Dr Fergus Ryan, October 12, 2015

Observations on the General Scheme and Heads of Bill of the Adoption (Information and Tracing) Bill 2015

Dr Fergus Ryan,

Maynooth University[1]

First, I wish to thank the Committee for inviting me here today. In the interests of full disclosure, I should say that I was involved in the drafting of the Adoption (Identity and Information) Bill 2014, sponsored by Senator Averil Power, Senator Jillian van Turnhout, and Senator Fidelma Healy Eames, and passed by the Seanad earlier this year. That said, I am here today in an independent capacity and I broadly welcome this Scheme as a long overdue initiative.

The Minister is to be commended for delivering a legislative scheme to address this vitally important issue. An Irish Times article from 1997reported that, according to the then Minister of State for Health, Government plans for legislation in this area were ‘well advanced’ and were a ‘priority’.[2] That was 18 years ago. In the interim, adopted people and their birth parents have suffered under a regime under which a right as straightforward and vital as being able to obtain a birth certificate has been denied to them, or at least greatly frustrated. So this legislation is welcome, but it is long overdue.

Hearing the voice of the adopted person[3]

It is vitally important that, in this process, we listen to and hear the voices of adopted people. I hope that the Committee will make space to learn firsthand of the experiences of adopted people, birth parents and adoptive parents, and endeavour to do right by them. It is particularly imperative that any scheme is sensitive to all concerned. It is crucial that in preparing the final version of this Bill, the Oireachtas and Government alike should liaise closely with adoptees, birth parents and adoptive parents, to ensure that it addresses their needs sensitively and respectfully. The direct experience of adopted people, birth parentsand adoptive parents should be central to any analysis of proposed reforms.

Counselling and support for adopted people and birth parents are a priority, and should be proactively offered and made available to those seeking information. It is particularly imperative that there are sufficient numbers of experienced social workers to assist in the process, and proactively to support those seeking information. Adoption information needs to be provided, moreover, in a safe and professional environment. Some care needs to be exercised regarding the manner in which information is delivered to adopted people, birth parents, and adoptive parents. Appropriate support should be available to help the recipient deal with the emotional fallout of the information being provided.

Adopted people often feel that they are considered as ‘second-class citizens’. While this is probably not intended, state officials dealing with adopted people should be appropriately trained and supported to ensure that the language they use and approach they take is appropriate and sensitive, and does not cause any unintended distress. A key example is that when an adopted person goes to obtain his or her birth certificate, it should be obtainable in the same manner and at the same desk in the Registry of Births as is available to non-adopted people, subject to ensuring respect for each person’s right to privacy.

1. Observations on the Scheme

The Scheme is lengthy and complex. It is clear that a great deal of work and thought has gone into it, and I commend the Minister and civil servants in the Department of Children and Youth Affairs, as well as the Office of the Attorney General, for their endeavours. It is important to ensure, however, that the process is transparent and clear, and as straightforward as possible for those seeking information. Unnecessary complication and bureaucratic hoops may cause extra anxiety and stress.

The Scheme requires those wishing to access information, or to express their wishes regarding contact, to register in the proposed new Adoption Information Register. (Head 11) While the Adoption Authority will become the central repository of all adoption records, the function of operating a tracing and information service will fall to the Child and Family Agency. In contrast with the current passive National Contact Register, the Agency will be requiredto proactively search for and locate information on behalf of those seeking it.

The Scheme seems to make it relatively straightforward for applicants to gain access to non-identifying information, and information relating solely to the applicant. Access to identifying information, on the other hand, generally requires the consent of the person in respect of whom it is sought, though there are some exceptions. Information required to obtain a birth certificate, however, is in a different category and subject to special rules. There is a strong presumption in favour of granting access to information needed to obtain a birth certificate, but here there are caveats and conditions, most notably that the applicant must make a statutory declaration not to contact the birth parent, unless the latter has consented to contact being made.

1.1 Ensuring sufficient resources are available. It is, in particular, very welcome to see that detailed plans are included to consolidate information on past and future adoptions in one place by ensuring that the Adoption Authority will become the central repository for all adoption records. (Part 2) (Similar provisions were included in the Seanad’s Adoption (Identity and Information) Bill.) I also commend the proactive role envisaged for the Information and Tracing Service to be operated by the Child and Family Agency. (Head 10)

It is vitally important, of course, that both the Authority and Agency are properly funded and resourced to carry out their functions. Given that possibly as many as 100,000 people may be affected (including both formal and informal adoptees, and those whose births were wrongfully registered) the risk is that underfunded services will be overwhelmed, unable to cope, and subject to long delays. Concerns have been expressed in the media that the Agency is already underfunded in some areas and may be unable in practice to carry out some of its functions, despite its best efforts and the professionalism of its board and staff.[4] With this in mind, it is vitally important that sufficient resources be available to the Agency and Authority to fulfil their new functions.

1.2 Conditions for access to birth certificates. It is vitally important that adopted people will have access to the original details registered in respect of their births in the registry of births. This is a right taken for granted by non-adopted people, but one that has been greatly frustrated by current legislation, policy and practice in respect of adopted people. While the Scheme leans in favour of granting birth registry information, there are two significant caveats:

  • The agency may block the provision of information needed to obtain a birth certificate where it believes that there are compelling reasons, such as a danger to life, that justify denying such information (Head 13).
  • Unless the birth parent has consented to be contacted by the adopted person, the adopted person must, as a precondition to obtaining information necessary to obtain a birth certificate, sign a statutory declaration to the effect that they will not attempt to make contact with the birth parents (Head 13 and Schedule 1).

These measures seem to be designed to protect the right to privacy of birth parents. This concern is understandable. It is arguable, however, that the measures proposed are somewhat blunt and insensitive. They imply (though this is most probably not intended) that some adopted people present a danger to their birth parents.[5] They suggest that adopted people are likely (unless legally constrained) to seek to force contact with their birth parents even where the latter have asked not to be contacted. These fears, in my view, are largely unfounded in the vast majority of cases.

On the other hand, birth parents may understandably worry about the consequences for their private and family life of an adopted child making contact. The fear of revelation may cause significant anxiety and stress. It is submitted, however, that gentler and more sensitive measures, such as counselling and other supports, would just as effectively address concerns to ensure that no-contact preferences will be respected. A possible example of a more sensitive approach can be seen in the Seanad’s Adoption (Identity and Information) Bill 2014, sections 8 and 12, which requires those seeking information to attend a counselling meeting at which concerns around privacy are discussed.

1.3 High Court appeals. In a number of places in the Scheme, provision is made for appeals to be taken, and questions of law to be referred to the High Court. There may well be solid reasons for ensuring that such issues are addressed in the High Court. Nonetheless, the costs involved in High Court proceedings tend to be higher than those arising in Circuit and District Court proceedings. Speedier and less expensive access to justice may be facilitated by also allowing appeals to be heard in the Circuit Court. It is submitted also that the timeframe for appeals proposed in the Scheme – usually 14 days from notification of the Agency’s decision – is too short and should be extended.

1.4 Definition of a ‘relative’.In certain cases, relatives of adopted people and of birth parents may apply for information. (Head 18) Additionally, a person holding an adoption record in respect of him/herself or a relative isexpressly excluded from the definition of an information source in Head 2, and thus not covered by the obligations in Part 2 of the Scheme. The definition of “relative” includes a parent, guardian, spouse and civil partner of a person, as well as a grandparent, child, sibling, grandchild, uncle or aunt. It does not include, however, the cohabitant of a person.[6] It is not clear, moreover, whether it includes the civil partner or cohabitant of a parent of the person. It is submitted that the definition of relative should be expanded to include these persons.

1.5 Wrongful Registrations.It is welcome to see provisions addressing the right to information for those who were wrongfully registered in the registry of births as the children of people who were not their birth parents. There are very possibly a great number of people whose birth register details do not reflect their true parentage. It is important to bear in mind that while the Scheme makes provision for a wrongfully registered person to obtain information necessary to access a birth certificate, such information may, by definition, be of limited use in many cases, as the birth registration record will be inaccurate. Additionally, some sensitivity and care is needed in this specific context, as the wrongful registration may itself have been in breach of legal requirements regarding false registrations.

1.6 Birth Fathers. Particular difficulties may be experienced by and in respect of birth fathers. The birth father may not be listed in the relevant entry in the registry of births; indeed, in many cases, it is unlikely he would be named therein. Although, since 1998, the father must be consulted in respect of the adoption, even if he is not married to the mother of the child, his consent to the adoption is not legally required unless he is a guardian of the child or has charge of or control over the child. In practice, details of the father may thus be difficult to access.

2. Constitutional dimensions

Clearly there are somewhat delicate constitutional issues at stake in this context. It is important to note, however, that the Constitution does not prevent the Oireachtas from legislating in this area. In particular, the right to privacy, while important, is not an absolute right and may be qualified with a view to promoting other legitimate interests, such as the rights of the adopted person, provided always that whatever steps are taken proportionately balance the interests at stake.

2.1 Right to Identity. It is well established that a person has a right to identity, which embraces the right to obtain (at an appropriate age) information about his or her origins and heritage. The child’s right to the preservation of his or her identity is affirmed in Article 8 of the UN Convention on the Rights of the Child. The Revised European Convention on the Adoption of Children,[7] Article 22, more specifically confirms the adopted child’s right to access information concerning his or her origins. While this right has to be balanced against the natural mother’s right to confidentiality, the latter right may be overridden (the Convention suggests) having regard to the circumstances and each party’s rights.

The existence of a qualified right to know the identity of one’s natural mother has been confirmed by the Supreme Court[8] and has also been acknowledged as an aspect of the right to respect for one’s private and family life enjoyed under Article 8 of the European Convention on Human Rights.[9] This right, however, is not absolute. It is subject to and must be balanced against the right to privacy of birth parents.[10]

2.2 Balancing Rights. In IO’T v B, the Supreme Court considered the rights of two people, informally adopted before the Adoption Act 1952 came into force, to information about the identity of their birth mothers. While acknowledging that the adoptees had a constitutional right to identity that embraced the right to information about their birth mothers, the Supreme Court noted that this right had to be balanced against eachbirth mother’s right to privacy. In determining the appropriate balancing of rights, the Supreme Court noted that a series of criteria had to be considered and weighed up.[11] The overall tenor of the decision, however, is that neither the adopted person’s right to identity nor the parent’s right to privacy is absolute. Neither right trumps the other.

In IO’T, Hamilton CJ concluded that “[t]he right to know the identity of one's natural mother is a basic right flowing from the natural and special relationship which exists between a mother and her child”.[12]Nonetheless, this right was not, he added, “an absolute or unqualified right: its exercise may be restricted by the constitutional rights of others, and by the requirement of the common good.”[13] In particular, the mother’s right to privacy has to be respected and given some weight, though it by no means negates the right to identity.

It is, arguably, open to the Oireachtas to determine the appropriate balance to be struck in such cases. Indeed, on sensitive social issues of this nature, the Irish Courts tend to defer very heavily to the will of the Oireachtas. In recent decisions they have emphasised that the law-making role is one reserved to the Oireachtas, a role in which it will not interfere lightly.[14] Each right must be given due weight, but the precise balance is for the Oireachtas to determine.

2.3 The impact of lawful adoption. It is important to point out that IO’T concerned persons who had not been legally adopted. In his judgment, Hamilton CJ observed that the exercise of the right to know the identity of the natural mother –

“…is restricted in the case of children who have been lawfully adopted in accordance with the provisions of the Adoption Act, 1952 as the effect of an adoption order is that all parental rights and duties of the natural parents are ended, while the child becomes a member of the family of the adoptive parents as if he or she had been their natural child.”[15]

Notably, the right to know the identity of the mother is restricted in such cases, but I submit that it is not eliminated by a lawful adoption. It is evident in this statement that children who have been formally adopted retain such a right, albeit one that is qualified by legislation. The implication is that a lawfully adopted child retains a right to know the identity of his or her mother, though as Dr Geoffrey Shannon has noted “…it is likely that even greater importance would be accorded to privacy in legal adoption where the link between the natural mother and adopted child [is] legally severed.”[16] It is arguable, however, that the passage of the children’s amendment (the 31st Amendment to the Constitution, inserting Article 42A into the Constitution) strengthens the case for affirming the right to identity, given the acknowledgment in that Article of the “natural and imprescriptible rights of the child.” This presumably includes, by reference to Article 8 of the UN Convention on the Rights of the Child, a right to identity.

2.4Were birth mothers guaranteed privacy or required to maintain confidentiality?Respect for the right to privacy of all relevant parties is an important consideration, though it is does not automatically override the right to identity. Birth mothers, in particular, may understandably be anxious about the prospect of being contacted by a child they have placed for adoption. They may possibly not have disclosed the adoption to family members, partners and spouses. They may not wish to revisit or revive the painful circumstances in which they placed their children for adoption.

In considering the weight to be attached to privacy, however, it is important to bear in mind that many birth mothers in the past were not guaranteed privacy so much as sworn to confidentiality. The concern in relation to such adoptions, at that time, was to ensure the confidentiality and ‘integrity’ of the adopted family, and to ensure that what were characterised as ‘unwelcome intrusions’ by the birth parents were avoided. In many cases, birth mothers were required to sign guarantees of confidentiality, promising that they would not search out or seek to interfere in the lives of their children. This does not mean that the birth mother’s right to privacy is negated, though it is important to bear this factor in mind.