Seanad Éireann - Volume 195 - 13 May, 2009

Adoption Bill 2009: Report Stage.

  An Leas-Chathaoirleach: Before we begin, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on that amendment. Each amendment on Report Stage must be seconded.

  Senator Phil Prendergast: I move amendment No. 1:

In page 13, line 14, to delete “SIGNED” and substitute “DONE”.

  Senator Ivana Bacik: I second the amendment.

  Deputy Barry Andrews: I undertook to look at this amendment prior to Report Stage. As I said on Committee Stage, it is the practice in Irish parliamentary drafting to use the word “signed” rather than “done”. I have been advised by the Office of the Attorney General that this is still the practice so I do not accept the amendment.

Amendment, by leave, withdrawn.

  Senator Phil Prendergast: I move amendment No. 2:

In page 16, line 5, after “text” to insert “in the English language”.

  Senator Ivana Bacik: I second the amendment.

  Deputy Barry Andrews: The proposed amendment suggests inserting the words “in the English language” into the definition of the Hague Convention in section 3 of the Bill. This is considered unnecessary because if it was in any other language it would be so stated. It is considered a given that the text of the Hague Convention referred to in the Bill is the English language version.

  Senator David Norris: The legal point is that under the Constitution of Ireland, the Irish language takes precedence. In light of the controversy that has existed in the past week or so whereby a number of complaints were upheld against Departments due to the lack of accessibility for Irish speakers to legal documents, there is a point that Irish is the dominant language allegedly, legally and theoretically.

  Deputy Barry Andrews: There is no intention to translate this into the Irish language.

Amendment, by leave, withdrawn.

  An Leas-Chathaoirleach: Amendments Nos. 3, 24 and 65 are related and they may be discussed together.

  Senator Phil Prendergast: I move amendment No. 3:

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

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

4 o’clock

  Senator Frances Fitzgerald: Will the Minister of State clarify the current status of the bilateral agreement with Vietnam? What is the situation on the post-placement reports that are apparently being requested by Russia and that have led to problems? Every Member of both Houses is receiving heart-breaking e-mails from families who feel that they are in limbo. They are waiting to see if the Government can conclude an agreement with Vietnam. The date of 1 May has passed and some parents have gone so far as to contact officials in Vietnam and ask the reason for the delay. They have been told by senior officials there that it is because of delays on this side.

There are clearly barriers to getting an agreement in place. It would be helpful at this stage if the Minister of State would explain or give us some information on what precisely is happening. I know he has had private meetings with some of the adoption agencies working in this area. There is huge concern, as I am sure the Minister of State is aware, in regard to whether agreement can be reached, what will happen to these families in the future and what will happen to people whose names have been accepted and who at this point do not know what will be the next step.

The Minister of State will note from the amendment that we are allowing for the possibility that we will continue to have in place bilateral agreements and the Hague Convention but that where adoption takes place from a third country in a manner compatible with this legislation, it will be legal and acceptable in this country. Obviously, it is not ideal. The Minister of State responded on this amendment on Committee Stage. Were he to provide the House with whatever information is available in respect of this situation this might allay some of the worries and concerns expressed.

  An Leas-Chathaoirleach: Does Senator Fitzgerald second amendment No. 3?

  Senator Frances Fitzgerald: Yes.

  Senator Ivana Bacik: I support the comments of Senators Prendergast and Fitzgerald on this amendment. It is important that the dreadful state of uncertainty in which so many prospective adopters find themselves is resolved. I, too, am interested to hear what the Minister of State has to say in regard to the agreement with Vietnam and the situation with Russia. This issue was raised on Committee Stage when the Minister of State assured us every effort was being made to ensure the agreements would be concluded with Vietnam and Russia. We now find the process has fallen apart.

We have been told by prospective adopters, many of whom contacted us by e-mail and telephone, that even adoptions which are at an advanced stage, with many prospective adopters ready to fly to Vietnam or Russia to finalise an adoption that often had been years in planning, have been stalled.

Amendments Nos. 24 and 65 are important in that they also anticipate a situation whereby a person who has already adopted from a country with which we have a bilateral agreement but which is currently not in force, might be permitted to adopt a second or subsequent child from that country. That is the situation in which many of the people who have contacted us find themselves.

I am sure the Minister of State is aware of the intense frustration and anger felt by so many people who are at an advanced staged in the adoption process and who find themselves sud[356]denly stymied by an apparent bureaucratic failure. It is important the Minister of State clarifies the position and provides some reassurance to those prospective adopters.

  Senator Fidelma Healy Eames: I support the amendment. The Minister of State must explain to this House what exactly he is trying to do. Is he, through his inaction, having not personally visited Vietnam to sort out this problem, trying to close forever Vietnam to Irish adoptive families?

My understanding, having been in contact with a couple who spent last Friday in Vietnam with the deputy director, is that the Minister of State was fully aware of the need to put in place a draft bilateral agreement with the Vietnamese Government prior to last November in order that it could be put through Parliament. The Minister of State was warned of what would happen if this was not done. Currently, 24 families involved in prospective adoptions are held up in Vietnam. Another 251 with eligibility to adopt status are registered with Helping Hands in Cork.

Perhaps the Minister of State will answer the following questions in the context of the amendment. Why has he not shown his commitment to this issue by travelling to Vietnam, sitting down and breaking bread with the Vietnamese, to renegotiate this bilateral agreement for the sake of Irish families and the babies in the orphanages? Can the Minister of State, if he is genuinely sincere about addressing this issue, give us a concrete indication, in terms of time, of when the new agreement will be in place? Is it possible to negotiate an extension of the original agreement pending the putting in place of the new agreement? If we enact this legislation, will it negatively impact on the bilateral agreement if not concluded?

The following was said to me by a family:

We have endured so much in terms of setbacks and infertility and HSE waiting lists. We are five years on this adoption road and are registered with the agency Helping Hands for 51 weeks. We should have received our referral two weeks ago but due to the Minister’s inaction we are now in limbo. We need answers in terms of timeframe and contingency for those with the dossiers already in Vietnam and those, like ourselves, held up in Cork.

This is a human crisis for these families. It is an appalling way to leave them. I plead with the Minister of State to provide reassurance for these people and to respond to the questions I have asked. As I told all the families concerned last week by e-mail, the matter is in the hands of the Minister of State. All we can do is make proposals in regard to what can be done and highlight the misery families are suffering. I appeal to the Minster of State to answer my questions.

  Senator David Norris: I support the amendment. I do so having spoken on the matter on Second Stage and based on comments on the issue here.

I wish also to refer to the e-mail campaign. Senator Healy Eames has done us a service by placing on the record some of the main elements of the brief provided through this campaign, thus rendering it unnecessary for me to do so. I received well over 100 e-mails, most of them formal and repetitious. As I live a busy life and often do not leave this place until 11 p.m. I sent a form letter in response explaining that while I had great sympathy for them I could not respond to each individual. This provoked a variety of responses, some of which were understanding and included the same type of heart-rending personal tales placed on the record by Senator Healy Eames. Others were pretty shrill, threatening and bullying and demanded action “NOW” — in capitals letters. I do not respond well to that type of demand nor do I propose to.

[357]I say to anybody embarking on this type of campaign — there are a number of them around including one in support of my distinguished colleague, Senator Bacik, who has proposed legislation on climate change, which I fully support — I do not need to be hectored. Many have told me they are voters in my constituency. I am not the slightest bit interested in the Dáil. I chose to be in Seanad Éireann and I have no intention of trying to make a jump into the Dáil. I find it very insulting that people tried to blackmail me by suggesting they will take their puny little vote away from me. The very same people bellyache about the calibre of politicians they get. They get the calibre of politicians the system encourages. It is pointless to engage in this type of campaign. The level of intensity merely frustrates the admirable motive of the people who embark on such campaigns. The central organising body involved should be aware that rather than advancing the cause of adoption they may very well alienate people who spend much of their time supporting them.

As in all legislation in this area, I place the rights of the child as the primary element. It is heart-rending that people endure long processes and I understand and sympathise with them, particularly if they have been through infertility treatment and so on. However, they are adults. At the end of the day, what this Government is required to do is to safeguard the interests of children, those who are Irish and those who may become Irish. We must seek to avoid situations such as that which arose in respect of the Dowse family who adopted a child from the Far East and who then, because the child did not fit in with them, wanted to swap that child for another.

  Senator Mary M. White: They sent the child back.

  Senator David Norris: It is appropriate to be prudent and careful in these matters. There are issues which the Minister of State needs to answer. A number of us, including Senators Fitzgerald, Bacik, Prendergast and me, asked about the 1 May deadline in advance of the deadline. We made it clear there was some urgency about it. The House is entitled to an explanation as to why that deadline passed. There may be an explanation and I hope the Minister of State will give it.

I understand difficulties are experienced by other countries. Recently somebody who was in an adoptive situation told me that the United States Administration also has difficulty with Vietnamese adoptions for one reason or another. This is just hearsay and I would like the Minister of State to clarify the matter. There has also been a charge that the Minister of State was in some way irresponsible by not visiting Vietnam. He indicated to me that he had been to Vietnam on several occasions and it would be helpful for him to place that on the record of the House.

My response to this campaign is not just on this issue — it is a question of the political technique involved. There are many other similar campaigns and I think they are actually a hindrance. I will give another example of why it is a hindrance. Today I got an additional volume of these kinds of e-mails. They were very mixed. Some of them were very kind, understanding and heart-rending, and gave really personal details. My secretary has the entire file and is typing up replies. That is why I do not have them all. I would not be able to quote them in any case. I support the matter despite my reservations about the way in which the campaign was mounted. I am trying to serve notice on many well motivated and decent people who get involved in these campaigns. They each see their own individual letter. They need to be careful because if they overuse this instrument it becomes blunt and will alienate their supporters. One letter is fine. However, if they get back in response to their circular letter a circular letter from the politician, they should not try to crucify a politician who is already on their side. They should never try on with somebody like me the threat to take a vote away, because I do not want the vote of people who treat their vote in this cavalier way with very little respect for the democratic ideals in which the State was founded.

[358]I support the amendment despite the campaign as it may provide a method of breaking the logjam and resolve a very painful human situation.

  Deputy Barry Andrews: May I have the permission of the House to make a statement on the issues raised by the Senators?

  Senator David Norris: Yes.

  Deputy Barry Andrews: At a human level I share the Senators’ sense of the deep hurt and frustration expressed by all the people who have been sending e-mails to me and the other Members of these Houses. At a human level one cannot avoid empathising with the situation Senator Healy Eames mentioned. Many parents have come through a very long process involving attempted family formation followed by, in my view, prolonged and protracted HSE processes regarding suitability and eligibility. I have met many prospective adoptive parents in my clinics in recent weeks. The HSE encourages parents to try to bond with the child before even having a referral in order to create a link with the child. That link is perceived to be broken by the fact the agreement with Vietnam has expired.

I will make a short statement to the House. I would like to reiterate again my personal commitment and the Government’s commitment to putting in place new bilateral international adoption agreements with Vietnam and Russia. I am very aware of the anxiety being experienced by applicants and their wider families. The pain so clearly articulated leaves me in no doubt about the sensitivity of the issue. The steps we are taking are not intended to cause unnecessary angst and frustration. We are engaged in a process that seeks to strengthen the protection of children in inter-country adoption. At every opportunity I have communicated updates to prospective adoptive parents and their representative groups on these matters and I have committed to continuing with this process.

Against this background my office is continuing to work to create the appropriate legislative, policy and administrative frameworks to ensure a well regulated regime of adoption. Our aim is to support and protect prospective parents and even more importantly the children for whom adoption services are devised and provided.

The Adoption Bill, which includes the regime of the Hague Convention, provides an assurance for individual children, their families and the State that appropriate procedures have been followed and that the adoption was effected in the best interests of the child. As such, it is our intention that all inter-country adoptions will meet the standards of the Hague Convention. This is the principle underpinning the negotiations with Vietnam and indeed negotiations with other countries in the context of inter-country adoptions. Simply put, I am striving to achieve, for all adoptions, the same standard we expect to apply to the adoption of an Irish child.

A core principle of the Adoption Bill and the Hague Convention is that inter-country adoption should be child centred, that is, in all stages of the process the child’s interests must be paramount. The Hague Convention, which is given the force of law in this Bill, puts in place the equivalent of a contract between states to regulate the standards that will apply in each jurisdiction. Its purpose is to safeguard that acceptable standards are being applied in other countries, over which we have no jurisdiction. When countries have not ratified the Hague Convention, a bilateral agreement is required to be entered into to enable adoptions to be recognised in this country. The standards required under any such agreement should mirror the standards required by the Hague Convention.

As Senators know, the Government is working towards securing a strengthened agreement with Vietnam. In light of concerns raised by other countries which emerged during 2008, the [359]Government decided it was necessary to seek a strengthening of the existing agreement with Vietnam. I emphasise that when we visited in November 2008 we were able to confirm and establish that our arrangements with Vietnam were very favourable because we were adopting through a unique Irish mediation agency, Helping Hands. We were also able to establish that we were generally adopting relinquished rather than abandoned children, which gave that extra reassurance in terms of consents. It was on this basis that the Government decided to pursue a new agreement with Vietnam. With the publication of the Adoption Bill 2009, it was also considered necessary to ensure that both the content of a new agreement and its implementation would meet the minimum standards set out in that Bill and under the Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption.

There has been ongoing dialogue with the Vietnamese authorities with the focus on achieving the requisite strengthening of procedures for the protection of children. The Socialist Republic of Vietnam is a sovereign state and the progress that can be made relies on the co-operation and goodwill of that state. This is a sensitive issue and the Government, despite its aspirations, must be, of course, respectful of the views and decisions made by the Government of Vietnam. It is my intention to continue with these discussions with a view to bringing them to a conclusion at the earliest possible date. It is anticipated that further proposals to advance the discussions will be made to the Socialist Republic of Vietnam in the coming week. I am also hopeful the Vietnamese side will be in a position to revert with its proposals shortly. I do not wish to speculate on the timeframe or the outcome for these negotiations. There has been a high level of engagement on both sides and it is clear from progress so far that there is a willingness on both sides to bring the negotiations to a successful conclusion.

As regards the Russian Federation, my officials and their colleagues in the Department of Foreign Affairs have since April 2008, been in consultation with regard to inter-country adoption in that jurisdiction. This has included contacts with the Irish Embassy in Moscow and legal and other preparatory work on the possibility of a draft agreement between the two countries. A meeting between officials of my Department and the Russian Embassy in Dublin took place last week. I will continue to advance this matter with the assistance of the Minister for Foreign Affairs, Deputy Martin, and his officials both here and in Moscow as quickly as possible. A number of steps are now in train to advance to formal discussions on a bilateral agreement between the two countries.

Officials have also specifically raised the issue of the so-called “black listing” because of alleged outstanding post-adoption reports. The Russian side has provided a list of outstanding reports. The list produced by the Russian Ministry of Education is currently being validated by the embassy. In the meantime, I have asked the relevant authorities to assist me in pursuing resolution of this issue as a matter of urgency. Officials have also assured the Russian side of the importance we attach to resolving the matter. Overall, it must be acknowledged that another sovereign government is party to all negotiations on inter-country adoptions and consequently it would be unwise and inappropriate to attempt to air the issues or negotiate these very sensitive matters in the public domain as it might jeopardise the prospects of concluding any new agreements. For that reason, further details on negotiations are not being made available at this time. Furthermore, it also is the case that speculation on either the nature of the issues or the degree of progress being made is unhelpful and may prove misleading and distressing to those applicants who currently are waiting to adopt. In this regard, I would greatly appreciate Members’ forbearance in respect of these negotiations and ask them to accept I am doing my utmost to bring both of these processes to a successful conclusion in the best interest of children.

I wish to state unequivocally that the Government is also firmly committed to ensuring that arrangements between Ireland and Vietnam, Russia and any other country where Irish people [360]are adopting children protect and promote the best interests of the children, their families and prospective adoptive parents.

I am of course aware that I have been criticised regarding the handling of the situation in Vietnam. The easy option would be to accede to the pressure being generated from all sides. However, in conscience, I cannot contemplate advising the Government to enter into any bilateral agreement that does not provide for the minimum standards to protect children who are to be adopted by Irish families. I must reiterate the child’s best interests are the fundamental principle that supports the development of a national child care and protection system as well as an ethical, child-centred approach to inter-country adoption. Inter-country adoption does not occur in a vacuum but across jurisdictions and spans complex areas of family law, child protection and welfare. It must be legislated for, managed and understood in that context. It requires a shared responsibility and respect between states to ensure the best ethical practices to support the child’s best interests and to safeguard against abduction, sale or trafficking of children.

Ireland has a strong tradition of inter-country adoption and was once a so-called “sending country”. My aim is to support the continuance of that tradition by assuring prospective adopters, the countries of origin of prospective adoptees, the birth families of the children and, looking into the future, the children themselves, that inter-country adoption was undertaken in the best interests of the child to the required standard with adequate safeguards and protections for all concerned. My role, as Minister of State with responsibility for children, is to provide for the legislative, policy and system frameworks to achieve that aim.

In conclusion, some colleagues from the Government side of the House have impressed on me a principle that I accept, namely, that at the earliest possible opportunity, I will travel to Vietnam to assist in whatever way I can. In hindsight, people have stated that I should have gone with one of the earlier delegations and perhaps that is the case. However, having discussed this matter with my colleagues and in the hope it will be of some consolation or satisfaction to some of the associations concerned, I undertake to travel to Vietnam as soon as would be useful to the process that is being undertaken at present.

  Senator Fidelma Healy Eames: The Minister of State should clarify for the House the minimum standards which he considers are not being met.

  An Leas-Chathaoirleach: Senator Healy Eames, I must call Senator Prendergast.

  Senator Fidelma Healy Eames: May I check?

  An Leas-Chathaoirleach: No, there is no mechanism to so do if a Senator is not the proposer of an amendment.

  Senator Fidelma Healy Eames: May I raise a point of order?

  An Leas-Chathaoirleach: Members are engaged in a Committee Stage debate.

  Senator Fidelma Healy Eames: While I realise that, on a point of order I seek clarity from the Minister of State, who has shown much good faith in this regard. What minimum standards does he consider are not being met?

  An Leas-Chathaoirleach: Senator Healy Eames, that is not a point of order.

  Senator Fidelma Healy Eames: I seek such clarification at the earliest possible opportunity.

[361]  An Leas-Chathaoirleach: The Senator might get that under another amendment.

  Deputy Barry Andrews: Shall I address the amendments?

  An Leas-Chathaoirleach: Yes, the Minister of State is yet to address the amendments.

  Deputy Barry Andrews: I refer to amendments Nos. 3, 24 and 65, which have been discussed. This is about trying to create a system whereby another type of adoption would be permitted outside of the Hague Convention or a bilateral agreement. The Hague Convention is a minimum standard and as I noted previously, it is clear there never will be a situation in which one is 100% guaranteed that each adoption will be safe. Consequently, one must apply the standards contained in the Hague Convention or, if one cannot do so because the other country has not signed it, one must reach a bilateral agreement that is based on the Hague Convention’s principles. Such principles guarantee automatic certification of such adoptions and specify that matters such as the consent of parents, the adoptability of a child, the eligibility of a child to be adopted and the principle that there be no improper financial gain, can be guaranteed in such an adoption. It is important to try to bring countries up to this level and it is an incentive to countries to declare that Ireland will have adoptions with countries that have signed the Hague Convention or with which we have bilateral agreements.

As for the so-called grandfather clause, this again suggests there should be a parallel process of adoption with countries that are unable to ratify the Hague Convention for some reason or with which Ireland does not have a bilateral agreement for some reason. Whatever that reason might be, it clearly is a matter of which one must take cognisance. If such states are unable to come up to the minimum standards, to which, incidentally, we signed up many years ago——

  Senator Fidelma Healy Eames: Yes, many years ago.

  Deputy Barry Andrews: We must take cognisance of the inability of such states to come up to the minimum standards for which we negotiate or if they cannot sign or ratify the Hague Convention. I am not prepared to accept a parallel system of adoption in the Bill.

  Senator Phil Prendergast: Having worked for many years as a midwife, I approach this issue from a slightly different angle because I have seen at first hand in my professional capacity incidences of people enduring long and tortuous attempts either to become pregnant or to go through all the investigations and the upset they felt in this regard or equally in cases where babies were lost. My concern was that Russia, Vietnam and Ethiopia could fall outside this requirement unless bilateral agreements were established with them. Vietnam has become the most popular country for Irish applicants and it follows the model practice that has been promoted by the Minister of State’s Department, the Adoption Board and the Health Service Executive.

I tabled this amendment because of the nature of the contacts I have had with people in this regard. Moreover, I took no issue with any aspect of their e-mails because I discern the reason they would feel sufficiently strongly to do whatever they considered was necessary. I believe such actions were born out of frustration, as opposed to being deliberately provocative. It is simply that it causes great upset when people care deeply about something and believe it has been interfered with. Other countries have established bilateral arrangements with Russia and there is precedent and intent from the Russian side. There are hundreds of thousands of children in Russian orphanages and Ireland should not close its homes to such children either. As for Ethiopia, in recent analysis of adoption in Ethiopia, it has been deemed to be compatible with Irish law and consequently there should be no hold-up in establishing a bilateral agreement.

[362]  Deputy Barry Andrews: I thank Senator Prendergast. This legislation is standard-setting and with respect to Russia, it is clear the Government will have learned a great deal from the Vietnamese experience. If the Government is successful, this will have been the first time a bilateral agreement will have been concluded under the terms of the new Adoption Bill and the new standards it has set for itself. At the outset of this standard-setting regime, I do not propose to dilute those standards by permitting a parallel system of adoption outside of that process. I again undertake to pursue a bilateral agreement with Russia as soon as the other process is completed.

I hope people understand the Government is committed to adoption. While there are those who theorise that international adoption is not a proper child protection measure and that there should be concentration solely on supports for families in countries of origin, the Government is committed to the concept that international adoption will take place because there is such a strong tradition in this regard in Ireland. Moreover, we have assurances about our relationships and have minimum standards. The Government was able to assure itself in this regard as recently as November 2008, which grounded its decision in December to pursue a bilateral agreement with Vietnam, despite issues that had arisen that had caused other countries to withdraw from that country. Ireland has a unique set of circumstances that allows it to move forward. However, issues remain between the countries that unfortunately have not been resolved to date.

Amendment put.

The Seanad divided: Tá, 17; Níl, 26.

    Bacik, Ivana.

    Bradford, Paul.

    Burke, Paddy.

    Buttimer, Jerry.

    Cannon, Ciaran.

    Coghlan, Paul.

    Cummins, Maurice.

    Fitzgerald, Frances.

    Hannigan, Dominic.

    Healy Eames, Fidelma.

    McFadden, Nicky.

    Norris, David.

    Prendergast, Phil.

    Quinn, Feargal.

    Regan, Eugene.

    Ryan, Brendan.

    Twomey, Liam.

Níl

    Brady, Martin.

    Butler, Larry.

    Callely, Ivor.

    Carty, John.

    Cassidy, Donie.

    Corrigan, Maria.

    Daly, Mark.

    de Búrca, Déirdre.

    Feeney, Geraldine.

    Glynn, Camillus.

    Hanafin, John.

    Keaveney, Cecilia.

    Leyden, Terry.

    MacSharry, Marc.

    McDonald, Lisa.

    Ó Domhnaill, Brian.

    Ó Murchú, Labhrás.

    O’Brien, Francis.

    O’Donovan, Denis.

    O’Malley, Fiona.

    O’Sullivan, Ned.

    Ormonde, Ann.

    Phelan, Kieran.

    Walsh, Jim.

    White, Mary M.

    Wilson, Diarmuid.

Tellers: Tá, Senators Phil Prendergast and Liam Twomey; Níl, Senators Camillus Glynn and Diarmuid Wilson.

Amendment declared lost.

  Senator Ivana Bacik: I move amendment No. 4:

[363]In page 17, between lines 25 and 26, to insert the following:

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

We debated this amendment at some length on Committee Stage so I do not propose to go back over that ground in detail. It is an important amendment which would insert into the Adoption Bill the right of a same-sex couple who are married or who have entered a civil partnership to adopt on the same terms as a married opposite-sex couple.

On Committee Stage the Minister indicated some sympathy for the principle that same-sex couples should have adoption rights but expressed the view that this Bill was not the appropriate place. My concern and that of my colleague, Senator Norris, is that the civil partnership legislation as we have currently seen it in draft form does not provide for adoption rights for same-sex couples.

As the Minister indicated, same-sex couples are currently very engaged in the fostering of children and there is a great deal of support for that. There should be no objection in principle in same-sex couples having adoption rights. Whether that occurs with this Bill or the civil partnership Bill is not important for me but I hope the Minister will express support for inserting this principle into legislation of some form. I would like to hear the Minister of State’s response on that.

  Senator David Norris: I second the amendment. I had put down an amendment in the first instance on Committee Stage. My position is perhaps more radical as I am disquieted by the fact that the apparent proposals of the Government do not include any such provision in the civil partnership Bill. It is clear the Government has shied away from it, although it is a very important aspect and a principal defect of the proposed civil partnership Bill.

There is no sign of the civil partnership legislation, even though we have had repeated promises on it. It is nearly five years since I put a civil partnership Bill on the Order Paper of this House and it was kicked by the former Taoiseach, Deputy Bertie Ahern, into every committee, sub-committee and think tank etc. in an act of prevarication and nonsense.

As these problems continuously recur in social welfare and other legislation, we continue to get fobbed off with promises. Will the Minister of State try to impress on his colleagues that we need legislation in this area? I believe it is appropriate here but if the Minister of State indicates it is not and that it will be dealt with elsewhere, we should ensure we get the opportunity to hammer the matter out even if what the Government ultimately produces is a defective Bill.

There will be defects and the children will be let down once again. I am not just talking about the rights of parents because that can be a selfish matter. Gay people can be just as selfish as anybody else and there is no automatic right to have children. The child should be the centre of the matter, which is why in the amendment I put down it was clear that the rights and welfare of the child were primary. I made other points regarding couples recognised in other states; I cannot remember the exact formulation but I was clearly speaking about gay couples so we will use that shorthand. Such couples could be vetted to gauge suitability as there is no automatic right for gay people to adopt.

This is an important amendment, which I decided to leave with Senator Bacik because her amendment came at an earlier stage in the Bill. What is the point in putting down a number of amendments, as one will be called and others added to it, and I can make my argument? This should not be the principal focus of this Bill but it presents an opportunity for us to remind the Government of its lamentable failure in this area. We do not even have the civil partnership [364]Bill but it will be defective in this area when it is introduced. That is a battle which needs to be fought. It would not need to be fought if this was a Government with vision but unfortunately it is not.

Neither Senator Bacik nor I will want to call a vote on this but we wish to signal to the Minister that this is an area of human concern. If the Government was caring and interested in a socially constructive circumstance, it would pay attention to it.

  Senator Jim Walsh: I totally oppose the amendment. In my opinion and that of many specialists in the field, the best interest of the child is served by having the influence of a mother and father in its upbringing. Any deviation from that would take away from the focus of the child.

5 o’clock

Both the proposer and the seconder of the amendment spoke strongly about civil partnership, which is a concept I do not oppose, although I am against it mirroring all the rights and entitlements of heterosexual marriage. That is distinct and different and should be treated accordingly. Other minority interests in society should have their rights recognised in a way appropriate to their circumstances rather than on the basis of replicating the rights of other such bodies. Where possible and unless natural justice intervenes, we should ensure every child in the State has the benefit of having a mother and a father because the latter is in their absolute interest in the context of their development and upbringing. There are many studies which underline and prove that point of view.

  Senator Frances Fitzgerald: I support Senator Norris’s call for the civil partnership Bill. Issues arise in respect of a number of areas, whether it be in the context of the amendment under discussion or in respect of social welfare, which cannot be dealt with in isolation from that Bill. I urge the Minister of State to ensure that legislation is introduced in the House before the end of this session.

If the Minister of State is in negotiations in respect of the matters we discussed in the context of this amendment on Committee Stage, will he indicate if he plans to have an input into the civil partnership Bill in respect of the issues that have been raised by quite a number of Members? I refer to the various anomalies contained in the legislation with regard to this matter at present. It would be important that as many as possible of these issues be dealt with when we debate the civil partnership Bill. As stated on previous occasions, Fine Gael’s view is that in the absence of the civil partnership Bill the amendment before the House is premature.

This matter is of concern to many couples, who are wondering what will be the nature of the law of the land in respect of it. As the Minister of State indicated earlier, the key consideration ought to be what is in the best interests of the child and how a child’s welfare is best served by our adoption laws. We must also consider how best we might protect children irrespective of the status of their parent or parents. We must inquire how the greatest level of protection can be provided, what prevents discrimination against children and, regardless of the formation of their family, what will provide them with the most security as they grow up.

I would like the civil partnership Bill to be introduced as soon as possible. In addition, it would be good to hear from the Government the priority it intends to afford that legislation.

  Senator Mary M. White: I wish to assure colleagues on the opposite side of the Chamber that the Fianna Fáil Party is totally committed to the civil partnership Bill. Let there be no ambiguity about that.

  Senator David Norris: Hear, hear.

[365]  Senator Mary M. White: There is a commitment in the programme for Government in respect of the legislation and that commitment will be delivered upon.

  Senator David Norris: Good.

  Senator Mary M. White: I will try to discover, as quickly as possible, when the Bill is due be introduced.

There is no doubt that cultural and social changes are giving rise to legislative change. Society is leading the way and prompting such legislative change. I am of the view that, in time, society will decide whether it is acceptable for gay couples to adopt children and legislators will then make their move.

I am amazed by people who refer to children needing mothers and fathers. Are these individuals inferring that children who, for example, only have mothers are living in a dysfunctional environment? Those who state that children should be raised by both a mother and father must be extremely careful with regard to the language they use.

  Senator David Norris: Hear, hear. Well said.

  Senator Mary M. White: I again assure those opposite that my party is fully committed to the civil partnership Bill, which I will be valiantly supporting in the House when it is introduced.

  Senator David Norris: Good woman.

  Deputy Barry Andrews: I echo Senator Mary White’s comments to the effect the Government is committed to the civil partnership Bill. Everyone recognises the country has taken great steps forward in recent years. A number of surveys show the concept of same-sex marriage does not offend the majority of people. While it is fine for people to advocate the family model which includes a mother and father, there should not be discrimination against other family formations. The quasi-religious social theory which underpins some of the constitutional provisions relating to marriage is open to challenge in the modern era. If we place children at the centre of this debate, it will present us with a challenge. It will be difficult for society to engage in the debate to which Senator Bacik refers because there are serious divisions on this issue.

In the context of the Bill, adoption is only available to married couples. The Supreme Court is clear that a married couple is comprised of a man and a woman. Any change to this model would require a constitutional amendment. In my view, however, there are many loving families and what children want more than anything else is a loving family. There is no reason a loving environment cannot be provided by a single person, a cohabiting heterosexual couple or by any of the other family formations that are becoming more common.

  Senator Mary M. White: Hear, hear.

  Deputy Barry Andrews: The sooner we come to grips with that fact the better. As already stated, however, it would not be appropriate to accept the amendment at this point.

  Senator Ivana Bacik: I am glad the Minister of State supports the principle that children are entitled to a loving family of whatever form. I should have declared an interest in that I am serving as junior counsel in the Zappone-Gilligan case, which has not yet been heard by the Supreme Court. This will be the first occasion on which this issue, namely the definition of marriage and whether marriage is confined to a man and a woman, will be put before the Supreme Court. The latter has not yet resolved the issue in a case in which it has been directly in point.

[366]It should be remembered there are already many gay couples with children in Ireland. In the interests of those children, we should be introducing some form of legislation to regularise their position vis-à-vis their own parents.

Amendment, by leave, withdrawn.

  Senator Ivana Bacik: I move amendment No. 5:

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

“(4) In this Act, “special guardianship order” means an order appointing one or more individuals to be a child’s “special guardian” (or special guardians). The Minister may prescribe procedures for the court to follow in making a “special guardianship order”, in accordance with the following principles:

(a) A special guardian—

(i) must be aged eighteen or over; and

(ii) must not be a parent of the child in question.

(b) The court may make a special guardianship order with respect to any child on the application of an individual who—

(i) is entitled to make such an application with respect to the child; or

(ii) has obtained the leave of the court to make the application,

or on the joint application of more than one such individual.

(c) The individuals who are entitled to apply for a special guardianship order with respect to a child are—

(i) any guardian of the child;

(ii) a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.

(d) The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—

(i) an application for the order has been made by an individual entitled to do so (or more than one such individual jointly); or

(ii) the court considers that a special guardianship order should be made even though no such application has been made.

(e) The effect of a special guardianship order is that while the order remains

in force—

(i) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(ii) subject to any other order in force with respect to the child under this or any other Act, a special guardian is entitled to exercise parental responsibility to the exclusion of [367]any other person with parental responsibility for the child (apart from another special guardian).

(f) Paragraph (e) does not affect—

(i) the operation of any enactment or rule of law which requires the consent of more than one person with parental responsibility in a matter affecting the child; or

(ii) any rights which a parent of the child has in relation to the child’s adoption or placement for adoption.

(g) While a special guardianship order is in force with respect to a child, no person may—

(i) cause the child to be known by a new surname; or

(ii) remove him from the jurisdiction,

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(h) Paragraph (g) does not prevent the removal of a child, for a period of less than three months, by a special guardian of his or hers.”.

I did not table this amendment on Committee Stage. However, I indicated my intention to table it and I raised the arguments in favour of it at that point. It is based on a provision in section 115 of the UK’s Adoption and Children Act 2002, which creates a special guardianship order by inserting a new provision, section 14A, into the UK’s 1989 Act. On Committee Stage I outlined the effect special guardianship orders would have in Ireland. The introduction of such orders has been recommended by two expert groups, one of which was chaired by the late Dr. Joe Robbins. There are, therefore, already expert recommendations in existence in this country which advocate the introduction of special guardianship.

A special guardianship order provides permanence for children for whom adoption is not appropriate. It is, therefore, a halfway house which goes further than foster care but which is not as permanent or final as adoption. In jurisdictions where provision is made for such orders, courts may make them in respect of a child on the application, in particular, of a foster parent with whom the child has lived for at least one year prior to the application. The idea is to provide for situations where children have been living with foster parents for some time where the latter are, in all but name, acting as their parents but where these children do not, for particular reasons, want to break all ties with their birth parents or where it is not appropriate that they should break those ties but where they wish to be in a more permanent relationship with their foster parents. Such foster parents may be a relative of some form.

A special guardian takes on parental responsibility for the child, including all responsibility for day-to-day decisions relating to his or her care and upbringing in law. Under the special guardianship model, the natural or birth parent retains some limited rights, including whether to consent to the child’s placement for adoption. A special guardianship order gives certain rights to the child and his or her guardian, for example that they may leave the country on holiday together. It also provides for retaining a link with the birth parents. Special guardianship is appropriate in cases where fostering does not provide adequate permanence for a child but where an adoption order would also not be appropriate. The Minister of State indicated some interest in this idea on Committee Stage. I am putting forward this model, very much based on the UK’s, as one he may wish to adopt.

[368]  Senator David Norris: I second the amendment. It is a useful one that follows the principle of placing the interests of the child as paramount. It provides for a special relationship with a special guardian in circumstances where the birth mother may find it difficult or there may be some obstruction but a link with the birth parents is still retained. At the same time, it prevents the child having a new surname imposed upon him or her, thereby distancing him or her from his or her roots, or the child being removed from the jurisdiction. This is a carefully considered amendment. A court procedure is involved so it cannot be lightly entered into but carefully progressed with due regard given to legal restraints given that a special guardianship would be a serious undertaking by anyone.

There may be circumstances where it could also be used for the protection of a child. The provision appears to me to be a sort of guardian ad litem clause where a child may be in danger in his or her original circumstances and can be removed and placed into the custody of a special guardian. The guardian ad litem clause, introduced after an amendment tabled by the former Senator, Brendan Ryan, and me, only goes so far. It only represents the child in court; it is only a legal position. This amendment goes further because it opens the possibility of someone taking a human interest in the child. It is all very well for the child to have the right to a guardian ad litem to defend him or her in court. That is a very abstract notion. To have someone warm, loving and caring in the background to take on, when necessary, the function of a parent is a good and humane action and enshrines the principle of the primacy of the rights of the child. I recommend this amendment to the Minister of State and hope some move will be made in this area.

  Senator Frances Fitzgerald: On Committee Stage, the Minister of State expressed some interest in this amendment and said he would seek legal advice on it. Did he and what is he considering to do with the clause on this Stage? If he will not include it in this Bill, will it be included in the civil partnership legislation?

This thoughtful amendment suggests a system to provide guardianship rights to the non-biological parent of a child of a same-sex partnership. It would be supportive and protective of children. For example, it proposes: “While a special guardianship order is in force with respect to a child, no person may cause the child to be known by a new surname or remove him from the jurisdiction, without either the written consent of every person who has parental responsibility for the child or the leave of the court.” It is important to have these sorts of protections in such cases.

The provision is similar to the guardian ad litem provision which we have been very slow to develop in this jurisdiction. It has been in place in England for a long time. I have experience of how it works in adoption assessments and consider it helpful as a system and way of working.

While it would seem the Minister of State will not be accepting this amendment, I would like to hear his views on its proposals. Does he believe there is a gap in the existing legislation? If he is not considering accepting the amendment in this legislation, will he consider it for the civil partnership legislation?

  Senator Feargal Quinn: I support Senator Bacik’s amendment. I was unaware of this issue but the main objective of this legislation is the welfare and benefit of the child. The amendment identifies many of the issues in the field such as the category of person allowed to apply for special guardianship being a local authority foster parent with whom the child has lived for at least one year immediately preceding the application. The amendment tackles the various challenges we are not yet handling. If the Minister of State has a problem with the general theme of this, it may well be that he has to make some changes to some detail of which we are unaware.

[369]  Senator Fidelma Healy Eames: This amendment has much merit. Families do get into difficulties and there are times when they need a helping hand. Occasions arise when a special guardian may be needed temporarily. There are occasions when a child may be out of control and the parent, parenting on her own, cannot manage. It is also important a child in such a guardianship is not given a different surname or removed from the jurisdiction.

I support this amendment because it maintains the critical link with the birth parent. Its provisions would also give the courts greater flexibility when searching for a suitable person to care for a child. The amendment recognises everything in parenting is not mainstream. We have to legislate for when life is not perfect and this is a good example of that.

  Deputy Barry Andrews: On Committee Stage, I said this proposal was an intriguing solution to this issue. I also referred to the Adoption Act 1988, whereby an adoption order can be sought in respect of someone in long-term foster care provided tight criteria are met. That is transposed into this Bill. There is a constitutional requirement due to an Article 26 reference in the Bill.

The position of foster children has improved dramatically over recent years. In cases where a foster child is with parents for five years or more, the parents can apply for passports in their name and consent to medical treatment for them while they are entitled to the same benefits under gift tax as natural children.

The amendment does not refer to what type of child would be eligible for special guardianship. Senator Bacik spoke of the type of children for whom one may seek a special care order. Is this the type she had in mind or is it more than one category?

The amendment proposes the effect of a special guardianship order is that while the order remains in force, a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made and, subject to any other order in force with respect to the child under this or any other Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child, apart from another special guardian.

The clause, “exclusion of any other person”, may give rise to constitutional problems.

I have sought legal advice on the best vehicle for this matter and whether it can be provided for without constitutional amendment. The options include the Civil Partnership Bill or amendments to the Guardianship of Infants Act 1964 or the Child Care Act 1991. I will consult the Minister for Justice, Equality and Law Reform on these options in due course.

  Senator Ivana Bacik: In light of the Minister of State’s comments, I will not press the amendment. I am glad the issue will be revisited. As I noted earlier, two expert reports have recommended the introduction of a special guardianship measure. I have only transposed some of the relevant provisions from English law as an example of what can be done. Clearly, much more detail would be required in respect of any legislation providing for this. For example, detailed special guardianship regulations are in place in England to prescribe the procedures and the children who are eligible. I have raised the matter simply to seek the Minister of State’s support in principle. I accept the matter could be easily addressed through other legislation and thank him for his attention to it.

Amendment, by leave, withdrawn.

  Senator Frances Fitzgerald: I move amendment No. 6:

In page 17, between lines 39 and 40, to insert the following:

[370]“(e) providing information, advice and counselling to a birth parent wishing to consider placing a child for adoption;”.

Section 4 of the Bill makes arrangements for the adoption of a child, whether on a domestic or inter-country basis, and sets out the various issues which need to be taken into account when making an adoption order. This amendment would ensure the provision of information, advice and counselling to birth parents forms an integral part of the adoption process. It is a straightforward amendment which provides the woman in such a situation an opportunity to consider carefully the implications of her decision. There is no doubt that standards have improved dramatically both in Ireland and internationally in the way birth mothers are looked after but problems continue to arise in some areas. The reason we spend so much time discussing standards is because this area is vulnerable to abuse. In certain circumstances, women could be put under pressure to make inappropriate decisions. That certainly happened in the past. I move this amendment because it is important to provide support and counselling to birth parents considering whether to place their children for adoption. It is a safeguard amendment to ensure appropriate counselling is made available.

Given the focus of the Hague Convention, I presume the Minister of State is raising the issue of standards in his negotiations with Vietnam. This causes anxiety among people, however, because more than 600 families have already adopted children from that country. If an issue arises regarding standards, one must ask why we allowed these apparently successful adoptions. What are the new barriers to the agreement? The Minister of State is unable to clarify the issues that have arisen in terms of standards and has asked us to take him at his word when he states he will make every effort to conclude an agreement. I accept his good intentions in that regard and am sure he wants to reach an agreement but standards are important. We must ensure birth parents receive the highest possible level of support when making what is often a difficult decision.

  Senator Fidelma Healy Eames: I second the amendment. I regard this amendment as providing for the minimum standard. It is generally the practice that information, advice and counselling is provided to a birth parent who is considering whether to place a child for adoption but there is merit in arguing for requiring this in the legislation. Correct me if I am wrong in assuming that the only instance in which adequate counselling is not provided is where another member of the family or a new partner adopts the child.

We have to uphold adoption standards and I recognise the Minister of State is concerned about this issue. I ask him to clarify for the House the issues that remain outstanding between Ireland and Vietnam in regard to the bilateral agreement. Some 600 Irish families have adopted Vietnamese children and this country’s adoptive parents have a great record. France and Italy have renewed their bilateral agreements with Vietnam. What is it we want that the Vietnamese cannot provide? I would be grateful if the Minister of State could go a little further in giving us information on the human context. As we all know from the hundreds of e-mails we receive, this is a human issue. Families are in torment because of the uncertainty. They have been waiting for years and, just when they thought it was over, this hurdle is put in their path. It appears the Government is stopping them.

  Senator Mary M. White: Hold on.

  Senator Fidelma Healy Eames: Let me finish. I am prepared to listen and will take the Minister of State in good faith if he can elucidate the issues that remain outstanding. He could reassure us that the matter is being addressed.

[371]  Senator David Norris: I am happy to support this amendment, which provides that any reference made to issues of principle on the practicality of adoption shall be taken to include the provision of information, advice and counselling to a birth parent wishing to consider placing a child for adoption, because adoption is a serious step. I presume the amendment only covers the Irish State and has no extraterritorial pretension, even in respect of the other side of the Border. Vietnam does not figure in this amendment as far as I am concerned but we will have a further opportunity to raise the concerns of parents when we deal with the section.

The number of children made available for adoption in this State is quite small. Perhaps the Minister of State can provide the figures in this regard. Adoption has changed from the traditional context whereby women who became pregnant outside marriage were subject to social pressures. In some instances, they were forced to give up their children for adoption. This no longer happens, thank God. Even so, it is a traumatic decision and birth parents who make the decision for whatever reason should be supported by the State through, at the very least, the provision of information so that they can make an informed decision and have professional advice and counselling at what may be a difficult time.

Debate adjourned.