Adopting a new approach to how we view adoption
Our long-held approach to adoption must be challenged, write Simone McCaughren and Caroline McGregor
Ireland has had an emotional and often painful relationship with adoption. Perhaps this is why it is only now new legislation is tackling some of the most glaring anomalies in the system.
This modern Ireland, which two years ago voted in same-sex marriage, had until this month prohibited the children of married couples from being adopted - one of several outdated restrictions.
Under the Adoption Act 2010, which regulates how all adoptions in Ireland are carried out, couples who are civil partners or cohabitees could not adopt a child. Up until now only married heterosexual couples or single individuals could apply to adopt a child.
Another anomaly was if a step-parent wanted to adopt a child, their partner - the biological parent of the child - had to also undergo an adoption assessment to adopt their own child.
The Adoption (Amendment) Act 2017 has now come into effect, which irons out these archaic restrictions.
More fundamentally, it points to a major shift in how we think about and implement adoption policy in Ireland into the future as it legislates for the first time for the use of adoption as a possible option for children who are in long-term care. And it brings with it many challenges to long-held perceptions about adoption and the role of the family in Irish society.
The Act is a direct outcome of the Children's Rights Referendum in 2012. This led to an additional statement - Article 42a - being added to the Constitutional statement on 'the family'. This statement adds in a stronger commitment to children's rights and a widening of the scope for use of adoption for children who are in long-term care.
It allows for more equality in terms of eligibility for adoption of children who are from both married and unmarried relationships. Up until now, children of married parents were not eligible for adoption except in very exceptional circumstances. It introduces the option for adoption to be considered for a child who is in long-term care for three years and there is an agreement that 'the dispensing with parental consent to adoption in circumstances where the High Court is satisfied that the parents of a child have failed in their duty towards that child for a continuous period of 36 months or more' and 'where it is considered likely that such failure will continue', and 'where adoption is considered to be in the best interests of the child'.
This means that in addition to current practice where a child, who cannot return home to their own carers or parents is placed in long-term foster care with other family members (kinship care) or alternative care (foster care or residential care), the option of adoption can also be considered.
The Act therefore opens the way for a greater number of children in the foster care system to be adopted. This requires a huge shift in how adoption is thought about in Ireland. It marks a significant deviation from the traditional adoption of infants by strangers that has become a deeply ingrained part of our social history and that have, for many, caused considerable anguish. Much of that anguish has emanated from the closed and therefore secretive nature of adoption and where adoptions ended all legal and social ties with the child's natural family.
While the practice of adoption has more recently embraced a much more open approach, the law has not changed in this regard and is still based on the closed model.
Ireland has not generally used the care system as a route into adoption as would be the case in the UK and the US. Indeed, since 2012 only 63 children from long-term foster care were placed for adoption.
Although reunification with parents will be the preferred option, our long-held approach to adoption will need to be challenged. Careful analysis of how and why it may be suitable for legal family ties to be severed in cases of children in long-term care will be required.
Many children who enter the care system are children who have been emotionally or physically harmed yet have pre-existing relationships with members of their natural family. However, adoption results in the permanent and irreversible severing of all legal ties to the natural family. The idea of severing the legal ties of families will change and challenge how we think about making arrangements for permanency and security for children. It will require extra reflection, analysis and consideration for those involved in both the child welfare and the adoption systems.
It will also take a change of our perception from one that sees adoption as a closed and final matter, to one which views adoption as potentially more open and fluid.
Debates need to continue so that we neither embrace this new option as a simple panacea for achieving better permanence and stability for children in care, nor reject it as not suitable to the Irish context given our inherited family stereotypes and our constitutional conservatism when it comes to the relationships and rights within the family and between family and state.
Dr Simone McCaughren is a lecturer/BSW course director in the School of Applied Social Studies, University College Cork. Caroline McGregor is a professor at the School of Political Science and Sociology, NUI Galway.