ADOPTION:THE GOVERNMENT yesterday published new legislation providing for the voluntary adoption of children of married parents.
The Bill, published along with the proposed wording for the amendment to the Constitution, will be introduced if the children’s referendum is passed in November. The Bill sets out the circumstances in which children of married as well as unmarried parents can be adopted.
At the moment, unmarried parents (almost always the mother) can voluntarily place her child for adoption after counselling and steps to ensure her consent is fully informed and freely given.
However, it has not been possible for the children of married parents to be adopted in this way, as the constitutional definition of the family as one based on marriage, and the place given to the marital family, has meant children of married parents can only be placed for adoption if the parents have totally failed in their duty towards them, and such failure is likely to continue until the child is 18. This is a difficult hurdle to overcome, and married parents cannot voluntarily surrender their children for adoption.
Under the proposed Bill it will be possible for children of married parents to consent to an adoption, after counselling and the same steps to ensure their consent is informed and freely given.
Under existing adoption law, once a child is placed for adoption and the parent fails in, refuses or neglects the making of the adoption order, their consent can be dispensed with by the High Court, but only if the parents are unmarried. In a 2006 case where the natural parents of a child placed for adoption subsequently married and sought her return after almost a year, the Supreme Court held their rights as a marital family meant the child had to be returned.
Under the proposed Bill, this distinction will disappear and the court must have regard to the relationship between both the natural parents and the child and the prospective adoptive parents and the child, and the child’s best interests must be the paramount consideration for the court.
The Bill also provides for the adoption of children who have been in long-term foster care by their foster families. This will only arise where there has been a continuous failure on the part of the parents towards the child for a period of at least three years, and the failure is such as to constitute an abandonment of their parental rights. The child must have been in the care of the foster parents for at least 18 months, and they can make an application to the Adoption Authority to adopt.
The views of the child, depending on age and maturity, must be taken into account. Again, the best interests of the child will be the paramount consideration.
If the authority considers adoption would be in the best interests of the child in these circumstances, it will apply to the High Court for an adoption order. The court must establish the child has been abandoned for the stipulated period and that this is likely to continue. It must be satisfied the adoption is “a proportionate means” for the State to supply the place of the parents, and must take into account the constitutional rights of all concerned, including the natural parents. However, the best interests of the child must be the paramount consideration.