Dr. Geoffrey Shannon:

On behalf of the adoption authority, I am very grateful for the opportunity of addressing the committee this morning with my colleague, Ms Patricia Carey, who is the chief executive officer of the authority.

We would like to start by warmly welcoming the introduction of the heads of Bill. It is great to have the opportunity to comment on the heads at this stage. We would like to be associated with the comments congratulating the Minister, Deputy Reilly, on introducing this important legislation.

I do not intend to go through the detail of the paper I prepared for the committee. However, members will see from that paper the complexities in this area of the law. I will provide a layman's guide to what I believe the Bill contains and I hope that will be of assistance to members.

Essentially the Bill provides access to adoption information on the basis of a presumption in favour of disclosing information, about which profound legal issues are at stake. There is the right to identity on the one hand and the right to privacy on the other. Those respective rights need to be balanced in any legislation that is framed. Head 13 attempts to deal with the issues of retrospectivity and head 14 attempts to deal with the future.

Under the current law there is no comprehensive statutory right to information, which is an issue that should concern everybody. Within the current practice there is no disclosure of information without the consent of the birth mother. In an age when we have ratified several international instruments, that fails to accommodate the right of the child, in particular, to identity. I am conscious that much of this legislation focuses on adult adoptees. In the midst of this we can also forget that a core right a child has is the right to know who he or she is. I would like to put back at the centre of this discussion the right of every child to know his or her origins and we need to ensure this becomes a core principle of Irish law.

In 2005 the national adoption contact preference register was established. I am delighted to see Ms Susan Lohan from the Adoption Rights Alliance present today. She has been a major campaigner in this area. Ms Lohan and I share in common many areas of interest in how we can move forward. Ms Lohan has legitimately criticised the national adoption contact preference register as being insufficient, and I agree with those comments. While it is very useful for those who agree to share their information on consent, it does not provide relief where no consent exists. In 2005 we placed the national adoption contact preference register in what is effectively an administrative scheme, but we never dealt with the big challenging issue of reconciling the competing rights to identity and to information.

Under section 59 of the Adoption Act 2010 one loses all parental rights and is freed from all parental duties once the adoption order is granted. That is essentially where the problem lies. That necessitates having two separate regimes. There is the past and unfortunately we cannot rewrite the past. Equally we cannot become paralysed by the past, which is what seems to have happened. There seems to be a paralysis over the existence of this provision. That is why I welcome the draft legislation. We now need to move forward. If we have a system where a person loses all parental rights and is freed from all parental duties, does that sunder the right of the adult adoptee to know his or her identity?

Essentially the Bill provides for the establishment of the adoption information register. The Bill will provide the information required to apply for a birth certificate subject to certain conditions. The conditions are twofold. First will be an awareness campaign for a period of 12 months and second will be signing a statutory declaration. That regime has been devised to deal with the competing rights of the right to identity on the one hand and the right to privacy on the other hand. That is reflected in head 13 of the draft Bill.

The second regime is what happens to adoptions effected after the commencement of the Bill, which is reflected in head 14. That provides that section 58 of the Adoption Act 2010 will be amended such that the parental link between the natural parents and the adopted child is not severed for the purpose of identity information to the adopted person. Essentially there will no longer be a veto on the disclosure of information. The presumption will be in favour of disclosure and that presumption can only be displaced for compelling reasons. I read with interest the transcript from last week's hearing on the issue. I am quite happy people had questions around the issue of compelling reasons and requested an insight as to what that might amount to.

On the role of the Adoption Authority of Ireland, it will be responsible for collecting, preserving and safeguarding adoption records.

There has been much comment on the legal issues. We need to ask where we stand in Ireland in 2015 on the right to identity. The courts are placing increasing emphasis on the importance of the right to identity. Many members will be familiar with the surrogacy case that came before the Supreme Court. In particular, Mr. Justice McMenamin placed strong emphasis on the importance of the right to identity. We have recently passed and ratified children's rights in referendum. Article 42A recognises and affirms the natural and imprescriptible rights of children and protects and vindicates those rights. A core right for a child has to be the right to identity. That is hugely important in refocusing the debate on ensuring that we tell children that they have this right. Legislators have an obligation to ensure it is not just about the adults but is also about children. There may well come a time when children reaching 16 or 17 might have the right to seek information in respect of their identity. That is the case in the UK at the moment and we should not lose sight of it.

There has been much discussion on the decision in the case of I. O'T v. B. The case of I. O'T v. B did not deal with adoption and in my opinion too much reliance has been placed on this for all the wrong reasons. I take a different view on the decision in the case of I. O'T v. B than most people do. It is of very limited value as a precedent because it dealt with, what is called, de factoadoption - in fact it was not adoption at all. I suppose one could distil from that certain views that might be adopted. The comments made in that were what are called arbiter comments. In other words judges can make comments that are not directly relevant to an individual case or by-the-way comments that are called arbiter comments and that is what happened in that case.

A possible interpretation of the judgment in the case of I. O'T v. B is that the right to information about a child's identity is a freestanding entitlement that does not depend on the existence or necessarily the enforcement of the maintenance of a relationship between parent and child. That is worth considering when it comes to legislating. This judgment has been held up as a roadblock to legislating in this area. I take the view that it should not present a roadblock and it is not of huge relevance in the area.

What is of relevance - this is why I support the legislation - is that it attempts to deal with the past and the future in a manner that balances competing rights. It refers to no right being absolute and stipulates that nobody has an unqualified right, which is important, and that those who undertake that balancing exercise are subject to independent scrutiny. In any system it is important that independent scrutiny occurs. It is very much to be doubted that the courts will second-guess legislative judgments.

The court's role is to retain constitutional responsibility for supervising the balance to be struck by the Oireachtas with regard to the two competing rights, namely, the right to identity and the right to information. In all the Supreme Court judgments that have been handed down in this area and the tangential area, it has been stated no one right should be given automatic priority over others. I have cited two interesting cases in my submission, namely, the leading adoption judgment of N. v. the Health Service Executive and the I. O'T. v. B. case. In both cases, it is clear the courts are saying there has to be a process and that this process must be subject to independent scrutiny.

Another issue which has arisen is that one cannot deal with the past. There is a problem with what is called retrospectivity. I dispute that fact because of what the courts have stated. In the submission I made to the committee on behalf of the authority, I have cited the judgment of Mr. Justice Clarke in the case of Cork County Council v. Slattery, in which the current sitting Supreme Court judge stated there is no prohibition on retrospective civil legislation. Given that one is not altering the legal character of the past adoption, so long as one engages in a balancing exercise there is no prohibition on dealing with situations retrospectively. In layman's terms, the entire narrative states retrospectivity should not be a roadblock to dealing with past cases, including historic cases.

With regard to the international position, there are three international instruments in this area. The first is the 1993 Hague Convention. Ireland ratified that convention and incorporated it into domestic law, as part of the Adoption Act 2010, on 1 November 2010. Section 9 of that Act makes the convention part of our domestic law. It is very interesting to examine this. Under the new Bill, it is envisaged that Tusla will provide an applicant with information on his or her adoption where such information is held by the Adoption Authority or Tusla, or both. Many members will find interesting the fact that, in terms of my reading of the provision, it appears the consent of the birth mother is not required, strictly speaking, before the disclosure of adoption information can be made in the context of intra-country adoption, which seems to be a more generous approach than exists in respect of our domestic adoption. However, it is very clear in the Hague Convention that it is a matter for each member state to determine how to deal with the balancing of the two competing rights. That is very clearly articulated in Article 30 of the 1993 convention.

The UN Convention on the Rights of the Child is a standard-setter. Many members may ask why I am opening this matter to them this morning. It is a very useful framework for legislating. This is an opportunity for me to welcome the decision made yesterday by the Minister for Children and Youth Affairs and to acknowledge the work of Senator van Turnhout on the banning of corporal punishment. Corporal punishment breaches a core right under the UN Convention on the Rights of the Child and that is why it is a standard-setter. It provides us with a framework in which we can legislate. There are two core rights, referred to in articles 7 and 8. All emphasise the importance of the right to identity for a child, including when the child progresses into adulthood. Interestingly, there are no guidelines on the balancing of competing rights. While many would refer to the UN Convention on the Rights of the Child, there is not a great deal of guidance in it on how to achieve the balance.

The third instrument that is worthy of consideration is the European Convention on Human Rights, which has been incorporated into Irish law at a sub- constitutional level. The key provision is Article 8, which concerns the right to respect for private and family life. In this regard, there is a decision, similar to that in the I. O'T. v. B. case, called the Odièvre decision, which again has been misinterpreted. With a wafer-thin majority, the court decided not to disclose information. That case can be distinguished in that it dealt with anonymous births. It was a peculiar case decided on its particular facts, and it has been overtaken by a subsequent case, mentioned on page 15 of my submission, called Godelli v. Italy. In the latter, there was a blanket ban on recovering information, including non-identifying information. The European Court of Human Rights felt that it breached Article 8 of the European Convention on Human Rights. Machinery to balance competing rights is required. The legislation provides for it. One needs a systematic and ordered system for ensuring people understand the decisions taken when those rights are balanced. A system of automatic non-disclosure without independent scrutiny will not be compliant with the European Convention on Human Rights. The legislation, as currently drafted, is compliant because it provides a mechanism to ensure that one can appeal a decision in respect of how those rights were balanced. That the legislation has a strong presumption in favour of disclosure of information is very much to be welcomed. It is very clearly in line with all the international instruments, namely, Article 30 of the 1993 Hague Convention, articles 7 and 8 of the UN Convention on the Rights of the Child, and Article 8 of the European Convention on Human Rights.

The authority and I believe the right to identity is a basic human right. We have got to start from that perspective. We have been paralysed by the past. This paralysis has acted as a roadblock to legislating for the right to identity. How many children have grown into adulthood since we first started discussing this issue? I welcome the fact that the Minister is, for the first time in robust legislation, dealing with this forgotten part of adoption.