Tuesday, 10 May 2022
Birth Information and Tracing Bill 2022: Second Stage
I am pleased to present to the House the Birth Information and Tracing Bill 2022. The Bill will mark a major change to the law in Ireland. It will provide, for the first time, a clear pathway for access to identity records for adopted people and others. The Birth Information and Tracing Bill 2022 was published in January and in April the Bill completed its passage through Dáil Éireann. I look forward to working with Senators to discuss the Bill further over the coming weeks and I extend my thanks to those Senators who sit on the Oireachtas Joint Committee on Children, Equality, Disability, Integration and Youth and contributed to the pre-legislative scrutiny report.
This landmark legislation will provide a full and clear right of access to birth certificates, and birth and early life information for all persons who were adopted, boarded out, the subject of an illegal birth registration or who otherwise have questions about their origins. The Bill also makes provision for a robust statutory tracing service, a contact preference register and the safeguarding of records. In addition, it contains a range of important, bespoke new measures to address issues arising for people affected by illegal birth registration.
Before I go into discussion of the key sections of this Bill, I want to speak to the issue of illegal birth registrations. Today, as the Birth Information and Tracing Bill proceeds to the next stage of the legislative process, I believe that it is timely to acknowledge the anguish experienced by those who have been affected by illegal birth registration.
In 2018, Tusla discovered documentary evidence of specific cases of illegal birth registration in St. Patrick's Guild, confirming practices that had been long suspected previously. Indeed, Tusla had identified individual cases of illegal birth registration in the past. Since then, a series of related reports have been published, including the final report of the Commission of Investigation into Mother and Baby Homes and certain related matters, the independent review report into incorrect birth registrations and most recently, the independent report by the special rapporteur on child protection on proposals for a State response to illegal birth registrations in Ireland. Collectively, these reports lay bare aspects of our nation's past which were shrouded in shame and secrecy.
As has been said previously on the floor of these Houses, the stigma experienced by unmarried mothers and their children was fundamentally wrong.The shame was not theirs. It was ours, and it remains our shame.
In the case of children affected by illegal birth registration, what happened was an historic wrong, with deep and enduring impacts. Those who were knowingly involved in the illegal registration of births committed a grave offence that robbed children of their identities and their right to accurate birth registrations. I can only imagine the deep hurt and anguish that people must have experienced on learning of their illegal birth registrations - on learning that the foundations on which their entire identities were built were false. For this, I am truly sorry and I apologise on behalf of the Government. I deeply regret the anguish experienced by those who have been affected by illegal birth registration.
It is well recognised that apologies carry little weight unless backed by practical responses to remedy the rights violation in question. As such, I assure those affected that the State is actively implementing measures aimed at addressing their situation in a comprehensive manner. Specifically, the Birth Information and Tracing Bill addresses the situation of people subject to illegal birth registrations by providing clear and guaranteed access to identity information as well as full information on the circumstances of their illegal birth registrations. It provides a lawful basis for the sharing of information to enable the correction of the birth register, thereby vindicating a person's entitlement to an accurate birth registration. It provides for the identity by which an affected person has lived to be legally recognised by means of a new register, where that is his or her wish. Similarly, it provides an assurance to affected persons that acts undertaken and contracts entered into in good faith will not be undermined because a person was the subject of an illegal birth registration. Importantly, it amends the Succession Act to address inheritance issues arising for affected persons.
In addition, this Bill provides a statutory basis for the counselling supports that are already made available to persons affected by illegal birth registration. It provides for a statutory tracing service through which genealogical expertise will be made available to assist individuals and communication and contact will be facilitated between family members and people affected by illegal birth registrations. Looking to the future, the legislation will provide a mechanism for adoption and other relevant records to be safeguarded and transferred to the Adoption Authority of Ireland, AAI.
During its passage through Dáil Éireann, I tabled amendments to the legislation to provide for a specialised tracing service. This specialist service will undertake a review and a full trace of files flagged by Tusla during the independent review as suspicious, and will provide expedited reviews for persons who hold reasonable suspicions that they may have been the subjects of illegal birth registrations.
Since becoming Minister, I have engaged extensively with people whose births were illegally registered. These measures, while overdue, will make significant progress towards addressing the practical challenges and difficulties arising for affected individuals. However, nothing in these measures can undo the past and fully right the wrongs that these people have experienced. I deeply regret the pain and distress that this has caused and, again, I offer my sincere apology as a Minister of the Government, and on behalf of Government, for this.
The Bill presented before the House today has undergone extensive changes. Building on the pre-legislative scrutiny process and Dáil debates, a number of amendments were made to the published text of the Bill. Many of these arose from concerns raised by stakeholders. Their inclusion was welcomed by Deputies and they have undoubtedly strengthened the Bill. Recognising concerns around the terminology of "incorrect birth registration", we tabled an amendment to the Bill to include the words "false and misleading" to recognise the false and fundamentally wrong nature of what happened when people had their births illegally registered.
Senators will likely be aware of the balancing mechanism – the section 17 information session – in the Bill. I have clarified previously in debates that this is essential to achieving a necessary balancing of EU and constitutional rights. Having listened to views at pre-legislative scrutiny stage, this information session has been modified. It can now be held through a phone call and will no longer be provided by a social worker. Where a parent has registered that he or she does not wish to be contacted, the adopted person will receive a phone call where the privacy wishes of the parent will be relayed to him or her. I listened to concerns that the original text of section 17 was problematic and I improved the language so that a person would simply be told that his or her parent had lodged a no contact preference, which would represent an exercise of the parent's privacy rights. Following this phone call, the full and complete set of records will be given to the adopted person in each and every case. Nothing will be redacted. Nothing will be held back.
As the House will be aware, this Bill and the changes it will bring about have been long awaited. While the Oireachtas has attempted and failed several times to legislate in this area, it is the people affected by this proposed legislation who have been left frustrated, upset and justifiably angry. Through this opening statement, I aim to outline the key parts of the Bill, as passed by Dáil Éireann, and highlight the key amendments that have been made since the Bill was published in January.
Part 1 contains the standard Short Title, commencement and interpretation provisions. Section 2 provides definitions of key terms used in the Bill. A central term is "relevant person", which comprises: an adopted person; a person who is, or reasonably suspects that he or she is, the subject of an illegal birth registration; or a person who has been, or reasonably suspects that he or she has been, the subject of a nursed out arrangement or a boarded out arrangement or resident as a child in an institution specified in the Schedule. Section 5 provides that the Minister may, by order, add to the list of institutions set out in the Schedule. This ensures that anyone who was resident in an institution established or operated for the purpose of providing care to children and who is not already captured by one of the categories within the comprehensive definition of "relevant person" can be included within that definition and thereby avail of the provisions of this Bill.
Another central term is a "relevant body". This is a body to whom an application for records may be made. The Bill currently lists the Adoption Authority of Ireland and Tusla as relevant bodies. The Minister can designate by regulation other persons or organisations as relevant bodies to whom an application for information may be made.
I appreciate the importance of terminology and, in response to stakeholders' submissions during the pre-legislative process, the term "mother" is now used throughout the Bill to signify the person who gave birth.
Some of the definitions in this Part were amended on foot of Deputies' contributions on Committee Stage. For instance, the definition of an adopted person has been amended to ensure absolute clarity that any child born in Ireland and adopted abroad is included in this legislation. While this was always the intention, I understand that, in some cases, private arrangements were made without the involvement of an accredited body or the Adoption Authority of Ireland. The definition now ensures that, in all cases, a child born in Ireland who was sent for adoption abroad is included in the application of this legislation.
Part 2 provides for the release of information, records and provided items to relevant persons on application. A relevant person who has attained the age of 16 years can apply to the General Register Office or a relevant body for his or her birth certificate and it will be provided to him or her. A relevant person aged 18 years and over can apply to a relevant body for his or her birth, early life, care, incorrect birth registration and medical information, as well as any provided item, and it will be provided to him or her. A person's medical records – as held on adoption – and institutional files will be released to him or her without restriction. A relevant person aged 16 or 17 years can apply to the Adoption Authority for his or her birth information, early life, care and medical information held by the authority or the agency and this will be provided to him or her by means of a supportive meeting. This meeting can be conducted by phone or face to face and the young person can be accompanied by a person of his or her choosing, if the young person so wishes.
Section 17 provides for an information session to be held between the relevant person and a designated person where there is an application for a birth certificate or birth information and a parent named within the birth information has recorded a preference for no contact. The information session can be held by means of a short, sensitive phone call or in person, depending on the preference of the applicant.That conversation will be about the entitlement of the relevant person to his or her birth certificate or birth information and the fact that the parent has registered a preference for no contact and that this constitutes an exercise by the parent of his or her right to privacy. As mentioned earlier, this information session plays an essential role in adequately balancing constitutional and EU rights so as to guarantee the full release of information to the applicant in all cases. Again, nothing will be redacted or held back.
Part 3 of the Bill provides for an application by a person for his or her deceased parent's information and records where that parent was a relevant person. Such persons can apply for their parent's birth certificate, birth information, care information, early life information and incorrect birth registration information and that will be released to them in cases where the parent, who is the relevant person, and grandparents are deceased. They can also apply for their parent's and other genetic relatives' medical information and that will be released to them where it is of substantial benefit to the maintenance or management of the person's health. The development and inclusion of this Part is in response to my consultations with those affected by these issues and also issues raised through the pre-legislative scrutiny process.
Part 4 creates a legislative basis for the provision of birth, early life, care, incorrect birth registration and medical information to the next of kin of a relevant person who died as a child in an institution. This next of kin is defined, in order of hierarchy, as a mother or father, brother or sister, uncle or aunt, nephew or niece. This Part is also a major new addition and I hope that it supports those with questions in relation to a relative who passed away in a mother and baby home or a county home.
Part 5 provides for a tracing service to be delivered by Tusla and the Adoption Authority. Traces will be carried out for the purposes of contact or sharing of information. The tracing service is available to persons aged 18 and over. An application for a tracing service can be made by a relevant person and certain relatives. An adoptive parent of an adopted child can also seek a trace where the adoptive parent is seeking further information in relation to the person. Section 34(6) lists bodies from whom Tusla and the Adoption Authority can request information in order to trace a person and who must provide the requested information. This list includes Departments and religious organisations. These statutory provisions will enable Tusla and the Adoption Authority to deliver an effective and efficient tracing service for persons seeking family information or family contact.
This Part also contains important new provisions for a specialist tracing service for persons whose birth was illegally registered. These respond to the recommendations of the Special Rapporteur on Child Protection in his recent report on this matter. The new provisions provide a statutory basis for the review of files. They also empower a person to request that Tusla or the authority use their tracing powers to ascertain whether the person's birth was illegally registered or not. This will mean that a thorough review and inquiry can happen for those people who have reason to believe that their birth was illegally registered and I hope this will finally provide insight and answers to people.
Part 6 provides for a statutory register called the contact preference register. This register, which is to be established and maintained by the Adoption Authority, allows persons to register their contact and information sharing preferences. Relevant persons and their relatives can also use the register to lodge information and provided items that they wish to be shared with a specified individual. This Part also provides for the full transfer of all information and preferences from the existing non-statutory register established by the authority in 2005 to the new register to be established under this Part.
Part 7 provides that prescribed bodies, termed "information sources", must safeguard any relevant records they hold. An information source other than Tusla can be asked by the Adoption Authority to furnish a statement to the authority which will state the nature, current location and condition of the relevant records held. They can also be required to transfer these records to the Adoption Authority.
Part 8 amends the Succession Act 1965 and expands that law so that persons whose birth is illegally registered will have the same rights of inheritance from the family they grew up in as they have from their birth family. This is required because in the case of an illegal birth registration no adoption order was made and, therefore, the persons always retained their inheritance rights from their birth family. This Part is urgently required to provide certainty to persons impacted, ensuring that they can inherit from their social parents and not be disadvantaged by virtue of their birth being illegally registered.
Part 9 also contains new, specific measures to address issues related to illegal birth registration. It amends the Civil Registration Act 2004 to provide for the General Registrar to receive or request certain information concerning people with an illegal birth registration, to correct an affected person's birth registration and to create a separate registration in a new register that reflects the affected person's social identity. By social identity, I mean the name of the relevant individuals and their social parents as recorded on their incorrect birth registration.
Part 10 deals with other matters, including: the requirement that the Adoption Authority shall undertake a public information campaign; offences for the concealment or destruction of records; provisions clearly setting out any GDPR rights affected; and the provisions on counselling for all relevant persons and parents.
Section 59 in Part 10 also contains another important provision for persons affected by illegal birth registration which I brought as an amendment on Committee Stage. It provides assurances that contracts, legal documents and any acts undertaken in good faith prior to the passing of the legislation and-or before the affected persons discovered that they were incorrectly registered will not be invalidated or that the persons affected will not experience any adverse consequences simply because they were subject of an incorrect birth registration.
I look forward to hearing the views of Members of the Seanad and working with them to bring forward the best possible legislation so that those who need it can access effective information and tracing services. As I have outlined, the Bill addresses many of the issues impacting directly on the lives of people affected by illegal birth registrations, people to whom I have made an apology on behalf of the Government today. This legislation is designed, and has been amended, to specifically include issues raised by the Special Rapporteur on Child Protection, Professor Conor O'Mahony, in terms of addressing the needs of those who know they were the subject of an illegal birth registration but also the many people who suspect that they were the subject of an illegal birth registration. I ask Senators to support the passage of this Bill and I commend it to the House.