Speech on the Adoption (Amendment) Bill 2016

This is not my first time speaking in the House but it is my first time to speak on a Bill and it is an honour to do so. I begin by congratulating the Minister on her appointment. I am not sure if she is aware that she is a constituency neighbour of mine as the steps of Killinarden run up to the hills of Kilteel as Kildare North and Dublin South-West border each other. As such, I extend my best wishes to her on her appointment and wish her continued success in the role.

In terms of the matter before us, Fianna Fáil as an opposition party will freely oppose the Government on issues when merited but equally, as a constructive party and mindful of the minority Government framework which can only work when all sides play their part, agree on areas of common ground. Accordingly, we will be constructive and supportive of issues and legislation arising when we feel it is in interest of the common good to do so. Thankfully, family law and the rights and well-being of children are issues which cross party political lines and in which all of us in this House have a common purpose, wishing to see progress for the greater public good.

The subject matter of the Bill is a matter of sensitivity to many people, not least those who have been involved in adoptions previously or currently but also the many children who have been denied that possibility. Some of them currently languish in a legal half life in foster care, institutions or other arrangements in which they enjoy no legitimate expectation of being adopted in the foreseeable future. It seems hard to believe with the welcome focus in recent years on the area that adoption in this country was at one time barely subject to any regulation. The enactment of the Adoption Act 1952 was the first measure to put in place a legal framework for adoptions in Ireland. Prior to that adoption was on a custom and practice basis, privately arranged and subject, I am sure, to many anomalies. More recently, Fianna Fáil when last in office put in place the Adoption Act 2010 and initiated the process leading to the children’s referendum in 2012. I remember that referendum well because I campaigned in it. Many of the provisions being enacted in the Bill stem from that referendum, which was passed by the Irish people, and indeed are mandated by it. All parties in the House supported the referendum and a positive campaign ensued. The wording of the constitutional amendment was formulated following an extensive and constructive all-party consultation leading to the design of the new Article 42A.

This being a complex and technical area it has taken a little time to bring provisions before the House. While many of the amendments in the Bill are technical and miscellaneous in their nature, there are some important provisions which will have a major impact on the fabric of many lives. My experience in campaigning for the referendum, as well as from many meetings and interactions as a public representative, makes me aware that there are aspects of this that people fear. People fear constitutional change at the best of times but as family law is a sensitive area, there are some schools of thought, misperception and concerns about what may arise. Family law is always a sensitive matter and must be dealt with accordingly. In some quarters, there is a concern that a move to strengthen rights of a child may in some way diminish rights of the parent or the family. This does not have to be so and, in fact, the correct balance has been struck in Irish law to date.

I want to address two provisions of the Bill in some detail. These are section 12 which revises section 23 of the principal Act and section 23, which updates section 54 of the principal Act. These sections deal principally with the adoption of a child born within the marital family and the difficult issue of involuntary adoption where the parents have not consented, typically on foot of abandonment or a failure of care within the family, be it marital or otherwise. There is a presumption in law that the child’s best interests are served within its natural family but the presumption is rebuttable. The presumption has been recognised both by the Supreme Court and by the European Court of Human Rights. In 1994 in Keegan v. Ireland, the European Court of Human Rights noted that the family unit need not be confined to the marital relationship to enjoy protection but that a de factofamily existed and enjoyed protection as well as rights, regardless of its marital status.

As an aside, the facts of that case were traumatic. It involved a father who saw his child being sent for adoption by the mother of the child and who was at the time powerless in law to do anything about it. The couple had met in England and had been residing there, but the mother later moved back to Ireland where she gave her child up for adoption. The father followed her here but was unable to intervene, not having a right to be heard on the matter. While the law has advanced and such a scenario would not recur, as the father’s rights are now recognised, there is still much work to be done regarding father’s rights. I hope that the Dáil can consider this matter on other occasions.

A landmark Supreme Court ruling in adoption law is what is known as the Baby Ann case, or N & anor v.Health Service Executive & ors, in 2006. The facts of this case were traumatic for the parties involved. A young couple met at university, had a child together, gave the child up for adoption and within 18 months became regretful of that decision and sought to reverse it. They had married in the meantime, meaning that their marital family enjoyed constitutional protection at the time. A difficult train of events followed. Some of the judgments in the case are worth quoting, in particular that of Mr. Justice Hardiman, who is no longer with us. As it was a lengthy judgment, I will read a short extract. He summarised succinctly the balance that the Constitution and Irish law had attempted to strike between the rights of the family, the rights of the child and the best interests of all. He stated:

There are certain misapprehensions on which repeated and unchallenged public airings have conferred undeserved currency. One of these relates to the position of children in the Constitution. It would be quite untrue to say that the Constitution puts the rights of parents first and those of children second. It fully acknowledges the “natural and imprescriptible rights” and the human dignity, of children, but equally recognises the inescapable fact that a young child cannot exercise his or her own rights. The Constitution does not prefer parents to children. The preference the Constitution gives is this: it prefers parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child’s rights. This preference has its limitations: parents cannot, for example, ignore the responsibility of educating their child. More fundamentally, the Constitution provides for the wholly exceptional situation where, for physical or moral reasons, parents fail in their duty towards their child. Then, indeed, the State must intervene and endeavour to supply the place of the parents, always with due regard to the rights of the child.

It is an excellent judgment that not only applies to the facts of that case, but also to the locus of family law and the constitutional position. It was a pre-referendum judgment, but it still applies, perhaps even more so.

It is against this context that section 12 of the Bill must be set and any concern raised about the marital family and the adoptions from within that are enabled in the Bill must be considered. These protections continue, but in parallel the Bill addresses the limbo in which children may linger for years with no hope or expectation of being adopted or moved to a situation in which care, love and affection can be put upon them. That the Bill advances and begins to enable this aspect is to be welcomed.

It is also noteworthy that, in the Supreme Court’s decision, Mrs. Justice McGuinness, who was perhaps less of Mr. Justice Hardiman’s view, stated that, even were she minded not to reach the decision of her colleagues, she would have had no option but to do so because it was impossible at the time, even if she felt it was the right thing to do or there was a need to do so, to place the child up for adoption, being the child of marital parents. As such, it is recognised that there are scenarios in which the natural family is not the safe, correct or appropriate environment for the child to remain within. In those circumstances, the State must intervene to prevent the limbo of children remaining in institutions for many years and give them better lives, obstacles that adoption enables them to tackle.

The constitutional amendment requires the Legislature to revisit and approve this scenario and that a “failure in duty must be provided for in law”. Section 23 inserts a new test into the legislation that will need to be robust, multifaceted and likely more amenable to judicial exercise. The Children’s Rights Alliance has stated that the current “threshold of complete and permanent parental failure is set so high that in practice it is unachievable”. This creates a situation in which children lie in limbo for many years because judges simply refuse to decide that the threshold has been met. We cannot legislate for judicial discretion. We as legislators can enable legislation, but we cannot second-guess the Judiciary. The new test that replaces the threshold is more robust and multi-stranded and should lend weight to better decision making.

The Bill meets the parameters, addresses the concerns raised and progresses the situation. An important point that has received less commentary is that a child over the age of seven years can now be adopted. There are many children between the ages of seven and 18 years who require intervention. The provision enabling such adoptions is much needed and welcome.

The Bill contains a number of other miscellaneous, but important, provisions, but I do not propose to discuss those now, as I wanted to focus on the ones that I raised. I commend the Bill and welcome its progress. I thank the Minister for her observations.

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