A broad platform for thoughts on law and life generally, though the focus will still mainly be on family law and gender. Opinions are just that, and you should feel free to disagree or challenge. The views expressed are personal and should not be considered those of my employer or of any other person or organisation with whom I am associated.
New Adoption laws signal significant shift in policy
The Act represents a significant shift in the policy underpinning adoption in Ireland.
Originally, adoption was viewed as a way of providing marital families for non-marital children, 'rescuing them' from what was long considered the stigma of 'illegitimacy'. The 2017 Act signals a sea-change in this regard, allowing, as it does, the adoption of children born inside marriage, and allowing cohabiting couples to adopt jointly.
It is important to note that this confers only an entitlement to apply and does not guarantee that the couple will be allowed to adopt. The usual requirements as to suitability of the couple as parents still apply.
Who can be adopted
The 2017 Act now allows children born inside marriage to be adopted by consent of their parents (as well as in cases of long-term abandonment). This is in keeping with the changes made to the Constitution in Article 42A, the children's amendment. Article 42A(3) states that "Provision shall be made by law for the voluntary placement for adoption and the adoption of any child." While it is arguable that, even prior to Article 42A being enacted, it would have been constitutionally possible to adopt a child born inside marriage, the legislation previously only permitted this in exceptional circumstances of abandonment.
The Act should also make it somewhat straightforward for children over 7 to be adopted. Previously, the child had to be no more than 7 years of age, though exceptions could be and were made for older children up to 17 years of age. The distinction has now been removed such that all children aged under 18 are now treated equally.
The new Act also changes the criteria for adoption in cases of abandonment.
Very few Irish children are adopted each year. Most are adopted by relatives and step-parents. There are, however, a lot of children in long-term foster care and the new laws may see more of these children being formally adopted.
What is sometimes called step-parent or second-parent adoption was only possible, prior to today, where the biological parent joined in the adoption of their own child.
As of today, it is now possible for the spouse, civil partner or cohabitant of a parent to adopt a child without the parent also having to jointly adopt their own child. In such cases the child must have lived with the couple for at least 2 years.
The Act makes the best interests of the child the paramount consideration in adoption cases. This replaces the former welfare test. The Act also provides for the child's views to be heard in relation to the adoption, where the child is capable of forming his or her own views. These changes, again, are in line with the constitutional provisions of Article 42A.
Past experience of adoption in Ireland suggests that one should approach any new adoption law with caution. Making adoption easier may suits potential adoptive parents, but it may not always be in the interests of children. Adoption has a dramatic impact on child-parent relationships and, while useful in some cases in formalising existing arrangements, particular care is needed in administering this regime. Where other less intrusive options would work better, arguably these should be favoured over adoption.
While the Act is welcome in many respects, it does not address the legacy issues arising from past adoptions. In particular, 20 years after such legislation was first promised, we still await the passage of legislation allowing access to birth records for adopted people and tracing of birth relatives. The Adoption (Tracing and Information) Bill 2016 passed second stage in the Seanad in May 2017, an encouraging sign, though it could be some time yet before such legislation is fully operational.
A claim regularly made in the
marriage referendum debate is that civil partnership should be sufficient for
same sex couples and that there is no need to extend marriage to same-sex
couples. Civil partnership certainly provides extensive rights and obligations.
It offers equal treatment with marriage, for instance, in the context of taxation,
social welfare, pensions, citizenship, immigration, property, domestic
violence, and maintenance. Largely equal
treatment applies in the context of succession (inheritance) and remedies following
dissolution. It delivered a number of
vitally important, and in some cases urgently needed protections for same-sex
couples. Civil Partnership differs from
marriage, however, in a number of respects. Many of these differences initially
related to children being raised by civil partners, though most of these particular
differences have been eliminated by the Children and Family Relationships Bill
2015. Other differences in the original
Act have been remove…
(Speaking notes: Trinity College Dublin Politics Society and Q Soc Panel Discussion, Robert Emmet Theatre, TCD, 18 September 2018) It is important to open by acknowledging
just how much legal and social progress the LGBT community has made in Ireland over
the space of 30 years.I was a student
here in Trinity in the mid-1990s. At that stage, social conditions as well as
the legal landscape were already improving for LGB people.
Nonetheless, we really could not have envisaged at that time that, 20 years
later, we would have marriage via referendum or a gender recognition law based
on a self-determination model.Throughout
the European continent too, there has been a sea-change in perspectives on LGBT
people and rights, as reflected in European Court of Human Rights case law and
in developments at EU level (such as the Framework Directive on Employment and
Article 21 of the Charter of Fundamental Rights). It is equally important, however, to
remember that this progress was not effortless…
Nonetheless, the fact that a Prime Minister, a Conservative one no less, is willing publicly at his party conference to make such a pronouncement speaks volumes. It is particularly noteworthy given that this was the same party that sponsored the notorious section 28 of the Local Government Act 1988
I have argued elsewhere that this trend in favour of same-sex marriage reflects as much a conservatisation of gay discourses as a liberalisation of straight sentiment. Marriage, after all, involves the acceptance of serious mutual inter-personal obligations that …