Alice-Mary Higgins (Independent) | Oireachtas source

This grouping contains a few amendments. I think I support the amendment on age proposed by Senator Warfield. It relates to other amendments we have discussed to ensure that information can be accessed as early as possible. Persons who are 16 years of age should be able to have those records. That could be very important to a person coming up to that age of 18 when people make many choices about their lives. It also allows them to access that relevant information at a time when they have access to various relevant supports. I believe it is a constructive amendment.

Our amendment No. 32 relates to section 6(4) which simply provides that if the body finds no entry on the register of births, it shall in writing inform the applicant of that fact. Our amendment suggests that that is not good enough as an ending point to state it does not have the birth certificate. The amendment proposes:

Where no birth information is available, the Authority shall seize all records relating to the relevant person’s adoption and/or illegal [I am open to having that changed to "incorrect or illegal"] birth registration and open an investigation into what transpired. The relevant person will be kept informed and will be consulted throughout the course of the investigation.

We have set out a process there, but I am open to other versions of the process that the Minister might propose. To simply get a note saying "We do not have a birth certificate for you" is inadequate. If there is no birth certificate, that is an issue which requires investigation. We have suggested one version of follow-up action. I would like the Minister to outline what should happen next if the relevant body does not have the birth certificate. It is not enough to just be told that.The State has a responsibility to investigate and follow up.

I will speak now to a number of the other amendments - Senator Hoey has already spoken on them - that are consequential on amendment No. 69. The latter seeks to reflect the recommendation of the committee and the concerns that many had addressed in the context of the information session, as required. I acknowledge that there has been some evolution from where matters stood in 2017. At that point, far worse proposals had been put forward. However, there is still the issue of this information session, which would only apply to persons who had been subject to adoption, as well as in the context of to persons about whom relevant entries had been made in the contact preference register. Effectively, this means that these individuals are being treated differently from any other person in the State who is entitled to get his or her birth certificate. It is their right and they are the same as any other person. A different obstacle is being put in their way, however. They are being treated differently. This is treating differently the people who will seek access to their birth certificates under the Bill.

The proposals tabled by Deputy Bacik and others in the Dáil were very constructive. I say this because it moved to a situation whereby people were being the given information as to the purposes for which the information was being given to them. However, they were not being given an information session. The information was to be provided to all applicants. It was simply a case that information was to be delivered. It was not the case that there was to be a session or even a phone call. The Minister has stated that this is now to be done via a phone call and that it will not be an in-person session. However, this feeds into a feeling that many people who have been adopted have had about the perception of them that has been reflected back by the State and its institutions, including Tusla and others, over many years. This reflection is that they are somehow dangerous, that they are less capable of understanding the normal laws of the land than anybody else and that they need to be treated differently. It sends that message of that they are to be treated differently. That is why I thought that there should be simple provision of information.

Information and tracing are two different concepts. One person might seek just their birth certificate information. However, another might have preferences in respect of tracing or contact. That will involve slightly different information. Anybody who gets his or her birth certificate will be getting it as information. It will not be a ticket to contact or to tracing. That is the norm already under the GDPR. In that context, I do not see why this additional provision would be needed. It muddies the waters. We will come to amendments Nos. 68 and 69, which propose different approaches to how that might be addressed, later.

A constructive amendment has been tabled by the Labour Party Senators regarding the use of registered post. We have also tabled amendments to section 17 which would make persons aware of the fact that when they get information for particular purposes - that is, as for a person's information about their identity - it does not automatically mean that this information can be used for other purposes. That is a general provision which could be applied to anybody.

Amendments Nos. 33 to 37, inclusive, are related to amendment No. 69. The latter would remove section 7, which provides for the information session. Amendments Nos. 33 to 27, inclusive, are consequential because they would remove from the Bill other references to an obligatory information session.Amendment No. 37 is slightly different. It is another consequential amendment to amendment No. 69. It relates to section 8, however, which makes provision for birth certificates to be provided to relevant applicants who are aged between 16 and 18 years old. It also specifies that access to certain kinds of information, including birth certificates, is conditional on the information attending the mandatory information session.

Amendment No. 38 is also consequential to amendment No. 69. It addresses these provisions in section 8. Amendment No. 39 is another consequential amendment, which seeks to address the provisions in sections 7 and 8. These amendments are consequential from the provisions in those sections and from the amendments that we propose to make to those sections. Amendment No. 40 is similarly a consequential amendment.

Amendment No. 42 would replace the word "may" with "shall" in respect of the release of a statement. This refers to where a relevant body may release a statement to a relevant person that would set out his or her birth information. I appreciate that the word "shall" is used in relation to records in the previous provision. I appreciate that and it is good that the word "shall" is used. However, although the word "shall" is used, the caveat of "to the extent that it is practicable to do so" is attached. We will come back to that issue when it comes up again. The word "shall" is used in terms of the release of the records, but the word "may" is used in relation to the release of a statement. The Minister might clarify why that is. In general, our preference is for the use of the word "shall" throughout the Bill, wherever that is possible.

I apologise that my contribution is long, but this is a large grouping of amendments. Amendment No. 43 is another consequential amendment to amendment No. 69. There are numerous references to this "information session" throughout the Bill. It has been a piece of work to remove it. We believe that there are multiple better ways of addressing these issues and that there should not be discriminatory treatment of persons who have been adopted when they seek to access their birth certificates.

Amendment No. 44 is similarly a consequential amendment. Amendment No. 45 is a consequential amendment which seeks to amend the current provision around access to birth information. It also relates to section 9. Amendment No. 46 is a consequential amendment. Amendment No. 49 is a consequential amendment and it relates to section 10. Amendment No. 50 is also a consequential amendment and it also relates to section 10. Amendment No. 51 is a consequential amendment to amendment No. 69 that also relates to section 10.

Amendment No. 53 proposes to insert a new section that would seek to create a mechanism whereby a relevant person could request all of his or her relevant records from a body. This is one example of what we believe would be a more constructive approach to persons being able to access their information. It would address an issue that is present in the Bill with how the mechanism for requesting records is set up. It seems at the moment that a high threshold of specificity and knowledge is required on the part of the applicant when he or she is requesting their records. In the past, the burden has been placed on individuals to navigate a difficult and sometimes hostile system. This Bill is meant to be the sea change. Yet, at the moment, there still is quite an onus put on the person who is seeking the information to know almost exactly what it is he or she is looking for. It is almost the old thing of, "If you do not know, then I will not tell you". That should not be the case for persons who are seeking information, if indeed we want to take a maximalist rather than a minimalist approach.

The Bill as it stands sets out specific categories of information that may be requested. That is fine when the applicant is familiar with the legislation and when he or she knows what to request. However, there is the potential that an applicant would not know what to ask for, that he or she might not be subject to legal advice and that he or she may not be experts in legislation. They could effectively end up not getting access to records that are extremely pertinent to them.

Currently, the Bill has a distinct section to deal with applications for birth and early life information. It has another distinct section on the application for medical records.Within these sections, it is stipulated that a relevant body may provide information to which the application relates: that is, if people request their medical information, they will be provided only with that, despite the fact that the relevant body may hold additional records and the applicant may not be aware of that. However, there should be a mechanism whereby applicants can simply request any and all records that a relevant body holds on them, which is again realistic because many applicants will not be familiar with the terminology or definitions of "early life information" versus "care information" and may not know what to ask for. In that case, there should be a provision whereby persons can just ask for all records available to them without having to specify the categories. It should be sufficient that applicants can indicate their desire to receive all records held about them, and that request should be granted by the relevant body in the widest interpretation.

This amendment would insert a new section, which would say a person can apply for any and all records and that a relevant body on an application made should to all the extent that is practicable, provide the relevant person with all relevant records. Where a relevant body receives an application and does not hold relevant records, it shall inform the person of that fact. This is a wide provision piece.

I will come to amendments later whereby if people apply for one strand of information about them, they should be at least informed that there are other strands of information about them, which they can then seek to access as well. That is another way we try to come at this same problem. This is the wide, all-encompassing provision and the other is to create arrows that would guide people if they applied under one of the strands, so that they would know there are other strands of information. What we do not want is that people simply tick the wrong box and do not get the full information. I know that is not what the Minister would want either. That was amendment No. 53.

Amendment No. 71 deals with a caveat in the Bill if section 17 is to be maintained. We have provisions which remove the information session and replace it with a written communication. Amendment No. 71 states that if the information session is maintained, relevant persons should be able to elect to receive written correspondence in its place. Section 17 currently provides that in order to access certain information, an applicant must attend an information session with a designated person. The provision is hugely problematic. As we have heard, it makes access to certain information, including birth certificates, conditional. It is a red-line issue for many of the survivor and stakeholder groups. The Minister will be aware of that, as it has been debated extensively both in the committee and in the Dáil. However, if the Minister does not prove amenable to the removal of the information session from the Bill, we believe there should at a minimum be a provision where a person can decline to attend an information session and can instead receive information in the post. It is slightly different from the registered post, which again is just sent out and somebody receives it. This would be a situation whereby there is engagement from the relevant persons. They have shown that they are engaging, and they have said they would prefer to receive the information in this different format. The very fact of that engagement and request being given a proper weighting, means that there is confidence that people are going to receive the information in a written form because they have requested to receive it in a written form.

I do not think amendment No. 71 is ideal, but it is a provision which at least does not put persons for whom this is difficult, people who feel very upset about how they have been treated, in a position where they are obliged to attend the information session or not access the information. There is some way that they can register that they want to receive it another way. We do not want to have a position where people are refusing to attend an information session on principle and, as a consequence, they would not get access to the information, in particular in terms of the birth certificate, given that it is something every other person in the State can access freely.I do not think amendment No. 71 is ideal, but it at least provides an option for persons for whom attendance at an information session could potentially prove somewhat traumatising.