Prospective adopters may apply to the HSE for assessment of their suitability and eligibility to adopt. Adoption committees may advise and assist the Authority in the performance of its functions and make representations regarding declarations of eligibility and suitability.
The Authority may make enquiries and visit the home of applicants. They may be examined medically. The adoption committee considers the assessment report and recommends to the Authority whether a declaration of eligibility and suitability be issued.
Information and Assessment
Applicants for adoption must be furnished with information, advice and counselling in relation to adoption. If the adopter’s child and natural parents are not of the same religion, the natural parent must be so aware when consenting to the adoption.
Potential applicants for adoption may apply to the health Authority for an assessment of eligibility and suitability to adopt. The adoption agency or social workers undertake assessments in relation to suitability. The health Authority carries out an assessment and prepares a report. It is referred to an adoption committee for recommendation to the Authority.
The adoption committee considers the report and recommends to the Authority whether a declaration of suitability should be granted. The recommendation should contain reasons. A copy is given to the Authority, the Health Authority and the applicants. Having considered the reports, the Authority may make a declaration.
A declaration of eligibility lasts for two years. It may be extended for up to 12 months. The Authority may amend or revoke a declaration if new information comes to hand. The applicants must be given the opportunity to be heard.
Two consents are required from the child’s mother; in relation to the placement and in relation to the later adoption order. However, once the child is placed for adoption, the court may dispense with the second consent. The fact of the requirement for the second consent and the possibility that a court might dispense with it must be fully explained. The court may dispense with consent while it is in the best interests of the child to do so.
An accredited body must provide the mother or guardian placing a child for adoption with a statement regarding the effect of the order and the consent. It must ensure that this is understood and that a statement is signed to this effect. Until placement, the accredited Society makes arrangements for the care of the child in accordance with Ministerial regulations.
The placement of the child for adoption must be free and fully informed. The mother must have full knowledge of the consequences.
Consent to Placement
The consent of the mother of a non-marital child is required. The initial consent is to place them for adoption. The second is the consent of the adoption order. The second consent may be dispensed with in certain circumstances.
The agreement to place the child to adoption must be given in writing. The accredited body must give the mother a written statement of the effects of the adoption order and the requisite consent. It must be satisfied that the mother of the child understands the statement and that a document so confirming is signed.
Pending placement, the body must make arrangements to care for the child subject to and in accordance with Regulations which the minister may make.
Accredited bodies must act in good faith and must not secure any advantage, direct or indirect, pecuniary or otherwise, from the placement.
Consent Freely Given
The consent must be fully and freely given. It must be informed. The right to withdraw the consent and the right to refuse consent for adoption must be communicated together with the fact that the right may be dispensed with in certain cases, having regard to the best interest of the child.
The mother must be aware of her Constitutional rights in respect of the child and the fact that it is being surrendered by the placement of the child. The placement does remove the mother’s constitutionally protected rights. However, on placement, they are subject to the possibility of being dispensed with.
In some cases, the courts have held that the mother’s consent has not been freely given to placement; the second stage, which is decided principally by reference to the best interest of the child, does not arise.
The test in relation to consent is that it reflects the free will of the mother. In many cases, placement will occur in and due to circumstances of stress, deprivation and emotional pressure. If the circumstances are such that the will of the person is overborne, there may be no valid placement.
Consent may be withdrawn prior to the making of the order. However, consent may be dispensed with. Consent of the adoption order may not take place before the age of 6 weeks. It must be no earlier than 3 months before the application for adoption.
The consent of the natural father was required where he has become a guardian of the child either by agreement or by application to the court, with a court order. Apart from this, his consent was not required. In a famous challenge to the constitutionality of the older legislation, it was held that the provision, which at that time did not require the natural father’s consent, was not unconstitutional even where the order was made without his knowledge.
Under the 2010 Act, when an application for an adoption order is made, the Authority is to take steps to consult with the natural father. The Adoption Authority may authorize an accredited body to place the child if it has taken reasonable steps to consult the father.
A natural father who wishes to be consulted may notify the Authority of his wish to be consulted and give notice before placement. He must be informed of the proposed placement.
The legal implications of the placement and procedures must be explained where the natural father objects. He must be notified in writing that the placement is being deferred for up to 21 days to allow him an opportunity to make an application to be appointed a guardian. The proceedings must not proceed if the application has commenced.
A child may be placed for adoption without the prior consent of the natural father where:
- the nature of the relationship between the mother and the father and the circumstances of conception are such that it would be inappropriate to consult the father.
- if the identity of the father is unknown to the Authority and the mother refuses or is unable to reveal the father’s identity.
Dispensing with Consent
Where the mother has given initial consent to place the child for adoption and refuses to give final consent to the making of the adoption order, an application may be made to the High Court to dispense with the consent. The court decides the matter with reference to the best interest of the child.
The Authority may be permitted by order of the High Court, to dispense with the mother’s consent or that of a guardian where applicable. It may also dispense with consent if a person who is not capable, is not mentally capable of giving consent or – cannot be located.
It may also be granted where there is a failure or refusal to give consent, withholding of consent or a withdrawal of consent.
The primary consideration is the best interest of the child. The range of circumstances and considerations have changed much with the evolution of society. The fitness and competence of the mother are relevant but in no way determinative.
Best interests are considered in the context of the child’s welfare. There have been many cases regarding dispensing with the mother’s consent. Cases have arisen where consent is withdrawn and the child has, by that stage, been living happily with the adoptive parents.
The consent will only be dispensed where the court concludes there are strong reasons to leave the child with the adoptive parents. Psychiatric evidence will be considered in relation to whether the child has bonded with the parents.
A very significant factor is the extent to which the child has bonded and settled with the adoptive parents. Psychological and psychiatric evidence may be considered. In some cases, delay of itself has made it more likely that the mother’s consent would not be dispensed with. The European Convention on Human Rights requires matters concerning fundamental rights to be determined without due delay.
When the Authority is ready to finalise the adoption, it invites the applicants and child before it to attend for hearing. At the oral hearing, the Authority may summon witnesses, examine them and require the production of documents. Witnesses must answer questions under oath.
The hearing is designed to establish and confirm identity and eligibility. A father or person claiming to be a father, certain relatives and health authorities may appear at the hearing. Persons may or may not be legally represented. In the making of an adoption order, the welfare of the child is the first and paramount consideration.
The Adoption Authority may make an adoption order. It may recognise adoption orders made outside the State. It must take account of the assessment report and the declaration of eligibility and suitability, if there is one. In the case of foreign adoptions, the Authority takes account of documents prepared by the foreign adoption authority.
The Authority must conduct an oral hearing; the applicants are invited to attend. The Authority inquires into the matters concerned. It may require persons to answer questions under oath. Witnesses may be examined and may be required to produce documents. Evidence may be heard orally or by affidavit. Questions of law may be referred to court.
The child, mother and father of the child or person claiming to be the father, guardians, representatives, or the accredited body may attend. Persons may retain counsel or a solicitor. The hearing may be in private in whole or in part. If court proceedings are commenced, no order is made until they are determined.
The Authority may adjourn proceedings and make an interim custody order for a probationary period of up to 2 years. This may be subject to conditions regarding maintenance, education, supervision, welfare, et cetera.
The interim order may be revoked on the application of the adopters or the mother or guardian of the child. It may be revoked provided that the person to whom custody has been entrusted has been given the opportunity to make representations and be heard on the application.
The Authority both makes adoption orders and recognizes inter-country adoptions made outside the State. In making an order for adoption, the Authority takes account of the assessment made with respect to the child as well as the declaration of eligibility and suitability.
In intra-country adoptions, the Authority takes account of documents prepared by the Central Authority of the other state, including the equivalent assessment report prepared in the other country.
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