Tuesday, 6 July 2021
Ceisteanna - Questions (Resumed) - Ceisteanna ar Sonraíodh Uain Dóibh - Priority Questions
55. To ask the Minister for Children, Equality, Disability, Integration and Youth if clarity will be given on the rights of mothers to access their own care or adoption file and the rights of siblings to information about each other in forthcoming birth information and tracing legislation. [36285/21]
My question concerns clarity on the rights of mothers and siblings to access information in the forthcoming birth information and tracing legislation. It is an opportunity to ensure that the law is victim and survivor-centred. That definition has to include mothers and siblings, as people impacted by the State's deeply problematic adoption system. The proposed legislation, as it currently stands, ignores the rights of natural mothers to their personal information and the rights of siblings to information about each other. I ask the Minister to address these deficiencies in the legislation.
The proposed birth information and tracing legislation will enshrine in law the right of a person to know his or her origins for the first time. The priority policy underpinning the scheme is to allow access to identity information, including unredacted birth certificates, birth and early life information to all adoptees, persons whose birth was illegally registered and those in care arrangements, for example, those who have been boarded out. The proposed legislation will empower these persons to access vital records related to their own identity.
Mothers can continue to avail of their existing rights under the GDPR, data protection and freedom of information legislation to access information pertaining to themselves. They can also avail of the right to rectification, which is enshrined in the GDPR and is a route for mothers to rectify personal data held about them in historical files which they consider to be inaccurate or incomplete. The issue of inaccurate or incomplete information is one about which mothers who have spoken to me are particularly concerned. As they can already obtain their own information and have it corrected under existing legal mechanisms, there is no provision for their rights under proposed legislation. However, mothers and other relatives will be able to avail of other important mechanisms under the birth information and tracing legislation, namely, the statutory contact preference register and a service to trace relatives for contact or information.
The contact preference register will be held by the Adoption Authority of Ireland. Persons, including mothers and siblings, can make applications to have their contact preference recorded or to lodge information. I have given very careful consideration to the issue of access to historical records by siblings where a relevant person is deceased. In this regard, I am conscious that GDPR can place significant restrictions on rights of access to personal data relating to third parties. This may constrain our proposals. However, I am also very much aware of the strong wish of people to access historical records relating to deceased relatives.
My Department is engaging with the Office of the Attorney General on the matter. It is complex because of GDPR but I have sought to explore all opportunities. We will discuss this as the legislation progresses.
If mothers can already exercise their rights under GDPR, why can adoptees not do the same? As the Minister says, the legislation is about access to one's own information. For adoptees, it is about access to their birth certificates, a right still denied to them by the State despite GDPR guidelines, and it is also about access to other early-life information. A mother should be able to gain access to her own care and adoption files. Even under current data protection law, they can gain access to some information, but the scheme provides no mechanism for adopted people and natural mothers to access the administrative files of institutions, agencies and individuals involved in forced family separation. Many adopted people and their siblings, whether adopted or not, are eager to learn about each other and to be in contact. They are entitled to this under GDPR so they must be facilitated in this regard. The Bill needs to provide all affected people, including relatives of the deceased, with a clear pathway for immediate access to their records and administrative files. The Minister just said there could be a barrier where an individual has a deceased relative but, according to the experts, there is no way the deceased person's GDPR rights override those of a living relative.
I was speaking in the context of the GDPR rights of the mother in circumstances where she is still alive. Where there is a mother, a child and a sibling of that child, the GDPR rights of the mother also have to be taken into account. A mother has a right to access her own file under GDPR. That is often the file the adopted person is also seeking to access. For the mother, the file is her own, whereas the adopted person is seeking access to third-party information. In the past, this has raised the issue of competing rights, that is, the right to privacy versus the right of access to information. We believe, in respect of the adoptee, that we have been able to resolve the issue of the balancing of rights by the mechanism we have included in the Bill, which is the information meeting. That is a matter we will address as the legislation is debated.
It is just confusing that there is acknowledgment of some rights under GDPR but not others. Access to birth information has to be unconditional. The Bill currently proposes a compulsory information session with a social worker. This is another issue. Adoptees have rightly pointed out that this is a barrier, not to mention that it is also condescending. It would be more appropriate if the Bill ensured that all people seeking information were provided with medical and counselling support rather than a compulsory information session, which insinuates they do not understand what is occurring. The information session is to be conducted by a social worker employed by Tusla or the Adoption Authority of Ireland, two bodies adoptees have heavily criticised, understandably. Some campaigners have called for a new agency independent of both bodies to deal with the implementation of the legislation. That would make sense given the historical context. Can the Minister assure those who have raised concerns that any information session will be optional and that independent medical and counselling supports will be offered to everyone seeking access to personal data or data concerning a deceased relative?
The information session we have provided for is in no way meant to be condescending towards adopted people. It is described as an information session; it is not described as a counselling session, as it is in other jurisdictions. The session is modelled upon the social worker-led approach adopted in other jurisdictions but the key reason the session is included is to provide for the balancing of constitutional rights, namely, the right to information that we are recognising for the first in this Bill and the right to privacy of the natural mother, which is recognised in law. We have done this in such a way that the right to access information will always win out. That is the big change we have achieved in this legislation but, for the legislation to reflect a balancing of rights, we have provided for the information session. I am happy to engage with adoptees on how to frame the session. We are not closed on that. The mechanism is one we have used to resolve an issue with constitutional balance that has bedevilled legislation in this area for 20 years. We have taken an important step with this draft legislation.