Consultation is under way on modernising cumbersome and out-of-date legislation, writes Brian Lenihan
Earlier this year I established a consultation process with various interested parties to secure an inclusive and well-informed approach to the drafting of new adoption legislation. Our adoption system has developed over 50 years.
What was logical or valid in the past may be questioned today in the light of new research findings and knowledge about child development.
I am conscious of the fact that existing legislation is out of date and cumbersome and that there are obvious problems with the way the system of adoption now operates.
Views were invited on the existing proposals for adoption information and post-adoption contact and on legislative proposals to ratify the 1993 Hague Convention.
In addition, a wide range of issues were outlined in a consultation document on adoption drawn up by an independent legal expert.
This document makes it clear that it is the interests of the children which remain paramount in this process.
The consultation process is ongoing and will culminate in an oral consultation process in early autumn.
One of the key issues being addressed is that of access to records and making contact with birth parents or children.
Attitude about access to adoption information in Ireland has changed over the years. In addition, the United Kingdom, France, Germany, Denmark, Iceland, Norway, Sweden and the Netherlands now permit some form of access to birth records.
This is a complex area of human relationships. It is essential to strike the right balance between the wishes and expectations of adopted children who wish to have access to their birth records and trace their birth parents, and the wishes of mothers who gave up their children for adoption in strict confidentiality.
I welcome the contribution of Inge Clissmann and Caoilfhionn Gallagher (Irish Times, July 25th) to the consultation process and their comments on how Article 41 of the Constitution impedes rights of access to birth records.
Such issues are properly the province of the All-Party Oireachtas Committee on the Constitution and may be referred to the committee for consideration on the conclusion of the consultation process.
That said, submissions on constitutional issues can and have been made.
The current consultation is to be a short and highly focused process. Childhood does not stand still pending a debate on a constitutional amendment.
I believe that we should move immediately to modernise our outdated adoption system within the current constitutional framework. In this regard, I hope to be able to bring workable proposals to Government which will lead to a new, modern and appropriate legislative framework for adoption. This does not exclude the possibility of a constitutional referendum at a later date.
Ms Clissmann and Ms Gallagher referred to the decision in I. O'T. v B. where the competing constitutional interests involved in a request for disclosure were recognised by the Supreme Court.
All five judges in this case stated that a mother who opposes disclosure and who had been promised confidentiality at the time of placement has a constitutional right to privacy, although her right to privacy is not absolute. The European Court of Human Rights this year adopted a similar approach in Odièvre v. France which suggests that the constitution alone does not impede access to birth records. It raises doubts about whether "the right of children to know who they are" is inalienable under the European Convention of Human Rights.
In Odièvre the applicant sought the release of information identifying her birth mother.
As the mother had expressly reserved her right to privacy, the Parisian Child Welfare Authorities refused to release this information.
The issue of open adoption is addressed in the discussion document and comment is invited on how such a scheme can be facilitated in Ireland. Open adoption is permitted in most EU states and offers possibilities in the area of contact for the future.
The key advantage of open adoption is that, without compromising the legal integrity of the adoption process, the adopted child is aware of his or her origins, can have pre-planned and controlled access to his or her birth parents and the pain of permanent separation of birth parent and child can be tempered.
The use of open systems of adoption encourages more birth parents to place a child for adoption where this would be in the best interests of the child, thus extending the benefits of a secure upbringing within a stable family environment to more children.
Another issue which ought to be addressed in any review of adoption practice and legislation is that of providing permanence for all children.
At present the options available to provide permanence for children in the care system are limited. For example, adoption as a child care option by the State can only be selected in the case of non-marital children or marital children whose parents have been legally branded as failures.
It is not possible, for instance, for parents who are married to each other to waive their parental rights should they wish to give effect to an adoption.
The flip side to maintaining the obligations of such parents is that some children remain in long-term foster care and cannot be adopted. The consultation document considers the provision of new options for permanence.
Another notable change in adoption in Ireland in recent years has been the growth of inter-country adoptions. The path to recognition of such adoptions has been far from easy.
Difficulties have arisen which are explored in the consultation document together with legislative proposals to ratify the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993.
The Hague Convention is the first international instrument that has the potential to regulate inter-country adoption on a global basis.
The consultation document invites submissions on whether a standardised framework for domestic and inter-country adoption should be developed.
The welfare of children is the paramount priority in the current review of adoption policy.
I hope that this consultation process will provide valuable insight into the issues that need to be addressed and I look forward to examining further the issues raised by respondents at the oral consultation in the autumn.
Brian Lenihan TD is Minister of State for Children's Affairs