Oireachtas Joint and Select Committees
Thursday, 8 October 2015
Joint Oireachtas Committee on Health and Children
General Scheme of Adoption (Information and Tracing) Bill 2015: Department of Children and Youth Affairs
We will now deal with the adoption (information and tracing) Bill 2015. The Bill has been sent to us for pre-legislative scrutiny and we will now meet the representative of the Department and Children and Youth Affairs. I welcome Ms Noreen Leahy, principal officer in the adoption policy unit, and Ms Anne Marie Kilkenny, assistant principal officer.
This is the opening session of the committee's work on the pre-legislative scrutiny of the Bill. It is an opportunity for us to hear from and invite those interested in the issue and for them to have their say on this important, sensitive and long overdue legislation. We all welcome the publication of the heads of the Bill. Over the next number of weeks the committee will hold further hearings to consider the draft legislation and will meet a variety of stakeholders with different views. The Minister for Children and Youth Affairs, Deputy James Reilly, will come before the committee in the third session, on 22 October, and will respond in detail on the issues that have been raised during our hearings and discussion. I hope our scrutiny will be of use and benefit to the Department and also to those interested in this important and complex legislation.
I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given, and they are asked to respect the parliamentary practice to the effect that, where possible, they should not comment, criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.
Ms Noreen Leahy:
I thank the joint committee and its Chairman, Deputy Buttimer, for providing the Department of Children and Youth Affairs with the opportunity to brief the committee on the heads of the adoption (information and tracing) Bill 2015. The Minister's overall policy objective for this legislation has been to provide access to as much information as possible to adopted persons within constitutional parameters. A particular challenge was faced in the case of adoptions in the past in reconciling an adopted person's request for information about his or her identity with the constitutional right to privacy of his or her birth parent.
I will now turn to the main features of the Bill. The heads of the Bill provide for the establishment of the adoption information register on a statutory basis. The register will be a gateway for those seeking adoption information and tracing services. It will allow an individual to indicate his or her preference regarding contact or the sharing of information or both. Tusla, the Child and Family Agency, will be responsible for the operation of the register and the provision of information and tracing services. Tusla will facilitate and support contact between parties, if desired. Support and guidance will be offered to all persons who request contact or the sharing of information or both. The Adoption Authority of Ireland will be responsible for collecting, restoring, preserving and safekeeping adoption records for all domestic and intercountry adoptions, including information relating to informal adoptions and incorrect birth registrations. The heads of the Bill set out the information that must be retained by the Adoption Authority of Ireland for future adoptions and, in so far as it is available, for past domestic and intercountry adoptions, informal adoptions and incorrect birth registrations.
On the information to be provided for future adoptions, for all adoptions effected after the commencement of this Bill, provision is made for Tusla to provide a copy of a birth certificate, an adoption order and other information to an adopted person following an application by the adopted person. Birth parents will be notified of the proposed release of this information to applicants at least 12 weeks prior to the release of such information. There is a presumption in favour of the disclosure of information unless there are compelling reasons, such as may endanger the life of a person, for the non-disclosure of adoption information. Tusla will consider same and decide if the information is to be disclosed. The birth parents and adoptive parents will be advised of these arrangements by Tusla and the Adoption Authority of Ireland, as appropriate, during the assessment and the adoption process.
Moving on to information to be provided for past adoptions, the right to privacy has been recognised by the courts as one of the unspecified personal rights protected by Article 40.3 of the Constitution of Ireland. A particular challenge was faced in reconciling an adopted person's request for information about his or her identity with the right to privacy of his or her birth parents. One key provision in the Bill is to give an adopted person aged 18 or over, who was adopted prior to its commencement, a statutory entitlement to the information required to apply for his or her birth certificate. The adopted person will be asked to make a statutory declaration agreeing not to contact the birth parent. The inclusion of provisions regarding a statutory declaration were developed to provide for a balancing of the rights of adopted persons to information about their identity and the birth parents' right to privacy. There, of course, will be no requirement for an adopted person to sign a statutory declaration where birth parents have indicated a preference for contact or have consented to the release of the information or where it has been established the birth parents are deceased. At all stages of the process, both the birth parent and the adopted person will be offered appropriate support and guidance by a social worker.
The heads of the Bill also provide that information that relates solely to an adopted person, such as information about time spent in a nursery or early personal medical history, will be provided to the adopted person as soon as possible. In addition, information that focuses on the adopted person but which may incidentally include non-identifying information about his or her birth parents, such as personal history or family background, also can be provided. In releasing such information, Tusla will ensure the birth parents' identity or contact details or both are not disclosed. The heads of the Bill provide that additional identifying information will be disclosed to an adopted person with the consent of the birth parent concerned. This includes specific information requested by the adopted person and other information that could identify birth parents. The heads also provide for circumstances in which this information can be provided without consent such as where, following reasonable steps having taken by Tusla, the person cannot be located or where the person to whom the information relates is deceased. The heads of Bill also provides for a court procedure to dispense with consent where the person concerned cannot give consent because of incapacity to so do. In addition, provision will be made for an adopted person or a birth parent who is not satisfied with the outcome of the process to appeal to the court.
As for the awareness campaign, there will be a period of one year after commencement before an adopted person will have a statutory entitlement to the information required to apply for his or her birth certificate. However, it should be noted that during this time, this information and any other information which might identify a birth parent will be provided to an adopted person where the birth parent consents or where the birth parent is deceased. During this initial period, there will be an extensive high-level information campaign to publicise the provisions of the legislation and to encourage adopted persons and birth parents to enter their details on the adoption information register. They also will be advised to engage with Tusla's information and tracing services if they are considering sharing information or having contact or both with a person from whom they were separated as a result of an adoption. The campaign also will outline that an adopted person aged 18 years or more will be entitled to receive the information required to apply for his or her birth certificate subject to the adopted person signing a statutory declaration. Birth parents also will be made aware they may indicate a preference of no contact at present on the adoption information register where they do not wish to have contact with the adopted person present.
The heads of the Bill provide that Tusla will provide a person whose name is entered on the register of intercountry adoptions with all information held on record where Tusla has been given approval by the authority to disclose the information to the applicant. Where the adopted person seeks additional information, the authority may seek this from the central authority of the country of origin. Birth parents of children who are subject to intercountry adoptions also may avail of information and tracing services from Tusla. Provision is made in the heads of the Bill for persons who were the subject of informal adoptions and incorrect registrations to apply to have their details entered on the adoption information register to avail of information and tracing services. Informal adoptions include persons in a long-term family care arrangement where a child was in the custody of a person other than his or her parent or guardian and where no adoption order was effected. Incorrect registrations include persons who were the subject of an incorrect registration of a birth under the Civil Registration Acts for the purpose of registering as a parent a person who was not a parent of that child. The heads of the Bill also provide that birth parents of people who were subject to such arrangements may apply for information in the same way. The heads of the Bill provide that persons who are subject to these arrangements can be provided with information, where available, in a similar manner to the provision of information to adopted persons whose adoption was effected prior to commencement. However, it should be noted that many of these arrangements operated in conditions of great secrecy and there rarely were any contemporary records of these events. In such cases, there may be very little information available or very limited information, if at all. The heads of the Bill also provide for the sharing of information about a child who was adopted between birth parents and adoptive parents, where both parties agree. Once again, I thank members for the opportunity to brief the joint committee today. I hope the information and briefing material provided has been of assistance to the joint committee and I am happy to address any questions members may have.
She will. I thank the witnesses for all the work to get the legislation to this stage. It is difficult when we are on the eve of whenever the election will be. I had really hoped this measure could have gone through but at least the work members will do in these hearings should mean it will get an early start in the lifetime of the next Government. I have a few issues on which I seek to ascertain the underlying thinking. Obviously, this is an issue on which I have worked to a considerable extent, given that I worked with Senator Power on a Bill on this issue that has gone through all Stages in the Seanad. I believe we have gone further on the issue of the right to identity and while I understand the Department's concerns regarding the Constitution, I do not agree. I am sure this is a matter the joint committee will explore in its hearings but I do not agree with the consensus on the Constitution regarding the right to privacy.
It has not been fully tested in the courts. We, as legislators, must ensure we put into legislation what is right.
One issue I have is what will constitute a "compelling reason". I have found it difficult to understand what could be a compelling reason. Do the witnesses have an example of a compelling reason? I feel very strongly about it. I would start from the position that everybody has a right to identity. We have stigmatised adoption beyond belief, which is not the case in other jurisdictions such as the UK. We need to unpack the issue of the right to identity. While we are examining the historic situation, a child being adopted today still does not have the right to discover his or her identity when he or she turns 18. It is very wrong and shows how far we still have to go.
Wearing my hobby hat of researching family history, I can find most birth records if somebody has a name that is not very common or usual. If I have money, I can go to the General Register Office and get as many birth certificates as I want and turn up on as many doorsteps as I wish. Nobody wants adopted people to be forced to turn up on doorsteps and ask people if there is a chance they might be their parents, based only on birth dates. We want information and tracing in order to allow people to make contact. Nobody I have talked to who has the hunger for their identity wants to turn up on somebody's doorstep and embarrass them. They are looking to fill the empty gap they have, to be able to know who they are and where they came from. It is an issue we still have to explore.
I also want to know about the records that are held, the processes there will be, and how many records have been handed over so far. Do we know how many records have been handed over? When former Senator Martin McAleese was writing the report on the Magdalen laundries, the different charities gave him records, but he handed them back. How is the State collecting those records, especially records from outside the State? Many children went to the US. One of my greatest privileges during this term as a Senator was to meet Philomena Lee, whose child was sent to America for a "better life". This brings me to the issue of consent. We have over-interpreted what is meant by consent. Anybody who has read Philomena Lee's book or any of the forms will know that what mothers signed to was not consent. It was not consent when they gave up those children. While we have the idea that we are basing everything on the right to privacy, they never agreed to it. We must be very careful how we interpret consent.
I have a further issue, which I will explore in the Bill and which I tried to bring up under the Civil Registration Bill. It relates to the birth certificates we produce now. A parent of an adopted child can get a clean birth certificate which in no way identifies that the child is adopted. While it is a side issue to the Bill, it is very relevant to the issue and I will raise it. On the statutory declarations, Claire McGettrick from the Adoption Rights Alliance said, "‘It is important to separate the issues of information and tracing; adopted people are seeking a statutory right to information as opposed to a statutory right to a relationship with their natural mothers". This statutory right to information and tracing is what we are all seeking and what we want to experience in the Bill.
I commend the Department officials on coming forward on the Bill and trying to push it as far as they can. I hope, in the hearings, we will try to push it further. I have met so many people who are seeking their identities, including children who were given up for adoption and parents - mainly mothers but some fathers - who gave, or were forced to give up, their children for adoption, or whose children were given up for adoption unbeknown to them. The right to identity is very clearly with the young person and child and I will seek to ensure that we balance the rights. However, in balancing rights, we need to ensure we do not overinflate the right to privacy. While I am very respectful of people's privacy, a right to identity is central to the UN Convention on the Rights of the Child. This is what we will be working towards in the hearings.
I thank the Department officials for coming here and giving an overview of this important Bill. All parties have been seeking it during recent years, and it is welcome that it has reached this stage and that we have an opportunity to tease out some of the issues. The kernel of the issue is that for future adoptions we are creating a template and there will be no issue regarding right to identity. Once we set it down, anybody who enters the adoption process will know exactly what they are getting into. The source of the uncertainty and the reason it has taken so long to come to this stage is the issue of retrospective adoptions and the need to bring forward a proposal that will not fly in the face of the Constitution. One of a person's fundamental rights is the right to his or her identity, and nobody can argue with it.
Do the signed declarations apply to an adopted person? Do the declarations state that, following the 12 month period, an adopted person will not contact his or her biological parent if the biological parent has explicitly said he or she will not make contact? Where the parent and child want to meet and have contact, I presume there will be no objection or issue. It is only trying to bring forward a proposal where there is an expressed wish by one party that he or she does not wish to be contacted by the other party. Could the officials clarify this? I have some concerns about the 12 month lead in. For many people, this is a time sensitive issue, given that their cases may date back to the 1930s and even earlier. Time is of the essence in terms of seeking their identities and having an opportunity for contact, if both parties wish it. Did the officials consider a shorter lead-in time period, perhaps six months, with a more intensive and extensive media campaign?
Regarding the implementation of the legislation, Tusla's capacity to manage it will be crucial. It will put considerable additional pressure on Tusla. People who have a much greater knowledge of the area than I have told me that, even with the restricted information and tracing service available in Tusla, some people are waiting up to three years to have their cases heard. If this is the case, while it is all very well bringing in the legislation, if we do not have the means to put it into effect, we will have problems.
I thank the witnesses for a comprehensive presentation. Has the information campaign been planned already and what form will it take? One of the major contacts in healthcare is the GP service. Is there a format set out for how the information will be disseminated? I was surprised, a number of years ago, to learn that maternity hospitals do not seek identification from their patients. A person can check into a maternity hospital under an assumed name.
I have heard of instances when that has occurred. My understanding is that, to date, maternity hospitals still do not have a strict and common code across all 19 maternity units nationally regarding proof of identity being furnished. Going back over the years, it was an issue that some adoptions took place via informal arrangements. I wonder if that issue has been examined. I heard that as recently as the last six months that someone was in a hospital where a patient had two or three medical cards under different names. Ensuring that proper identification is furnished in maternity units is also going to be an issue when we have people coming in from abroad. Has that issue ever been looked at? It was an issue I remember having to deal with quite a number of years ago and things do not seem to have changed in any way.
Like Senator van Turnhout, I welcome the fact that we are at the point where heads of a Bill are before us. It is an issue I have been working on for some time both as a Member of the Oireachtas and as an adopted person myself. It is something that has been promised for a long time and finally we are at the start of a legislative process at least. It is, of course, positive. I also welcome the fact that the Department has indicated that there will be a somewhat proactive tracing service and advertising campaigns to back up the legislation and I would like more detail on those matters. I also welcome the fact that heads of the Bill before us go further and are more positive than the Government had been indicating even up to quite recently. When the Minister, Deputy Reilly, was in the Seanad to discuss the Bill Senator van Turnhout and I put forward earlier this year, the position he outlined from a Government perspective was much more conservative. People who were adopted in the past would not have a right to information, whereas those adopted in the future would. It would not address the 50,000 to 60,000 of us adopted in the past. There would be no point to that really because there are very few domestic adoptions in Ireland now. It really is about redress for adopted people who were separated from their parents and for women who were forced to separate from their children during a really dark part of our past. We have an opportunity now to get it right for all of those people and to do the humane and generous thing. We must be generous and ambitious in doing this because it means so much to people. We must go as far as possible.
In that context, I have concerns along the lines of those raised by Senator van Turnhout with regard to what is meant by the term "compelling reasons". I am nervous about that in particular because I do not accept that there are any reasons an adopted person should be denied his or her birth certificate. I accept that a natural parent's current contact details should only be released with that person's consent, but we must separate the two issues of identity and contact. While it is fair enough not to give out someone's current contact details, I do not accept that there are any situations in which the adopted person should be refused access to the basic information in his or her birth certificate. In trying to balance the two, one right is rendering the other at nil. That is not acceptable. When the Government announced the Bill earlier in the summer, it was stated that the circumstances would be limited, but naturally there are concerns. I have spoken to some legal people and I understand the committee will hear from Dr. Conor O'Mahony and Dr. Fergus Ryan about the matter. There are concerns among the legal community that this could open the door to legal challenges in that we will really only know what constitutes a compelling reason following a court case. That is not acceptable. As such, I will be arguing that the clause should be removed. I hope that in coming before the committee the officials and the Minister have an open mind in this area in terms of listening. Obviously, they have one set of advice on which they are acting and of course the Attorney General has a role to play. However, I hope the officials will keep an open mind in listening to alternative views on prospective legal balances being put forward by Dr. O'Mahony, Dr. Ryan and others.
The statutory declaration has been criticised by groups representing both natural parents and adopted people. The First Mothers group, which is due to come before the committee, has criticised this just as strongly as those representing adopted persons. It seems to reflect a negative assumption that adoptees are irrational and insensitive and that we want to enforce some kind of pain or inconvenience on our natural parents, which could not be further from the truth. When I was looking for my mother and preparing for us to meet, I was more conscious of her needs and how it would affect her family and my birth siblings who did not know about me yet and how we would figure that out. I was really concerned about the memories it would bring back for her of a difficult time in her life. I know from talking to other adopted people that they feel the same. It seems to me to be unnecessary and offensive. When one approaches this as a legal and legislative issue, one needs to be conscious that for many it is a very sensitive human issue. That is why people are so upset by the statutory declaration. There is no doubt that there will be situations where an adopted person will wish to have contact while the natural parent will not. There will also be situations where a natural parent is reaching out and the adoptee is not interested. It is my strong personal view that in the vast majority of those cases people may be disappointed but they will accept the situation. They might hope it will change at some point, which often happens. Many natural mothers decide after a spouse or other person they have not told has passed away that they want to have contact at that later point. Those options should always be open.
We need to start with the majority of cases and legislate for those. In the majority of cases, there will not be a problem and we can let our other law look after the rest. In relation to any form of human behaviour, whether it is adopted people or others, the potential arises for harassment or situations where people do not respect boundaries. However, we have existing laws to deal with that and, as such, I do not know why special provisions are needed in this case. As Senator van Turnhout already pointed out, the Bill will make unwanted contact less likely. The unfortunate thing currently is that it is very difficult to find information oneself, but it is possible. As a result of the fact that there is no intermediary, the only way people can know if contacted is welcome is to reach out and ask. That is not ideal. Given that the Bill will make that less likely, let us assume that for most this will be a positive experience, reduce the likelihood of unwanted contacted and that existing legislation can deal with any difficulties which arise.
Resources will be crucial. It is extremely important to ensure that the necessary counselling and support services are there for people and that there is no backlog. Deputy Robert Troy referred to the existing backlog in respect of social worker appointments. We need to ensure that people who go through this process are not delayed because of a lack of resources but also that they have the supports they need. It is up to the person whether to engage in counselling or other services, but the offer should be there. It is very important that the contact letter that goes from Tusla to the adopted person or the parent is sensitively worded and is not - and I mean this in the nicest possible way - worded in Civil Service speak or legalese. It should not be technical as Government documents often are having been written by lawyers to cover all the technicalities. This is a personal issue and the letter asking people if they wish to have contact must be written in a sensitive, positive and supportive way and must make clear that no contact is not no contact for ever but rather just for the present. It will be very important to get all that right.
I have a question on illegal birth registrations. The witnesses stated that an effort will be made to bring records together to help establish what happened with illegal adoptions. The Department said in the opening statement that those who were illegally adopted can apply for information. What about those who do not know they are illegally adopted? This is a huge issue because people's birth records were falsified. Will the Department examine the records in a proactive manner? If ledgers or registers - such as, for example, that belonging to Nurse Doody which was uncovered some years ago - recording details of babies, their birth parents and, even though there were no real adoptions, their so-called adoptive parents are found, will the Department reach out, contact the people involved and make them aware of the situation in a sensitive way in order to help them to re-establish their links with their past?
Unfortunately, we do not know how many countless people there are across Ireland who do not even realise that they are adopted. I thank the Chairman and appreciate that he has given me a bit of time.
I am sorry I missed the presentation but I did read through it. I will read out head 11, as I want to ask a question on it. It states, "The agency shall offer support and guidance to a person whose name is entered on the register." What does that mean? Can Ms Leahy give us an example of what that support and guidance will be?
Under head 12 it states, "Fees will be chargeable for services provided under the legislation." How much will those fees be and how will they be calculated? Why should we be charging fees for people who have gone through enough in their lives and who should not be charged for seeking or obtaining proper information?
Ms Noreen Leahy:
I am delighted that there is such interest in the Bill. Starting off with the constitutional right to privacy, our legal advice is that the birth mother's right to privacy stems from Article 40.3 of the Constitution, which states:
1oThe State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
As I said earlier, this issue posed a particular challenge for us. We sought to identify a way of reconciling an adopted person's request for information about his or her identity with the right to privacy of the birth parents. We recognise that the birth certificate is an important piece of identifying information that is shared by the adopted person and his or her birth parents. It can be distinguished from other identifying information which can be more readily characterised as belonging to one or the other.
However, for the Bill to be legally sound it must include safeguards to protect the constitutional right to privacy. We consider that the safeguards proposed in the Bill, namely, the awareness campaign, the statutory declaration, the offer of support and guidance, and the possibility of an appeal to court, provide sufficient protection of the birth parents' constitutional right to privacy, and balance the right to identity information and to ensure that the birth parent has a right to be left alone. As Senator van Turnhout mentioned, we accept that we are providing a right to information, not a right to contact. That is very clear.
It is known that, in practice, adopted people do in fact respect the birth parents' right, but for the Bill to be legally sound we need to have measures in place. We need to have important safeguards in place. It is our view that the safeguards proposed in the Bill provide sufficient protection for the birth parents' constitutional right to privacy.
The Department did consider the Senator's Bill which was of great assistance in developing proposals. Our advice is that it was not legally sound and for that reason additional measures were put in place. Certainly, however, the work that was done was very valuable to us. I think we all share the same objective in ensuring that adopted people have access to as much information as possible about their identity and to get that information in a timely fashion.
We feel that the current proposal provides a practical, workable and fair balance between the adopted person's right to information about his or her identity and the birth parents' right to be left alone and to protect their privacy.
Compelling reasons were mentioned. As members of the committee know, the Bill operates on the basis of a presumption in favour of disclosing all available information required to apply for a birth certificate to people who were adopted before the Bill was commenced. As part of the safeguards, if a birth parent provides a compelling reason not to disclose this information, Tusla's information tracing services can refuse to release it. A working definition of "compelling reason" is that such as may endanger a person's life.
The Department fully recognises that this aspect of the proposed legislation requires further consideration. I am not surprised that it has been raised at the committee today. This is an area where we feel that deliberations and the views of the joint committee during the pre-legislative scrutiny can make a valuable input. The committee's views in this regard will really be welcomed and will be given close consideration.
Some 42,000 records on adoptions are held by the Adoption Authority of Ireland. Every legal adoption has a file record in the authority. The Department of Foreign Affairs and Trade has given the US records for US adoptions to the National Archives which now holds them. Tusla has the vast majority of records which are held in its care. A small number of adoption agencies still hold records. We are working on moving all those records. While the heads of the Bill provide that the Adoption Authority of Ireland will have ultimate control for managing and safeguarding the records in the long term, it is set out step by step how it would do so, and it will be a very organised and managed process.
The Department has established a joint adoption records working group with Tusla, the Adoption Authority of Ireland and ourselves. Therefore, work is commencing to bring adoption records together and to ensure that they are secured. The Department recognises how important these records are to individuals, but also for historical purposes. They are very significant records, so that work has commenced in advance of the legislation.
The Department will continue to consider resource implications.
Ms Noreen Leahy:
The Department will work with Tusla and the Adoption Authority of Ireland to establish what resources are required. We are aware that resources are required and our discussions with Tusla have already commenced as part of the Estimates process.
The awareness campaign will get under way as soon as the legislation is commenced and it will run for a period of one year. The reason for the one-year period is to ensure that everybody is made aware of the Bill's provisions. During that time an adopted person can still apply for and get his or her birth certificate, and it can be provided once there is consent or the birth parent is deceased. The awareness campaign is part of a package to secure the rights of all involved.
Senator Burke mentioned the registration of maternity hospitals, but that is not a matter for our Department and I would not be able to comment on that.
Some 25 years ago, the vast majority were Irish people whereas now we have a lot of different nationalities using our maternity services. I am saying that there has not been any comprehensive identification requirement put in place.
Ms Noreen Leahy:
The next question I will address relates to support and guidance provided for, as Deputy Byrne noted, in head 11 of the Bill. The adoption information register is a gateway to Tusla information and tracing services. Everybody affected by adoption who wants to share information and have contact with somebody separated from him or her by adoption needs to apply to have the details entered on the register. The Bill provides that Tusla will offer support and guidance to anyone whose details are entered on the register. That is also in head 11. The Bill also provides that Tusla will develop guidelines to be approved by the Minister on support and guidance that can be offered. The aim is that anyone who enters the details on the adoption information register can be offered support and guidance when and as they need it. Where it is considered appropriate and helpful, a social worker may refer a person to the HSE national counselling services.
There was another question regarding fees but that is a standard provision in the Bill. We spoke to Senator Burke during the break with respect to incorrect registrations and informal adoptions. The Bill provides that people were the subject of informal adoptions or a long-term family care arrangement where a child is in the custody of a person other than his or her parent or guardian, where no adoption order was effected. Wrongful registration relates to the incorrect registration of a birth under the Civil Registration Acts for the purpose of registering as a parent a person who is not a parent of that child. The people affected may apply to have the detail entered on the adoption information register to avail of information and tracing services. It will also provide the birth parents or people subject to these arrangements with the facility to apply to Tusla's information in the same way.
People who are the subject of these arrangements can be provided with information, where available, in a similar manner to the provision of information to adopted people whose adoption was effected prior to commencement. However, as I stated earlier, many of these arrangements operated in conditions of great secrecy and there were rarely any contemporary written records of these events. In such cases, there may be very limited information, if any. Members may appreciate that information such as a birth being incorrectly registered only arises when a person seeks information. The information, unfortunately, is very limited but we are aware of some cases and we have been looking at some of them to see if anything could be done.
We are well aware that adopted people and people in general respect each other's right to privacy. On the rare occasions when this is breached, it is often out of frustration about not having accessing to information. We note that in practice, starting a search often begins a process of breaking down the fears and worries often associated with what was, for most, a deeply painful experience in the past. The Bill aims to make it easier to get access to information and offer support, when needed, to address fears and hopefully make those first steps towards contact. Nonetheless, to ensure the Bill is legally sound, it must include safeguards to protect privacy. The publicity campaign that will accompany the establishment of the adoption information register will help everyone affected by adoption to understand the new legal framework and give them the opportunity to state their preferences in making contact. Encouraging people to join the register will also help make it easier to share information. If a birth parent has expressed a preference for contact, information can be released straight away. Otherwise, the information required to apply for a birth certificate is released to the adopted person on signing the statutory declaration agreeing not to contact the birth parent. It is not that this is forever; they are agreeing also to seek the assistance of Tusla's information and tracing services should there be a wish to make contact in the future. This is to ensure the process is managed. The birth parent and the adopted person will be offered appropriate support and guidance by a social worker.
The Department believes these elements provide sufficient privacy safeguards. It is our view that the proposal reconciles in a practical way adopted people's right to information with the right to be left alone for birth parents.
I welcome this overview and am delighted to hear it. I know that many people were hurt in the past and spent a lifetime looking for their identity. I welcome the work that has been done and I thank the witnesses.
We can explore the policy decisions made in the Bill as we go through the hearings and we will formulate our recommendations. Will the witness explain the nature of the US records handed over by the Department of Foreign Affairs and Trade to the National Archives? What is the status of them? Are they currently being handed over to the agency?
Where are they at present and how are we dealing with them? Also, where are the records that are held by St. Patrick's Guild? Are they being handed over to the State?
I have two additional questions. The witness said the birth certificate will be given out but other information will only be released with the consent of the natural parent. Is it only the birth certificate or the birth certificate and some other information that can be given without consent? For example, if the natural parent cannot be contacted, what information will the adoptive person receive? Will it be only the birth certificate or will it be other information on their early care records and their time in a mother and baby home? Will an adopted person have a right to know that they have siblings? Will they be told that when they are given their birth certificate or will they only be told if the natural parent consents to them having that information? Every person is entitled to know that they have siblings so perhaps the witness will clarify that.
With regard to the drafting of the Bill, there is speculation as to when the current Dáil will finish. While I do not care when the election is held from a personal point of view, as a politician I care a great deal about this legislation. It would be an awful shame if it was not completed. It is important that a Bill is drafted as soon as possible. I am not sure if we can get it through the Oireachtas but if we are still here until next February or March, we could. The witnesses have the heads of the Bill. Is the Bill being drafted now, or does that not happen until the committee's report is finished? I hope the drafting of the Bill could be worked on now and some sections might be changed on foot of feedback from the committee. To commence the drafting ab initioafter getting the feedback would delay the process. What is the current position on that? Obviously, the legislation is quite complicated so how long will it take to draft it?
I have a question about the fees again. I am sorry to harp on about this. I am reading the information, but perhaps I am reading it wrongly. No decision has been made about fees and what the amount will be. In many cases people who have gone through this dreadful process have been medical card holders. Will there be any type of waiver in the future or will we hear more about that as we get to the nitty-gritty parts of the Bill?
Ms Noreen Leahy:
To start with the nature of the records, the Department of Foreign Affairs and Trade has records relating to adoptions to the United States. I do not know exactly what they are, but we are informed it might be travel documents or passports for children who have been adopted to the United States. These records are currently held by the National Archives and they will come under the remit of the Act. In fact, the Department of Foreign Affairs and Trade was keen to meet with us to ensure its records were included under the Bill.
The process of transferring the records from St. Patrick's Guild is under way. There are ongoing discussions between ourselves, Tusla, St. Patrick's Guild and the authority. That forms part of the working group that has been commenced. It is working on that. The consideration on that is happening at present and we are trying to progress it as soon as possible.
With regard to other identifying information, one can separate the information into a number of categories. While they are not all mutually exclusive, I will explain each category. It does not necessarily mean that an adopted person will come in on the first day and look for particular information, but I will explain how each category works. The first piece of information is information about the adopted person. This would be the time in the early nursery, medical information from the time of the birth and any information that is held on record. The Bill provides that it can be provided immediately to the adopted person.
The next level of information, if one can call it that, will be non-identifying information about the adopted person but which incidentally has information about the parents. One is talking about family background and perhaps some information about the circumstances of the adoption. It is shared information, but it is information that is important to the adopted person. In practice, many people when they seek information get what I would call an early life story, in which they would be told some non-identifying information about their parents. We are providing in the Bill that this non-identifying information can be provided as soon as possible. Of course, one also must ensure that it does not identify the birth parents, but that can be provided.
The next level of information would be where a birth parent has sent information to be provided to their child who was adopted. For example, if there is some more recent medical history that a birth parent has provided to be given to their adopted child that can be provided, again in a non-identifying way. There is provision for that in the Bill.
Then we move into the realm of identifying information. The first level of this would be the information required to apply for a birth certificate, which obviously identifies the birth parents. This is provided immediately with the consent of the birth parent or if it is established that the birth parent cannot be traced or is deceased. Under the legislation there is the one year awareness campaign. Once that has concluded the information required to apply for a person's birth certificate can be provided on signing the statutory declaration.
The next level of information would be other identifying information. In this situation we are getting very close to somebody seeking contact with the birth parent. At this stage the adopted person will most likely have a good level of information, so it would be information about current contact details or particular questions on which an adopted person might want information, for example, medical history or a particular question they might wish to pose. Obviously the birth parent has to provide that information and they must consent. This is information that would not be available on record so they must consent. However, we would see that as getting very close to the stage of the adopted person seeking to initiate contact.
I hope I have explained that.
Ms Noreen Leahy:
The register is going to change. At present, one registers as an adopted person and says one is looking for siblings or for one's birth parent. Unless there is a match on the register nothing happens until either a sibling or a birth parent registers. Then the process commences.
The new register will be proactive. When an adopted person registers, and they are not seeking the birth certificate as they have gone through all of that process, and say they are looking for siblings, the trace for siblings will commence. Similarly, if a sibling enters the details on the register, a trace will commence for that adopted person. The register will facilitate contact for siblings.
Drafting has not yet commenced on the Bill. We are awaiting the report of the committee. At the same time we are considering how best to proceed, so that may change.
There has been no decision yet regarding fees. As I mentioned, it is a standard provision in the Bill. If we had not included it, we could be in trouble down the road, but there is no decision at present.