Kevin O'Higgins Solicitors

‘Adoption feels further away than ever’

Saturday, 8 March, 2014
The Irish Times
by Cian Traynor

John and Martina Cummins have spent 10 years trying to become parents. After several attempts at IVF treatment the couple decided to adopt, applying to the HSE in 2009. When they were finally called to a preadoption course, in July 2010, it felt like a lot of information to absorb for something that still seemed so far away.

As the Cumminses would learn, adoption is a complex legal process involving intensive assessment and bureaucracy that can stretch on for years. They began the first of several meetings with their HSE- assigned social worker at their home, in Co Tipperary, in October 2010, and although the questioning was rigorous, everything seemed to be going well when they were given a declaration of eligibility and suitability, in January 2011.

They then signed a contract with Anido, an accredited adoption agency in Bulgaria, and immersed themselves in “an absolute staunch of paperwork” – Garda clearance, medical checks, character references, birth certificates, residential histories and utility bills – as well as trips to a public notary in Waterford and the Department of Foreign Affairs in Cork.

Critical turning point

But for the Cumminses and other prospective parents at a similar stage of the adoption process, 2011 was a critical turning point. John Cummins submitted a complete dossier to Anido in September 2011 when he learned, informally, that a new agency in Ireland, called Arc Adoption, would soon be acting as a conduit for Irish-Bulgarian adoption.

“When we started out on this journey Arc wasn’t even registered as a company, so initially I didn’t really take any notice of it. I’d done everything myself from start to finish and had already sent the pack off to Anido. But I agreed to send a copy of it. What happened next revealed the crux of the problem.”

On December 21st, 2011, the Adoption Authority of Ireland announced in an advisory notice on its website that all applicants intending to adopt from Bulgaria, including people who had already registered applications there, must go through Arc Adoption as well as Anido. The notice went on to say that Arc would soon explain the nature of an “adjusted” fee structure.

For the Cumminses this new fee structure totalled €12,806.91, payable within a nine-month period. People already working with Anido in Bulgaria were being charged €5,256 for the entire adoption process, paid in increments if and when each step occurred.

Yet whereas that figure was itemised clearly, including minor postage costs, Arc broke down its charges only in terms of “professional fees, translation fees, State fees, overheads and direct costs”. There was a sense among prospective parents, Cummins says, of having someone “parachute in” to announce that they were taking control of the process at a price many regard as prohibitive.

The move came as a result of the Republic’s ratification of 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, a treaty set up to regulate international adoption and prevent child trafficking or profiteering. Although nothing in the legislation stipulates that prospective parents must use an adoption agency in their own country, the Adoption Authority of Ireland has made it mandatory to do so, delegating three statutory functions – articles 15, 16 and 17 in the Hague convention – to Arc, a private company limited by guarantee and with charitable tax-exemption status.

Kiernan Gildea, the adoption authority’s acting chief executive, says this is the model followed internationally, whereby national authorities are regulatory bodies, not facilitators, and “don’t hold the hand of people through the adoption process on an individual basis”.

The ensuing entanglement has jeopardised some people’s chances of becoming parents, as the applicants who spoke to The Irish Times for this article claim they cannot pay Arc only for those three functions but must accept the entire fee programme, including for services they have already completed and paid for elsewhere.

“Prospective parents are scared to speak about this,” says Beth Merriman, who believes that the tendency within the adoption community is to avoid rocking the boat instead of fighting for a better system. That’s how she spent much of the past two years, dismayed at what she sees as the unfairness of prospective parents such as herself facing five-figure fees introduced late in the process.

She says she was not allowed to simply pay for what was required and then provide quarterly bank statements, to show that she and her husband, Damien, had sufficient funds along the way. Instead they were asked to pay upfront. If any money was left over at the end of the process, it could be returned. But the fact that no adoptions were being referred from Bulgaria dissuaded Merriman altogether. She and her husband decided instead to put the money into their sixth attempt at IVF treatment in 10 years, giving it one more shot while she was still under 40.

It worked. In January, Merriman gave birth to a daughter. “My little girl is asleep upstairs, and she’s been worth every tear I’ve cried for 10 years,” she says.

Yet given the time, effort and emotion the couple have put into the adoption process, it’s not something they want to give up on. Their declaration of eligibility and suitability expired two weeks ago, but they hope that when they reapply, in September, other adoption possibilities will be closer to opening up. In the meantime, the frustration of trying to adopt from Bulgaria remains.

“Questions need to be asked. The whole thing just doesn’t sit right with me, and I think it goes against the principles of the Hague convention. For Irish prospective parents, and children left to languish in orphanages, I think Hague has been a bad thing in terms of how it’s been implemented here.”

John Rainey from Sligo was also midway through an adoption from Bulgaria in 2011. He has set up a support group, called Prospective Adoptive Parents of Ireland, for people who felt just as confused and concerned as he did. Some have simply paid Arc’s fees, fearful that their adoption could be derailed after years of preparation. Others have refused to engage with Arc at all, with some hoping that they can proceed with their adoption through Anido alone, at the risk of not having their adoption recognised legally.

Rainey and his wife adopted a child from Russia in 2008 and so felt knowledgeable about the process, including the costs involved. They also learned that until an adoption is finalised there are no guarantees. “There are so many things that can happen to stop things going ahead, so we tried to keep our feet on the ground as much as possible and not get ahead of ourselves. Everything was good until the adoption authority announced they were delegating certain functions to Arc Adoption.”

Initially, Rainey was told that he just had to send his paperwork to Bulgaria through Arc, for a fee of €180, and that there would be no obligation to use its services in future. On the day in 2011 that the adoption authority made an announcement to the contrary, Rainey says, it closed for Christmas and no one was available to provide answers.

One cause of concern was that the functions delegated to Arc effectively represent three administrative steps: the preparing, sending and receiving of reports between Ireland and Bulgaria. “It doesn’t cost over €11,000 for someone to submit a piece of paper to Bulgaria three times,” says Rainey. “That’s all [Shane Downer, Arc’s chief executive] seems to be doing. When I drew him on this, he said he’d have to draw up reports.”

Downer says the applications require professional mediation. “We do that to the very best of our ability and in full transparency. Yes, some people were annoyed – and it’s a relatively small number of people in the grand scheme of things – that they had to use Arc. They hold us accountable for the fact that we are performing a statutory function.”

Cause of concern

Another point of concern for Rainey was Arc’s finances, triggered by the fact that the €16,750 the Raineys were now required to pay included a €2,750 refundable registration fee. Rainey would later grow uneasy that the agency was awarded €230,000 in National Lottery funding in 2011 and that year posted a loss of €46,100, as well as a further loss of €129,849 in 2012.

Rainey says that he tried to negotiate with Arc about the fee structure, to perhaps extend it over the term of the adoption and skip the refundable registration fee, but that this led nowhere.

“The feeling in the adoption community at large is that the [authorities] are trying to make it so difficult for people to adopt internationally that it seems as if [some] want to wash their hands of it entirely. We’re totally disillusioned with the process at this point, between our own experiences and having seen what everybody else is going through as well. A lot of people in our scenario have just given up. There’s been barrier after barrier, so we just feel enough is enough. There doesn’t seem to be any light at the end of the tunnel.”

Jacinta Caulfield has finally been able to adopt, as a sole parent, after six and a half years of the same struggle. After trying to negotiate with Arc, appealing to the adoption authority and meeting the Minister for Children, Caulfield discovered that another route remained open, but only through a loophole. She had been on Anido’s referral list since 2010, with pre-Hague paperwork, so the adoption authority permitted her to adopt from Ethiopia, a non-Hague country, in 2013 instead.

“I was lucky,” she says. “I thought I had nowhere else to go.” She could not have afforded the fees Arc was asking her to pay, she says, and feels frustrated that others are still stuck in the same position.

“It’s a transparency issue,” says Caulfield, adding that she finds the nature of Arc’s fees to be at odds with the Hague convention. Article 32 states that only costs and expenses, including reasonable professional fees of those involved in the adoption, may be charged or paid, while the directors, administrators and employees of bodies involved in an adoption shall not receive unreasonably high remuneration in relation to services rendered. “I just stuck to my guns and didn’t pay the money.”

Sean Kelly and his wife, Una, who are based in Mayo, first applied for intercountry adoption in 2009, after pursuing IVF treatment. Like others, they say that their adoption from Bulgaria was going well until Arc entered the equation and that they then felt “railroaded” into what they see as a duplication of services that takes advantage of vulnerable people.

“They wanted fees for social workers even though the HSE were covering that with us,” says Sean Kelly.

Downer says: “I fundamentally understand, and if I was in their shoes I would be raging as well.” The adoption authority requires Arc to employ social workers, he explains, and it is necessary to mitigate the danger of a referral being made that the applicants will not be comfortable with or that, for whatever reason, cannot proceed.

“I still can’t understand why [Arc] would want money upfront for something that could take over three years,” says Kelly. “A person who’s adopting would be in no danger of not paying if the adoption does go through.”

Refusing to pay Arc’s fees has led to a waiting game among some prospective parents. But time is not on their side. A declaration of eligibility and suitability lasts for two years, after which a one-year extension can be applied for. After that, the process of establishing suitability, through the likes of Garda clearance and medical checks, must be started again.

Close to giving up

Kelly is close to giving up. Like other prospective parents in this situation, he has noticed disproportionate numbers of adoptions being successfully referred from Bulgaria to elsewhere. Italy, for example, had 88 referrals (excluding special-needs cases) in 2013, whereas Ireland had four. Two of these turned into adoptions.

“This is our last year of this,” Kelly says. “We won’t be going further if we can’t get a child. There’s too much bureaucracy. Adoption is riddled with problems. You’re not guaranteed a child just because you pay money. We all know that. But you shouldn’t have to pay an agency that’s in debt.”

Downer says that the vast majority of his clients are happy with Arc’s services and that it is only these “transitional cases” who have an issue. Anyone who believes they can process the paperwork on their own is “fundamentally wrong”, and, in the best interests of the child, it is Arc’s responsibility to mediate each adoption and ensure it is “bulletproof”.

“I do understand, and I have empathy for people who are going through a system where, yes, the rules have changed and they have to adapt. In some cases they feel they’ve got to use us when they were already on a system in advance of that.”

Downer explains that the fees were approved by the adoption authority in December 2011 and are constructed around 85 hours of support throughout the adoption process, which includes assistance with paperwork as well as preadoption preparation and postadoption support. Nothing Arc says will approve or decline an adoption by any means, he says, but that doesn’t mean the organisation doesn’t add value to the process.

The payment structure, meanwhile, is a projection that can be negotiated case by case, depending on where applicants are in the system. Downer adds that Arc has spaced out payment over two years in some cases, that the total will often come in at less than the projected amount, and that the fees are lower than those of other agencies in Europe.

“I don’t buy this idea that (a) we’re expensive and (b) that we’re unreasonable, and I certainly don’t buy this idea that we’re providing our services just as a postal mechanism. That’s highly unsound.”

In the beginning, Downer says, Arc set out early to facilitate applications that were sitting unprocessed at the Adoption Authority of Ireland, for a nominal fee. If some applicants were told there would be no further obligation to use Arc’s services at the time, he says, that was because Arc’s fee programme was still in development and the full functions delegated by the adoption authority were not clear until late 2011.

“Then, when we introduced the fee, we got hammered, because it was the first time there was a fee for this service in Ireland, effectively. Under the previous legislation it wasn’t possible to charge for adoption services in Ireland.”

Downer acknowledges that having all fees payable within the first year is different from the payment structure at other agencies but says that, in the interests of the child, this is to avoid an adoption referral not going ahead in case the applicant suffers financial difficulty. “It’s not popular, and we’re probably going to have to adjust it slightly,” he says.

Downer believes that Arc’s accounts are comparable with other not-for-profit organisations’. The company was launched in a difficult economic climate, he says, and of the €980,000 in funding initially sought to get the agency up and running over a three-year period, less than half has been generated. “Which is why we use a refundable registration fee within the fee structure,” he adds. “That gave us some additional cash flow.”

As for why so few adoptions from Bulgaria have been completed under Arc – two in total, according to Downer – he says that it’s a “multiannual process” and that he expects the number to rise. He repeats that although he did try to work with the applicants who were “caught out in transition” and unsuccessfully appealed to the Department of Children in 2012 to provide a fund to help complete those cases, he believes that misinformation has been spread about Arc and its fees, and says that this has been unhelpful.

“There have been various accusations made against our agency and, certainly, some against me in terms of honesty and integrity and everything else, which is extremely unfortunate, and I’m not going to get into that now.”

During another interview at Arc’s offices, at Beacon Court in Sandyford in Dublin, Downer produces a folder of abusive emails and disparaging comments that he believes are tantamount to bullying and stalking. Asked why an applicant would characterise their interactions with Arc as being “held over a barrel”, he says he doesn’t know. “Some of it is unpalatable.”

Kiernan Gildea, the Adoption Authority of Ireland’s acting head, says representations were made to Arc so that anyone who sent their dossier to Anido before Ireland enacted the Hague convention would be charged a reduced fee. Anyone who sent their paperwork to Anido after November 1st, 2010, he adds, did so outside of the terms of the Hague convention.

Applicants argue that this is untrue, contending that going through an accredited agency such as Anido is legally compliant with the convention, and that the adoption authority did not tell applicants they could no longer submit paperwork this way until December 2011. The authority has recently commissioned a standard report on Arc’s financial processes. The results were considered at a meeting last week, but Gildea said he could not comment on the outcome, as Arc had not yet received that information.

Holding out hope

John and Martina Cummins are holding out hope that some resolution can be reached, realistically, in the next two years. They received their declaration of eligibility and suitability in 2011 and now must go through the entire application process for a new one, including background checks and assessment by a social worker. They are thankful that their circumstances have not changed but are uncertain whether their patience will prove fruitful.

“We’re sitting on our hands, and it’s getting to the stage where we wonder, Is this worth it? We’ve been at this for years and don’t seem to be making any headway,” says Cummins. “Instead of taking our full allocation of holidays each year we would hold back maybe four days, so it would build up and we’d both have about a month off around the adoption, to spend all our time with the child. But that’s gone out the window. I’ve got holidays backed up. Even 12 months ago you thought, We must be getting close this year. Now it feels further away than it ever has been.”