Written answers
Tuesday, 20 September 2022
Department of Children, Equality, Disability, Integration and Youth
Child Protection
Mary Lou McDonald (Dublin Central, Sinn Fein)
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399. To ask the Minister for Children, Equality, Disability, Integration and Youth the progress to date in implementing each of the seventeen recommendations of the Special Rapporteur on Child Protection Proposals for a State Response to Illegal Birth Registration in Ireland in tabular form. [45483/22]
Roderic O'Gorman (Dublin West, Green Party)
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The Birth Information and Tracing Act 2022 robustly fulfills the vast majority of the Special Rapporteur's recommendations, specifically addressing recommendations 1- 14 inclusive.The Birth Information and Tracing Act 2022 was signed into law by President Higgins on 30 June 2022. I commenced the first parts of the Act on 1 July with the establishment of the Contact Preference Register and the launch of the Public Information Campaign. The Act provides that the Contact Preference Register must be open for a minimum period of three months before applications for birth information can be accepted. Accordingly, on the 12thSeptember, I signed the Order which will commence information and tracing services from 3rd October.
I have set out progress to date in implementing each of the seventeen recommendations of the Special Rapporteur on Child Protection's Proposals for a State Response to Illegal Birth Registration in Ireland in tabular form below.
| Recommendation | Progress to date |
|---|---|
| Recommendation #1: Every person has a legal right to have their identity (including their parentage and their date and place of birth) accurately recorded. The Irish State is obliged to take measures to ensure that this occurs; to mitigate risks that birth registrations may be falsified; and to investigate and remedy instances of incorrect registration. | In recognition of every person’s legal right to have their identity accurately recorded, the Government introduced significant amendments to the Civil Registration Act, through the Birth Information and Tracing Act 2022. These amendments ensure that robust legal powers exist for the General Registrar to obtain relevant information to support correction of the birth register. |
| Recommendation #2: In spite of having knowledge since the early 1950s of the possible existence of a practice of illegal birth registrations, and having received an actual admission of the practice as early as 1992, the State failed until 2010 at the earliest to take sufficient steps to prevent the practice; to investigate its scale; or to remedy its effects. These failures exacerbated the impact of illegal birth registration on the persons affected and amounted to a violation of the right to identity under domestic and international law. It is incumbent on the State to take all practicable measures to remedy these violations without further delay. | The Government has taken measures to remedy these matters through the Independent Review into Illegal Birth Registrations commissioned in 2018, the creation of the Interdepartmental Group in January 2021 to develop policy proposals to address issues arising for persons affected by illegal birth registration and the extensive new legislative measures set out in the Birth Information and Tracing Act 2022. These measures span issues of access to information, statutory tracing services, specialist tracing services, amendments to the Civil Registration Act to support accurate birth registration and legal acknowledgement of 'lived' identity, assurance on contracts entered into by affected persons and amendments to succession law. |
| Recommendation #3: It is a matter for persons affected by the practice of illegal birth registrations to indicate whether they wish to receive a State apology. Should such an apology be requested, it should be forthcoming. However, apologies carry little weight unless backed by practical measures to remedy the rights violation in question. As such, the State should implement measures aimed at the identification, so far as possible, of cases of illegal birth registration; informing individuals affected; and correcting the register of births. | The then Taoiseach, Leo Varadkar T.D., and the lead Minister, Roderic O’Gorman T.D., have delivered separate apologies on behalf of the Government, on the record of the Houses of the Oireachtas, to people affected by an illegal birth registration. In recognition of every person’s legal right to have their identity accurately recorded, the Government has introduced extensive new legislative measures via the Birth Information and Tracing Act 2022 (see response above). |
| Recommendation #4: In implementing such measures, it is incumbent on the State to take steps aimed at mitigating the trauma that may be experienced by individuals who are affected by illegal birth registration, and to avoid doing anything that might add to that trauma. Every care must be taken to ensure that individuals affected by illegal birth registration are informed in an ethical and sensitive manner; that the information provided is accurate; and that affected persons are provided with the necessary supports to assist them in dealing with the trauma that typically results. | The Government accepts the importance of ensuring that people affected by illegal birth registration are informed in an ethical and sensitive manner; that the information provided is accurate; and that affected persons are provided with the necessary supports to assist them in dealing with the trauma that typically results. Tusla has reviewed practice in how individuals are informed and is committed to holding itself to the highest standards in terms of sensitive, ethical practice, underpinned by the provision of strong supports. It also continues to engage with affected individuals with a view to ensuring that their views inform ongoing development of sensitive and ethical practice. Under the Birth Information and Tracing Act 2022, a broad spectrum of counselling and support is available to relevant persons, including those affected by illegal birth registration on request. A number of support options are in place for anyone impacted. In particular, Tusla, through Barnardos, provides a therapeutic service and counselling support to those whose births were illegally registered. These supports are available on both an individual and group basis, subject to the wishes of each individual. |
| Recommendation #5: The proposals contained in the Birth Information and Tracing Bill regarding a Register of Acknowledged Identity, which would allow a person affected by illegal birth registration to have the details of the registration of their birth corrected while also continuing to legally use the identity which they have used all of their life, are endorsed as striking the correct balance. | The Birth Information and Tracing Act 2022 provides for affected persons to have their birth accurately recorded and also to have the identity by which they have lived legally recognised, with a choice in terms of a person being able to generate a certificate from the register of their choosing (i.e. the birth register or the new register). |
| Recommendation #6: Adoption tracing legislation providing for unqualified access to birth certificates, adoption files and other early life information, both for formally completed adoptions and for incomplete adoptions which resulted in an illegal birth registration, should be enacted at the earliest possible opportunity. | The Birth Information and Tracing Act 2022 provides a full and clear right of access to birth certificates, birth and early life information for all persons who were adopted, boarded out, the subject of an illegal birth registration or who otherwise have questions in relation to their origins. Information and tracing services under the Act will open from 3 October. |
| Recommendation #7: Adoption records currently in private hands should be acquired by the State and held in a centralised archive. | Part 7 of the Birth Information and Tracing Act 2022 provides for the safeguarding of records. It provides for immediate safeguarding on commencement, and also enables the transfer of records to the Adoption Authority of Ireland, upon direction by the Authority. These measures provide the immediate foundation for the broader Government commitment, as set out in the Government Action Plan, to develop a National Centre for Research and Remembrance encompassing a central repository of records. |
| Recommendation #8: To avoid further lengthy delays in delivering a remedy to individuals affected, a targeted and focused approach should be adopted that builds on the report of the Independent Reviewer. | Government fully accepts the right of a person to be informed of the fact of a confirmed illegal birth registration. In the known, confirmed cases of illegal birth registration from St. Patrick’s Guild, it instructed Tusla to inform each of the individuals affected. Government also accepts that any person who suspects that they may have been the subject of an illegal birth registration (“relevant person”) should have a right to request an expedited review of their case. This is provided for under the Birth Information and Tracing Act 2022. In the case of files which were flagged as suspicious, and where the person concerned has not sought information or a review of their case, the Minister will request that Tusla undertake a review of these files to identify which ones have markers which are indicative of potential illegal birth registration and to establish if any of these cases can be confirmed. Where confirmed, affected individuals will be informed of this in an ethical, sensitive and fully supported manner. The Minister has provided the necessary legal basis for this review through the Birth Information and Tracing Act 2022 and will not proceed to issue a formal direction to Tusla. |
| Recommendation #9: A Specialist Tracing Team should be established and provided with ring- fenced resources that ensure that it does not negatively impact on other adoption tracing work. | As indicated above, a specialised tracing service under has been provided for under the Birth Information and Tracing Act 2022. |
| Recommendation #10: The Specialist Tracing Team should conduct a full trace on files flagged by Tusla as suspicious in the course of the independent review process, with a view to establishing which (if any) of these cases can be confirmed as cases of illegal birth registration, and identifying the potential for further targeted investigation of other adoption files. Files currently in private ownership (which to date have not been reviewed for evidence of illegal birth registration) should be subject to an initial sample review by the Specialist Tracing Team, followed by whatever more detailed review is warranted by the results of the initial review. | Under the Birth Information and Tracing Act 2022, the Minister will direct a review and full trace of files flagged as suspicious during the independent review of files of the St. Patrick's Guild adoption society. |
| Recommendation #11: If necessary, the Birth Information and Tracing Bill should provide for legal authority for the work of the Specialist Tracing Team, as well as any similar future activity by either Tusla or the Adoption Authority of Ireland aimed at investigating historical irregularities in adoption practices. | The Birth Information and Tracing Act 2022 provides legal authority for specialist tracing services to be delivered by Tusla or the AAI at any point in the future under direction of the Minister. |
| Recommendation #12: There should be a right to request the Specialist Tracing Team to conduct an expedited review of cases involving a reasonable suspicion of illegal birth registration. This right should extend both to the person potentially affected and to their children. Such reviews should involve the use of both documentary and DNA evidence. | Under the Birth Information and Tracing Act 2022 the specialised tracing service will provide expedited reviews for persons who hold reasonable suspicions that they may have been the subject of an illegal birth registration. |
| Recommendation #13: The State should facilitate the availability of support services for persons affected by illegal birth registrations, including (but not limited to) counselling supports, family mediation services, support groups and genealogical research assistance. Appropriate funding should be provided for such services. | The Birth Information and Tracing Act 2022 establishes a broad spectrum of counselling and support for persons affected by illegal birth registrations, on request. A number of support options are in place for anyone impacted. As part of its preparations for implementing the Birth Information and Tracing Act 2022, Tusla has secured genealogical expertise which will be made available to assist individuals, including those affected by illegal birth registration, through its statutory tracing service. Through its tracing service, it will also facilitate communication and contact between family members and people affected by illegal birth registration. |
| Recommendation #14: The Birth Information and Tracing Bill in its enacted form should ensure that DNA evidence can play a full part both in tracing and in the provisions governing the correction of the register, and adopt an approach that is not unduly prescriptive in respect of what forms of DNA evidence or information from genealogical databases will be accepted. | The use of DNA evidence that aligns with court standards is a feature which supports the correction of birth records in the register of births. Other DNA evidence may play a part in tracing and each case will be taken on a case by case basis. |
| Recommendation #15: The Status of Children Act 1987 should be amended to allow for mandatory DNA testing of relatives other than potential parents in appropriate cases, with suitable safeguards included to ensure that this power is used in a proportionate manner. It should also be amended so that adopted persons could avail of court-ordered DNA testing in cases where documentary evidence does not allow them to trace their identity. | The Status of Children Act 1987 is under the remit of the Department of Justice. Therefore, any amendment of the Act is a matter for the Minister for Justice. |
| Recommendation #16: Provision should be made to cover legal costs of persons affected by illegal birth registrations. Such provision should be sufficient to ensure that individuals who need to apply for a declaration of parentage (including potential DNA testing) should be in a position to make an application without undue delay. | The Government has approved a once-off payment of €3,000 for the individuals whose illegal birth registration has been confirmed by Tusla. This payment is intended as contribution towards costs such as legal fees which may be incurred in respect of seeking information on the implications of their birth registration in the context of their particular individual circumstances. This information may relate to identity documents, contracts, registration of marriages and children, inheritance (in relation to both birth and social families), tax, the making of a will, etc. The development of this payment scheme is at an advanced stage with a view to implementation in late 2022. |
| Recommendation #17: A State inquiry into illegal adoptions (broadly defined) should be established on a non-statutory basis. The inquiry should adopt the truth commission model and be informed by principles of transitional justice (elaborated on in section 7 above). The scope, composition and working methods of the inquiry should be determined in consultation with persons affected by illegal adoptions, and consideration should be given to including such a person as a full member of the inquiry. | Government remains committed to delivering on the actions, as set out in the Government Action Plan for Survivors and Former Residents of Mother and Baby and County Home Institutions, which respond to the priority needs and wishes of survivors, their families and advocates. It has already made substantial progress on addressing the issues arising for people affected by adoption and illegal birth registration through the enactment of the Birth Information and Tracing Act 2022 (Action 4). Under the Action Plan, the Minister is also advancing work on an initiative for Recognition of the Voices and Lived Experiences of Survivors (Action 7.4). This would establish a process for survivors to come forward voluntarily and share the account of their lived experience, with a view to having it formally recognised for posterity as part of the official record. This work fulfils one of the objectives of any truth commission, namely providing official recognition to the lived experience of people. As a consequence of all this ongoing work, the Government will need to give further consideration to this specific recommendation. The question of creating an effective non-statutory inquiry is a sensitive, complex and challenging one. The Special Rapporteur acknowledges this and, in particular, notes the challenges associated with access to records for a non-statutory inquiry. |
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