Ivana Bacik

Adoption Bill 2009: Report Stage (Resumed) and Final Stage.

Senator Ivana Bacik: I move amendment No. 68:

 In page 62, to delete lines 33 to 37 and substitute the following:

 

“(2) The High Court, in respect of subsection (1)(b), in considering the fact that under

the law of the state in which an adoption was effected, the adoption has been set aside,

revoked, terminated, annulled or otherwise rendered void, shall review the status of the

adoption order under the law of this state. The High Court shall give a direction having

regard for the welfare of the child as the first and paramount consideration.”.

 

This amendment seeks to substitute a new subsection (2) to section 92. It relates to the procedure whereby an application may be made to the High Court to correct, amend or make an entry in the register of inter-country adoptions. The substantive change the amendment would introduce is to provide that the High Court, in any such application, would give its direction having regard for the welfare of the child as the first and paramount consideration.

 

This point was raised previously by Senator Fitzgerald in the debate on this Bill. This is the underlying principle on which the whole Bill must be based. We spoke earlier on the Order of Business about the Minister of State’s comments to The Irish Times, as published in its edition today, in respect of the agreements with Vietnam in particular and the concern that in conducting an agreement with that jurisdiction, matters had come to his attention which meant he was not happy, I understand, in signing off on the agreement. Certainly, those were matters relating very closely to the welfare of children.

 

It is a matter of great concern to all of us to read these reports which I believe go beyond what was said in the House last week. We were sensitive in our approach in the House last week because we believed there were things the Minister of State could not say about difficulties in the agreement with Vietnam. What we read in The Irish Times today made it clear to us that particular issues had been raised in respect of fees that apparently are being paid to adoption agencies in Vietnam. There are issues around consent, potentially the valid consents by birth parents in Vietnam.

 

I see the Minister of State shaking his head so I would like to get some clarification from him for the Seanad record as to the exact nature of the concerns about the agreement with Vietnam. We have all read heart-rending e-mails from prospective adopters in Ireland who, understandably, are deeply distressed about the circumstances in which they find themselves. In many cases they were in the final stages of having an adoption carried out and indeed understood they had children waiting for them in Vietnam, yet now are no longer in a position to proceed. This is very distressing both for them and, very importantly, the children in Vietnam. We need to know the position in respect of the agreement.

 

The welfare of the child as the first and paramount consideration is what guides us all in this. It has been raised before in this debate, however, that had we had a constitutional amendment on this, it might have meant there would have been no need to have inserted it in every provision. Given that we do not have an amendment to the Constitution which provides for that, it is especially important we insert it, where necessary, into provisions in the Bill and that is what Senator Norris and I have sought to do. At a broader level, when we are looking at the welfare of the child, we need to know the particular issues that have made it difficult to finalise the adoption agreement with Vietnam. The Minister of State is on the record in saying last week in the Seanad that he has trust in the agency in Vietnam with which Irish couples are dealing, namely, the Helping Hands Adoption and Mediation Agency. I believe there is only one agency with which prospective Irish adopters are dealing.

 

We need some clarity because the report in The Irish Times refers to difficulties in the USA and Sweden and issues raised in those countries. These go to the core of the welfare of children and raise concerns about this and the position of birth parents in Vietnam. We need to know the position for Irish prospective adopters and, perhaps more importantly, the position regarding the welfare of the children in Vietnam about whom we are all concerned.

 

Second Stage

Senator Ivana Bacik: I thank Senator Norris for sharing his time. I welcome the Minister of State to the House and join other Senators in commending him on the introduction of this long overdue Bill which provides for a positive overhaul of adoption legislation previously set out in the 1952 Act, as amended. I should declare an interest in that as a practising barrister I have acted in cases concerning adoptions and related areas.

I concur with Senator Fitzgerald on the need for allowing ample time between Second Stage and Committee Stage for the drafting of amendments. This is a lengthy Bill and it would be valuable to have time to review it in detail. It would also be a good idea to have joint committee hearings at which interested groups and parties could make submissions. This was done by the Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights in its discussions on the Immigration, Residence and Protection Bill, which was a valuable exercise for all Members of the committee.

I would like to address a number of points wherein I believe the Bill could be strengthened and do so in a spirit of welcome for the Bill and in an effort to be constructive. The first relates to an issue which it was recommended many years ago be legislated for. The Review Committee on Adoption Services, chaired by the late Dr. Joseph Robins, recommended in 1984 that there should be a way of applying for special guardianship of a child, in particular in respect of long-term foster carers. This is a difficult issue, one which could well have been tackled in this Bill. I am interested to hear if the Minister of State will contemplate amending the Bill to address this issue given the strength of recommendations in this regard dating back to 1984.

More recently, in January 2005, the Minister’s predecessor, Deputy Brian Lenihan, published a report on the consultation process on adoption legislation. I am sure the Minister of State is well aware of it. That report recommended that long-term foster carers who had cared for a child for five years or more be permitted to apply for guardianship of that child. The model for this is contained within the British Adoption and Children Act 2002, which is more comprehensive than the legislation before us in that it addresses issues beyond adoption. Also, it addresses the issue of special guardianship. Section 115 of the British Act allows a court to make a special guardianship order in respect of a child who has lived with foster parents for at least one year prior to the application. The advantage of this is that it gives a child a measure of security beyond placement in foster care while falling short of the severance of ties with the birth parents that adoption tends to entail. This can be a valuable measure. It has been invaluable in Britain in allowing foster parents and children in their care to have some measure of security.

Special guardianship allows the foster parents to take on parental responsibility for the child, including day-to-day decisions in respect of care and upbringing while retaining some rights for the natural parents, including the right to consent or not to the child’s placement for adoption. I ask that the Minister of State consider inserting into the Bill a similar provision in respect of special guardianship given the strength of recommendations in this regard which date back some time and the difficult position in which children in foster care may find themselves in terms of security and permanency.

The second issue I wish to raise is one which Senator Norris also raised, namely, eligibility to adopt. An opportunity exists to amend this Bill to be more inclusive. I am disappointed that section 33 of the Bill retains the current restrictions allowing only couples who are married to each other to adopt. Under the current provision only opposite sex couples or single people may adopt, which is anomalous. A single person, in a cohabiting relationship, either same or opposite sex, can adopt as a single person but not as part of a couple. This appears to be anomalous and in breach of the Government’s stated policy in favour of civil partnership. Perhaps the Minister of State will clarify whether the civil partnership Bill will be changed, as I believe it should, to provide that couples who enter a civil partnership or are in a presumed cohabitation relationship within the terms of the civil partnership Bill as proposed, would be able to adopt as a couple rather than as individuals. It is anomalous they are currently not allowed to do so.

Interestingly, the citizen’s information page provides information for same sex partners. I, and I am sure many others in the House, know there are already in Ireland many families involving same sex parents with one or more children in their household yet the non-biological parent in the same sex relationship has no rights in respect of the child and, more important, the child has no rights in respect of the non-biological parent. We saw powerful testimony on the “Late Late Show” from a grandmother of a child born to same sex parents and who was in that difficult position whereby the non-biological parent had died. The citizen’s information section states quite correctly that under current legislation it is not possible for the partner of a same sex relationship who is not the biological parent to apply to become a guardian of the child nor is it possible for same sex partners jointly to adopt a child even if one is the birth parent of a child. In my view, that is anomalous, unjust and discriminatory against children who are living in family households where the parents are of same sex and who wish to have a legal relationship with a non-birth parent. I ask that the Minister of State consider introducing amendments to the legislation to address this discrimination against children of same sex couples. I do not see why this cannot be extended. Prior to the introduction of civil partnership in Britain, a change was made to the law in respect of adoption to allow couples or individuals to adopt children.

I accept that the most important and paramount consideration must be the welfare and best interests of the child. Given this is the case, I do not understand how we can limit eligibility to adopt to married couples or single persons. The best interests of the child may well lie in allowing a cohabiting couple who have been parenting them to adopt them. Another point in terms of eligibility that is a disappointment is section 32 which makes the presumption that parents who adopt be of the same religion as the child. I am not sure why that remains the case. It seems to be a throw-back.

My final point relates to the abandonment of parental rights. The proposed provision in section 54 restates current law on abandonment. It is a difficult test to fulfil. The court may make an order dispensing with consent of parents where the natural parents have failed in their duty to the child and that failure amounts to an abandonment of all parental rights. The Supreme Court emphasised how rigorous that test is in the Western Health Board case in 1995. The difficulty is that it is too high a hurdle and that it can come into conflict with the best interests of the child, which should be the paramount test.

I am glad the Baby A case which Senator Frances Fitzgerald mentioned is addressed in the Bill through section 59 which provides that an adoption order is not invalidated if parents subsequently marry. However, the Bill highlights again the need for us to ensure that in all legislation concerning children, adoption and guardianship, the welfare of the child is a paramount consideration and that no other considerations obstruct us reaching that conclusion.

Senator Fitzgerald referred to the need for the guardian ad litem provision. While the statutory power to appoint a guardian ad litem exists, it needs to be fleshed out. There is a difficulty in the courts, day to day, in terms of responsibilities and duties of guardians ad litem. It would again be useful if the Bill could encompass those measures along with the adoption measures.

Committee Stage:

Section 3

Senator Ivana Bacik: It might be dangerous to include a line such as this because wherever legislation incorporates the text of a convention, it is always in English. If we start stipulating in express terms “in the English language” in a section such as this in one Bill, the danger is that in other legislation where we have not inserted that phrase, a lawyer in the years to come might claim the French text is the definitive version. It is a technical point but it might be dangerous to start including this if it has not been the practice heretofore.

Amendment No. 2:

 

In page 16, line 30, after “Convention” to insert the following: 

“and includes an adoption from a country other than one a party to the Hague Convention or a bilateral agreement if the Authority considers that the adoption can be effected from a third country in a manner compatible with this Act”.

Senator Ivana Bacik: I support this amendment. Like other Senators, I received information from the International Adoption Association that highlighted its concerns in respect of children who have been adopted or who may be adopted in future by Irish parents from countries without bilateral agreements but where they are being prepared but are not yet concluded, particularly Vietnam, Ethiopia and Russia.

In excess of 1,000 children have already been adopted from Russia. There is, however, a concern among the members of the association that because agreements are in the process of being finalised and because the Bill is proceeding with such haste, these countries might fall outside the terms of the Act as currently drafted. This is a useful amendment to cover that instance, not in any way by lowering the standards that must apply in any inter-country adoption but ensuring countries with which bilateral agreements are being concluded but are not yet concluded may still be covered if the authority considers that the adoption can be effected in a manner compatible with this Bill.

There are detailed provisions on the bilateral agreement arrangements in sections 73 to 80 of the Bill. This amendment does not serve to undermine those but includes in the definition section a recognition that there may be a shortfall in time with some of these countries and recognises that there are already families in Ireland who may be in the process of concluding individual arrangements with children in other countries, notably siblings. Families who have already adopted a child have a real concern that in future they might not be able to adopt siblings. I know that other provisions cover this matter, but it is an important amendment to the definition of the section.

Senator Ivana Bacik: I am grateful for the Minister’s response. It is useful to remind ourselves that the rights of the child, not the parents, must always be paramount. The Minister is to be commended on the progress that has been made with Vietnam. However, I share the concerns of other Senators. It is a concern that some other countries in the EU have broken the link with Vietnam.

The valid questions that have been raised by Senators about this illustrate the difficulty with the current arrangement, a difficulty that will continue under this Bill when enacted. Senator Fitzgerald has put down a useful amendment, No. 49, which would resolve some of these problems in a pre-emptive or proactive way by requiring that prior to the expiration of any existing bilateral agreements, the Minister concerned would indicate whether that bilateral agreement was likely to be renewed and would give reports to the Houses of the Oireachtas on the progress being made. Does the Minister think that would be helpful? It would mean that even if only a twin-track approach is taken, in other words, an inter-country adoption can only be carried out with a state that is party to the Hague Convention or to a bilateral agreement — I can understand why the Minister does not wish to dilute that principle — there would be a little more certainty about the status of bilateral agreements or future bilateral agreements with countries with which we have long-standing relationships and from which a large number of children are already adopted and resident in families in Ireland.

Amendment No. 3:

In page 17, between lines 25 and 26, to insert the following subsection: 

“(4) In this Act, “married couple“ means an opposite-sex or same-sex married couple or a couple who have entered a registered civil partnership with each other.”.

I welcome the opportunity to discuss this important amendment but I should at the outset declare my interest as counsel in the case taken by Zappone and Gilligan regarding the right of same-sex couples to marry, which clearly has a bearing on my proposed amendment. Amendment No. 3 takes a conservative approach in that it follows the practice in the bill of using the term “married couple”. My colleague, Senator Norris, has tabled an amendment which takes a different approach but would have a similar effect. I considered a more radical amendment that would have extended the categories of those who are eligible to adopt beyond persons whose relationships are recognised. This Bill replicates an anomaly that exists in Irish adoption law whereby the only persons eligible to adopt are either single persons applying alone or married couples. In other words, no provision is made for adoption by a cohabiting couple, whether of the same or the opposite sex. That is anomalous because it means that a lesbian woman, gay man or heterosexual person could adopt on his or her own account irrespective of whether he or she is living in a relationship with another person. Eligibility for adoption would be considered on the basis of the individual and whoever he or she lives with will have no legal relationship with the child. It is anomalous that cohabitees are not capable of being considered as adoptive parents.

The more radical amendment I considered would have the expanded “married couple” to “married couple or cohabiting couple or person” but I restricted the scope of my amendment to a definition of “married couple” as a married couple of opposite sex or the same sex or a couple who have entered into a registered civil partnership. This is a pre-emptive amendment because it looks ahead to the time when, as the Government has clearly indicated, a legal system of civil partnership will be in place for same-sex couples.

If the legislation proceeds as the Government has indicated in the heads of the Bill, a system will be established of presumptive recognition of cohabiting opposite sex couples. Perhaps my amendment should, therefore, include this type of relationship. The amendment would also have to be accompanied by various other amendments to take account of a couple who were previously in a registered civil partnership, just as the present Bill provides that a couple whose marriage has ended will no longer be considered to adopt as a married couple. Where “married couple” is used in the Bill, it is taken to mean a couple who are married to each other and are living together. I am trying to extend in a somewhat restrictive manner the categories of those who are eligible to adopt to include only those same-sex couples who are married or have entered into civil partnerships.

When I raised this issue on Second Stage, the Minister of State responded: “Adoption is a right that is afforded to children, and the right of a child to a family is at the core of adoption legislation.”. I completely agree with that statement and believe we cannot emphasise it enough. He went on to state:

There is also a right in my view which must be considered, that of same sex couples. Their rights need to be explored. The Civil Partnership Bill is the forum at present for the extension of those rights. I am an extremely strong supporter of those rights but this Bill is not the appropriate forum for that.

I would accept the Minister of State’s argument except that the heads of the Civil Partnership Bill make no reference to children or adoption. This is the reason Senator Norris and I have proposed amendments. The British legislation on civil partnership was introduced subsequent to reforms of that country’s adoption law to enable adoption by same sex couples. A precedent therefore exists for providing for eligibility for same sex couples in adoption rather than civil partnership law. I urge the Minister of State to accept this method of extending eligibility, notwithstanding his stated view that the Civil Partnership Bill is a more appropriate vehicle. I welcome his acknowledgement that the right of same sex couples in this regard needs to be explored but it would be useful to do so in the context of the Bill before us.

The Citizen’s Information Board guidelines on adoption by same sex couples indicate that current legislation is clear on the issue. Under current legislation it is not possible for a partner to apply to become a guardian of a child nor is it possible for him or her and the same sex partner to adopt a child jointly even where one of them is the birth parent of the child. This can no longer be justified in a modern state wherein, we know, there are already many children living within a secure and loving family whose parents are a same sex couple but with whom the child has no legal relationship as a couple even where one of the parents, as would be typical, is the birth mother of the child. That is an anomaly.

Many years ago, although rather belatedly, we equalised the position of children born in and outside marriage, which was a very important move. We say, and the Minister of State has reiterated this, that in all legislation of this type the primary concern must be the best interests of the child. I ask the Minister of State how it can be in the best interests of the child to continue to discriminate against children of same sex couples. There are in Ireland already many children, some of whom are well into their teens and older, whose relationship with their non-birth parent within a same sex relationship is not legally recognised. It is wrong that we continue not to recognise their relationship with their families.

I have no doubt there will be opposition to the amendments tabled by myself and Senator Norris. It may well be that the old canard that children have a right to two parents of the opposite sex will be restated. However, that is a meaningless thing to say. Children live in many different arrangements and with many different parenting situations. We have had in Ireland a long history of different types of parenting arrangements. All research indicates that it is the quality of parenting that matters to the child. What is important is that the child live in a loving home. The quality of parenting rather than sexuality or gender of either or both parents is what matters. I refer the Minister of State to the research of Susan Golombok and others. The most authoritative research establishes that there is no disadvantage to a child in being brought up by a same sex couple, a single parent or married parents, rather it is the quality of parenting that is of paramount importance.

At a recent seminar on civil partnership organised by Senator Norris, Fergus Ryan, an expert on this area of law, made the point that extending rights to children of same sex couples, as in this case, is not taking rights from married couples or from children within marital families, rather it is giving extra cake — to use that analogy — to people who should have it. That is an important analogy to make. If there are already, as we know there are, children in Ireland living in families with same sex parents who currently have no right to a legal relationship with the non-birth parent in that relationship, it is wrong that we do not extend to them the right to be adopted by their other parent thus ensuring they then have all the rights that follow from that. I am speaking again about the rights of the child as this must be framed in that context.

I cannot see any logical justification for opposing the principle behind this amendment and the amendment tabled by Senator Norris. I acknowledge many other amendments would have to flow from this amendment, if accepted, in particular to recognise the ending of a civil partnership. The amendment is predicated on a civil partnership regime being introduced. In principle, the amendment seeks to extend recognition for adoption eligibility to same sex couples. I do not see how the Minister of State can oppose that principle.

Senator Ivana Bacik: On a point of order, before the House suspends I ask the Minister of State to take the opportunity during the sos to consider whether some move towards the recognition of same-sex couples, and children within same-sex couples, might be done in the civil partnership legislation. The Minister of State said at an earlier stage that his view was that the matter should be dealt with in the civil partnership legislation rather than in this Bill. Will he will take the opportunity afforded to him by the sos to consider that?

Senator Ivana Bacik:  I thank the Minister of State for his considered comments on this matter. Like Senator Norris, I do not propose to divide the House in respect of my amendment. Rather, I wish to reserve my right to do so on Report Stage on the basis that the Senator and I have agreed to draft a composite amendment that will seek to address the clear discrimination that exists against same sex couples and to permit adoption rights. In so doing, we will certainly take on board the constructive comments that have been made by others, particularly the Minister of State.

Senator Ivana Bacik: I propose, as I have done throughout this debate, to be concise and to keep my comments directly relevant to the amendments we are discussing, which were tabled by me and Senator Norris.

Like Senator Healy Eames, I welcome the Minister of State’s point that same sex-couples are currently fostering children. We allow single people to adopt, as indeed we should. I am glad we do not confine adoption eligibility to married couples but extend it to single persons also. As I said, perhaps we should consider extending these rights beyond that to cohabiting couples. We allow gay couples to foster; clearly, the next step is to allow them to adopt. When everyone is working in the best interests of the child, there is no policy rationale for continuing the discrimination against gay couples that precludes them from being considered eligible for adoption. It does not matter to me or to any gay couple seeking to adopt whether it is done through this Bill, the civil partnership legislation or another Bill. However, it is important that the Government commits to this as it is clearly in keeping with Government policy of ensuring the best interests of the child, which is to be in a loving home, whatever the sexuality or gender of the parent or parents.

I asked the Minister a direct question, which he did not answer, about regularising the position of children currently living in a home in which one parent is a birth parent and his or her — it is usually her — same-sex partner is a non-birth parent. The partner currently has no right even to be considered as a guardian of the child and therefore the child has no right to a legal relationship with that parent. Would the Minister of State consider regularising the position of those children in some other way so that their relationship with their non-birth parents may be recognised in law? This could be done in ways other than through adoption.

It might be less cumbersome to adopt something similar to the statutory declaration for cohabiting birth fathers, as I suggested earlier. It would be entirely in keeping with the State’s admirable policy of supporting the best interest of the child and a secure and loving home.

In essence, we are discussing two different issues. I thank the Minister of State for saying that he is willing to consider the first of these. This issue, which I first raised, relates to a child — there are many such children living in Ireland today — who is born to a mother who is in a same sex relationship. That woman’s partner has no legal relationship with the children or, to put it more pertinently, the child has no legal relationship with his or her non-birth mother. That is unfair to the child, who lives in a secure and loving home with two parents, and creates a form of second class citizenship for such a child.

I completely agree with Senator Norris regarding the nonsensical nature of speaking about a child’s right to a father and mother. Such a right is not enforceable where the father is deceased or where, for example, a child is conceived through rape. A large number of the children to whom I refer were born into secure and loving homes and have two parents. Let us provide a means whereby the child can have a legal relationship with the non-birth parent in that situation. How can that be done? We propose to do it through adoption legislation, by permitting the non-birth parent to adopt the child. However, there is another way and I am anxious to hear the Minister of State’s view on it. The way cohabiting parents deal with the rights of the birth father and the right of the child to a relationship with the birth father is through the simple mechanism of the statutory declaration. This is a standard form declaration which is sworn by the father in the presence of the mother and a solicitor, following which the father gets full legal guardianship rights along with the mother who has them by virtue of the birth. The plight of children born to same sex couples, where one is a birth mother and one is not, might be addressed through the guardianship mechanism. Is the Minister of State willing to consider that? In other words, it would treat a cohabiting non-birth mother in the same way as a cohabiting birth father. This issue could be addressed through adoption but I can see that is, perhaps, a simpler mechanism to deal with it. It could be done in the context of giving civil partnership rights.

The second issue is that of gay couples who wish to be considered generally for adoption on the same basis as opposite sex married couples are at present. There is clear discrimination here. I will go through the arguments. The Minister of State said that Senator Norris’s amendment would effectively bring about discrimination between heterosexual cohabitees and homosexual cohabitees. He is correct; it would. At present, cohabiting opposite sex couples have no right to be considered for adoption as a couple. However, Senator Norris’s amendment is justified in a situation where same sex couples cannot enter a legally binding relationship recognised by the State. I say that without prejudice to the Zappone and Gilligan case which is about the right to marry for same sex couples. I believe that right exists. At present, the mechanism in adoption law appears to preclude gay couples, especially non-married gay couples. That is a difficulty. I believe the Minister of State’s criticism is unfounded.

The Minister of State rejected my amendment with the criticism that it is premature. I refute that outright; I do not accept it is a premature amendment. There is a clear commitment by the Government to bring forward civil partnership legislation. We have the heads of the Bill. It is common drafting practice to draft legislation but to delay its commencement when it is contingent upon something. I can offer a clear example, of which the Minister of State will be well aware. The Children Act 2001 provided for children detention centres and a new regime for the detention and treatment of children in the criminal justice system. Large portions of that Act were not commenced for several years after the Act was passed. It is not premature, therefore, to provide in this legislation for something that will become law. One could simply delay the commencement of the particular section until the other legislation is in force.

The Minister of State said a decision has been taken to confine adoption eligibility to married couples rather than extend it to cohabitees. It is a pity an extension of the categories of eligibility was not carried out in this Bill. As I and Senator Fitzgerald have pointed out, it is anomalous that one can adopt as a single person or as part of a married couple but not otherwise. However, one can see how, in the interests of children, an adoption authority would wish to be convinced where a couple are adopting that there is evidence of commitment. The fact that the couple entered some form of binding legal relationship might provide that sort of evidence. It is in the spirit of that conservative approach that I drafted my amendment. It confines eligibility to adopt to married couples but it defines a married couple in a somewhat different way from the definition used by the Minister of State. It is, therefore, in line with the Minister of State’s policy arguments that eligibility should be confined to particular groups.

I hope the Minister of State will take those comments on board. Perhaps he would also answer a direct question. What does he propose to do for those children who are currently alive and well and growing up in a secure, loving home but have no legal relationship with their non-birth parent? We have seen the very distressing case of a grandmother whose grandchild’s birth mother was killed in an accident. It meant there was no legal recognition of the place of the child’s non-birth mother in the child’s life. It was most unfortunate. Had there been a breakdown in relations, for example, the grandparents through the non-birth parent would have had no rights and the child would have had no rights of access to them. That is the type of difficulty we must address. Will the Minister of State consider addressing it, if not through this route through some other route such as guardianship?

I asked the Minister of State a direct question about the civil partnership legislation. Will he consider providing for adoption or guardianship rights for same sex couples in the civil partnership legislation instead? Even an indication that it might be considered would answer many of the points Senator Norris and I have made. These are not issues that necessarily must be dealt with in the Adoption Bill but, given that they were dealt with in the Adoption and Children Act 2002 in the UK before civil partnership, it appears to be a logical approach. It is anomalous that discrimination is continued in what is otherwise an excellent and reforming Bill that seeks to modernise our system of adoption. I genuinely welcome the Bill but it is unfortunate we did not take the modernisation a small step further.

Senator Ivana Bacik: I understand that but I have carried out the procedure on behalf of two children. The Minister of State is correct that the right is particular to natural fathers. A separate issue arises where the mother does not consent to the natural father being named as a guardian, regardless of whether he is on the birth certificate. An application to the courts is required in the latter instance but where the mother consents to the natural father being a joint guardian on an equal basis, the two can simply sign the declaration before a solicitor.

Senator Ivana Bacik: The Minister of State may be correct. In any event, we are not discussing a birth parent in the context of the Bill before us. I am pointing out that a clear procedure exists in law whereby the natural mother consents to somebody else being a joint guardian with her. I do not expect the Minister of State to commit one way or another now but I ask him to consider a procedure for swearing a statutory declaration before a solicitor where the natural mother consents to signing an affidavit verifying that she was in a loving relationship with her partner. It offers an alternative route to recognition of a partner in cases where a child lives with two parents but has no legal relationship with one of them. People just get on with their lives in the normal course of affairs but difficulties arises where one party dies and the child has no inheritance rights or other legal rights which I need not outline. A number of problems can arise in the absence of a legal relationship with a non-birth parent.

Section 13

Amendment No. 4:

In page 20, between lines 8 and 9, to insert the following:

“(a) the birth of the child has been registered, and either the particulars of the father have been registered or the mother has sworn and furnished to the accredited body a statutory declaration that the father is unknown or missing, and cannot be traced using reasonable inquiries, unless the court permits placement notwithstanding a failure or refusal to swear such a statutory declaration,”.

Senator Ivana Bacik: The general theme behind these amendments tabled by the Labour Party requires greater consideration. It is incumbent upon us to ensure the natural father has particular rights prior to a child being placed for adoption. The problem with the amendments, and in particular amendment No. 6, is that they are far too rigid in terms of the role they provide for the natural father. Also, they are not sufficiently balanced.

I commend the Minister on section 16 which is close to the current situation under the Adoption Act 1998 which provides rights of consultation with the natural father. Section 16, as drafted, provides for a much better balance. It is important that the natural father be consulted and that he should have the right to apply to the authority. However, we must be realistic. As has been stated already, in circumstances where a mother is giving up a child for adoption the reality is there is rarely a good and lasting relationship between the parents. I have already put on record other circumstances such as where a child is conceived through rape, where the father of the child is estranged or where the mother, for good reasons, does not wish to have any continuing relationship between her and the father or the father and child.

The amendments, in particular amendment No. 6, do not recognise that reality and place too great a rigidity on the rights of the father. I am concerned about the proposed new section 16(1) which states a child shall not be placed for adoption nor may an application be made without the consent of the father. This goes against the Bill in situations where, for example, the father has deserted, is unknown or has never had any link with the child beyond conception. I caution against taking on board these amendments.

Similarly I am concerned about amendment No. 7 to section 18. Amendments Nos. 7 and 16 have the same effect and state: “the father has committed an offence such that”. It appears to me the Bill as drafted covers the mischief wherein it provides that: 

. . . where the Authority is satisfied that, having regard to—

(a) the nature of the relationship between the father and the mother, or

 

 

 

 

(b) the circumstances of conception of the child,

it is inappropriate for the accredited body to contact the father…

This covers the situation. It would be unduly rigid to require proof of committal of a criminal offence. There may be all sorts of reasons even where a rape has been committed that the mother has not reported it as such. That is the reality. There may be all sorts of reasons why it is impossible to say that in fact an offence has been committed. The authority must be satisfied about the circumstances of conception in order to deem it inappropriate to contact the father. I believe it is best to leave this as is and to give the authority flexibility in this regard. It is important to retain the natural rights of the father. However, we must be careful not to set in stone a rigid system whereby even where there is effectively no ongoing relationship between the child and the father, the father maintains a veto. The effect of these amendments would be to hamstring the authority, in particular amendment No. 6. Amendments Nos. 7 and 16 place too onerous a burden on the authority or the mother. I am opposed to these amendments.

Senator Ivana Bacik: That answers the earlier point because in order to sign a statutory declaration to be a joint guardian one does not have to produce the birth certificate or show that the father was named. That is what I thought and I am grateful that it has been clarified and that in order to sign the statutory declaration giving the birth father rights of guardianship jointly with the mother there is no requirement that the father be named in the birth certificate. That is remedied by the Civil Registration Act which strengthens my argument that there could be a similar mechanism for the non-birth partner of a birth mother.

 Section 18:

Senator Ivana Bacik:  I move amendment No. 8:

In page 23, subsection (5), line 7, to delete “refuses to” and substitute “does not”.

I am glad to have this opportunity to address the House on this group of amendments because, effectively, they all seek to achieve the same objective. As the Minister of State said, section 18 provides for circumstances where the father cannot be located or the authority does not know his identity. It covers those issues. Effectively, it is where the accredited body is to be exempted from a duty to consult the father. It mirrors, as I am sure the Minister of State will state, the existing provisions.

The amendments I seek to insert will not in any way change the substance of the section. I should state that initially. I do not have any objection to the substance of the section. It is eminently sensible as it provides for the necessary procedures to be gone through where the father cannot be located.

I propose in these amendments to change the language in the section. While the language mirrors the existing language in section 6 of the 1998 Adoption Act, which inserts a new section 19A into the Adoption Act 1952, none the less it could be improved upon. Section 18(5) states that, “If the identity of the father of a child is unknown to an accredited body and the mother refuses to reveal the father’s identity” and it goes on to outline what will happen. In amendment No. 8 I propose to delete the words “refuses to” and substitute the words “does not”. My reason for doing so is that I believe the words “refuses to” are loaded. There is a judgment implied of the mother’s failure to reveal the father’s identity that signifies that there is something wilful, deliberate or negative about her failure to disclose his identity. In the interests of procedures running more smoothly, it would be better if the section was more neutral in the way it portrays the lack of revealing of the father’s identity.

The proposed amendment does not in any way change the substance or purpose of the section because it still requires that where the mother does not reveal the father’s identity, the accredited body must then counsel the mother on the various matters and if the mother continues not to reveal the identity, the accredited body must furnish the authority with a written report and so forth. The proposed amendment does not in any way change the steps that must be taken by the accredited body where the father’s identity is not revealed. It would simply insert more neutral language that is not condemnatory of the mother’s failure to disclose the name.

Clearly, there may be many reasons a mother might not wish or might not be able to disclose the identity of the father. It may be a lack of knowledge as to who he is. It may be a desire not to reveal his identity for many reasons, which are implied in other provisions of the Bill, where, for example, there has been violence in a relationship, where the conception is as a result of non-consensual intercourse and so on. There might be painful and difficult circumstances around the father’s identity, especially where mothers seek to give a child up for adoption, and there may be a very good reason for the mother not wishing to disclose the name of the father. The use of the language “refuses to” implies a judgment of that decision by the mother.

I will not labour the point in terms of the other amendments because it is fairly clear. Amendment No. 9 seeks to delete the words “in order to attempt to obtain her co-operation”. Again, that implies the mother is willfully not co-operating. That wording does not add anything in the sense that the purpose of the counselling is clear from the remainder of subsection (5)(a).

In amendment No. 10, I suggest that rather than the language “continues to refuse to” the use of language “does not” in terms of does not reveal the identify of the father. That language would be neutral as to why the mother is not revealing the identity of the father. In amendment No. 11, I propose the substitution of the word “assistance” for the word “co-operation” in subsection (6)(a). “Assistance of the mother” is a more positive term.

This exercise is all about trying to improve the process by which children are given up for adoption and to make it easier. It is a difficult process, particularly perhaps for the natural mother, and we must be mindful of and sensitive to that. That is why I suggest a more sensitive use of language in these provisions.

Amendments Nos. 17 and 18 relate to section 30, which provides for necessary procedures to be put in place. As stated in the Bill, having gone through the necessary procedures with the accredited body, the authority will then dispense with consultation with the father where the identity is unknown. The same language of refuses to or is unable to reveal the father’s identity is used in subsections (5) and (6). I suggest the use of the wording “does not” or “unable to” is a better and more sensitive use of language than the wording “refuses to”.

I would be grateful if the Minister of State would indicate his willingness even to examine this issue of sensitivity in language. When we are dealing with a topic as difficult as adoption, it is useful to attempt to be as sensitive as we can be while maintaining the necessary substance of the relevant provisions. I would be grateful for the Minister of State’s views in this respect.

Senator Ivana Bacik: I am grateful to the Minister of State for indicating willingness to consider the matter and I will certainly not press it at this stage. I look forward to some constructive proposals on Report Stage. I would be very grateful if the term “refuses to” was removed as it is perhaps the most loaded term. I am grateful to my colleagues, Senators Quinn and Healy Eames for their support. I note that section 30(5) already includes the term “refuses or is unable to”. That is not included in section 18(5), which is an interesting omission because it implies the only reason the mother does not disclose the name is that she refuses, which clearly cannot be right. There would be many circumstances as envisaged in section 30 where the mother is simply unable to reveal the identity of the father. The term “refuses to” must be changed. I am glad that principle is acknowledged.

Co-operation is a less judgmental and loaded word. However, we need to consider the context in which it is used. I take the Minister of State’s point that generally to co-operate is positive. However, section 18(5)(a) uses the phrase “in order to attempt to obtain her co-operation,” which implies that she is not co-operating. I have a sense that is not the most sensitive or helpful phrase. I take the Minister of State’s point. Clearly one must guard against the unintended consequence that a mother is less likely to disclose the name of a father. My feeling, which I hope is right, is that there would always be a good reason for the mother not to disclose the name of the father. I do not believe that changing “refuses” would alter that. I do not believe it would encourage more women not to reveal the father’s identity. Clearly there are still many steps to be taken where the father’s identity is not revealed. It is not as easy a process and is more cumbersome. Therefore there are many built-in reasons for a person to reveal the father’s name if possible.

I note that both sections 18 and 30 contain procedures for statutory declaration where the mother is unable to identify the father. There are steps the mother must take and it is not as easy as simply not disclosing. Clearly the procedures that must be followed where there is no disclosure are more cumbersome than those where the mother names the father.

I am grateful to the Minister of State. I would like to see “refuses” removed. Some phrase that is not quite as loaded as “attempt to obtain her co-operation” would be useful because in its current context it implies that there is no co-operation. That is not helpful when we are trying to ensure the process is smoother and easier for everybody given that the process can only be a difficult process, especially for the natural mother. I am grateful for the Minister of State’s words and I will not press it at this stage.

 Amendment, by leave, withdrawn.

Amendments Nos. 9 to 11, inclusive, not moved.

Section 19:

Senator Ivana Bacik: I oppose this amendment which is not helpful. Section 19, as drafted, very importantly regards the welfare of the child as the first and paramount consideration, which is in keeping with our international obligations in terms of the rights of the child. To start to qualify or dilute that by creating presumptions would be unhelpful. Senator Alex White already referred to the baby Ann case. Unfortunately the constitutional presumption already requires that the marital family has certain rights over the child, which is not always conducive to the best interests of the child. There is a difficulty with that, which is why we have the current debate on the need to insert a constitutional amendment on the rights of the child. The judge with perhaps the most experience of child and family law, Ms Justice McGuinness, has made various comments that are pertinent. She supports the idea that the welfare of the child should be of first and paramount consideration, as we all should do.

Section 19 frames that correctly without any qualification or presumption. How can we say that the welfare of the child is best promoted in the society of either or both of the child’s natural parents as a presumption? Certainly that would be the case for many children and, one would hope, for the majority of children. However, we need to be realistic. Children are not placed for adoption unless the natural mother, in particular, believes it is in the interests of the child that the child not be brought up with his or her natural mother and indeed sometimes with his or her natural father as well. For the courts trying to adjudicate on these matters and for the Health Service Executive trying to run the adoption procedure as best it can, it is vital to include the phrase “the welfare of the child as the first and paramount consideration” without qualification. Clearly welfare encompasses an entire range of different aspects. They are not just economic and financial but also emotional, psychological, spiritual and so on. We would certainly hope that most children would be brought up by their natural parents and that is not a problem. However, the Bill is not dealing with that majority of children but with children who are offered for adoption, which is a very different context. In that context it is vital the welfare of the child be the first and paramount consideration and that we do not dilute it with presumptions.

Senator Ivana Bacik: I do not believe the amendment does state the law at present. The law at present, as the Minister of State and I said, is that there is a constitutional presumption that the interests of the child are within the marital family but, in all other matters, while the constitutional preference for the family is there in Article 41, it is not necessarily with the natural parents. We must be mindful of the UN Convention on the Rights of the Child and our obligations thereunder to ensure the best interests of the child must take precedence in all matters concerning the child’s welfare. Of course, that is in keeping with other legislation in terms of the Guardianship of Infants Act, which defines “welfare” very broadly in section 2, and while we do not have a definition here, we can take it “welfare” has a similar broad meaning in this Bill. It would be important not to qualify the consideration contained in section 19 that the welfare of the child should always be first and paramount in considering the making of an adoption order.

 

Amendment, by leave, withdrawn.

Senator Ivana Bacik: It is a useful idea. I am not sure this is the best section in which to insert it given this is the section providing for the welfare of the child and, therefore, to include anything else in it seems to be a weakening or a detracting from that paramount consideration. However, it is useful idea to have some sort of duty, be it in statute or guidelines, that the authority would, where possible, make available medical records of biological parents. I would be interested to know whether there is currently a policy whereby such records are made available as a matter of routine, where they are available — I can imagine there are many cases where they are simply not available.

New Section:

Senator Ivana Bacik: I support this amendment. There are instances where the finality of an adoption order may not be appropriate. On Second Stage, I argued that it might be a good idea to provide for special guardianship in this Bill or in other legislation. This is a mechanism provided for in section 115 of the UK Adoption and Children Act 2002. It gives long-term foster carers an additional legal status vis-à-vis the child who has been in their care for some time but in respect of whom an adoption order may not be appropriate. Senator Fitzgerald’s amendment seeks to do something similar by ensuring there can be some ongoing contact even when an adoption order has been made.

A special guardianship procedure would be an alternative route. It would allow foster parents to have a special guardianship of a child but does not amount to a full adoption order in respect of the child. The child does not terminate his or her rights in respect of the natural parents. In some cases, that may be better for the child and for all concerned. I raised that issue on Second Stage but the Minister of State did not respond at that time. The previous Minister of State with responsibility for children consulted widely about special guardianship because of the mechanism used in Britain. Will the Minister offer his view on this? It is not directly to the point of this amendment but seeks to do something similar, namely, to offer something other than the finality of an adoption order, which seems to be the system we have currently. Might there be a better way to ensure some ongoing contact, even in cases where an adoption order has been made? Might there be an alternative to making an adoption order in some cases, for example, where long-term foster carers have been caring for a child who has ongoing contact with his or her natural parents and does not wish to sever that contact?

Question proposed: “That section 32 stand part of the Bill.”

Senator Ivana Bacik: I am glad of the opportunity to address the House on this section as I flagged this issue on Second Stage. I believe that section 32 adds nothing to, and indeed is in conflict with the Bill. It seems to be in conflict with our international obligations to regard the welfare of the child as the first and paramount consideration. This section is, effectively, a relic of our past. It relates to a time, as the Minister of State will be well aware, when historically adoptions were run by religious bodies, the churches and their societies. Prior to the Adoption Act 1952 an ad hoc arrangement operated, with the different religious bodies controlling orphanages and deciding who gave children up for adoption. Geoffrey Shannon’s excellent book on child law, Children and the Law, 2001, gives a brief account of it in terms of the churches involvement in the placement of children for adoption with, again, always the consideration that they be placed with adoptive parents of the same religion as the birth parents. I believe I am permitted to quote once I attribute the source. There is one line in Geoffrey Shannon’s book which it is useful to quote as we debate this issue. He talks about the churches fearing that adoption would be used as a vehicle for changing the child’s religion and it was therefore necessary to assuage such concerns in the 1952 Act.

We have moved on from that. The Minister of State responded on Second Stage that the provisions have changed from the original provisions of the 1952 Act. That is right — I checked it — but of course the current provision in section 4 of the Adoption Act 1974 is really what section 32 would propose to restate, namely, that prospective adoptive parents, birth parents and child must all be of the same religion, unless the birth parents, knowing in advance the religious persuasion of the adoptive parents, have waived this requirement. Married couples of mixed faith can adopt provided birth parents consent to the placing of the child with them.

Restating the current position with section 32 can no longer be justified in Ireland 2009, a country of increasing pluralism and diversity in religion. Even to speak of “mixed marriages” betrays a mindset that is living in a distant past, when religious organisations and the churches had immense power in Ireland. I believe they still have too much power, but clearly nothing like they did. A provision that reiterates the current law from 1974 and previously in 1952, to the effect that an adoption shall not be made unless the child’s parents and the prospective adoptive parents are of the same religion, is to restate a presumption in section 32. The Minister of State is right in saying that this presumption may be rebutted and that the condition may be waived where everybody consents to this, but why is it inserted in the legislation? Why is religion seen to be a pre-eminent issue where, for example, we do not have ethnicity, nationality or geographical area? Presumably for many birth mothers nowadays the issue of where the child is to be placed, geographically, in a city, town or village, for example, is of much greater concern than the issue of religion or lack of religion because of course the prospective adopters may not have any religious persuasion. They may be atheists or agnostic. Why should religion be pre-eminent in this manner?

In Britain, as the Minister of State will be aware, there have been a great many issues relating to ethnicity and children being adopted by parents of similar ethnicity to the birth parents. There is a great deal of sensitivity around that subject in Britain. That is equally so around religion and I am not saying it should not be a factor, it should, but just one of the factors, with ethnicity, nationality and geographic area in terms of whether prospective adopters are urban or rural dwellers and so on. There are a number of factors which the adoption authority must take into account. In restating the pre-eminent position of religion in section 32, we are creating a provision that is directly in conflict with our stated and very welcome consideration in section 19 that the welfare of the child should be first and paramount. Why should anything else have the status of a presumption when an adoption order is being considered.

That is a relic of the past and we no longer need to include this section. Clearly, religion can be something which adoption bodies will look at as one of the many factors to be taken into account in deciding whether an adoption order is in the best interests of a child. I feel very strongly that this is something we should look at again in 2009 as it is no longer appropriate. I know the history and have tried to give a brief outline in that regard. However, I do not believe that history justifies the continuance of this provision in the Bill or that it is in the interests of the child.

Senator Ivana Bacik: I thank the Minister of State for his response. I believe he somewhat misunderstood the point Senators Alex White and Healy Eames and I made in terms of race, ethnicity, nationality and so on. There is very advanced literature on, and practice in, Britain, in particular, about the criteria to be taken into account in the placement of children with appropriate adoptive parents and all the factors an adoptive agency must look at in terms of an appropriate placement. Those factors include the relevant ethnicity of the chid and the prospective adopters and the location in which the adoptive parents live, just as the nature of the home which the adoptive parents have to offer would be looked at, as indeed would their religion.

Senator Alex White put it correctly that this section privileges religion over all of those other considerations a reputable and good adoption authority must take into account in making a decision about the placement of a child with adoptive parents. All those factors must be looked at in the round, including the religion of the prospective adopters. Clearly, where the birth mother has a particular preference because perhaps she is of a particular religion or has an aversion to a particular religion, then the adoption authority if it is at all reputable, and ours are, must have regard to those wishes of the birth mother.

Our objection to this section is that it privileges religion over all the other considerations while at the same time, it does not refer in any way to the wishes of the birth mother in respect of where she might like the child to be brought up, whether in Dublin or Cork, for example, or whether she might like the child to be brought up by parents of a particular ethnicity or nationality. In privileging one consideration, it demotes all others or simply disregards them. That cannot be right when the authority must have regard to the best interests and welfare of the child.

This provision goes well beyond accommodating the entitlement of every one of us to have our own religious views or not to have religious views at all and it privileges religion. It also goes further by assuming that everyone has a religion. As an atheist, I take exception to that. Does it mean prospective adopters who are not religious may be disadvantaged in some way? There is a presumption that persons who are adopting are of a particular religion. That is problematic.

The Minister of State referred to 1974. He is quite right that in 1974 there would have been very different concerns about including a section such as this but it is 35 years later and things have moved on. Central Statistics Office figures on religious beliefs and affiliations clearly show us that times have changed in Ireland, that we are becoming more pluralist and more tolerant and that religion no longer has that privileged place in our society. That is quite right and proper.

There is a constructive way to move forward on this and I would like the Minister of State to intimate that he might consider it. I suggest an alternative provision which would address his concern about a birth mother’s concerns about religion but which would take on board the suggestions we have made. The provision might state that “where possible, the authority shall seek to accommodate the wishes of the birth mother with respect to”. One could include religion there as one of the factors to which the authority would have regard in making an adoption order. In that way, that is accommodating somebody who has a very strong view that she would like her child to be brought up in a particular religion while at the same time not creating this very problematic presumption that the child will be adopted by persons of the same religion as the mother.

Senator Healy Eames raised a relevant point. I read section 20 a number of times and it seems nonsensical if it also applies to inter-country adoptions. Perhaps the Minister of State will clarify that. If a child is from Vietnam, Russia or China, it will be very difficult to comply with this presumption because the religious affiliations would be very different. There may be no majority religion in some of the countries from which people are adopting. It is nonsensical in that case. It makes a farce of the provision in the first instance.

We are debating in a legal vacuum but we all know that the majority of people adopting in Ireland are doing so from abroad. The provision is nonsensical to that extent because I do not see how it can be implemented in inter-country adoptions in any real way and it does not take account of changes in Ireland 35 years on. It privileges religion and it assumes that all of us have a religion. It somehow implies that persons who wish to adopt may be disadvantaged in some way if they are not of a religion. For all those reasons, I urge the Minister of State to accept the constructive criticism of this section and perhaps look at some alternative which might accommodate birth mothers’ wishes in respect of religion and other factors too.

Senator Ivana Bacik: I do not want to prolong the debate unnecessarily. I am glad the Minister of State has acknowledged there should be some amendment to the section. I agree that to include “if any” in the first line addresses the point I raised, which is that the section assumes everyone is of a particular religion. However, it does not really address the fundamental issue I have with the provision, which issue Senators Alex White and Healy Eames have supported.

From what the Minister of State has said, I do not hear any real justification for the continued inclusion of this section. It is privileging religion. There is no doubt about that. The concerns the Minister of State expresses could as easily be addressed, and in a much better way, by simply having a provision stating that the wishes of the birth mother with respect to the religion of prospective adopters would be respected. That should be the presumption rather than making the presumption that they all be of the same religion.

The other approach is a better, more inclusive one and still acknowledges the important role religion has. There are other factors in today’s Ireland which will be of equal concern to a birth mother and to any women going through the dreadfully traumatic experience of giving a child up for adoption. The main concern she will always have is that the child will be well looked after. This section is in conflict with that. How can we make a presumption that everyone is of the same religion and that is automatically in the best interests of the child? There are parents seeking to adopt with whom the child may be best placed and who have no religion. Those issues have all been raised already.

I would like to hear what the Minister of State has to say about my suggested alternative, which he did not address. It involved making an alternative provision stating that the wishes of the birth mother with respect to religion would be respected. I have not worded it very well but I will come up with something better on Report Stage. The Minister of State takes the point and perhaps he will comment on whether that would be a possible alternative route which would address the problems raised but would not make this very problematic assumption about religion.

Senator Ivana Bacik: I move amendment No. 21

In page 30, subsection (4)(a), line 26, to delete “21” and substitute “18”.

The age of 21 is inserted in section 33 as the youngest age at which a person may be considered as an adoptive parent in a domestic or intercountry adoption. It struck me as discriminatory towards younger people. I do not know why 18 years cannot be the age. In practice, it is unlikely that anyone of 18, 19, 20, 21 or 22 years of age will seek to adopt, but I do not understand 21 years as the lower age limit, particularly given the fact that we do not have an upper age limit. Adoption practice is to have a de facto upper age beyond which people cannot adopt, although other Senators know more about this than me. Why should we set a de jure lower age that is above the age of majority? Obviously, 18 years should be the lowest age and I am not proposing a reduction. We have changed 21 years of age for 18 years of age in most other laws.

Senator Ivana Bacik: The authority must be capable of ensuring that the adoptive parents are of the appropriate level of maturity, but 21 does not add much to 18. We believe that people of 18 years of age are mature enough to marry, vote, drive and do just about everything else. It is the general age of majority, although 17 is the age of consent. I do not know why we are discriminating for adoption.

I can imagine situations in which the age limit of 21 years would be problematic. For example, if a young person with a serious illness wishes to adopt his or her partner’s biological child, the limit could lead to some injustice. I will not labour the point, but will the Minister of State reconsider the amendment?

Section 32

Senator Ivana Bacik:  While the amendment seeks to make a sensible change, I would be somewhat cautious about diluting the need for the authority to have regard always to the welfare of the child as being first and paramount. I have a slight concern, particularly in respect of amendment No. 24, that it implies a watering down of the tests required. I can see that the tests could be fulfilled much more quickly in respect of a natural parent or relative who was seeking to adopt. However, all Members are still highly conscious of the dreadful abuses that occur within natural families and I can imagine that an authority must still be satisfied of certain basic considerations pertaining to the child’s welfare before it could give its recognition to an adoption order or an inter-country adoption. This also applies to intercountry adoptions.

I note that section 34(b)(v) contains a requirement for the authority to be satisfied as to the prospective adopters valuing and supporting the child’s needs in respect of his or her identity and ethnic, religious and cultural background. This is what I referred to previously about adoption practice elsewhere being clear about always having regard to such matters when placing children for adoption with appropriate adoptive parents. It strikes me that this is a sensible way to frame the necessary consideration to be taken into account by the authority.

It is a much more sensitive and sensible way of doing it than that proposed by section 32. Moreover, it strikes me that this provision conflicts with section 32. If the authority must have regard to ethnic, religious and cultural background while also operating within a presumption that the child is best served by being placed with someone of the same religion as his or her birth mother, it may find it hard to tally those two positions. They may not sit easily alongside each other in some cases. It strikes me that this is the better wording and it achieves the needs Members have identified.

Senator Ivana Bacik: Like other Members, I have received useful information from the International Adoption Association about the delays experienced by prospective adopters. We all agree that standards in terms of assessment for suitability for adoption must not be diluted. It must always be the case that any procedure has regard to the welfare of the child as its paramount consideration. The Bill envisages that accredited bodies would carry out certain functions and these amendments seek to facilitate that being done in the interest of smoother procedures of assessment for adoption.

I wish to support the principle expressed in the amendments proposed for section 46 which concerns the power to summon witnesses. The section provides that the authority may examine on oath the witnesses attending before it. It should provide also that it could examine on affirmation rather than on oath, which is a very well-established procedure in our courts where matters are being attested to. It is an omission not to include it in this section.

Section 54

Senator Ivana Bacik: I move amendment No. 42

In page 41, subsection (2)(b)(i)(I), line 26, to delete “moral” and substitute “other”.

 

This is the critical section in Part 7 which relates to adoption orders in exceptional cases and the role of the High Court. Section 54 provides for the orders of the High Court authorising the adoption authority to make adoption orders for children whose parents fail in their duty towards them. This is a tricky area of law — I declare my interest as I practised a little in this area — and, of course, this must also be read in light of the Constitution.

To provide some context for the amendment I am proposing, the amendment seeks to change slightly the way in which such an order will be made by the High Court. The High Court can make an order even where there is no consent from the natural parents. It is clearly an exceptional type of order to dispense with the consent of a person whose consent would normally be necessary to the making of the adoption order.

Subsection (2) is the main subsection which provides for this. It states that where an application is made in the High Court, it may authorise the authority to make an adoption order and to dispense with the consent, and a range of tests are set out. The first of those is where the High Court is satisfied it would be in the best interests of the child to grant the authorisation, which is absolutely right and proper. I seek to change paragraph (b) where a number of matters must be shown to the satisfaction of the High Court. These provisions are set out under subsection (2)(b)(i) which restates the case law that has established the test.

It is an extremely difficult test for the High Court to fulfil and a very high hurdle to jump to waive the need for consent. Effectively, the High Court must be satisfied that the parents of the child for at least 12 months before the making of the application have failed in their duty towards the child “for physical or moral reasons”. I propose to remove the words “or moral reasons” and replace them with the words “or other reasons” because this is broader. Given the definition of “welfare” of the child in the Guardianship of Infants Act and our understanding of welfare, “physical or moral” is simply too narrow. I would prefer to see something broader, such as “physical or other reasons”.

The more substantive change I am proposing relates to subsection (2)(b)(i)(III). Currently, subsection (2)(b)(i)(III) provides that the failure of the parents in their duty towards the child — which must, of course, continue until the child attains the age of 18 — must constitute an abandonment on the part of the parents of all parental rights, whether they are under the Constitution or otherwise, with respect to the child. This is an extremely high test and one that has been set out by the courts. I know the Minister of State’s response will be that it is a constitutional requirement that the parents must have abandoned their parental rights for the High Court to be able to grant an order without the consent of parents in such circumstances. However, my answer is a proposal to delete this subsection. While I accept this is dealt with in Supreme Court judgments, I do not believe we need to restate it here because it is already the law. I hope this is a law that will change if we amend the Constitution because it is unnecessary and duplicates the test already in existence to reproduce it in this provision.

I say this because the courts have stated the abandonment must be total in character and this abandonment test is very difficult to fulfil. It is right and proper that it should be a difficult test to fulfil where it is possible for a parent to consent and he or she has not done so. The real difficulty that has arisen is where there is a child of parents who are married to each other and where the child should be placed for adoption.

At present it is not possible for two parents married to each other to waive their parental rights by consenting to an adoption. The Minister of State may correct me if I am wrong but this is my understanding of the law, which will remain and is restated here. Under current legislation the only way in which a child of marital parents may be adopted is where the court is satisfied that the parents have abandoned all parental rights and have failed totally in their duty to the child. That is extreme and implies the most appalling judgment on the character of the parents. However, if they are married there is no other way for them to consent to adoption because of the constitutional status of the marital family. Geoffrey Shannon and others have long pointed out the difficulties with this.

Mr. Shannon wrote that it is profoundly ironic that it is easier to vindicate the interests of a child born outside marriage by means of adoption, in which that child becomes part of a caring stable family unit, than it is to secure the same rights for a child within wedlock. He said this arguably places the child of parents married to each other at a significant disadvantage relative to his or her non-marital counterpart because the only way a child born within marriage may be adopted is for this mechanism to be followed, namely, that the parents be proven to have failed totally and to have abandoned their parental duties.

I propose another solution, namely, to amend this provision and remove the need to prove abandonment. It is already contained in our constitutional jurisprudence and we do not need to restate it here. It is unhelpful because I anticipate we may be about to amend the Constitution, making the best interests of the child the paramount consideration, including in cases where the child is born within marriage. That would then change the situation.

There is another potential mechanism for fulfilling the needs of the child. It is clear from section 54(2)(b)(ii), that this proposal is intended to provide for a situation where a child is in the custody of and has a home with the applicants or prospective adopters and has been there for a period of not less than 12 months preceding that time, and that the child’s adoption is an appropriate means by which to supply the place of the parents. This envisages a situation where a child is in long-term care of somebody other than his or her natural parents but whose natural parents are unable to consent either because they are married to each other and therefore legally cannot consent or they refuse to consent for another reason. In that situation, if the people who are caring for the child and who have done so for at least a year seek to adopt they must prove to the satisfaction of the High Court that there has been an abandonment by the natural parents of their parental rights.

A better approach would be to provide for special guardianship. The likelihood is that those who will make application under this section will be either relatives or recognised foster carers of the child. In such a situation, English law provides a mechanism for long-term foster parents to apply for special guardianship under section 115 of the 2002 Act. They take on parental responsibility for the child, including all responsibility for day to day decisions about the child’s care and upbringing, but the natural parents retain some limited rights, including the right to consent or not to the child’s placement for adoption. It is a more appropriate procedure. It does not require the total relinquishing of all parental rights and in particular it does not require that the natural parents be shown to have failed or abandoned their child or children. That is very difficult for anyone to face. It is difficult for the prospective adopters to be placed in a position of having to show this and for the natural parents to be subject to this requirement.

I spoke about this matter during the earlier debate on different forms of adoption. In the past there have been recommendations for special guardianship mechanisms, particularly to facilitate long-term foster carers or persons who are caring for children born within marriage who cannot be adopted under our present law. In January 2005, the then Minister of State with responsibility for children, Deputy Brian Lenihan, published a report on the consultation process on adoption legislation, recommending that those foster carers who had cared for a child for five years or more should be able to apply for guardianship. Over 20 years ago, in 1984, the report of the review committee on adoption services made a similar recommendation. The provision has been recommended for a long time.

I understand that section 54 seeks to give the child security within the home of the persons who have been caring for him or her. We must never forget it is for the child’s sake that all this is important. However, for that to be done, and where the natural parents do not consent or where they cannot consent because they are married to each other, the section requires that the High Court be shown that the parents have abandoned all parental rights. That is very difficult for everybody to have to do. Although a test case was laid down by the Supreme Court, I do not believe we should replicate this in adoption legislation that seeks to improve the adoption system. I wish to hear the Minister of State state whether he accepts the principle of the argument, or, if he cannot accept this amendment, whether he will accept there might be an alternative solution that would provide for some form of special guardianship.

Senator Ivana Bacik: I thank the Minister of State for his response. In a way, I do not have as much of an objection to the test in the context of parents who are not married to each other or where, for example, a birth mother gives up a child for adoption. It is right that the test should be extremely rigorous in order for the adoption authority to be able to dispense with the consent. Clearly that is important. I am talking about children born within marriage because the parents have no entitlement or no capacity to consent under our present system. Indeed, before the 1988 Act — this is really a restatement of the 1988 position — there was no provision for children born within marriage to be adopted. I would like the Minister of State to explore the special guardianship option in greater depth. It is unfortunate that was not done in this Bill, given that there was such a long period of consultation leading up to the Bill and that this recommendation was put into the previous report in 2005 and in the 1984 report by the late Dr. Joseph Robins.

The reason special guardianship is so important is for the security of the child. The Minister of State rightly stated that in the case of children in their late teens an order may be made at that point. The difficulty arises for a younger child — these cases happen — who is facing the awful prospect of being moved between different foster carers or from foster carer to natural parent and back again to foster care. In this case the child has no degree of stability or security in his or her placement under foster care arrangements. As the Minister of State said, there has been some improvement in that foster parents can now apply for a passport for the child and so on, but there is still the prospect of the child being moved and this can be very disruptive for the child. Special guardianship offers a measure of greater stability and greater security for a child within the home of the people who are caring for him or her. Clearly adoption offers the greatest stability and security because it is the full order, but because of this difficulty about the children of marital parents, this very rigorous test is required to be fulfilled before a child born of a marriage can be adopted, even by his or her long-term foster parents.

I acknowledge that my amendment is not the right way to deal with this but some mechanism should be adopted, ideally in this Bill, to deal with this position. There is an attempt in section 54 to deal with the children who are in long-term foster care and who may have been born within marriage, therefore it may be very difficult to go through an adoption process. Indeed, the children and all concerned may not wish a full adoption. They may wish something more flexible where the natural parents can maintain contact. I would like to hear whether the Minister of State might anticipate looking again at section 115 of the UK Act.