Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I have concerns as to how this will work in practice and what transparency, if any, there will be in the process. There is obviously an interaction between subsection (2) and subsection (3), in that under subsection (2) the Minister must within 12 weeks from the date on which notice was sent release to the child the information requested unless the relevant donor makes representations to the Minister setting out how it would affect the safety or well-being of the donor or the donor-conceived child or both. It seems to be an issue of safety or well-being. I do not know in legal terms what the phraseology "well-being" means. I have absolutely no idea what it means. The meaning of "safety" is reasonably clear but I do not know about "well-being". In the context of the donor, should the well-being solely relate to the donor or to anyone associated with the donor, such as children born to him by a partner, whose well-being needs to be considered in all of this? I simply do not know the answer to this.

Subsection (3) states the Minister shall consider these representations and if satisfied sufficient reasons exist to withhold the information, may do so. The words "well-being" and "sufficient reasons" are not adequate. As the child will be over 18, will the best interests principle be applicable or some other principle because the child at that point will be an adult? In the context of the adoption legislation and the difficulties around tracing origin and giving information, the paramount consideration when making a decision about revealing information was the welfare of the child. We now use, correctly, the formula "best interests".

These provisions are very unclear. It is not clear whether the Minister must state the reasons he or she makes a decision. There should be an obligation to expressly state what the reasons are. It is not clear procedurally. For example, if the donor objects, will the Minister have in front of him or her an application for information and a donor objection? Will any of the information contained in the objection be furnished to the now adult child? I do not know the answer to this. Will the child have an opportunity to respond? I am not clear on this. Will any fair procedures apply? I do not know.

In the context of an appeal there should be an obligation that the court knows the exact basis on which the Minister has withheld information. Presumably whatever document is furnished to the Minister by the donor will have to go to the court. We cannot have a court process where an adult child makes an application without the adult child knowing what it is he or she will confront. Some form of the objection will have to be given to the child, even if it is redacted to exclude the name and identity of the individual who has raised the objection. I am not sure why we are doing it in the Circuit Court, other than Circuit Court judges often behave better than some of our District Court judges do in giving time to deal with family cases and family issues. This is a serious practical problem but it is another day's issue. There are problems and this has not been fully thought out. There are difficulties with it.

The Minister must make a decision within 12 weeks and release the information. This cannot take place until a child is 18. If the notice goes out to an address of the donor that the donor gave at the time he donated sperm, who is to know whether the donor receives the information? Is there any provision to ensure this will be sent to an up-to-date address? There are issues which need to be teased out. I do not want to go on at any greater length, but I am not sure how well this has been thought out.

I am concerned about how legal costs will be dealt with. Let us say the Minister makes a decision to turn down an application. Subsection (3) states an appeal on notice to the Minister will be held otherwise than in public. Will notice to the Minister make the Minister a defendant in the proceedings? Let us presume I am a 20 year old who wants to obtain this information, and on the basis of something the donor has said, the Minister makes a decision I should not get information. Could I find myself in a Circuit Court application with the Minister represented by senior and junior counsel and either representing myself or being represented by a solicitor? What legal costs will arise in this process? This is an important issue.

The provision also states it will be heard otherwise than in public. This goes completely against the tenor and new ethos of the courts legislation enacted in 2013, under which family law cases or family applications can now be reported but anonymity of the people is preserved. There is a residual right on the court to exclude reportage in particular circumstances. The media have not taken it up in the manner I would have hoped they would, but some of what happens behind what used to be the closed doors of a family court is now getting some fresh air and there is some insight and limited transparency. There is no particular reason the same rule should not apply here. If there are issues around the circumstances in which information will be made available, and the anonymity of the parties needs to be preserved, information on the donor and information on birthdates should not come into the public domain, but the manner in which these applications are dealt with in the family courts and the family Circuit Court, which I presume will deal with it, should not be any more anonymous than any other type of family case. With transparency there is greater public insight into how the courts approach matters and greater insight by Members of the House as to whether laws are not working as anticipated and need to be changed. I query this.