Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister and thank her for the constructive engagement with her and her officials in respect of the Bill. I am delighted that, as she stated, the Bill is being introduced in the Seanad. I acknowledge the presence in the Gallery of Susan Lohan and Noelle Brown, I applaud the great work done by Claire McGettrick and others at the Adoption Rights Alliance and I thank Dr. Fergus Ryan and Dr. Conor O'Mahony, whose input I have sought in preparing for today and in working on the Bill more generally. I also acknowledge the work of our former Seanad colleague, Averil Power, who previously introduced a Bill on this issue that passed all Stages.

The first thing to say is how much I - and, I am sure, all others present - welcome, in principle, the introduction, finally, of legislation that will enable adopted persons in Ireland to access information about their origins. The issue of the right to an identity is, as others have said, vitally important. Not only is it a human rights issue recognised in international documents - such as in Article 7 of the United Nations Convention on the Rights of the Child - it also has a visceral effect where it is denied. As someone who represented many survivors of abuse before the Residential Institutions Redress Board, I saw very close quarters how the denial of a right to identity affects those who have lived with it for so many years, and to whom this Bill seeks to provide some redress. The right to an identity is also protected under the European Convention on Human Rights. In the case of Godelli v.Italy, the European Court of Human Rights, in September 2012, delivered a judgment which stated emphatically that the right to an identity, including the right to know one's parentage, is an integral part of the notion of private life under Article 8 of the convention. It found a breach of Article 8 where Italian law gave blind preference to the privacy rights of a birth parent over the right to identity of the individual in the case, a 69 year old who had been denied her right to identity.

We are conscious of the context in which we speak on the Bill and, as I said, it is very welcome to see that it will for the first time provide adopted persons with this mechanism. However, as others have done, I wish to offer some constructive criticism as to how I think the Bill could be improved upon. This is not in any way to take away from the huge progress the Bill represents, particularly in the context of the provisions on tracing, the retention of records and the establishment of a proactive register of adoption contact inquiries. All of that is hugely important. However, I wish to engage in constructive criticism in respect of Part 5, which concerns the provision of information. I will make two general points of critique and two very specific points on which I know the Minister is open to working.

In the context of making a general critique, many, including the Adoption Rights Alliance, have commented on the unduly cumbersome, complex and tortuous provisions of Part 5. The way in which Part 5 is drafted seems to make it unnecessarily inaccessible. In her lengthy speech, for which I thank her, the Minister set out - very comprehensively - the provisions of the Bill. This illustrated very clearly the extent of repetition in the Bill. It seems that some very straightforward redrafting could be done to ensure that some of that repetition could be removed and, for example, that the various provisions surrounding different persons who seek information could be streamlined. This is a general point but what I am suggesting would have an important effect. This is a substantive rather than a merely formal problem and it feeds into my second general critique.

The cumbersome way in which the Bill is drafted suggests that it is based on a premise or presumption that it favours privacy rights over identity rights. This is a crucial point of criticism that the Adoption Rights Alliance has made. For far too long, the stifling social mores and repression of the Catholic Church and others have dominated family law and policy in this country. Professor William Duncan has referred to the stigma that attached in the 1950s, when we first introduced formal adoption procedure, to birth outside marriage. He has stated that the relevant Act, in light of this stigma, introduced a secret and sanitised adoption system whose hallmarks were anonymity and confidentiality for the natural mother along with a clean break - a complete severing of ties - between natural mother and child. We have moved a long way from that, happily. Unfortunately, however, it is still the context in which the Bill appears to have been drafted. We need to ensure that the Bill illustrates clearly that privacy rights do not trump identity rights. I do not wish to disparage or in any way dismiss the real concerns many birth parents may still have about privacy - the Minister referred to this - but we have very clear guidance from Conor O'Mahony and other experts that we do not need to be quite as strongly deferential to the rights of privacy in our drafting of this legislation. The I. O'T. v.B. decision of the Supreme Court in 1998 does not seem to me, or indeed to others, to require that we weigh the balance quite so heavily in favour of the right to privacy over the right to identity.

This brings me to the two specific points I wish to make, which concern exactly this point of the way in which we balance the right to privacy and the right to identity. Others have referred to section 41 and the undertaking, and I thank the Minister for her indication that she is willing to consider how to address this point. I know she has moved on this already - from the statutory declaration to the undertaking - but the question is whether an undertaking is necessary at all now that it has been reduced to its current status in section 41. Dr. O'Mahony refers to it as a mere fig leaf. Breach of it carries no consequences, so it would be a strange Supreme Court decision, he suggests, that would find the constitutionality of legislation to turn on the presence or absence of a fig leaf. Why not just remove the provision altogether? Alternatively, the Minister could make provision for an option, such as that provided for in Averil Power's Bill, that those who do not wish to sign undertakings would have an alternative option, such as a meeting a social worker or counsellor, as provided for. Provision for such a meeting would have to ensure that it would not become unduly burdensome on those seeking to avail of the option, but this is a simple and practical way to get around the difficulty.

The more I reread section 22, the compelling reasons clause, the less point I see to it. The definition in the section has been tightened up and the words "such as" have been removed. To my mind, it still suggests that there may be compelling reasons present other than the likely endangerment of the life of a person. Therefore, at the very least, the word "only" should be inserted in section 22 to make clear that is indeed the only scenario in which the information should not be provided. However, if that is the only scenario which would be an obstacle to the provision of information, we have other legislation to deal with it. Senator Higgins referred to this. There is criminal justice legislation in place. If the threat is that serious, that legislation could be used. My concern and, I believe, that of others is that this again betrays a distrust in the adopted person and an unwillingness to allow for unfettered disclosure. Furthermore, in a practical way, this provision could be used as a stalling tactic or delaying mechanism whereby someone could say that he or she thinks there are compelling reasons for the non-disclosure of information. Ultimately, the authority, the agency and then the Circuit Court could say no, yet one could find oneself months away from the provision of information. As a result, there are practical and principled reasons we should simply remove the compelling reasons clause altogether.

I have been asked also to say a word about a number of other minor points. The definition of "relative" could be reconsidered. If spouses and civil partners are included, for example, why not cohabitees? I have been asked specifically to say a word about birth mothers, who are themselves anxious to find and maintain contact with children they gave up for adoption - that also needs to be said - and who may find their efforts thwarted not necessarily by the adopted child but by others. As I have said to the Minister and bearing that in mind, it might be worth stating in section 20 - by way of a facilitative provision and in order to get that message across - that the agency shall encourage all parties to make contact in this way.