularly where it is creating practical difficulties on the ground? In that regard may I ask the Minister if we have opened very direct lines of contact with the Romanian authorities about what we are doing and what he hopes to achieve in this legislation? It appears, from reports we are getting back, that there is a fundamental misunderstanding of our legislative process, on the one hand, and of the ultimate legislative impact of what we achieve, even if we are to go along with the Minister's suggestions. We need to tease this out a little more, in terms of what the Minister has in mind and how strongly he is committed to the notion of the need, in the first instance, for the cut-off date, and of the one suggested in the amendment.
Like most members around the table, I was contacted over the weekend by three couples who were slightly worried about this cut-off date. I can see why the Minister is bringing it forward to a fairly short period in the future — 1 April — because the fact that quite a number of people contacted me over the weekend indicated that they were slightly worried. They were not sure of what the criteria would be regarding adoption in Romania. The three of them were heading out before 1 April to ensure that they would get a baby before the cut-off date. I would be slightly worried coming out of this meeting that the perception will go abroad that, after 1 April, there will be a very strict regime and that it will be more difficult to adopt in Romania. My understanding, having read the amendments, is that the putting in place of the procedure and the criteria after 1 April may, in fact, assist couples going out in that they will have a State recognised suitability letter from a health board or adoption agency which will help them in dealing with the agencies in Romania.
I have to say — and I think most people are aware of this — that the agencies in Romania leave a lot to be desired and are only now being put in place. One of the couples who came to me over the weekend more or less had nothing done about adoption in Romania but decided to take the first plane out. As one of the partners said to me, "We will pay whatever it takes". That is a danger we could fall into. We could in some way allow a situation like that occur. It is vital that any couples going out to Romania have the proper State recognition. I can see why the Minister is not putting the date to 1 September because it would lead to a huge influx of applications trying to get in before 1 September, or whatever date would be chosen. At the end of the day, that might not be in the best interests of them, in the best interests of the child in Romania or the natural parents. I can see what the Minister is doing and I can empathise with the sentiments expressed around the table. However, to put an extended date probably would not be in the best interests of all concerned.
I do not want to rework the ground used by other members of the Committee. However, there are many people who, even if they have not gone to Romania or have not got sanction, are very close to the point where they would be going to Romania and hoping to have an adoption. The Minister is throwing their position into significant doubt. The Minister talks about being flexible but, as I understand his proposal, he is going for this detailed assessment by the health board who, to my knowledge, are currently taking months to process. There is no suggestion in the legislation that there will be a fixed time limit on them. The legislation will not be through by that time. Many people going to Romania feel this opportunity is progressively closing to them. Months of delay, which seems to be implicit in the 1 April date, by switching from what is currently a relatively simple assessment to be presented to the Romanian authorities to a much more detailed one, could close off opportunities or, at least, postpone them for many people. I would even question, in the long run, whether it is credible to have a pre-condition written in that will be binding in every case, that one has to have a declaration. If people have an adopted child and it is in the best interests of that child that he continue to be recognised as adopted in Irish law, I cannot see that we should have some sort of a hand trip put in, that if they did not have this in writing before they went out to adopt all bets would be off. I do not think that makes sense even in legislation. I am very concerned at this cut-off date. It will create big problems for people who are well on their way to an adoption.
I take this opportunity to respond to the Minister and put this problem in the context of the other problems. The original framework of the Bill was designed to provide rules for the recognition of foreign adoptions that (1) generally accord with the private international law rules applied by other countries and (2) correspond with the Law Reform Commission's report. In so far as it differed from the Law Reform Commission's report, it was designed to address the issue that has since arisen, the issue of Irish couples resident in Ireland going to countries such as Romania to adopt. That was not an issue that was addressed in the Law Reform Commission's report. They took the view that that should be left over until a private international law conference in the Hague in 1993 had worked out international rules on this. It is now generally accepted that, because of what has happened in Romania and the extraordinary large number of Irish couples who have adopted in Romania, we have to move and provide our own legislation.
I want to address the Minister's amendments, but I also want to address some aspects of the Bill which have given rise to debate and with which, it appears, the Minister is in agreement. Throughout the Second Stage debate the Minister, and others, came into the House — indeed during the course of various media commentary this also arose — and suggested that there was a problem in recognising adoptions in the context of an Irish couple adopting a child born to a family within marriage. There was a suggestion by the Minister that if you recognise the adoption of the child born to a married couple where that adoption took place outside the State, there were all sorts of constitutional problems. That was one of the political sticks that this Bill was beaten with for three months. I welcome the fact that that appears to be no longer an issue. We seem to be in agreement that that does not arise as a problem in the constitutional sense in applying rules of private international law. I welcome the fact that that is not an issue the Minister seems to be pursuing in the amendments.
It does seem there is agreement in the sense that it is accepted we should recognise foreign adoptions where the couple adopting are domiciled in the foreign country or habitually resident in the foreign country. The Minister in his opening remarks makes reference to the particular sections he is trying to amend in this context which would be his sections 2 and 3 to replace the existing sections 2 and 3 in the Bill. He refers to these amendments — and he goes on to mention amendments Nos. 4 and 5 — as essentially technical amendments.
I am concerned that there is a degree of confusion here. I believe that the full impact of what the Minister is proposing and its implications may not be appreciated. I do not believe there is a need to reconstruct the Bill in the way the Minister is doing. I am long enough in the tooth to know that any Minister presented with a Private Members' Bill if he cannot get rid of it on Second Stage tries to reconstruct it on Committee Stage. Equally, I do not particularly care whether this is called the Recognition of Foreign Adoptions Bill or simply the Adoption Bill provided it addresses the issues that need to be addressed. I have no hang-ups about any of that. My concern is that the amendments proposed by the Minister will give rise to substantial difficulties in applying the recognition of foreign adoption rules that we are seeking to apply and I want to explain that in the context of what the Minister says is just a redrafting job.
Sections 2 and 3 of the Bill as drafted provide, as I mentioned a moment ago, for the recognition of foreign adoptions in circumstances where a couple are either domiciled in the country in which they are adopting the child or are habitually resident in the country in which they are adopting the child. At face value when you address in a speedy way the new sections 2 and 3 that the Minister is seeking to put into the Bill, it would appear as if they are doing the same thing. It appears as if it is just another way of phrasing — recognising adoptions based on domicile or based on habitual residence. In my view there is no particular legal reason of any nature whatsoever to redraft sections 2 and 3 in the Bill and insert new sections 2 and 3 as the Minister is proposing.
If the Minister wished for some reason to play around with the semantics of the Bill and if it did not do any damage to the Bill and if it did not give rise to major difficulties for adopters I would have no problem with it. But it does give rise to difficulties. The intention is, according to the Minister, that you would be able to have your adoption recognised by the Adoption Board on the board, in the context of sections 2 and 3, being satisfied that you were domiciled in a country where you adopted or you were habitually resident.
What the Minister is missing — and the same problem even more so is going to arise with Irish residents — is that in the Minister's amendment the board must not only be satisfied that the couple were domiciled in the country in which they adopted but they must be satisfied that the adoption falls within the concept of the definition of foreign adoption as set down and defined in the new section 1 he is trying to put into the Bill.
That new section 1 gives rise to an impossible situation. The Adoption Board, in determining whether to recognise an adoption in what is the relatively simple circumstances of a couple being domiciled in the foreign country, would not only have to inquire if they were domiciled in a foreign country and if there was a valid adoption according to the laws of that foreign country but the board would have to make a whole series of additional inquiries. First, they would have to find out not only does the law of the foreign country require that the consent of the guardian or parent of the child be given but they are going to have to find out in the particular adoption they are determining whether they should recognise or not, was the consent properly obtained or was it dispensed with. What is the Adoption Board to do? Have they to go over to Romania to interview mothers who have consented to their children being placed for adoption in the context of the Irish residence situation? If I were domiciled in a state in the United States for ten years and I came back to Ireland with my wife and my adopted child and I said I was domiciled there and I wanted my adoption recognised what is the board to do? Have they to start an investigation to discover the whereabouts of the mother who nine years earlier agreed to the adoption of her child and find out was her consent properly obtained? The board is being given a function in this.
It is not a question of here is an adoption order and a couple who were domiciled in that state and it should be recognised. It is a question of the board having to say, does the adoption fall within the concept of foreign adoption? Did the mother give her consent ten years or 15 years ago? In other words, the adoption certificate will not be accepted on face value no matter what the law of that state says.
In the amendment, in relation to foreign adoption, the definition goes on to say that to recognise it, adoption should have essentially the same legal effect as respects the rights and duties of the parents and of the child in relation to each other, etc. That is in paragraph (b) of section 1. First, I assume that what is really intended by that is to ensure that adoption has the same legal effect with regard to the natural parents, the child and the adopters as if it was effected by an adoption in this country. I presume that is what is intended. If that was the case, as a general principle that is normally what would have to be applied in determining whether there was an adoption or not but the way that particular provision is inserted in it does not make sense. That is another problem with this.
Under paragraph (c) of section 1 the Adoption Board, determining whether to recognise the foreign adoption of a couple domiciled, has to be satisfied that an inquiry was carried out into the adopters, the child and the parents or guardian by a person having experience or qualifications in relation to adoption. That inquiry may have been carried out by a court, not by a person. It might be carried out by a particular health board or authority in the context of Ireland, and how will the Adoption Board be satisfied whether such an inquiry was carried out? If you are talking about adoption of a couple who were domiciled, again, let us take the United States or England, who adopted a child 15 years ago and they have returned to Ireland and they want their adoption recognised. Has the Adoption Board to get affidavits from the original social workers who were involved with the local authority in England or the adoption authority in the United States? This is just not workable. This is the problem and is what I want to get across here. I do not believe the Minister is proposing this out of any bad motive and I want to emphasise that as well.
I think what is proposed here in the context in which the definition of foreign adoption will interact with the recognition rules is not workable as a recognition procedure for the Adoption Board. The Adoption Board is not a court and the members of the board — though they have certain constitutional entitlements now since the amendment was made to the Constitution — will have great difficulty in processing some of this. In the initial years of this legislation when someone seeks to have an adoption recognised, I can see the board referring it to the High Court every time for a case stated and it would make the whole thing utterly impossible.
Paragraph (d) says:
the court or other authority or person by whom the adoption was effected, before doing so, gave due consideration to the best interests of the child,
If that said that the law of the country in which the adoption was effected required that due consideration be given to the interests of the child, that is fair enough; that is, perhaps, workable as a principle; but is the Adoption Board to actually look for a copy of the judgment or the decision or the reasoning of, for example, the Romanian district court that made the particular adoption order, to find out to what length the court looked at the best interests of the child, or are they to look at to what extent the English High Court in an adoption order made ten years ago examined that as an issue? The point I am trying to make is that the definition section impinges fundamentally on the substantive provisions in the legislation, and it is not workable. Sections 2 and 3 in the Minister's amendments, which appear to simply reiterate the provisions of sections 2 and 3 in the original Bill, do not, in fact, do so, because of the way "foreign adoption" is defined.
At a later provision in the Minister's amendments there is a section with regard to the certifying of documents. The new section 14 the Minister wants to include in the Bill refers to proof of adoptions effected outside the State. It goes on to provide:
The Minister may by regulations make provision in relation to the proof of adoptions effected outside the State and the regulations may make different provision as respects different places and different classes of adoptions.
The Minister may by regulations make provision to prove adoptions, in other words how you establish that you have your adoption order proved, but the Minister by regulation cannot direct the Adoption Board or, indeed, the courts to determine the matters in (a) to (f) in the new amending provision to be included in the definition section, on page 2 of the Bill.
Therefore, the first point I want to make is that there are substantial problems with that. It even seems under (e) or (f) — and there in drafting it is not comprehensible what the difference is between them — that if adopters wanting to adopt abroad, for example, consult with lawyers in Ireland to find out whether the adoption will be recognised, or instruct lawyers abroad, for example, in Romania, to act on their behalf, and if they actually pay them fees for doing it, they are acting unlawfully. That could create a problem in recognising their adoption.
To date, for most people adopting outside Ireland, the law is relatively straight-forward in the sense that, if they are adopting in Romania and are resident in Ireland, they do not have to pay fees to lawyers, because currently they are simply told the adoption is not recognised, but this Bill will guarantee that they will all have to see lawyers, because it will be utterly incomprehensible outside that.
The second aspect of the Bill that creates major problems, in so far as I can see it, is in regard to the special provisions designed to provide for couples resident in Ireland who want to, in fact, adopt outside Ireland. Under the Bill as drafted there is a provision which says that if you are resident in Ireland and you adopt a child of the nationality of the foreign country and you do it properly according to the law of the foreign country, the adoption will be recognised.
The Minister is providing for a two-tier recognition system. He is providing for a system but we have only debated the 1 April issue, whereby the adoption will be recognised if you adopt prior to 1 April, provided you are eligible to adopt in the context of Irish eligibility rules. That is in effect what he is saying. In that context I think the majority of people adopting in Romania are married couples. I do not know whether some single people have adopted there or not. I suspect some unmarried people have adopted here. If the law of a foreign country allows an unmarried person to adopt a child and if that person has been judged suitable and proper assessment reports have been prepared and furnished, I do not see what we achieve in this country by saying we will not recognise that adoption. If the foreign country allows it, what purpose do we achieve in saying we will not recognise it and will discriminate against that child? I am aware that some couples who regard themselves as married have adopted in Romania currently, in circumstances where we do not regard them as married. If someone's marriage has run into difficulties and they get a church annulment and remarry in church a second time — and we have hundreds of couples now in that situation in this country — they cannot adopt under Irish law at present, because they are not regarded as a married couple. I know as a fact that there are a number of couples who have adopted in Romania, who are married in the eyes of the Church but not in the eyes of the State and whose adoptions would not be recognised if the Minister's proposal is implemented in this regard.
I would also like to say to the Minister — and I am saying this to be helpful because we are going to come back to this another day — that section 15 of the Bill, which interacts with section 5 of the Bill, is itself incomprehensible in the context of the proposed provisions for adoptions this side of 1 April. In the press release that I read in the newspapers there was reference to the Minister allowing for the recognition of adoptions of single people in special circumstances. Certainly, it seems to me that the new proposed section 15 of the Bill would allow for the Adoption Board to determine that persons who are not married and who are unrelated to the child, in effect people who are single people, could adopt in certain circumstances. If section 15 (2) is applied to the pre-1 April situation it provides no help for single people or the sort of people I have just described. It makes absolutely no sense at all, because that section is designed to deal with domestic Irish adoptions and does not work in the context of the pre-1 April rule. It might work in the context of the post-1 April rule, but certainly does not work in the conrtext of the pre-1 April rule.
A lot has been said about the pre-1 April rule. I would share the views of Deputy McCartan, if we are talking about operating understandable rules of private international law, there is no reason why we cannot provide that the current Bill, as it does provide, is the recognition rule based on recognising adoptions by couples who are resident in Ireland. There is no particular reason why if a couple are resident in Ireland the rule should not be that an adoption is recognised, where it is properly effected according to the law of the country in which the child is a national and is resident. That would simplify this considerably. I would take the Minister's point that, if we have simple understandable rules, there is a very good case to be made to maintain a register. That is a very sound idea if we can do that. What I am saying to the Minister is that I think that the way he is going about it will not work and will create very major and substantial problems.
If we take the post-1 April rule there is a major problem that the Minister does not properly address. One of the reasons for bringing this legislation forward was not simply to provide rules for the recognition of foreign adoptions; it was to allow for and to ensure that couples who want to adopt abroad can have assessments carried out as to their suitability to adopt. Those assessments would be carried out by health boards or adoption societies and the reports as to their suitability would not only be made available to the couples but would be made available to foreign authorities where they are required to enable adoptions to be effected.
In his amendments the Minister has turned that proposal on its head. There is no longer an obligation on health boards to carry out such assessments for the purpose of making reports available to the adopters or to foreign authorities. It has been turned on its head so as to provide for health boards to carry out assessments to make reports available to the Adoption Board so that the board could be satisfied as to the suitability of a couple to adopt. That report would then, presumably, remain in the files of the health board, adoption society or Adoption Board. Whether the Adoption Board thinks a couple are suitable to adopt or not will be of no interest necessarily to the authorities in Romania or any other foreign country in which Irish couples wish to adopt. They may find it interesting but if they are operating a proper system and if they are doing what the Minister requires in his amendment, which is conducting inquiries into the suitability of adopters, the foreign authorities will want copies of the reports prepared by the adoption society or the health board as to the suitability of a couple to adopt. That is not provided for in the Minister's amendments. They seek to delete that section from the Bill and replace it with one relating to assessments being provided to the Adoption Board.
I have talked at great length and I apologise for doing so. There is a series of other technical problems with the amendments the Minister is proposing which, if we reach them in an individual framework, I will go into. It is important to put on the record at this stage that the interaction between the definition section and the mechanisms for recognition will not work. I am sure the Minister or Deputy Ahern will tell me that section 14 will resolve all the problems. I do not believe that that is the case.
The 1 April rule is a very major problem. It cannot be resolved the way the Minister suggests by people writing in to his Department. If one adopts on 6 April and we accept the Minister's framework, writing to his Department will not accord a person recognition of the adoption order because the Oireachtas will have set down the rules upon the basis on which your order will be recognised. One message should come out of this Committee and that is that people who have made the necessary preparations to go to Romania within the next few weeks, who have had themselves assessed, who have all the social work reports and all the documentation together that is necessary should feel they are free to go without worrying that they will be left outside this legislation when recognition rules are put in place. I would like a very clear message to go out today to that effect and all of us in this Committee who should ensure that that is the case. There is no point in passing a Bill which does not allow couples who want to adopt in Ireland to have assessment reports made available to them and to foreign authorities to enable them to effect foreign adoption orders.
I agree with the concerns expressed by many of the Deputies regarding the cut-off date of 1 April. What I regret about that date is that I think it gives the impression that some of the decisions by couples to go to Romania were not given due consideration. From my experience, and I am sure the majority of Deputies would agree with me, the couples I have met, and there are many of them in South Tipperary, who went to Romania and adopted babies, did so as a result of careful consideration. The procedure is not simple. It requires a lot of work and time and took many months of preparation before they were ready to travel to Romania. It would be a pity if it was ever implied by this Committee that decisions were made without due consideration by couples who went to the trouble of going to Romania. By bringing forward the date to 1 April it certainly gives the image of it being almost a clampdown on some kind of reckless behaviour that is going on out there.
An unworkable Bill, as outlined by Deputy Shatter, is almost worse than no Bill at all.
A very general observation, taking on board the points——
We have a slight problem. It seems the room was double booked. This is not a very good room to hold the Committee meeting. Can we agree to finish at 4.30 p.m.? We have been informed that the Broadcasting Committee are entitled to the room from 4 p.m.
May I just say the Broadcasting Committee is an internal Committee of the House for other business and I am sure, if needed, it will find somewhere else to work. We have serious business to pursue here today. I would like to make one observation and I do not know whether it will help in any way.
I had one other experience of a Special Committee in this area where we ran into major head-on difficulties and it took months and months of slogging and hard digging in and a lot of very bruising meetings and experiences. At the end of the day the promoter of the Bill, Deputy Shatter, met the then Minister for Justice, Deputy Collins, and in a very short time they agreed a formula that met with the approval of the Committee. I do not want to pre-empt any views of this Committee but it might have been a desirable approach in this case had the promoter of the Bill and the Minister met to discuss what they each had in mind and the overall objectives of the Bill. Perhaps now that could be taken on board by the Minister as an approach and perhaps by our next meeting both Deputy Shatter and the Minister might have met.
The more we talk the more I see a gulf opening up before us on the Bill. We should be working towards getting agreement on what are the principles and objectives. The Minister might take that proposition on board before he responds to the very lengthy and detailed criticism Deputy Shatter has made of some of the workable provisions of the framework he is proposing. Would there be a willingness on the Minister's part, and on Deputy Shatter's part, to sit down before the next meeting and work to see if there is common ground, lest we get into what would be a repeat of a long and bruising experience of the last Committee I sat on? I certainly support, and would work towards support, for any formula that both of them are prepared to come up with and work on.
Anything would be better than settling on the steps of the courts.
Briefly, I want to comment on this date of 1 April which seems to be of such great concern to a lot of my colleagues. For the life of me, unless I am missing something, I cannot see anything wrong with this. As a matter of fact, it is very prudent of the Minister to insert such a requirement. What he is saying is that people who are going abroad from that date will have to have their eligibility and suitability established and this will be franked by the Adoption Board. Surely anybody who is deemed to be suitable by the Adoption Board does not have to worry. The Adoption Board are a tried and trusted body and have been the regulatory body for all adoptions in Ireland for many a day. Incidentally, the Bill, as presented by Deputy Shatter, did not envisage a role for the Adoption Board. I am glad that is proposed by the Minister.
Frankly, I see it as a most prudent move by the Minister to propose that it be deemed necessary that the eligibility and suitability of any person travelling to Romania or elsewhere for this purpose be established prior to their moving out. We know well that in Romania, while regulations have been introduced recently to control any exploitation of foreigners, such as our people going out there, such exploitation is still rife, and activities bordering on baby trading have been in operation. It is very important that we get the matter right from this end. The people who are going out — I take Deputy McCartan's point — are people who are caring and loving in the main. That has to be seen to be the case and deemed appropriate and franked by the Adoption Board prior to the departure. It is a prudent move and I do not see why anybody should be terribly excited or worried about it.
I want to deal briefly with a number of points Deputy Shatter made. I fully accept that we are talking in general terms, but Deputy Shatter made a number of points in relation to amendments Nos. 4 and 5 proposed by the Minister. He was linking them in with the definition of foreign adoption under amendment No. 2. My reading of amendments Nos. 4 and 5 is that, in effect, the people who would have a foreign adoption under these sections would not necessarily have to go before the Adoption Board for any further recognition because they are deemed to be recognised and valid under either of them. Deputy Shatter feels — he may correct me if I am wrong — that under these sections there would be a lot of litigation, and that people who would be recipients of a foreign adoption order from an outside state, would end up in court here. I do not see that, and I do not see that there is any necessity under the amendment proposed by the Minister to obtain any subsequent recognition by the Adoption Board here.
The criteria laid down in amendment No. 2 would be the criteria that would be relevant in relation to any subsequent adoptions under the legislation. Amendments Nos. 4 and 5, as laid down, in my opinion, would not need to be referred to the Adoption Board. Perhaps, the Minister when replying will clarify that issue. Under amendments Nos. 4 and 5 proposed by the Minister the criteria for the recognition of foreign adoptions under those two sections would be a lot less onerous than, perhaps, those being proposed in the legislation before us. It is in effect a simple enough recognition of the foreign adoptions.
Deputy Shatter made another point in relation to eligibility to adoption orders. Amendment No. 11 deals with people who may not be legally married in the eyes of the State. Also, he made the point that there would be people under adoption laws, single people or people who are separated or divorced, who would not be able to adopt under our legislation. If this amendment is accepted the Minister has said that, in exceptional circumstances as laid down in the proposed new section 15, single people or people who are not legally married will be entitled to adopt.
The cut-off date is causing people problems. I do not think it should go out from the Committee that a heavy hand will come in after 1 April. It will not. Everyone will have to accept — Deputy Shatter has accepted this — that the Minister is trying to put some regulation on this and is, in no way, trying to give the impression that there is going to be a very strict regime after 1 April. There is a danger in that there are people who have put procedures in train — they may be on their way to Romania or, indeed, in Romania — may not have a child designated by the commission or by anybody else. Some people are looking for dates from the commission and are getting dates in the distant future. People who were with me have received a date in October for going before the commission that was recently set up in Romania. It will not be before that that they will get any child designated to them.
There is a difficulty with 1 April for the people who have the procedures set in train. I wonder if the Minister will examine that and, perhaps, allow in some way people who have the procedures set in train some leniency. I would have to say also that I had people with me over the weekend who were setting the procedure in train over the weekend. They were getting their letters of suitability and letters from the Department of Justice to try to get out before 1 April, because of the uncertainty engendered by the 1 April deadline. It should go out plain and loud from this meeting that 1 April is not something that everyone has to adhere to, or to think that they will be in grave difficulty after 1 April because they will not. After 1 April if people get a suitability certificate from a health board or an adoption society they will probably be in a much better position going out to Romania than heretofore.
Before I call any more Deputies I would remind you this is the Committee Stage and we have not even discussed any Committee business. I do not want to inhibit discussions but we have to get down to the detail of Committee Stage. Therefore I ask the following speakers to be brief.
I will briefly respond to one or two things. Deputy Ahern mentioned amendments Nos. 4 and 5. He said the Adoption Board does not have to make any particular order. That is true, but if you adopt in a foreign country where you have been domiciled or have a residence and you come back to Ireland the new amended section 5 the Minister includes in the Bill provides that the board shall establish and maintain a register and goes on to provide that an application made to have an adoption on the register can be made under 2 (a) (i). If the adoption is a foreign adoption, section 2 or 3 of the Act applies. It is not correct to say what Deputy Ahern says, that they do not have to go near the Adoption Board; if they want to seek recognition they do have to.
Deputy Ahern made the point that the Minister's amendments 4 and 5 and substituting new sections 2 and 3 of the Bill makes the thing less complex. That is absolutely not correct. It makes it more complex because it is no longer a question simply of domicile or habitual residence, it is a question of whether you have a foreign adoption within the meaning of that term as it is defined in amendment No. 2 the Minister is proposing. The point seems to have been missed. In the Bill as originally drafted the type of criteria the Minister is concerned about in his definition of foreign adoption did have a role to play in a different context but not in this context, in my view.
There are just three other points, Chairman, that I think should be made. In the context of simplifying recognition, one of the fundamental mistakes the Minister has made is in trying to remove from the Bill a designation system. The Law Reform Commission recommended that there should be a power imposed on the Minister for Health to designate those countries whose adoptions we would recognise. There are a number of such countries with whose adoptions we would have no difficulty because they have similar legal systems to ours and they apply relatively strict controls on adoption. For example, you could include practically all the member states of the EC in that context. That would not require the Adoption Board to undertake investigations or anything else. You would know if you adopted in England, Italy, France or, if you went outside the EC, to Australia or most of the states in the United States, that by virtue of adopting there and the Minister was willing to designate countries, your adoption would be recognised. I do not know why the Minister is dropping that from the Bill.
That designation system was recommended by the Law Reform Commission and by the review committee on adoption services. The Minister has not explained why he is taking that out of the Bill. It would simplify this whole area considerably.
The other point that should be just briefly referred to is the question of couples going to Romania. Another reason for this Bill was to create a position whereby in Ireland we would have a specialist adoption agency or agencies who could actually make arrangements with regard to foreign adoptions for Irish couples. The provisions in the Bill to allow for that, under the Minister's amendments, are to be removed. That is a wrong step. We do not need Irish couples wandering around foreign countries relying on lawyers who may or may not be honest or on other intermediaries to guide them through an adoption system. We should provide for specialist agencies in Ireland. The Irish Association for Social Workers were looking for that. The original Bill provides for it but the Minister's amendments do not.
Deputy Jacob is concerned about people trading children. The provision of an Irish specialist agency through which Irish couples could go would ensure that Irish couples were never caught in that situation from here. I hope he will withdraw the suggestion that there is any sort of a general problem. All the couples I have met who adopted in Romania have certainly not been trading in children and it would be unfortunate if that went out from this committee meeting here today.
The final point, Chairman, that I wanted to make was about another amendment which the Minister seeks to incorporate which, again, I hope after today might be looked at again. He is confining recognition to the recognition of adoptions effected in relation to children who are under 18 years of age. In that context the Bill, as drafted originally, deliberately deviated from the Law Reform Commission's recommendation in that regard. Until 1988 in Ireland you could adopt a child under 21 years of age. It seems to me that in many countries around the world you can adopt children under 21. Certainly some countries apply for the adoption of older people and that is an issue we might like to come to again. If we confine recognition to children under 18, as the Minister is proposing, it means if an Irish couple adopted a child who was 19 or 20 in 1970 or 1980 we will not recognise the adoption. We would like other foreign countries to recognise adoptions of our own Adoption Board effected of children of 18 or 19 years of age pre-1988. It does seem that we should not be saying we will not recognise adoptions of over 18s when we were quite prepared to allow for such adoption orders to be made in this country until 1988. There is a problem in that.
I did not realise that giving a general outline of what our amendments would include would lead to debating all the amendments together. I am not sure that is the best way to proceed — to debate all amendments at the same time. It is much better that we go into them in detail but I think it is important to clear up any ambiguity about the date of 1 April and what is involved. I take the point certainly that members of the Committee outlined the concern of people who have their applications processed to a very large extent. As I have said earlier, I have already dealt with that. We will be very flexible in regard to those people. When we were debating this on Second Stage, there was general agreement on all sides of the House that there should be an assessment of suitability for people going abroad. Even in Deputy Shatter's legislation he proposed that the health boards should be responsible for such assessment whether people are adopting in Romania or any other country. There was that agreement. That is really what we are trying to achieve in the amendments.
In my view, as Deputy Ahern also stated, it is better that the new arrangements would come into effect sooner rather than later. The position at present is that we will be flexible in regard to the people who have their applications processed, people who are already in Romania and people who have arranged to go to Romania. I do not think it is unreasonable, and Deputy Jacob also made the point, to have the date, 1 April, after which I would expect people to have some assessment of suitability before they go abroad, in keeping with what was the expressed desire of the Members who spoke on this Bill on Second Stage. The health boards will carry out that assessment. It only means a few weeks.
As has already been pointed out by some members of the Committee, it will strengthen the position of people going abroad because they will have the assessment of suitability. Some of them do have difficulty in obtaining that at the present time because there is not an available agency for doing them on a general basis throughout the country. I would like to assure people whose application is to a large extent processed, and certainly people who are in Romania, or who have made arrangements to go to Romania, that we will be very flexible. If they want to have their application cleared, we will try to do that for them. We will look at ways and means as to how to facilitate them. The important thing is that we do not want a rush of people. I am not suggesting that people would do that but if there is a close-off date there is a natural tendency for people to try to beat that date. It is important, in the interests of the child, the natural parents and the adopting parents, that we put in place everything necessary to ensure that the adoption is carried out in a proper way.
Deputy Ahern has dealt with sections 4 and 5 and people who are domiciled and habitually resident abroad. The position is that their adoptions will be recognised without having to go to the Adoption Board. It is only if they wish to have the adoption recognised and registered here that they will have to go to the Adoption Board, but their adoption will be recognised.
The other points raised can be dealt with more appropriately when we are discussing each section and amendment.
I would like to take up the point the Minister made. I recognise that Deputies would like to be happy that people who adopt will always be suitable. However, the 1 April deadline has to be seen in the context of the Minister bringing in quite a hefty procedure equivalent to existing Irish procedures. It is not wholly appropriate to transform that procedure for parents adopting in Romania. The Minister seems to be saying it will just be a couple of weeks' difference. It is my understanding that the likely delay in getting the health board home assessment, having that transmitted to the board and getting approval from the Adoption Board is not going to be just a matter of a couple of weeks. The Minister said he is going to be flexible, but he can only be flexible within his own law which seems to me to be a heavy, administrative system. If he is to be flexible, he may have to change the substance of the Bill. It would only be in that context that I could see the 1 April deadline working in any way, and that the Minister will be delivering on a flexible system.
Deputy Shatter raised a point about the loss of the notion of designating countries. Why, if we are happy with the way another authority does their business, should we insist on their putting every individual case through the hoops of an Irish system, when that is not altogether necessary? If we are content with the way the UK, or if we can reach a stage where we are content with the way Romania does its business, why do we insist on going through an Irish system in every case? I am also concerned about the many parents who have adopted Romanian children and who will be coming in under various provisions of the Minister's Bill. He is bringing in for the first time the notion that one has to be 21 and that that will apply retrospectively to people if they want recognition of adoptions.
The notion that the single person will have to have met some sort of special conditions is also coming in for the first time. If these mean anything, they mean that there will be cases where refusal of recognition is implied. I cannot see how we should be providing for a situation where, on technical points, we should find ourselves refusing recognition of adoptions that, from the point of view of parents, are satisfactory.
The final point concerns the Minister's statement that from 1 April everything will be in order because the health boards will go out and do the assessments. My understanding is that the health boards are consistently refusing, partly because they do not feel they have the capacity in staffing terms to do them, and partly because they do not appear to want to get involved in this. Can the Minister assure us that he has met with the health boards and put in place arrangements that will mean that within a very short period of parents making application those assessments will be completed by the health board, delivered to the Adoption Board and a quick approval put through?
Arrangements have been made with the health boards and it is my view that the voluntary agencies have a right to decide whether to get involved or not. They have not become involved to any large extent to date, mainly because of the absence of legislation. I believe they will be involved. Any assessment carried out by the approved adoption societies will be acceptable as far as we are concerned.
I refer to the restrictions that these amendments would appear to be imposing, having health boards examine a family or individual and the need to go through adoption societies. I see the necessity for care, to a large extent, but we must not overlook that for the vast number of these babies the transformation from living in Romania to living in Irish society will have an everlasting effect on them. In Romania they live in a different society and in a country where comforts are denied them. Where babies are abandoned or mistreated we have to place great emphasis on them while at the same time think of Irish couples who have no families and are anxious to adopt. We have to be careful about this. A family I know were in the process of adopting two babies and on each occasion, for some reason, the baby was taken from them. The natural mothers wanted the babies returned. The couple concerned were shattered and after the second baby was taken from them their personalities changed. I am concerned about the adoption of a baby of a married couple in Romania, and the adoption of babies whose parents are alive. Under the Adoption Act, 1988 that is permissible in Ireland subject to a number of criteria. The first is failure to guarantee the child's constitutional rights and where parents have failed to perform their physical or moral duties. One thing that would occur to me is that where babies are brought back to Ireland and adopted and a question mark arises at some future date — the people in Romania for one reason or another may not be satisfied and may want the baby returned and, whether or not an order of our High Court or whatever court is necessary, that should be examined closely.
Most matters appear to be heading towards the High Court. On occasions many people have been critical of both the Circuit Court and District Court saying that they have not got the proper criteria to examine those situations. I do a certain amount of family law cases and I think in most instances where there are family problems, a number of district justices and Circuit Court judges have far more time and are more in touch with real life on the ground than many High Court judges who perhaps have not the time. I am not going to develop that point but we would want to examine the situation and give people the cost factor and so on.
In regard to the appropriate date — Deputy Ahern mentioned letters written to the Minister asking him to extend the date from 1 April to 1 May. I would advise the Minister, in his own interest, that to start that would be to open a type of Pandora's box. Every Deputy in the Dáil, as well as societies around the country, would be making representations to the Minister.
Whatever is decided I think we would want to try to avoid the situation where there would be ministerial discretion. You do not want to have hard and fast rules but for whoever is Minister it will cause many problems. We will have to find light among ourselves here in regard to a particular cut-off date and whether it is necessary to have it at all. That is the basic question. There are quite a number of people who still are not fully aware of the opportunity of adopting babies. The numbers are so limited in Ireland, that for people who are anxious to adopt a baby I think we should be generous in every respect and accommodate as many people as possible.
Deputy Shatter mentioned my comment about baby trading. Of course I was not at all suggesting that anybody from Ireland was going out there deliberately to involve themselves in such an undesirable activity, but we must not do the ostrich on this either. It is a well known fact that this undesirable activity obtains in many parts of the world. That is a fact of life and Deputy Shatter knows and everybody around this table knows that that is the case, unfortunate as that may be.
I am already on record commending Deputy Shatter for introducing this Bill. Its aims and objectives are highly commendable and his expertise in this area is well known to me and well respected by me. The purpose of the exercise is to improve on the document presented by Deputy Shatter. I certainly hope that by the end of the day when the work has been completed some safeguards will be incorporated in our final legislation which will close the door on all opportunities to exploit children and their adoptive parents.
I think some of the members round the table are getting a hang-up about the 1 April deadline. This deadline was an effort — and I think the Minister should be given some credit — to allay the fears of those people who already have adopted children, particularly Romanian children, in this country and who have no adopted status at this moment in time or people who are in the process of adopting such children, and to ensure that their situation would be taken on board. It was as a result of representations made to the Minister and his Department and also contributions on Second Stage as regards couples and children in a limbo situation. What the Minister was trying to do — and he should get some credit for it — was to put some order into the procedure from now on.
I would like to follow on from a point made by Deputy Bruton, and maybe he will correct me if I am wrong, but I think he was trying to suggest that in some way the criteria for taking on adopted foreign babies, and Romanian babies in particular, should be in some way different to that pertaining to adopted children here in the Republic. As someone who has two adopted children, who has gone through the procedure twice and who knows all about the trials and tribulations of people involved in adoption, I would strongly object to any lesser criteria being applied to children from outside this country than to children in this country. What would happen at that stage, I have no doubt, is that if people were aware of the fact that it was easier to adopt from outside this country because of the difficulties with supply and demand in this country they would be running away to adopt outside this country. My personal opinion is that we should have the same standards for our own children as those for foreign babies and that if in some way the legislation is trying to get lesser criteria built into it for the adoption of foreign babies, I would strongly object to that. I feel we should have the same criteria for both foreign and home adoptions.
Just to clarify that. The point I was making was first, we have had people who have adopted in Romania and they have not gone through the Irish procedures. They have gone through what most people would feel is a procedure based on other criteria. I made the point that it would be ludicrous at this stage to start going through those and saying some of these are going to be struck out. That would not be sensible.
The other point I made was that if we are satisfied with countries and the way they do their business, I do not think we should require Irish parents to go through a procedure all over again simply to satisfy some sort of bureaucratic urge that we have to see that they all go through Irish procedures. That was the merit of the designation system — that you could say the State recognises the way a certain country does its business and that lifts something off parents.
First, I want to apologise for being late. I thought the meeting was starting at 4 p.m., but, obviously, it started earlier. I did receive notice I am sure but that is the way things go.
I fully agree with Deputy Ahern that it is absolutely of fundamental importance in the final analysis that we avoid having a two-tier system of adoption in this country and if some of the recommendations being put forward around this table were to be adopted that is precisely what you would have, a two-tier system of adoption.
A two-tier system of adoption is something which is totally undesirable. A child adopted in Romania, Uruguay, Great Britain or anywhere else is as entitled to have as good a parent as a child who happens to be born in Ireland. That child is as entitled to have a parent who is as suitable and as eligible as we would require for an Irish child. I do not think that anybody would disagree with that; I think that it is just a fundamental principle which has to be recognised.
Any other course of action in the long term would have very serious constitutional implications, and I think everybody would agree with this. I do not believe for one moment that it would be recognised as valid by a court — the Supreme Court in this instance in the end perhaps — that you could adopt different criteria for the adoption of a human being, just because that human being happens to be a non-national of your own country. That is an extremely dangerous road to go down and we should avoid, if at all possible, going down that road. It has constitutional implications, it has citizenship implications, it has implications along the entire spectrum of Irish family law and, indeed, other laws as well. I think that if we establish at the outset the fundamental principle, that even if we wanted to, we cannot have a two-tier system of adoption, we would have established a principle on the base of which we can built a very fine Bill.
I am afraid that in the longer term it is necessary to have a cut-off date. The Romania situation has been dealt with delicately by the Minister in the Bill. It is a very difficult situation that we find ourselves in but, in general terms, the proposals put forward are reasonable and when we get down to the detail to the Bill they will probably be seen to be reasonable as well.
May I suggest a compromise about this date because I think that is what we are getting down to now? The Minister is putting in the date of 1 April. How can you put into legislation a date, knowing that the legislation will not be through the Houses of the Oireachtas by that date? First of all, it will not be in the Seanad. It will certainly not have cleared all the decks for quite some time.
If there is a cut-off date, and I can see a merit in some cut-off date, I suggest that that would be a cut-off date one or two months after the legislation has been passed by the Oireachtas, or earlier, or whatever way you want to use the wording. The difficulty with that, then, is that you are saying in the paragraph before that that anybody who has adopted children already gone for adoption before that date will be considered eligible to have the child adopted under the law, that is provided that they meet the definitions the Minister has written in. That puts the status of all the children who have been brought into the country into question. Will they or will they not have complied with all these new regulations the Minister has written in?
Certainly from what Deputy Shatter has said there are some problems in those definitions of a foreign adoption and the regulations to be required and followed. They are bureaucratic and they may not have been adhered to up to now, because people did not know they had to adhere to them.
As Deputy Teresa Ahearn has said, most of the people we dealt with have gone through a very tedious process of approval and certification and have been approved by the Department of Justice to bring in the children. You cannot leave those people now in a kind of legal limbo as to whether they complied with regulations that only now the Minister is suggesting we should follow. I suggest the cut-off date would certainly be after the date of the legislation and that would give people ample warning after the legislation is passed that from then on they will have to comply with different regulations. I cannot see us addressing it in any other way.
Could I make a practical proposal now that may resolve all of this? Deputy McCartan made the suggestion that we might adopt something that we adopted in the judicial separation committee. I remember we had a very difficult and acrimonious judicial separation Committee Stage debate. This was often because people were talking past each other, trying to assert points, sometimes valid points, sometimes for political reasons, sometimes simply misunderstanding each other.
I have one view of this, which is that we need legislation and it must be practical and workable and must address the issue. I do not have any particular attachment to any framework. There are half a dozen different types of legal frameworks which can be used in dealing with all of this. It seems to me that we are either going to have a difficult Committee Stage and an acrimonious Report Stage and possibly at the end of it all end up with a very poor Bill; or we can actually reach a situation where the difficulties that need to be ironed out in the Bill are ironed out.
If the Committee wish, I would be very happy, without taking away from the rights of any members of this Committee, to debate at length any proposals that come before us. I would be very happy to meet with the Minister and his officials before the next meeting of this Committee, or with the Minister's officials, if he so wished, to see if we could iron out what I genuinely believe to be problems with the drafting of the Minister's amendments and to try to find a meeting point between what I think are generally common objectives.
I do not think objectives on either side are very different. I think there were difficulties in reaching some of those objectives but the reality is we are not going to reach them unless we can reach some form of agreement. In the interests' of the people who are very specifically affected by the Bill, who are not Members of this House, who are involved in adopting children and who are uncertain about their position, I am anxious that we have a constructive and fairly speedy Committee Stage and that this Bill be enacted rapidly. Therefore, I would take up Deputy McCartan's suggestion. I would be very happy between now and next Tuesday, which I think we have designated for a meeting of this Committee, or on whatever date we fix, to have a meeting of that nature.
Many of the problems I am raising are technical drafting problems. I have no problem at all with the idea of a register and if the Minister's framework was to be adopted I would recognise there is going to be a need for a date by which certain procedures have to be followed. I do not think the date can possibly be in practical terms 1 April. That just cannot operate and we all agree with that. But there are technical, practical problems attached to some of this which have to be worked out, and it would seem to me that is a way of dealing with matters now. If the Minister does not wish to use matters in that way so be it, and we will tease it out through Committee Stage. I am saying this as a constructive proposal, not in an attempt to try to take away from the right of any member of this Committee to debate any aspect of this Bill, or any amendment to the Bill.
I wish to make two points. I want to make it absolutely clear that the reason we introduced a cut-off date in this legislation was to try to facilitate all those who have brought babies into this country. We wanted to relax what the legislation will be to facilitate those people. I do not think it is unreasonable that people who have not yet gone to Romania, people who have not yet even commenced processing an application to bring a baby into this country from any foreign country, to state that after 1 April they should have an assessment.
It was disappointing, I would have to say, to hear Deputy McCartan say he did not see the need for a cut-off date at all. I think people should accept that it is necessary to have criteria laid down for foreign adoptions. It is necessary to ensure that the suitability of adopting parents is assessed. Everybody has to accept that. My view is that it is quite in order after 1 April that people who are starting their application should have the proper assessment and the facilities will be in place for that. That creates a difficulty for certain people some of whom are now in Romania and others who are going out this week and next week. As I have already said on two occasions, we will be flexible in that regard and we will look for a way in which we may be able to facilitate them.
One of our difficulties at the moment is that we do not have an accurate assessment of the number of adopted children who are in this country. The fact that certificates were issued by the Department of Justice does not mean that every one of those certificates was used to adopt a child abroad and to bring that child back to this country. Our best estimate is that there are approximately 200 children in the country but I want to assure the members of the Committee that it was in order to facilitate those that we were prepared to examine them in a different way. I believe that 1 April should certainly stand for people who are beginning to process their claim after that date.
On the question of a meeting with Deputy Shatter, I would be delighted to meet Deputy Shatter to discuss the Bill with him because we are all anxious to see the Bill proceed as rapidly as possible through Committee Stage. We are all agreed on the principle of the legislation. We are all agreed on what we want to achieve. The fact that there are different approaches and different attitudes to how you might achieve that is important but they are other factors. We cannot get away from the fundamental principles which is the best interests of the child, the interests of the natural parent or parents, and the interests of the adopting parents and the rights and suitability of the adopting parents. Those are the three principles we have to watch but we also have to watch in legislation such as this that we do not become a country where foreign adoptions are so simple that people from other countries may come in and use our facility and then take the children back to their own country. There are other aspects of the legislation we have to be careful about.
On the question of the meeting with Deputy Shatter, I would suggest perhaps that we might have the first meeting this Friday. We are going to be in the House on Friday and perhaps we could have a meeting on Friday afternoon. I was going to suggest that we would have a Committee meeting on Friday afternoon but if the Committee would prefer that Deputy Shatter and I would meet we could arrange that for Friday afternoon.
Perhaps we could meet next week?
There is a problem next week for the Chairman and myself. I was going to suggest the following Wednesday.
I think if Deputy Shatter and the Minister discuss it on Friday and then contact the Chairman or the secretary we can arrange the next meeting then.
I would be happy to meet the Minister on Friday afternoon and, hopefully, we will be able to sort out some of our problems. To keep everyone's mind on the ball, it would be a good idea if we fixed a date for our next meeting in fairness to people who might want to make holiday arrangements.
In a way what I was going to say has been pre-empted by what the Minister has said. I was the person who first raised the cut-off date and the problems that I saw would arise from that.
First, I want to say there must be a cut-off date. My concern was for adoptive parents who had initiated proceedings before the Minister announced his cut-off date of 1 April. That was not first announced until Friday, 15 March; I certainly was not aware of it until 16 March.
I am concerned that all people who had initiated proceedings in good faith before the cut-off date was announced would now be given from this meeting categoric assurances that their adoptions would be treated in the same way as parents whose adoption proceedings had been completed before that announcement was made, that is, provided they met all the other criteria. I refer to parents who can demonstrate quite clearly to the Minister or the Department that they had initiated those proceedings and had done so in good faith before the ministerial announcement was made, that they would get a categoric assurance here, arising out of this meeting and by way of public announcement, that they would be given the very same treatment as the adoptive parents who had completed their adoption proceedings, provided they met the very same criteria. I think that is quite reasonable. It is a much stronger statement than the statement made by the Minister, where he said he will be flexible. If the Minister leaves it as loose as that, he will have 12 of us questioning next week what he means by flexible. It is a good thing to tie it down and do so now. I would like if the Minister could respond to that before the meeting is over.
The difficulty, of course, is that one cannot just give a blanket recognition to all adoptions. As I have said time and time again, what I would like to see is that every child adopted in Romania and brought into this country would have his or her adoption recognised but everbody would accept that, without knowing anything about them, one cannot do that. My own view is that if there are any refusals they will be minimal, maybe one or two out of the 200, for very valid reasons. It would be unreasonable for us to recognise every adoption irrespective of all the circumstances. While I am satisfied that the vast majority are in order — except possible for one or two and I have no information on that — I think it would be wrong to give a blanket recognition to them all.
The Minister seems to be concerned for parents who are already in Romania, who have initiated proceedings and who have undertaken a lot of expense and worry. They need a strong assurance.
I can give them that.
My office has been inundated with telephone calls from people who are about to go to Romania and they do not know whether to go on Monday or Tuesday of next week, or what is going to happen to them. We are all getting these contacts. It would seem you cannot actually talk about people initiating procedures; do you initiate it when you have all your documentation together in Ireland or when you land in Romania or when you get the baby? I think that is the problem. We have to reach a natural conclusion on this.
I think people who had planned to go to Romania during the Easter period are entitled to some guidance. It would seem that if we could ultimately have a cut-off date it is going to have to be a date somewhat later than 1 April. Presumably, this Committee can then agree on that as we go through Committee Stage and perhaps the Minister might thing about that. People who have made arrangements to go to Romania on Monday or Tuesday of next week should feel that they are able to go without fearing that if they come back to Ireland with a child they might adopt mid-April that that adoption would not be recognised. It is very important that that is clarified. It may only affect a couple of dozen families but I think they are entitled to that clarification.
If the Minister cannot give that clarification today I urge him to sleep on it and, with his officials, put together a formula whereby that clarification can be given. He may not accept the date I suggested of 1 September but it would seem to me that if we now said 1 June or 1 July is the cut-off date it would clarify the position. What you have to remember is people simply get on a plane and fly to Romania. The couple Deputy Ahearn talked about, who simply do that, with no papers, no assessment reports and no work done will not be allowed to adopt. You are talking about couples who have done substantial work for many weeks. We should be saying that 1 June or 1 July is a cut-off date and these people are now free to go and complete their arrangements. It also sends out a signal as to how it will operate in the future. I would ask the Minister to ensure that, before the Bill is passed, the House votes to cooperate in starting to carry out these arrangements.
Progress reported: the Special Committee to sit again.
The Special Committee adjourned at 5.05 p.m. until 2 p.m. on Thursday, 11 April, 1991.