Wednesday, 17 May 2017
Adoption (Information and Tracing) Bill 2016: Second Stage
I am delighted to be in the Seanad to bring forward the Second Stage of the Adoption (Information and Tracing) Bill 2016. Some of my colleagues in this Chamber from former times are particularly aware of the importance of this Bill to the Seanad, especially in light of the work done by Senator Bacik, former Senators Jillian van Turnhout and Averil Power and others in respect of the forerunner to this legislation. It is really important for me, having been a member of this House, that it begins its journey here. This is the right place to start and I am really hopeful that we can move the Bill through with a great sense of urgency in order to be able to complete its passage in an appropriate timeframe, particularly as so many people have waited so long for it. I acknowledge the presence of the Adoption Rights Alliance and of one of our country's artists, who are strong advocates in respect of this issue.
The primary purpose of the Bill is to provide an adopted person with a statutory right to apply for his or her birth certificate information and his or her adoption order. Those of us who are not adopted may not completely appreciate the significance of this to people who are trying to find out more about their early lives. I have come to understand over the past 12 months that not having access to a birth certificate causes people great emotional and practical difficulty. In this regard, I believe the emphasis on identity rights is key. As people would be aware, I understand a little bit about the importance of identity rights from other perspectives and backgrounds.
The aim behind the Bill is to give adopted persons, birth parents and relatives a statutory right to an information and tracing service. The proposed legislation provides for structured and regulated access to information and tracing services for those affected by adoption. It also provides for access to information for adopted people, birth parents and others, and operates on the basis of a presumption in favour of disclosing information in so far as is legally and constitutionally possible.
Prior to the foundation of this State, the poor law Acts provided that children who were orphaned or deserted could be cared for in an institution or could be "boarded out" in the locality. This boarding out arrangement was continued in practice by local authorities long after the establishment of the State, along with more informal adoption arrangements and it was not until the 1950s that adoption legislation was enacted in Ireland – much later than many other countries. The Adoption Act 1952 provided important legal safeguards for adopted children and for their adoptive parents. At the time of its enactment there were considerable numbers of children whose care arrangements pre-dated the legislation and who did not come within the remit of the Act. Indeed such informal care arrangements continued to be made for children in the years following the enactment of the 1952 Act. In some of these informal care arrangements, difficulties have subsequently arisen when records have been sought from the authorities. In addition, the State now recognises that there were also children who were incorrectly registered as the children of people other than their birth parents. This could serve to remove any formal record linking a birth parent with his or her birth child. Persons who have discovered that they were incorrectly registered in this way have faced huge and sometimes insurmountable difficulties in obtaining accurate identity information.
Adoption has existed in varying forms throughout our history and by virtue of various motivations.In early society, it was motivated by a desire for continuity of the adopting family and the adopted person was often an adult and most likely male. In modern times, it has been more centred on the creation of a family between adopting parents and an infant or a young child. Currently, the most usual type of adoption in Ireland is an intercountry adoption of a child from overseas under the Hague Convention or the adoption of a child within his or her own family in what may be termed a step-parent adoption.
Today, adoption is primarily a child welfare and protection measure aimed at providing a child with a safe and stable family environment in those rare cases where the child’s parents cannot, for whatever reason, fulfil their parental duties and responsibilities. It is a statutory legal mechanism which transfers parental duties and responsibilities from one set of parents to another. Adoption involves providing a child with new legal parents, a new family and a new identity. Adoption has provided many children with secure and stable family units that would otherwise have been denied to them. However, we also now know that the absence of identity information can lead to lifelong difficulties for an adopted person.
Many parents whose babies were adopted have subsequently expressed a very understandable desire for information about, and sometimes for contact with, an adopted person who is now an adult. Equally, some parents who may have placed a child for adoption in similar circumstances have expressed no desire for such contact and, indeed, may be apprehensive about the implications of this Bill in the context of their own situation. I will come back to this issue later.
This Bill will ensure that, where such information is held by the State, individuals who were adopted as Irish children by US couples in the 1940s and in later years will have access to information about their adoption from this country. Many others who were not formally adopted, but in respect of whom the State may hold early life information, will also come within the remit of this Bill and will be entitled to engage with the information and tracing service to be provided by the Child and Family Agency. The Bill also provides that a person whose birth has been incorrectly registered will have an entitlement to avail of information and tracing services under the Bill in the same manner as any other applicant, although I do acknowledge that, in those circumstances, the goal of obtaining accurate and meaningful identifying information may be significantly more difficult to achieve.
The Bill recognises the fundamental importance of access to adoption records and information for adopted persons and for their families into the future. In anticipation of the Bill, the State has in recent years acquired a large volume of records from various adoption agencies and institutions, including St. Patrick’s Guild, Bessborough, Sean Ross Abbey and Tuam mother and babies home. These records are currently in the custody of the Child and Family Agency and will be transferred into the charge of the Adoption Authority when the Bill is enacted.
In addition, the Bill provides for the Adoption Authority, where the circumstances warrant, to issue a direction under section 8 of the Bill to a person who is in possession of a relevant record, directing that person to transfer the specified record or records to the authority for safeguarding. The Bill provides that the Adoption Authority is to be given responsibility for acquiring adoption records that are still extant, for assessing and restoring those records where necessary and for ensuring their preservation. It is essential the remaining records are appropriately assessed, catalogued and indexed in order to make the right to information meaningful and so that the records are accessible.
In a small number of cases, records may date as far back as the 1900s and may be the only available link to an applicant’s original family. Any assessment of these precious records must be carried out in a professional manner. To this end, I will be bringing forward an amendment to this Bill on Committee Stage to bring all adoption records within the remit of the National Archives Act 1986. This will help to ensure that the record-keeping of these documents is in keeping with current professional standards. The National Archives will be consulted and asked to provide assistance to the Adoption Authority in this regard.
The Bill also provides that a person seeking information may view his or her original records. Again, this is very important for those who have been trying to find out about their early lives. It is a tangible link with their past. Appropriate arrangements are to be put in place by the authority to provide for this. I want to ensure that the Child and Family Agency can provide a timely service which is respectful to applicants wishing to obtain information. The proper restoration, preservation and indexing of records is essential to achieve this objective.
I would like to clarify two issues in particular that have been raised with me regarding the Bill. The first concerns the issue of compelling reasons. This has been highlighted as a matter of concern during pre-legislative scrutiny of the Bill and representations have been made to me setting out these concerns. As a result of the recommendation of the Joint Committee on Health and Children, the Bill was amended to provide that the adjudication of compelling reasons rests with the Circuit Court rather than the authority. I wish to clarify that, under this Bill, where a birth parent has registered his or her details on the register of adoption contact inquiries, the Child and Family Agency will notify him or her in writing if an adopted person makes an application for birth certificate information. The birth parent will be advised that the information will be provided to the adopted person unless the Child and Family Agency is notified within 12 weeks by the birth parent that he or she considers that there are compelling reasons not to release this information. Compelling reasons are reasons, that having regard to all the circumstances, are likely to endanger the life of a person. Where the Child and Family Agency, having considered a submission, determines that there are compelling reasons to refuse to provide this information, it will refer the matter to the Circuit Court for determination. It is important to note that the Child and Family Agency will also consider any information otherwise available to it, either regarding the birth parent or the adopted person that may lead it to consider that there are compelling reasons for not disclosing information and, if it so determines, it will refer the matter to the Circuit Court. I look forward to hearing Senators' views on this issue.
Another matter that has been raised with me is the establishment of a new register of adoption contact inquiries. The Bill provides that Tusla, the Child and Family Agency, shall establish and maintain this register. The existing national adoption contact preference register operated by the Adoption Authority will be discontinued. However, all information relating to that register will be retained as an adoption record and may be used by Tusla to assist in tracing persons. Before the new register is established, each person who applied and whose details are on the old register will be contacted to advise them of the new register that is being established by Tusla, the Child and Family Agency, and to invite them to have their information recorded on the new register. If a birth parent has previously entered a preference for "no contact" on the old register, details of this preference will be transferred by the agency to the new register. The existing register is a passive register. Thus, where a person enters his or her details on the register no action is taken unless there is a match, that is, if, for example, an adopted person enters details on the register and these details are matched with those of a birth parent who previously registered.
Many of those who entered details on the register have since received the information sought or have succeeded in making contact and are no longer seeking an information and tracing service. Consideration was given to providing that all the information currently held on the existing old register would simply be transferred onto the new statutory register. It was decided that, as the new register provides for an active tracing service for applicants rather than the more passive matching service provided to date, a better outcome would be achieved by contacting those persons currently on the old register in order to alert them to the new active register and to invite them to provide an update of their current wishes in regard to seeking information together with or as well as contact, and to ascertain whether they wish to have information entered on the new register. A simple transfer of information would not achieve the same outcome and could run the risk of overburdening the information and tracing service from the outset.
Following extensive engagement with interest groups and Senators, I have decided to reflect further on some other issues in advance of the Bill progressing to Committee Stage. The question of whether an undertaking is necessary was raised with me by several people. The Bill provides that an undertaking not to contact his or her birth parent is required where a person who has been adopted prior to the commencement of the legislation is seeking his or her birth certificate information. This undertaking is required unless the birth parent or relevant guardian is deceased or have indicated that he or she is seeking to have contact with, or is willing to be contacted by, the adopted person. I am aware of the unease of many in regard to the need to give this undertaking and I would prefer to find an alternative solution which respects the rights of all of those involved.I am also aware that in many cases there is no objection on the part of a birth parent to the proposed release of birth certificate information. However, other birth parents who may feel unable to express their views publicly on this matter remain opposed to the release of birth certificate information on the grounds of privacy. It is fair to assume they are anxious that the provision of information will lead them to being identified. A number of social workers from the Child and Family Agency have been in touch with my Department alerting us to significant concerns in this regard. I do not want the Bill to cause further distress to anyone in this position and I have included measures which are intended to minimise such concerns. These include providing that a person who has registered on the register of adoption contact inquiries will be notified in the event that his or her child who was adopted applies for birth certificate information.
While I am mindful of the need to safeguard privacy rights in this Bill, I am also conscious that such rights must be considered in the context of the importance of identity rights of adopted persons. In particular, I acknowledge that the provision in the Bill obliging an adopted person to provide an undertaking before obtaining his or her birth certificate information has not been welcomed by adopted persons. I appreciate and understand the objections raised. I am taking legal advice and trying to find another mechanism which could help to protect privacy rights for birth parents without necessarily obliging applicants to provide undertakings. Subject to this advice, I hope I will be in a position to bring forward an amendment on Committee Stage.
An awareness campaign will be undertaken during the first six months after the Bill's enactment, which will publicise the provisions it contains. The campaign will alert a birth parent to the steps to be taken to ensure that he or she is notified in the event of his or her child who was adopted applying for birth certificate information. While I am mindful of the need to safeguard privacy rights, I am also conscious that such rights must be considered in the context of the importance of identity rights of adopted persons.
I am also considering whether amendments may be needed on Committee Stage in respect of providing for the further adoption of a child.The Adoption (Amendment) Bill 2016, which is awaiting Report Stage in this House, provides for the adoption of any child, including a child who is currently or previously adopted. This means that, for example, when the Adoption (Amendment) Bill is enacted, an adopted child may be placed for adoption by his or her adoptive parents and a further adoption with new adoptive parents can be effected. In such circumstances, it is possible that an adopted person may seek information about or contact with his or her previous adoptive parents in addition to information about his or her birth parents. It is also the case that previous adoptive parents may seek information about or contact with the person they had previously adopted. I am considering bringing forward amendments on Committee Stage to provide for this. I also signal my intention to bring forward a number of related amendments regarding the provision of the information and tracing service. These amendments arise in the main in Part 4, although there may be a need for some consequential amendments in other sections.
The role of accredited bodies will change in the context of the Bill. I am aware of the expertise and professionalism of those agencies that are currently accredited under the Adoption Act 2010 to provide information and tracing services. However, the advice I have received is that the transfer of information to non-statutory agencies may be inappropriate in the context of the provisions of the Bill. For this reason, I intend to bring forward amendments on Committee Stage to address this matter.
It is also my intention to bring forward, later in the year, new policy proposals for information and tracing services with respect to intercountry adoptions. It had been intended to include these provisions in the Bill but, unfortunately, this has not been possible. I have undertaken to bring forward the relevant policy and legislative provisions as a matter of urgency and a proposal to provide for an information and tracing service in respect of intercountry adoptions has been included in the current Government legislative programme. In the interim, the Child and Family Agency will continue with its current information and tracing service for applicants in respect of intercountry adoptions.
I am also considering observations on the Bill that I received from the Ombudsman for Children. In this regard, I may bring forward amendments at a later stage to address the issues raised.
I will now address the provisions of the Bill. Section 1 provides for the Short Title. Section 2 provides for the definition of certain terms. Section 3 provides that the Minister may make regulations for any matter referred to in the Bill, as prescribed or to be prescribed. Section 4 provides that expenses incurred in the administration of the Act are to be paid out of moneys provided by the Oireachtas. Section 5 provides that the authority and agency shall allocate moneys each year for costs arising from their respective obligations under the Act. Section 6 provides that a person may authorise another person to act on his or her behalf.
In Part 2, section 7 provides that the Minister may prescribe a person, who it is reasonably believed has made or has attempted to make arrangements for the adoption of a child, as an information source. Section 8 provides that an information source shall furnish a statement to the authority of the relevant records in its possession. This section also provides that the authority may issue a direction regarding the transfer of the relevant records from the information source to the authority. Section 9 provides that an information source or other person may transfer a relevant record to the authority, notwithstanding that it has not been issued with a direction to do so under section 8. Section 10 provides that the authority shall retain relevant records in respect of each person who is the subject of an adoption order and an information source shall transfer all relevant records to the authority within three months of an adoption order being made. This section also provides that where the agency creates or obtains a relevant record relating to a person who is or was the subject of an incorrect registration or was the subject of an informal care arrangement, it shall transfer the information to the authority.
Section 11 provides that the authority shall ensure that an index and a searchable electronic database of the adoption records is created and maintained. Section 12 provides that the authority shall grant access to the relevant records and to the index and database to persons authorised by the authority or agency. A person who applies for information under Part 5 may also apply to the authority for access to relevant records. Section 13 provides for the search powers to enable the authority to obtain copies of or extracts from relevant records at any place at which the authority believes a relevant record is being kept. This section also provides for the appointment authorised officers and the process for obtaining a warrant to enter any place and to exercise the functions an authorised officer.
Part 3 deals with the register of adoption contact inquiries. Section 14 provides that the agency shall establish and maintain the register of adoption contact inquiries to record the names and contact details of adopted people, birth parents, adoptive parents, relatives of adopted persons or birth parents to record statements made or deemed to be made and to facilitate the agency perform its functions under Parts 4 and 5. This section also provides that where a birth parent has recorded that he or she does not wish to have contact with the adopted person on the national contact preference register, this shall be deemed to be a statement made and recorded on the register. This section also provides that an application for information under Part 5 shall be deemed to be an application to be entered on the register.
Section 15 provides for the definition of certain terms used in Part 4. Section 16 provides that the agency shall provide a tracing service to locate a person specified in section 14 and to locate a person requested under section 20 to facilitate contact or where the location of the person is required or necessary for the provision of information under Part 5. Section 17 provides that the agency may request a person to provide it with information or access to information that is in the possession of the person, where the agency reasonably requires the information concerned to perform its functions under this Bill.
Section 18 provides that a relevant body may share a relevant record or information with another relevant body if that record or information is required by the other body for the performance of its duties under the Bill. The information shall be shared under a data exchange agreement, agreed to by both bodies, and the record or information shared shall not be disclosed other than in accordance with this Bill. The Data Protection Acts 1988 and 2003 shall apply to information shared under this section.
Section 19 provides that the guidelines may be issued for the purpose of providing practical guidance to the agency in respect of its performance under Part 4 and may include guidelines concerning the procedure to be followed for the purpose of locating a person and the records that are likely to be relevant for that purpose.
Section 20 provides that a person may request the agency to facilitate contact with a specified person and the agency shall, without undue delay, take all reasonable steps to locate the specified person and ascertain whether the person are willing to have contact with the requestor. Section 21 provides that the agency may authorise an accredited body to perform the functions of the agency under Part 4. As I indicated, this section may be amended on Committee Stage. Section 22 provides for the definition of compelling reasons as being where the provision of information, having regard to all the circumstances, is likely to endanger the life of a person. Section 23 provides that a relevant person, that is, an adopted person, a person who is or was the subject of an incorrect registration or a person who has been the subject of an informal care arrangement, may apply to the agency for information held by the agency or authority that relates to him or her, including birth relative information, birth parent information, early life information, medical information, provided items, birth certificate information, the name of his or her birth father, a copy of his or her adoption order, or other information that relates to him or the circumstances in which he or she became a relevant person.
Section 24 provides that the where the application relates to birth relative information, birth parent information, early life information or medical information, the agency shall provide this information in a statement in accordance with section 40. Where the application is for provided items, the agency shall provide those items to the applicant.
Section 25 provides that where a relevant person applies for birth certificate information or a copy of an adoption order, the agency shall provide the requested information where the birth mother is deceased or where the adoption was effected before the commencement of this section and there is no entry in the register in respect of the birth mother and the applicant has given an undertaking not to contact her.
Section 26 provides that where an application by a relevant person is for birth certificate information or a copy of an adoption order and there is an entry in respect of the birth mother or the adoption was effected after the commencement of this section, the agency shall notify the birth mother of the making of the application and inform her of her entitlement to provide compelling reasons as to why the information should not be provided. She shall also be informed of the entitlement to support and guidance for both her and the applicant. Where the birth mother provides a statement of compelling reasons, the agency shall determine whether there are compelling reasons, having considered any other information available that is relevant. Where the agency determines that there are compelling reasons, it shall seek the approval from the Circuit Court of its determination. Where the agency determines that there are no compelling reasons, it shall inform the birth mother of its determination and of the right to appeal to the Circuit Court. Where the Circuit Court has made a decision on a matter before it, the birth mother, agency, or applicant may appeal to the High Court on a point of law. Where the birth mother has not availed of her entitlement to provide compelling reasons or the agency has determined there are no compelling reasons and all appeals, if any, have confirmed this determination, then the information shall be provided to the applicant. Where the birth mother has recorded that she does not wish to be contacted and the adoption was effected before the commencement of this section, the information shall only be provided where the applicant gives an undertaking not to contact the birth mother.
Section 27 provides for provision of the forename and surname of the applicant’s birth father in circumstances where the birth father is deceased or where the birth father was consulted under section 7E of the Adoption Act 1952 or section 17(2) of the Adoption Act 2010 and where there is no entry in the register in respect of the applicant’s birth father and the applicant has given an undertaking not to contact him.
Section 28 provides that where an application by a relevant person is for the forename and surname of their birth father and there is an entry in the register in respect of him or the adoption was effected after the commencement of this section or if the information appears to be contained in a relevant record, the agency shall notify the birth father of the making of the application and inform him of his entitlement to provide compelling reasons as to why the information should not be provided. He shall also be informed of the entitlement to support and guidance for both him and the applicant. Where the birth father provides a statement of compelling reasons, the agency shall determine whether there are compelling reasons having considered any other information available. Where the agency determines that there are compelling reasons, it shall seek the approval from the Circuit Court. Where the agency determines that there are no compelling reasons, it shall inform the birth father of its determination and that he may appeal the determination to the Circuit Court. Where the Circuit Court has made a decision on a matter before it, the birth father, the agency, or the applicant may appeal to the High Court on a point of law. Where the birth father has not availed of his entitlement to provide compelling reasons or the agency has determined there are no compelling reasons and all appeals, if any, have confirmed this determination, then the information shall be provided to the applicant. Where the birth father has recorded that he does not wish to be contacted and the adoption was effected before the commencement of this section, the information shall only be provided where the applicant gives an undertaking not to contact the birth father.
Section 29 provides that where an application is made under section 23(2) for other information relating to the applicant, birth parent or relatives or relating to the circumstance in which the applicant became a relevant person, the agency shall locate the person to whom the information relates and provide a statement to the applicant where the person concerned has consented to the release of information, is deceased or where the provision of the information has been authorised under section 43.
Section 30 provides that an adopted person may apply for the provision of the forename and surname of a person who is, in relation to them, a relevant guardian, and the information shall be provided where the relevant guardian is deceased or where there is no entry in the register in respect of the relevant guardian and the applicant has given an undertaking not to contact the person.
Section 31 provides that where an application is for the forename and surname of a relevant guardian and there is an entry in the register in respect of the relevant guardian or the adoption was effected after the commencement of this section, the agency shall notify the relevant guardian of the making of the application and inform him or her of his or her entitlement to provide compelling reasons as to why the information should not be provided. He or she shall also be informed of the entitlement to support and guidance for him or her and the applicant. Where the relevant guardian provides a statement of compelling reasons, the agency shall determine whether there are compelling reasons having considered the relevant guardian's statement and any other information available that is relevant. Where the agency determines that there are compelling reasons, it shall seek the approval from the Circuit Court of its determination. Where the agency determines that there are no compelling reasons, it shall inform the relevant guardian of its determination and he or she can appeal to the Circuit Court. Where the Circuit Court has made a decision on a matter before it, the relevant guardian, the agency, or applicant may appeal to the High Court on a point of law. Where the relevant guardian has not availed of his or her entitlement to provide compelling reasons or the agency has determined there are no compelling reasons and all appeals, if any, have confirmed this determination, then the information shall be provided to the applicant. Where the relevant guardian has recorded that he or she does not wish to be contacted and the adoption was effected before the commencement of this section, the information shall only be provided where the applicant gives an undertaking not to contact the relevant guardian.
Section 32 provides that a birth parent or relevant guardian of an adopted person over the age of 18 years may apply to the agency for the provision of information relating to the adopted person. The agency shall provide a written statement where the adopted person has consented to the provision of information or where, having taken all reasonable steps to locate the adopted person, the agency is satisfied that the adopted person is deceased or the provision of the information has been authorised under section 43.
Section 33 provides that the birth parent of an adopted child may apply to the agency for the provision of information or items, such as information about the child’s health, social and educational development and general well-being as well as letters, photographs and mementoes. On receipt of an application, the agency shall inform an adoptive parent of the request for information or items for transmission to the birth parent. The adoptive parents shall not be obliged to provide information or items, nor is the agency authorised to disclose the identity of the adopted child or adoptive parent, to the birth parent. If the adoptive parent agrees, the information or items shall be provided and an arrangement may be entered into between the adoptive parent and birth parent regarding the transmission of information or items.
Section 34 provides that a birth parent of a person who is or was the subject of an incorrect registration or informal care arrangement may apply to the agency for information. The agency shall conduct enquiries to establish whether the person concerned is or was the subject of an incorrect registration or informal care arrangement. Where the agency is satisfied that this is the case, it shall inform the applicant of this and take all reasonable steps to locate the person concerned. Having done so, the agency shall provide a statement of the information applied for if the specified person consents or if it is satisfied that the person is deceased or the provision of information has been authorised under section 43.
Section 35 provides that an adoptive parent of an adopted child may apply for information and items relating to their adopted child, such as information about the child’s health, social and educational development and general well-being, as well as letters, photographs and mementoes. On receipt of an application, the agency shall inform a birth parent of the application and request that he or she provide information or items for transmission to the adoptive parent. The birth parents shall not be obliged to provide information or items, nor is the agency authorised to disclose to identity of the birth parent, to the adoptive parent. If the birth parent agrees, the information or items shall be provided and an arrangement may be entered into between the birth parent and adoptive parent regarding the transmission of information or items.
Section 36 provides that an adoptive parent of an adoptive child may apply to the agency for birth relative information, birth parent information, early life information, medical information or provided items, and the agency shall provide that information or items that are held by it or the authority. Section 37 provides that an adoptive parent of an adoptive child may apply to the agency for birth certificate information or a copy of an adoption order. On receipt of an application the agency shall take all reasonable steps to locate the birth mother, and the information shall be provided where the birth mother consents, or the agency is satisfied that she is deceased, or the provision of information has been authorised under section 43.
Section 38 provides that an adoptive parent of an adoptive child may apply to the agency for the forename and surname of the birth father. On receipt of an application, the agency shall take all reasonable steps to locate the birth father, and the information shall be provided where the birth father consents, or the agency is satisfied that he is deceased, or the provision of information has been authorised under section 43.
Section 39 provides that the relative of a relevant person or birth parent may apply to the agency for information held by the agency or authority relating to the specified person. The agency shall take all reasonable steps to locate the specified person, and provide a statement to the applicant where the person concerned has consented to the release of information, is deceased, or the provision of the information has been authorised under section 43.
Section 40 provides for the provision of a statement setting out information contained in relevant records held by the agency or by the authority. All statements shall be in writing, and shall set out a statement as to the nature and likely accuracy of the relevant records. Where medical information is to be provided, it may be provided to the applicant by a registered medical practitioner, and not in a written statement.
Section 41 provides for the undertaking given to the agency by the applicant not to contact or attempt to contact the birth mother, birth father, or relevant guardian concerned, or make arrangements with another person to do so. As I stated earlier, this provision may be the subject of further amendment on Committee Stage.
Section 42 provides for the process of obtaining the consent of a person, where required, for the provision of information to an applicant. The consent shall be in writing and may be to the provision of all of the information or document, part of the information or document. This section also provides that the consent may be withdrawn before any information is provided.
Section 43 provides that where the agency cannot locate a person for the purposes of Part 5, despite having made reasonable efforts, it may request the Minister to authorise the provision of information to an applicant.
Section 44 provides that the agency may refer any question of law arising on an application under this part to the High Court for determination, and the matter may be heard in private.
Section 45 provides that the agency shall provide support and guidance to a person who applies to make an entry in the register, who requests the facilitation of contact with a specified person, who makes an application for information under Part 5, or where the person is specified in an application under Part 5. The agency shall publish guidelines regarding the provision of support and guidance.
Section 46 provides for offences, such as concealing, destroying, mutilation or falsifying a relevant record and failing to comply with a direction of the authority under section 8.
Section 47 provides for an amendment to section 14(a) of the Adoption Act 2010 to insert that the mother or guardian will be advised of the effect of this Bill when the explanation of the effect of an adoption order is provided. This is at the stage of the adoption where the mother or guardian is proposing to place the child for adoption.
Section 48 provides for an amendment to section 17(2) of the Adoption Act 2010 to insert that the father or non-relevant guardian will be advised of the effects of this Bill when they are consulted in relation to an adoption.
Section 49 provides for an amendment to section 37 of the Adoption Act 2010 to insert that the information, advice and counselling provided to prospective adoptive parents shall include the effects of this Bill.
Section 50 provides for an amendment to section 96(1) of the Adoption Act 2010 to insert that the functions of the authority include performing the functions conferred on it by this Bill.
Section 51 provides for an amendment to section 8 of the Child and Family Agency Act 2013 to insert that the function of the agency includes performing the functions conferred on it by this Bill.
Section 52 provides that the State, the authority, the agency, members or former members of the boards of the agency and authority, and employees and former employees of the agency and authority shall not be liable in damages in respect of any act done or omitted to be done in the performance of their duties under this Bill, unless the act or omission was done in bad faith.
I thank Senators for their support for, and engagement with, the Bill and for going through the lengthy provisions on the Bill. I look forward to our debate, and I commend the Bill to the House.
I welcome the Minister to the House and thank her for a very comprehensive report on this Bill in its current state.
The Adoption (Information and Tracing) Bill will give adopted persons, birth parents and relatives a legal right to an information and tracing service. The proposed legislation provides for structured and regulated access to information and tracing services for those affected by adoption. It provides for access to information for adopted people, birth parents and others, and operates on the basis of a presumption in favour of disclosing information in so far as is legally and constitutionally possible. Fianna Fail broadly supports this Bill as it makes important progress in recognising the needs and rights of adopted people, and creating a more streamlined and well organised means for birth parents and adopted people to access information and trace their relatives.
In transforming the adoption register from a passive to an active one, the Bill will greatly increase the efficiency of the register and will likely increase the number of successful matches and recorded retrievals. In creating a more accessible service, this Bill will expand the range of people to whom adoption and birth information is available, for example, people adopted through illegal or informal adoptions. This Bill, which was promised by both this Government and its predecessor, is a long-overdue recognition of the struggle of adopted persons and their relatives to increase the ease with which important records can be accessed in the legislative process.
The Adoption Act 1952 remains the primary legislation on adoption in Ireland, as the first Bill to formalise adoption in Ireland. This Bill provided for an adoption system which preserved the anonymity of birth parents, driven by the social and political context of the time. The Adoption Act 2010 sought to build on this by improving standards in domestic and intercountry adoptions. Under current law, there is no comprehensive statutory right for adopted people to access the records relating to their birth or adoption. It is estimated that around 44,364 adoption orders were made in Ireland between 1953, after the Adoption Act 1952, up to an including 2015.
The proposed legislation will establish the register of adoption contact inquiries and provides for the safeguarding of all adoption records. This register will be under the remit of Tusla, the Child and Family Agency. After the enactment of the legislation, Tusla will undertake a six month long campaign to raise awareness among adoptees and birth mothers. In particular, the campaign will outline that an adopted person aged 18 years and over will be entitled to apply for their birth certificate information and that a birth parent will be given an opportunity to indicate their preference regarding contact on the register of adoption contact inquiries. The existing national adoption contact reference register, NACPR, will be discontinued. However, all information relating to the NACPR will be retained. Before the new register is established, each person whose details are on the NACPR will be contacted advising them of the new register that is being established by Tusla. They will be invited to apply to have their details entered on the new register, which is to be welcomed. However, where birth parents have already indicated a preference for no contact on the NACPR, details of this preference will be transferred to the new register. Where a birth mother is deceased or there is no entry on the register in relation to her, birth certificate information will be provided to an adopted person after he or she has given an undertaking agreeing not to contact or attempt to contact his or her birth parent or not to ask anyone else to make or attempt to make contact on his or her behalf.
In cases where there is an entry on the register in respect to the birth mother, the agency will first contact the birth mother, informing her of the request and telling her that unless she provides compelling reason, that is, reasons to suggest that providing the information would endanger a life, the requested birth certificate or adoption order will be provided. While this is an issue of contention with some survivors, it aims to strike a balance between providing information and ensuring that the privacy of birth mothers is respected. Under the Irish constitution, this is an important balance to be struck,
As I said at the outset, while there are certain aspects which may need to be ironed out later in the legislative process, we extend our overall support for the Bill and the principles which underpin it. We will be submitting some amendments, and we look forward to hearing the amendments being proposed by others.While this long overdue Bill is to be welcomed, there is a need for tweaking in many areas.
I warmly welcome the Minister to the House. I particularly like to see her here and believe she has an amazing record in this whole area. She has been a wonderful advocate for children generally. This Bill will be one of the cornerstones of her policy legacy and I know she is anxious to get it right. In previous debates about the Adoption (Amendment) Bill, she has delivered in separating the two issues which are interlinked in many ways. I thank her for a comprehensive speech in which she outlined she would table further amendments. This shows she is a Minister who is constantly engaging in and thinking about the process to see how it can be tweaked. The more conversations we have with people and the more we hear personal stories and testimonies, the more we change our perspective. That is the nature of this very complex issue in which there is no case that fits all.
We all agree the most important and right place for children is with their parent or parents, or with their extended family, where they feel secure and safe and, in the word the Minister used, connected. What is paramount in everything to do with children in legislation is what is best for the child. That always has to be to the fore of any legislation dealing with children and their well-being. It is about feeling safe and connected, knowing who one is, where one belongs and the road one has travelled, even though it will have broken sections. This legislation attempts to provide a real structure and legal basis for adopted people who wish to get information and trace from where they have come. The other important line is about balancing the rights of all those involved, which is tricky. I acknowledge the Minister's personal commitment and advocacy in this role. It has been outstanding and is shown with this critical legislation.
The Oireachtas has a wonderful library and research service team which produced a digest for the Adoption (Information and Tracing) Bill 2016. I spoke to two Ministers recently who told me they never read a digest about a Bill they had before the House. Is it not extraordinary that they had never taken the time to use this in-house service? Is it not extraordinary that a clever politician, whether in the Dáil or Seanad, would not go into the Library before coming into the Chamber to read the digest for a Bill?
From the pre-legislative scrutiny committee hearing, the digest identified 12 key points about this legislation which it flagged with red, amber and green lights. It is interesting there are some red lights which assists us in our work. One point was balancing the rights of identity with the rights of privacy. The digest stated:
The general scheme of the Bill makes a "presumption in favour of disclosure of adoption information". However, it also makes provision for non-disclosure of adoption information in cases where there are "compelling reasons, such as may endanger the life of a person".
What is meant by "compelling reasons"? "Compelling" is an open word. Will the Minister share some detail in that? Conversely, the digest stated, "The committee recommended that compelling reasons for disclosing adoption information should equally be considered, including an adoptee’s need for accurate family medical history and genetic information if they seek medical treatment." It is interesting the digest has a red flag on this. The Minister touched on it earlier on and she might give us some feedback on that.
I do not know where to start with the role of Tusla. The digest outlined:
The general scheme of the Bill outlines Tusla’s role in providing a centralised, streamlined and standardised adoption information service. However, the committee was also aware of current delays in delivering certain adoption services and is concerned about the possibility of further delays in providing information and tracing services in the future. Service delivery is time sensitive.
Again, serious concerns were expressed as to whether Tusla has the expertise, sufficient staff and the resources to deal with this. The Minister's response was that the issue of resources would be kept under regular review. That is not sufficient. We need assurances from the Minister in this regard. Will the necessary resources, professional staff and all the people around this sensitive area be in place?
The general scheme provided for a 12-month awareness campaign prior to the introduction of the new adoption information register. The committee suggested a shorter, more intense information campaign. While I have no difficulty with a six-month campaign, the Minister would need to redouble the efforts with a more intense education and instruction programme. Again, that was a concern raised by the pre-legislative scrutiny committee.
Given the likely increase in demand for counselling services, advice, mediation and support services, the committee raised serious concerns about resources. Again, the response was that the issue of resources would be kept under regular review. If all this legislation does not have the teeth, the power, the money or the resources to see it through, then we are wasting our time. We need reassurances on this.
The digest stated:
The committee recommended extending the period for appeals from 14 to 28 days [at a minimum]. The committee also recommends allowing appeals to be heard in the Circuit Court rather than the High Court.
That is reasonable and fair. I believe the Minister reflected that in her final draft of the legislation.
The independent oversight of the new information tracing system is critically important. This was also emphasised by the pre-legislative scrutiny committee. It was noted in response by the Department but that is not enough. What oversight process is planned for this?
There also needs to be a clear definition of "relative". Where does a cousin come into this? The committee expressed some concerns, stating it should be further expanded to include other members of the family.
I support the Bill in principle but I see the potential for several amendments. I already have some half-drafted. I thank the Minister for this Bill and much work has been done on it. The whole issue of competence and resources around Tusla and the other agencies involved will be critical to ensure this Bill is successful.
For the benefit of Members, it is unlikely that every Member scheduled to speak will get the opportunity before we adjourn before 2.15 p.m. I think we will only get Senators Noone and Warfield in at this point.
I will try and be as brief as possible to accommodate colleagues.
I welcome the Minister and her officials to the House. It is clear from her speech that the Adoption (Information and Tracing) Bill 2016 is detailed and complicated. I thank the Minister and her officials for their careful and detailed work on it.
The Adoption (Information and Tracing) Bill 2016 will give adopted persons, birth parents and relatives a legal right to an information and tracing service which, as other Senators said, is long overdue. This Bill offers access to information for adopted people, birth parents and others, and operates on the basis of a presumption in favour of disclosing information in so far as is legally and constitutionally possible. The proposed legislation will establish the register of adoption contact inquiries and provides for the safeguarding of all adoption records. Tusla, the Child and Family Agency, will undertake an awareness campaign during the first six months after the legislation comes into operation to inform people about the Bill's provisions.
The campaign will outline that an adopted persons, aged 18 years and over, will be entitled to apply for their birth certificate information and that birth parents will be given an opportunity to indicate their preference regarding contact on the register of adoption contact inquiries. People entering their details on the register can change their contact preference at any time. It is expected the information campaign will encourage adopted people and birth parents to enter their details on the register and to engage with Tusla’s information and tracing service.People who were affected by informal adoptions - that is in a long-term care arrangement where no adoption took place or where births have been incorrectly registered - will be entitled to an information and tracing service in the same manner as an adopted person or a birth parent of an adopted person.
The proposed legislation also provides that Tusla will offer support and guidance to adopted people, birth parents and relatives at all stages of the information and tracing process. A new register is to be established and operated by Tusla. An adopted person, a birth parent or a relative seeking to share information or wishing to have contact with a person from whom they were separated as a result of an adoption, may apply to have their details entered on the register. People can also enter their details on the register to indicate that they are not willing to be contacted by a specified person.
I would like to address the subject of adoption records. Adoption records are currently held by the Adoption Authority of Ireland, Tusla and agencies accredited under the Adoption Act 2010. These records are of historical significance and are of great importance for adopted people, birth parents, and relatives. Under the proposed legislation, the authority will have overall responsibility for the safeguarding of all adoption records.
I will turn now to the issue of adoptions effected before the proposed legislation comes into operation and to which the Minister has also referred. An adopted person aged 18 years or over who was adopted before the proposed legislation comes into operation, will be provided with his or her birth certificate information, as held on record, following a request to Tusla and subject to certain conditions. Where a birth mother has registered her details on the register, Tusla will notify her, in writing, of the adopted person’s application for his or her birth certificate information. Where a birth father was consulted in relation to an adoption and has not registered his details on the register, and the adopted person has given an undertaking not to contact his or her birth parent, he or she can be provided with details of his or her father’s forename and surname, as held on record.
Although I broadly support this Bill, I will highlight some of the objections that were brought to my attention by Cunamh, which is an accredited body licensed regulated by the Adoption Authority of Ireland. Cunamh is concerned that due to governance and legislative issues, when this Bill is enacted accredited bodies such as Cunamh will no longer be able to provide adoption information as this information will be provided solely by Tusla. Will the Minister confirm the position on this? Cunamh argues that according to official statistics Tulsa is losing approximately 150 social workers a year, yet this legislation in its current form is going to give the responsibility for information and tracing solely to Tulsa, resulting in the closure of agencies such as Cunamh that have a long history and expertise in this area. While I broadly welcome this Bill and commend the Minister on her work, I believe there are certain issues that may yet need to be addressed on Committee Stage. The Minister has also alluded to this.
I will be brief in an attempt to make space for others. I thank the Minister for joining us in the House. Information and tracing for our adoption services have been long sought by natural mothers who have been wronged and by adopted people who are seeking truth and justice. I commend the Minister's movement on the issue. It is made even more poignant after the revelations in March of the Tuam mother and baby home. I am sure there are many women across the State who hope that the baby taken from them back then was adopted and did not meet a horrific and unjustifiable end in Tuam. It is through the bravery of people such as Catherine Corless that those women received answers. It is, however, worth noting that the women whose children were sent overseas to the likes of Britain and the US cannot retrieve information through the proposed legislation.
Information and tracing are sorely needed not only to provide justice to those who have been wronged, but to infer rights for people in the future. Sinn Féin believes that the Bill before us today falls short and that its implementation will only hinder those seeking information and tracing. While Sinn Féin welcomes the Minister's commitment to explore amendments, we believe the Minister should go back to the drawing board and return with a Bill that contains unfettered access to birth certificates for adopted persons; automatic access for adopted persons to their adoption files; and a tracing service for those who wish to avail of it. Sinn Féin agrees with the Adoption Rights Alliance in its interpretation of the Bill as unnecessarily convoluted and far from the expectations of those it seeks to redress. For example, the lack of automatic access to full, non-redacted records and birth certificates is unnecessary. Birth certificates are often the key for an adopted person in his or her attempt to unlock their past and the measures contained in this Bill stifle what could be worthy efforts.
It is unnecessary and unwarranted to include a statutory declaration provision in section 41 of the Bill. In its 2015 pre-legislative scrutiny report, the Joint Committee on Health and Children said that " ...based on the weight of evidence and the legal submissions received from witnesses, the Committee can find no convincing reason for the inclusion of a Statutory Declaration in the Bill." To include a statutory declaration suggests to adopted people that they cannot be trusted to respect privacy.
The Bill further undermines adopted people by compounding information and contact despite being warned against doing so by adoption rights advocacy groups and in pre-legislative scrutiny. It goes against the advice that some adopted people do not want contact with their natural mothers at all, while others will wait for a period of time after obtaining their birth certificates before attempting to contact their natural mothers or family members. This is because adopted people often choose to absorb the information before progressing any further.
As I said earlier, a noticeable omission of the Bill is the lack of provision on information and tracing for those who were sent, or whose children were sent, overseas for adoption. Considering that some 2,000 babies were exported to the US from the Magdalen laundries, a large cohort that the Bill could have provided for are not included. I can appreciate the sensitive and turbulent nature of making private information available especially between international parties.
Even if it was to give truth to concerned natural mothers, Sinn Féin believes there was scope for attempts to be made in that regard. When one considers information and tracing in the context of adoption, we think of families being reunited and lifelong questions being answered for natural parents and their adopted children. In Ireland, the church-State relationship tore families apart as they did not fit into an acceptable model - as some would have seen it - and we owe greater truth and justice to the birth parents and adopted people who were the fallout of the State's failures. This Bill falls short of their wishes. Sinn Féin, therefore, believes the Bill to be a missed opportunity.
I join others in welcoming the Minister to the House and the opportunity to discuss and debate these issues. It is a very welcome step that we are looking to legislate on the access to information for adopted persons, on the exchange of information and for better tracing mechanisms. I accept and acknowledge this aspect.
I will move on to the areas of concern, some of which the Minister has already acknowledged. The Minister gave some history of the changing nature of adoption in the State, but there is another aspect to the history of adoption in the State that was, perhaps, not as acknowledged. I know we will have a chance to discuss it later today and it is important. It concerns the aspect of the history of adoption in the forced adoptions and the experience of adoption under great duress. We know of the almost 2,000 children who were adopted to the United States of America. We know of adoptions that took place when women were in situations, effectively, of forced detention. The very difficult and problematic history of adoption needs to be acknowledged. Today, we are hearing discussion about balance and we need to acknowledge that there has been a deep imbalance done by the State. The rights of the adopted children and their birth parents have often been very low in the balance of concern of the State and of those involved in adoption in the past. When we talk about balancing the two elements it is important to recognise that both have, in the past, been subservient to other concerns. This is a key factor when we look at the context.The Minister has acknowledged that there are concerns about the question of compelling reasons and the question of clarity around that. I acknowledge that Senators Ruane and Kelleher share many of the concerns I mentioned. We may table amendments on later Stages so I hope we can work with the Minister on that. In respect of compelling reasons, well-being and life and health, it has been well enunciated by Senator Warfield that there are compelling reasons and concerns for adopted persons, indeed issues of life and death, where they may wish to be able to access information about their birth and heritage.
I will focus on the issue the Minister identified as being problematic, for which I thank her. This is the question of the no-contact undertaking which is there as a requirement at the moment. It is a matter of great concern. We know that persons have a right to their identity. If we want a recent mandate, we passed a referendum in this State which affirmed the rights of the child and under the UN Convention on the Rights of the Child, the right to identity is a key part of that. An inherent part of that right to identity is the knowledge of one's past and family history. I believe section 41 severely challenges and undermines that right. It shows disrespect to adopted persons and places them in a different situation. No other group of citizens in the State must sign disclaimers, waivers and undertakings to access essential information such as their birth certificates. It is completely out of line with this. I know this issue has been of concern at UN level where the Committee on the Elimination of Discrimination against Women, CEDAW, has asked the Irish State to justify that element in the proposed Bill which sought required surviving adoptees to sign a statutory declaration undertaking not to contact their biological mothers as a condition for gaining access. This was a concern at CEDAW and, in response, the State again spoke about the right to privacy.
Some have challenged that there is a blurring of the line between privacy and secrecy. There is, of course, the right to a private life on the part of a person seeking information. It seems extraordinary that somebody would be asked to sign and waive away their right to contact a parent as a default mechanism. Surely this is an interference in the private life of the individual who has been adopted. We do not interfere in the relationships between others. If there are situations of unwanted contact, we have mechanisms such as our legislation in areas such as harassment. For example, we have barring orders. We spoke about the presumption of information but what we are seeing here is people being forced to choose between identity and information. People who in many cases have endured great cruelty from this State are being asked to choose between their right to identity and relationship and their right to information alone. It is unacceptable. We need to be very clear that those who are adopted are not supplicants or applicants to the State. They are not looking for charity. In many cases, they have experienced what charity amounted to in this State in the past in its religious and other institutions. They are looking for justice and their proper rights on the same basis as any other citizen. That is what we need to grant them. I urge the Minister to reform this area on Committee Stage. We will certainly look to support her if she has amendments to that effect.
Another point that relates to this is the double clause. We already have a provision, which is a problematic one, that allows for compelling reasons. It allows an individual to say that they have reasons they do not want their contact details shared. Why do we have that as one bar and the no-contact clause? Another problem with the no-contact clause, which also relates to the concerns regarding the transfer of the register, is the fact that where somebody has given no indication that they want contact, the assumption is that the no-contact clause would be used in that condition. We know there are situations where women were told their children were dead. There are many original birth mothers in the State who do not know whether their children are alive or adopted, who may not be in contact with the State on an ongoing basis and who have been given false information. These issues arise so there is a real concern about that default presumption.
There is also concern around the lack of original copies in terms of documentation. It is one thing to be able to view one's documentation but to be able obtain original copies, which is important for people as they move through their lives, is another thing. If they make their lives in a new country, they should have original and appropriate documentation and be able to use that on the birth certificate they recognise as their own. An edited document from a statutory agency is not the same thing, so I hope the Minister also addresses that concern. The question is not for those who have been through the adoption system in Ireland to prove their trustworthiness. We need to move away from the stigma that has been associated with this area-----
The State must restore trust in its citizens. I welcome the Minister's proposed amendment on Committee Stage regarding the National Archives. I think that is appropriate for this paperwork. As well as the concerns of all those individuals relating to tracing and the appropriate treatment of records, we also need to acknowledge that the State has a duty to be able to amass these and look to this in an appropriate way as part of our collective history. In particular, where records have been inaccurate, it is important they are still transferred and included. I commend that amendment and look forward to it. I look forward to the next Stage of this debate.
I am pleased to speak about this legislation. I welcome it and believe it is long overdue. As previous speakers have said, it may not be perfect, and the Minister has acknowledged that herself, but it is a very genuine attempt to improve the existing legislation and I commend the Minister on that. It is very important that this Bill gives birth parents and relatives a legal right to information and tracing services. A legal right is a legal right. In the past, it was a grace and favour arrangement where if someone was lucky, he or she got information. If that person knew how to go about it - searching records, archives and the register of births, deaths and marriages - that person might find his or her mother, son, daughter or whatever loved one that person was looking for. However, we have learned from the mistakes of the past. Unfortunately, it may be too late for some but it is important legislation.
I note that Tusla will undertake an awareness campaign when the legislation comes into operation to publicise it and provide information on what details can be given and the circumstances in which this can be done. This campaign should not just be run in this country but should be widespread because the Irish diaspora is all over the world.
It is a very comprehensive Bill and I commend the Minister and her officials on the thoroughness and genuine attempt to cover all the angles. Tusla will offer support and guidance to adopted people and birth mothers. It has given consideration to every variance and sensitivity and there are options for appeals for anyone not satisfied with the determination of Tusla or the Adoption Authority of Ireland. I am aware that Tusla has been doing a lot of good work and provides professional advice and guidance. I know of an adopted person who had dealings with Tusla in recent years. They met their birth mother for the first time in their 40s. They received counselling and advice. Matters were anonymous in the sense that no addresses were given. There was written contact with their mother before both parties met. The person and the birth mother were supported through the process, boundaries were agreed and a meeting was arranged. The adopted person met their mother as a result of the process they went through. They are working on building a tentative relationship. It is not easy. There is a lot of hurt and there are many years to catch up on with an elderly and frail birth mother who lives in the UK. That is why this legislation is so important.It will allow people who are 18 years of age to access their birth information if they so wish. They will have time to build relationships and they have an entitlement to this information.
The Minister and her officials have obviously examined this matter from many angles and appear to have gone to great lengths to cover every eventuality. Most importantly, they have taken a human approach in dealing with the sensitivities involved. I commend all of them on that and on the work that has gone into drafting this legislation.
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.
Finally, we need to be careful that this vitally important Bill clearly discloses a level of trust in adopted persons and attaches a great deal of weight to their rights to know their own identities. Unfortunately, some of the provisions in the Bill appear to be based on a distrust of adopted persons and to refer back to an old culture of concealment and secrecy. The Tuam revelations have shown us only too well what that has led to in the past, so we need to be careful about the drafting. Nonetheless, I welcome the Bill in principle.
Like Senator Bacik, I welcome the Minister. I thank her for her detailed analysis of the Bill and her willingness to extend the time for debate. She has shown quite a lot of flexibility and there appear to be a number of amendments in the pipeline, which is very welcome. Regarding the names she provided in respect of the entities from which the State obtained records - St. Patrick's Guild, the Bessborough mother and baby home, Sean Ross Abbey, the Tuam mother and child home - I must say, what a list of infamy.I understand the Minster says she will bring all records under the National Archives, presumably that includes the existing national adoption register. Nothing will be excluded, nothing will be shredded or got rid of, because it seemed to me there was something of a grey line there where she said that we would not transfer everything because it would be cumbersome and difficult.
Suppose someone breaks the agreement, is there any penalty? I did not see one. What happens to them? On the compelling reason, is it really the case that it would have to be a threat to life? Envisaging the actual death of the person is a very high bar to put in place.
There are a number of principles which should be adopted. Firstly, no adopted person should be asked to sign a statutory declaration before being allowed access to medical information. Of course it should be given, it is vital. This kind of thing is so important for medical treatment. All files relating to adopted people should not be given to Tusla but to an objective organisation so that it can be maintained.
I wish to put a couple of voices on the record, those of people who have been in this situation. I was contacted by a woman who said that if the Bill is enacted in its present form it would lead to further stigmatisation and so on. She said:
"My own husband's mother was 14 years old having him and she was made to give him up for adoption. She has no recollection of signing adoption papers and at 14 years how can one sign a legal document without a guardian?"
That is a very good question. At age 14, how can one possibly be assumed to have the legal capacity to do this?
On the removal of the proposed mechanism to provide statements drafted by Tusla in lieu of copies of original records, this is actual personal information. Why should third parties go trawling through someone else's personal information and then give them a type of digest form?
I have another very moving letter but I do not have time to put it all on the record. It is from the founder of the Irish First Mothers group. This is a very important group of people. Her first child was born in April 1974, and she spent four months in the Good Shepherd convent. She was aged 19. She nursed her child for seven days before the child was taken from her.
I have had contact from Pact. It welcomes the Bill, by and large, but it is concerned about the closing down of the various agencies. There are six of them: Here2Help, Cúnamh, Clarecare, St. Brigid's, St. Mura's and Barnardos. It would be a pity if they were denied a role in this area. The removal of the services provided by these accredited agencies would cause uncertainty to the added waiting time of adopted persons, birth relatives and adoptive parents. Receipt of birth information, undergoing tracing, having contacted birth relatives can be a very emotive journey. Adoptive parents already have a relationship with these agencies and this will now be interrupted. That could be emotionally disturbing for them.
There will be a cut in adoption services when demand is likely to increase. We have heard about the Tusla adoption service. There are questions about Tusla, and it is already overstretched and under-resourced. Tusla has not given assurances that future information and tracing services will be adequately resourced. It will be the sole provider of adoption information and tracing services with the loss of considerable expertise and this will lead to a longer waiting time. Information and tracing services will no longer be subject to regulation by the Adoption Authority of Ireland.
The required signing of the undertaking not to contact the parent was discussed on Committee Stage, as the Minister knows. The requirement to sign a declaration was first introduced by the then Minister, James Reilly, in 2015. It was roundly criticised by 1,400 members of the Adoption Rights Alliance and by the Oireachtas Joint Committee on Health and Children. It said that it could find no convincing reason for the inclusion of a statutory declaration in the Bill. Here we have authoratitive voices saying there is no reason for such an inclusion. In any case, birth certificates are already public records. This is the only group of people which is required to sign such a declaration. People from the diaspora looking to find their genealogical background do not have to sign a declaration saying they will not contact anyone.
I will make one final point. The advice of Dr. O'Mahony was already briefly referred to by Senator Bacik. His evidence to the Oireachtas Joint Committee on Health and Children in 2015 was that it would be constitutionally sound for the Oireachtas to legislate to provide all adult adoptive persons unfettered access. That is the judgment of a senior counsel with a track record in this area. The reliance on the IO'T v. B judgment is only partially effective because they were individuals who had not been formally adopted anyway.
I compliment the Minister on introducing this legislation. I am grateful that she has indicated that she is considering amendments and look forward to the passage of a much improved Bill.
I thank the Senator for staying this long.
I will only say a few things now as we will have a lot of time to cover this ground in the following Stages. It is great that we are completing the Stage now. That is wonderful and I thank the Senators for staying along with me to do that.
As I began my remarks by saying I have a sense of urgency in regard to this legislation, I would like to move it as quickly as possible through the Seanad. As all of the Senators spoke, from Senator Daly to Senator Norris and everyone in between, it struck me that it will take a lot of work and great determination on all our parts in order to move it through as quickly as possible. There are a lot of issues regarding the Bill even as it stands and I acknowledge that.
I thank all the Senators for welcoming the Bill and the work that went on to bring it to this point. Over the last number of years, and particularly the last year or year and a half, the officials in my Department have worked non-stop on this Bill, listening to the different concerns and putting it together, working with the Office of the Parliamentary Counsel. It has been a huge undertaking. It has been very complex.
Up to this point, the officials have tried to be as open as possible in order to take on board the comments and constructive criticisms. In light of the Senators' comments, I am struck that we still have a distance to go. I am committed to do that as quickly as possible. We might have some meetings with Senators before we get to Committee Stage but I ask for co-operation to put together a pragmatic, idealistic, human rights approach towards bringing this Bill to conclusion. Many of the Members in the Seanad may operate that way but we must do our very best to get the best for people who are adopted. I am committed to that. I do not see this as a solo run on my part or on the part of the Department in any way. I hope and believe that we can achieve this through cross-party and Independents working together. I promise to do all that is possible to move this through the Seanad.
I know many Senators welcomed generally that we have come to this point. Some are more positive than others about the way the Bill is structured, its outline and components, and I appreciate that. I heard some deep concerns about compelling reasons, even in sharing the speech here, going through the different types of people who can offer compelling reasons.We have to do that piece of the Bill right, because there may be many people who can identify compelling reasons, or otherwise, depending on where we go in respect of that issue.
I also want to acknowledge the contributions of Senators Warfield, Bacik and others in raising questions, especially around the human rights approach and the issue of trust in respect of adopted people. The Bill needs to reflect that we trust them. In order to do that, changes may need to materialise but we need to work hard to identify the most important changes.
Some Senators really challenged that the Bill as it stands might have a presumption in terms of privacy rights rather than identity rights. We acknowledge that it is still important to find a way to ensure acknowledgement and protection of privacy rights in addition to identity rights. Perhaps we have not achieved the proper balance yet.
At the same time, there needs to be balance. Many Senators, including Senator Boyhan, raised the issue of Tusla and resources. Senators referenced money and social workers, etc. What I can say for now is that I have already raised that with the agency. Tusla has done considerable work already in terms of identifying what the agency needs and, in particular, the number of people needed in the agency, including social workers, among others. Within 2017 and 2018 I am committed to seeking the additional resources to do that. I have asked Tusla to undertake business case scenarios in the context of reducing the waiting lists and the time it takes to get information. This is relevant in the context of the Adoption (Information and Tracing) Bill as well as in the context of the issues that have emerged with mother and baby homes. People want to have information and need to be able to trace it. Tusla will play a key role in this regard. We are aware of the need to prepare for this. Indeed, preparation has already begun.
I appreciate the comments welcoming the amendments relating to placing information in the National Archives. The points at issue include the provision, protection and preservation of information.
I am keen to reflect on all the comments and issues raised. I trust it is the hope and intention of everyone that the Bill reflects that we have moved into a new era and culture whereby we respect the separation of church and State. I have spoken on this question in the context of the Tuam issue. I was struck by the comments of Senator Bacik and how she coupled that issue with the question of trust and adopted people. That may be another manifestation. We have an opportunity with this Bill to provide another manifestation of or example that we are in that era.
Having said all those words, it may sound as if it is an easy task but I am aware that it is not. I appeal to Senators for their co-operation and for them to work with me. I expect that we will be able to achieve more than what we have now. It will involve some compromise but I hope we can get to a place where we are all happy.
Ivana Bacik, Victor Boyhan, Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Martin Conway, Gerard Craughwell, Paul Daly, Frank Feighan, Alice Mary Higgins, Maura Hopkins, Kevin Humphreys, Billy Lawless, Terry Leyden, Tim Lombard, Michael McDowell, Gabrielle McFadden, Jennifer Murnane O'Connor, Catherine Noone, Kieran O'Donnell, John O'Mahony, James Reilly, Neale Richmond.