Dr. Fergus Ryan:

First, I thank the committee for inviting me to appear before it. I broadly welcome the scheme and commend the Minister and his officials on their diligence and skill. This is a long overdue initiative. As far back as 1997, 18 years ago, The Irish Timesreported that plans for legislation in this area were well advanced and were a priority. I have submitted a more detailed written analysis to the committee which I hope will be of some assistance. Today, however, I wish to highlight, briefly, a few key points. In this process it is crucial that we listen to and learn from the experiences of adopted people, natural parents and adoptive parents and that we endeavour to address their needs sensitively and respectfully. The dignity of all those affected by adoption should be central to any analysis of proposed reforms.

The right to access information on one's identity and origins is, while not absolute, a vital right, recognised by the UN Convention on the Rights of the Child, the European Convention on Human Rights and the Constitution. While the right to privacy is also an important and relevant factor it is not as Dr. Conor O'Mahony has very ably explained, a trump card. In seeking to vindicate the right to identity, the process that we choose should be as transparent, as clear and as straightforward as possible, for those seeking information. Admittedly, the scheme is lengthy and complex as are the issues that arise. This may be unavoidable but if there is scope for making things simpler in this scheme, that should be explored. Unnecessary complication and bureaucratic hoops should be avoided where possible. It is worth noting that the Seanad Bill on this point was 20 pages long while this is over 200 pages long. There may be scope for making this simpler and more straightforward.

I welcome proposals to gather and consolidate information on all past and future adoptions, making the Adoption Authority the central repository for all adoption records. I commend also the proactive role envisaged for the information and tracing service to be operated by Tusla. Given that tens of thousands of people may be affected, the distinct risk arises that under-funded services will be overwhelmed, unable to cope and subject to long delays. As other contributors have already said - I concur in this regard - it is vitally important that both the Adoption Authority and Tusla are properly resourced to carry out their new functions.

While the scheme leans in favour of granting information needed to source a birth certificate there are two significant caveats. First, that information needed to obtain a birth certificate may be withheld where the agency believes there are compelling to justify denying such information; as others have said, I would welcome some clarity, greater specificity, on what are compelling reasons. Second, information necessary to obtain a birth certificate is generally made available, subject to the adopted person signing a statutory declaration, promising that he or she will not attempt to make contact with the natural parents. The underlying concern here is to protect the privacy of natural parents. This is both constitutionally pertinent and understandable, nonetheless these measures are somewhat blunt and insensitive. They imply that some adopted people present a danger to others or are likely to force unwanted contact. On the other hand, birth parents may, understandably, worry about the consequences for their private and family life. It is submitted that gentler and more sensitive measures may be more appropriate and the recommendation already made that counselling or other supports would address concerns, just as effectively, to ensure that no contract preferences would be respected. I point the committee to a possible example of a more sensitive approach being taken in the Seanad Adoption (Identity and Information) Bill 2004, in sections 8 and 12 which would require those seeking information to attend a counselling meeting at which concerns around privacy are discussed. That may be a more sensitive way of dealing with this issue.

In a number of places in the scheme, provision is made for appeals to be taken and questions of law to be referred to the High Court. There may well be solid reasons for choosing the High Court but I suggest a speedier, cheaper and less formal access to justice may be facilitated by also allowing appeals in the Circuit Court. That may be worth exploring. It has been noted already that the timeframe for appeals proposed in the scheme, which is 14 days from notification of the agency's decision, is too short and should be extend. I agree with that view.

The definition of relative in the scheme does not include the cohabitant of a person which is strange given that the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 gives a status to cohabitants. Moreover, it appears to exclude the civil partner or cohabitant of a parent of a person and I submit, therefore, that the definition of relative might be expanded to include these persons.

It is welcome also to see provisions addressing the right to information for those who were wrongfully registered as the children of people who are not their natural parents, though I point out that it may ultimately prove difficult in such cases to obtain accurate information. There are similar concerns in relation to natural fathers in respect of whom records may be unavailable in most cases.

The natural father will not be named on a birth certificate, making it difficult to get information on him. Dr. Conor O’Mahony has addressed effectively the constitutional issues in this context. I concur wholeheartedly with his cogent and learned analysis.

When considering the weight to be attached to privacy, it is important to note that many birth mothers in the past were not guaranteed privacy, so much as sworn to confidentiality. This does not negate the birth mother’s current right to privacy which must be respected. While that privacy right is one important factor to be balanced with all of the others, it is not a trump card.

It is also important to ensure the justifiable concern for the privacy of birth mothers is not exploited to keep past wrongdoings under wraps. Genuine concerns about privacy should not be allowed to be hijacked in the interests of maintaining the shroud of secrecy or keeping a lid on past and, in many cases, illegal adoption practices. The dignity of survivors demands very strongly that these wrongs be brought to light and confronted honestly and openly.