Ivana Bacik (Dublin Bay South, Labour) | Oireachtas source

I am glad to speak for the Labour Party on this important Bill and to speak not only as the Labour spokesperson on children but also as a member of the Joint Committee on Children, Equality, Disability, Integration and Youth. I welcome the fact we are debating the Bill. I acknowledge that we had all hoped that today would be a landmark day for the rights of adopted persons to access information, to access birth information and to access their identity rights. I absolutely appreciate the Minister’s commitment to ensuring that and the fact significant progress is being made in the Bill.

I share Deputy Kathleen Funchion’s reservations about aspects of the Bill, however. In particular, I share her disappointment that some critical recommendations of our committee in its pre-legislative scrutiny report have not been included in the Bill. I pay tribute to Deputy Funchion, who steered and chaired our lengthy deliberations at pre-legislative scrutiny stage. As she stated, the 83 recommendations we came up with were based on the extensive hearings conducted. I joined the committee having been conscious that there had already been quite extensive consultation, but I participated following my election in July in more extensive hearings. We heard from many stakeholders.

We engaged closely in respect of the draft heads and we believed our recommendations to be robust. I appreciate that the Minister has accepted some of the recommendations, but I want to address three critical ways in which they were not addressed in this Bill. It is in the context of those recommendations in particular that many of us on the committee will be disappointed. Many of those who received our recommendations, including stakeholders who appreciated the recommendations, share that disappointment.

First is the critical issue of access to information. Will this access be unrestricted as was promised and as people had hoped or will it be conditional? On this side of the House, we are all disappointed that the access remains conditional. It is a great step forward from what was previously provided for in other iterations of this legislation but there is still the condition of a mandatory information session. Why can we not get beyond this? It was helpful of the Minister to set out the long history over many decades of this State grappling with how to provide for information rights for adopted persons. The one thing he did not say was that in the recent past there were attempts by the Opposition, including my party, to bring forward legislation earlier. In 2020, we brought forward the Adoption (Information and Tracing) Bill, which would have inserted a new section 86 into the Adoption Act 2010. That would have been a simple mechanism to unlock the information necessary to enable adopted persons to access their birth certificates upon turning 18 by making traceable the connection between an entry in the adopted children register and the corresponding entry in the register of births. Other Opposition parties produced similar legislation that provided for simple unlocking mechanisms without cumbersome restrictions being placed on access.

It is clear, not just from the history the Minister outlined but also from the Opposition attempts to legislate on this matter, that there is a clear cross-party intent in the Oireachtas to ensure an unfettered right of identity and information is provided to adopted persons. I pay tribute to the many individuals and advocacy groups, such as the Adoption Rights Alliance and the Clann Project, which also sought to do this, helped us with this and gave evidence before the committee. We also looked at legislation in neighbouring jurisdictions and we looked at other European countries. We are conscious that anyone in Northern Ireland aged 18 or over has had the right to a copy of his or her original birth certificate since 1987. In other jurisdictions, that right extends back much farther. In the provisions we have been presented with in this new Bill, however, we are still seeing the retention of a conditional right of access.

I worked closely with the Minister’s predecessor, Katherine Zappone, on trying to ensure that there would be a right of access to information. We constantly heard, both in briefings with Ms Zappone and on the floor of this House and the Seanad, that this right had to be balanced with the right to privacy of mothers. We were also told that the right to information could not be provided for in an unconditional way. We examined this closely in the committee. I looked at what we said at the committee again today. We made the point that on the basis of the evidence we had heard and on the expertise of those who appeared before us, the constitutional balancing could be addressed in other ways and it would not be necessary to provide a mandatory information session. We said clearly that the inclusion of a mandatory information session for persons who had registered a preference for no contact would still mean that adopted people whose parents had registered this preference would be: “singled out for different treatment and a targeted warning about privacy rights.” This was seen by some witnesses as compounding misguided fears about adopted people and perpetuating injustice. We proposed an alternative. We said that an appropriate and clear alternative would be to send the correspondence and information about the no contact preference by registered post. This was a way of ensuring a balance in the rights, along with the other measures. As the Minister stated, there were other measures in the Bill to safeguard the privacy rights of mothers, namely, the age limit of 16 or over, the counselling provision and the measure to provide information in some way.

The big question for any of us who have engaged with the process of pre-legislative scrutiny is why we are seeing the retention of this mandatory information session. Looking at the wording of the sections in the Bill and one can see that it is a mandatory information session; there is no other way to describe it. Looking at section 7, which states that in the case of a no contact registration the recipient body shall comply: “only where it has received a notification ... of the completion of an information session”. What is that information session to comprise? Section 17 clearly sets out what the information session will be and it is still referred to as an “information session”. It is referred to as a section which is, “a session held between the relevant person and a designated person, [and we know that is an employee of Tusla or the adoption authority] at which the designated person informs the relevant person of” his or her entitlement to get the birth certificate or information. The section mentions the fact that the parent has stated that he or she is not willing to be contacted and crucially, the importance of the relevant person respecting the privacy rights and preference of the parent. Why does that have to be imparted during an information session? Why can that information not be imparted through an easier mechanism such as the sending of registered post? That could include the back-up measure of counselling or supportive meetings where desired by the adopted person. Why could we not have seen an alternative mechanism put in place rather than this targeted warning session? We all accept that it no longer needs to be held in person and that it can be done by way of phone call or virtual call and that is a welcome change.

From the perspective of the people who are contacting us, including adopted persons, mothers and other stakeholders, it is still seen as a paternalistic approach and as representing a condition upon access that is not desired or welcomed by adopted persons. We have seen some disheartened and disappointed language from those who have contacted us, some saying they feel it is offensive that our laws will still require the information session. They feel it is unnecessary to explain to them in this verbal fashion that they must respect the will of the woman who gave birth to them when this much is already patently clear. We are hearing real disappointment, disheartenment and frustration at what appears to be a grudging step forward rather than the big step we all hoped we would see in this legislation.

I ask the Minister to look again at our report, particularly pages 23 and 24, where we clearly set out our rationale for moving away from a mandatory information session. I know I have spent some time on this, but perhaps the most disappointing aspect of the Bill is to see that measure retained and to see the language that is still being used in section 17. Again, I speak with a heavy heart. I thought we had moved beyond this and that the arguments we had heard over the years about the balancing of rights should be taken in a different context in 2022. We should be able to build on the experiences we have had and the different iterations, which the Minister has clearly outlined, that we have seen over the years in attempts to legislate on this. We should no longer need to see this sort of mandatory condition. What happens if an adopted person refuses to take the call? That person will then not have access to the information. This Bill does not provide, as we had all hoped and expected it would, for a release of information in all cases and that is the disappointment that is felt.

I know others will be bringing amendments and Labour will be bringing amendments on this. We will be looking to implement the recommendations of the cross-party committee, which was specifically charged with undertaking this pre-legislative scrutiny. This is the important point and there will be a great deal of debate on Committee Stage on the provisions around this information session, particularly on section 17 and the related sections 7 to 10, inclusive.

I also want to address the issue of illegal adoptions and incorrect birth registration information. Again, the committee addressed this in recommendations 10 and 11 of our report, where we specifically looked at the definition.

The committee recommended that a change be made. In its view, having heard extensively from those affected, the definition of incorrect birth registration was somewhat sanitised and should be amended to read "falsely or incorrectly recorded" instead. The concern was that this seemed to reflect a recording of incorrect information that was carried out in error whereas we know from extensive testimony over the years that there were false registrations of births and that this was done deliberately and not just in error. The committee members believed, having heard from many of those affected, that this should be recognised in the legislation or in the explanatory memorandum. The committee suggested that the text in the explanatory memorandum should refer to "illegal or unlawful adoption" to clarify that the procedures for rectifying the register, which are very welcome, would apply both to those whose particulars were deliberately falsified and those whose particulars were merely incorrectly recorded. The Minister will probably move to reassure the House that the procedures for remedying the register will apply to false records as well as those simply incorrectly recorded in error. I anticipate that and see the Minister nodding but I reiterate the need to reflect the lived experiences of those who were illegally adopted.

I welcome sections 52 and 53 in particular, which address the issue of illegal adoption. We are all conscious of the serious difficulties that so many adoptees have had due to false registration. I want to pay tribute to former Deputy Joan Burton, who spoke so eloquently on "Sunday with Miriam" last weekend about her own experience as an adopted person. She has been such a champion of adopted persons and their right to information and she really took forward the case of those who had been illegally adopted. In 2019, she and I published legislation seeking to deal with this after the revelations of over 100 illegal registrations of births and adoptions at St. Patrick's Guild. I also want to pay tribute to those who took the time to give their own public testimony of their experiences in the documentary aired by RTÉ in March 2021, "Who Am I? - The story of Ireland's illegal adoptions", which was so powerful. The contributors to that programme spoke about their experience of discovering, in many cases many decades later, that they had been illegally adopted and the trauma and anguish that caused them. One contributor very strikingly said that they felt their life was built on a lie they had been told. It is really welcome to see this legislation addressing their situation but when one hears that powerful testimony, it makes it all the more important that the reality of their situation is recognised. These were deliberately falsified records in some cases and not just clerical errors but the language in the Bill does not adequately reflect that. That is what the committee found also.

Finally, in terms of the committee recommendations, I want to address a crucial recommendation which comes up a number of times in the report, namely, recommendation No. 73. This reflects an issue we had with the Bill more generally and which comes up in relation to a number of different issues in the Bill, that is, the lack of an oversight or an appeals mechanism. In recommendation No. 73, the committee called for the establishment in the Bill of an oversight process or accessible appeals mechanism. Specifically, the committee argued that the Bill should provide "for recourse to an Ombudsperson or other process to ensure oversight of the application process, support for adopted persons and others in using the Bill's provisions, and an accessible and effective appeal mechanism". On page 51 of the report, the committee outlined its rationale for this but it comes up in a number of instances in the pre-legislative scrutiny. Regarding head 13 of the Bill, for example, the committee said that this enabled Tusla or the Adoption Authority to make a request to a third party for information needed to assist in the process of tracing but this is lacking an enforcement mechanism or some oversight. I will have to check to see if that has been addressed in the Bill but more generally, what appears to be lacking in the Bill is a more general oversight mechanism or appeals process. Again, I am coming back to the mandatory information session, which is so contentious. What happens, I ask again, if the adopted person says "I do not want to partake of a phone call" or "I do not want take this call"? Is there any appeal mechanism? What is the next step in the process then? Is there a next step or are we simply assuming there will not be a need for one? The committee had a concern about the fact that the Bill is lacking a clear outline for adopted persons and others of where they go next if the primary processes set out in the Bill have failed them in some way.

I hope the Minister will take this commentary as a constructive criticism. What I wanted to do was outline three areas where the committee has made some very robust and clear recommendations that would have greatly improved the Bill. It is unfortunate to see they are lacking. As I said, there is much to welcome in the Bill. All of us will acknowledge that we are very pleased to see it coming before the House at this stage, so quickly in this Government's term, albeit so long overdue given the long processes that have gone before. We are all conscious of the history of the stigma which prevailed for so long that allowed for the incarceration of women and children and which has defined, for far too long, our national approach to adoption. The primary legislation, the Adoption Act 1952, enshrined a secret and closed adoption system and as a result, we have developed a secretive system. In the words of a former chairperson of the Adoption Board, Ms Vivienne Darling, this ensured that "adoptees were kept in the dark as to their origins" for far too long. I want to acknowledge the Minister's own commitment to ensuring that adoptees are finally brought into the light in being enabled to access birth information but he will also appreciate the frustration many of us feel when we still see some form of condition being placed on access to that information.

I have spoken before about my experience of representing many survivors of abuse in industrial schools and other institutions over the years and of hearing from them the really harrowing experience not only of being incarcerated and abused in many cases but also of being failed by a State that simply did not provide any safeguards for children in their situation. There is still a feeling among many of those who went through experiences like that as children, who were adopted, that they have been failed by the State. We need to make sure that we are stepping up and are seen to be really addressing the needs of adopted persons in particular, but also of mothers who were also failed by the State, particularly those who were incarcerated in mother and baby homes.

The Labour Party has called for a full public inquiry into adoption practices in the State, to investigate the scale of illegal adoption because we are still not clear about the scale of it. We need to give more scrutiny to that practice, which has been left in the dark for so long. We must also reflect on the ways in which we are still failing women and children in particular. Earlier tonight we debated violence against women and discussed the failure to provide adequate shelter for domestic violence survivors, for example. These are all issues which are very much intertwined.

It is great to see legislation that will go some way towards meeting the real needs of adopted persons, their real need for information as to their identity and their need to access their birth certificates. Let us work together constructively on Committee and Report Stages to ensure that the Bill can be amended and can really provide for that full information right, that full right of access to identity that all of us want to see finally enshrined in our law.

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