Ireland 2017 – forcible adoption of children in State care? by Caroline O’Meara

Adoption involves a child being adopted by someone who is not their birth parent whereby the legal rights and responsibilities are transferred from the birth parent(s) to the adoptive parent(s).

Recent changes to adoption law have brought about significant changes. More people than ever before can now adopt a child: married couples; single people; relatives; civil partners; co-habiting partners; and step-parents.

Children in state care may now be adopted without parental consent where a child has been in care for at least three years and placed with their adopters for at least 18 months. During this time ‘every effort’, which is not explained in the legislation, must have been made by Tusla to engage with parents who must have been offered all ‘reasonable supports’, again is undefined by the legislation.

This marks a significant shift away from the traditional protection of the family unit.

The High Court must be satisfied that the parents have failed in their duties towards the child and that there is no reasonable prospect that they will be able to care for the child. The adoption must always be viewed as desirable and in the child’s best interests.

For children in the long term care of the state, these changes are positive in that they provide a legal, social and familial certainty in terms of their longstanding placement with their foster family.

Yet, adoption without parental consent may be seen as a heavy-handed and draconian state intervention in the family; a tool to reduce public expenditure by creating a framework to transfer some or all of the existing 6,258 children in care (December 2016) out of the Care system; thereby eroding parental rights.

However, the legislation contains safeguards. Proof as to the adopter’s eligibility and suitability are required, as is the eligibility of the child to be adopted. The adoption must be seen to be in the child’s best interests.

Everyone connected with the child, and not just the birth parents (ie fathers who are not guardians, spouses, civil partners, co-habitants of the birth parent, grandparent or foster parents) must be consulted for their views as to the adoption. Whilst their views will be taken into consideration, the legislation does not require their consent. A child must also be consulted as to their wishes and views, having regard to their age and understanding, but the law is not prescriptive as to how this will happen.

The new legislation permits more children to become eligible to be adopted and the categories of those who may adopt has also widened, which is to be broadly welcomed. Whilst this may lead to increased adoption applications, the length and complexity of adoption assessments are such that an avalanche of applications is not anticipated. , However the separate need for Tusla, the Adoption Authority and the High Court to each be satisfied as to the eligibility criteria of the prospective adopters and the child placed for adoption remains and that it is desirable and in the child’s best interests to grant the order.

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