The adoption of children born out of wedlock should require the consent of both the mother and the natural father once the latter would have acknowledged paternity, Nationalist MP Mario de Marco has argued in Parliament.
He observed during the debate on the Adoption Administration Bill that in terms of the Bill, when children were born out of wedlock, it was only the consent of the mother that was needed for the child to be given up for adoption.
The Bill provides for the Adoptions Board to "hear any person who has parental authority or who has been entrusted with the care and custody of the child to be adopted".
The Nationalist MP pointed to decisions of the European Court which had said that, when children were born out of wedlock but the parents created a family, denying the natural father the right to approve adoption could be violating the right to family life.
Therefore, Dr de Marco said, in cases where natural fathers recognised their children born out of wedlock, they should have the right to give their consent for an adoption as much as the mother.
Earlier in the debate, Marie Louise Coleiro Preca, opposition spokesman on social solidarity, said the Bill had been awaited for years and she had therefore expected it to be much better.
She regretted that consultation had not been as extensive as the minister, Dolores Cristina, had implied. The government should have sought the advice of the judiciary itself, and it should have also sought the advice of lawyers in the sector, social workers and affected children.
Notary Coleiro Preca praised and thanked the Church-run children's homes in Malta but referred to UK research which showed that children in care were in greater danger of falling behind. As a result, in the UK there was emphasis on foster care and adoption rather than institutional care.
Although the bill was very positive, it was not sufficiently addressing children's interests. It was rightly introducing the children's lawyer but there were many other areas where children should have featured.
The UN Hague convention gave children the right to freely express themselves in things which concerned them. So children should be provided with an opportunity to be heard in any judicial procedure concerning them. Age, she said, did not always reflect maturity. Giving an example, she said that an eight-year-old girl in an institution recently asked to speak to her.
Surely children who were capable of expressing themselves should be consulted?
On Home Study Reports, Notary Coleiro Preca said that, unfortunately, there was nothing in the Bill to define these reports, which could be very intensive.
On the Adoptions Board, Notary Coleiro Preca pointed out that, while confidentiality was being stressed, the distribution of documents could be authorised by a minister or a court of law. Why was the minister being involved? Was there a valid reason?
What resources would the board have, given its extensive duties? Would it be able to farm out expertise? Was Appogg sufficiently resourced to also handle adoptions? She did not think so.
Once the prospective adoptive parents had the right to appeal, why was this right not also being given to the children? It was positive that children could have their own lawyer but they should also have the right to appeal.
She also insisted that adoption costs needed to be brought down. Those forking out the money had to be protected. The structures being set up should also look into this. It was also important for adoption procedures to be quicker.
Notary Coleiro Preca asked for a better explanation on private adoptions. Were these to become illegal? What if there were private adoptions among Maltese couples? Could these be done? If not, what procedure could be drawn up to ensure these did not go underground? There had been private adoptions which had failed drastically in spite of private agreements so one had to be careful not to create opportunities for certain underhand dealings.
Concluding, Notary Coleiro Preca appealed to the minister to again put the law under scrutiny because there were deficiencies which needed to be remedied before this Bill became law.
Labour MP Josè Herrera insisted that the last word on adoptions should be the courts'.
Some might think that a judge was not the ideal person to tackle adoptions because they felt social workers or agencies were more specialised in the field. But adoptions were very important in that they changed the status of the adoptive child in society, it should therefore remain the responsibility of the courts to decide.
He , therefore, had reservations about this Bill. The Bill provided for an Adoption Board. At present the court appointed a curator who drew up a report and presented his recommendations to the judge. He did not know why such a long-standing practice needed to be changed. The courts were no rubber stamps and judges and magistrates decide without fear or favour.
He also criticised the composition of the Adoptions Board, saying this was just having the role of a court expert to examine whether the would-be adoptive parents were ideal. He insisted that the board should make its recommendations to the judge and not take the final decision itself and then ask the court to rubber stamp it.
Dr Herrera said such a procedure was demeaning towards the courts.
He said that the Bill contains many flaws. There were concepts that were wrong. For example, the agency's recommendations were not decisions and a judge could always refuse to sanction something he did not agree with.
As an example he singled out section 7 of clause 16, which says that "a decision by the Adoption Board or by the central authority shall have immediate effect unless the Board of Appeal decides to suspend it until it has given the final judgment". This clause, he said, must be amended.
Dr Herrera said that the concept of "open adoption" was no adoption at all because the natural parents would still be in contact with the child. Such a procedure was simply the role of a carer and not an adoptive parent. It must therefore be called by another name.
He did not agree that the register of adoptions be kept by the agency. Such confidential information, he concluded, should be in the custody of the courts.
Dr deMarco, who spoke after Dr Herrera, said the courts were not losing their final say. The board would be making recommendations which the courts could then accept or reject at their discretion. What this Bill was doing was to create structures to help the courts reach their decision.
He observed that the Bill was inspired from British legislation, showing that Malta was not experimenting but introducing a concept which had already been successfully tested elsewhere.
The Bill was, essentially, creating the Adoptions Board, which had the faculty to consult professionals and others involved in the sector. It would examine home study reports, consider whether prospective parents were eligible, ensure that the adoption would be in the best interest of the children and submit its recommendations to court, to the accredited agency and to the minister.
The board had a vast role, and his appeal was for it not to stagnate in bureaucracy. Adoptions were sensitive matters and, while it was important for adoptions not to be hasty, the process should not be lengthened unnecessarily.
The Bill, he said, also spoke on a central authority, whose responsibility would include the accreditation of adoption agencies. There were several people and agencies who wanted to help parents wanting to adopt and others who exploited the parents. The authority would ensure that the agencies satisfied the criteria to do their duties as agencies to facilitate adoption. But its decision was not final. An agency whose request was denied could appeal the decision. And if a credited agency no longer satisfied the required criteria, the authority could revoke its decision.
On accredited agencies, Dr de Marco said these would draw up home study and post adoption reports. The idea behind post adoption reports was to ensure that the adopted children fitted in their new environment. Other legislation, he said, would then come into effect and the minister would have the right to take the child out of the control of the adoptive parents.
Referring to Dr Herrera's comments on the concept of open adoptions, Dr de Marco said this was not there to stop the legal concept of adoptions. It was there for children who were over 11 years old and there could be exceptional instances where the court could authorise an agreement through which the natural parents could retain contact with the child. Although this was not advisable in normal circumstances, there could be cases when it could be, and the courts always acted in favour of minors.
On the right of information, Dr de Marco said he knew many people who had been adopted and who wanted to know who their natural parents were. The Bill was introducing the right for a person over 18 to submit an application in court to request information. This was not an automatic right but a court could consider and decide on it.
The Bill, he said, was studied and interesting.