New Adoption Legislation coming into force

In an effort to better reflect the realities of modern family life, The Adoption (Amendment) Act 2017, which is due to come into effect imminently, gives effect to Article 42A (Children) of the Constitution, in so far as it relates to adoption.

The Act now provides for the adoption of any child, regardless of the marital status of his/her parents.

Married parents will now be allowed to place their child for adoption, on a voluntary basis, in circumstances where both parents consent to the placement.

Step parents will now be permitted to adopt their step child without the requirement for the child’s other parent to adopt their own child. The legal status of the parent will not change and only the step parent will become an adoptive parent.

Civil partners and cohabiting couples can now adopt.

The amendment also provides that in any matter, application or proceedings under the Principal Act, the best interest of the child must be regarded as the paramount consideration. In respect of any child who is capable of forming his or her own views, the Authority or the Court shall ascertain the child’s views and give them due weight having regard to the age and maturity of the child.

The amendment introduces a new test in the adoption of children whose parents fail in their duty towards them in light of the Constitutional amendment. It provides for 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 interest of the child). 

Parental support

Although the Act now provides further access for foster carers to seek adoption, the amendment of section 54 places an onus on the Child and Family Agency to offer support to birth parents that have had their child taken into foster care with the hope of increasing the chances of a “positive” family reunification. The Child and Family Agency must be satisfied that every reasonable effort has been made to support the parents of the child before that child can be adopted by foster parents without the consent of the birth parents.

Best interests of child and views of child

Section 19 of the Principal Act is now amended to reflect Article 42A of the Constitution. In any matter, application or proceedings under the Act, the best interests of the child is to be regarded as the paramount consideration in the resolution of such matter. The section also provides that in the resolution of any matter, proceedings shall, in respect of any child who is capable of forming his or her own views, ascertain the child’s views, and such views shall be given due weight having regard to the age and maturity of the child.

Civil Partners and co-habitants

Section 20 of the Principal Act now enables the Adoption Authority to make an adoption order in respect of civil partners, or a couple who have been cohabiting for over three years, provided they have been assessed as eligible and suitable to adopt. It also provides for an intercountry adoption undertaken outside the State to be recognised where the adopting couple are civil partners, or cohabitants who have cohabited together for over three years.

Who may be adopted?

Section 23 of the Principal Act is amended by deeming eligible for adoption any child residing in the State who is under the age of 18 years, and who has been in the care of the applicants for the prescribed period (if any such period has been prescribed). The section also deletes the reference to the eligibility for adoption in respect of a child who is an ‘orphan’ or who is ‘born of parents not married to each other’. The section also provides that a step parent may adopt a child where that child has had a home with the child’s parent and step parent for a continuous period of not less than two years at the date of the application for the adoption order.

Dispensing with parental consent to adoption

The Principal Act now provides that in circumstances where a child has been placed with a prospective adopter and where the person whose consent is necessary to the making of the adoption order either withdraws, fails or refuses to give consent, the applicant may apply to the High Court for an order authorising the Authority to dispense with the consent in favour of the applicant and giving them custody of the child for such period as the Court may determine. 

In making this determination the Act provides that the High Court shall have regard to:  

• The relationship between the child and the applicant
• The relationship between the child and his or her mother or guardian
• The efforts made by any of those persons to develop or maintain such a relationship
• The views of the child, having regard to the age and maturity of that child
• Any proposed arrangements of either the applicants and the mother or guardian for the future care of the child. 

Making of an adoption order without parental consent

Section 54 of the Principal Act offers revised criteria under which the High Court may authorise the making of an adoption order without parental consent where a child’s parents have failed in their duty towards that child:

• The child must be in the custody of, and have a home with, the applicants for a continuous period of not less than 18 months, and;
• The High Court shall be satisfied that the parents of the child have failed in their duty towards that child for a period of 36 months, and;
• There is no reasonable prospect that the parents will be able to care for the child in a manner that will not prejudicially affect his or her safety or welfare.

For further information please contact Sineád Kearney or Ross Deeny from the ByrneWallace Health and Social Care team.