Adoption Bill 2009 - Report Stage - 14th May 2009
An Leas-Chathaoirleach:
Senator Norris was in possession.
Senator David Norris:
I was making the point that services relating to the provision of information, advice and counselling to a birth parent wishing to consider placing a child for adoption already exist in many instances. The principal intention behind the amendment is not to institute these services but rather to obtain recognition in respect of them in legislation. In view of the fact that the services to which I refer already exist, it is somewhat odd that reference is not made to them in the legislation. The Bill would be strengthened if it referred to them. Some later sections contain completely extraneous material, particularly that which refers to the Hague Convention. The legislation, therefore, refers to a number of matters that are irrelevant. However, the matter to which I refer, which is germane, is not mentioned.
Minister of State at the Department of Health and Children (Deputy Barry Andrews):
Section 14 provides for the mother or guardian placing a child for adoption to be supplied with a written statement explaining that the placement is the beginning of the adoption process, the effect of an adoption order and the consents necessary, and requires that the mother or guardian sign a document stating that he or she understands the import of the written statement. Mothers are always treated sensitively in respect of these issues, particularly with regard to their individual circumstances, and this will continue to be the case. There are many agencies involved in the support of mothers who are in crisis and who may be considering adoption. I accept that in this Bill we are not specifically providing for such counselling. However, it is my intention to consider this amendment for inclusion on Committee Stage in the Dáil.
Senator David Norris:
I am very grateful to the Minister of State for that.
An Leas-Chathaoirleach:
There is no mechanism by means of which I can allow Senator Norris to make a further contribution.
Senator David Norris:
However, I am of the view that it would have been appropriate to accept the amendment in this House.
An Leas-Chathaoirleach:
Senator Norris-----
Senator David Norris:
Had it been accepted, it would have provided due recognition in respect of the Seanad’s role regarding the introduction of the legislation.
Senator Frances Fitzgerald:
I thank the Minister of State and I welcome his indication that the amendment will be considered for inclusion on Committee Stage in the Dáil. However, I regret that he did not introduce an alternative amendment in this House. Some 84 amendments to this Bill have been tabled by Senators from different parties and the Minister of State has not indicated a willingness to accept any of them. He has not tabled any alternatives but has merely brought forward two minor technical amendments. When points are made in good faith and when people carry out research and work with agencies that are interested in matters such as those to which the legislation refers, it would be in the interests of democracy and the reputation of the Seanad if the Government considered accepting Opposition amendments on the floor of the House.
We want to improve the legislation and highlight the concerns of those who are experts in this area and who have stated that the Bill could be strengthened by the inclusion of amendments such as that under discussion. The Government has been in power for 12 years and during that period there has been a diminution in its willingness to accept amendments tabled by Opposition Members. I was a Member of the Houses when such amendments were accepted in good faith. I welcome the fact that the Minister of State is considering the amendment for inclusion on Committee Stage in the Lower House, but I regret that an alternative was not introduced in this House.
Deputy Barry Andrews:
This is the first occasion on which I have been charged with guiding substantive legislation through the Houses of the Oireachtas. The process relating to Committee Stage in this House was absolutely excellent. The Bill was scoped out in a way which I did not anticipate and which was very useful. We are all on the same page in respect of the issue under discussion and I have accepted the principle behind the amendment. We will find a way to ensure that provision is made in respect of this matter in the legislation. The two Houses will act in unison in respect of this matter and I do not believe there is any division in terms of our motivation with regard to it. No discourtesy is intended by my stating that the amendment is accepted, in principle, and that it will be transposed into the legislation in the Dáil.
Amendment put and declared lost.
Senator Frances Fitzgerald:
I move amendment No. 7:
In page 18, between lines 5 and 6, to insert the following:
”(j) providing post placement support, advice and counselling to birth and adoptive parents;”.
This amendment is similar to amendment No. 6. However, it deals with the issues that arise post-placement. It suggests that the Bill should also contain, at its core, the concept of providing post-placement support, advice and counselling to birth and adoptive parents. This is a recognition that certain issues can arise following placement. In the context of the Russian bilateral agreement, for example, concerns have been raised with regard to post-placement reports not being sent. Perhaps the Minister of State will state whether reports in respect of this matter are accurate. If they are accurate, will he indicate why that was the case and how such a development has inhibited our relationship with the Russian authorities. Perhaps he will also indicate why the required post-placement reports - I presume these were to be supplied by the HSE - were not provided.
Amendment No. 7 is designed to strengthen the concept of the State having a responsibility to provide post-placement support, advice and counselling to birth and adoptive parents. As stated, it also recognises that post-placement issues can arise. Like amendment No. 6, it highlights a matter that is not dealt with in the Bill. The position would be strengthened if provision was made in respect of the matter to which I refer. Such provision would also ensure that support, advice, counselling or whatever is required to ensure that a placement is successful is provided following such a placement.
I take on board what the Minister of State said with regard to his discussions with the Vietnamese authorities in respect of the interests of the child being at the core. Such interests and those of parents would be placed at the core if the type of provision contained in the amendment were built into the legislation.
Senator David Norris:
I second the amendment, which represents a further stage of development on the position we considered in the context of the previous amendment. I am of the view that amendments Nos. 6 and 7 are closely related because we are moving on to deal not just with the birth parents but also with the adoptive parents, namely, those who are assuming responsibility for the child.
This is an extremely important matter. The point I made in respect of amendment No. 6 stands and is even more relevant. At present, adoption agencies of various kinds provide intermediary information and tracing services to birth parents, adopted adults who may wish to discover the nature of their origins and adoptive families. However, the legislation leaves a gap and does not provide any legislative basis for this work. There is no support from the Legislature for the work being done in this area by support bodies, which is of considerable concern to those involved professionally. They would like to have proper recognition and a legislative basis to support them in their provision of services.
Senator Fidelma Healy Eames:
The provision of post-placement support, advice and counselling to birth and adoptive parents would be a worthwhile and important addition to the Bill. It should be a matter of normal and regular practice in this area. If it were in place, we would not likely have had the recent hiccup with the Russian adoption process.
There are two sides to the story of adoption. A birth parent gives up much when handing over their child for adoption. The least they deserve, and to reinforce that the decision they made was a good one, is to know how their child is progressing in the form of a note or a photograph. It would also be useful if the Health Service Executive or the assessment agency involved gave its professional view on how the adopted child was doing.
Post-placement support is also important for the adoptive parent because they will have moved to a new stage in rearing the child. This would provide a useful link between the birth parents and the adoptive parents. Post-placement support closes off the circle. If we were bound by law to provide that support, we would not find ourselves in the crisis we have with Russia. I support the measure and look forward to the Minister’s support for it.
Deputy Barry Andrews:
We have done extensive work in finding out what the issue is with post-placement reports and the Russian authorities. In reply to a recent parliamentary question on the matter, I stated there are 34 missing post-placement reports out of a total of 450 from last year. The majority of the outstanding reports have been completed and are with adoptive parents for translation and notarisation. In a small number of cases, parents have neglected or have been unwilling or unable to have a home visit with their social worker.
Russia has blacklisted another 19 countries in the inter-country adoption process. We have liaised with the Russian embassy to find out how many reports it considers are missing. The Adoption Authority and the Health Service Executive have written to the parents in question, reminding them of their obligations which arise out of an affidavit they swore at the time of the adoption to provide post-placement reports.
Senator Fidelma Healy Eames:
Will the Minister of State clarify whether the figure 450 refers to the total number of adoptions?
Deputy Barry Andrews:
The Health Service Executive completed over 450 reports last year in respect of children adopted from the Russian Federation. Pact, An Adoption Alliance, has not been blacklisted by the Russian authorities but it only completed seven last year.
Senator Fidelma Healy Eames:
The figure refers to 450 reports.
An Leas-Chathaoirleach:
Senator Healy Eames, the only Member who has the right to come back in is the proposer of the amendment.
Deputy Barry Andrews:
The figure refers to reports for over one year. In any case, much progress has been made on this issue. It is an issue that we have in common with other countries, unfortunately. The Russian authorities, I believe, simply decided to put the foot down to ensure they had all materials contemporaneously and there would be no delays in the furnishing of these post-placement reports. It is a legitimate policy decision on their part. We are trying to comply with this as quickly as possible and to allay fears on it.
Regarding the amendment, a difference has to be clarified between post-placement and post-adoption. In a domestic situation, placement is one matter and the adoption order follows that. We must be clear about the two different interpretations of this. On Committee Stage I pointed out that in Ireland an adoption is a termination of the relationship between the natural parent and the child. As such, the child is treated in law the same as any other child. Once the obligation to notify the Adoption Authority of bringing the child into the State or the placement of the child kicks in, there is also an obligation to notify the Health Service Executive.
The protections afforded to all children in the State are afforded to an adopted child under the Child Care Act 1991. People always want to ensure adopted children are treated the same as other children. Obviously the Health Service Executive has expertise in knowing what issues arise in adoption. These issues are dealt with under the Child Care Act. I, therefore, resist this amendment.
Senator Frances Fitzgerald:
I am not sure why the Minister of State is resisting it. If one takes the Russian situation, there are 34 missing post-placement reports. The Russian authorities have decided to put their foot down and, probably rightly so, request the reports. This links with a later amendment as to whether the Health Service Executive has the resources to do the necessary work in this area. Given that this is an ongoing issue and that post-placement reports are required and are good practice, I am still not clear as to why the Minister of State is not accepting this amendment.
Deputy Barry Andrews:
The protections afforded to non-adopted children are also afforded to adopted children under the Child Care Act. If the concern is related to post-placement reports, that is a separate issue. It is not an obligation of the Adoption Authority.
There is also the constitutional issue of the right of any family to exclude a person from insisting on a post-placement report. Under the Constitution, a family does not have an obligation to furnish information about its children to any statutory authority for the benefit of a third country. That is why there is no statutory obligation in this regard. The Health Service Executive and the Adoption Authority have facilitated adoptive parents in attempting to comply with requirements from countries such as Russia that wish to obtain post-placement information.
Senator David Norris:
That is not correct.
An Leas-Chathaoirleach:
Senator Norris, please.
Senator David Norris:
The word “report” is not contained in the amendment. Why is the Minister of State going on about it?
An Leas-Chathaoirleach:
Senator Norris, please.
Amendment put and declared lost.
Senator David Norris:
I move amendment No. 8:
In page 19, line 33, after “Executive” to insert “or of an accredited body”.
It is obvious from the debates on the earlier amendments that the Health Service Executive is in no position to provide all the supports necessary in this area. This amendment allows such supports to be provided by other accredited bodies, a perfectly proper and appropriate proposal. I hope on this occasion the Minister of State will address the amendment and not allow himself to be seduced into the byways as he was with the previous amendment.
Deputy Barry Andrews:
I answered the questions I was asked.
Senator David Norris:
He neglected the actual substance of the amendment which referred to support.
12 o’clock
Deputy Barry Andrews:
I was asked a question about Russia.
Senator David Norris:
I know that but it does not matter. I put my name to the amendment because I supported it and knew what it meant.
Deputy Barry Andrews:
I am learning my lesson. I will not extemporise.
Senator David Norris:
I did not want to venture into the byways. The Minister of State could easily have accepted it because it was directly analogous to the preceding amendment. If he accepts one, it is daft that he does not accept the other. They are bound by the idea that in this human situation both adoptive and adoptee families should be given as much support as possible. We are suggesting the addition of the phrase “an accredited body”, in other words, the organisations which have done sterling work in supporting families. I grudgingly admit they have also done sterling work in lobbying us on these issues.
This appears to me a reasonable amendment and I will not throw a tantrum if the Minister of State is prepared to accept the principle of it and consider its reintroduction in the other House. I realise he will not do so in this House.
Senator Frances Fitzgerald:
I second the amendment. This is the first time in our debate on the Bill that we have raised the issue of accredited agencies. I have tabled a number of amendments which allow accredited agencies as well as the HSE to take action under the Bill. When I raised this issue during our last debate on the Bill, I understood from the Minister of State’s response that he was against the idea of an accredited agency and was satisfied the HSE was competent to do the necessary work. However, I since read in an interview in The Sunday Business Post that he now agrees that the concept of an accredited agency would be useful in dealing with the well-documented problems this country faces in terms of waiting lists for adoption assessments.
It is completely unacceptable that people have to wait years for assessments which are relatively straightforward. Certain established procedures must be followed, various people are interviewed and references are checked. The waiting lists exist because there is a shortage of the personnel required to do this work in a timely and efficient manner. These delays are particularly distressing for couples who become ineligible because of age limits and who in many cases have already undergone fertility treatments. I am sure the Minister of State read the two letters on this subject in The Irish Times today. For quite some time we have had a failed system of assessment with the result that children and parents have been left in limbo. The two letters in The Irish Times say it all. It is clearly beyond the HSE’s capabilities at present to conduct adoption assessments in an efficient and speedy manner. It is not that organisation’s fault because it has not been adequately resourced to do the job requested of it. It is in an impossible situation.
A leading article by Carl O’Brien in The Irish Times today reports that social workers in Wexford simply cannot deal with their caseloads. These social workers, who are part of the Minister of State’s area of responsibility, lack sufficient resources to meet all the demands made of them. That article also reveals that hundreds of children who are at risk have not been allocated social workers and their cases are on the shelves of offices around the country. We are debating this Bill in the context of the Monageer report, which clearly reveals that two children and two adults were failed despite the fact they were contacted at a very early stage when the parents were recognised as having disabilities. Even though they were in contact with a range of organisations and were assessed by numerous experts, the system failed. The capacity of the HSE to assess couples on waiting lists is a serious matter.
Senator Norris has moved an amendment that develops for the first time in the context of this Bill the concept of an accredited body. This would involve a body other than the HSE which would operate to the standards set out in the Bill. It is critical that the highest standards apply to any agency working in this area. The Minister of State has stated he believes in the concept of an accredited body, perhaps after reflecting on the discussions in this House. However, he has not brought an amendment to provide for such an agency.
If we are serious about legislation and if words are to mean anything, now is the time to make such an amendment. This is our first opportunity to discuss an accredited body which would have delegated powers and responsibility for adoption assessment. I welcome the Minister of State’s comments in this regard because for too long we have been approached by families who were distressed by the length of time assessments take. I do not for a moment claim this is a simple process and I recognise the issues involved are highly complex. Clearly, however, the State has failed to provide a workable and reasonable system. The endless delays only add to the distress of those who seek to adopt. Those who have shared their concerns with us about Vietnam and Russia have already experienced incredible delays in the adoption process. They have encountered social workers who were not replaced while on maternity leave and assessments which were promised but never happened or were postponed for two or three years. This is the context for our proposal on accredited bodies. If I thought the system was working, I would not call for the establishment of such bodies. It is clear, however, that the system is broken in terms of adoption assessments and we need to consider alternatives.
I look forward to hearing the Minister of State’s response. He is probably the first Government Member to admit the system is broken. It is about time somebody did something about it in order to make a difference to people’s lives. Ireland’s adoption societies and agencies have built up significant expertise and can provide suitable staff for an accreditation organisation. The system could work if it were streamlined in this way. I welcome the Minister of State’s change of heart, if the newspaper reports are correct, and I hope he will clarify whether he intends to proceed with the concept of an accredited body.
Senator Fidelma Healy Eames:
I support Senator Fitzgerald. It is great that the Minister of State acknowledged the executive could also be interchanged with an accredited body for the reasons Senator Fitzgerald outlined. The waiting time for assessment is unacceptable because by the time many couples find out they have a difficulty conceiving a child and have pursued fertility treatment and other investigations and can afford to buy their own home, they are in their late 30s. They join assessment waiting lists and by the time they are approved for adoption of a child, they could be in their mid-40s. It is unacceptable as couples lose many good child rearing years, which can have an impact on the quality of parenting and so on.
It introduces a great deal of sadness into a couple’s lives that an agency is holding up their lives. Many couples have described the HSE as acting like God. There is no question that the assessment needs to be rigorous because the process is ultimately about the child and not the couple. We have a good record in this jurisdiction in parenting and providing good adoptive parents but it is not acceptable that the HSE can hold up people’s lives to this extent. I welcome the establishment of an accredited body which has clear terms of reference and which uses strict criteria and high standards. The Minister of State should examine how it is funded and perhaps a significant amount of work could be taken from the HSE because it is clear on many fronts that the executive is not coping with children’s issues.
Child protection is in crisis. There have been many child abuse cases. We have had the Monageer and Cloyne reports and the Ombudsman for Children recently suspended an investigation because the HSE would not co-operate. How can the executive respond to all these investigations? It is not managing, yet prospective adoptive couples face waits of between three and five years for assessment. There is great merit in putting an accredited body in place.
Senator Mary M. White:
Our vision through this legislation should be to deliver a compassionate revision of the existing circumstances in which people who want to adopt children find themselves. It is cruel to prospective adoptive parents that they must hang on for between six and ten years for approval. This is totally unnecessary. I agree families must be scrutinised rigorously but if we can speed up the process through the enactment of this legislation, we will make a dramatic change in the lives of people who want to adopt children.
Senators Fitzgerald and Healy Eames mentioned the Monageer report. I have some sympathy with the argument about the lack of resources in the HSE but why were 27 pages of the report blacked out and seven recommendations left out? This is not only about lack of resources and one must read between the blacked out lines. The HSE has buckets of money with an annual budget of €14.5 billion and 111,000 staff. We are making great progress in improvements in the HSE but it needs to prioritise radically where it is spending its money and what are the areas of greatest need.
As I said to the Minister of State in another arena yesterday, the primary recommendation in the Monageer report is the provision of a 24 hours a day, seven days a week social work service.
An Leas-Chathaoirleach:
We are not debating the Monageer report.
Senator Mary M. White:
My two colleagues were freely allowed to discuss it.
An Leas-Chathaoirleach:
They mentioned it in passing.
Senator Mary M. White:
They went on about it and I am entitled to do the same. We are debating the HSE’s resources. The executive needs to become much more efficient and reallocate its human resources. It does not seem to have the ability of the private sector to manage.
The next four recommendations in the Monageer report relate to gardaí reporting to their immediate managers, gardaí reporting to the HSE and so on. These are common-sense recommendations and they refer to the normal way of doing business. Serious warnings were issued about the family involved in this case and nobody, other than the undertaker, used his or her common sense. Officials should have reported concerns to their managers in the HSE or elsewhere. The issue is people doing their jobs, not financial resources. People will become complacent because many pages in the report have been blacked out and this could lead them to believe that if they do not do their job properly, they will not be exposed. The report demonstrates clearly that local HSE problems were dumped on the Garda, which was not fair.
There is no difference of opinion among political parties about the Bill. We all support it and people who are calling on us and asking for help all concur that Deputy Barry Andrews is an outstanding Minister of State and they are lucky to have him in this Ministry as this time. We must energise the system and speed up the process and time involved in parents adopting their child following approval.
Reference was made to the Dowse case yesterday and a colleague and I had an exchange over it. If my comments on it were hurtful to anybody, I sincerely apologise because it was the last thing I intended. This is a serious human issue. People’s emotions have been seriously disturbed.
Deputy Barry Andrews:
I refer to declarations of eligibility and suitability, about which I commented in the media. Section 37(3) states:
(3) As soon as practicable after the Health Service Executive receives an application under subsection (1), the Health Service Executive shall take the following steps concerning the adoption proposed under the separate application referred to in subsection (2)(b) or arrange for the steps to be taken by an accredited body ... (b) carrying out an assessment of eligibility and suitability in relation to the applicants[.]
That is permitted in the Bill. Nevertheless, that does not address the problem that we must set up an appropriate body and give it the appropriate powers to do the declaration of assessment. This is concerned with the assessment of eligibility and suitability, and that remains to be done. I have undertaken to speak with the associations, with the advice of the Attorney General, to determine what we can do within that section. It is to do with the eligibility and the assessment. As I said, it is not fair to have a prolonged system of assessment that creates stresses in families. Equally, even if it was foreshortened, it does not mean that stresses will not be caused by this process, because it is stressful. I have met couples who have been through assessments other than by the Health Service Executive who find it stressful. It can create stresses in marriages and relationships. We have to remove that part that is unnecessarily prolonged because of bureaucracy. That is my determination.
On the issues raised about child protection, when I was appointed Minister of State I said child protection would be my priority, and it has been my priority. In the past year we have made significant progress in developing structures, changes and reforms in the area, including announcements I made in recent weeks. In the first instance the HSE has agreed to appoint an individual who will be solely responsible for children and families. That is the first time that has happened nationally in our health services structure. For the first time we will have somebody who will parallel, on an implementation level, the policy responsibility that I and the Office of the Minister for Children has had since it was set up to underline our commitment to this area as a Government.
We have also set up a task force to address the legacy of the former health boards whereby referrals are done in a different way in different health board areas. They have passed down through the local health offices and we have now almost completed a process of standardisation which will ensure we will have a single national way of referring, assessing risk and determining waiting lists. In that way we will know where the problems are - I recognise problems exist and I would not have set it as a priority if they did not - and allocate resources accordingly. We will be able to understand where the gaps are. We also need to bring this into the information technology era to ensure we have a data bank of resources.
Senator Mary White hit the nail on the head. There has been much mention of out -of-hours resources in regard to Monageer. That was the key finding. It has been acknowledged, however, that an out-of-hours service probably would not have saved the lives of that tragic family but what is also recommended in the report is better co-ordination among agencies. That is why I believe that if we standardise the way the different heath offices work in terms of child protection and give them the facility to share the information using technology, there is a possibility that at any one time we can X-ray the system to see where children are at risk, where the numbers are greatest and where the resource allocations need to be reconsidered.
I was also pleased to announce that social workers are exempt from the recruitment embargo in the HSE.
Senator Phil Prendergast:
That is very welcome.
Senator Fidelma Healy Eames:
That is great news.
Deputy Barry Andrews:
That again underlines the fact that we recognise this is an area of major priority.
Having made the point about section 37 it might clarify the reason this part of the Bill, page 19, Part 3, concerns the placement for adoption. The section the Senator is attempting to amend, section 12, concerns the statutory authorities rather than any accredited body and allowing them permission to enter the home in circumstances where they wish to make or recognise an adoption. It has nothing to do with the assessment process. I hope the point I made on section 37 explains the reason I will not support the amendment.
Senator David Norris:
Perhaps it is because we are on Report Stage that there are so many references to reports of various kinds. There was a reference to the absence of proper reports in the Russian situation and now we have mention of the Monageer report, which is not directly relevant but since it has been opened up by Senators and by the Minister of State, I will mention it. What concerns me principally about the Monageer report - I said this on the Order of Business - is not the blacking out of sections on legal advice but the fact that seven of the recommendations were deleted. How in the name of God can we function effectively as a Parliament if in monitoring the implementation of these recommendations nobody is allowed to know what they are except two citizens of this State? That is absurd. There are ways around that. The way around it - the Minister of State probably knows this because it has been done previously - is to read them into the record of either House of the Oireachtas or of a privileged committee of the House. It then becomes part of the record and we are protected against any legal recourse in so doing. I recommend the Minister to consider this option, not perhaps with regard to all of it. I am not one of those who goes around looking for heads on a plate. That is largely a waste of time, but we ought to know what are the recommendations. The Minister of State might consider reading those into the record of the House and giving us his answer.
I unreservedly welcome the Minister’s statement that there is no embargo on the recruitment of social workers.
Senator Frances Fitzgerald:
Hear, hear.
Senator David Norris:
I sincerely hope he is right. Will he comment, as Minister with responsibility for children, on the article on the front page of The Irish Times about a report which states that thousands of children at risk of abuse have no social worker? How can that be explained if there is no embargo on the recruitment of social workers? Why is it not being done? One third of the 21,000 children who were reported as being at risk have no social worker. If there is no embargo we are entitled to ask why that is the case. The report states that the cases where there is information to suggest the child is at immediate risk of harm should receive the highest priority. I will leave that matter because I want to deal with the amendment.
As I understand it, the Minister has helpfully drawn our attention to the existence of the phrase I wish to insert, namely, “or of an accredited body”. I welcome the fact that this phrase exists so that there is an acknowledgement at a later point in the Bill. It does not appear that there is any insuperable difficulty in accepting the addition of “or of an accredited body” at this point.
I had difficulty in hearing it but the Minister made some reference to legal advice he has received. Will he disclose that to the House if he is saying that-----
Deputy Barry Andrews:
In the context of what?
Senator David Norris:
Senator Fitzgerald may have heard that comment also. The Minister has not received legal advice-----
Deputy Barry Andrews:
I did not mention anything about legal advice, to the best of my recollection.
Senator David Norris:
There is no legal advice in existence independent of this.
Deputy Barry Andrews:
I did not say there was no legal objection, I am just saying I did not say anything about legal advice.
Senator Frances Fitzgerald:
I think it was a comment about the legality of it.
An Leas-Chathaoirleach:
The Minister can contribute again. Senator Norris, without interruption.
Senator David Norris:
Perhaps it was something different. The Minister will no doubt let us know if there is legal advice to the effect that there is a difficulty. I do not imagine that could possibly be the case but the Minister might be frank with us and acknowledge if it is the case and, if so, he might indicate what it is. It cannot be a financial difficulty because if it was a financial difficulty this amendment would have been ruled out of order by the Cathaoirleach on the basis that it would create a charge on the Exchequer. The fact that the amendment has survived is clear and cogent proof that there is no financial implication. Otherwise, to quote the late and not so great Lord Denning, it would be an appalling vista that the Cathaoirleach had misadvised himself and the House on this matter and permitted an illegal amendment to be discussed.
Senator Mary M. White:
A sullied man now.
Senator David Norris:
Yes, exactly. For those reasons I would like the Minister to tease out the matter first and address those questions. Admittedly, one of them deals with the Monageer report and the problem with the recommendations. They are the crucial issues. I welcome the Minister’s statement that the appointment of social workers is not embargoed but, if not, why are thousands of children at risk? With regard to the amendment, this phrase already exists in the legislation at the Minister’s behest. In the absence of either a legal or financial impediment and taking account of the fact, for which I am very grateful, that there has been very supportive debate by all Senators from all shades of opinion and all parties and none, the Minister might find it in his heart to go a little further in accepting this idea.
Deputy Barry Andrews:
To clarify, I said that Part 3 of the Bill concerns placement for adoption. The statutory authorities, the Adoption Authority and the HSE have the right, under section 12, to visit the home of the child or the guardian for the purpose of placement. It is solely that issue. It would not be appropriate for any other body to have a right to enter or visit the home created on a statutory basis. That is my opinion and it is why I am resisting this amendment. The concerns the Senator raised about the assessment process are dealt with later in the Bill. If I did so, I did not mean to say that legal advice was specifically sought on this issue. It was not.
An Leas-Chathaoirleach:
Is the amendment being pressed?
Senator David Norris:
No. There are many other amendments to be discussed. It would be nice to have a vote but it would be a waste of time.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach:
Amendments Nos. 15, 16, 26, 30 and 31 are related to amendment No. 9. Amendment No. 16 is a technical alternative to amendment No. 15 and amendment No. 31 is a technical alternative to amendment No. 30. Is it agreed that amendments Nos. 9, 15, 16, 26, 30 and 31 be discussed together? Agreed.
Senator Phil Prendergast:
I move amendment No. 9:
In page 20, between lines 10 and 11, 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,”.
The Bill does not specifically require a child’s birth to be registered before placement for adoption. This is an omission. More fundamentally, the father’s details should be registered where adoption is contemplated unless the mother completes a statutory declaration to the effect that the father is unknown or missing and cannot be traced using reasonable inquiries. We believe the father’s rights should be enhanced in this provision.
Senator Frances Fitzgerald:
I second the amendment. Are the amendments being taken separately in terms of proposing and seconding them?
An Leas-Chathaoirleach:
They are being discussed together but each one will be individually proposed and seconded.
Senator Frances Fitzgerald:
I do not agree with all the amendments in the group. Amendment No. 9 relates to the conditions for adoption, many of which are included in the Bill at a later stage. We support the suggestion but the right of the father to be consulted is dealt with later in the Bill. Perhaps Senator Prendergast or Senator Norris will clarify amendment No. 15 as it appears to limit the rights of fathers to be consulted. Why would consulting the father be detrimental to the interests of the child? I am interested in hearing the Minister’s response to that amendment. We support amendment No. 16. Amendment No. 26 relates to the father’s rights if his name is on the birth certificate. It is a reasonable proposal. Amendment No. 31, proposed by Fine Gael, deals with the situation where the father is unavailable because of a criminal offence.
Senator David Norris:
I support the Labour Party amendment. Amendments Nos. 15 and 30 are in my name. They are similarly worded. I am interested in hearing the Minister’s response to them. It is a function of this House to tease out the implications of legislation not just in areas where we have direct concern ourselves but also on behalf of people who request that these matters be examined. I understand Senator Fitzgerald’s diffidence in addressing my amendments because they appear to curtail the rights of the biological father. This is an important issue and one on which the public commentator, Mr. John Waters, has been extremely vocal in defending the rights of natural fathers. He and a substantial lobby group of fathers have been vociferous in expressing their views.
I had some reservations about putting down the amendment because I believe there is a natural interest on the part of the biological father in the fate, welfare and destiny of any offspring. However, for these amendments to come into operation the responsible authority - one assumes such an authority would be responsible - would have the right to decide to place the child for adoption without extensive consultation with the natural father in a situation where it had been clearly demonstrated that this would be detrimental to the best interests of the child. Curiously, on one occasion in the past I was involved in a situation where the guardians and mother of a child, in particular circumstances which it would not be appropriate to outline in the House, clearly believed that the best interests of the child would most emphatically not be served by any awakening of interest in the father, whose connection with the mother was casual in the extreme. He was a person of quite suspect character whose interest in the child might be awakened and might turn out to be malign. These are very unusual circumstances. It is because of my knowledge of this situation that I put forward the amendment. I respect the rights of biological fathers.
The second clause in the amendment deals with the issue of delay. Again, I am anxious to hear the Minister’s response. It is perhaps not wholly appropriate to say so but my support for this part of the amendment is a little lukewarm. Although I acknowledge the passionate feelings of prospective parents in wishing to accelerate the proceedings, one must be very careful to ensure that whatever delay is involved is indeed undue. Taking the language at face value, the amendment provides that it must be demonstrated that the situation would be detrimental to the child, as provided in (a), or that the delay would be undue, as provided in (b). With those two provisos I am prepared to put the amendment before the House. I await with interest the Minister’s response.
Deputy Barry Andrews:
I thank the Senators for their comments. There is a range of amendments to consider. The amendments are related to each other in that they deal with consents to the making of an adoption order and the placing of a child for adoption. When considering whether to accept the amendments we must have cognisance of sections 16 to 18 because they go into much greater detail on the rights of the father and enhance the rights of the father while balancing them against the paramount interest, namely, that of the child, and also of the mother.
Section 16 refers to the right of the father to be consulted on the placement of a child for adoption. Section 17 requires the accredited body to take reasonable steps to ensure the father has been consulted. Section 18 deals with circumstances where the father’s consent can be dispensed with on the authority of the High Court. In that three-stage strategy we try to introduce a balance in favour of a father’s rights against the mother’s rights and the child’s paramount rights to be considered in any issue relating to the placement of a child for adoption. The later amendments in the group consider the father’s rights on consent. We are dealing with the same principle in two different parts of the adoption process.
I accept that the amendment is well motivated but the concerns are addressed in the provisions of sections 16 to 18 and in the consents section later in the Bill. The concerns that have been raised have been adequately dealt with and reflect properly the balance that is required. One should bear in mind that, overall, this is a child-centred approach and the interests of the child are paramount. We have tried also to introduce such safeguards to ensure fathers are properly given an opportunity to object to consent in an informed way and that they are given all the support necessary to make those decisions. The decision in question is a life-long one and every step must be taken to ensure the decision made by the adoption authority is made in full knowledge of everybody who has a right prior to the adoption being made.
Senator Phil Prendergast:
Section 16 merely gives a right to the father to apply to be consulted on adoption. It is extraordinarily insulting and offensive to put in legislation that a father has only a right to be consulted about his own child being permanently removed from him. It is almost unbelievable that this minimal level of protection is proposed in law in 2009. I would like to see fathers protected in this situation by providing that fathers who are named on a birth certificate can veto adoption unless the court gives the go-ahead.
The power to dispense with any attempt even to notify the father is much too wide. The High Court can dispense with any notice to the father if that is deemed inappropriate. We suggest that this measure needs to be tightened up considerably. If the conception of the child was the result of an offence such as rape or incest there should be no need to notify the father but otherwise notification should be given. That was the reason for the amendment.
It is presumed that unless the contrary is shown that the welfare of the child is best promoted in the society of both the child’s natural parents. In effect, that test arises from the Supreme Court decision N v. HSE. The welfare of the child is not a free-standing concept and there must be a presumption that welfare is best promoted in the natural family unless the contrary is shown. Welfare is not to be reduced to a financial-type contest between natural parents and perhaps more well-heeled adoptive parents. That was the reason that amendment was proposed.
Deputy Barry Andrews:
The legislation is child centred. The Child Care Act understands the concept of children’s rights in the context of the rights of parents which, as we are aware, are established in the Constitution. However, the adoption process is a final break between a natural parent and a child and, as such, that process must be concluded with all due consideration. Reference was made to section 17, which includes the provision that if a father objects to a placement, the process will be suspended for a period of not less than 21 days to allow the father to apply for guardianship under the Guardianship of Infants Act. That is another safeguard and if that is unsuccessful one still has the right to apply to the High Court to determine the matter. A sufficient number of checks and balances are included in the Bill.
Amendment put and declared lost.
Amendments Nos. 10 to 12, inclusive, not moved.
An Cathaoirleach:
Amendments Nos. 13 and 14 are related and will be discussed together.
Senator David Norris:
I move amendment No. 13:
In page 22, line 2, to delete “not being less than” and substitute “of”.
I wish to ask the Minister of State about the reference to the Hague Convention in Part 2. The placing of the explanatory report in the Oireachtas Library is completely superfluous. It does not mean anything. Perhaps I will speak to the Minister of State about that in private. I presume I could have had an opportunity to talk about it on the section.
The amendment seeks to impose a limitation. The idea of undue delay and accelerating the process arises again. Amendment No. 14 specifies “not more than 35 days”. Again, as I understand it, that is to try to limit the delay. Section 17(3)(b)(i) states: “[N]otify the father and the mother in writing in the prescribed manner that the accredited body is deferring the placement for a period specified in the notice, not being less than 21 days”. My intention is to remove the phrase “not being less than” and to make the period specific at 21 days. The aim is to ensure that rather than being a minimum period, it is the exact period. Again, I do this on the advice of one of the lobbying groups.
An Cathaoirleach:
Is the amendment seconded?
Senator Frances Fitzgerald:
No, I have a separate amendment.
Senator Phil Prendergast:
I second the amendment.
Senator David Norris:
That will mean we can hear the Minister of State’s response.
Senator Frances Fitzgerald:
We suggest in this amendment that the timeframe of 35 days would be more realistic. A period of 21 days is too short. For example, a person might change address or a letter could be lost owing to postal difficulties. A change to 35 days would give the father sufficient time for reflection. That is a slightly different point from that made by Senator Norris whose amendment refers to three weeks in this context. I appreciate that we want to be child centred on this and that the Minister of State is balancing various rights. The amendment suggests that 35 days would give a little bit more time to the father to reflect and for people to contact him to be sure of his views.
Deputy Barry Andrews:
Just before the phrase “not less than 21 days” on the top of page 22, the Bill refers to “the placement specified in the notice”. Therefore, there is a specification of a period, and this should be not less than 21 days. We are dealing with a situation where a father is objecting to his child being placed with an adopted parent. It is quite a significant thing, so some flexibility is required. We are saying that not less than 21 days should be specified in the notice period. In any case, the likely scenarios cover a much broader spectrum. Experience tells us that this discretionary approach is warranted. It upholds the balances in the UN Convention on the Rights of the Child. We believe that a minimum period of not less than 21 days is the correct period because it is an issue of such obvious importance. Once the father applies for guardianship, the child cannot be placed until those proceedings are determined, so there is a further period. I would not be inclined to accept these amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 14 to 16, inclusive, not moved.
An Cathaoirleach:
Amendments Nos. 17 to 20, inclusive, 32 and 34 are related and may be discussed together.
Senator Frances Fitzgerald:
I move amendment No. 17:
In page 23, line 9, to delete “refuses to” and substitute “does not”.
This amendment arose at an earlier stage. We had some discussion about it when Senator Bacik tabled it. I certainly felt that it was worth discussing with the Minister of State on Report Stage.
Amendment No. 17 is a technical amendment about the mother co-operating with the father’s identity in the consent procedure, as are amendments Nos. 18 to 20, inclusive and amendments Nos. 32 and 34. Senator Bacik addressed this issue in quite a lot of detail on Committee Stage, and I would be interested to hear what the Minister of State has to say on it.
Senator Ivana Bacik:
I am grateful to Senator Fitzgerald for outlining the background to these amendments. I tabled them on Committee Stage and I was supported by Senator Fitzgerald, Senator Norris and others. The sense of them is not about changing the meaning of any of the relevant provisions but rather to change the language. The language used is based on the previous version of these provisions is judgmental and reflects a view of the mother as being in some way unco-operative. The word used is that the mother “refuses” to reveal the father’s identity. The reality is that when mothers are putting their babies up for adoption, it is a deeply traumatic personal circumstance that means that they cannot keep the baby. There may be all sorts of reasons for which they cannot reveal the father’s identity. To suggest that it is a wilful refusal implies a judgment or a condemnation of the mother in some way. That is the wrong sort of language to be placing in a Bill about adoption which is about the putting the rights of the child uppermost but also about recognising the human tragedy of the mother’s situation, who is making the dreadfully difficult decision of putting her child up for adoption.
I would like to see us change the language. I do not want to change the meaning because it is important that mothers are encouraged to reveal the father’s identity for the sake of their children. This amendment would not change the meaning of the Bill but it would change the message we are sending to mothers in this situation if we said that instead of the mother refusing to reveal, we spoke about the mother who does not reveal the father’s identity. There is no judgment in that case. It might be because she is unable to do so as she does not know him. There would be many reasons she would not know the father’s name and it may not be anything like a wilful refusal.
The further amendments are in the same vein. There is a sense in which the implication behind the language currently used is that the mother’s co-operation is not forthcoming with the adoption authorities. That is not helpful and it would be better to describe the mother as assisting rather than co-operating. It is really a change in language to change the message we are sending to mothers in this very difficult personal decision. The Minister of State accepted that I had a point on the message underlying the language and I would be grateful to hear if he has considered changing it.
Senator David Norris:
I largely support the arguments made by Senator Bacik and Senator Fitzgerald. They have done us a service by tabling these amendments. One would want to avoid any element of coercion of the mother, and that is the one thing that concerns me. By using words like “persuading” and so on, it feels as if moral pressure is being put on mothers.
It is sometimes possible that there could be a wilful refusal. There can also be other kinds of refusals that concern issues beyond not providing the identity of the father. An act can be deliberate without being wilful and an act in these circumstances could be deliberate without being malicious and could also be in the interests of the child. I can envisage circumstances in support of the use of the term “does not” or the inclusion of some additional phrase. The mother may not be in a position to reveal the identity of the father for a variety of reasons. For example, she could be unconscious or in a vegetative state. If I applied my mind to it, I could think of a number of circumstances in which it would be impossible or ill advised for the mother to reveal the identity of the father.
I am happy to support these amendments but the matter needs to be examined in greater depth. Perhaps the Minister of State can give a commitment to do that before the Bill goes to the Dáil.
Senator Fidelma Healy Eames:
I second the Amendment. We discussed this issue at length on Committee Stage. The Minister of State indicated he would look at the language. As Senator Bacik says, it is not about the meaning but about using kinder language. Instead of using the word “refuses”, we can use “does not” instead. Words such as the former could cast the mother in a very poor light and we do not know the circumstances, which may be harrowing for a mother, that would make it difficult for her to co-operate. I ask the Minister of State to look again at the language in this part of the Bill while retaining the thrust of the meaning.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
An Leas-Chathaoirleach:
We resume our discussion on amendments Nos. 17 to 20, inclusive, and 32 and 34. I call on the Minister of State, Deputy Andrews.
Deputy Barry Andrews:
The suggestion is made in amendment No. 17 that we replace the term “refuses to” with “does not”. There are further consequent and related amendments. In my view, it is almost impossible to change the language of a Bill without, as Senator Bacik suggested, changing its meaning. If we use the term “refuses to” in one section and “does not” in another, inevitably that contrast will be pointed out by lawyers and it will be assumed the Oireachtas meant one thing in one section and something else in another section.
While I am sympathetic to the concept, I believe there is an absolute obligation on us to underline the seriousness of the refusal or failure - whatever the phrase one chooses to use - of a mother to provide the name of the father, if at all possible. We must remember this is a child centred policy from which so much flows. A child has a right to know his or her father. We must underline that seriousness by the inclusion of these words. They are not meant as an admonition but are used to underline the seriousness of this issue. As Senator Bacik stated, there may be many reasons this has come to pass. While some people may be offended by these words others might be encouraged by them to reveal the father’s name or identity, which is in the child’s interest.
While I accept the motivation of the amendment, to safeguard children’s human rights the wording used must remain.
Senator Frances Fitzgerald:
We have had a good discussion on this issue on Committee Stage and in this House. I agree with the Minister of State on the right of the child to know and have access to his or her father. That is absolutely critical. Some countries have mandatory obligations in this regard. It is an issue which should be examined in context.
The reason behind these technical amendments is the punitive language used in respect of a mother. Perhaps the Minister of State will consider the addition of the term “does not” when this matter comes before the Dáil. That might be a way of dealing with this which covers both eventualities. There may well be circumstances where the mother would not be able to state the identity of the father, including that she does not know it.
I note a later section also deals to some degree with this issue.
Amendment, by leave, withdrawn.
Amendments Nos. 18 to 20, inclusive, not moved.
An Cathaoirleach:
As Senators Norris or Bacik are not here to move amendment No. 21, the amendment lapses.
Amendment No. 21 not moved.
Senator Phil Prendergast:
I move amendment No. 22:
In page 24, line 15, after “consideration” to insert the following:
“, and it shall be presumed unless the contrary is shown that the welfare of the child is best promoted in the society of either or both of the child’s natural parents”.
Senator Frances Fitzgerald:
I second the amendment.
Deputy Barry Andrews:
The relevant section deals with adoption orders. Earlier, we discussed placements. Obviously at this stage of an adoption the parents have agreed to have the child placed for adoption. I suggest, therefore, that the amendment is unnecessary. It is understood at this stage of the process that the child’s best interests have been considered in the context of the natural parents. We dealt earlier with the situation in respect of placements.
Section 19 provides that in any matter, application or proceedings before the authority or any court relating to the adoption of a child, the authority or the court shall have regard to the welfare of the child as the first and paramount consideration. That would be the correct approach and it is appropriately expressed in this section.
Senator Phil Prendergast:
As I stated earlier the test arose from the Supreme Court decision in the case of N v. the HSE. The principle set out in the amendment is pro-family, which leaves ample room for the rights of the child to be protected where the presumption is rebutted.
Amendment put and declared lost.
Amendments Nos. 23 and 24 not moved.
An Leas-Chathaoirleach:
Amendment No 25 is out of order.
Senator Frances Fitzgerald:
Why has the amendment been ruled out of order?
An Leas-Chathaoirleach:
It does not arise from Committee proceedings. All the amendments being discussed are being taken because arose from discussion on Committee Stage.
Amendment No 25 not moved.
Senator Phil Prendergast:
I move amendment No. 26:
In page 26, line 4, after “mother” to insert the following:
“, father (if named on the child’s birth certificate),”.
Senator Frances Fitzgerald:
I second the amendment.
Amendment put and declared lost.
An Leas-Chathaoirleach:
Amendments Nos. 27 to 29, inclusive, are out of order as they do not arise from Committee proceedings.
Amendments Nos. 27 to 29, inclusive, not moved.
Amendment No. 30 not moved.
Senator Frances Fitzgerald:
I move amendment No. 31:
In page 28, line 11, before “it” to insert “the father has committed an offence such that”.
Senator Phil Prendergast:
I second the amendment.
Amendment put and declared lost.
Senator Frances Fitzgerald:
I move amendment No. 32:
In page 28, line 16, to delete “refuses” and substitute “does not”.
Senator David Norris:
I second the amendment.
Amendment put and declared lost.
Senator David Norris:
I move amendment No. 33:
In page 28, to delete lines 26 to 28 and substitute the following:
“After counselling the mother the Authority may make the adoption order without consulting the father if---”.
This is similar to the other amendments and deals with, in a sense, the excision of the father from the deciding process. For that reason I am slightly half-hearted about it. However, I tabled the amendment on advice from some groups with the intention of ascertaining the response of the Minister of State. As I said on a previous amendment there may be extreme circumstances in which this could be appropriate - I can just about imagine them. However, I would initially like to hear the response of the Minister of State.
Senator Phil Prendergast:
I second the amendment.
Deputy Barry Andrews:
Section 30 provides that the authority shall take such steps as are reasonably practicable to ensure the father of the child is consulted on the adoption order. The section provides that the authority must obtain the approval of the High Court before dispensing with the requirement to consult the father before the adoption order is made. The requirement to obtain High Court approval before dispensing with the father’s right to be consulted is in recognition of the father’s right regarding adoption. The provision seeks to safeguard those rights by requiring the authority to obtain High Court approval before dispensing with those rights.
Amendment, by leave, withdrawn.
Amendment No. 34 not moved.
An Leas-Chathaoirleach:
Amendments Nos. 35 and 63 are related and may be discussed together.
Senator Frances Fitzgerald:
I move amendment No. 35:
In page 28, between lines 36 and 37, to insert the following:
31.---(1) In this section, “a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.
(2) Where the father is consulted under section 30(3) of this Act, the Court may make a contact order in favour of the father, on such terms as the Court may see fit.
The amendment makes provision for a contact order, which is permitted in British legislation, where the natural father would have the right to apply for a contact order with the child after adoption. Obviously we are in a different legal scenario from that which exists in the UK. I reference that to make the point that the concept of open adoption and ongoing contact is becoming more prevalent. It is very often seen to be in the child’s best interest. Very often adoptive parents themselves are very keen on this concept because they understand that some contact with the biological parent can be beneficial for the child at an appropriate stage.
It is a very different concept of adoption from the traditional one we had which was a closed system. However, we have got to understand more about children’s needs. The idea of adoption has developed and grown from countrywide adoption to international adoption. Open adoption may and will become more prevalent in the future. It does not mean endless and ongoing contact. It means that very often by agreement there is contact between the adoptive parents and the biological parent. This can take a very different format. It can be an exchange of photographs or birthday cards. It can be exchanging information about key milestones. Sometimes it can mean physical contact, with the biological parent coming into contact with the child, usually with the agreement, obviously, of the adoptive parents.
This section of the Bill, section 31, attempts to reflect the reality that there is more open adoption. I would be interested in the views of the Minister of State on the matter. Clearly the Constitution, which he has mentioned a number of times, circumscribes how we deal with adoption law here. If we had decided to introduce a constitutional amendment on children and inserted the rights of children into the Constitution, we might have addressed certain sections of the Bill differently. The Minister of State has commented about that matter on a number of occasions when discussing various sections. Given that the Government is considering a constitutional amendment on the rights of children, I would be interested to hear the comments of the Minister of State in that regard. It may be that given our current situation, he cannot accept or even consider this amendment. However, I would like him to outline his understanding of the constitutional issues that arise regarding children given that we do not have a constitutional provision at the moment covering the best interests of the child in his or her own right.
Senator Phil Prendergast:
I second the amendment.
Deputy Barry Andrews:
The area being discussed is quite interesting. As Senator Fitzgerald has said, there is a body of opinion that open adoption will become more common in the future.
However as the Senator is aware, the current position is that an adoption order effects the termination of the relationship between the natural parent and the child. Therefore, the child is treated in law in the same way as any other child and this is protected under the Constitution. Nevertheless, the Oireachtas joint committee to which the Senator referred is examining the constitutional rights of the child. It has done a great deal of work on this issue already and has until the end of the summer to work on it as a report is due at the end of September.
There are various ways in which one might like to call adoption a form of alternative care. There is a long tradition of fostering in Ireland, which can be a short-term measure for a period of months if a child is in a difficult position in its own family home. In addition, much more long-term fostering exists and many rights to which I referred yesterday have been given in respect of long-term fostering situations, including the right to consent to medical treatment and to apply for passports. Relative adoption also exists, whereby relatives of a child adopt and in such circumstances, although a full adoption has taken place, there often is contact with the natural parents.
However, the Government is constrained by the current position. Even were I so inclined, I do not believe I could accept this amendment. The Irish model of adoption is accepted under the Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption. It would be necessary to carry out a great deal of work to put in place a statutory framework as envisaged by this amendment before one could even consider it. The first step to take will be to go through the Oireachtas Joint Committee on the Constitutional Amendment on Children and to scope out such issues there before making any other statements on this issue.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach:
As amendment No. 37 is a technical alternative to amendment No. 36, amendments Nos. 36 and 37 may be discussed together by agreement. Is that agreed? Agreed.
Senator Frances Fitzgerald:
I move amendment No. 36:
In page 29, to delete lines 22 to 31.
I wish to hear what the Minister of State has to say in this regard. Members had a discussion on this issue on Committee Stage.
An Leas-Chathaoirleach:
Is the amendment being seconded?
Senator Phil Prendergast:
I second the amendment.
Deputy Barry Andrews:
For the purpose of providing clarification for Members, this section refers to adoption orders made by the authority and includes domestic adoption and the adoption of children from abroad in circumstances in which the adoption order is made in Ireland. Section 32 does not relate to the recognition of inter-country adoptions. As for the proposed deletion of this section of the Bill, there is no reason that all involved in the adoption process should not be aware of the religion, if any, of the applicants. The absence of such knowledge could leave the required consent open to being challenged in the courts. The section simply provides that the mother and those whose consent is required, or both, are aware of the religion, if any, of the prospective adopters. The proposed amendment No. 37 further clarifies that point.
Amendment, by leave, withdrawn.
Government amendment No. 37:
In page 29, line 28, after “religion” to insert “(if of any religion)”.
Amendment agreed to.
Senator David Norris:
I move amendment No. 38:
In page 29, between lines 38 and 39, to insert the following:
“(b) The applicants are a couple of the same sex over 21 years of age who can demonstrate that they have been living together within the jurisdiction for not less than two years and who have demonstrated to the appropriate authorities under this legislation that they are fit persons to adopt.”.
The substance of this amendment was discussed in the debate on Senator Bacik’s amendment that I seconded. All the arguments were made and as there is so much work to be done in the House today, I will listen to the Minister of State’s response to ascertain whether he has developed any further ideas in this regard and perhaps I will come back thereafter. While my colleague, Senator Bacik, may wish to say one or two words, the best interests of neither the House nor the legislation are served by simply reiterating all the same material.
Senator Ivana Bacik:
I second Senator Norris’s amendment No. 38, which would have the same effect as my amendment No. 4, which Members debated earlier. The amendment is to insert into the Bill recognition of the position of same-sex couples who are parenting children and who may wish to adopt. I reiterate the point that many children already are living in Ireland with parents who are same-sex partners and who, therefore, must have their legal position vis-à-vis the non-birth parent recognised in law. This issue is being approached from the perspective of the rights and best interests of the child and the amendment simply seeks to give legal recognition to already existing situations, particularly because, as the Minister of State has noted, same-sex couples already are fostering children. Simply put, there is one more piece in the jigsaw, namely, that same-sex couples also should be entitled to adopt in the same way as are married heterosexual couples.
I record my disappointment on how few amendments have been accepted by the Minister of State from Members, given the goodwill he has shown. Moreover, there was a good debate on this Bill on Committee Stage and the Minister of State certainly indicated a willingness to consider some of the principles raised by Members, including the principle of recognition of same-sex parents. I am sorry this has not been reflected in his acceptance of more amendments tabled by Members.
Deputy Barry Andrews:
This issue was discussed yesterday and obviously my sentiments have not changed since then. I hope the comments I made yesterday also will stand in respect of this amendment.
Senator David Norris:
To flesh out matters slightly, I referred to this kind of amendment when I discussed the amendment tabled by my colleague, Senator Bacik. It is carefully drafted and I assume that at some stage this is the kind of measure that will be introduced. In the first instance, the amendment ensures the involvement of a stable couple, whose members have been involved in a long-term relationship. In addition, it safeguards the rights of the child by requiring the applicants to have demonstrated to the appropriate authorities under this legislation that they are fit persons to adopt.
While there may not be an opportunity under this Bill, I ask the Minister of State to indicate privately to me and to Senator Bacik, who has been instrumental, together with other Members of the House, in teasing out the arguments for this issue, whether he can find out from the Government precisely what are its intentions regarding the civil partnership Bill. The Leader of the House has stated a number of times on the Order of Business that the Bill will be introduced within a certain timeframe. The autumn now is being mentioned but when a Green Party Member is asked, it is due before the summer recess. Will the Minister of State communicate a timeframe to Senator Bacik and me under which at least this part of the puzzle will be resolved?
For example, a situation has arisen in respect of a grandmother who is an average person, who certainly is not a strident or revolutionary person, namely, Mrs. Gill of County Offaly. She passionately makes a plea on behalf of the baby who she considers morally to be her granddaughter but who, because of the non-recognition issue, has no legal connection with her whatsoever. I also refer to the remarkable and dignified pleas that were made by existing and now virtually adult children of gay relationships, both on the airwaves and in the pages of The Irish Times. I record my gratitude to The Irish Times, in respect of both articles and editorials, in seeking to rectify this remaining injustice and violation of people’s civil rights.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach:
As amendments Nos. 39 and 40 are related, they may be discussed together by agreement. Is that agreed? Agreed.
Senator Phil Prendergast:
I move amendment No. 39:
In page 31, line 4, after “them” to insert the following:
“(or either of them, if a failure by one only of the married couple to comply with this section would not seriously threaten the welfare of the child)”.
As for amendment No. 39, the qualification on who is suitable to adopt places an unreasonable requirement on the applicants, stressing “each” instead of “either” in terms of their ability to parent. As for amendment No. 40, the tests set out in section 34 are in many respects inappropriate for an application by a parent or relative. For example, section 34(c) refers to means. Are we saying the unmarried father or mother of a child could not become an adopter because he or she had no money? Can we take the reference to age in section 34(b) to mean grandparents could not adopt a grandchild because of age? Clearly we have more sensitive tests that are required by parents or relatives as opposed to unconnected third parties.
Senator Frances Fitzgerald:
I second the amendment.
Deputy Barry Andrews:
I am not sure of the motivation behind this. It is a dilution of the principle that the same standards of eligibility and suitability should apply to all applicants in adoptions in order to protect the interests of the children proposed to be adopted. I cannot see how a married couple can be separated as envisaged by the first amendment so that one could be assessed positively while setting aside concerns that would arise after assessing the other parent separately or if one parent would have failed if he or she applied as a single adopter. Regarding the suggestion that a lack of money is a bar to adoption, section 34(c) states that a person has adequate financial means to support the child. This does not mean one must be rolling in money, simply that one must be able to provide for the child’s needs. That is not unreasonable where we are creating a permanent link between a child and a prospective adoptive parent. The criteria set out are reasonable and motivated by the interests of ensuring the welfare of the child is paramount. I do not accept these amendments because of the dilution of the standards contemplated.
Amendment, by leave, withdrawn.
Amendment No. 40 not moved.
Senator Phil Prendergast:
I move amendment No. 41:
In page 31, line 28, after “section 37(1),” to insert the following:
“or to an accredited committee or body on behalf of the Executive”.
We had a comprehensive discussion on this. The Bill appears to state that all applications for assessment must be made to the HSE, which currently manages over 90% of assessments and has presided over the growth of waiting times to start an assessment to over three years in Dublin, Cork and Limerick. The waiting times are awful. People must wait up to five years to be processed through a system that ultimately involves 30 hours of contact with the social worker. Assessments should be robust and should allow for preparation and reflection by the applicants. Anyone who thinks of adopting three times could have to wait 15 years. Provision should be made for accredited agencies, which could conduct such assessments. However, all applications must be made to the HSE and all assessments must be passed back to the HSE placement committee. Effectively, this discourages the establishment of any assessment agency because its sustainability and efficiency would be dictated by the HSE. While regulation is not as pristine a term as it was a few months ago, the Adoption Board would regulate assessments and is the final authority in granting declarations. Assessments by accredited organisations should be directly routed to independent placement committees and applicants should have the opportunity to apply directly to any accredited agency.
Senator Frances Fitzgerald:
I second the amendment. I would like the Minister of State to comment on this issue. What are his plans for accredited agencies?
Deputy Barry Andrews:
I addressed this earlier-----
Senator Frances Fitzgerald:
But the Minister of State did not say what he would do.
Deputy Barry Andrews:
Amendment No. 40 suggests waiving provisions that are unnecessary for the protection of the child’s welfare. It is important to recognise that adoption is a service for children. Where the State presumes to provide the place of parents or endorse the role of parents, it must be satisfied about the best interests of any child being placed in the care of persons not the child’s parents. Section 37 gives us the opportunity for an accredited body to carry out these assessments. I have had discussions with the representative associations and my staff about what we can do. We have other priorities at the moment, such as bilateral agreements and post placement reports, but I have undertaken to meet with the associations over the summer to find a solution to this. It is too early to say where we will go and how we will provide for such a service but we do not want to create a fast-track assessment where those with lots of money can afford to pay for an assessment. This must be not for profit and the service must be provided equally to all applicants. How that is funded will be discussed with stakeholders. I am ambitious to shorten the time, which is onerous, as pointed out by Senator Prendergast. It is properly onerous in most of the requirements in the criteria. The length of time is unfortunate. We are dealing with a limited number of social workers, as has been identified earlier. These are the same social workers who deal with child protection and post placement reports, which are increasing at a fast rate. While we have no embargo on the recruitment of social workers, we have a finite budget in the normal way. While other categories of employment are embargoed, social workers are not. With a combination of these measures we should be able to tackle the issue.
Amendment put and declared lost.
An Leas-Chathaoirleach:
Amendments Nos. 42 to 47, inclusive, and Nos. 49 to 55, inclusive, are related and may be discussed together. Amendment No. 43 is a technical alternative to amendment No. 42. Amendments Nos. 50 and 51 are technical alternatives to amendment No. 49.
Senator David Norris:
I move amendment No. 42:
In page 31, to delete lines 30 and 31 and substitute the following:
“The Health Service Executive, and an accredited body which places a child for adoption, shall establish one or more adoption committees.”.
This involves the deletion of the opening sentence of section 36, “The Health Service Executive shall establish one or more adoption committees.” and its replacement by the amended text. This concerns the involvement of accredited bodies. I await the response of the Minister of State, which was positive in principle although not to the point of effecting an amendment to the notion of accredited bodies at an earlier stage. Accredited bodies exist and are named in the body of the Bill.
Senator Frances Fitzgerald:
I second the amendment. I have listened carefully to what the Minister of State said about accepting an accredited body. It seems he is in favour of it in general but not specifically and that he is having discussions in late summer but is not in a position to make it a priority at the moment. If he does establish it, he believes it should not be for profit. I agree because that would be dangerous. The accredited body should have an ethos of equality of access. I would like to see progress on this idea in the body of the Bill. I do not know when this Bill will be debated in the Dáil. There should be some statutory form, as suggested in these amendments. That would strengthen the Government’s hand because the intention would be a statutory provision rather than being reliant on meetings with the interested parties. They are not a substitute for making absolutely sure this happens.
I have already spoken at length about the problems we have at present and I will not revisit them but it seems the Minister of State is addressing an issue as well. There is a lack of clarity because the Minister of State has indicated there is no embargo on the recruitment of social workers but there are limited funds available, which we all recognise. I take up the point made by Senator Mary White earlier with regard to the Monageer report. Of course, it is not just about resources as it is about ensuring that existing resources are managed in the best possible way. There should be a kind of case conferencing, communication and management from the top that ensures families get the sort of services they need.
That was the point I made on that particular case. There was much contact, according to the report, but the problem was the contact was not effective. Resources make up one aspect but there must also be effective work when the resources and people are in place, as well as proper management.
The Minister of State indicated that since entering office, he has tried to ensure he has the facts from each area and that he would get access to the information as quickly as possible. He has tried to see what is happening in different community care areas in order to compare responses etc., which is absolutely critical. However, we are doing this very late in the day. I cannot believe this information is still not at the fingertips of the Department, given that we have had community care and social workers in place for so long trying to work effectively with families and children who are abused. This has been a significant issue in this country and the effectiveness of the response still seems to be open to question despite more money going in. It is not just about resources; it is about their management.
With regard to setting up this agency, the Minister of State appears to be suggesting there may not be finance for the personnel to run it, which may be the reason we are not able to pursue it. That goes against the Minister’s earlier statement that there is no embargo on the appointment of social workers. I know many community care teams are short at the moment and have not had personnel replaced. Senator Norris has raised this point.
Although he might not do it today, will the Minister of State tell us what precisely is the recruitment position? Is there an effective embargo in some areas because of the financial limitations and is that the reason there are cases waiting?
To return to the specifics, it seems the Minister of State is supporting the idea in principle and he would like to see a cut in assessment times. The setting up of an accredited body would probably achieve that but the Minister of State does not appear to be giving any commitment in the short or medium term to establish such a body. Is that correct?
Deputy Barry Andrews:
With regard to these amendments, the HSE has the primary and statutory role in child protection in this country. What is envisaged is that the HSE would be the first point of contact. If an accredited agency would be able to carry out some of the procedures relating to assessment, they would do it through the HSE. The statutory procedure is there to allow this to happen but the HSE has the sole responsibility for child protection so the process must go through the executive initially.
If the language expresses “the Health Service Executive or an accredited agency”, such an agency without any statutory authority should not be able to make decisions that are fundamentally about child protection, when the statutory authority in this regard is the HSE. That is one of the issues that will come up and we have discussed already how this would happen. Ultimately, the HSE must have a supervisory role and be able to stand over assessments made because of its obligation under the Child Care Act. It is one issue that must be considered.
The Senator asked whether money is an issue. Unfortunately, with issues relating to health, children and every other aspect of Government there are finite resources, particularly at the moment. The toughest part of politics is telling people we have put a certain amount of money in one area rather than another. Making such decisions and establishing these priorities is difficult but we stand over such decisions.
That we do not have an embargo with regard to social worker appointments is a very significant step forward and I was very pleased to receive that information from the HSE. Nevertheless, finite resources remain and there is no way we will be able to appoint thousands of social workers. We will be able to improve the position but it is not just about resources, it is about working in a different way, as the Senator mentioned. I did not need the Monageer report to underline this to me and that is why the task force on child protection services in the State, which is due to report at the end of this month, is ambitious in ensuring there is a standardised approach across the country with regard to child protection.
The HSE must be the statutory authority with regard to child protection. Ultimately, some of the functions relating to assessment can be given to another accredited body but there must be a supervisory role.
Senator David Norris:
There seems to be some degree of movement on the part of the Minister of State because he accepts there can be a role for an accredited body in support of the HSE. I accept the Minister of State is correct in stating there is a statutory supervisory role for the HSE but he also indicated we could not have a position where the language would state “the Health Service Executive or an accredited body”. That is not what is contained in the amendment, which states “the Health Service Executive and an accredited body”. There appears to be a little disjuncture there.
I do not see the point raised by the Minister of State regarding a conflict. As I envisage it, the amendment supplements and assists the work of the HSE while accepting its supervisory role under statute. I welcome what the Minister of State has indicated regarding his interest in expanding the work that is done and so on. He has tailored his remark a little because in an earlier contribution he seemed to suggest there was no embargo on the recruitment of support staff such as social workers and so on but then he said there were still budgetary considerations. Although this may not be a strict embargo, it is certainly a limiting factor in achieving the best results.
Deputy Barry Andrews:
One of the amendments in the group uses the conjunctive and the rest use the disjunctive.
Senator David Norris:
I beg the Minister of State’s pardon.
Deputy Barry Andrews:
The Senator’s amendment uses “and”, which implies that one must apply to both the HSE and the accredited body. If we are speaking about bureaucracy, that would add unnecessary layers. I presume that what was envisaged was that one or the other would be done and one could be left with an alternative. As I stated in a previous reply, I do not believe that possible with regard to the Child Care Act and the obligations of the HSE.
I mentioned the budgetary considerations not to limit what I stated earlier. I thought it went without saying that any decision of Government has budgetary considerations and this is sad when one considers health and children. It is not something one would like but the HSE is obliged under the Health Act 2004 to remain within its allocation of funding. That is a statutory obligation as passed by the Houses of the Oireachtas. The budgetary considerations are laid out in statute and go without saying in my view. Such considerations were not mentioned to couch what I said earlier, as they are fairly obvious.
Amendment, by leave, withdrawn.
Senator Frances Fitzgerald:
I move amendment No. 43:
In page 31, line 30, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Amendment No. 44 not moved.
Senator Frances Fitzgerald:
I move amendment No. 45:
In page 32, line 1, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator Frances Fitzgerald:
I move amendment No. 46:
In page 32, line 13, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator Frances Fitzgerald:
I move amendment No. 47:
In page 32, lines 19 and 20, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator David Norris:
I move amendment No. 48:
In page 32, to delete lines 21 to 27.
This amendment relates to section 37 and the deletion of paragraphs (b) and (c). Concerns have been expressed to the effect that applicants could apply to adopt children through different agencies at the same time - in other words, multiple adoptions could take place and these would be difficult to assess and control - or that they would have the right to adopt more than one child as part of the same process. There would, therefore, be a lack of regulation.
Senator Phil Prendergast:
I second the amendment.
Deputy Barry Andrews:
The provision in section 37(2) is intended to streamline the process rather than anything else and to link the various stages from the outset to foreshorten the process.
Senator David Norris:
Subsection (2)(b) states that an application shall be made “in conjunction with a separate application under this Act by the applicants for an adoption order or the recognition of an intercountry adoption”. This seems to imply that two adoptions could be contemplated.
Deputy Barry Andrews:
That is not the position.
Senator David Norris:
That is fine. I accept what the Minister of State has said.
Amendment, by leave, withdrawn.
Senator David Norris:
I move amendment No. 49:
In page 32, to delete lines 28 to 32 and substitute the following:
”As soon as practicable after the Health Service Executive or an accredited body receives an application under subsection (1), the Health Service Executive or the accredited body may take the following steps concerning the adoption proposed under the separate application referred to in subsection (2)(b) or arrange for the steps to be taken by an accredited body:”.
The idea behind this amendment is that all the parties to an adoption should have an equitable right to adoption services-----
An Leas-Chathaoirleach:
The amendment has already been discussed.
Senator David Norris:
-----and should have regard to the welfare of the child as the first and paramount consideration. I intend to press it, but only to a voice vote.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator Frances Fitzgerald:
I move amendment No. 50:
In page 32, line 28, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator Frances Fitzgerald:
I move amendment No. 51:
In page 32, lines 29 and 30, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator Frances Fitzgerald:
I move amendment No. 52:
In page 32, line 44, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator Frances Fitzgerald:
I move amendment No. 53:
In page 33, line 3, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator Frances Fitzgerald:
I move amendment No. 54:
In page 33, line 8, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator Frances Fitzgerald:
I move amendment No. 55:
In page 33, lines 21 and 22, to delete “Health Service Executive” and substitute the following:
“Health Service Executive, or any Accredited Agency authorized by the Adoption Authority to conduct assessments of suitability as defined in section 34,”.
Senator Phil Prendergast:
I second the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Senator David Norris:
I move amendment No. 56:
In page 36, to delete lines 21 to 23 and substitute the following:
“(2) The Authority may attach, to the interim order, conditions in regard to the maintenance, education and welfare of the child and in regard to access arrangements in respect of maintaining meaningful contacts for the child.”.
This amendment involves a slight difference in language from the form proposed in the Bill as it seeks to open the position somewhat more. The reasoning behind it is similar to the previous amendment relating to the question of open adoption. The amendment changes the form of words used in the Bill to the following: “The Authority may attach, to the interim order, conditions in regard to the maintenance, education and welfare of the child and in regard to access arrangements in respect of maintaining meaningful contacts for the child.” It, therefore, substitutes the term “welfare” for that of “supervision”. In my opinion, that is a reasonable and humane course to follow. In addition, the amendment suggests the inclusion of the phrase “in regard to access arrangements in respect of maintaining meaningful contacts for the child”. This is important because children should have access to proper and meaningful contacts. The amendment also asserts the primacy of child and his or her interest in this relationship.
Senator Phil Prendergast:
I second the amendment.
Deputy Barry Andrews:
The Senator is correct that the points relating to this amendment flow from those raised during our discussion on the previous amendment to which he referred. I will consider the amendment and raise it with the Adoption Board - in the interest of discovering how it might envisage something of this nature being achieved - between now and the debate in the Dáil. I do not argue with the principle behind the amendment and, if possible, I would like to facilitate the change it envisages.
Senator David Norris:
I thank the Minister of State and I accept his assurance that he accepts the principle behind the amendment and will reconsider the matter in conjunction with the Adoption Board.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach:
Amendments Nos. 57 and 58 are cognate and can be discussed together by agreement of the House. Is that agreed? Agreed.
Senator Phil Prendergast:
I move amendment No. 57:
In page 36, line 41, after “oath” to insert “or affirmation”.
The Interpretation Act 2005 does not state that the oath includes affirmation. However, it contains the rider that it includes affirmation only for those entitled to affirm. The law should be clarified in this regard and that is why we have tabled amendment No. 57.
On amendment No. 58, the relevant subsection in the Bill is ambiguous. If a question of custody falls to be decided, it must be decided under the general law of custody set out in the Guardianship Act. While section 3 of that Act sets out the principle that the welfare of a child is a first and paramount consideration, it is apparent that this is not the only consideration. In particular, custody cannot be awarded to someone who is not entitled to it. This is a confusing ambiguity to introduce into the Bill because it disingenuously suggests that even if an adoption order were declared invalid, custody could remain with the adopting parents rather than the natural parents by virtue of the welfare principle. The latter is inappropriate and misleading.
Senator David Norris:
I second the amendment.
Deputy Barry Andrews:
My brief indicates that the Interpretation Act provides that an oath includes an affirmation or declaration. I will, however, reconsider the matter. The information I have at my disposal contradicts that available to the Senator. One of us is obviously correct. I believe we are trying to achieve the same result and that these amendments are not necessary.
3 o’clock
Senator Phil Prendergast:
I still believe the legislation is flawed in this regard and would like the Minister of State to look at it again.
Deputy Barry Andrews:
It has been confirmed with the Attorney General’s office.
Amendment, by leave, withdrawn.
Senator Phil Prendergast:
I move amendment No. 58:
In page 37, line 10, after “oath” to insert “or affirmation”.
Senator David Norris:
I second the amendment.
Amendment put and declared lost.
Senator David Norris:
I move amendment No. 59:
In page 37, line 29, after “affidavit” to insert “or both”.
This amendment concerns the Adoption Authority taking evidence orally or on affidavit. It has been suggested to me that it would be an improvement if it were allowed to be taken in both forms and would provide an additional safeguard.
Senator Phil Prendergast:
I second the amendment.
Deputy Barry Andrews:
The phrasing is what is at issue. Section 48 states the authority may take evidence orally or on affidavit. Naturally, if both formats were possible then it is understood by the way described. It is not necessary to insert the two words “or both” because it is already understood and they are not mutually exclusive. I appreciate the Senator’s concerns would be well-founded if it were drafted “either orally or on affidavit”. However, it is expressed that they are not mutually exclusive and evidence can be given both on affidavit or orally.
Senator David Norris:
I accept the Minister of State’s assurances. However, if the term “or both” were inserted, it would imply to the average reader that it is an option. For example, if one offered a child an apple or a banana, it is only the naughtiest of children who would say, “Yes, thank you. I will have an apple and a banana.” I hope the Minister of State is correct in this.
Deputy Barry Andrews:
I will check this matter with the Attorney General, including the question about children and apples and bananas.
Amendment, by leave, withdrawn.
Senator David Norris:
I move amendment No. 60:
In page 37, after line 42, to insert the following:
“(d) an employee of the Health Service Executive or accredited body.”.
Regarding those allowed to request a court case to be taken concerning the welfare of a child, in addition to various categories of person, including an applicant for an adoption order, the mother or guardian of the child, or any person having control over the child, this amendment proposes to include an employee of the Health Service Executive or accredited body. This is about engaging the front line staff in this important area. They are the ones with the greater understanding. Both bodies would also be involved in the assessment of the adoptive applicants.
Senator Frances Fitzgerald:
I second the amendment.
Deputy Barry Andrews:
The amendment is not necessary because section 49(2)(c) covers the category referred to in the amendment. When a child is in care, the person having charge or control over the child is, in legal terms, the Health Service Executive and its specifically designated officers.
Senator David Norris:
I thank the Minister of State for clarifying the point that the proposed provision is already met in legislation.
Amendment, by leave, withdrawn.
An Cathaoirleach:
Amendment No. 62 is a technical alternative to amendment No. 61 and they will be taken together by agreement of the House.
Senator David Norris:
I move amendment No. 61:
In page 39, to delete lines 1 to 4 and substitute the following:
“(3) However, if the court decides to determine the question of the custody of the child, the court shall do so having regard for the welfare of the child as the first and paramount consideration.”.
This goes to the heart of the primary importance of a child’s welfare. I cannot imagine there could be any cogent reason to oppose an amendment which expresses the principle agreed on several occasions in the past by the Minister. The principle has also been used in argument by various Members. The amendment should be accepted unless there is some concealed reason to object which I have not discovered.
Senator Phil Prendergast:
I second the amendment.
Deputy Barry Andrews:
Amendment No. 61 is not required as the Guardianship of Infants Act 1964 puts the welfare of the child as paramount. It is already understood when making any order under that Act that the child’s welfare will be paramount.
Regarding amendment No. 62, the reference to the 1964 Act includes amending legislation to it.
Senator David Norris:
The people who briefed me on this wanted to have a further reassurance on this matter. They wished to have the legislation reflect and be embedded with best practice for children’s welfare. I assume they will be satisfied by the Minister’s response.
Amendment, by leave, withdrawn.
Amendments Nos. 62 and 63 not moved.
An Cathaoirleach:
Amendment No. 64 is out of order because it was negatived on Committee Stage.
Amendment No. 64 not moved.
Senator Frances Fitzgerald:
I move amendment No. 65:
In page 57, line 14, after “child” to insert the following:
“or have previously adopted a child from a non-contracting state”.
Senator Phil Prendergast:
I second the amendment.
Amendment put and declared lost.
An Cathaoirleach:
Amendments Nos. 66, 72 and 73 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Senator Phil Prendergast:
I move amendment No. 66:
In page 60, line 7, after “Authority” to insert the following:
“, which shall give consent to that information being given where the adopted person and the person placing the child for adoption have agreed through a tracing mechanism to be established by the Authority that the information can be given”.
Amendment No. 66 arises from submissions we have received on the need for a formal tracing mechanism. Clearly, it needs to be specified that information can be released where both sides have indicated a willingness to find each other. Amendment No. 72 is similar.
Senator Frances Fitzgerald:
I second the amendment. This series of amendments puts tracing on a statutory basis. They are recommended by and have the support of people who are very experienced in this area. We want to promote the development of services that will assist people who were adopted and those who placed children for adoption to trace each other. A number of agencies have developed professional expertise in this area and a huge number of adopted young people have benefitted from the support these agencies can offer. Like other aspects of the Bill before us, this is a delicate issue and the proper professional standards must be in place to ensure people receive the best service possible.
This area has become even more complex due to international adoptions. I am interested in hearing the Minister of State’s views on this. He stated earlier that issues had arisen in Romania, where tracing was introduced several years ago, in respect of families attempting to retrieve information. Making legislative provision for tracing is a useful means of promoting high standards.
Amendment No. 73 proposes the development of intermediary information and tracing services for birth families and adopted persons. It is similar in this regard to the amendment moved by Senator Prendergast. Does the Minister believe this should be part of the legislation? It is a core part of many people’s experience and we want to ensure the system works effectively.
Deputy Barry Andrews:
I indicated on Committee Stage that I would consider including a provision on tracing and I have consulted the Office of the Attorney General on whether the existing administrative system needs to be put on a statutory basis.
The Adoption Board contains an information tracing unit and the recently established preference register has received 6,270 applications and made 500 matches. Last year the board launched a standardised framework which provides guidelines and standards for this process.
The amendments refer to the promotion and development of tracing. If the board is to have a statutory role in this regard, it would have to be neutral on the issue of tracing because not everybody wishes to be contacted. Nevertheless, a strong argument can be made for the exchange of medical information. If one considers the child’s interest as paramount, it is difficult to justify statutory blocks to providing that information even where a natural parent prefers not to be contacted in the normal way. We are discussing these issues with the Attorney General and I thank Senators for tabling these amendments.
Senator Phil Prendergast:
I thank the Minister of State for his comments.
Amendment put and declared lost.
Senator Frances Fitzgerald:
I move amendment No. 67:
In page 61, after line 44, to insert the following:
”(12) (a) An tArd-Chlaraitheoir shall keep an index to make traceable the connection between each entry in the Register of Foreign Adoptions and identifying information regarding the child’s original identity, including country of birth.
(b) The index kept under paragraph (a) shall not be open to public inspection, and no information from that index shall be given to any person except by order of a court or of the Authority.”.
I referred earlier to the international character of adoption, which makes the issue of tracing even more complex. I thank the Minister of State for his response to the previous amendment. He stated that 6,270 applications have been made to the Adoption Board but only 500 matches had been made on tracing.
Deputy Barry Andrews:
The applications were for exchanging information.
Senator Frances Fitzgerald:
Is it correct to say, therefore, that 5,770 people were unable to make contact?
Deputy Barry Andrews:
The figures refer to the register’s first two years of operation. I imagine the figure of 500 will increase.
Senator Frances Fitzgerald:
It is astounding that out of more than 6,000 people who wanted further details on their adoptions, 5,770 were unable to get this information. The information may be less accurate in respect of the cohort of older people but most of these cases would have involved Irish adoptions. These figures underscore the importance of a tracing mechanism.
My amendment proposes the creation of an index that would make traceable the connection between each entry in the register of foreign adoptions and a child’s original identity, including country of birth. This information would not be open to public inspection and information would only be provided by order of a court or the authority. It would have to be a highly confidential system. The figures outlined by the Minister of State pertain to an Irish context and a time when adoption was a more closed concept but they underscore the importance of my amendment in regard to international adoptions and the huge importance of having as much identifying information as possible in the register of foreign adoptions. It is absolutely critical for the child’s psychological, physical and mental health that as much data as possible are kept on the register. The amendment has been tabled because it is important that this is put on a statutory footing. If people are not obliged to do this, the information may be lost or it may not be furnished, although standards have improved hugely and that is probably basic information now which is available somewhere. The amendment proposes to formalise the process. The statistics outlined by the Minister of State show why this is important.
Senator David Norris:
I second the amendment. I agree completely with the argument made by Senator Fitzgerald. It is human to want to trace relatives as some stage in one’s life, no matter how successful and happy is the adoption. In addition, increasingly adoptees are seeking information about their parental background in terms of illness profile and genetic predisposition to certain illnesses and so on. The sentimental and the practical are grounds for keeping the register. In other words, the information should be retained in a secure form.
The second part of the amendment deals with security in a slightly different manner in that it refers to security from prying eyes and the gaze of persons who have no right to the information because it is personal and private. I am astonished to have received information that the register is wide open. Such records are open to anyone and the people who have briefed me feel strongly that this material should be held in private, as is the case with domestic adoptions. Will the Minister of State comment on the accuracy or otherwise of the assertion that information held is openly or widely available, which is a cause of distress to those involved in these cases? I am not aware whether that is the case but the issue has been brought to my attention. My brief states, “Currently these records are open to anyone and should be held in private, as in domestic adoption.” I am taking what I have been told in good faith but I am curious because if this is the situation, it is not positive or good.
Deputy Barry Andrews:
The section does not seem to indicate that the register excludes parties from observing it. I will have to check this and come back to the Senator at another time.
Senator David Norris:
Does the Minister of State agree that is worrying?
Deputy Barry Andrews:
Absolutely. It is a fair point, which I will have to examine. The Adoption Board is anxious to continue carrying out publicity campaigns to notify people of the availability of the register and the traceability options that are available but, as Senator Fitzgerald said, many of the 6,270 who have contacted the board are Irish people and domestic adoptions were involved. Very often adoption societies had kept records in the basements of buildings, which were gathering dust. I met representatives of the natural parents organisation who are anxious that something be done to preserve and collate the data, as people are anxious to obtain this information.
With regard to the amendment, an tArd Chláiritheoir is not responsible for the register of foreign adoptions. The Adoption Board relies on the information and documentation made available to it by the foreign jurisdiction. All information provided is held on file. The register of birth of the child is in the other jurisdiction and access or otherwise depends on the law in the other jurisdiction. The Adoption Board, in light of the work on the existing contract register, has indicated its intention to undertake further work anticipating the likely desire of inter-country adoptees to trace their origins in the future.
Senator Frances Fitzgerald:
The Minister of State seems to suggest it is correct that the register is open to public inspection.
Deputy Barry Andrews:
I stand to be corrected on that and I will have to clarify it for the Senator.
Senator Frances Fitzgerald:
That would be disturbing and we would not want that situation. The Minister of State also said the board is considering a similar register for inter-country adoptions because their numbers are on the increase and that will be necessary. It is important that the amendment is considered and accepted by him because the section is vague and we do not want to repeat the same mistakes with inter-country adoptions. As he pointed out, adoptees have been unable to access information and files are lying all over the place. Even if the child’s birth certificate or other information relating to him or her is kept in another country, greater effort should be made to gather the information, preserve it for the child and make sure it is available so that the child or the family can check the physical or medical histories. It is important that information is kept and is traceable.
Traceability is the key issue. If the information is left on file, it could be extremely difficult to track it down later. Of a total of 6,270 people who have approached the Adoption Board, only 500 made matches. We must look forward as traceability and availability of information relating to family histories and so on will be issues in inter-country adoptions. The provisions in my amendments should be made statutory. Will the Minister of State consult further with the board and ensure these provisions are inserted in this legislation? The research results furnished by the board to the Minister of State, which are helpful, highlight that we need a strong element of support for tracing.
With regard to “promotion”, it is important that adoptees are made aware. People can feel very isolated when they try to trace their family and they need to know there is a place where they can go to obtain the supports and information they need and that they will be dealt with in confidence. Both issues need to be considered further by the Minister of State before the Bill is debated in the Dáil. It is important to have an entry in the register of foreign adoptions with all identifying information but, as the Minister of State indicated, the register may be open to the public for international adoptions. That needs to be examined but he has agreed to report back to the House in this regard.
Deputy Barry Andrews:
I am not sure how I will approach this but I undertake to examine the section. The issues raised by the Senator are legitimate but I must give them more consideration before I make commitments on what I will do in this regard. I thank her for bringing these issues to my attention.
Amendment, by leave, withdrawn.
An Cathaoirleach:
According to the order of the House, I call the Leader to move the adjournment of the debate.
Senator Donie Cassidy:
This is the sixth day the Bill has been before the House. Because it is urgent and many families are depending on the outcome of this legislation, I propose we reconvene next Tuesday to complete the Bill if it is possible. I thank the leaders and all the Senators for their co-operation in assisting us-----
An Cathaoirleach:
The Leader is referring to that particular Bill.
Senator Donie Cassidy:
Yes.
An Cathaoirleach:
We have another Bill-----
Senator Frances Fitzgerald:
The Leader has changed his mind about Tuesday sittings. However, this Bill is extremely important and I welcome the opportunity to debate it further next Tuesday.
Senator Donie Cassidy:
Legislation has always taken first preference in the House. I have never changed that approach and I never will.
An Cathaoirleach:
Report Stage of the Adoption Bill 2009 is adjourned until next Tuesday, 19 May.
Debate adjourned.
Industrial Development Bill 2008 [Seanad Bill amended by the Dáil]: Report and Final Stages.
An Cathaoirleach:
This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 113, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question “That the Bill be received for final consideration”, the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the printing and circulation to them of those amendments. The Minister will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed grouping in the House. Senators may speak once on each grouping. I remind Senators that the only matters that may be discussed are the amendments made by the Dáil.
Question proposed: “That the Bill be received for final consideration.”
An Cathaoirleach:
I call the Minister to speak on the subject matter of the amendments in group 1.
Minister of State at the Department of Enterprise, Trade and Employment (Deputy Billy Kelleher):
I am delighted to be back in this House with the Seanadóirí.
A total of 20 amendments were proposed and approved on Committee Stage of the Bill in the Dáil. The Labour Party jointly proposed one of those amendments. The amendments do not make any substantive changes to the Bill as originally introduced in this House.
Amendments Nos. 1 to 6, inclusive, and Nos. 8 to 20, inclusive, in sections 2, 3, 5 and 6 of the Bill were introduced to provide for the commencement of all sections of the Bill on the passing of the Bill. The previous draft of the Bill provided for ministerial orders to commence the various sections of the Act but it was then concluded that the ministerial order mechanism is not necessary and it is now proposed that all sections will come into effect on the passing of the Bill. It is merely a technical issue. We are moving from ministerial commencement orders to commencement on the passing of the Bill.
Amendment No. 7 in section 3 is a drafting amendment to delete “the substitution of” and substitute “substituting” and does not constitute a substantive or material change. That amendment was originally submitted in this House by the Labour Party Members who had tabled a number of drafting amendments on Committee Stage. However, on the advice of the Parliamentary Counsel it was not accepted at that stage. The amendment was resubmitted on Committee Stage in the Dáil. The Parliamentary Counsel had reconsidered the matter and recommended that the amendment should be made. That is in accordance with the conciliatory approach on this side of the House to try to accommodate all views and include as many of them as possible in the Bill.
An Cathaoirleach:
Group 2 concerns the subject matter of amendment No. 7.
Deputy Billy Kelleher:
I have already covered that, a Chathaoirligh. I have dealt with all the amendments-----
An Cathaoirleach:
In group 1 and group 2.
Deputy Billy Kelleher:
Yes. I have covered all of them.
Question put and agreed to.
Question proposed: “That the Bill do now pass.”
Minister of State at the Department of Enterprise, Trade and Employment (Deputy Billy Kelleher):
I thank the staff of the Seanad and the Senators for their co-operation in taking the Bill at short notice. While it involved dealing with technical amendments I appreciate their co-operation. The Bill does not change policy but it is important because it allows the enactment of policy. I thank the Seanad staff, Members and the officials in the Department who worked diligently night after night on the Bill.
Question put and agreed to.
An Cathaoirleach:
When is it proposed to sit again?
Senator Donie Cassidy:
At 2.30 p.m. next Tuesday, 19 May 2009.
