New Adoption laws signal significant shift in policy

The Adoption (Amendment) Act 2017 has come into force today (19 October) in Ireland.

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.

Who can adopt

Prior to the 2017 Act, only married couples (including those of the same sex) could jointly adopt children. Unless the circumstances were extreme, children could only be adopted if they were orphans or born outside marriage. Previously, a child born inside marriage could only be adopted in cases of extreme abandonment or where both parents had died.

The Act also allows civil partners and cohabitants to apply to adopt children jointly. Previously, only a married couple could adopt children jointly (this includes a same-sex married couple). Others could apply to adopt but not jointly, only as individuals. Now civil partners may also apply to adopt jointly. Cohabiting couples of the same sex or opposite sex may also adopt if they have lived together for at least 3 years. 

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.

Step-parent adoption

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. 

Best interests

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.