The Dowse case has raised issues on foreign adoptions, writes Carol Coulter, Legal Affairs Correspondent.
The Dowse case was exceptional in a number of ways. First of all, it was unusual among foreign adoptions registered in Ireland in that the couple involved lived abroad, and had recently adopted a small child. Second, the adoption broke down and the couple sought to have the registration of the adoption cancelled.
Thousands of Irish couples have adopted children from other countries since the practice took off in the early 1990s. In the latest year for which figures are available, 2004, 461 declarations of suitability to adopt were granted. In that same year, 398 adoptions were registered, as declarations and actual adoptions do not correspond year on year.
Of all these adoptions, only one is known by the Adoption Board to have broken down. This concerned a family who adopted two Romanian children. Within weeks they found they could not cope, and both children were placed in care. One was later taken back by the family, and the second child was readopted in Ireland.
The vast majority of adoptions registered in the Register of Foreign Adoptions concern children adopted by couples resident in Ireland. They must undergo a rigorous assessment procedure and obtain declarations from their health board (now the HSE) that they are suitable to adopt before proceeding with an inter-country adoption.
About 40 cases arise every year where adoptions that took place abroad are registered in the Register of Foreign Adoptions. In the main these concern adults who were adopted many years ago. According to Kiernan Gildea of the Adoption Board, two categories of people dominate: people adopted in the UK in the 1950s by Irish emigrants, where one parent has died and they now want an Irish passport before the other parent dies; and people adopted in the US by people who emigrated in the 1980s and their now-adult child wants an Irish passport.
In all cases the Adoption Board has to satisfy itself that the adoption law in the adopting state corresponds with Irish law. Once that has been established, according to the 1991 Adoption Act, the board "shall make entry in the Register of Foreign Adoptions".
No provision exists for the board to exercise any discretion in the matter, unless it has found out, between a person receiving a declaration that they are suitable to adopt and the adoption taking place, that the person is not suitable due to a bigamous marriage or a conviction for child abuse, or something similar.
The issue of inter-country adoptions continues, however, to arouse strong emotions. Allegations have been made that impoverished mothers in poor countries are pressurised into giving their children up for adoption to wealthy western childless couples, who have scant regard for the child's rights to his or her own family and culture of birth, all usually to the benefit of unscrupulous middlemen who extract large fees for their services.
Those who have adopted children from other countries (and the overwhelming majority of adoptions in Ireland are now inter-country) report a totally different experience of the adoption process. While they have employed lawyers and translators, they have not in any sense paid for the children, and generally they dealt with institutions doing the best they could in difficult circumstances to look after the children in their care.
They feel they and their families are being stigmatised by some of the debate, and their children are in danger of growing up in an atmosphere where they could be seen as the products of a grubby commercial transaction, even though none took place.
It is true that since legal adoptions began there has been an imbalance in wealth and power between the birth mother and the adopting family. Typically the mothers who give their children up for adoption are those who cannot afford to keep them, or who would face insupportable social ostracism were they to try. By definition, and increasingly by law, adopting parents must be capable of showing they can support the child comfortably, often offering advantages, like third-level education, well beyond the reach of the birth mother.
This, of course, is not all they offer. Above all they offer a stable and loving home to a child who otherwise may not have one, with the guarantee of ongoing parental love and support.
Further, most adoptive parents feel powerless to enter the debate about inter-country adoptions as they feel their children's right to privacy is paramount, and that their stories concerning their origins are for them, not their adoptive parents, to tell. Yet many adoptive parents have gone to great lengths to establish what these origins are, and to ensure that their children have access to their birth culture.
In an ideal world every child born should be able to get stability and support from his or her birth family. But the millions of children in orphanages, some having been found in the streets or on rubbish tips (six million, mainly girls, in orphanages in China alone), attest to the fact that we live in a far from ideal world for children.
As the Hague Convention on Inter-Country Adoptions states, "inter-country adoption may offer the advantage of a permanent family for a child for whom a suitable family cannot be found in his or her state of origin".
This convention also requires signatory states to take measures to ensure that children can remain in their families of origin, and to ensure that, where adoptions do occur, they are made in the best interests of the child.
The convention seeks to prevent the abduction, sale and trafficking in children, and proposes various measures to prevent profiteering in the adoption process.
So far 70 countries have signed up to it, including Ireland, but legislation incorporating it into Irish law is still awaited. When enacted, the Adoption Board will become the central authority for inter-country adoptions, with the power to accredit organisations and bodies who assist in any part of the process.
This is a crucial power, as it is the activities of certain international adoption agencies that have raised questions about inter-country adoptions. Allegations abound that certain agencies, notably some based in north America, go to orphanages in countries like Russia and "cherry-pick" children for adoption.
The suspicion is that the less winsome children, those who may have some health problems or just an inability to smile for the camera, will be left out of what looks unpleasantly like a commercial process.
The drafters of the Hague Convention were well aware of these problems. The convention contains a number of prohibitions on payments to the birth mother and measures to ensure her consent is freely given.
This will not remove from inter-country adoptions the reality of a wealth and power imbalance between adopters and those giving their children up for adoption. It is also likely to be interpreted with different nuances in different countries according to their own cultures and norms.
But we cannot pretend that today, given increased international mobility, international adoptions will not take place, with or without legal provision.
Children are abandoned, with no trace of their origin attached, handed in to institutions by parents who cannot care for them, or even, in some cases when they are older, sold by their families into prostitution.
Who can argue that such children should not, where possible, be saved from the privations of institutional care, however benign, and that their rights to a family life should not be vindicated, even if it means they must leave their country of origin?