Oireachtas Joint and Select Committees
Thursday, 5 November 2015
Joint Oireachtas Committee on Health and Children
General Scheme of Adoption (Information and Tracing) Bill 2015: Discussion (Resumed)
Apologies have been received from Deputies Peter Fitzpatrick, Caoimhghín Ó Caoláin, Billy Kelleher, Regina Doherty, Seamus Healy and Ciara Conway and Senator Imelda Henry.
I remind witnesses, members and those in the Visitors Gallery that it would be appreciated if mobile phones were turned off or left in airplane mode as they interfere with the broadcasting of the meeting.
I thank members for their attendance at and participation yesterday in the vigil that we held to mark International Pregnancy and Infant Loss Remembrance Day. I acknowledge that we were joined by a number of representatives of Féileacáin, but I also thank and acknowledge the support of Mr. Brian Roche, Now I Lay Me Down To Sleep, and a number of others, including specialist nursing staff, who were unable to be with us on 15 October. I thank them for their participation. I thank Deputy Sandra McLellan for her proposal and the secretariat, staff and members of the Committee on Procedure and Privileges for allowing us to organise what was a nice ceremony. I hope members, no matter who will be here in the future, will be the custodians of the event which was enhanced by the presence of a lovely little baby, which added to the occasion.
We resume our pre-legislative scrutiny of the general scheme of the Adoption (Information and Tracing) Bill 2015 at the request of the Department. This significant and important Bill is long overdue and deals with a sensitive issue. I thank all delegates for giving of their time to be with us. I thank them in advance for their presentations and the work put into them. I also welcome those in the Visitors Gallery and thank them for being here.
This is our final meeting in the pre-legislative scrutiny process. It is an opportunity to hear from a different set of delegates with different viewpoints, including adoptive parents, birth mothers, birth parents, foster parents, adoption agencies and other interested parties.
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 it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to 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 asked to respect the parliamentary practice to the effect that, where possible, they should not comment on, criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
This will, we hope, be a positive opportunity for delegates to have their voices heard. They are most welcome. I will begin by asking Ms Helen Gilmartin from the Adoptive Parents Association of Ireland to make her opening remarks.
Ms Helen Gilmartin:
I am the adoptive mother of four children, all of whom were adopted slightly older than usual at the ages of nine months, 11 months, two years and two and a half years. Of the three who have met their birth mothers, two have also met other members of their birth families, including siblings.
I have been working in the area of adoption counselling and support, etc., for almost 30 years. I was honorary secretary of the Adoptive Parents Association of Ireland, APAI, which campaigned for many years for the establishment of a contact register to enable adopted children and their birth mothers to make contact with each other, if that was what they wanted. We were part of the consultative group which culminated in the setting up of the national contact preference register in 2005. Many of the other members stepped back after that because they felt we had achieved quite a lot, but, as my contact information was included in leaflets and publications, including the Golden Pages, I left it there. As a result, my workload increased and multiplied exponentially because the greater the publicity, the more people were looking for information. As the APAI was listed under the letter "A" for adoption information and irrespective of what aspect was involved, they tended to telephone me. I continue to assist adopted persons and birth mothers, as well as some birth fathers, when they telephone or e-mail looking for information on how to make contact with a significant other person and I am delighted to do so. I do not work office hours, which means that I am available at all hours. I have received telephone calls from the United States and Australia at weird hours of the day and night, but I am delighted to be able to help and enjoy a great deal of success in what I do. I am sure committee members can accept that I have always been wholeheartedly in favour of the provision of information and tracing.
Counselling is a vital part of the process.
I find that when people are younger, aged 18 or 19, their immediate wish is to have instant access to everything. One has to talk them down from that and explain how they can go about it in the proper way. It is not a matter of just going on social media when they get a hint of their original birth name. That is one aspect that has to be considered in the giving of information. It is very easy for people to do a trace and they can be very successful. They can be so successful that they land on the wrong doorstep and approach the wrong person.
Will I refer to the heads of the Bill? Is that the mechanism?
Ms Helen Gilmartin:
Yes. Part 3, head 10 on the information and tracing service is the "Function of Agency to provide information and tracing service". The background is that the authority has operated the National Adoption Contact Preference Register since its establishment in 2005. This register is to be discontinued and a one-stop shop will be provided for in the Bill. The new register should not negate all that went before. There is much that should be salvaged from the contact register because it cost a lot to set up and maintain.
On head 11, the Adoption Information Register of Ireland which will be established is a new register and it is not proposed to transfer the existing entries to it. There are approximately 11,500 entries on the current register. Why not transfer the existing entries to the new register? The National Adoption Contact Preference Register was set up at a considerable financial cost to the State and great personal investment by the people who registered on it. Most of those who registered did so with the expectation of successful reunions or to exchange personal or medical information. Some indicated that they did not want contact at that time. Why should these original entries not migrate to the new register? It seems wasteful and dismissive of people's hopes when they responded to the publicity for the contact register and the leaflet drop to virtually every home in the country. The new register should encourage those already on it to reapply, particularly to update their original information. However, they should not have to reapply for inclusion on the new register when they have already applied to the old one. Why store this information with the authority when ideally it should be readily accessible to the new register? An adopted person can indicate that he or she does not want contact with his or her birth parent. I suggest that the phrase "at this time" or "at present" should be added to it. Otherwise it is like saying, "No way, this is it, this is my final answer". If somebody indicates that they do not want contact, whether they are the adopted person or the birth parent, it should have "at this time" added to it.
Head 12, on pages 48 and 49, provides for the "Allocation of monies for performance of functions by Agency and Authority and provision for charging fees". There are huge problems with proposals to charge people for anything to do with information and tracing. I am shocked at the implied threat to use the courts to recover unpaid fees. Instead of making it easier and more user friendly, this will arouse great resentment among those applicants seeking to learn something about their identities which were shrouded in secrecy through no fault of their own and, dare I say it, with the connivance of the State.
Head 13 concerns "Information for adopted person where adoption order made prior to commencement of Bill". For the foreseeable future, all applicants will have had their adoption order made prior to the commencement of this Bill. Ideally an adopted person will have counselling as soon as possible after applying to the agency for a search to be undertaken. Non-identifying information about the birth mother should not include any fine detail of her circumstances without her permission. Even without naming names, when people are given a few clues about siblings, for example, it is very exciting for people to go racing off to do their own research and find it all out themselves. Social media is the prime source and has produced hair-raising results. Unfortunately they might very successfully find the wrong person and, metaphorically speaking, land on the wrong doorstep. Even when the searcher turns up on the right doorstep, the person who is found without any warning can very easily respond negatively, denying ever having a baby and even slamming the door. It is hard to come back from that.
If the birth mother is located and engages with the agency and there is a prospect of reunion then it still should not be part of the agency's brief to pass on her personal information. Details of her marriage and other children or where she lives should be her choice to reveal when she wishes to and at her own pace. Nobody else should assume the right to disclose her history unless she is ready to share it, neither should they assume the right to disclose the name of the birth father. After all, the father's name given when the records were taken might have been aspirational rather than actual. Without a DNA test it is risky to assume anything, unless the putative birth father acknowledges his status.
Likewise, telling someone that they were conceived as a result of rape is information for further down the line and should be handled very carefully. Counselling is vital, not just exchanging information. The adopted person's history has been made with a family that they feel is their own, with parents, grandparents, aunts, uncles, nieces and nephews. Often they have siblings - some adopted, some born to the family. Instead of developing into friendships, I have seen reunions fizzle out sooner than they should simply because of an impatience to know everything and an insistence to meet people who might never have been told about this part of their mother's history, for example, if the birth mother has married and had children and has not told her husband or the children of her marriage that she had a child before she was married. It is wrong to assume that anybody has a right to barge in on all of her relationships just because an individual needs or expects to have full disclosure. I emphasise that because I have seen it crash and burn because it has not been handled properly.
During the reunion and discovery process, the birth mother will gradually reveal enough information to enable the adopted person to get their original birth certificate without applying to anyone else for permission. That would be where there is an agreement to contact. I do not think the giving of the birth certificate should pre-empt that part of the search and reunion. If the birth mother cannot meet or divulge any information, then the birth certificate becomes relevant. Prior to that if there is a meeting, the adopted person knows his or her own date of birth. If they are meeting the birth mother they will know her name. They will be able to get their birth certificate very easily if they have not got it already. Many adopted people get it before going on the register.
Ms Helen Gilmartin:
Much is made of the fact that in England and Wales the adopted person is given information to enable them to get their original birth certificates and there is a view that they only have to ask and everything is simply handed over. This is not so. It should be noted that people adopted prior to 12 November 1975 in England and Wales, like our own mostly closed adoptions, have to have counselling, because the same assurances were given to the birth mothers there that their information would be kept private. Even with adoptions that took place after 12 November 1975, counselling is almost always part of the process. I am regularly in contact with English and Welsh social workers and I help with searches. I have asked how they exchange information and what I have described as the ideal way in Ireland seems to match their usual procedure regardless of when the adoptions happened. Assessing the applicants' understanding of what contact might reveal, both positive and negative, how they would handle it if there is a negative feedback, explaining the value of taking things slowly and being considerate of the other's feelings about having their past opened up to assessment or judgment, particularly if the mother had another kept child-----
Ms Susan Lohan:
I thank the committee for the chance to discuss the Bill. We welcome any discussion on a Bill that would address the question of adoption information because the Adoption Rights Alliance and our predecessor group, Adoption Ireland, have been campaigning on this since 1999. I will go through the headings I have included in my speaking notes. I will not read out my submission verbatim but it will be available afterwards. We have a separate document from Monday that we will make available to the committee and in which we address each head individually.
The first point that occurred to us on reading the Bill was that there was no real sense that its authors had faced up to the background of Ireland's rather flawed adoption industry. There is no reference to criminality, illegal adoptions or those children who were trafficked to the United States. On the question of illegal adoptions, there are two false assumptions, one being that there is no paper trail for illegal adoptions. It very much depends where and through which agency a child was illegally adopted. St. Patrick's Guild has a file on every person it placed for adoption, be it legally, illegally or before the enactment of the Adoption Act 1952. Therefore, there will be two sets of people whose information will have to be handled under that heading.
I thank my colleague Ms Mari Steed, my opposite number in the United States who is a member of a group called Banished Babies, and other groups representing people trafficked from Ireland to the United States. They are astonished that they have been totally ignored in the provisions of this Bill. Given that speakers from the Department of Children and Youth Affairs referred to "Philomena", it is astonishing that they chose to omit this whole category of people from the Bill. Ms Steed has some questions she would like the committee to consider.
Also on top of our list is the misinterpretation of the I. O'T. v. B. Supreme Court case. There have been false assumptions about that case for many years. There is a pretence that the vast majority of women were promised privacy when in fact the opposite seems to have prevailed in that women were forced to sign away their rights to their children rather than having been guaranteed any specific rights themselves. I commend Mr. Geoffrey Shannon, the reappointed chairman of the Adoption Authority of Ireland, on his salient comments on this matter on 22 October. I will repeat them for the record:
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.
When considering the question of privacy, members should realise it is a two-way street and that, as it stands, because adoptive people are denied access to their information and knowledge about their families of origin, the State is positively impeding their right to lead a private life. I cited the relevant article from the Universal Declaration of Human Rights. I would like the committee to consider that.
We also want the committee to consider whether the Bill's provisions are discriminatory as no other children in the history of this State have been denied access to their birth and early care information to the same extent as adopted people. A blanket ban has prevailed in this area, for both marital and non-marital children. I would like the committee to consider in particular the reciprocal arrangements in the Good Friday Agreement, under which the Irish Human Rights Commission was set up. The commission's brief is to ensure Irish citizens, both north and south of the Border, enjoy the same rights. Our Northern Ireland counterparts have enjoyed open access to their adoption records since 1987.
I will not refer to counselling and support, as Ms Gilmartin has done, because I believe the Minister should seriously consider decoupling identity information from contact and tracing provisions. That would make the entire job of this committee and Houses so much simpler.
I commend Senators Jillian van Turnhout and Averil Power on their work on the Adoption (Identity and Information) Bill that was presented to the Seanad last year. It ran to only 16 pages and very few of us had a problem with its content. I commend Dr. Fergus Ryan, who will be speaking to the committee today, on his work on that. Our fifth recommendation is for the committee is to consider the Oregon law on the handling of adoption information.
I will now move on to particular objections to sections of the Bill. There are very limited statutory rights for adopted people in the Bill. They are limited by access conditions in addition to veto conditions. We must be very up-front and name them. There is not an automatic right to information; there are absolute vetoes in place. I ask the committee to consider either having a firm definition of "compelling reasons" or, as we recommend, setting it aside completely because we can see it being abused at a very high level.
We also have concerns about Tusla. We do not believe social workers are best placed to trace natural parents as they have neither the resources nor the expertise. If the Minister is insisting on leaving information and tracing provisions together in this Bill, we want to see a completely rewritten model involving family law experts and experts in data mining.
Let me refer to the files. The details on how an adopted person would gain access to his or her file are scant. We will discover in the end that a further layer of information vetoes will attach to the access provisions for files. There are at least five files that any particular adopted person might have. Only one of them could really be called an adoption file, that is, the file of the Adoption Authority of Ireland. Every member of the population should have the same level of access to all files.
Ms Patricia White from Barnardos will be speaking to the committee later. That organisation runs the Origins project for people who were separated from their family through incarceration in industrial homes. There are no compelling reasons, or statutory declarations, to be signed for accessing its database. Adopted people should not be treated differently in this regard.
I wish to talk about the prejudice and discrimination that pervade this Bill. Some of the language is highly offensive if one considers that an adopted person may be denied the right to discover his or her identity because of "compelling reasons" based on the view that the discovery of that identity "may endanger the life of a person". This is confirmed by the Department of Children and Youth Affairs. It is very inflammatory language and it will not make adopted people feel any better about the Bill.
I have identified other issues in this part of the Bill and they are contained in page 11 of my notes under the heading "Prejudice and Discrimination towards Adopted People - Past & Present". I concur with Ms Gilmartin and other speakers that the notion that adopted people would be charged fees is abhorrent.
Clarifying the numbers is important because neither Tusla nor any other service provider could be in a position to adjudicate on how well placed it is to offer the service until we actually assess the numbers of people using it. We estimate the number is approximately 90,000.
Would this Bill have assisted Philomena and Anthony Lee? Our conclusion is that it would not. Were he alive today, Anthony Lee would be appalled at how this Bill does not even stop to consider him and his 2,000 counterparts. He would be appalled at how the Government has squandered the publicity dividend that his story and that of his mother generated. He would be appalled the database of his files, and those of the other banished babies, have been moved to the Department of Foreign Affairs and Trade where there are no systems in place to allow access. He would be appalled to discover the extent to which the Irish State co-operated in trafficking children to the US. It is only because of the international embarrassment caused by the film, “Philomena”, that we are even sitting discussing this matter. Yet, Philomena and Anthony Lee will not be assisted one iota by this Bill.
Dr. Ruth Barrington:
I thank the committee for giving Treoir an opportunity to present its views on this important legislation. I am accompanied by Ms Margaret Dromey, chief executive officer, an expert in this field, and Ms Marie Naughton, a Treoir director and social worker with Here to Help, an organisation which specialises in crisis pregnancy support.
Treoir, formerly the Federation of Services for Unmarried Parents and their Children, was founded in 1976 to improve the position of unmarried parents and their children in Ireland. As well as operating a national specialist information service, Treoir promotes policy change, advocates on behalf of unmarried parents and their children and undertakes relevant research. In the early days of the organisation in the 1970s and 1980s, significant numbers of unmarried mothers placed their children for adoption. It was not socially acceptable to be unmarried and raise a child in Ireland then. Many unmarried women who became pregnant concealed the fact of pregnancy, hid away in mother and baby homes and had no option but to place their children for adoption. They sought and were guaranteed secrecy. Treoir’s early directory of services for unmarried parents listed 20 adoption societies placing children for adoption in Ireland, an indication of the demand for the service. By contrast, the 2015 edition of the information pack for unmarried parents only mentions adoption in the context of step-parent adoption, a testament to how society has changed dramatically. The days are long gone when unmarried women have to hide from their families and society during pregnancy and when adoption was the only socially acceptable solution to an unwanted pregnancy outside marriage.
While secret adoption solved the problem of pregnancy outside of marriage, there was little awareness the children who were placed for adoption may in the future have a desire, indeed a right, to know the identity of their birth parents in order to have a sense of who they are. Article 8.1 of the UN Convention on the Rights of the Child states, “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference”. Treoir has from its foundation believed that, although children may be raised apart from one or both parents, they have a right to have their identity preserved. We have made numerous submissions on this issue over the years, most recently on the Children and Family Relationships Act 2015.
Treoir warmly welcomes the publication of the general scheme and heads of the adoption (information and tracing) Bill 2015. We appeal to the committee to ensure this legislation is progressed as quickly as possible. Treoir has several concerns about the heads, however. Our concerns are mainly around information and tracing associated with adoptions that occurred in the past. Balancing the right to privacy of mothers and the adoptees’ need to know of their origins will be a challenge. Also, if the service is not adequately resourced, those involved in adoption will be further hurt by their experience.
In respect of adoption orders made following the enactment of the legislation, all parties will be aware of the principle of openness and no guarantees of secrecy will be given. The birth parent will be aware that information will be released to the adoptee when he or she reaches 18 years and the adoptee will have his or her identity preserved. This will ensure so many of the problems we are experiencing today will no longer exist.
On head 7, the information to be kept by the authority, Treoir proposes the information on the birth father is also included. This information is important for identity purposes.
On heads 8 and 10, Treoir member organisations have concerns that accredited adoption agencies will be excluded from the information and tracing service, as all applications to join the register are to Tusla, the Child and Family Agency. As currently drafted, it is not clear if the adoption agencies accredited to undertake search and reunion work will have access to the register.
On heads 11 and 12, Treoir believes it is imperative the register and the supports to those involved in adoption are adequately resourced with a ring-fenced budget. Treoir would be very concerned if adoptees or birth parents were denied a service because of lack of finances. The service should be free to adoptees and birth parents.
We have great difficulty understanding why it is not possible through this Bill to transfer records from the passive to the active register. This is information on 12,000 people, an extraordinary resource that has been developed with great patience and expertise. At a minimum, such a transfer would save resources that could be better spent. We believe those currently on the passive register should be contacted and invited to transfer. A public awareness campaign will not suffice for this purpose.
On head 13, Treoir welcomes the presumption in favour of disclosure of information, unless the birth parent gives compelling reasons for not disclosing. We welcome the requirement for adoptees to sign the statutory declaration, agreeing to respect the privacy of the birth mother. We recognise that many birth mothers wish to have contact with their birth children but that there is a small number for whom the prospect of their secret adoption having to be disclosed to family is a source of great distress and fear. Their situation needs to be handled with the greatest sensitivity and balance. Their guarantee of privacy and confidentially, as well as the severing of parental rights and responsibilities at the time of adoption, must be balanced with the right of the adoptee to information about his or her birth parent.
On heads 23 and 24, Treoir agrees that those who were incorrectly registered should be assisted to acquire information on their biological parents and enabled to have their births registered correctly. Wrongful registration raises an issue for Treoir about the inappropriateness of the adoption/birth certificates issued under section 89(2) of the Adoption Act 2010. The abridged version of the certificate, which appears to be the default version generally provided by the General Register Office, names the adoptive parents as the mother and father. There is no mention of adoption on the certificate. There is something incongruous about the State on one hand issuing birth certificates with inaccurate information to conceal the fact of adoption, while at the same time censuring those who falsely registered births in the past to conceal the fact of adoption. We understand that some adoptees would not want the fact that they are adopted to appear on their new birth certificate. A solution needs to be found to enable authentic certificates to be issued, while respecting the wishes of these adoptees. Consideration should be given to a return to short-form birth certificates. This issue will also have to be addressed in the context of children born of assisted human reproduction to same-sex couples.
I thank the Chairman for his time and attention.
This is not an inquisition. All of the witnesses are more than welcome and I urge them not to be afraid to give their views. The purpose of this meeting is to hear their views but I shall watch the clock.
Ms Rhoda MacManus:
The first thing I would like to do on behalf of my organisation is to read something very important into the record. When the organisation was set up in 1998 the first thing we did before we made a submission to the Government on adoption - in that case it was the Hague Convention - we carried out research on adoption matters in the National Archives of Ireland. We found two very important statements which we feel proves that there was a forced adoption policy on behalf of the State. The first quote comes from a speech given by Mr. Paddy Cooney, the then Minister for Justice, at the first Irish Adoption Workers' Conference in 1974. He said, "I think we are all agreed that the consensus opinion in our society is to the effect that adoption is better for the illegitimate baby than to be cared for by its mother". The second quote was by Marie Louise Colbert who was a social worker with the Adoption Board and comes from an article she wrote herself that was published in the Irish Independentin 1976. She said, "This tendency (for mothers to keep their babies) may have progressed too far. Fewer babies are coming onto the adoption market as a result". These two quotes say it all.
Prior to the setting up of our organisation in 1998, one of our committee made a submission to the review committee on adoption services in 1983 which is 33 years ago. The person was a natural mother who asked in the letter which was sent to the then Government, which had invited submissions from members of the public and interest groups, that a yearly letter be sent to every mother whose child had been taken from her by adoption to tell her how her child was faring and if her child was alive or dead. Anguish over a child's safety is the nightmare that mothers must live with. Every day of a mother's life from the time her child is taken from her she will worry that her child is sick or dead. Every time an accident is reported in the newspaper and the child involved is a son or daughter at the right age mothers think that could be their child.
However, mothers have no right in law even now, as envisaged in this Bill, to know whether their child is alive or dead. My organisation has operated a helpline for the past 20 years, so we know the nightmares that mothers must go through. I can cite one case where a mother sought information on her son for many years, on an annual basis, through the adoption agency but she did not have the right to get any information on him. At the same time he was looking for information on her because both of his adoptive parents had died and he was in care. When mother and son found each other they had a happy reunion and he came to live with her but they were resentful of the fact that the State had allowed their separation to continue and that he had to remain in care when she was willing to provide a home for him. The case illustrates the fact that, as has often been said on our side of the fence but also by adoptive people, adoption is a permanent solution for what is often a temporary problem. From the time when the unmarried mothers' allowance and other State supports became available to help mothers keep their children, adoption figures went down.
I shall try to summarise the opening statement that we have compiled. I shall try not to read it all because I know it sounds boring when one does so. This is the fifth submission that we have made to the Government on adoption legislation since the foundation was set up. It greatly disappoints us that this Bill seems to ignore all of the work that we put into previous submissions over the years. The situation illustrates the cyclical nature of governments changing and legislative ideas changing along with them. It also points to the danger of having a generalist Civil Service. Very often particular civil servants will have put a lot of work into legislation on adoption matters but when they move up the chain they generally move sideways. It means they move away from dealing with adoption legislation to dealing with legislation on agriculture, industry and commerce, etc. It also means that everything that they have done gets locked in a filing cabinet and forgotten, which is a structural problem that needs to be improved. We wanted to bring that aspect to the attention of the committee.
There is another issue that we would like to bring to the committee's attention, and it is something that we harp on all of the time. Since 1998, when we made our first submission, we have emphasised at all times that we are hurt and offended by the inaccurate and insulting terms of birth mother and birth father. Both terms diminish our connection with our children to the few hours of their birth and reduces us to the status of breeding machines. When we reunite with our children it is very rare for them to ask us about the details of their birth because they are interested in everything and anything else. Furthermore, now that women can be contracted and paid to give birth to a child with whom they have no genetic connection, the term "birth mother" is plainly legally confusing. We are mothers and fathers and, therefore, have no need for prefixes of any kind.
With regard to the most recent Adoption Act 2010, which was the last legislation that we commented on, we said the following: "It seems to be a hastily drawn-up document which clumsily incorporates all previous adoption legislation together with provision for giving effect to The Hague Convention". Our prediction has come to pass. The Bill under consideration will necessitate a raft of amendments. It does not even attempt to provide a wording for the further amendments which will need to be introduced following the passing of the Children and Family Relationships Act. We strongly urge the Minister to defer the enactment of this adoption Bill until it can be considered and examined by the Oireachtas joint committee alongside the Children and Family Relationships Act. We will welcome making a further presentation to the committee on both in tandem.
The present Bill is mainly constructed from the perspective of the adopted person and an illustration of same can be found in the flow chart that was provided with the wording of the Bill. The chart only shows how an adoptive person can seek information. It does not show how a natural mother can seek information on her child. Therefore, its glaringly obvious from the text of the Bill that our previous submissions were never read.
We have operated a helpline for natural parents for nearly 20 years. Our helpline number was distributed through the information leaflet for the contact preference register that was published by the Adoption Authority of Ireland and distributed to every household in the State. Therefore, we are in a position to vouch for the fact that almost all natural mothers and many fathers wish to have contact with and receive reassurance that their children are alive and happy. It is a great pity that this Bill gives so little credence to that fact. We can only hazard a guess that the reason for this false assumption arises from the State's belief that natural mothers were promised secrecy which is simply not true. An examination of all forms of the adoption consent forms in use by the private adoption agencies, which were registered with the Adoption Board, notes only that the natural mother lost all rights and responsibilities regarding her child. If those private agencies made verbal statements to mothers on secrecy or, more commonly, told her that she had no right to interfere in her child's life, which was what most of us were told, then such verbal statements have no legal standing. Over the years the Adoption Board should have closely monitored the agencies to ensure that they did not step outside the letter of the law, as detailed in the Adoption Act 1952. The Bill continues to deny adopted people their birth certificates. We support their right to have unrestricted access to their birth certificates as a human right alongside all other citizens of the State.
We note that the Bill does not accede to our demand that we noted in our submission of 1999 for parity with our adult children. We believe that we should be able to access our children's adoption certificates at the point where our children access their birth certificates.
A hierarchy of rights can be applied to the practice of forced adoption. At the time of the adoption, the child had no choice, the mother usually had no financial or social supports and had very little choice, while the adopting couple had a free choice.
The contact facilitation provisions in the Bill are woefully inadequate. The amount of space and wording given to it highlights the fact that no consideration is given to the support needed during the contact process, the support of the relationship that would be developing between the adult child and his or her mother, and the counselling both parties would need to make the reunion work. High Court expenses would, it seems, be taken from the overall budget of the Child and Family Agency. If this is the case and if there is recourse to High Court hearings on points of law, the fees to be charged to individuals will have to increase proportionally. We do not agree with the charging of fees.
We concur with Susan Lohan of the Adoption Rights Alliance that the interpretation of the I. O'T judgment has been faulty. We do not agree with the way the State has interpreted it. Under the present interpretation, if an agency or the Adoption Authority of Ireland knows the adopted person does not know he or she is adopted, the person is not contacted and told he or she is adopted and illegally registered. It is a basic civil right that a person should know who his or her real parents are.
Mr. Paul Redmond:
The new Bill was always going to be contentious, welcomed by some and detested by others, and it was always going to fail to meet many expectations. However, it is by and large a common sense Bill within the existing constitutional and Supreme Court limits. It is also a reasonable and good faith attempt to address many of the issues that have been deliberately stalled and swept under the carpet by successive Governments. The inclusion and recognition of the illegally adopted people in our community is to be welcomed alongside the long overdue collection and safeguarding of adoption files currently in private hands. With some goodwill on the part of this committee and the Minister, Deputy James Reilly, and with the active participation of the adoption community, the Bill can move significantly closer to fulfilling the realistic expectations of the people it affects.
The one-year lead-in is a major problem. Members of the adoption community are elderly and getting older by the day. As somebody pointed out to me earlier, seven people in the community have died since the commission of inquiry into mother and baby homes started in January. The longer the delay continues, the more people will fail to have reunions or any options. Because of and during the one-year lead-in, both adoptees and natural parents will end up reuniting with headstones in cold and lonely graveyards. The solution is to reduce the lead-in to the bare minimum, perhaps 30 to 60 days. The resources that are to be allocated for use over a year should be put into a more intensive information campaign as soon as possible.
I have a major problem with Parts 4 and 5 of the Bill which deal with informal adoption and wrongful registration and are sorely missing the real point here. “Informal adoption” and “wrongful registration” are a polite way describing the most serious criminal actions, including illegal adoptions, potentially baby trafficking and even child abduction. These criminal actions, by their very nature, leave little or no paperwork and what little may exist is usually fraudulent. This matter needs to be taken far more seriously and the State needs to accept that where it failed in the past, it needs to correct matters proactively now and into the future.
Illegal adoptees are in the worst position of all adoptees, and that is if they are the lucky ones who know they are adopted. What is to be done about the people who are illegally adopted and do not even know they are adopted? This echoes what Ms McManus said. The State has a duty of care to tell people they are adopted if they do not know. While the issue of adoptees, legal and illegal, having no medical history is bad enough, those who do not know they are adopted at all have unknowingly given false medical histories to their doctors and thereby risked their lives and health. It is more than likely that innocent people have died because of false medical information they provided in good faith. Without proactive intervention by the Government, they will continue unwittingly to pass on false medical histories, including to their children, with potentially lethal consequences.
Section 4 of head 23 in Part 5 states an “Agency must take all steps it considers reasonable” to locate natural parents on behalf of an illegal adoptee. It is too little, too late. What is needed is a small, dedicated team of civil servants and gardaí, with modest resources, to investigate actively the case of any illegal adoptee who applies to the unit. If, in the course of any investigation, any evidence comes to light regarding other illegally adopted persons, the team shall discreetly approach any person it believes to be illegally adopted and inform him or her of that fact, in line with the State’s duty of care to people who are the unwitting victims of a crime. I fully concur with what Ms McManus said on this. All the actions needed by illegally adopted people must also be applied to natural mothers and fathers whose children were taken against their will and-or forcibly adopted. This applies to the great majority of illegally adopted people.
Despite the fact it runs to 200 pages, there are still some omissions in the Bill, including unenumerated forced relinquishment in modern Ireland. Although it is not mentioned in the Bill, there is one major outstanding matter in contemporary adoption in Ireland that needs to be addressed and included. We have a ridiculous and woefully outdated provision in current adoption law known as the “step-parent adoption process”. This provision forces a parent who wishes to unite his or her family legally, usually after a marriage, to relinquish his or her child legally in order that the child can be re-adopted by the relinquishing parent along with the new spouse. A natural mother must become an adoptive mother under the law. We still have an odious form of forced relinquishment in Ireland which demands a natural parent to sign away his or her child and transform into an adoptive parent. There are no plans to change this bizarre provision. The Bill is the ideal opportunity to shelve this degrading anomaly. It is a simple enough matter to include in the new Bill, would also certainly be cost neutral and may save the State money and the valuable time of social workers and gardaí in vetting and paperwork.
Appended to this submission is a link to a public petition initiated by Milana Kearns, a dedicated and loving mother unwilling to sign away her children for anyone or anything. Milana is caught between wanting to unite her family and her principled stand against signing away her own child. CMABS fully supports Milana’s fight for a fair and just system to be put in place. The public comments on the petition clearly record the anger of a selection of members of the public who have been caught in this legal anomaly and their desire for a fair and just reworking of the system to recognise legally the reality of the many new and loving families who simply want to be recognised and accommodated. It is abundantly clear that many families are caught in this legal quandary and the numbers are likely to increase.
I urge the committee to recommend that the Minister include a couple of brief paragraphs in the new adoption Bill that would sort this problem instantly. There are no major principles or constitutional issues at stake. It means the General Register Office would produce a new template certificate for use in such situations. People have been talking about the future regarding surrogacy. In such situations, we need a certificate headed “Birth and Adoption Certificate” which would reflect the new reality of life in modern Ireland.
The no-contact veto is the most publicly contentious provision of this Bill. I represent an umbrella group of several different adoption campaign groups and there are widely differing opinions on this veto. It is impossible to represent the community fully without noting all sides of this argument. I will briefly run through them. There are civil and human rights arguments againstthe veto by those who feel passionately that adoptees should be able to access their personal original birth certificates without any restrictions of any kind whatsoever. Some members of the community will never accept this veto and will continue to fight it on principle into the future regardless of whether this Bill is passed. As part of this side of the argument, Adopted Illegally Ireland would like to point out to the committee that, "Adopted Illegally Ireland notes that the eighth amendment to the Irish Constitution gives the life of an unborn child equal status to the right to life of the mother, why then doesn't that same child have equal rights to an identity and know their mother ... in life."
Then there are those, and I include myself among them, who accept this Bill and the no-contact veto simply because of the reality of the current legal restrictions imposed by the Supreme Court's ruling in the I. O’T case. The argument is that they can see no other way to balance the rights of adoptees and natural mothers and thereby ensure this Bill is constitutional. They also argue that the idea that a no-contact veto is discriminatory is a relatively new idea that originated approximately 20 years ago in America, and as Ireland has a distinctly different Constitution and specifically a unique Supreme Court ruling on the balance of rights of adoptees and natural mothers, this idea is simply incompatible with our legal system as it stands. This does not mean it is impossible to change the veto but we argue that it can only be very slightly modified at present and not dropped as any Bill such as this is legally obliged to protect the constitutional right to privacy of natural mothers.
Mr. Paul Redmond:
Some people would favour the veto on moral grounds. People have spoken about an elderly vulnerable community who have not only been through the trauma of losing a child to adoption but have also been through the trauma of the hellhole of mother and baby homes and that they should be protected. Ms Helen Gilmartin has spoken out about protecting such vulnerable people and fragile women, and she is right. They need to be protected.
It is only fair to note that beyond the confines of the active campaigners in the community, people like us and the small number of people we represent, the majority of the non-political but active community have voiced no opinion either way. That would be the great majority of people who have no strong opinions about the veto either way. I will leave it at that and I thank the members for listening.
I welcome the representatives. I very much thank them for their presentations, for all the work they have done in this field over a very long period and for bringing us to the position in which we now find ourselves.
We all welcome that the heads of the Bill have been published. The legislation has been a long time in coming and we are all pleased this day has come. Whether people agree that it contains everything is a matter to be teased out. The presentations from the representatives of each of the organisations have highlighted not only the problems they have with the Bill but, in very many cases, they have also presented us with many solutions. I am sure those issues and solutions will be very important in the drafting of the Bill and that many of them will be taken on board. Some of the solutions and issues presented were probably ones we had not even thought of but I noted from the presentations that many of the issues overlap a little.
These are real and genuine issues for many people. It is a very complex issue and also a very sensitive issue. I agree that everybody is entitled to know their identity and where they come from. They are entitled to their medical records and their health footprint. I agree with Mr. Paul Redmond that it is very important that everybody is entitled to know that.
I have jotted down some notes on this as we have heard other presentations and issues have arisen in previous briefings. I agree with Ms Susan Lohan that privacy is a two-way street. There are the issues we discussed at the other hearings with regard to compelling reasons not to disclose information. We have been trying to figure out exactly what a compelling reason is. It has varied from a life or death situation to somebody being distressed. We made the point that there is distress on both sides. There is the question of who makes the decision on the compelling reasons and we have asked for examples of compelling reasons. The Minister stated last week that it will be a panel set up within Tusla. That gave us some indication of who might be making the decisions in this regard.
There are many views on statutory declarations. Most people are of the view that people should not have to make a statutory declaration, but I have noted that not everybody would be of that view. There is, however, nothing to stop a relative afterwards from getting involved or people looking through social media. There are varying views on that as well.
I agree strongly on the issue of fees and that there is the threat of using the courts to recover unpaid fees. That is of great concern to everybody and is reflected in all the presentations.
With regard to the funding of counselling services, I am not sure who will provide all the counselling services or how they will be funded. We all know that Tusla is pretty underfunded as we speak, and even though it got an increase in funding under the budget, it is providing funding to a great number of organisations and areas ranging from family resource centres to the implementation of the aftercare Bill and the adoption (information and tracing) Bill to women's refuges. Will it be able to fund the implementation of this Bill and the social workers required and will it cause backlogs? This needs to be teased out a little more.
The national adoption contact preference register has been in place since 2005 and much work has done on it. I strongly agree that the data need to be transferred. I am not sure if there is a legal issue in this regard but a great deal of money in terms of time and resources has been spent and we need to find a way to make it work. It is very important. Have I used up my allotted time?
I will leave it at come back in if there are a few other issues. The presentations have been very important to us all with regard to this Bill. They have brought home some issues that overlap and some very sensitive issues that need to be addressed in the Bill.
To pick up on Deputy McLellan's last point, it has been great to get the representatives' presentations and they show us the complexity and importance of the issues with which we are dealing in this Bill. I thank each of the representatives for their presentations. We will not cover each of the points raised but that does not mean the committee is not considering them. We will not cover some of them because we agree with them and that will be in the report and we will deal with that.
I co-sponsored a Bill with Senator Power. In my work in the area of children's rights, which is where I have come from to this issue, there is the issue of the right to identity and the importance of that right. That certainly frames my thoughts on the area and how we ensure the right to identity of every individual of this State or those who have gone to other countries who are equally entitled to that right.
When the Adoption Authority of Ireland was before the committee, Professor Geoffrey Shannon said we cannot rewrite the past, but equally we cannot be paralysed by the past. That is what I will bear in mind in the context of the Bill, that we must find a way that we are not also paralysed by our past, as all too often we have been. For me, change is incremental. The Bill has come further. I hear what people are saying about how the Bill needs to go further. There may be pieces of it we can look at but my sense is that in the balancing of rights, change is incremental. I just want to be honest. I will try to do what I can to try to get the Bill progressed as much as possible because I am very conscious of people who are getting older and if we wait to get the perfect model, there may be nobody around to see it and I do not want that. I just want to be honest with people.
Some questions have been raised with us about counselling and who should provide it. We could get into discussions about the degrees of counselling. I have a concern about it being a social worker given some people's experience with social work services. I say that with no disrespect to current social work services. The agencies in this regard have been raised as an issue by several witnesses. We must examine the option and ensure people are entitled to have a choice once there is a certain standard or level, but we must be open and examine the issue.
Illegal adoption concerns me. We must be very broad and open in terms of how we understand the position with records. There will not be one piece of paper or one file for every child transferred. It may involve a nurse's register, as we have seen, and there may be different types of documents. My understanding is that files are being transferred from the Department of Foreign Affairs and Trade as part of this measure. I understand we will deal with some of that, but a scoping exercise could point to where documents might exist if organisations wish to come back to us and say we need to look at certain records. However, it is my understanding that many records are being transferred.
I agree with what was said about compelling reasons. I have heard that we need to have the provision in the Bill to ensure balance and to ensure it is constitutional. Nobody has yet been able to give us an example of a compelling reason that I am satisfied with. In fact, I was alarmed by one of the compelling reasons we were given by the Child and Family Agency because it was a case of distress and while I do not want to diminish what is involved, it was a case of distress and not a compelling reason. We very much have to separate the information and contact. One has a right to information and nobody wants to put anyone into distress, but that cannot be a compelling reason in terms of one's right to identity. There must be a process and the way that happens is important, but it does not mean one can say it is a compelling reason and therefore we will not provide it because we are where we are at the moment.
I heard what was said about fees and also the contact preference register. That had not come up before and we will ask why the register is not being transferred. I am grateful the point was raised with us.
In terms of the information and awareness campaign, I accept what was said about the lead-in time. I have asked if the committee could be presented with the information and awareness campaign in order that we could have a say in it when it is being devised. I would like to hear whether the witnesses have any advice for us.
Two issues were raised with which I concur but which are outside the scope of the Bill. I am in agreement on the step-parent adoption issue. I have dealt with too many cases. It is wrong that we have children being adopted today in a closed adoption system. We are talking about the past but we are also talking about the present and step-parent adoption is part of that.
On the issue raised by Treoir on birth certificates, that was an issue it raised with me and we tried to change the civil registration Bill. The fact we could not was one of the most depressing moments for me in the House. If a person is adopted, it is a fact. I said in the Seanad that I believe it is a case of the State colluding in falsifying documents. It is wrong that there is not even an asterisk on the certificate to identify it in some way. I get it, and I had not thought of it in the context of the Bill under discussion because it comes under the Department of Social Protection, but it is something for the committee to examine. The witnesses will all be allowed to make further comments.
It is important in terms of one's right to identity that a person would always know. I want to have a system whereby a person would always know he or she was adopted. This is part of learning the lessons from the past. We must deal with the past but we must also deal with the present in order that children would never be in a position where they do not know. They should have those rights. It is a fact that a person is adopted. We are making it into a stigma by taking the approach we are taking. I agree with the point.
I thank Mr. Redmond for what he said about the no-contact information. The way he has articulated it strikes a really good balance and shows us the complexities we are dealing with. I thank him for doing that.
I thank the witnesses for their very good presentations. I will not repeat what Deputy McLellan and Senator van Turnhout have said.
Ms Gilmartin mentioned there is an existing register and she is worried that it will not be transferred into the new register. I would like to hear why she thinks that is the case and how members can ensure it is transferred because it is very rich information and it should be in the new register.
I agree with everything that was said by my colleagues and the witnesses about charges and fees. There must be a balance between the mother and the adopted person. It is difficult and no matter what we do, people will still be hurt. I am not sure I agree with Mr. Redmond’s suggestion about 30 to 60 days. It is a little short. I would be interested to hear whether the other witnesses agree with a lead-in of 30 to 60 days or whether they think it should be more. That would help us to understand what we should do. I would imagine that more time should be allowed but I am open to being convinced.
I apologise for being late to the start of the meeting. I will read back over the contributions later. I thank the witnesses for coming forward. I have met some of them in connection with other issues. I compliment them on the work they have done in advocating the need for the Bill and for bringing it to where it is today. All political parties welcome the publication of the Bill. I acknowledge the Minister’s work in bringing the Bill to where it is today. As my colleague, Senator van Turnhout, said, I am very conscious of the time-sensitive nature of the issue because so many people who have been affected by adoptions are ageing and we must ensure we get the Bill right and done in a timely fashion. We are coming to the end of this Dáil term and we must ensure we get it right. The input of the witnesses today is very important. We are talking about giving back a basic, fundamental human right to people, namely, one’s right to one’s identity. We all agree with that. That is the purpose of the meeting.
I, too, am worried by the lack of a clear definition of a compelling reason. That leaves it to public servants, staff in Tusla or whoever else to use their own interpretation. The situation is not clear cut. It is not black and white. It is bad legislation when something is open to interpretation. As colleagues said, we must ensure there is at a minimum a clear definition of a compelling reason. Perhaps the witnesses could help us draft such a definition.
The statutory declaration is a further insult to people who have been treated already as second-class citizens.
We have to look at how that can be addressed into the future. We also have to be true to the legal advice that has been given regarding being able to deal with this retrospectively. The legal opinion we have been given, through the Minister and the Department is that the only way it can be done retrospectively is by including this statutory declaration. Funding is going to be a crucial issue, as with anything. Even with the limited service that is available through Tusla at the moment, the length of time some people are waiting to be dealt with is appalling. It takes months or years in some instances. That has to be critical. This will put an extra burden on that section within Tusla and it is important that extra resources are made available with that extra burden.
I never realised the issue with step-parents, which Mr. Redmond highlighted. The first time it came to my attention was a few years ago, when a constituent came to me. She had a child in a previous relationship, got married later in life and her new husband wanted to adopt her first child. I was amazed at the process she had to go through. It is alarming. I do not know whether it can be addressed in this legislation, but if it cannot, I imagine it could certainly be addressed in the adoption legislation that has come about as a consequence of the children's rights referendum. It is a point well made here this morning and it is something we can look into. I thank the witnesses for their time, for their interest and for their input into this, and I look forward to working with them all and their respective groups in trying to ensure this legislation is the best possible legislation adhering to the constraints the Constitution has placed on us.
Ms Helen Gilmartin:
I do not know. It seems bizarre. Why dismiss all the work that was done in establishing the original NACPR and all the people who put their names down, comprising 11,500 entries? I would have thought it was a fait accompli. Whatever about getting in touch with people and asking them whether they want to update it, unless they have stated that they do not want contact since that original entry, it should be assumed that what they submitted in the first place should stand.
Ms Helen Gilmartin:
The other thing is about the birth certificates. Our four children have birth certificates taken from the adopted children's register. That is fine. The way things are at the moment, that has to be produced for everything like passports, everything significant. They also have the short-form birth certificate, which is the same as the short-form birth certificate carried by every other person in the country. They valued that, because they did not think it was anybody else's business to know whether they were adopted or not in the ordinary scheme of things, going for jobs or whatever. One still needs the long form for the Garda or things like that.
Ms Helen Gilmartin:
Regarding compelling reasons, I have come across a few circumstances that could be called nothing but compelling reasons. I am not sure I can say this here, but they involved seriously criminal actions and all of that. There are sometimes - though not often - grounds for considering compelling reasons a woman's identity should not be revealed. Whatever about the birth certificate, some certainly could not have other fine points of their lives revealed. In a few circumstances, it was a case of life or death. What is it they say about bad law?
Ms Susan Lohan:
There were definite flaws with that, which we highlighted, particularly the two key stakeholder groups, the Natural Parents Network and Adoption Ireland, representing adopted people. It was a passive register. That meant that someone seeking information on their adoption registered on the NACPR and sat there until a matching person registered their interest in finding them. That would be a key difference, but it might be an issue around data protection, if a person signs up for one type of register and it changes. However, the vast majority of people who signed up for the NACPR thought it was an active register and we get many complaints from adopted people saying they have been on that register for ten years and not heard a dicky bird. There would be huge public impetus to move their registrations from the NACPR to this new register. I agree with various points people have made, saying that we should not necessarily throw the baby out with the bathwater. If the Adoption Authority has expertise it can bring to the table on this, it should be allowed continue with that.
On the question of compelling reasons, I agree with Senator van Turnhout that distress should not be a sufficient reason, because, as we highlighted in our submission, I could see situations with vulnerable natural mothers, particularly those who may have been incarcerated by family members in mother and baby homes, where those same relatives would encourage them to register that compelling reason and it could be widely abused. I should also point out to Deputies and Senators that compelling reasons, incredibly, will be used for future adoptions, so those people born next year, upon reaching their 18th birthday, who are adopted, will also be denied access to their identities and birth certificates by virtue of natural parents being able to file compelling reasons. That is wholly unacceptable and it is not visionary enough for those future cases.
Dr. Ruth Barrington:
I am going to share my time, if I may, with Ms Dromey. On the point of the register, I can understand that there could well be data protection issues, but the role of the Data Protection Commissioner is to ensure that the law is observed in the access and transfer of data, so if this Bill provides a mechanism for people to transfer the data from the passive register to the active register, it would save on resources and it would give a much quicker solution to what everybody wants to see.
Ms Margaret Dromey:
A couple of observations, the first one is that I am delighted Senator van Turnhout highlighted the issue of what we see as the false birth certificates since 2010. We have raised it several times and I hope this group can do something about it. Ms Gilmartin mentioned the short-form birth certificate. That solved the problem of people not wanting to give their personal information to everybody, but they are no longer accepted for most purposes. We need to find a way of having a certificate that will be acceptable to the State but is not falsifying.
On step-parent adoption, I agree with the speaker. For years Treoir has been saying that step-parent adoption is very often inappropriate. While a woman's husband may want to have a legal relationship with her child, we feel adoption, which severs the child's link with the biological father's family, is completely inappropriate. We think the Children and Family Relationships Act will be of relevance here. A man who is married to a woman with a child that is not his child may be able to apply for guardianship. That will not be changing the child's identity but it will be giving that man legal rights in respecting of raising the child. People may still be attracted to the adoption route because under the legal relationship of guardianship, that link would sever when the child is 18, whereas adoption is long term.
We in Treoir favour statutory declarations but we would suggest that both the mother and the adoptee should have to sign them, rather than just the adoptee, as is provided in the legislation. There are issues of respecting the other person. I know there are difficulties about it.
Balancing the rights of adoptees and that very small number of older women is the real challenge. In years to come I do not think there will be the same challenge at all; it is just for that small group. It is a pity in a way that all the legislation might almost be dropped because of that. We have to find a way of dealing with it while bearing in mind that it is for a short time and in the future there will be much more openness.
Ms Rhoda MacManus:
On the contact preference register, I was informed by the Minister's adviser that the non-transference of records from the old register to the new one had to do with the purpose for which the first register was set up. It was a passive register and some people could legally object to it being moved over to an active register. That was the reason, in their interpretation of data protection.
I would like to raise the way in which the IOT judgment has been interpreted by the Adoption Authority of Ireland. When somebody applies for a birth certificate and is refused by the Adoption Authority, he or she then has to appeal to the High Court, which makes a judgment as to whether this birth certificate can be released. In the IOT case, the two mothers were consulted and, initially at least, refused for whatever reasons but they were contacted by the State, let us put it that way. The Adoption Authority transferred that interpretation onto the adopted person in a different way. In other words, where an adopted person does not know they are adopted the authorities will not write to that person to say their mother wishes to have contact with them or wishes to get information about how they are.
We have sat across the table with the chief executive, registrar and head social worker of the Adoption Authority and had them tell us that such and such an adoption was not legal and that therefore they had no responsibility to inform this man that he was adopted. His mother could sit there in limbo getting older by the day while she was yearning for her child. We think it is inhumane and a faulty interpretation of the IOT judgment in any case.
I should state again on the record that all of us on our committee, which includes a man who lost a child to adoption, are in regular contact with our adult children so nothing that we do is out of any kind of grievance. It is from our experience that we know the best way to proceed with this Bill and with other legal moves. We know how much faulty and false information and forgery is contained in the files. Every time we advise a mother to request information from her file she discovers things she never knew. I am talking about her age or address being changed, or information that was falsely given to her at the time, for example that her child was going to be adopted when the child was not adopted but was put into care - things like this.
Our concern about the Bill is that the adopted person coming forward seeking, for instance, non-identifying information, which is given without any consultation with the mother, will very often encounter information in the file that is not true. The adopted person's decision to seek contact is then influenced by that information. For instance, the file might contain a social worker's note saying it was well known that such and such a girl was sleeping with every man in town and that was the reason the child was adopted - I am just giving that as an example. Social workers very often made harsh judgments. Many of them would have been religious women and men, priests and nuns in these adoption agencies who made value judgments on the conduct of women.
When we sat on the advisory group to the adoption board, we came across huge reluctance on the part of the social workers represented there about the fact that we wanted to see the information that was in our files, because they knew they would be judged by the standards of today. What we are looking for is the right to read our files and write a statement to correct any misinformation they may contain, not to remove anything from the file. The adopted person would then be able to decide whether what we say is true, or what the social worker or adoption agency said is true.
Mr. Paul Redmond:
I agree with everybody that there should be no fees. I completely agree as well about the national contact register. It would be terribly wasteful to just throw that to one side and start all over again. If a mechanism can be found to move it from its old function as a passive register to a more active register it should be looked into.
I was questioned about the one year lead in. Since the start of this year I am aware of at least seven survivors who have died in our small, active community. The longer this goes on the more survivors will die and the more people will end up visiting Glasnevin Cemetery or somewhere like that to meet their mothers. This cannot happen fast enough as far as I am concerned; it really is a matter of urgency. Deputy Troy made that point as well. Whatever resources were going to be put into advertising during the one year lead in should be thrown into a far more intensive campaign of 30 to 60 days.
An awful lot of good could be done if a figure like the Taoiseach, the President or the church would co-operate in, for example, sending a letter out to be read at all masses on a Sunday. If a public speech was put out there when this Bill is actually passed, by a major public figure from the church or State, it would let everybody know almost overnight that there is something going on. That would make the papers and the news, as opposed to the commission of inquiry into mother and baby homes for example. We were promised and assured there would be a lot of advertising to make sure everybody knew that was going on. So far there seems to have been one or two tiny little ads in Sunday papers - no wonder nobody knows it is actually going on. We need to be far more proactive on that. If we are more proactive in promoting what is going on we can reduce that one year lead in to 30 to 60 days and we will be doing a huge favour for a number of people who will still have time to reunite.
One other thing that has been brought up here several times is the issue of adoptees who do not know they are adopted or are illegally adopted. I firmly believe, as does Theresa Hiney who runs the Adopted Illegally Ireland group, that the State has an absolute duty of care to let adopted people know they are adopted. If they are the victims of crime - the victims of false paperwork - they should be told, especially in this day and age as medical science advances and medical history becomes more and more important.
Several months ago, Angelina Jolie, discovering that there was a history of breast cancer in her family, very bravely had a double mastectomy. She went public about it to inform people about their health, which was an incredibly brave thing to do. Imagine that she had gone through that and then discovered that she was adopted. It is a crazy situation.
I sat in Holles Street Hospital holding my wife's hand when we were going to have our first baby. There was a midwife sitting there saying, "Can I just get your medical history?" I vividly remember going through my wife's medical history and I said I was adopted. That is totally unfair, but it would be even less fair on illegally adopted people to give false medical histories. That is outrageous. The State has a duty of care and I insist that it must tell people.
Ms Rhoda MacManus:
I would like to absolutely support what Mr. Redmond said. One of the major shortcomings in this Bill is the fact that it uses euphemisms, yet again, such as "wrongful registration", when it is illegal. The false registration of a birth has been illegal and a crime since the 19th century, yet here we are in the 21st century and we are not prepared to state it like it is.
Ms Rhoda MacManus:
Furthermore, in the vast majority of cases these children were falsely registered without the knowledge of the mother. From having had contact with so many women over the years, we know that they were totally traumatised at the time of the birth. A lot of things happened that they were not informed about and this was one of them.
Ms Susan Lohan:
I would like to respond to Deputy Mitchell O'Connor on the lead-in time. I agree with Mr. Redmond that it needs to be intensive. We cannot delay this any further because the advertising campaign is envisaged to start after the enactment of the Bill, so we might well already have a couple of years of a delay.
In 2010, we campaigned furiously with the previous Government for the 2010 Adoption Bill to include provisions for every adopted person to know that they are adopted, and for that to be part of their life story from a very early age. That recommendation was turned down, so today - whether legally or illegally adopted - nobody has a right to know that they are adopted. When we are putting through other amendments to other Bills we should bear that in mind.
Ms Margaret Dromey:
One final thing, about the lead-in time, I agree that there is the issue of people dying and missing the boat. I appeal to legislators to speed up the introduction of the legislation because it will probably be quite some time before this goes though the House and meanwhile people will be passing on. It will probably be introduced within a year, but during that year there is nothing to stop people with services from linking up. There is some protection in the year for people who are reluctant but it does not mean that where there is agreement people cannot meet during that period. There is no requirement to wait for a year.
I thank the members and our witnesses this morning for an informative and detailed debate, as well as the thorough presentations. We do appreciate the time they have spent here this morning. The questions and answers reflect the complexity of this sensitive area. I thank them all for their advocacy work and for being present here this morning. They have raised a variety of issues which we will reflect upon and which will be contained in our report to the Department and the Minister.
I propose that we suspend the meeting now for five minutes before resuming. Is that agreed? Agreed.
I ask witnesses to keep their presentations tight because we want to hear their views and the question and answer session is very useful. Their submissions will form part of the document that will be sent to the Minister. I welcome the witnesses. This is our final session on the pre-legislative scrutiny on the heads of the Adoption (Information and Tracing ) Bill 2015. I thank them for giving us their time and participating in this morning’s meeting. Given the complexity and sensitivity of the Bill, I hope these hearings help people watching and listening at home and following our deliberations online and on social media.
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 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.
I welcome Ms Mary Slattery and Mr. Tom Walsh from Know My Own, and Mr. Martin Parfrey. I should disclose that Mary and I are friends and go back a long way in case any conflict of interest is perceived. I invite Mary to make her opening remarks.
Ms Mary Slattery:
I thank the Chairman. We in Know My Own in Cork appreciate the opportunity to address the committee on the heads of the Adoption (Information and Tracing) Bill 2015. We thank the committee for the invitation to be here and congratulate the Minister for Children and Youth Affairs, Deputy Reilly on bringing this legislation forward. We also wish to acknowledge all of those in the Minister’s office who drafted this Bill because the layman’s user-friendly language in a relatively long Bill made our preparation easier.
It is our opinion that “compelling reasons” must be copper-fastened in legislation. I listened to presentations made here last week and was shocked to think that the compelling reasons could rest in the hands of a social worker, those will be operating the legislation and a birth mother. It cannot be like that. I am a birth mother and have come a long way in my journey, which has not been easy, so I understand secrecy and shame. I have been there. The mother’s secrecy is not a strong enough compelling reason. The only compelling reason has to be backed up with medical evidence. The one that I can see to back it up is risk of suicide. If the medical evidence is that the mother is at serious risk of suicide, that would be a strong enough compelling reason but it would have to be copper-fastened. It is important for the adoptees to have the right to information. While a birth mother may get a huge shock when she receives the letter but she knew in her heart of hearts that she had been pregnant, no woman forgets that. She might not remember the date but she does not forget being pregnant because she changed physically and knows that she has given birth. The shock of the letter is fully understandable but the compelling reason has to be copper-fastened as suicidal risk.
Mr. Tom Walsh:
I thank the Chairman for giving us time to speak. Our group is made up of adoptive parents, people who are adopted and people who have put children up for adoption. Each of us here today represents one of the corners of that triangle.
At times the members of the group have different views but I am totally at one with Ms Slattery's view that it cannot be left open to interpretation by a person on the ground. It must be stated very clearly what is acceptable and what unacceptable. No one has the right to deny to anybody else a knowledge of their identity and I look at the requirements for a compelling reason with a very jaundiced eye. If this aspect must be operated, however, it must be copperfastened and not left open to interpretation.
We welcome the proposals in the Bill because, a bit like the position Michael Collins had on the treaty, it is a stepping stone. For a long time adoption and adopted people were treated as second class citizens and an adopted person started from a minus position, while this was not the case for a non-adopted colleague. That is not on but we welcome the fact that the Government recognises the difficulties attached to adoption, whether an adoption is legal or illegal. There are some 44,000 registered adoptions in the country but I have strong suspicion, based on my experience, that there is almost the same number of illegal adoptions, though the number is guesswork.
Our group will insist that the bureaucracy called for in this Bill is actually supplied in the course of its implementation, not just talked about. There is talk of moneys being made available but the moneys must be made available and a full and efficient back-up for the bureaucracy must be in place, whether in the form of office workers, social workers or whatever else. The current situation is ludicrous, though I am not criticising social workers when I say this because they are totally overworked in this arena. When an adopted person begins an inquiry he or she could have to wait three years even for the first step. That is nonsense, so funding must be provided and it must be proper funding, not such that something will be made available if something falls off a truck going out of the gate.
Ms Mary Slattery:
I am concerned about two things. One is the consent form mothers must sign under head 13 on page 61 and page 187 of the Bill. We think the Bill is skewed in favour of the birth parent and we do not think that is right as there should be more balance. The birth mother can sign the consent form without any evidence of her legal relationship to the adult child. She may have to produce two current forms of identification but these might be totally different from where she was 40, 35 or 50 years ago. One legal document is available to the mother and that is the original birth certificate. We believe that when she puts forward her consent form she should show identification of the legal relationship to the adult child. Otherwise, it is open to all forms of abuse and there are no checks and balances. The mother could sign it and she could be any Joe Bloggs. Not only can the mother do that, so can somebody else on her behalf. That is unethical and wrong.
In England it is only since 2005 that birth mothers have actually been able to trace their children. In the UK legislation the birth mother is required to show the legal relationship to the adult adoptee and we think it is important to separate out the question of information from privacy issues. The current world of the mother, her deep loss, is a separate emotional issue. We are talking about information. We need to separate the emotion of the mother from the legal information that links her to her adult child and this, in turn, will allow the adult adoptee to get the birth certificate. It is their right to do so and hitherto they have been treated as second class citizens.
Under head 13, Nos. 23 and 24 on page 68, the Minister can make regulations. There is an omission in the Bill in that there is no accountability. There are no minimum standards in adoption. We have been plagued with secrecy, deceit and lies. When I was in my doctor's surgery in 2003 I located a booklet entitled Pregnant and Thinking about Adoption. On the subject of us birth mothers it says, "While birth mothers continue to remember their child they can move on with their lives in a positive and meaningful way". That was a complete lie and I make no bones about it. It was unethical and wrong of those who compiled this booklet, with State funding, to state that birth mothers could move on with their lives in a positive and meaningful way without acknowledging their loss in any shape or form. This was only 12 years ago.
Last year the husband of a friend of mine, who is an adoptee in his mid-40s, went about getting his non-identified information through his local agency but was met by a trainee social worker, a student on placement, a 20 year old. We are looking for accountability and standards. Minimum standards were brought in for foster care in 2003 which are now regulated by HIQA and we see no reason why minimum standards cannot be brought in by the Minister to regulate, inspect and support the Adoption (Information and Tracing) Bill.
Mr. Tom Walsh:
The form of undertaking a person has to sign when making an application for a birth certificate, referred to on page 179 of the documentation in schedule 1, has four conditions.
There is no problem with the first condition because it is a standard one. Equally, there is no problem with the last condition. However, the two in the middle are complete nonsense, in our book, because they suggest that the person signing for the birth certificate will cease his or her effort at tracing at the point at which he or she gets the birth certificate. Time out of number, we have come across cases in which the first step taken by an adopted person who is trying to trace is to try to find his or her birth certificate. He or she will continue his or her work on the trace from there. The second and third conditions quite simply say "thou shalt not". They require the person to say "I will not go any further than this certificate", "I will not proceed with the threat", or "I will not ask anyone else to proceed with the threat for me". Those two conditions should be taken out. If the certificate itself has to be used, that is okay. We would prefer if it were not there at all. If a person is asked to sign a certificate to get his or her birth certificate, he or she is given a different status from someone else who does not have to sign at all.
Ms Deirdre Pemberton:
I thank the Chairman and the members of the committee for inviting us to present our views on the proposed adoption Bill. The Council of Irish Adoption Agencies was established in 1961 as a forum for adoption practitioners. Membership is open to all accredited bodies and Tusla adoption services. Each agency is represented at the council by practitioners whose work is guided by internationally recognised principles of best practice. The council aims to encourage through research the provision of relevant adoption information and continuous professional development workshops so that all of its members operate to the highest professional standards. In 2009, the council published An Ethical Framework for Adoption in Ireland. In 2012, it published a series of leaflets for adopted people, birth parents and adoptive parents in relation to information and tracing. Both of these documents are available on our website.
The Council of Irish Adoption Agencies welcomes the proposed Bill, which provides for a comprehensive statutory-based information and tracing service to ensure applications for services can be made by adopted adults, birth parents, birth relatives and people who were informally adopted or whose births were registered incorrectly. It is welcome that the Bill will allow adults who were adopted internationally and their birth relatives to apply for information and tracing services. We regard as positive the presumption in favour of sharing information. We are pleased that this Bill acknowledges the right of adopted adults to have access to their birth certificates and family histories.
I wish to mention a number of areas that are of concern to the Council of Irish Adoption Agencies and make some proposals and suggestions with regard to those areas. On head 6, which relates to the future role of accredited bodies, I would like to point out that the Adoption Act 2010 provided for a process of accreditation of agencies, other than the Child and Family Agency, to provide adoption services. Agencies that are providing information and tracing services under section 4(k) of the 2010 Act had to undergo a rigorous process by the adoption authority to determine their suitability to provide such services. The council recognises the value, skills and long experience of these accredited bodies in providing adoption services. We are concerned that the heads of the proposed Bill seem to allow for the Child and Family Agency alone to provide information and tracing services. The Bill is unclear on the role that accredited bodies will have to play in the future, except where it provides that the Child and Family Agency may decide to authorise "persons ... for the purpose of carrying out an adoption information and tracing service on behalf of the Agency". We propose that the term "persons" should be replaced with the term "accredited bodies under the Adoption Act 2010". We believe the role of such bodies should be referenced throughout the Bill.
On head 12, which relates to appropriate funding for services, like other speakers we appreciate that the proposed adoption Bill addresses the issue of funding for services but we are concerned that there has not been an adequate review of what is needed in terms of service provision so that the Bill’s aspirations can be realised. While it is recognised that adopted adults and birth parents need information and access to their family histories, the process of seeking and being involved in this search involves much more that just that. The Council of Irish Adoption Agencies recognises that the process can be a complex one. In addition to accessing existing information, updated information is required. There may need to be a mediation process between all the parties before a reunion takes place. The council recognises that all the individuals involved, often including wider extended families, may need adequate counselling, advice and support. At present, adopted people and birth parents have to wait on long waiting lists to access such services. We are aware that in some agencies, there is a three-year wait to see a social worker. We consider this unacceptable, particularly in the context of aging birth parents and equity of access to services for all parties to an adoption. Therefore, there are significant funding requirements under the proposed legislation.
We are not comfortable with the statutory declaration measures provided for in head 13. We recommend a similar approach to that taken in other jurisdictions, where the applicant is required to participate in a session with a qualified social worker or counsellor to discuss and explore issues of privacy and respect before the birth certificate is released. We also have concerns about equity with regard to how the Bill proposes that these services should be delivered. Under head 13, which relates to the information for the adopted person where an adoption order is made prior to the commencement of the Bill, and under head 15, which relates to the information for birth parents in respect of adopted people over 18 years of age, we are concerned that the Bill allows for different practices in relation to the sharing of information between birth parents and the adopted people. We propose that the Bill should allow for the sharing of non-identifying information to both parties without permission. Our final concern relates to the appeals system provided for in head 13. We believe that the period stipulated is extremely short. We are not sure that many people who really do not want this information to become public information would appeal. Nevertheless, we feel that the timeframe in which somebody who wishes to appeal can do so is too short and we would look for it to be extended. We can expand on this further in response to questions. I thank the joint committee for the opportunity to make this presentation.
Dr. Conor O'Mahony:
I am grateful for the opportunity to address this issue today. I will focus briefly on some of the competing rights issues that have already been discussed this morning in the context of the Constitution. I will also say a little about international human rights law. As members are aware from earlier contributions, much of the discussion in this area is informed by the 1998 decision of the Supreme Court in the I O'T v.B case, which addressed the competing rights of adoptees and natural parents. The court recognised that the adoptee has a constitutional right to identity and that the natural parent has a constitutional right to privacy. The court stressed that neither of those rights are absolute, as each of them may be qualified to an extent by the other. Much of the discussion that takes place when constitutional concerns about laws of this type are raised is based on this case and on what I would see as a greatly exaggerated concern about possible constitutional issues. Much of the discussion is based on focusing on the outcome in the I O'T v.B case rather than on the principles established in that case. The outcome of that case was a ruling in favour of protecting the mother's privacy. The court made that ruling in the context of something of a legislative vacuum. This law is seeking to fill that vacuum.
With regard to the laws enacted by the Oireachtas on issues like adoption identity and tracing, the court said that it is for the Oireachtas and not for the courts to establish how to balance competing rights and how to deal with sensitive matters of social policy. In the vast majority of cases, the courts will defer to the balance struck by the Oireachtas unless there are extreme consequences of doing so. That is the key message set down in the decision in the I O'T v. B case. We have seen that message repeatedly emphasised in subsequent decisions of the Supreme Court. Some recent examples include a challenge against the law on the age of consent, a challenge against the law criminalising assisted suicide and a case involving the allocation of parentage in surrogacy arrangements. In all of those cases, the Supreme Court stressed that complex social matters should be addressed by the Oireachtas and not by the courts. For that reason, I think the key message to take from the I O'T v. B case is that it is up to the Oireachtas to legislate in this area and to reconcile competing rights.
Any future court would be exceptionally slow to second guess that and to strike down any law that is enacted in this area. It is important to stress that.
Aside from the fact that the constitutional impediments are greatly overstated, there is also a legal imperative to enact laws of this nature. That legal imperative derives from Ireland's international human rights law obligations, in particular, the UN Convention on the Rights of the Child and, to a lesser extent, the European Convention on Human Rights, both of which recognise the right to identity as a key right recognised by international human rights law. There are various degrees and levels to that right but the minimum core is to know one's origins, parentage and conditions of birth; in other words, to have access to a birth certificate as a minimum core. Ireland's international human rights law obligations require the enactment of this legislation. As long as the legislation remains unenacted Ireland is vulnerable to findings by international human rights committees, such as the UN Committee on the Rights of the Child, that we are in breach of our international human rights obligations. Far from there being a rights-based reason to not enact the law, there are rights-based reasons to go ahead and enact this law forthwith.
Equally, there is an issue of consistency internally within Irish law. Identity is strongly protected by the Children and Family Relationships Act in the context of donor-assisted human reproduction. If it is important in that context it is equally important in the context of adoption and far more people are affected. If we are to be internally consistent in our laws, this law is necessary to bring the area of adoption in line with the area of assisted human reproduction.
If the law is to be enacted, it is important that it is done properly. I mentioned the idea of the minimum core of the right to identity being at the very least a bare minimum of access to a birth certificate. The notion that the law would potentially qualify that bare minimum create exceptions to that is unfortunate. If there is legal advice that suggests that it is constitutionally necessary to qualify that I am not sure I would agree with that advice and I would like to see it in more detail. Ultimately, if one has a right which sets birth certificate as a bare minimum, not files, medical history or contact information, that is a bare minium. Any suggestion that be denied on the basis of a potential threat to safety, especially in a context where there is extensive civil law and criminal law, in particular, the Non-Fatal Offences Against the Person Act which provides other protections in those circumstances, is not necessary. I do not believe there is any constitutional reason or any justification for qualifying that bare minimum right of simple access to the birth certificate, balancing it, of course, in the context of contact information, that makes more sense. When it comes to the bare minimum or the birth certificate I do not believe that is necessary. Rather than defining the idea of compelling reasons, I submit that the preferable course of action for just that level of access to information would be simply to remove the qualification altogether and remove the idea to define that idea of compelling reasons.
Finally, an issue mentioned at the earlier discussion and which I mentioned in my written submission is the issue of step-parent adoption. I will not explain all of that in detail again because we are well aware, by now, of what it involves, except to note that a commitment was given during the debate on the Children and Family Relationships Act that the issue would be dealt with in this Bill. The Bill, as drafted, does not propose to do that. There is a very simple solution available, based on the English legislation. A simple short miscellaneous provision, modelled on the English legislation, included in this Bill could resolve that issue. Last year, of the 112 domestic adoption orders, 74 were step-parent adoptions, so I think this is an issue which needs to be addressed. It can be addressed very easily and this Bill presents an opportunity to do that. Conscious of time, I will leave my submission at that. My written submission goes into more detail on all of those points. I am happy to take questions later.
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.
Ms Patricia White:
Barnardos welcomes the opportunity to make a presentation to the joint committee on the heads of the Adoption (Information and Tracing) Bill. Being Paddy Last, much of what I was going to say has already been said.
Barnardos has provided a post-adoption service since 1977. Having been in that service for 30 years, I am aware that there has been much debate about the rights to birth certificates, etc. I am glad that the Bill will address these issues. Barnardos provides a unique service, in that it was never an adoption agency, offering an independent and confidential service to birth parents, adopted people, adoptive parents and their families. This has grown from its beginnings as a telephone helpline on adoption to the wide range of services now offered to all involved in adoption. Through our various services, we have gained great experience and a good overview of the changing Irish adoption situation during the years. We are proud that we have managed to keep the service going with very limited resources for the past 38 years and are committed to its continuation. Ours is the only service which has provided a group work service for birth mothers and adopted adults for over 25 years. We also offer group work and training to adoptive parents and run sessions for birth fathers, as well as individual and group sessions for intercountry adoptive families.
We have offered a mediation service to those matched through the national adoption contact preference register since its inception in 2005. We have also worked with a large number of information and tracing cases at the request of the Adoption Authority of Ireland where there has been a delay in the transfer of records of closed adoption agencies, which has happened quite a lot recently. Obviously, ours is a small service and there is only so much we can take on. We also run a service called Origins for people raised in institutions. They only have a birth certificate but no other information. We provide a service for them to contact their birth families to see if they are open to contact. Obviously, there are no statutory declarations or compelling reasons involved.
We provide that one counselling session which many people have suggested as an alternative to the statutory declaration. We have been doing this since we started in 1977. It is worth noting that many Irish birth mothers have been affected by the change of law in the United Kingdom in 1976 giving an unequivocal right to an adopted person to his or her original birth certificate. As a confidential independent service, ours is a likely place for people affected by these legal changes to contact. To be fair, we have received very few inquiries where this law has had a negative outcome in the past 38 years. The issues in these cases have more to do with after the reunion or search where it has not worked out as people expected such as where the birth parents are deceased, a regular occurrence as the population affected gets older. However, we are aware of the constitutional issues involved in Ireland.
We agree that statutory declaration is not the way to go. We are concerned about the compelling reasons. Who would make the decision? The compelling reasons could deny an adopted person access to his or her birth certificate. It is a huge step. As drafted, we do not believe it is going to work.
The Bill could be strengthened if those involved in the process were offered appropriate support and guidance. The use of preparation groups could be useful in this regard. In our course for birth mothers we always invite adopted people and adoptive parents along to talk about their experiences. The role of accredited agencies needs to be clarified and strengthened. We are concerned that the huge range of expertise gained by voluntary agencies since 1952 be used. We would like to see the NACPR, national adoption contact preference register, amalgamated. We would like to see the American-Irish adoptions included, although false registrations have been included.
The best people to tell anybody that he or she has been adopted are their family, not somebody like me, a social worker, or a Government agency. Perhaps there might be some campaign for those who are aware of illegal adoptions, or otherwise, that they would be supported in some way in telling people.
Barnardos tends to link people on a one to one basis with others in the same boat. For instance, a woman concerned about telling her family that she placed a child for adoption would be linked with another mother or a group to gain the courage and understand it might not be as bad as she envisages.
Ms Kathy McMahon:
I thank the Chairman, Deputies and Senators for giving us the opportunity to make a presentation on the heads of the Adoption (Information and Tracing) Bill 2015. We appreciate the work done to the heads of the Bill so far.
I am the founder of Irish First Mothers and I am a first mother. My first child was born in April 1974 after I had spent four months in the Good Shepherd convent in Dunboyne, County Meath. I was aged 18 years and nursed my child for seven days. On the day I was discharged from Holles Street Hospital, however, a nurse took my infant daughter without warning. I was later forced to sanction her adoption and I did not see my daughter for another 28 years. We reconnected through the adoption database, as we had both registered with it. I did not intend to include this in my opening statement, but it is important to recount my experience of connecting with my child through a register.
I previously worked in my community where I raised my subsequent three children.
In early 2014 I founded Irish First Mothers. I had been a member of the Adoption Rights Alliance, on and off, for a while and saw a need for a place where mothers could come together to share their experiences and help each other to overcome some of the damage done to them. In short, Irish First Mothers is a peer-to-peer mutual support group for women who have lost children to adoption. We have more than 50 verified members, ranging in age from their early 40s through to their mid-70s. Most of us were incarcerated in so-called mother and baby homes and I am here today to represent the majority view of members.
Public discussion of the proposed heads of the Bill has included reference to so-called privacy rights around access to adoption information, but commentators often confuse privacy in respect of information with privacy in regard to personal contact. Any citizen is entitled to privacy, but there are already well crafted laws to defend against unwanted intrusion on one's personal privacy. As such, the proposed sections of the Bill which use the contact veto to limit privacy intrusion are arguably redundant. Such privacy rights were not what the Supreme Court had in mind in the often quoted IOT v. B judgment. That case hinged on confidentiality in circumstances where a mother had been given specific guarantees about confidentiality regarding her participation in an adoption. I am here to advise the committee that we first mothers never sought confidentially, nor were we ever offered it. Instead, we were threatened against ever attempting to make contact with our children. My own abiding memory of my incarceration in a mother and baby home was of mothers screaming in anguish following the often forced removal of their babies. Our rights and welfare were not of paramount concern to those around us. None of our group was offered confidentiality. In the IOT v. B case the court relied on the existence of a cohort of women who had been given special confidentiality assurances. However, such a cohort of women simply do not exist.
The other, broader, confidentiality argument is that the natural mother and other parties had a general right to expect confidentiality in adoption proceedings. That might be true if Ireland's historical adoption practices had mostly been legal. However, the bulk of historical adoptions were the result of sustained coercion. Women were coerced into convents, coerced during pregnancy and birth, kept as mere dependent chattels and finally coerced into signing adoption consent forms which violated their parental rights and interfered with their infants' natural bonds. These unsound consents constituted a systemic fraud on the adoption process and rendered Ireland's historical adoption procedures substantially illegal and a violation of constitutional and international human rights. The relevant birth and adoption information records are not normal confidential records; they are evidence of the illegal acts to which we and our infants were subjected.
First mothers and injured adopted persons will likely never see prosecutions for these illegal adoptions. The very minimum we should offer all potential victims of this illegal process is prompt and unhindered access to the evidence, namely, the records of the crimes against their national identity. All parties to illegal historical adoptions - the child, the natural parents and the adoptive parents - have rights to available information on these adoptions. All the mothers in our group who expressed an opinion are opposed to vetos or excessive delays in adult adopted persons accessing their birth information. We estimate that some 98% of first mothers are open to reconnecting with their adopted children at some level, bearing in mind that access to information does not mean automatic contact.
The committee might find it useful to consider the recent experience of the state of Victoria in Australia which earlier this year passed the Adoption Amendment Bill 2015, which removes the reference to "contact preferences" from existing adoption laws. This removal does not affect a person's option to register his or her contact wishes on Victoria's adoption information register. In reference to the new law, the Victoria MP, Sam Hibbins, wrote:
[Contact statements] set up yet another barrier to contact between natural parents and adopted children being re-established. It is not appropriate when we are dealing with two adults who want to regulate contact with each other ... We should revert to the framework we had in place for 29 years where Victorian adults regulated contact between each other.
For 29 years in Victoria, adult adopted people, their natural parents and adopted parents had been able to access information once the adopted person reached the age of 18 years.
I was shunned, labelled and incarcerated because I was a so-called single mother. Nobody cared about the impact this would have, how labels, stigma and the treatment I received would affect my entire life. As natural first mothers, it was not as a result of our inability to parent a child with love that our children were taken from us. While it is true that adoptive parents can provide a loving home, so also can a single parent. I went on to have three more children, the youngest of whom, sadly, died in a road accident aged 16 years. My surviving marital children are upstanding members of society. The first mothers I know are caring, sensitive and capable. They deserve to have their parental rights defended.
I understand copies of our submission have been circulated to members.
I thank Ms McMahon. She and Ms Slattery have done the State a great service by their testimony and advocacy here. I extend the same thanks to the other delegates. As Chairman of the committee, I can safely say this has been one of the most moving meetings we have had, even though we have dealt with a lot of contentious issues.
Mr. Martin Parfrey:
If a measure such as this were imposed on any other sector of society on any ground, be it colour, religion, class or something else, there would be absolute uproar and probably a case would be brought to the European Court of Human Rights. Why should adoptees be singled out for such treatment? Moreover, the measure is unnecessary for a number of reasons. First, adoptees are not stalkers and usually respect the wishes of others as par for the course, without being bound to do so by legislation.
Let me give two examples. Recently I heard of a woman who realised when in the queue at her local Woodies that the woman right in front of her was her birth mother, who did not want contact. Difficult as it had to be for her, she resisted the temptation to tap her on the shoulder and introduce herself. The other example concerns a woman I knew in Dublin some years ago who located her birth mother in Cork, who did not want contact. She drove to Cork because, out of curiosity, she wanted to see her mother and where she lived. She sat in the car, saw her mother and went back to Dublin and never attempted to make contact. Again, that must have been a very difficult thing to do. Therefore, we do not need to be handcuffed by legislation.
Also, this legislation only proposes access to birth certificates. It does not propose to identify the whereabouts of the birth mother. Therefore, I do not believe it clashes with the IOT v. B case in any way, because it does not identify the whereabouts of the mother. The last comment I would like to say on this is that we get a significant number of situations in which a birth mother will at first, because she is in shock, refuse contact. However, given time to absorb what is happening, she will often change her mind. We had a classic case of this in our group in the past year. After a mother who was vehemently opposed to any form of contact had had time to think about it, she changed her mind. At the end of one of our meetings a few months ago, Mr. Walsh and I watched the same mother and daughter almost tripping on the stairs. Because they were so wrapped around each other, they were putting their lives in danger instead of watching where they were going. Therefore, that statutory declaration is complete nonsense.
I apologise to the witnesses for the delay. Parliamentary democracy does not wait for us and as we had a second vote, they will note the joys of it. Mr. Parfrey was in possession and he may wish to conclude.
Mr. Martin Parfrey:
Tusla is the agency which will be responsible for tracing under the proposed legislation and I would be concerned about the level of funding. Much more funding will be needed to provide the staffing levels required to provide the proper service. Many of those affected are getting older. For many of them, time has already run out. For others, the clock is ticking. Waiting periods of a number of years are simply not an option. The general scheme of the Bill gives no indication what level of funding will be provided, but it is essential that they get enough funds to provide a service where a trace can be completed in a matter of months rather than years. Many do not have time on their side. I will leave it at that because we are running out of time.
I thank all the contributors, both those before us and those at previous sessions today and other days. They spoke honestly and movingly in sharing what I can only imagine is possibly the most painful life experience they have gone through. Today it hit home to me how fortunate we as legislators are to be in a position to bring about legislation that can have a real and meaningful impact on people's lives, and I thank them sincerely for their honesty, integrity and sincerity in sharing their experiences with us. It certainly will prove beneficial as we look over their contributions to see whether we can improve the general scheme of the Bill to make it fit for purpose and ensure it has the desired effect and is a help to those concerned.
I will not go back over a number of points I made in the previous session because I am conscious many present were in the Visitors Gallery and know what was said. I am interested in the contributions given by the two legal experts. I am reminded of the old saying that doctors differ and patients die. The legal evidence the Department is getting is at variance with what the legal experts stated. The common theme in all the contributions is the right of privacy, the veto and the signing of the declaration. That is the big stumbling block. Both legal experts stated it is our job as legislators to determine the competing rights and deal with this complex social matter, yet the Department, in its contribution a number of weeks ago, told us that the only way it could deal with this retrospectively is to insert this.
I am conscious I have been asked how quickly can we move this on. Many have spoken about the sensitive nature of the general scheme of the Bill and the lead-in period of 12 months, but that is when it is enacted. As someone quite correctly stated, this has been ongoing since 1997. I hold my hand up because the previous Government ignored this. This has been ongoing for four and a half years since the current Government came to office. We are only getting to the start of it in the twilight of this term. We need to determine how we can nail it down and ensure the best outcome can be achieved in a timely manner to give effect to the proposed legislation. I would welcome the witnesses' opinion on that.
Nobody referred to the lead-in time of 12 months. It should be much shorter. Whatever resources would be provided to the publicity campaign could be channelled into a much tighter timeframe and there could be a much more extensive media campaign to ensure people were made aware of this issue.
Funding is crucial. People are waiting years for the limited information that is currently available. We cannot stand over that. The proposed legislation, while welcome, will not be fit for purpose if it is not matched by adequate resources in terms of funding and the necessary personnel to execute this.
On the issues of illegal adoptions and illegal registrations, how would a person know? I do not suspect I am, but to all intents and purposes I could be illegally adopted and not know. I would welcome the views of witnesses on how we can tackle that. Those who were adopted legally, albeit maybe forced, are somewhat lucky in that at least they know they can now find their true identity, but what about the person who does not know whether he or she was illegally adopted? How can we as legislators help and facilitate that process?
I thank the witnesses for the sincerity of their contributions.
Like everybody else, I thank the witnesses for their comprehensive presentations. These presentations not only highlight a number of issues raised in the sessions over three weeks but also raise a number of issues which we had not heard previously and which will be important in the final drafting of the Bill. I am sure all the issues will be considered legally or by the Minister.
Some of the material was very personal, in particular Kathy's experience which was given here today. We were very moved by the presentation. She brought home how difficult it was for people who had experienced mother and baby homes and for those who had no option other than to give their baby up for adoption, some of whom were forced to sign them away or had their babies removed from them without their consent. It does bring home how difficult and sensitive the whole issue is. I thank her for that. I think we would all agree it was very emotional and moving.
I will not go back over everything that has been raised over the last number of sessions but I just want to bring up a few issues. I believe that everybody is entitled to know their identity and to know their medical history. I have no doubt about that. It is unclear what roles the accredited bodies will play in the future. If this is not tied down in the legislation there would be a concern that expertise would be lost or some organisations may not be used, even though they would be the experts.
It has been highlighted that some of the records are not correct and I agree that a person should be able to write a statement in order to correct the information in their own file. The person in question did not even want the old file deleted. She just wanted to say that the information is incorrect. I believe that a person should have the right to correct files if they are wrong.
Reference was made to the step-parent adoption process. This is something that needs to be looked at. During the debate on the Children and Family Relationships Bill 2015 it was indicated that the step-parent adoption process would be dealt with in the Adoption (Information and Tracing) Bill. It has not been dealt with to date and it needs to be looked at.
Fees are also a worry to a lot of people and the use of the courts to recover unpaid fees would be of huge concern. The resourcing of this is also a huge concern for everybody who has appeared before the committee and for the committee itself. If the work comes down to Tusla - we know that agency is under funded as are all the organisations that it has to fund - then the details of resourcing would need to be tied down, including how much this is going to cost and if the money is going to be available. It has to be properly resourced. People cannot be put on the long finger for years because of waiting lists or backlogs.
The issue of statutory declarations has come up and I will not go through that again. People have already aired their views on the issue of compelling reasons but it does still need to clarified and tied down. Reference was made to "compelling reasons" at a briefing session last week and it was thought that some cases might be down to distress. While some people will say it is a matter of life or death, the distress within the situation does have to be considered and who knows whether the adoptive parent or the adoptee is more distressed.
It was indicated that social workers might have some decision making role in this process and it was suggested that all social workers are very experienced. That perception was contradicted at this committee today. I agree that there are trainee social workers and this brings us back to the point that there must be minimum standards, inspections and accountability. This must be copperfastened and tied down in the legislation.
I thank the Chairman and I thank all who presented to the committee today. I thought I knew quite a lot about the matter but it is always good to hear different perspectives and to probe how we feel on the different issues.
In regard to the legal inputs, it is very welcome to have it on the record of the House and - while it is at variance with the Department's legal people - I think it is in line with what Dr. Geoffrey Shannon also said to us, that it is up to us as the Oireachtas to legislate. We have to take that role responsibly and ensure we do that.
Perhaps further consideration can also be given to the issue of the timescale for appeals. I also note the comments about step-parent adoption which has come up previously. When the Houses legislated for the Child and Family Agency Bill 2013 it was said that this Adoption (Information and Tracing) Bill would look after step-parent adoptions. We do need to ensure that it is raised up.
I will now turn to the matter of statutory declaration. When the Bill was announced, if I am honest I can say that I only half understood why it was included. However, these hearings are convincing me. As Ms Pemberton has said, a statutory declaration introduces a legal dimension into what is a very individual and personal matter. When drawing up the heads of the Bill with Senator Power and Dr. Fergus Ryan, we included the provision for a meeting or a counselling session. I understand that not everyone was happy with that as a device but I believe it to be a much more appropriate mechanism in that there is some point in time when one can connect. I agree with others that this does not necessarily have to be done by the agency. We have accredited bodies and they could be a good starting point for us. We have the expertise of many organisations but in particular we have seen the work of Barnardos today and some of the material it has sent to us. The information that Barnardos provides could be very useful if we are looking at that issue.
In regard to the matter of compelling reasons, which is one we keep coming around to and we are still none the wiser, I agree with Dr. O'Mahony's observation that we could be starting to chip away at rights. The Barnardos submission contains a proposal that perhaps it could be up to the Adoption Authority, or perhaps more appropriately the courts, to determine if there is a compelling reason. That might be a safeguard and I would welcome advice from our legal people on whether that could be included. We are told we must include the reference to "compelling reasons" for constitutional balance, so how do we ring-fence it so that compelling reasons becomes a high bar? The bar should be an actual case that demonstrates compelling reasons so that we can say "Yes, that is what we should be doing".
On the question of the right to identity, it has been very valuable for this committee today to have had people like Martin, Mary and Cathy appear before us and who were able to give us their personal testimonies. When the Child and Family Agency Bill was presented in the Seanad I took a quote from the author of Roots. Alex Haley says: “In all of us there is a hunger, marrow-deep, to know our heritage - to know who we are and where we have come from. Without this enriching knowledge, there is a hollow yearning .. and the most disquieting loneliness". Equally, we have a past that we have begun to address and that we have to show. However, the difficulty all too often is that we have cloaked adoption in secrecy and it has made society complicit in suppressing women and children and their respective rights. Part of what we are trying to do today and in the Bill is to try to unpack that and shine a light. We know that sunshine is the best disinfectant.
These hearings have been most valuable. The committee will put together a report of recommendations. Having spoken with officials I know there is much work involved from what we are dealing with now - the heads of the Bill - to what is going to be. They need to do that work and we want them to take on the recommendations of the committee but that will take time.
I thank the delegates for their presentations and the work they put into them. These presentations were not prepared in a short period. I thank each one of them for their efforts in setting out in writing the issues they see in the draft legislation. I wish to touch on one or two issues. The first is the issue of 14 days being an inadequate time in which to bring an appeal. What do the people who raised that issue feel is an appropriate length of time? I agree that 14 days is a very short period. It would be helpful to get some indication of their views on the time to be allowed for appeals.
The second issue is how far on we have moved. This is a huge step to take. People have referred to the fact that this issue was being discussed in 1997 but has moved on very little since. What is happening now is welcome but it is important that it is carried through fully and that the legislation is passed. On what went on previously, I came across people as recently as four years ago who had been put into foster care. They had not been adopted. One of them was 71 and the other 79 years of age before they met again. The unfortunate thing about it was that I knew both of them for more than 30 years. I knew them but they did not know each other. I think the reason they never met was that one was very involved in Fianna Fáil and the other in Fine Gael. That story is true. They met because one of their daughters carried out research on her mother's background and found her sister who is now aged 79. This case involved foster care and not adoption.
I wish to touch on the issue of illegal adoptions and incorrect information being provided in hospitals. I have raised the issue previously. We still have a scenario in some hospitals - not all - where proof of identity is not required. That was the major issue with illegal adoptions. Incorrect information was provided in the hospitals where the delivery took place. Records were filled in with incorrect information. A question now arises. There must be people who knew the information on the child they delivered is incorrect. There must be people who want to move forward and find out where their son or daughter is. We need to provide them with information. Some of the delegates may wish to comment on that issue.
I agree that for every legal adoption there were many illegal adoptions. As I said to some members of the panel during the break, I know of some of these which occurred as recently as the early 1990s. This illegal activity was going on not that long ago. It is important to try to address the issue and give every possible level of support to the natural parents and those who were adopted. It is important we get this right and that we achieve the right balance. The delegates' contributions are helping us to come to a decision on the issue.
I have a very broad question on whether we are doing enough at this stage. Do people feel a lot more could be done to try to help people at this stage? People have raised the issue of funding. Should we be doing a lot more than we are and how do we properly structure it in order that adequate funding is given to assist these people? That is the final issue I wished to raise. I thank the delegates again for the very detailed contributions they made.
Ms Mary Slattery:
Deputy Troy asked about the lead-in time. The lead-in time and its benefits are linked into the media campaign. It appears Tusla will be operating it but I am concerned that it is only talking about a media campaign. It should hold public meetings as well. It should also link in with the Department of Social Protection and agencies such as the ICA, the Society of St. Vincent de Paul, the Legion of Mary and other agencies that will open up contact possibilities. If we do that and strengthen the campaign, we will educate people on adoption and allow the conversation to continue at a wider level. We will then have the benefit of a lead-in time. If there is just a media campaign in newspapers and little else, it will not be adequate.
Ms Mary Slattery:
I would include social media because they are very important. Many people make contact through social media. I would set up a Facebook page and link it in with the social welfare and community welfare offices, the Society of St. Vincent de Paul, the ICA and other organisations.
On illegal adoptions and illegal registrations, there is no doubt in mind that some of the accredited agencies and the mother and baby homes have files which contain illegal adoption information. I am not a legal expert but my understanding of the Bill is that the Adoption Authority of Ireland will have within its remit the ability to chase this up and obtain warrants. This has to happen. None of this information will be provided voluntarily. If people think the information will be handed over voluntarily, they are being very naive. It is not going to happen. It will only happen if the adoption authority uses the powers within its remit and provided for in the legislation in terms of search warrants. Not alone is the information in mother and baby homes, it is in people's attics. Those are the attics of people who worked in agencies, GPs offices and anyone else who facilitated illegal adoptions. They know who they are themselves. They have to be followed up and search warrants obtained.
Mr. Tom Walsh:
Senator Burke asked what more could be done. Right now, the general drift of this Bill is good. A lot more should be in it but we will begin small. We need to establish a force of people on the ground who will deal with the provisions of the Bill efficiently, effectively and quickly. I use the word "quickly". Senator Burke queried what is adequate time. The phrase "undue delay" is used in the Bill. That phrase is abhorrent to me. By putting it in the legislation, the Legislature is accepting there will be a delay and that it is somehow excusable. To me a reasonable time between starting, finding and producing a result from start to finish is six months at most. We are in an IT age. A person can push a button on a computer and whatever information is sought will be brought up on a screen there and then.
That is an aside.
The member asked how best to make this work. I am not being facetious but in a different arena it was suggested to me that in order to make a thing work, I should kiss. My reaction was, "What?" The answer I was given was, "Keep it simple, stupid". I will leave it at that.
Ms Deirdre Pemberton:
I will address the points raised about accredited bodies and expertise in adoption. My observations on expertise are that within the agencies there is a history of expertise and knowledge on adoption. I accept that within different teams and agencies there are different levels of experience among the social workers, but the agency holds quite significant expertise and that must be recognised. We are more than happy to work with that.
I thank people for recognising the role of accredited bodies which, as we have noted, appears to have been airbrushed out a little or is not recognised strongly enough. It would be great if there could be a means of ensuring we are included in that.
I also welcome the comments on funding and the recognition that a massive amount of funding is required. I share everybody's concerns about how much this will cost and where it will come from. That must be thoroughly explored.
Dr. Conor O'Mahony:
Deputy Troy raised the point that some of the legal analysis presented by me and Dr. Ryan is at variance with some of the points made by the Department's legal advisers and asked how we could move forward in that situation. The analysis I presented to the committee, particularly in the written submission, is publicly available. I have circulated it widely and am happy to stand over it. It has been noted that Dr. Ryan and Dr. Geoffrey Shannon take a similar view. It is regrettable that the advice that comes through Government Departments is not so widely available, because it is difficult therefore to engage with it. There is a culture of secrecy around legal advice on draft legislation. That is regrettable as it stifles debate and proper analysis. I do not expect that the culture will change just because I have said that, but on this issue I would be more than happy to engage with the Department on a less public basis to discuss its analysis and compare it to mine. In the event the Department has identified something I have missed, I would be happy to hold up my hands and say that. However, I would be somewhat surprised if that turned out to be the case.
That said, my basic point was not that the right to privacy has no role to play here but that there is a balance to be struck between the two rights, and that the courts want the Oireachtas to deal with that balance and not to have to get involved or step in and legislate instead of the Oireachtas. The privacy interest of the natural parent grows stronger the more information is provided. When one starts with the basic level of the birth certificate the privacy interest is less strong than it is when one progresses through to files and contact information. The Bill acknowledges all of that by providing progressively more protection for the birth parent as more information is requested. That is appropriate. However, the Bill tilts too far in the direction of the privacy right of the natural parent by creating a situation where access to the basic level of information of the birth certificate, which does not give rise to any contact information, is subject potentially to exceptions and qualification. In that sense it is not my argument that privacy does not have a role to play here, but simply that if one is to balance the two, as the Bill seeks to do, that balance leads too far in one direction at present. However, my key point is that whatever balance is struck, that balance is for the Oireachtas to strike and it is one that the courts are very unlikely to second-guess.
Regarding compelling reasons, there was a question about how to ring-fence that and make it as narrow as possible. The basic level of access to the birth certificate is at such a minimal level that the compelling reasons argument is not persuasive in that context. My preference, as I submitted in my earlier presentation, is that it would be better to remove it altogether rather than seek to define it. Compelling reasons are more relevant when one reaches the point of contact information but, of course, the birth parent is given an absolute veto over contact information anyway. They do not have to prove compelling reasons; they get to veto for whatever reason. At the basic level of access to the birth certificate, I am unconvinced that there is any such thing as compelling reasons. Including the possibility of an exception in that regard might run into difficulty with respect to international human rights law in the future. If it is to remain there, and I would prefer if it did not, it must be defined as narrowly and precisely as possible.
Dr. Fergus Ryan:
I will make three points in response. First, I reiterate the point regarding privacy. There is something of a tennis match between the Judiciary and the Government on these issues. It is arguably open to the Oireachtas to determine the appropriate balance to be struck in these cases. The courts have consistently said, when these issues have arisen, that on sensitive social issues of this nature they will defer to the Oireachtas, and sometimes they defer very heavily. On the one hand the Government is saying it cannot do this because the courts will block it but, consistently, when the courts are asked they say it is up to the Oireachtas to make the call.
I agree with the point Dr. O'Mahony made. I believe the right to privacy must be taken into account and given due weight in these circumstances but the precise balance is for the Oireachtas to determine. To suggest somehow that only one type of balance is permitted and that the courts will strike out every other type of balance that might be achieved is not correct. In IOT v.B the court said there was a right to identity. It also said there was a right to privacy. The key point in the overall tenor of the decision is that neither the right to privacy nor the right to identity is absolute. The consistent message from the courts is that the precise balance to be struck is a question for the Oireachtas. They have consistently emphasised that the law-making role is for the Oireachtas, not the courts, and that they will not interfere lightly in that context. That is important and I have addressed it further in my written presentation. Dr. O'Mahony has addressed those issues much more effectively as well in his presentation.
Regarding the appropriate timeframe, I and others have raised the 14 day appeal window. It is very short. It is also important that the appeal window is not too long, but it should be long enough that somebody is able to access legal advice with a view to deciding whether to go ahead. I suggest 28 days at a minimum as 14 days is far too short.
Finally, with regard to compelling reasons it is worth noting that the concept of compelling reasons has been used in case law regarding custody, including custody in cases where a child has been placed for adoption but the adoption has not gone through. The use of compelling reasons by the courts has tended be about something that is quite pressing. It is only if there are very pressing circumstances, and the courts' interpretation of compelling reasons is something that is very pressing. The problem with compelling reasons is that what might appear compelling to one person might not appear compelling to somebody else. It is important not to be over-specific, because by doing that one could rule out a rare but compelling situation that we might not have contemplated, but it is also important to have at least some guidance as to what will and will not be considered compelling. Otherwise there is a risk that something that might be appropriately dealt with, for example, by a counselling or information session, might be used to block information being passed on, when in fact some other mechanism could be used to deal with it.
Ms Patricia White:
One of the key points for people is a choice of service. Not everybody wishes to go to their local Tusla service. They might know somebody who works there or they may be one of the many people who work in the health services and they might be concerned about privacy issues. People must have a choice and that is one reason that the accredited bodes and other bodies apart from Tusla should be able to offer a service. It might not suit the person to have to go to Tusla. Basically, what is required are services that appeal to people.
It may be to join a group to meet other people in the same boat for some peer support. It may not necessarily be a counselling session. The word "counselling" is inappropriate, given that it suggests there is a problem. Adopted people do not have a problem; they have issues that they need to tease out, which is different. If we could find another word to use such as "preparation" or "consideration", it would be better. Delay is a major issue. Social media are passing us all out and in a way have made the Bill almost defunct. While it is a major issue, there are others around adoption.
Deputy Robert Troy asked how one would know if one had been adopted and illegally registered, given that one would have a regular birth certificate. Most people discover this after their adoptive parents - their parents, as they knew them - die. They may discover it, unfortunately, at a funeral or other family function when somebody drops the bombshell in asking, "Did you ever go looking for your mother?" The adopted person says, "Sure, I grew up with her," and the other person says, "No, you did not." There may be many older people who would have known the birth mother or known that the person was adopted. The adopted person was generally born in a nursing home or at home rather than in a hospital. During the years we have spoken to approximately 80 people who were falsely registered. We have much experience in hearing the unfortunate way they heard about it, which very often was too late, given that the people who have would known were no longer around to ask.
Ms Kathy McMahon:
There are mothers who were told, after their children were born, that their babies had died but who cannot get death certificates. There are many mothers in limbo. Their children could have been exported to America, for example.
Regarding groups, funding and social media, I am going to push for Irish First Mothers. Some 70 women have come into and out of the group and it has been a great stepping stone for mothers to go to Barnardos or decide they need counselling. We engage in one-to-one counselling and make telephone calls between each other. Stepping stones between groups such as the Adoption Rights Alliance have been very beneficial.
Mr. Fintan Dunne:
Deputies Robert Troy and Sandra McLellan and Senator Colm Burke touched on the quality of information, the verification of information and attempting to get to the bottom of the matter. A very effective set of intersecting skills have been built up in the private sector which enables the resolution of these complex detective functions. If we attempt to formally replicate these ad hocprocedures with the much slower pace of a bureaucratic structure, we may tie ourselves up in impenetrable knots. We must find a way to bring the totality of the information available before all parties, not just an isolated birth, hospital or adoption agency record, in order that we can begin to tease out the truth of these matters.
Ms McMahon has addressed another aspect of funding which Senator Colm Burke mentioned and which perhaps arises from this discussion, namely, that we must streamline as much as possible in order to keep the funding tolerable for the taxpayer and the results and outcomes achievable in a limited timeframe. We are forced into streamlining in order to deal with the issues involved.
Mr. Martin Parfrey:
I was hoping names from the old national adoption contact preference register, NACPR, could be transferred to the new contact register. However, we have heard that there is a problem under the Data Protection Act, given that it would be an active register. I strongly suggest that, at the very least, people who have registered with the NACPR be contacted to ensure they do not fall between the cracks. When the NACPR was first introduced, the information was pitiful. Every household in the country was to receive an application form, but that did not happen. In a huge number of houses nothing whatsoever was known about the NACPR. The ones who registered should have the opportunity to register on the new one and this time it is vital to ensure every household will be informed about the new register and that everyone will have the opportunity to register his or her names on it. The last one was a dismal failure and one of the reasons was that a huge number of people knew nothing about it.
Dr. Conor O'Mahony:
If there are legal issues with transferring information from the old to the new contact register, they will arise by virtue of older legislation. Given that this new legislation will amend the older legislation, it should not be too difficult to work out a provision in the Bill to address potential data protection concerns.
While we could contact people, we would need to be sensitive in doing so, given that some people may have put their names on the contact preference register discreetly. We would not send a big pack through people's doors, but I agree that it should be feasible.
I sincerely apologise to all of the delegates for missing the debate. I am normally a full-time attendee of the committee, but, unfortunately, something came up to which I had to attend and I was delayed as a result. I have, however, read most of the statements received.
Since the committee started to debate this issue, we have heard from a wide spectrum of people. What comes to mind constantly is something my mother always used to say, “You can only have one mother.” It is not really true; one can have more than one mother. People who were adopted but did not realise it until years later discovered that they had two mothers: the person who had given birth to them and the person who had reared them. Sadly, for many people I know, the connection with their birth mothers has been very difficult and, sometimes, non-existent. Many people who were adopted, for whatever reason, ended up in very loving homes. However, those whose babies were taken from them, in whatever circumstances, have suffered the greatest loss. I apologise particularly to the women who have given their personal stories. Things that happen in this place do not always fit into the agenda.
I thank everyone for their participation today and during our pre-legislative scrutiny hearings on the general scheme of the adoption (information and tracing) Bill. It has been a positive exercise. Members will testify that this committee takes its job in terms of pre-legislative scrutiny seriously and our approach to this Bill has been no different. The committee will prepare a report on its findings and recommendations arising out of the meetings, which will be sent to the Minister and the Department. The committee report will reflect some of the issues which emerged over recent weeks and will work collaboratively.