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Thread: How good parents will lose their children to adoption if the Referendum is passed

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    Default How good parents will lose their children to adoption if the Referendum is passed

    I provide an example of how this may occur.

    Johnny & Mary meet fall in love and marry. They save up and buy a house. They decide to start a family. Mary becomes pregnant and gives up her job in preparation for the birth of the child. The child is born and Johnny & Mary are delighted. 3 months later Johhny announces that he has met someone else and leaves.

    Mary now has no income, a mortgage to pay and a child to care and provide for. Mary makes an application for social welfare. Social Welfare advise her that SW payments are conditional on applicants being required to seek maintenance from the other parent. Mary asks Johnny and he declines. Mary is therefore obliged by SW to make an application to the court for maintenance. Johnny counters and makes an application for access (Johnny is offered access by Mary but he declines).

    Maintenance - A person who claims One-Parent Family Payment is required to seek maintenance from her/his spouse /civil partner where civil partner is the parent of the child/ren or the other parent of the child. One Parent Family Payment » Operational Guidelines » Department of Social Protection
    Johnny's application for access is the trigger for the child to be appointed a guardian ad litem (GAL) normally a social worker. The GAL will be provided with full legal representation. The GAL will be legally obliged to seek to vindicate the best interests of the child as the paramount consideration. The GAL must do this in the absence of having the benefit of being able to converse with the child as the child is now only 6 months old. The GAL will be obliged to make recommendations to court in the absence of any presumption that the best interests of a child lies with its married or natural parents.

    Removes any presumption that the best interests of a child lies with its married or natural parents in the context of adoption, guardianship, custody and access proceedings, and in this context having regard to the views of the child. Academia.edu | The 31st Amendment to the Constitution (Children) Bill | Oran Doyle
    Therefore, the amendment introduces a new dimension to law in that it provides explicitly and for the first time that children’s rights are justiciable even when the family unit is intact and fully functioning.
    http://www.scribd.com/doc/109500011/...s-Ref-Proposal
    The GAL is required to meet with both parents. Johnny & Mary must disclose anything that is asked of them to the GAL. The GAL is entitled to obtain financial, medical and police records etc of both parties if deemed appropriate. Johnny advises the GAL that he is a new relationship and he wishes for the child to be adopted (thus divesting himself of his legal responsibilty to financially provide for his child for the next 18 years and potentially 23 years if the child remains in full time education). Johnny signs the consent to adopt form for his child.

    42A 3. Provision shall be made by law for the voluntary placement for adoption and the adoption of
    any child. The proposed change to the Constitution | Referendum 2012
    "What happens, in terms of voluntary adoption, if one part consents but another refuses consent to place a child for adoption? What happens if the parents consent, but the child does not wish to be placed for adoption? Presumably the child’s view can be heard(according to Article 42A.4.1.ii) but how will this interact with the parents’ preference to place the child for adoption?" Legal Analysis of Children's Rights Ref Proposal
    The court hearing date arrives. The Judge is presented with the case. Johnny (the father) has not had any access with the child for 4 months now. As a result he now wishes for child to be adopted. Mary (the mother) opposes.

    The GAL submits that in the given circumstances from the childs perspective that the child would benefit from having two committed parents rather than one. That the child would benefit from living in a home free from social welfare dependency. The child would also benfit from the security of same. Therefore in the childs best interests the GAL recommends the adoption of the child as concurring with the childs best interests. The GAL can state that the Adoption Authority has a waiting list of over 1,000 would be parents who have been properly vetted and declared as being suitable persons to adopt. Most of whom are mature professionals, in longterm relationships, and are far better placed than Mary (the mother) a social welfare dependent single parent to provide for the childs overall welfare.

    The Judge must consider the case having due regard to Artcle 42A and any subsequent legislation into account. The indicators are as follows:

    1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
    2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
    3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
    Having considered all of the above I suggest that the Judge will have no option but to allow for the child to be adopted.

    The order of course will be subject to appeal to the higher courts which already have huge backlogs and therefore increase the likelyhood of the child being adopted against the express wishes of the natural mother.

    On average 5,000 applications are made per year concerning custody, guardianship and access of/to children. If only 5% fall into this fairly average category it would mean 250 children could lose their natural mothers to adoption.

    Is this progress?

    EDIT

    Background

    Fifth Report of the Special Rapporteur on Child Protection, A Report Submitted to the Oireachtas, Geoffrey Shannon, 2011 Report

    In the ‘Baby Ann’ case, for example, MacMenamin J. applied the right of children to have decisions taken in their best interests when holding that custody of Ann would be granted to her prospective adopters, rather than her birth parents. However, this decision was reversed by the Supreme Court on appeal, the superior court favouring the more traditional approach that the interests and welfare of children are best protected within the child’s constitutional (i.e. marital, birth) family. The inclusion of express reference to children’s rights and interests in Article 42, as proposed, will certainly temper this effect.

    EDIT 2

    A number of questions were raised as to the above that I think are fair to add in here. I was trying to keep the example as brief as possible but to help readers understand the issues a little better, as I see them, I answer the questions to hand posed by sondagefaux.

    Your scenario makes an awful lot of assumptions, none of which seem realistic to me.

    Why does the request for access trigger a GAL appointment?

    The father makes an ex parte application for access as he claims access to the child is being denied to him. He is distressed at this and may seek to have the child adopted if access is not promptly restored. He requests the court to order a Section 20 report.

    "the court may, of its own motion or on the application of any person, adjourn the proceedings and direct the health board for the area in which the child resides or is for the time being to undertake an investigation of the child's circumstances."

    the health board concerned shall undertake an investigation of the child's circumstances and shall consider whether it should—


    (a) apply for a care order or for a supervision order with respect to the child,


    (b) provide services or assistance for the child or his family, or


    (c) take any other action with respect to the child."


    The Health Board (HSE) must now work on the basis that the presumption that the best interests of a child lies with its married or natural parents has been removed. They must act accordingly.

    This all happens at District Court level.

    Section 20, Child Care Act 1991
    Why does the GAL attempt to push adoption?

    Removes any presumption that the best interests of a child lies with its married or natural parents in the context of adoption, guardianship, custody and access proceedings, and in this context having regard to the views of the child. Academia.edu | The 31st Amendment to the Constitution (Children) Bill | Oran Doyle
    The child would benefit from having two committed parents rather than one. That the child would benefit from living in a home free from social welfare dependency. The child would also benfit from the security of same. Therefore in the childs best interests the GAL recommends the adoption of the child as concurring with the childs best interests.

    Why does the court rule that having married adoptive parents is in the best interests of the child?

    The natural father has consented to the adoption of the child and the Adoption Authority has a waiting list of over 1,000 would be parents who have been properly vetted and declared as being suitable persons to adopt. Most of whom are mature professionals, in longterm relationships, and are far better placed than Mary (the natural mother) a social welfare dependent single parent to provide for the childs overall welfare.

    What are the 'exceptional' circumstances in this case? How does being a welfare dependent single mother meet the constitutional test of 'exceptional cases'?

    In a voluntary adoption situation, remember the father has consented to the adoption, no exceptional circumstances are required to be met.

    42A 3. Provision shall be made by law for the voluntary placement for adoption and the adoption of
    any child.The proposed change to the Constitution | Referendum 2012
    Is such a status exceptional or pretty commonplace?

    5,000 applications for custody, guardianship and access are made every year.

    What evidence is there that Mary has failed in her parental duties to such an extent that the safety of her child is likely to be prejudicially affected?


    The amendment states;
    "i. brought by the State, as guardian of the common good, for the purpose of preventing the
    safety and welfare of any child from being prejudicially affected, or

    ii. concerning the adoption, guardianship or custody of, or access to, any child,
    http://www.referendum2012.ie/proposed-article/
    As you can see 'prejudicially affected' only applies to cases brought by the State.

    In this case the natural father brought the case not the State.

    If one parent voluntarily consents to the adoption of the child no evidence of parental failure is required to allow for the adoption of the child to proceed.

    "What happens, in terms of voluntary adoption, if one part consents but another refuses consent to place a child for adoption? What happens if the parents consent, but the child does not wish to be placed for adoption? Presumably the child’s view can be heard(according to Article 42A.4.1.ii) but how will this interact with the parents’ preference to place the child for adoption?" Legal Analysis of Children's Rights Ref Proposal
    As pointed out above this is unchartered territory no restrictions are proposed as to what courts may decide on these type of applications. That being the case the first port of call will be the District Court, an appeal of a decision of the District Court to the Circuit Court takes on average 5 months to get a hearing. An appeal of a decision of the Circuit Court to the High Court takes on average 8 months to get a hearing. Finally an appeal of a decision to Supreme Court takes any amount time you can guess.

    At this stage the child could be separated from it's natural mother for a minimum of 13/14 months. Thus making it harder for the child to be returned to the natural mothers care as the case could now fall into the 'exceptional' circumstances scenario.

    If you think safeguards in the proposed legislation exist read it and then explain where they are and what exactly does this section allow for?

    Head 5: Children who may be adopted.

    (1)(c) has 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 notwithstanding that the child has not been in the care of the applicants for the prescribed period
    under subsection (1)(c).”.
    Realistic? It will become a reality now but you and I will never hear of it as all this will take place behind closed courtroom doors i.e. in camera with no reporting.
    Last edited by Grey Area; 14th November 2012 at 07:09 AM.
    “That which can be asserted without evidence, can be dismissed without evidence.” - Christopher Hitchens

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    Yes.
    Repeal the 27th.

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    Quote Originally Posted by Mercurial View Post
    Yes.
    Why?

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    Politics.ie Member Half Nelson's Avatar
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    You left out an important part -

    The general populace will be totally unaware of everything that takes place, since everybody associated with the Family Courts is bound to silence.

    Having voted in favour of the referendum the people will be able to honestly say - "don't know and can't care".
    As in the UK, the burgeoning child welfare industry will have the one thing that every business craves - unaccountability.

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    Quote Originally Posted by Grey Area View Post
    I provide an example of how this may occur.

    Johnny & Mary meet fall in love and marry. They save up and buy a house. They decide to start a family. Mary becomes pregnant and gives up her job in preparation for the birth of the child. The child is born and Johnny & Mary are delighted. 3 months later Johhny announces that he has met someone else and leaves.

    Mary now has no income, a mortgage to pay and a child to care and provide for. Mary makes an application for social welfare. Social Welfare advise her that SW payments are conditional on applicants being required to seek maintenance from from the other parent. Mary asks Johnny and he declines. Mary is therefore obliged by SW to make an application to the court for maintenance. Johnny counters and makes an application for access (Johnny is offered access by Mary but he declines).



    Johnny's application for access is the trigger for the child to be appointed a guardian ad litem (GAL) normally a social worker.

    The GAL will be provided with full legal representation. The GAL will be legally obliged to seek to vindicate the best interests of the child as the paramount consideration. The GAL must do this in the absence of having the benefit of being able to converse with the child as the child is now only 6 months old. The GAL will be obliged to make recommendations to court in the absence of any presumption that the best interests of a child lies with its married or natural parents.



    The GAL is required to meet with both parents. Johnny & Mary must disclose anything that is asked of them to the GAL. The GAL is entitled to obtain financial, medical and police records etc of both parties if deemed appropriate. Johnny advises the GAL that he is a new relationship and he wishes for the child to be adopted (thus divesting himself of his legal responsibilty to financially provide for his child for the next 18 years and potentially 23 years if the child remaines in full time education). Johnny signs the consent to adopt form for his child.





    The court hearing date arrives. The Judge is presented with the case that Johnny (the father) has not had any access with the child for 4 months now. As a result he now wishes for child to be adopted. The mother opposes.

    The GAL submits that in the given circumstances from the childs perspective that child would benefit from having two committed parents rather than one. That the child would benefit from living in a home free from social welfare dependency. The child would also benfit from the security of same. Therefore in the childs best interests the GAL recommends the adoption of the child as concurring with the childs best interests. The GAL can state that the Adoption Authority has a waiting list of over 1,000 would be parents who have been properly vetted and declared as being suitable persons to adopt. Most of whom are mature professionals, in longterm relationships and are far better placed than Mary (the mother) a social welfare dependent single parent to provide for the childs overall welfare.

    The Judge must consider the case having due regard to Artcle 42A and any subsequent legislation into account. The indicators are as follows:







    Having considered all of the above I suggest that the Judge will have no option but to allow for the child to be adopted.

    The order will of course be subject to appeal to the higher courts which already have huge backlogs and therefore increase the likelyhood of the child being adopted against the express wishes of the natural mother.

    On average 5,000 applications are made per year concerning custody, guardianship and access of/to children. If only 5% fall into this fairly average category it would mean 250 natural mothers could lose their children to adoption.

    Is this progress?
    What's the problem with that?

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    Quote Originally Posted by Mercurial View Post
    Yes.
    I'm sure all single mothers will applaud your brutal honesty.

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    Quote Originally Posted by Hitch 22 View Post
    What's the problem with that?
    It's unreal. That's the problem with it.
    "It is difficult to get a man to understand something when his salary depends upon his not understanding it." - Upton Sinclair.

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    Judging by the outright liars, spoofers, lunatics and John waters on the no side, every sane person could do nothing else but vote for the amendment.

    Some of the muck and confusion being thrown about by the no side has been disturbing to say the least
    Socialism is a philosophy of failure, the creed of ignorance, and the gospel of envy, its inherent virtue is the equal sharing of misery. Sir Winston Churchill

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    Politics.ie Member newport2's Avatar
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    Quote Originally Posted by Gray Area
    How good parents will lose their children to adoption if the Referendum is passed
    Johnny doesn't sound like a very good parent to me

  10. #10

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    Quote Originally Posted by ppcoyle View Post
    Why?
    Because the best interests of the child are being promoted above the interests of the parents.
    Repeal the 27th.

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