In opening my Second Reading speech I stressed my support for this Bill but I asked the Minister to consider making additions and extensions to it in order to provide the Constitutional framework for the overall development of our laws in relation to children. I take the view that the position of the family as the basic unit of our society must be upheld and supported. At the same time a child must be seen as an individual with individual human, constitutional and legal rights. This requires that our outlook on all matters relative to the child, whether from the constitutional, legal, social or any other aspect, be more child centred.
Therefore, I am seeking a new approach and a fresh initiative in this, The International Year of the Child, in all matters relative to children in general and to adoption laws in particular. By way of background to my approach my researches have lead me to a number of sources that I should like to mention in the course of this debate. I would urge the Minister strongly to consider the comments made by various people in regard to this problem and to follow the lines of their approach. Although that might be somewhat tedious the Minister would find material which I am sure would lead him to have second thoughts on this matter and perhaps might tempt him to seize the opportunity on 7 June next to extend the constitutional provision.
On the last occasion I mentioned the 1916 Proclamation which referred to the cherishing equally of all the children of the nation. I accept that the reference to children in that document may have had a broader meaning but it includes babies and children in the normal sense. I take the view that all our children are not cherished equally but that we now have an opportunity to lead our constitutional and legal developments in the direction of equality for them. There is reference also in Article 40 of our Constitution to all citizens, as human persons, being held equally before the law. This must include children and it should encourage us to look at the position of the individual rights of the child in order to ascertain whether in the context of this Bill we can help to lay the constitutional framework for the development of the individual rights of certain of our children in this State who are not equal before the law.
In his Encyclical Pacem in Terris the late Pope John XXIII referring to this aspect of the rights of children and of man said that we see that every man has the right to life, to bodily integrity and to the means which are necessary and suitable for the proper development of life, that these are primarily food, clothing, shelter, rest, medical care and finally the necessary social services. I would stress Pope John's reference to the right to bodily integrity and the means which are necessary and suitable for the proper development of life. It is accepted by all who have an interest in adoption that this, in many cases, can provide the means for the proper and suitable development of an infant in course of life. That must lead us to look at the situation in which, in this State, adoption is not possible. Then, we must look at the Bill and decide whether we can extend its provisions to cover these situations. I am very mindful of the difficulties involved in any such extension. These were pointed out in the Minister's speech which impressed me very much in terms of the obvious research that had gone into it. However, if the approach were towards trying to overcome the obstacles those very legal brains who helped the Minister to put the Bill together should be able to help him find a solution to the problems.
The Irish episcopal conference some years ago had a special sub-committee dealing with family law reform. The sub-committee was under the chairmanship of the Most Reverend Peter Birch, Bishop of Ossory. A wide variety of people, including sociologists, a professor of canon law, a member of the society for the prevention of cruelty to children, local government officials and so on, were on the sub-committee. In studying their report I felt there were a number of matters which would be worthy of mention in a discussion on the adoption situation.
The chairman, Bishop Birch, in the preface referred to the need for reform:
The need for examination by such a working party became increasingly obvious at meetings of the Council, as examples were noted of hardship in families where nothing permanent could be done because of defects, inadequacies or anachronisms in the law.
The more one delves into this subject the more one sees the truth of that comment. It puts the onus on us as legislators to seize any opportunity we can to provide that those very defects, inadequacies and anachronisms highlighted in this report are removed.
On June 7 next we have one of those rare and unique occasions when we have a referendum to amend the Constitution. I am worried that we will not use that opportunity fully, accepting entirely that the referendum will achieve one very necessary job. Let us apply our minds to see how it could provide a vehicle for a total development in our laws relating to children and adoption in general.
The report of the episcopal committee is worthy of comment in a number of areas. In their introduction, they referred to the position of family law in our society. They said:
In submitting the document we feel we are supporting the growing awareness in the community that there is a social dimension to our legal system, that Family Law is not solely concerned about rights and obligations, and that the quality of relationships between people, and between them and their environment, require to be taken into consideration when legal decisions are being reached.
The report highlights the fact that every child is equally entitled to love, care and adequate support and the right to be brought up by his family. It states, however, that this pre-supposes a variety of care services to support the family in order that breakdowns will be avoided. It mentions that children are primarily dependent on their parents for support but it refers to the position of the abandoned child and states:
It is a most destructive experience for a child to be abandoned by his parents. When a child is abandoned, whether by married parents or by single parents, or where they do not make reasonable effort to provide a secure home for him, then the interests of the child demand that an equivalent home environment should be created for him with, or even in extreme cases, without the consent of the parents.
Here it seems that the thinking of the committee is ahead of the Minister's. My purpose in highlighting this report is to encourage the Minister to go some way along the line to meet the problems outlined in the report.
The report deals with the problem of children left in care until they reach employment age and who are then taken back by their parents for the purpose of putting them to work. This is a deplorable situation and was quite common in urban areas in the past. The committee give their own viewpoint as to the position of children and how they stand when any question of their welfare has to be considered. They state:
Children should no longer be seen as objects of the law but rather as subjects with rights, and this concept of children's rights should be embodied in the law. In any conflict situation, the child's welfare should be paramount.
That is pretty strong beer in the context of the Minister's speech. On re-reading his speech, it appears to me that he was highlighting the legal difficulties in using the expression "paramount" when referring to children's welfare. I appreciate the difficulties that might arise as highlighted by the Minister. However, if we were of one mind as to what we wanted to achieve, these difficulties could be overcome. I urge the Minister and his advisers to apply their minds in the coming weeks to this. If in the light of the defects and inadequacies in our law we feel that a change should be made, surely it is not beyond the bounds of the legal brains of this country to provide the necessary guidance to help us to establish that change.
Paragraph 5.12 of the report states:
Modern social care thinking advocates that children services should be child centred and that there should be a shift of emphasis from stressing parental rights to giving at least equal stress to the right of the child to love and care and a normal home life.
That is relevant in the context of the Minister's speech where there was a reference to the rights and duties of parents. It is not a question of parents having no rights. It is a question of highlighting and emphasising more the rights of the child where its own future and welfare are at stake. In any position where a child is badly treated or abandoned by its parents, we must develop our laws so as to provide the necessary protection for that innocent citizen of the State.
This report also deals with the position and status of a child born out of wedlock. This was also dealt with in the Minister's speech. It is clear that the thinking in this report is towards the concept that all children should be treated equally whether born inside or outside of wedlock. There are recommendations that there should be no distinctions in the law between children, and suggestions that there should be voluntary acknowledgment of children born outside wedlock and that that voluntary acknowledgment should be extended to the wife who has an extra-marital child. This is possibly of growing importance in the context of another matter to which I will refer later. As I understand it, there are particular problems relating to that matter with the result that babies are not getting a fair deal.
That is a general summary of the outlook of the Council for Social Welfare, the committee established by the Catholic Bishops Conference. It provides food for thought. Reading it together with this Bill highlights the worry that we are not doing enough in the Bill. In regard to the suggestion that our laws should be more child centred Father James Good writing in 1971 said:
... an Adoption Act should be child-centred while not neglecting the rights of other parties like parents, adopters and the community ... adoption is not a technique of getting children for childless marriages, nor for relieving unmarried parents of their responsibility or even for saving the State the cost of keeping children in an orphanage. Adoption should be primarily and above all else a process for finding a home and family for the homeless and familyless child, but when we look at our Adoption Act... right through the Act the dominant idea is that the child is the property of the mother and that short of killing or physically maltreating it she can do just what she like with it.
The law has developed somewhat since 1971 but not sufficiently to justify us in saying that it is child centred, with the child holding, as it were, the centre of the stage.
This problem is dealt with in a legal text book on family law by Alan Shatter. He refers to the problem of the legitimate child and the fact that, barring exceptional circumstances, the legitimate child cannot be placed for adoption. The Minister should put his mind to this again, possibly not in the context of providing specifically now for the adoption of legitimate children, but he might wish to look into it further. In the context of Constitutional referendum let us not close the door on it forever. The suggestion is that the adoption of legitimate children would require a Constitutional change. This is dealt with in Mr. Shatter's book wherein he quotes the then Minister for Justice, Deputy O'Malley, speaking in the Dáil on 29 June 1972. He said:
The Government are advised that the proposal in section 5 (1) that legitimate children should be capable of being adopted is almost certainly contrary to the Constitution. This advice was originally given at the time when the 1962 legislation was being prepared.
There is a further reference later in the paragraph by Mr. Shatter where he states:
Thus it is possible that section 2 of the 1954 Act permitting the adoption of a legitimated child is unconstitutional.
That is one of the rare situations in which a legitimated child could be adopted. Let us not close the door on the possibility of the adoption of legitimate children. It is not necessary at this stage for a decision in principle to be made to permit the adoption of legitimate children but when we are having a constitutional referendum, let us take the opportunity to remove the constitutional obstacle. This will permit the development of our law as time goes on. If our society feels legitimate children should be capable of being adopted, the constitutional obstacle will have been removed.
There is quite a strong lobby or, to be more correct, a body of opinion which would favour such a development at present, not in the rather emotive way in which it has been presented from time to time. It is sometimes presented as being a question of whether it would be better for a child to be brought up in a well-off family rather than in a poorer family. That is not the thinking or the intention of anybody advocating permitting the adoption of legitimate children. In line with the Minister's thinking on this matter I totally agree that any provision which would permit such a course should be legally excluded.
There are situations in which the choice is between having a child, who in this context is unfortunately legitimate, condemned to institutional care possibly for 15 years instead of being adopted and reared by a loving and caring family. If an adult were faced with that choice and with that restriction, he would feel his rights were being denied completely from all points of view. The child is not capable of thinking about that position. It is up to us to think about it for the child.
I referred to the legal and human rights of the individual in our society, including children. My attention was drawn to an article by Professor John McKenna who is Professor of Psychology at the Royal College of Surgeons. He deals with this in an article in the magazine "Children First". He develops the point that inherent in the concept of democracy is the idea that every citizen in a free country has certain legal rights and that, in addition, there is the different but related concept of human rights. I quote:
Human rights are based on universally shared ideas which have the force of laws and are treated as if they were laws.
He suggested that we should study the ideas in this article. He points out that children have always been a powerless minority with no voice in decisions with regard to their welfare. Like all minority groups, their welfare depends on the responses of decision-makers to the exhortations, prohibitions and demands of the moralist.
What is really highlighted is the fact that children should have legal rights, constitutional rights and human rights. It is up to us to ensure that these rights are respected. It is up to us to ensure that our laws are developed so that the human rights of the child are fully respected.
That leads us to consider what should be done. What should our approach to adoption be? I thought it wise to look at the words of the people who are involved in adoption. Reverend Fr. John O'Mahony, Secretary of St. Anne's Adoption Society, Cork, and Vice-Chairman of the Central Council of Catholic Adoption Societies, writes in Children First on the meaning of adoption and the nature of an adoption service as follows:
I think adoption is best defined as the provision of permanent substitute family care for familyless children. It is distinguished from other forms of child care because it involves a complete severance of legal relationship between natural parents and child and the establishment of a complete set of relationships between the child and the adoptive parents. Adoption focuses primarily on the familyless condition of the child. As a service, its object must be to ensure that the needs and the rights of a familyless child to an adequate form of family life are met as far as it is possible. This is the foundation on which we must build our adoption service and all our policies and practices should follow that definition.
He then deals with the need for adoption and stresses the fact that the needs of the child must be met by his natural parents. He also stresses the support that society should give to assist in this matter. He points out that adoption should only be resorted to where there is no reasonable likelihood of the natural parents, with reasonable support, being able to provide an adequate form of family life for their children.
Having developed these points, Fr. O'Mahony deals with the need to extend legal eligibility for adoption. Here he deals with the position of the child who cannot be adopted under existing law. He makes the point that we must offer these children something better than the insecurity of a foster home or the impersonal atmosphere of an institution. He highlights the problems in regard to the adoption of legitimate children and goes so far as to suggest that not permitting such children to be eligible for adoption is a discrimination against legitimate children. Generally, his view and the view of everybody involved in adoption services, everybody who is close to the problem, is that there is a considerable need to extend the legal eligibility for adoptions.
We must approach the matter with an open mind, with the idea of doing what we can to improve our laws; doing what we can to remove the defects in our laws; principally doing what we can to help the innocent children in our society who are suffering because of the defects in our laws.
There are a number of matters that I want to refer to by way of highlighting some of these specific problems that are in our laws. One of them relates to the difficulty under section 3 of the 1974 Act and the possibility of it being unconstitutional. The procedure on adoption is that the child can be placed for adoption at any time after birth. The mother signs the consent to adoption and the child is placed with the adoption society who place it with the adoptive parents. After six weeks the adoptive parents can apply for an order to the Adoption Board. The mother signs the consent after the board have received the application from the adoptive parents. She, however, may withdraw her consent at any time up to the making of the actual adoption order. The position is then governed by section 3 of the 1974 Adoption Act. This entitles the adoptive parents, on the withdrawal of consent by the mother before the making of the adoption order, to apply to the court for a custodial order. As I understand it, in that situation the indications are that the adoptive parents would generally use such an application because of the constitutional situation. That is certainly a worrying factor because it may not be in the best interests of the child, which should be the primary basis on which the case should be dealt with, to have the child taken from the adoptive parents. I stress that such an application arises before the making of an adoption order in the intervening period. I am not talking about a situation that would arise after the making of an adoption order.
The procedure, as I understand it, is that normally the minimum time for making an adoption order is six months. In between there are visits from the social worker and the Adoption Board. I understand it is very rarely that the order is made within six months and that very often the period can be much longer thus extending the time during which the child is at risk of being taken away from its new home. I am advised that during that period the provisions of section 3 of the 1974 Act would apply, that the position of the adoptive parents—I do not know if it is correct to use that term at that stage; perhaps we should call them prospective adoptive parents; the child has been placed with them but the adoption order has not been made and I am using the term "adoptive" to cover that situation also—is that in dealing with this matter before the court on an application under section 3 of the Act of 1974 they may find themselves in the position where the child may be removed from the home which they have given it. It is a rather worrying situation and in this context I would quote from the judgment of the President of the High Court in the case of G v. An Bord Uchtála last September when he said:
By reason of the principles which I have already set out in this judgment I am forced to the conclusion that I must construe this section as one in which the court should not intervene unless the mother has capriciously or irresponsibly refused or withdrawn her consent or, by her conduct, abandoned or deserted the child or unless she has failed to establish to the court that she is a fit and proper person to have custody of the child or unless the overwhelming interests of the welfare of the child require that it should not be restored to her custody but that, subject to the approval of the Adoption Board, it should be left in the custody of the prospective adopters.
I would say that section of that judgment is somewhat worrying for anybody who would seek to have the matter approached on the basis of the welfare of the child—the reference to the court not intervening unless the mother has capriciously or irresponsibly refused or withdrawn her consent, the reference to the overwhelming interests of the welfare of the child. When language like that is used it indicates that the proper legal interpretation of the situation is that in applications under section 3 of the 1974 Act the child would probably be restored to the mother in virtually all situations.
That leads me on to the question of delay between the placing of the child with the adoptive parents, the application to the Adoption Board after the baby is six weeks and the final making of the adoption order. The procedure was that there would be a delay of six months during which visits would be paid by social workers and so on to the adoptive parents but I understand that this period of six months can be very much extended. I further understand that the staff of the Adoption Board are doing excellent work but that they are overwhelmed by the amount of work involved and the result of the understaffing leads to delays in the making of adoption orders. If it is so I urge the Minister to ensure that whatever additional staff is necessary should be provided. It is not fair to the workers who are doing so much in this field to be left in the position that they cannot cope with the number of visits that have to be made.
This is a fairly serious matter. Details given to me indicate that in a survey of the position carried out relatively recently adoption orders had been made in regard to only 10 per cent of children after seven months and in only half the cases after ten months. If this is so, and I believe the survey was pretty comprehensive, it must lead us to look at the causes of the problem. I accept that they could be many but in so far as it is within our power to eradicate those causes we should do so. If one of those causes is the fact that the Adoption Board have insufficient staff it should be a primary concern of the Minister to ensure that position is remedied straight away.
There is another problem which I am told is a growing one in our society concerning the position of children born to married women but conceived out of wedlock. I should like the Minister to deal with this in replying. I am not sure of the exact situation but I understand that up to relatively recently such children were automatically registered as illegitimate if that was requested by the mother, but that in the past 12 months this procedure has changed and the files are now all sent to the central office in Dublin and that, short of a court decision on the status of the child, it is not registered as illegitimate at the request of the mother and is presumed to be legitimate and so is not available for adoption. I am told on the strongest authority that this is a serious matter, that in fact about 10 per cent of all children being put into care in this category are now coming from such situations.
If that is so, and if such children cannot be adopted here in this State, surely we must turn our minds to this problem and find a solution for it. I am further advised that because of the presumption that these children are legitimate and in that situation they are not adoptable, the solution at present for some adoption societies is to have such children placed with voluntary adoption societies out of this State. If that is so I do not believe that we as legislators can stand over laws which actually force the adoption of babies out of this State on the basis that they cannot be adopted here. I am further advised that the percentage of children in this category is increasing. Somebody very closely involved in the adoption service suggested to me that the figure could be of the order of 100 children in a year. I can go only on the basis of the information given to me, but it was given by somebody who is very involved in the adoption service and who has suggested to me that about 10 per cent of the babies coming into care come from this category and that a large proportion of these are now being dealt with in this manner.
I noticed in The Sunday Press last Sunday an article suggesting that as a result of an inquiry it would appear that if this—what they refer to as a trade—exists at all it is confined to 10 babies or less a year. Glory be to God, if only one baby is involved surely that requires our attention. If a single baby is forced out of this State because our laws do not permit it to be adopted here, surely we cannot just sit back in our comfortable chairs and let that position continue. I am not going to take issue with The Sunday Press or anybody else as to whether the figure involved is 100 babies a year or ten babies a year. My point is that if it is even one baby a year we must put our minds to ensuring that such babies are not forced out of this State for adoption because of a refusal on our part to amend our laws so as to permit them to be adopted here. I have no reason to doubt that this is the situation; in fact I would go so far as to say that my investigations have led me to believe that this practice does exist at present in this State and that babies are being sent out of the State for adoption elsewhere because they are not capable of being adopted here. What sort of rights are we offering to the young citizens of our State in that category, young babies, when all we can suggest for their future welfare for their own benefit is to send them out of the State? It is a matter on which I feel very strongly and one to which we must apply our minds to find a remedy.
Unfortunately, the Bill presently before the House does not provide the Constitutional remedy to that situation or to many types of problems which are affecting adoption today. I understand that the recommendations of the Task Force on Child Care are due in July next. What will be the position if the task force make a specific suggestion in regard to the adoption of certain categories of legitimate children? We will have a referendum in June and we will have recommendations coming through in July. Let me be clear that I have no inside information as to what recommendations will be made, but it is not beyond the bounds of possibility that such a recommendation could be made. We may have the ridiculous situation that a month previously we had a referendum and then we will be having a recommendation which in effect will require a further referendum if it has to be implemented. This brings me back to the point that we should not miss the opportunity, now that we are putting the Bill before the people, to provide the Constitutional framework to enable our laws to develop. If this opportunity is missed it may be many, many years before this House will have the opportunity again of putting through legislation to remove many of the anomalies and defects in our present laws.
In general, in regard to the Bill before the House, I am glad that the Minister has taken the initiative to deal with the problem arising from the McL decision and others. Certainly the point which the Minister is now including will provide considerable security for adoptive parents and adopted children in the country in the light of the many problems that have arisen in our legal system out of Article 37 of our Constitution, but that is another matter. The proposal of the Minister in the Bill will put to rest many of the fears of adoptive parents on this point. It is only on this point—which has been highlighted very much in the last couple of years—that their fears can be put to rest. I do not want in any way to suggest that there are further fears which should be plaguing adoptive parents, but let us be clear on what we are doing. It is only in regard to the fact that we are providing, as it were, Constitutional coverage for the Adoption Board in the making of their decisions that we are taking any action.
The Minister dealt with the difficulties involved in establishing a time limit. I presume the Minister has read the joint opinion of eminent counsel, Donal Barrington and Colm Condon, ex-Attorney General, on this matter, where it was recommended that a Constitutional change should be made providing that adoption orders should not be challenged after a certain period unless it was shown that some fraud or irregularity attended the making of such order. That is a matter that the Minister has dismissed. While the Minister pointed out the difficulties of making adoption orders absolutely watertight, surely bearing in mind the advice of people like Donal Barrington and Colm Condon and bearing in mind the legal brain of his Department if there is a will to do that it can be done. Here is one suggestion in this joint opinion that would provide for making adoption orders watertight unless it is subsequently shown that some fraud attended their making. I accept that that is the exception, that there is not a 100 per cent guarantee but at least it is almost 100 per cent.
I welcome the Bill so far as it goes but I would strongly urge the Minister to rethink his position and to look at the other problems in adoption. I have highlighted some of them and others have possibly been referred to by other Deputies. The Minister should look at the problems and should not miss the golden opportunity he is being presented with on 7 June to enable us to have a Constitutional framework which will enable us to develop our laws so as to remove all the defects and anomalies in them so far as they relate to children.