Adoption (Amendment) Act 2017

1. Definition

1. In this Act—

“Principal Act” means the Adoption Act 2010.

2. Repeals

2. (1) Section 24 of the Principal Act is repealed.

(2) Part 11 of the Children and Family Relationships Act 2015 is repealed.

3. Amendment of section 3 of Principal Act

3. Section 3(1) of the Principal Act is amended—

(a) by the insertion of the following definitions:

“ ‘Act of 1964’ means the Guardianship of Infants Act 1964;

‘Act of 2010’ means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

‘civil partner’ shall be construed in accordance with section 3 of the Act of 2010;

‘cohabitant’ shall be construed in accordance with section 172(1) of the Act of 2010;

‘cohabiting couple’ means 2 adults who are cohabitants of each other and who have been living together as cohabitants for a continuous period of not less than 3 years;

‘donor-conceived child’ has the same meaning as it has in Part 2 of the Children and Family Relationships Act 2015;

‘father’, in relation to a child, includes a man who is, under section 5 of the Children and Family Relationships Act 2015, a parent of the child where that child is a donor-conceived child;

‘relevant non-guardian’ means, in relation to a child—

(a) a father of the child who is not a guardian of the child pursuant to the Act of 1964,

(b) a parent of the child under section 5 of the Children and Family Relationships Act 2015 who is not a guardian pursuant to the Act of 1964,

(c) a person who is appointed as a guardian of the child pursuant to section 6C of the Act of 1964 where subsection (9) of that section applies to that appointment but in respect of which the court has not made an order that the person enjoys the rights and responsibilities specified in subsection (11)(f) of that section, or

(d) a person appointed by the court to be a temporary guardian of the child under section 6E of the Act of 1964;

‘step parent’ has the meaning assigned to it by section 37;”,

(b) by the substitution of the following definition for the definition of “parent”:

“ ‘parent’ means, in relation to a child—

(a) the mother or father of the child, or

(b) a woman (other than the mother) who is, under section 5 of the Children and Family Relationships Act 2015, a parent of the child where that child is a donor-conceived child,

and includes an adopter of the child;”,

(c) by the substitution, in the definition of “guardian”, of the following paragraph for paragraph (a):

“(a) is a guardian of the child pursuant to the Act of 1964, other than a guardian appointed—

(i) under section 6C of that Act where subsection (9) of that section applies to that appointment but the court has not made an order that that person enjoys the rights and responsibilities specified in subsection (11)(f) of that section, or

(ii) under section 6E of that Act, or”,

(d) in the definition of “relative”, by the substitution of “relationship to the child being traced through a parent of that child” for “relationship to the child being traced through the mother or father”, and

(e) by the deletion of the definition of “orphan”.

4. Amendment of section 4 of Principal Act

4. Section 4 of the Principal Act is amended by the substitution, in paragraph (k), of “parents” for “birth parents” in each place that it occurs.

5. Visits and enquiries pertaining to adoptions

5. The Principal Act is amended by the substitution of the following section for section 12:

“12. The Authority may authorise a member or employee of the Authority or of the Child and Family Agency to—

(a) visit the homes of the child, the guardians of the child, the applicants for an adoption order or the recognition of an intercountry adoption effected outside the State and the person having custody of the child for the purposes of an adoption, and

(b) make enquiries on behalf of the Authority.”.

6. Amendment of section 16 of Principal Act

6. Section 16 of the Principal Act is amended by the substitution of the following subsection for subsection (1):

“(1) A relevant non-guardian of a child, by notice to the Authority, may advise the Authority of his or her wish to be consulted in relation to—

(a) a proposal by an accredited body to place the child for adoption, or

(b) an application by the mother, step parent or relative of the child for an adoption order in respect of the child.”.

7. Pre-placement consultation procedure

7. The Principal Act is amended by the substitution of the following section for section 17:

“17. (1) Where an accredited body proposes to place a child for adoption—

(a) the accredited body shall request the Authority in writing and in a form and manner approved by the Authority to provide the body with a copy of any notice received by the Authority under section 16(1) from a relevant non-guardian of that child, and

(b) the Authority shall—

(i) as soon as practicable, provide the notice (if any) to the accredited body, or

(ii) where at the time of the request under paragraph (a), it has not received any notice, so inform the accredited body and afterwards, if the Authority so receives a notice under section 16(1), provide the notice forthwith to the accredited body.

(2) Subject to this section and section 18, where an accredited body proposes to place a child for adoption, the accredited body shall, before placing the child for adoption, take such steps as are reasonably practicable, to consult any relevant non-guardian for the purposes of—

(a) informing him or her of the proposed adoption,

(b) explaining to him or her the legal implications of, and the procedures related to, adoption, and

(c) ascertaining whether or not he or she objects to the proposed adoption.

(3) Where—

(a) each relevant non-guardian of a child indicates to the accredited body that he or she has no objection to the proposed placement of the child concerned for adoption, the accredited body may at any time thereafter, place the child for adoption, or

(b) any relevant non-guardian objects to the proposed placement of the child for adoption, the accredited body shall—

(i) notify in writing in the prescribed manner each of the parents, guardians and relevant non-guardians of the child, informing them that it is deferring the placement for such period (in this section referred to as the ‘deferral period’) as is specified in the notice, being a period of not less than 21 days, commencing on the date of the notice, for the purpose of affording the relevant non-guardian an opportunity to make an application to court under the Act of 1964, and

(ii) defer the placement in accordance with the notification.

(4) Where an accredited body receives a notice that an application to court referred to in subsection (3) (b) (i) has been made in relation to a child, the accredited body shall not place the child for adoption until the proceedings are concluded.

(5) Where an accredited body has not received—

(a) a notice referred to in subsection (4) within the deferral period, and

(b) any indication from a relevant non-guardian under paragraph (a) or (b) of subsection (3) within 21 days of informing the person of the proposed placement of the child, as to whether or not he or she has any objection to the proposed placement,

the accredited body may, at any time thereafter, place the child for adoption unless it receives a notice under subsection (4).

(6) A person who is a party to an application referred to in subsection (3) (b) (i) may apply to court for, and the court, where it is in the best interests of the child, may grant, such order as it considers appropriate to expedite the proceedings, which order may include, but shall not be limited to an order—

(a) for substituted service, or

(b) abridging the time fixed by rules of court for taking any step or doing any act in the proceedings.”.

8. Circumstances where no pre-placement consultation

8. The Principal Act is amended by the substitution of the following section for section 18:

“18. (1) If an accredited body is unable to consult a relevant non-guardian of a child for the purposes of section 17(2), the accredited body shall in a form and manner approved by the Authority, notify the Authority to that effect.

(2) The Authority may, if satisfied that the accredited body has taken such steps as are reasonably practicable to consult any relevant non-guardian, authorise the accredited body to place the child for adoption.

(3) At any time after being so authorised under subsection (2) the accredited body may place the child for adoption, but only if the accredited body has not been contacted by a relevant non-guardian indicating that he or she objects to the placement.

(4) Where upon application to it by an accredited body that proposes to place a child for adoption, the Authority is satisfied that, having regard to—

(a) the nature of the relationship between the relevant non-guardian and the person who proposes or persons who propose to place the child for adoption, or

(b) other than in a case where the relevant non-guardian of the child is a person referred to in paragraph (b), (c) or (d) of the definition of ‘relevant non-guardian’, the circumstances of the conception of the child,

it is inappropriate for the accredited body to contact the relevant non-guardian in respect of the placement of the child concerned—

(i) the Authority may, after obtaining the approval of the High Court, authorise the accredited body to place the child for adoption, and

(ii) the accredited body may, at any time after being so authorised, place the child for adoption.

(5) If the identity of the father, referred to in paragraph (a) of the definition of ‘relevant non-guardian’ (in this section referred to as ‘that father’), is unknown to an accredited body and the mother or guardian will not disclose the identity of that father, the accredited body shall—

(a) counsel the mother or guardian concerned in order to attempt to obtain his or her or their, as the case may be, co-operation, advising such person or persons—

(i) that the adoption may be delayed,

(ii) the possibility of that father of the child contesting the adoption at some later date,

(iii) that the absence of information about the medical, genetic and social background of the child may be detrimental to the health, development or welfare of that child, and

(iv) such other matters as the accredited body considers appropriate in the circumstances,

and

(b) where the mother or guardian concerned, after counselling, will not disclose the identity of that father, furnish the Authority with a written report of the counselling that the accredited body has so provided.

(6) Where the Authority receives a written report referred to in subsection (5)(b), and is satisfied that the accredited body—

(a) has taken such steps as are reasonably practicable to obtain the co-operation of the mother or guardian, and

(b) has no other practical way of ascertaining that father’s identity, then—

(i) the Authority may, after first obtaining the approval of the High Court, authorise the accredited body to place the child for adoption, and

(ii) the accredited body may, at any time after being so authorised, if it has not ascertained the identity of that father, place the child for adoption.

(7) Where the mother or guardian of a child provides or provide, as the case may be, an accredited body with a statutory declaration stating that he or she or they, as the case may be, is or are unable to identify that father, then—

(a) the Authority may, after first obtaining the approval of the High Court, authorise the accredited body to place the child for adoption, and

(b) the accredited body may, at any time thereafter, place the child for adoption, if the accredited body has not any other practical way of ascertaining that father’s identity.”.

9. Best interests of child and views of child

9. The Principal Act is amended by the substitution of the following section for section 19:

“19. (1) In any matter, application or proceedings under this Act which is, or are, before—

(a) the Authority, or

(b) any court,

the Authority or the court, as the case may be, shall regard the best interests of the child as the paramount consideration in the resolution of such matter, application or proceedings.

(2) In determining for the purposes of subsection (1) what is in the best interests of the child, the Authority or the court, as the case may be, shall have regard to all of the factors or circumstances that it considers relevant to the child who is the subject of the matter, application or proceedings concerned including—

(a) the child’s age and maturity,

(b) the physical, psychological and emotional needs of the child,

(c) the likely effect of adoption on the child,

(d) the child’s views on his or her proposed adoption,

(e) the child’s social, intellectual and educational needs,

(f) the child’s upbringing and care,

(g) the child’s relationship with his or her parent, guardian or relative, as the case may be, and

(h) any other particular circumstances pertaining to the child concerned.

(3) In so far as practicable, in relation to any matter, application or proceedings referred to in subsection (1), in respect of any child who is capable of forming his or her own views, the Authority or the court, as the case may be, shall ascertain those views and such views shall be given due weight having regard to the age and maturity of the child.

(4) Without prejudice to the generality of subsection (3), the Minister may make regulations prescribing the procedures by which the Authority or the court, as the case may be, shall determine how best to ascertain the views of the child, in so far as practicable, in any matter, application or proceedings, and, without prejudice to the generality of the foregoing, such regulations may—

(a) make provision for the procedures that are to apply to enable a child to present his or her views in person or in writing or by other means (including by electronic means) to the Authority or the court, as the case may be,

(b) make provision for the procedures that are to apply to enable a child to nominate an appropriate person to present the child’s views orally or in writing or by other means (including by electronic means) to the Authority or the court, as the case may be,

(c) prescribe as appropriate persons—

(i) a class or classes of persons who, in the opinion of the Minister having regard to the functions to be performed by members of such class or classes of persons under this section, are suitable to be appropriate persons for the purposes of such functions, or

(ii) a class or classes of persons who, in the opinion of the Minister having considered the qualifications, training and expertise of such class or classes of persons by reference to the functions to be performed by members of such class or classes of persons under this section, are suitable to be appropriate persons for the purposes of such functions,

(d) make provision for the procedures that are to apply in respect of any consultation by the Authority or the court, as the case may be, with a child or an appropriate person,

(e) make provision for the consultation by the Child and Family Agency with a child for the purpose of ascertaining his or her views and for the procedures relating thereto, including procedures relating to the preparation and submission of any written reports arising from such consultation to the Authority or the court, as the case may be,

(f) prescribe the standards to be applied by an appropriate person to the performance by the person of his or her functions under this section,

(g) prescribe the allowable expenses that may be charged by an appropriate person referred to in paragraph (c)(i) and the fees and allowable expenses that may be charged by an appropriate person referred to in paragraph (c)(ii),

(h) make provision for such other matters as the Minister considers necessary to ensure that appropriate persons are capable of performing their functions under this section.

(5) Regulations under this section may—

(a) make different provision in relation to—

(i) children of different ages and maturity, or

(ii) different classes of appropriate persons,

and

(b) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.”.

10. Amendment of section 20 of Principal Act

10. Section 20 of the Principal Act is amended by the substitution of “a married couple, a couple who are civil partners of each other or a cohabiting couple” for “a married couple” in each place that it occurs.

11. Amendment of section 21 of Principal Act

11. Section 21 of the Principal Act is amended by the substitution of the following subsection for subsection (2):

“(2) The Child and Family Agency shall, as soon as practicable after receipt of notice under subsection (1), give notice of the discontinuance to—

(a) the Authority,

(b) any adoption committee concerned,

(c) the mother and any other guardians of the child, and

(d) each relevant non-guardian of the child.”.

12. Children who may be adopted

12. The Principal Act is amended by the substitution of the following section for section 23:

“23. (1) The Authority shall not make an adoption order in respect of a child unless—

(a) the child—

(i) resides in the State, and

(ii) is, at the date of the making of the adoption order, less than 18 years of age,

and

(b) the child has—

(i) in a case where the applicant is a step parent of the child, a home with the child’s parent and that step parent, for a continuous period of not less than 2 years at the date of the application for the adoption order, or

(ii) in any other case, been in the care of the applicants for the prescribed period (if any).

(2) The Authority, having regard to the particular circumstances of the case, may make an adoption order in respect of a child notwithstanding that the child has not—

(a) in a case where the applicant is a step parent of the child, a home with the child’s parent and that step parent, for a continuous period of not less than 2 years at the date of the application for the adoption order, or

(b) in any other case, been in the care of the applicants for the prescribed period under subsection (1)(b)(ii).”.

13. Consultations with relevant non-guardians of child

13. The Principal Act is amended by the substitution of the following section for section 30:

“30. (1) In this section ‘father’, in relation to a child, includes a person who believes himself to be the father of the child.