Holly Cairns (Cork South West, Social Democrats) | Oireachtas source

Why did individuals and groups have to make another submission, to share their story again only for it to be ignored in many instances, again? The committee report was published on 14 December. On 12 January, the Bill was published. That is just 14 working days, not to mention the Christmas disruption. Therefore, how much consideration was actually given to the recommendations of the committee? This is not about the committee but about the voices of survivors and their advocates. All of our recommendations are based on their submissions. The Minister is not dismissing the committee necessarily but dismissing them.

There are several main issues I wish to raise today. The first, which many other Deputies have raised already, is the mandatory information session. The committee report was unambiguous, stating:

The mandatory information session should be removed from the legislation. An alternative appropriate safeguard should instead be provided for, such as the sending of correspondence by registered post.

The Irish Human Rights and Equality Commission stated the information session presented an obstacle and potentially a complete barrier to individuals accessing long-sought information. The Council of Irish Adoption Agencies described it as contradictory to the spirit of the Bill. Others classified it as insulting, discriminatory, and restrictive. While the Minister has changed the format of the mandatory information session, it is still an obstacle to accessing information. Many witnesses suggested alternatives that the committee highlighted. It wanted to be proactive. However, the Minister and Department are unwilling to consider these. If this is about balancing privacy and identity rights, there are numerous ways to outline that to the individuals concerned. Forcing a verbal interaction with an agent of the State to outline what is already known is deeply problematic and potentially traumatic. The Government is saying that is okay, because there may be some counselling available.

Moreover, section 17 actually states that a purpose of the mandatory information session is to inform the adopted person of "the importance of the relevant person respecting the privacy rights of the parent" and the preference of the parent not to be contacted. That is an incredibly condescending and paternalistic statement to have written into law, reflecting how the State still views adopted people. This session remains deeply insulting, discriminatory and restrictive. Those affected are the people most aware of privacy rights. They have had a lifetime of negotiating these matters and do not need the Government to explain it to them. Ultimately, this session is part of a false narrative that pits adopted people against parents. The implication of adopted people trying to track down parents was strongly contested in the committee. Our report shows a small minority of mothers have expressed a no-contact preference, approximately 5%, while far more adopted people on the register have indicated that they do not want contact.

The Bill treats categories of affected people differently. The mandatory information session, which should not be in place, only applies to adopted people and not to parents. Furthermore, it remains predicated on the concept that it is only parents who have a non-contact preference and that this is much more common than it actually is. Unfortunately, this seems to be a case of the system protecting itself. The reality is that secrecy was imposed by the State, agencies, and religious orders on both adopted people and parents. The twisted morality of the time imposed social stigma on adoption and then engaged in the falsification of records. Since then, Departments, public bodies and religious orders have tried to maintain this secrecy. We can see all the remnants of this type of thinking in the very fabric of the Bill and the implications on which it is based. The mandatory information session and all it represents must be removed from the Bill. An alternative measure should be adopted that treats all relevant people the same and with respect. In his opening statement, when he spoke about this being "landmark", the Minster gave different examples of all these old Bills and referenced that the current Bill does not "criminalise" adopted people. What kind of a low bar is not criminalising adopted people? I will tell him. It is so low a bar it just should not be referenced. It is not worth referencing unless it is in a completely different context to this one.

The second main issue is early life and care information. The committee heard extensive discussions on the need for broader understandings of care and early life information. It was recommended that the scope and extent of care information provided should be increased and that "All information is part of an adopted person’s history and heritage and must be included in the records provided to them". The prescriptive definitions in the Bill, while an improvement on the initial Schedule, are still limiting and do not guarantee access to the full range of potential care information, early life information and medical information. The Irish Human Rights and Equality Commission has warned that "Using restricted definitions will have a significant impact on the type of information ... available and those who can access it." The Bill’s definition of "care information" is linked to the limited list of institutions identified in Schedule 1. This confines the Bill’s application to just 44 institutions out of 182 known institutions, agencies, and individuals that were involved with forced family separation. The committee has a very clear recommendation here that has again been disregarded. We sought that: "The list of institutions in Schedule 1 should be expanded to incorporate the full list of known institutions, agencies and individuals that were involved with forced family separation in Ireland, without limiting the bill solely to these bodies."

While there is provision for the Minister to add institutions to those outlined in the Schedule, it is not only nonsensical to exclude them but is indicative of an approach that is putting obstacles in the way of individuals seeking access to the information. It is just ridiculous that they have to seek the Minister's discretion when there should be no need for it.

The third issue is the terminology around adoptions. The Bill clings to the euphemism of "incorrect birth registrations" as if they were not part of a system of forced family separation and were a benign mistake rather than a multigenerational strategy by State institutions and religious orders to cover up illegalities. Let us be very clear; this was not a case of "incorrect birth registrations". It was the intentional falsification of birth certifications and other documents. It was illegal adoptions. The least this legislation should do is be honest and name these practices for what they were and for what we all know they were.

In the 2015 report on the pre-legislative scrutiny of the Adoption (Information and Tracing) Bill, the Joint Committee on Health and Children said:

references to ‘wrongful registrations’ or ‘incorrect registrations’ suggest an administrative oversight, and do not adequately reflect the covert nature of many adoptions carried out in the past. The Committee further notes that there are no references ... or acknowledgements of illegal adoptions in the Bill.

Again, in this Bill, the Department and the Government could not bring themselves to even acknowledge illegal adoptions. In their submission, the Clann Project provided a definition of illegal adoption that should be in the Bill as a more accurate and truthful alternative to "incorrect birth registrations". On this point, the committee recommended that the Bill refer to "falsely or incorrectly recorded" birth registration. This was another recommendation by the committee that was ignored.

Discussions of the general data protection regulation, GDPR, and the Government’s conservative interpretations of it permeated the pre-legislative scrutiny. This is an area of considerable complexity but, nonetheless, the committee was forced to recommend that "the Bill must be proofed to ensure that adopted persons are provided with a clear means of accessing their information in compliance with GDPR requirements." It is already clear that there are multiple issues with the Bill and GDPR.

The GDPR already defines personal data as "any information relating to an identified or identifiable natural person [or] (‘data subject’)". The definitions in the Bill do not align with that and it is not permissible to limit the definition of personal data more narrowly than it is defined in GDPR. Several witnesses identified issues with State institutions and agencies deeming mixed information as third-party data rather than mixed data. The State’s position led to section 62 of the Bill, which restricts individual’s rights under GDPR. That is very worrying. It should also be noted that the phrase "mixed data" does not exist in the GDPR and, where data relates to two people, it is personal data to both of them and should be released.

Section 16 introduces the insulting and simply wrong provision that family medical history will only be provided through a medical practitioner. This new barrier is currently being used by the Department in relation to subject data access requests for mother and baby homes commission archives. The Department is now extending it to adopted people and parents. In addition, under our GDPR recommendations, the committee again called for the removal of the mandatory information session as it is a clear barrier to individuals' effective right of access to information.

These are only some examples. Initial readings of the Bill by data experts and advocacy groups have raised serious concerns, which they warn could lead to massive confusion, a large number of complaints to the Data Protection Commission and litigation. These issues need to be rectified by the time the Bill reaches the next Stage.

On reciprocal rights for mothers, there are no information rights for mothers in this Bill, except for those women whose children died in certain institutions. Against this is a glaring inconsistency in that this Bill keeps shifting emphasis and applying different rights and restrictions to different groups. The committee was very clear on this point. We called for "a reciprocal right for mothers to receive their full records, including information about their child and to have input into them in the form of an appended statement or similar." This was forced family separation surrounded by secrecy. Mothers were coerced and non-consenting participants. Their rights to care, administrative, medical and other records, as they relate to them, need to be acknowledged.

On the matter of a public information campaign, the committee recommended that an information campaign "should begin at the earliest point possible to avoid delays" and "should be designed with empathy and sensitivity and in itself be considered a safeguard in protecting privacy rights." There was strong support for an information campaign around this issue. While the Bill allows for a public information campaign, it gives the Adoption Authority of Ireland considerable latitude in deciding the content and timing. Witnesses such as the Irish Human Rights and Equality Commission and the Clann Project suggested an information campaign as an alternative to the mandatory information session.

There is a recommendation for the campaign to be of at least six months' duration to allow people to consider their options. There is a need for it to be advertised abroad, given the international nature of the illegal adoptions system. It needs to consider non-digital routes, given the age profiles of individuals involved, and it also needs to be available in plain English and to consider people with intellectual disabilities. On that point, the first recommendation in the committee report is that "Plain text should be employed ... [as] far as it is possible, both in the Bill and in any accompanying documentation, particularly given the sensitive ... [content] of the legislation." The Bill fails this first criterion. Even for Irish legislation, which is unnecessarily difficult to read, this Bill is especially complicated and daunting in numerous sections. This will put an additional onus on the information campaign to be as accessible as possible.

In addition to its technical function, the campaign should be part of a social response to help create a new discourse of truth, accountability and understanding. It is very important and worth quoting the Clann Project on this matter:

The proposed publicity campaign presents a unique opportunity to let mothers know that they no longer need to bear the burden of secrecy and shame, to let adopted people know that they are equal in the eyes of the law, and to let relatives of the deceased know that they can finally learn what became of their family members.

The current section dealing with a public information campaign is insufficient. There should be a greater emphasis on an accessible and wide-ranging campaign aimed at making the process as easy as possible for affected people and their families, as well as helping to reframe cultural understandings of this subject, especially in the absence of an official State apology.

Finally, on counselling, the committee heard unanimous support for extending the Bill's provision for counselling to all affected parties. A range of supports should be offered to affected persons to include provision of information, counselling and interventions to help address experiences of trauma. Section 63 of the Bill, counselling support for parents, again prioritises one group over others. There is a reference in section 57 to counselling for applicants after they have received records. However, given the limitations on who can apply, and for what information, this provision is restrictive. What about those whose applications are unsuccessful? What about relatives? Several witnesses pointed out the transgenerational trauma that forms part of the legacy of adoptions in Ireland. There is no recognition of that in the legislation.

I have only touched on some of the main points that I am aware of from my reading of the Bill so far and my engagement with individuals and advocacy groups. This gives a sense of the amount of work that still needs to be done to make this Bill what it should be. Any progress on this matter has to be welcomed. For decades, State authorities have denied individuals access to information about themselves, their identity and their heritage. This has intentionally perpetuated a culture of secrecy and stigma surrounding illegal adoptions, which has furthered the suffering of adopted people, parents and their entire families. In this instance, one arm of the State is attempting to solve the problem created by another. Individuals are entitled to this information under GDPR. However, the Government’s interpretation of these rights continues to uphold decades-old secrecy and barriers. If this Bill is the answer to that, it is wholly inadequate. It is based on false narratives, treats groups differently, restricts access, attempts to limit GDPR and fails to provide the reassurances that adopted people, parents and their advocates have sought.

I urge the Minister to engage with the pre-legislative scrutiny report and to incorporate its recommendations in amendments. Be assured that I, and others, will do so. I can only hope that the Government will allow sufficient time, at that stage, to discuss the many amendments that will come forward and not to apply the guillotine. In the meantime, I will push for the children’s committee to seek a comprehensive response from the Minister on our report, including his rationale for disregarding so many of its recommendations.

It was seven working days and the disruption of Christmas. It is hard to imagine that all of that work was considered enough. We ask survivor groups to come before us time and again to relive trauma. For what? It cannot be for them to be ignored. The least witnesses and advocacy groups can expect is to be listened to and considered.

Over the past few days, all Deputies will have received emails and messages from many people asking us to amend the Bill. I wholeheartedly support them. The Bill needs to be amended substantially to achieve what it claims. These individuals should not have to ask for amendments. A Bill that has gone through several iterations of pre-legislative scrutiny should be much better than the one before us.

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