This Bill is one which I broadly welcome – I believe it to be open and forward-thinking whilst ensuring a robust legislative basis for adoption. However, I do have some additional suggestions as to how the Bill can be best executed which I will elaborate on later.
The primary purpose this bill is to give legislative effect to the Thirty-first Amendment of the Constitution (Children) Act 2012 which inserted Article 42A into the Constitution.
The Bill treats all children equally, regardless of the marital status of their parents, allows for married parents to consent and voluntarily place their child for adoption and standardises the threshold to be met before an adoption order can be granted.
Other features of the Bill, which I welcome, relate to step adoption and the extension of eligibility to adopt to civil partners and same sex couples. It is crucial that all aspects of family law keep up-to-date with different family formations.
The legislative changes arising from Article 42A and provided for in the Adoption Bill 2016 include the following:
- Providing that married parents may place a child for adoption, on a voluntary basis, in circumstances where both parents place the child for adoption and where both parents consent to the making of the adoption order;
- Providing for revised criteria so that where an application to adopt a child is made in respect of a child who is in the custody of and who has had a home with the applicants for a period of at least 18 months, and where that child’s parents have failed in their parental duty towards that child for a continuous period of not less than 36 months, the High Court may dispense with parental consent and authorise the Adoption Authority to make an adoption order in respect of that child;
- Providing that the best interests of the child is the paramount consideration in relation to any matter, application or proceedings under the 2010 Act and that the views of the child shall be ascertained by the Adoption Authority or by the court, as the case may be, and shall be given due weight, having regard to the age and maturity of the child.
In addition to the legislative changes arising from the Children Referendum, the Bill also makes a number of other significant changes in adoption policy as follows:
Civil partners and co-habiting couples:
The provisions providing for the adoption of a child by civil partners and cohabiting couples are being provided for in the Adoption Amendment Bill 2016 by way of bringing forward the relevant sections from Part 11 of the Children and Family Relationships Act 2015 Act into the Adoption Bill 2016.
Part 11 of the Children and Family Relationships Act 2015 requires amendment in order to ensure that the 2010 Act adequately protects the rights of those persons whose consent to an adoption is required and to generally ensure a robust legislative basis for adoption. This drafting approach will assist in achieving clarity and coherence in adoption legislation with the added benefit of providing for adoption law in Adoption Acts.
Step parent adoption:
The Bill also provides for the adoption of a child by his or her step parent without the requirement for the child’s other parent to adopt his or her own child. Previously, if a step parent wanted to adopt, both the child’s parent and the step parent had to apply to adopt – the parent became an ‘adopting parent’. Under this Bill, the parent will continue to be a parent and the step parent will be an adoptive parent.
Section 45 of the Adoption Act 2010 provides that where a child’s adopters have died a further adoption order may be made in respect of the child and, for the purposes of the order, the child shall be taken to be the lawful child of the deceased adopters.
The Adoption Amendment Bill 2016 amends section 45 of the Adoption Act to provide that, where a child in respect of whom an adoption order is in force or an intercountry adoption effected outside the State that has been recognised, is further placed for adoption, a further adoption order may be made in respect of the child, and for the purposes of the order, the child concerned shall be taken to be the lawful child of the adopter or adopters in whose favour the first mentioned adoption order or intercountry adoption effected outside the State was made or recognised, as the case may be.
Best Interests and Voice of the Child:
The Adoption Amendment Bill amends section 19 of the Adoption Act 2010 to reflect the 31st Amendment to the Constitution in relation to the best interests of the child. In determining what is in the best interest of the child, the Authority or the court, as the case may be, shall have regard to all of the factors or circumstances that it considers relevant to the child who is the subject of the matter, application or proceedings concerned including:
- the child’s age and maturity,
- the physical, psychological and emotional needs of the child,
- the likely effect of adoption on the child,
- the child’s views on his or her proposed adoption,
- the child’s social, intellectual and educational needs,
- the child’s upbringing and care,
- the child’s relationship with his or her parent, guardian or relative, as the case may be, and
- any other particular circumstances pertaining to the child concerned
Regarding the voice of the child aspect in particular – to guarantee informed views are expressed, we must ensure children are provided with clear explanations and information about adoption, covering each individual stage of the adoption process.
Adoption (Information and Tracing) Bill
The Adoption (Information and Tracing) Bill is intended to facilitate access to adoption information and provides a statutory basis for the provision of information related to both past and future adoptions. It will provide clarity around the information that can be provided and the circumstances in which it can be provided. I believe this is long over-due provision. We must learn from the pitfalls of a closed adoption process that has long operated in Ireland and has posed countless problems for adopted people when gathering information on their origins.
As I indicated at the start of my speech whilst I welcome this Bill, I do have a number of suggestions as to how this Bill might be better executed.
Firstly, I believe a resourcing plan must accompany this legislation, given there is a potential to dramatically increase the number of adoptions that will go through the Adoption Authority.
This Bill places further resource implications on Tusla- as such more staff will be required to ensure all parities received the best support possible.
Moreover, this Bill dictates that adoption now becomes a real option for some children in long term care – as such, it is imperative judges are trained in child development to make the right decision bearing in mind the impact such a lifelong decision can have.
To conclude, from a practice perspective – there is an additional requirement of Adoption and post adoption services for both sets of parents such as advice and counselling as well as the children and young people involved.