Legislation to allow adoption of married parents' children

CAROL COULTER Legal Affairs Editor

LEGISLATION IS being drafted that will provide for the adoption of the children of married parents.

The Bill, to be published prior to the children’s rights amendment, probably after the summer recess, will also allow for the tracing of the parents of adopted people, Minister of State for Children Barry Andrews has said.

Speaking to The Irish Times , Mr Andrews said the Bill was being prepared now that the Adoption Bill 2009 – providing mainly for the Hague convention on inter-country adoption to be part of Irish law – had been passed. It will come into operation on November 1st.

The proposed children’s rights amendment to the Constitution will, among other provisions, allow for the adoption of the children of married parents in circumstances less extreme than exist at the moment. In order for such children to be adopted, including being placed voluntarily, the parents must fail in their moral and physical duty to the child, and be likely to continue to do so until the child is an adult, for the child to be free for adoption.

This rules out their adoption in circumstances where, for example, one parent is dead and the other severely incapacitated. The Oireachtas committee on the children’s rights amendment proposed that the Constitution be amended to change this.

The new Bill would deal with such issues as what “failure” in their parental duty meant, and the length of time for which this needed to persist, Mr Andrews said. It would also deal with the length of time a child would be in the care of foster parents or potential adoptive parents before he or she could be adopted.

He said the proposed legislation and the amendment would clear the way for more domestic adoptions. The staff who worked on the 2009 Bill are working on this and on the tracing legislation.

The area is a complex one because of a Supreme Court judgment underlining the right to privacy of parents who gave their children up for adoption on the understanding they would not be contacted. “We need to find a balance between the right to know who your parents are and the right to privacy,” he said.

The information that would be provided for would include medical records and the nature of the relationship between the parents. “We want to spell out the greatest possible amount of anonymised information that is possible to be given,” Mr Andrews said.

Asked whether this would include the identity of parents, he said it would be hard to provide this and trust the recipients not to approach parents. “The Supreme Court was very clear [that] you can’t defeat the privacy of the person who gave up the child. But that was in relation to the adoption legislation in force at the time. We could modify it in the light of later adoption legislation.”

Referring to the situation in the UK, where adopted children have the right to their parents’ identity, he said there was no constitutional right to privacy there, and open adoptions existed in the UK since 1975, which was not the case here.

Asked whether both matters would be dealt with in the same Bill, he said it was likely they would be dealt with separately, but that may change if the drafters found it more appropriate to bring the two pieces of legislation together.

The recently passed Adoption Bill provides for the replacement of An Bord Uchtála (the Adoption Board) with a new adoption authority, which will have members from a number of specified relevant disciplines. Arrangements will be made to ensure continuity between the Adoption Board and the new authority, the Minister said. It will exercise a quasi-judicial function and regulate mediation agencies and other bodies involved in the process.

Under the new Hague regime the children adopted are likely to be slightly older, Mr Andrews said, to ensure the option of a domestic adoption has been exhausted. This could mean that the children could have more attachment issues, and they and their parents would need more support, he said.