Mary Seery Kearney (Fine Gael) | Oireachtas source

I disagree with the amendments for the following reasons. In the apology the Minister gave to those affected, in this House, I did speak about the fact that illegality has an implication of criminality and that there needs to be a mechanism for assessment of that. On that basis, and following other discussions I have had around this, when the file is reviewed by the specialist entities that are being put in place on foot of the recommendations of Conor O'Mahony and the response to that, which is to implement his recommendations, at that point an assessment could be made as to whether to refer this to the Director of Public Prosecutions or the Garda for a criminal complaint. The issue then is who is the complainant. Is there a statutory footing? Is it a common law offence or a statutory offence? It has been illegal since 1874 to register adoptions in this country. It is not that there is not a provision in law for it and we suddenly need to create it. It has been there for more than a century.We need to have a mechanism in place. In establishing the specialist tracing entity to look out for this, we will be putting specialists in place, which is one of the recommendations taken up by the Minister and now being implemented. This will provide a pathway to potential criminal proceedings, if necessary. The report of Conor O'Mahony, whom I hold in great regard, also makes a recommendation with regard to the possibility of a State inquiry into illegal adoptions. That is still on the table for consideration at some point but we need to get a birth information and tracing system in place and in action.

I do not agree with the characterisation of every misrepresentative or erroneous entry as being illegal. In these provisions, we need to make sure the bar is that an entry is incorrect because we need to have a statutory response to that. If people have got married, signed a mortgage or done a whole heap of other things in a name that is not their own and in an identity they believed to be theirs but which is not, a statutory response to that with regard to succession is required. Parts 8 and 9 of this Bill are a specific bespoke response to that issue so to say that these people have no rights under the Bill is blatantly untrue. There are two whole parts of the Bill that specifically address these issues and needs.

We need to consider where this is going. Who gets prosecuted? There is an issue with the Statute of Limitations. In other arenas where there have been long-running historical instances of abuse, we have managed to overcome that issue so it could potentially be overcome again. Post the case of the Cloyne diocese, we can deal with matters like that. Prosecution requires a criminal act but also a criminal intention. While the entities and homes had criminal intent, not every parent did. I know of an instance of the public health nurse showing up at the door of a house and telling a fantastic lady that she would make a fantastic mother. The woman assumed everything flowed from that and she loved those two children, who are her sons as far as she is concerned. How do we start prosecuting these cases? That needs careful consideration. I would rather that was done following an inquiry in which all of these matters were addressed.

Putting the word "illegal" into this Bill may address some of the anger and some of the needs but we must come back to what the Minister said in his speech last week. The response must be real and in-depth and must consider all of the ramifications, one of which might be that parents are prosecuted. How do you prove that parents had criminal intentions? There are individuals who do not want their parents caught up in this. This Bill puts in place a mechanism in place whereby files are reviewed along with birth information and tracing services and specialists. All of that is here and will be in existence as soon as we pass the Bill into law. If we have specialists in place who can refer files onward, a pattern will emerge just as it did with St. Patrick's Guild, where a particular marker was found. Some things are recurrent. In the case of files being referred, it is more appropriate to start with a threshold of incorrectness and a mechanism to address everything that flows from an incorrect entry. We know that there is a criminal statute and that this is an offence so we have a mechanism to refer cases for prosecution where appropriate but in many instances it is not appropriate. What is appropriate is to have a response to everything that flows from it.

While I understand why the amendment is being proposed, I do not support it. It is too dramatic and may potentially catch cases where mistakes were made. Not everybody is as fastidious as those cited by Senator Boyhan. Some are downright careless. Some of these entries were simple mistakes. Where these incorrect entries were criminally minded and on the level of an enterprise, there is a mechanism in the Bill to address that. I believe that is sufficient.