Dáil Éireann debate -
Wednesday, 19 Jan 2022

Vol. 1016 No. 4

Birth Information and Tracing Bill 2022: Second Stage

Minister for Children, Equality, Disability, Integration and Youth (Deputy Roderic O'Gorman)

I move: “That the Bill be now read a Second Time.”

I am pleased to bring the Birth Information and Tracing Bill 2022 before this House. It is landmark legislation in recognising the right to identity and rectifying a longstanding historic injustice. This Bill is fundamentally concerned with addressing the needs of adopted people and people who have questions about their origin of birth.

It will achieve this through the guaranteed provision of full and unredacted release of birth certificates, birth, care and early-life information; a statutory tracing service; a contact preference register and by safeguarding adoption-related records into the future. In addition, this Bill goes further and provides for access of information for next of kin. It aims to achieve all of this in a balanced, compassionate, supportive and constitutionally sound manner.

Having spoken to hundreds of affected individuals, it is their needs and concerns which lie at the heart of this legislation. I have listened intently to stakeholders and sought to deliver clear and guaranteed rights of access to information. I thank those stakeholders who have engaged with me directly.

I also thank the Joint Oireachtas Committee on Children, Equality, Disability, Integration and Youth, chaired by Deputy Funchion, and all its members, for the detailed prelegislative scrutiny report it produced. A significant number of the committee's recommendations have been taken on board in this revised draft of the Bill. Other recommendations within the report relate to the operation of the legislation and will be addressed by the implementation group led by my Department.

The Bill reflects significant improvements and enhancements to the general scheme published last May. First, in terms of the necessary balancing of EU and constitutional rights, I acknowledge the strong views that exist on the information session through which this balancing is achieved. Having heard these views expressed at prelegislative scrutiny, the information session has been modified and adapted. It can now be held virtually and will no longer be provided by a social worker.

Where a parent has registered that he or she does not wish to be contacted, the adopted person will receive a phone call where the privacy wishes of the parent will be relayed to him or her. Following this phone call, the full and complete set of records will be given to the adopted person. Nothing will be held back.

We want to be able to provide as much information as possible to people without further delay. Through the inclusion of a phone call in this process, we are rebalancing two sets of competing EU and constitutional rights in a way that does not limit the information that can be provided to somebody using the legislation, while still acknowledging the privacy rights of mothers.

It is now accepted that mothers often had little or no choice but to place their children for adoption in a culture of shame and stigma. The secrecy has continued throughout some of those mothers' lives and they may be concerned about contact being made with them. This is why the information session is an important measure within the Bill to recognise and respect the EU and constitutional privacy rights of these mothers.

Another key change that responds to stakeholder concerns and a prelegislative scrutiny, PLS, recommendation is the use of the term "mother" in the legislation, rather than "birth mother". The PLS recommendation is to use terms that are respectful and the change to the simple phrase "mother" is the more respectful term that can be used.

Access to medical information is a key interest for stakeholders and I note there are a number of recommendations on this in the PLS report, all of which I confirm we have either already accepted in the drafting of the Bill or will take on board in the guidelines that are being produced regarding the release of medical data.

An adopted person's own medical information, such as his or her vaccination records, will always be released to that person directly. The Bill allows for full release of this information. There are no restrictions. It is only in situations where the medical data are those of a genetic relative and another person's medical data are being released to an adopted person, that the release may involve a GP.

A further change, which reflects stakeholder feedback and a PLS recommendation, is the new section that empowers the Minister to add institutions to the Schedule as set out in the Bill. This new section will allow for the addition of any institution that was established or operated for the purpose of providing care to children in which children were placed and resident. The new section will mitigate the risk of anybody being excluded from this Bill.

Again, recognising the PLS recommendations, key definitions within the Bill have been enhanced, with a new definition of incorrect birth information added and open-ended definitions of care information and early-life information created. In the case of the latter, the definition has been explicitly expanded to provide for the full release of the baptismal certificate and entry in the baptismal register. The recommendations in the PLS report on access to counselling support have also been accepted and the Bill now provides, not only for counselling supports for parents with a no-contact preference, but also for all mothers and all relevant persons, if they wish to have such support.

I will now outline the key parts of the Bill, as initiated. Part 1 contains the standard Short Title, commencement and interpretation provisions. Section 2 provides definitions of key terms used in the Bill. A central term is "relevant person" which comprises:

(a) an adopted person,

(b) a person who is or has been, or who has reasonable grounds for suspecting that he or she is or has been, the subject of an incorrect birth registration, or

(c) a person who has been, or who has reasonable grounds for suspecting that he or she has been, at any time in the period following his or her birth and ending on the date on which he or she attained the age of 18 years—

(i) resident in an institution specified in the Schedule, or

(ii) the subject of a nursed out arrangement or a boarded out arrangement;

Another central term is a "relevant body". This is a body to which an application for records may be made. The Bill currently lists the Adoption Authority of Ireland and Tusla as relevant bodies. The Minister can designate by regulation other persons or organisations as relevant bodies to which application for information may be made.

Section 5 provides that the Minister may, by order, add to the list of institutions set out in the Schedule to the Bill. This ensures that anyone who was resident in an institution established or operated for the purpose of providing care to children and who is not already captured by one of the other categories I have just referenced in the definition of "relevant person", can now be included within that definition and thereby avail of the provisions of this Bill.

Part 2 provides for the release of information, records and provided items to relevant persons on application. A relevant person over the age of 16 can apply to the General Register Office or a relevant body for his or her birth certificate and it will be provided to that person. A relevant person aged 18 and over can apply to a relevant body for his or her birth, early-life, care and medical information, as well as any provided items and it will be provided to that person. A person's medical information will be released to him or her, without restriction.

A relevant person aged 16 or 17 years old can apply to the Adoption Authority of Ireland for his or her birth information, early-life, care and medical information held by the authority or the agency and this will be provided to him or her by means of a supportive meeting. This meeting can be conducted by phone or face to face. Where a 16 or 17 year old has applied to the General Register Office for a birth certificate, this will be provided to him or her during or after this supportive meeting also.

The purpose and function of the information session is dealt with by section 17. This section provides for an information session to be held between the relevant person and a designated person, where there is an application for a birth certificate or birth information and a parent named within the birth information has registered a preference for no contact. The information session can be held by phone or in person, depending on the preference of the applicant.

The content of the conversation will be on the entitlement of the relevant person to his or her birth certificate or birth information, the fact that the parent has stated that he or she does not want contact and the importance of respecting the preference of the parent. I mentioned earlier the changes made to this, but also the essential role that this process plays in adequately balancing constitutional and EU rights.

Part 3 of the Bill provides for an application by a person for their parent's information and records where that parent was a relevant person and is now deceased. Such persons can apply for their parent's birth certificate and birth, care and early-life information and that will be released to them in cases where the parent - the original relevant person - and grandparents are deceased. They can also apply for their parent's and other genetic relatives' medical information and that will be released to them where it is of relevance to their health.

This new provision responds to stakeholder feedback and the pre-legislative scrutiny process.

Part 4 deals with applications by the next of kin of a relevant person who died as a child in one of these institutions. Next of kin is defined, in order of hierarchy, as a mother or father, brother or sister, uncle or aunt or nephew or niece. In terms of the release of birth information, this will be released to persons in order of hierarchy, in accordance with the highest order living relative. There is also provision for the Minister to make guidelines to provide guidance on how a relevant body will satisfy itself that a person is deceased.

Part 4 is also a major new addition to the Bill since the publication of the original general scheme last May and should support those with questions in relation to a relative who passed away while in a mother and baby or county institution. It responds to concerns raised by stakeholders at the pre-legislative scrutiny and points made in the pre-legislative scrutiny report.

Part 5 provides for a tracing service to be delivered by Tusla and the Adoption Authority of Ireland. Traces will be carried out to locate individuals for the purposes of contact or sharing of information. The tracing service is available to persons aged 18 or over. An application for a tracing service can be made by a relevant person and certain relatives. An adoptive parent of an adopted child can also seek a trace where the adoptive parent is seeking further information in relation to that person. Section 34(6) lists bodies from which Tusla and the Adoption Authority can request information in order to trace a person and which must provide the requested information. This list includes Departments. These statutory provisions will be a game changer in enabling Tusla and the Adoption Authority of Ireland to deliver an effective and efficient tracing service.

Part 6 provides for a statutory register called the contact preference register. This register, which is to be established and maintained by the Adoption Authority, allows persons to register their contact and information sharing preferences. Relevant persons and their relatives can also apply to the register to lodge information and provided items which they wish to be shared with a specified individual. The information will be lodged in a secure manner. This Part provides for the full transfer of all information and preferences from the existing non-statutory register to the new register to be established under this Part.

Part 7 provides that prescribed bodies - termed "information sources" - must safeguard any relevant records they hold. An information source, other than Tusla, can be asked by the Adoption Authority to furnish a statement to the authority which will state the nature, current location and condition of the relevant records held. It can also be required to transfer these records to the Adoption Authority. In this way, the Bill ensures the authority can develop a comprehensive picture of the relevant records held by different bodies and can take ownership of these records, where appropriate.

Part 8 is to deal with the issue of illegal birth registrations. It amends the Civil Registration Act 2004 to provide for the General Registrar to receive or request certain information concerning people with an illegal birth registration; to correct an affected person's birth registration; and to also create a separate registration in a new register that reflects the affected person's social identity, where that is the person's wish. By social identity, I mean the name of the relevant person and his or her social parents as recorded on his or her incorrect birth registration.

This Part provides that the General Registrar will notify affected people before any correction, cancellation or registration is made to the birth registration. The person who is notified may then make a submission to the General Registrar in relation to the proposed correction. The person will also be able to obtain a copy of the entries in the register of births and the new register created by this Part.

Part 9 deals with other matters, including the requirement that the authority shall undertake a public information campaign; offences for the concealment or destruction of records; provisions clearly setting out the GDPR rights affected; and the provisions on counselling for all, should they wish to take it up. This Part also provides for the Minister to designate, by regulation, the persons or organisations which qualify as relevant bodies to which an application for information may be made.

There have been numerous attempts to legislate in this area. It is essential that, as legislators, we reflect on these previous attempts to help us understand the challenges that the balancing of rights has presented for previous Oireachtais. As far back as 1984, the then Minister for Health and Social Welfare, Mr. Barry Desmond, established a review committee on adoption services. One of its main recommendations, never implemented, was for a right of access for adopted persons to their birth certificate on condition that they receive counselling before the certificate was released.

In 2001, the then Minister of State at the Department of Health and Children, Ms Mary Hanafin, sought to publish heads of Bill on release of adoption information. Those heads provided for access to a birth certificate subject to counselling and the applicant signing an undertaking agreeing that he or she would not seek contact. The undertaking had criminal penalties attached if it was breached. That draft legislation never reached publication stage.

The late Brian Lenihan, as Minister of State at the Department of Health and Children, also made an attempt to legislate, unfortunately, to no effect. There was no movement and no change. In 2014, a Private Members' Bill was initiated by then Senators Averil Power, Jillian van Turnhout and Fidelma Healy Eames. That Bill allowed for the release of birth certificates with a mandatory information session to be held with a social worker before release, in all cases. The Bill fell with the dissolution of the Government of the day.

The adoption (information and tracing) heads of Bill were developed and brought to the Government in 2015 by the then Minister for Children and Youth Affairs, Mr. James Reilly. His successor as Minister for Children and Youth Affairs, Ms Katherine Zappone, continued this work and published the Bill in 2016. The balancing provisions in that Bill were known as "compelling reasons and the undertaking". The compelling reasons test was to be applied in circumstances where a parent objected to the release of information and it involved an application to the Circuit Court to determine if a threat to life was present and, therefore, justified the refusal of information. These provisions were rejected and an alternative approach was developed and proposed by the then Minister, Ms Zappone, in May 2019. This provided for situations where a parent objected to the parent's information being released, and both the parent and the adopted person were given an opportunity to state their case to the Adoption Authority, which would adjudicate. This Bill reached Committee Stage in the Seanad in June 2019 and lapsed with the dissolution of the Seanad in February 2020.

Here we are, in January 2022, almost 70 years since the Adoption Act was passed in 1953, without the right for an adopted person to access his or her identity information. This Bill represents an opportunity for the Thirty-third Dáil to finally end a historic injustice and enshrine in law the importance of knowing one's identity. We must learn from history and we must not fail in our duty to those who were adopted, boarded out or the subject of illegal birth registrations.

This legislation is a quantum leap ahead when compared with the previous drafts I described. It does not criminalise or discriminate against adopted people. It does not provide for complex procedures before the courts. Most important, it guarantees access to all information in every circumstance. That has never been achieved previously. The Bill is expansive and flexible. It includes provisions for applications to the General Register Office, full release of birth and baptismal certificates, counselling for all parties, new next of kin provisions, a review mechanism and enabling provisions to allow bodies and records to be brought under the legislation as and when required.

As I said, I believe the Birth Information and Tracing Bill is landmark legislation. It represents a change in our country's laws that is long overdue and is part of our atoning for historical wrongs done to individuals and women in this country. Primary to this Bill's purpose is to enshrine in law the right to identity, a right that has been denied to adopted people for decades. It will restore to adopted people information that so many of us take for granted about our personal stories.

It is critical to the success of this legislation that this right to identity is realised in practice. This means a commitment to transparency and openness, where relevant bodies operate on the assumption of full release of information rather than on the basis of withholding information, and where people can gain full and complete access to their birth and early life information, as defined in law, in all circumstances, with no redactions, refusals or exceptions. That is what this Bill delivers, and I commend it to the House.

Acting Chairman (Deputy Joe Carey)

Deputy Funchion is sharing time with Deputies Martin Kenny, Patricia Ryan, Martin Browne and Clarke.

Deputy Kathleen Funchion

I understand all the complexities and difficulties attached to the issue historically. When we look at some of the ridiculous suggestions proposed in some of the Bills in recent years, I accept that today we have moved on. In fairness to the Minister, he has delivered this legislation, unlike others before him who talked a lot of talk. I would love to be able to welcome the Bill without any reservations but, unfortunately, I have serious reservations. While discussion of the Bill should be considered landmark occasions when we finally move forward, there is potential for serious mistakes to be made in particular with the mandatory information session. I do not believe it has been removed. I accept that the requirement for it to be in person with a social worker has changed, but there is still an information session and it still explicitly states in the legislation that part of the reason for this is to explain to the relevant person the importance of the privacy rights of the parent. That was something that came up in every single one of the PLS sessions. I acknowledge the presence of Deputies Bacik and Murnane O'Connor from the committee. The committee worked so well together. We all know in this House that at times things can get fraught on committees, but there was genuine goodwill on everybody's part – Government and Opposition representatives. We had 83 recommendations. The Minister referred in his speech to changes on a number of issues that came up during PLS. However, on the really big issues, such as the mandatory information session, we made a suggestion in the report about looking at alternatives, one potentially being the registered post option. I do not understand why that could not be considered. Sinn Féin will table amendments to that effect on Committee Stage.

Medical history is a grey area. I acknowledge what the Minister says. I am pleased to get clarity on an adopted person. However, my fear is that in the case of a person who does not know much about his or her life other than that he or she was adopted, people will say they are looking for their medical history and that is a grey area whether a medical practitioner is involved or not. In the case of a family medical history, there is a chance that there will be a genetic relative, as the Minister described in his speech, so does that mean then they are in a different process? In terms of the wording "relevant data", is not all the data relevant to them if it is about them and their personal life? I am not adopted and I can get all of that information. Why do we have a different set of rules for people who are adopted and, in the same breath, say we are trying to end the discrimination they faced for years? I am not saying it to be critical for the sake of it. As Chair of the committee, I would love nothing more than for the Bill to go through Committee Stage without any amendments because we have done a significant amount of work in the committee on the Bill and other areas relating to mother and baby homes. That is the reason I feel I must raise these issues, and on behalf of people who have contacted us.

It was a missed opportunity not to develop a new agency. We acknowledged that it could not happen overnight and that a new agency would require time to develop at a time when we do not want to delay matters given that many of those who are affected do not have time. We recommended an Ombudsman-type body for appeals and oversight of Tusla and the Adoption Authority of Ireland in the meantime. I do not believe the recommendation has been taken on board. Given that redress will be the next matter we will be talking about in this Chamber in a few months, a new agency would have been appropriate. It could have been a time-limited one, as it potentially does not need to be in existence forever.

I seek clarity on Part 4. I am not sure I understand it correctly. There is a hierarchy in terms of next of kin, starting with a mother or father. The Minister can come back to me on this if he wishes. I refer to a case where somebody has died in care. In the event that perhaps the parent does not want to get the information, but a sibling does, is he or she entitled to get it or must the parents have passed away? That is an issue on which I genuinely seek clarity.

The Minister indicated that he will take recommendations on board in the guidelines that are being produced regarding the release of medical data. I do not understand why that could not have been included in the legislation. I do not want to be cynical, but it is easy for the Minister to say he will take them on board in the guidelines when it is not in the legislation. Significant work was done by every single person on the committee and I feel strongly that there are many missed opportunities, in particular in terms of the mandatory information session and the new agency.

I would welcome more clarity and perhaps a briefing from departmental officials on medical information in particular. I hope it is the case that my understanding is incorrect, because that would be welcome, but I fear there will be grey areas as to whether people are entitled to data and if it is relevant to them. People who do not know much about their own lives will not know exactly what information they are looking for and I am concerned that it might be considered too general. I will leave it at that for now.

Deputy Martin Kenny

In his speech, the Minister said he is pleased that the Birth Information and Tracing Bill is going to do what no other legislation has done in the past. I accept his bona fides on that. Compared to what we have had in previous attempts at dealing with this issue, this is a genuine effort and I acknowledge that the Bill is a huge leap forward. However, we must also listen to the reality of the people who are most impacted by the Bill, adopted people who have sought progress on this issue for decades. The age-old problem that seems to come up relates to the privacy of the mother who put the child up for adoption, often under duress, usually in very difficult circumstances and sometimes under pressure – peer pressure or pressure from families and others around them. Further back, there was severe pressure in a climate where they simply could not keep the child they wanted and loved. I have come across mothers in those circumstances. I am sure the Minister has as well. When they signed the piece of paper they were told to sign, they did it under pressure and duress. They did not know what they were signing. Usually, the document also included a reference to privacy. They accepted they were putting up their child for adoption, but not in their wildest dreams did they consider that they were signing away forever their right to see that child again. That must also be brought to bear in this situation. What we are dealing with here is the present day impact of terrible historical situations people had to deal with. There must be a recognition of that.

The Minister says that the Bill allows in all circumstances for the adopted person to have access to all of his or her records without any restrictions, and then in certain sections he puts in place restrictions. That is the issue that must be addressed. The Minister shakes his head as if that is not the case. If it is not the case, then he has done a poor job of making it clear. I invite him to try to resolve that, if not here this evening then certainly on Committee Stage as the Bill passes through the Houses. I am sure there will be amendments on the various issues Members have clearly set out that need to be dealt with urgently.

A number of issues have been raised, including access to information. The mandatory information session is something all adopted persons have a clear problem with and that must be addressed. If a new body was set up it would have full responsibility for everything concerned. It would be a big advance, which people expected to see in the legislation, but it was not included. I fully accept that the Bill is a significant advance on where we have come from in the past, but it does not go far enough for many of the people who have been negatively affected for generations by this issue.

I invite the Minister to try to ensure that the shortcomings of this legislation are dealt with and that where Members genuinely put forward amendments which would improve it, he would accept them.

Deputy Patricia Ryan

I appreciate the efforts of the Government in trying to deal with this issue but, unfortunately, there are, yet again, many weaknesses in the legislation in its current form. The biggest criticism I have is that it does not take on board any of the recommendations contained in the report of the Joint Committee on Children, Equality, Disability, Integration and Youth. There were 83 recommendations and not one is taken on board, which, frankly, is a disgrace.

Alternative proposals to legislate in this area must not leave even one adopted person behind. For decades in this country, adopted people have been failed by being denied clear access to their identity information, and this is a human rights issue. The Bill does not provide unrestricted access to birth certificates, adoption files or early-life information files. There must be unfettered access. Terms and conditions cannot apply in this instance. It must be the file, the whole file and nothing but the file. There must be no discrimination when accessing personal data.

The information session requirement is offensive to adopted people. The concept of privacy should not have to be explained to applicants in any proposed format. The definition of "personal data" is not clear, leaving the door open to various interpretations. Information can be withheld in certain circumstances, which is not fair or acceptable. The definitions in the Bill are extremely narrow and need to be expanded to include individuals, agencies and institutions involved in forced family separation. Accessing records will be hugely problematic if this Bill is passed in its current form. Rather than whole files being provided, parts of files will be issued. The expectation that applicants need to have knowledge of mementos contained in early life or adoptive files is ridiculous. Applicants are expected to apply for several different categories of information, which makes things difficult for them. Although I mean this respectfully, it is almost like the Government is trying to dissuade them.

It is vital that we listen to those who will most directly be affected by this legislation. The wishes of survivors and adopted persons must be heard. I look forward to continuing to work with campaigners and others over the coming weeks to ensure that the right to identity will be recognised at last in our laws. It is a little more than 20 years since the first legislation was introduced to allow access to adoption information. It is worth remembering that the Government started this journey by trying to criminalise adoptees for seeking their birth information. It is time the historic wrongs were put right.

Deputy Martin Browne

My heart sank when I saw how many of the most important recommendations of the Joint Committee on Children, Equality, Disability, Integration and Youth were not taken into account when revising this Bill. An opportunity was there to address the injustices of the past that have been ignored or suppressed over the decades. We have seen this with the attitude that was shown to the survivors of the mother and baby homes like Sean Ross Abbey over the years but, despite the horrors they experienced through no fault of their own, they have been persistently failed through half-hearted and incomplete measures.

While this Bill has key associations with that shameful part of our history, what we are talking about today is an issue that affects all people adopted in this country and their right to access their own personal information in the same way as everybody else. Years of extremely flawed schemes and Bills that put limitations on the ability of adopted people to access crucial information about themselves led to one thing, namely, discrimination. Adopted people were discriminated against through the application of different requirements to them versus everyone else. Then, this Bill was put forward but different standards and requirements still applied. The Joint Committee on Children, Equality, Disability, Integration and Youth made 83 key recommendations on these outstanding issues but the Bill does not reflect that. It still does not provide unrestricted access to birth certificates, adoption files or early-life information files, regardless of how the Minister may present it. I understand that balancing the identity rights of applicants and the privacy rights of birth or natural parents is difficult, but this was discussed by the committee and witnesses at great length and it was still the overall view that more could be done to ensure unfettered access to birth records, adoptive files or any records relating to them. This Bill does not go anywhere near the spirit of the committee's recommendations.

The requirement for mandatory information sessions remains, just in a slightly different form. All Oireachtas Members who are not adopted need to ask themselves whether they have to do it. When it comes to the demands being made of adopted people in this Bill, the answer will be “No”, which confirms that this Bill imposes different requirements on people based on whether or not they are adopted. That is unacceptable. The fact that only parts of files will be made available rather than whole files is another case in point. Family medical information will not be released to an adopted person’s family without the intervention of a GP. These are just some of the issues that remain unaddressed despite the recommendations of the committee, which spent hours and hours hearing from those whom this Bill concerns. Let us not forget the supreme efforts that were made by adoptees, mothers, survivors and their families and advocates through their selflessness.

We will be seeking to make a number of amendments to address these shortcomings. I strongly urge the Aire not to repeat the mistakes that were made previously and to do the right thing by all adoptees. I call on him to disregard what the Taoiseach said publicly recently and to revisit the redress scheme for survivors of mother and baby homes.

Deputy Sorca Clarke

I want to begin by expressing my support and respect for the adoptees, the mothers, the children and the advocates whose ongoing efforts have kept this subject very much alive over decades at this point, particularly those in my constituency or those who have been directly affected by the events relating to the Castlepollard mother and baby home in Westmeath.

I also agree with them in terms of the disappointment they have been expressing in the past few days regarding the contents of this Bill. They speak of a journey that they have been on for so long in seeking their own information, yet, consistently and constantly, they have been let down and left feeling they have failed. It beggars belief that we are back here again today and that these same people are expressing those same emotions of feeling failed once again.

Nobody in government - in fact, very few people across the country - is unaware of what the people affected wanted to see. They told us, they told us again and then they told us again. Even when they felt ignored and they felt that their words were not only falling on deaf ears, but falling on deaf ears that were attached to a very unsympathetic representative arm of the State, they continued to tell us. Many of the people who are campaigning for access to information have had to tell their personal stories, some of them very painful stories, repeatedly - far too many times - including the requirement of that information session. Whether that is in person or on the phone, it is neither necessary nor justified, in my opinion. Adoptees, mothers, survivors and advocates have already given hours and hours of testimony. Another information session, regardless of the situation in which it is done, appears very strongly to be an enforcement of power were no such enforcement is necessary. I do not believe that this approach is truly survivor-centred, nor is it a person-centred approach.

There remain substantial amounts of work to be done. As previous speakers stated , we will be putting forward amendments. As one survivor put it to me earlier this afternoon, in many ways, this is two steps forward and one step back, but her lifespan is not going to make up that difference before she finally gets to the finish line. It does not go far enough and it does not meet the repeated asks of people for whom time is simply not on their side.

Deputy Ivana Bacik

I am glad to speak for the Labour Party on this important Bill and to speak not only as the Labour spokesperson on children but also as a member of the Joint Committee on Children, Equality, Disability, Integration and Youth. I welcome the fact we are debating the Bill. I acknowledge that we had all hoped that today would be a landmark day for the rights of adopted persons to access information, to access birth information and to access their identity rights. I absolutely appreciate the Minister’s commitment to ensuring that and the fact significant progress is being made in the Bill.

I share Deputy Kathleen Funchion’s reservations about aspects of the Bill, however. In particular, I share her disappointment that some critical recommendations of our committee in its pre-legislative scrutiny report have not been included in the Bill. I pay tribute to Deputy Funchion, who steered and chaired our lengthy deliberations at pre-legislative scrutiny stage. As she stated, the 83 recommendations we came up with were based on the extensive hearings conducted. I joined the committee having been conscious that there had already been quite extensive consultation, but I participated following my election in July in more extensive hearings. We heard from many stakeholders.

We engaged closely in respect of the draft heads and we believed our recommendations to be robust. I appreciate that the Minister has accepted some of the recommendations, but I want to address three critical ways in which they were not addressed in this Bill. It is in the context of those recommendations in particular that many of us on the committee will be disappointed. Many of those who received our recommendations, including stakeholders who appreciated the recommendations, share that disappointment.

First is the critical issue of access to information. Will this access be unrestricted as was promised and as people had hoped or will it be conditional? On this side of the House, we are all disappointed that the access remains conditional. It is a great step forward from what was previously provided for in other iterations of this legislation but there is still the condition of a mandatory information session. Why can we not get beyond this? It was helpful of the Minister to set out the long history over many decades of this State grappling with how to provide for information rights for adopted persons. The one thing he did not say was that in the recent past there were attempts by the Opposition, including my party, to bring forward legislation earlier. In 2020, we brought forward the Adoption (Information and Tracing) Bill, which would have inserted a new section 86 into the Adoption Act 2010. That would have been a simple mechanism to unlock the information necessary to enable adopted persons to access their birth certificates upon turning 18 by making traceable the connection between an entry in the adopted children register and the corresponding entry in the register of births. Other Opposition parties produced similar legislation that provided for simple unlocking mechanisms without cumbersome restrictions being placed on access.

It is clear, not just from the history the Minister outlined but also from the Opposition attempts to legislate on this matter, that there is a clear cross-party intent in the Oireachtas to ensure an unfettered right of identity and information is provided to adopted persons. I pay tribute to the many individuals and advocacy groups, such as the Adoption Rights Alliance and the Clann Project, which also sought to do this, helped us with this and gave evidence before the committee. We also looked at legislation in neighbouring jurisdictions and we looked at other European countries. We are conscious that anyone in Northern Ireland aged 18 or over has had the right to a copy of his or her original birth certificate since 1987. In other jurisdictions, that right extends back much farther. In the provisions we have been presented with in this new Bill, however, we are still seeing the retention of a conditional right of access.

I worked closely with the Minister’s predecessor, Katherine Zappone, on trying to ensure that there would be a right of access to information. We constantly heard, both in briefings with Ms Zappone and on the floor of this House and the Seanad, that this right had to be balanced with the right to privacy of mothers. We were also told that the right to information could not be provided for in an unconditional way. We examined this closely in the committee. I looked at what we said at the committee again today. We made the point that on the basis of the evidence we had heard and on the expertise of those who appeared before us, the constitutional balancing could be addressed in other ways and it would not be necessary to provide a mandatory information session. We said clearly that the inclusion of a mandatory information session for persons who had registered a preference for no contact would still mean that adopted people whose parents had registered this preference would be: “singled out for different treatment and a targeted warning about privacy rights.” This was seen by some witnesses as compounding misguided fears about adopted people and perpetuating injustice. We proposed an alternative. We said that an appropriate and clear alternative would be to send the correspondence and information about the no contact preference by registered post. This was a way of ensuring a balance in the rights, along with the other measures. As the Minister stated, there were other measures in the Bill to safeguard the privacy rights of mothers, namely, the age limit of 16 or over, the counselling provision and the measure to provide information in some way.

The big question for any of us who have engaged with the process of pre-legislative scrutiny is why we are seeing the retention of this mandatory information session. Looking at the wording of the sections in the Bill and one can see that it is a mandatory information session; there is no other way to describe it. Looking at section 7, which states that in the case of a no contact registration the recipient body shall comply: “only where it has received a notification ... of the completion of an information session”. What is that information session to comprise? Section 17 clearly sets out what the information session will be and it is still referred to as an “information session”. It is referred to as a section which is, “a session held between the relevant person and a designated person, [and we know that is an employee of Tusla or the adoption authority] at which the designated person informs the relevant person of” his or her entitlement to get the birth certificate or information. The section mentions the fact that the parent has stated that he or she is not willing to be contacted and crucially, the importance of the relevant person respecting the privacy rights and preference of the parent. Why does that have to be imparted during an information session? Why can that information not be imparted through an easier mechanism such as the sending of registered post? That could include the back-up measure of counselling or supportive meetings where desired by the adopted person. Why could we not have seen an alternative mechanism put in place rather than this targeted warning session? We all accept that it no longer needs to be held in person and that it can be done by way of phone call or virtual call and that is a welcome change.

From the perspective of the people who are contacting us, including adopted persons, mothers and other stakeholders, it is still seen as a paternalistic approach and as representing a condition upon access that is not desired or welcomed by adopted persons. We have seen some disheartened and disappointed language from those who have contacted us, some saying they feel it is offensive that our laws will still require the information session. They feel it is unnecessary to explain to them in this verbal fashion that they must respect the will of the woman who gave birth to them when this much is already patently clear. We are hearing real disappointment, disheartenment and frustration at what appears to be a grudging step forward rather than the big step we all hoped we would see in this legislation.

I ask the Minister to look again at our report, particularly pages 23 and 24, where we clearly set out our rationale for moving away from a mandatory information session. I know I have spent some time on this, but perhaps the most disappointing aspect of the Bill is to see that measure retained and to see the language that is still being used in section 17. Again, I speak with a heavy heart. I thought we had moved beyond this and that the arguments we had heard over the years about the balancing of rights should be taken in a different context in 2022. We should be able to build on the experiences we have had and the different iterations, which the Minister has clearly outlined, that we have seen over the years in attempts to legislate on this. We should no longer need to see this sort of mandatory condition. What happens if an adopted person refuses to take the call? That person will then not have access to the information. This Bill does not provide, as we had all hoped and expected it would, for a release of information in all cases and that is the disappointment that is felt.

I know others will be bringing amendments and Labour will be bringing amendments on this. We will be looking to implement the recommendations of the cross-party committee, which was specifically charged with undertaking this pre-legislative scrutiny. This is the important point and there will be a great deal of debate on Committee Stage on the provisions around this information session, particularly on section 17 and the related sections 7 to 10, inclusive.

I also want to address the issue of illegal adoptions and incorrect birth registration information. Again, the committee addressed this in recommendations 10 and 11 of our report, where we specifically looked at the definition.

The committee recommended that a change be made. In its view, having heard extensively from those affected, the definition of incorrect birth registration was somewhat sanitised and should be amended to read "falsely or incorrectly recorded" instead. The concern was that this seemed to reflect a recording of incorrect information that was carried out in error whereas we know from extensive testimony over the years that there were false registrations of births and that this was done deliberately and not just in error. The committee members believed, having heard from many of those affected, that this should be recognised in the legislation or in the explanatory memorandum. The committee suggested that the text in the explanatory memorandum should refer to "illegal or unlawful adoption" to clarify that the procedures for rectifying the register, which are very welcome, would apply both to those whose particulars were deliberately falsified and those whose particulars were merely incorrectly recorded. The Minister will probably move to reassure the House that the procedures for remedying the register will apply to false records as well as those simply incorrectly recorded in error. I anticipate that and see the Minister nodding but I reiterate the need to reflect the lived experiences of those who were illegally adopted.

I welcome sections 52 and 53 in particular, which address the issue of illegal adoption. We are all conscious of the serious difficulties that so many adoptees have had due to false registration. I want to pay tribute to former Deputy Joan Burton, who spoke so eloquently on "Sunday with Miriam" last weekend about her own experience as an adopted person. She has been such a champion of adopted persons and their right to information and she really took forward the case of those who had been illegally adopted. In 2019, she and I published legislation seeking to deal with this after the revelations of over 100 illegal registrations of births and adoptions at St. Patrick's Guild. I also want to pay tribute to those who took the time to give their own public testimony of their experiences in the documentary aired by RTÉ in March 2021, "Who Am I? - The story of Ireland's illegal adoptions", which was so powerful. The contributors to that programme spoke about their experience of discovering, in many cases many decades later, that they had been illegally adopted and the trauma and anguish that caused them. One contributor very strikingly said that they felt their life was built on a lie they had been told. It is really welcome to see this legislation addressing their situation but when one hears that powerful testimony, it makes it all the more important that the reality of their situation is recognised. These were deliberately falsified records in some cases and not just clerical errors but the language in the Bill does not adequately reflect that. That is what the committee found also.

Finally, in terms of the committee recommendations, I want to address a crucial recommendation which comes up a number of times in the report, namely, recommendation No. 73. This reflects an issue we had with the Bill more generally and which comes up in relation to a number of different issues in the Bill, that is, the lack of an oversight or an appeals mechanism. In recommendation No. 73, the committee called for the establishment in the Bill of an oversight process or accessible appeals mechanism. Specifically, the committee argued that the Bill should provide "for recourse to an Ombudsperson or other process to ensure oversight of the application process, support for adopted persons and others in using the Bill's provisions, and an accessible and effective appeal mechanism". On page 51 of the report, the committee outlined its rationale for this but it comes up in a number of instances in the pre-legislative scrutiny. Regarding head 13 of the Bill, for example, the committee said that this enabled Tusla or the Adoption Authority to make a request to a third party for information needed to assist in the process of tracing but this is lacking an enforcement mechanism or some oversight. I will have to check to see if that has been addressed in the Bill but more generally, what appears to be lacking in the Bill is a more general oversight mechanism or appeals process. Again, I am coming back to the mandatory information session, which is so contentious. What happens, I ask again, if the adopted person says "I do not want to partake of a phone call" or "I do not want take this call"? Is there any appeal mechanism? What is the next step in the process then? Is there a next step or are we simply assuming there will not be a need for one? The committee had a concern about the fact that the Bill is lacking a clear outline for adopted persons and others of where they go next if the primary processes set out in the Bill have failed them in some way.

I hope the Minister will take this commentary as a constructive criticism. What I wanted to do was outline three areas where the committee has made some very robust and clear recommendations that would have greatly improved the Bill. It is unfortunate to see they are lacking. As I said, there is much to welcome in the Bill. All of us will acknowledge that we are very pleased to see it coming before the House at this stage, so quickly in this Government's term, albeit so long overdue given the long processes that have gone before. We are all conscious of the history of the stigma which prevailed for so long that allowed for the incarceration of women and children and which has defined, for far too long, our national approach to adoption. The primary legislation, the Adoption Act 1952, enshrined a secret and closed adoption system and as a result, we have developed a secretive system. In the words of a former chairperson of the Adoption Board, Ms Vivienne Darling, this ensured that "adoptees were kept in the dark as to their origins" for far too long. I want to acknowledge the Minister's own commitment to ensuring that adoptees are finally brought into the light in being enabled to access birth information but he will also appreciate the frustration many of us feel when we still see some form of condition being placed on access to that information.

I have spoken before about my experience of representing many survivors of abuse in industrial schools and other institutions over the years and of hearing from them the really harrowing experience not only of being incarcerated and abused in many cases but also of being failed by a State that simply did not provide any safeguards for children in their situation. There is still a feeling among many of those who went through experiences like that as children, who were adopted, that they have been failed by the State. We need to make sure that we are stepping up and are seen to be really addressing the needs of adopted persons in particular, but also of mothers who were also failed by the State, particularly those who were incarcerated in mother and baby homes.

The Labour Party has called for a full public inquiry into adoption practices in the State, to investigate the scale of illegal adoption because we are still not clear about the scale of it. We need to give more scrutiny to that practice, which has been left in the dark for so long. We must also reflect on the ways in which we are still failing women and children in particular. Earlier tonight we debated violence against women and discussed the failure to provide adequate shelter for domestic violence survivors, for example. These are all issues which are very much intertwined.

It is great to see legislation that will go some way towards meeting the real needs of adopted persons, their real need for information as to their identity and their need to access their birth certificates. Let us work together constructively on Committee and Report Stages to ensure that the Bill can be amended and can really provide for that full information right, that full right of access to identity that all of us want to see finally enshrined in our law.

Deputy Jennifer Murnane O'Connor

As we all know, for decades there have been blockages to accessing birth information but those blockages will be removed by this legislation. We need to clarify matters here tonight because there is a lot of misinformation coming from the Opposition. We need to sort this because it is not proper for wrong information to go out from this House, as happened with regard to the mother and baby homes issue, when some Deputies claimed that the files were sealed away. They were not sealed away but that information went out. It is wrong to give wrong information and in that context, I need some clarity tonight. I have also heard some things tonight that are worrying me and that are not true. It is important that we get this right.

The urgent need for this legislation has been recognised by all political parties, stakeholders and professionals working in this area. I congratulate the Minister and his team for their work on this. I know it was a priority for the Minister but it was also a priority for me. This is good legislation. We cannot risk this Bill being unconstitutional and we had to bear that in mind with the steps taken here. Deputy Bacik raised a number of issues but she is very much aware of the question of constitutionality and the fact that we must bear that in mind when taking any legislative steps.

I worked very closely with the Minister and my colleagues on the Joint Committee on Children, Equality, Disability, Integration and Youth on this legislation. I can stand over it. We have an excellent joint committee. It is hardworking and dedicated and works to the bone. We were delighted to do the work. It was hard because we listened to stories that had us sad and upset going home but we did it. I think it was a Sinn Féin Deputy who said that none of the committee's 83 recommendations was put in the Bill. That is not true. You cannot put out that wrong information. Is that what the Opposition is doing? Do they want to work together but then go out and give everyone the wrong information? That cannot happen.

This comprehensive and inclusive Bill provides for the full release on application of birth certificates, birth and early life care and medical information for adopted persons, people who were boarded out, nursed out, subject to an illegal birth registration or who resided in a mother and baby home, county home or institution as a child. I want people to have access to their information. I encourage everyone here to support this Bill and get it passed as quickly as possible. Access is here. Let us get it to those who seek it. Something else that arose at the committee is how quick we can get access to the adoptees who need it. We have had no access for adopted people and now this legislation gives that. There may be more steps to be taken. Some of them might come into operation when the Bill passes. However, overall we should accept that this is good legislation. Amendments recommended at Committee Stage are ones I will support. I urge everyone to support them too when the time comes, particularly those relating to illegal birth registrations. This is something I have addressed with the Minister and I am heartened to see he has taken this on board.

Time is against us. We must do all we can to progress the Bill. The speed is what has been necessary. However, I ask the Minister to apply the same speed to redress for survivors as part of our action plan. I am very mindful of the survivors who come to me and have worked with the Minister on that, as I have worked on the committee.

Criticisms of the Bill have to be dealt with constitutionally. For instance, succession and the right the right to succeed to the estate to an illegal adopted parent is being addressed. The issue for medical practitioners is also being dealt with. If an adopted person seeks their mother's medical records to see if there was a medical issue, the information is only given to a nominated GP to protect the privacy of the mother. That is an important issue that was also raised at the committee. It is important that the information be given but that privacy rights are respected. This change strikes the balance.

Matters of GDPR often arise around this information and featured at the committee. It is important that we note that there are different guarantees under this legislation that are not under GDPR. While subject access requests under GDPR do play an important role in accessing information they do not provide an effective or satisfactory legal framework for the release of identity information to those adopted. Data protection law is currently tasked with providing for the release of this information. However, it does not strike the complex balance between the right to identity and the rights to privacy. Therefore bespoke legislation is required.

I very much welcome that baptism certs are now included. They can be a really valuable source of information. That was not mentioned once in all the criticism tonight. That is along with information on illegal registration. That is also vital. The definition of care and early life information is in the Bill. More sources of information can be provided. These are good changes. Things that I asked for in prelegislative scrutiny were given. This legislation will provide access to them. That is what is important to me and so many in my constituency in Carlow and Kilkenny and those who contacted me from elsewhere.

The new agency not being set up was raised tonight. The use of Tusla and the Adoption Authority of Ireland, AAI, is for expediency. Time, as I said, is against us here. We have waited too long already. Adopted people now have legal rights. They need this urgency. I spoke to the Minister about this. I am not saying we should not look at an agency in the long term. It was something that the committee examined. However, we know that we need to put this information out now. To set up an agency could take months and months. I am asking that people agree to a framework that can work so that we can get the information out. That is most urgent.

I discussed medical cards with the Minister. I ask that it be fast-tracked because these supports are important.

The Bill includes improvements in information but I sought clarification from the Minister today on the necessary minimal mechanism to protect the EU and constitutional rights of parents. This is where the Bill needs to be corrected. Again, there has been some misinformation here. You know what? That is not right. Where a parent has indicated a "no contact" preference, it will be conveyed to the person applying for their birth information in a short, sensitive and user-friendly phone call or virtual or face-to-face meeting with a social worker. It is also possible to find out what other information they want. This only applies to somebody whose form states a "no contact" preference. Anyone applying for information where the mother has agreed, then it is accessible. I spoke to a lady today from a mother and baby home. She is a survivor. I told her about the concerns being raised by the Opposition. I asked her about getting a registered letter while she was on her own, whether she would be upset that her mother had a no contact preference, or if she would prefer a phone call from someone to say sorry, the mother had put down a "no contact" preference but that counselling and supports will be offered and that they will be there for her. She said to me that if she was in the house on her own and got a registered letter and there was no one to talk to that can give information, that would not be right either.

An Ceann Comhairle

Thank you, Deputy.

Deputy Jennifer Murnane O'Connor

We need to find a balance here. The Opposition has said things that are not true. The Minister has worked really hard on this. I have been on the children's committee and I have worked like the Chair, Deputy Funchion and Deputy Bacik. But if we give out wrong information it is not good for anyone.

An Ceann Comhairle

Thank you. The Deputy is way over time now, please.

Deputy Jennifer Murnane O'Connor

Not one of the Opposition mentioned the funding of €1 million extra going to the Adoption Authority of Ireland and €3 million to Tusla. Are we in a position tonight where we only want to be negative?

An Ceann Comhairle

I do not want to be negative, Deputy, but she is over time. Please.

Deputy Jennifer Murnane O'Connor

All right. Thank you.

An Ceann Comhairle

The next contributor is Deputy Mythen.

Deputy Johnny Mythen

What we in this House need to understand is a sense of deep loss that a person experiences when they cannot access their own records. There is a huge loss, a feeling of not being a whole person, that they constantly carry inside them. We have all been very struck by the sense of belonging that a person gets when they access their own records. The right to identity is a fundamental human right. All you need to do is talk to adopted people to understand how deeply they care about this. This right is recognised internationally. Many countries have for centuries recognised an adopted person's right to access to their birth certificates and adoption records. Successive Government Bills have tried and failed fundamentally to correct this. I respect the Minister's attempt to rectify this, however, the argument about striking a balance is not the issue. The issue is the right of any individual to access their full records as a principle of respect and the right to know who they are. No one should hold the authority to block or deny this. Disappointingly the Information and Tracing Bill falls short of this principle. It is not easy to share your story. It is not easy to retell the hurtful and sometimes harrowing and traumatic experiences yet that is what some many adoptee's mothers, survivors and their advocates have painfully done for years. In order to provide the information and evidence needed for the Government to produce legislation that can right these past wrongs, the Joint Committee on Children, Equality, Disability, Integration and Youth of which my colleague and long-time activist on this issue, Deputy Funchion is Chair, made 83 recommendation on this legislation after several long and difficult hearings. How many of these recommendations were taken on board? Why were they not listened to?

Take the red-line issue of the mandatory information session, effectively treating people differently, as if they were children. We know that this issue alone has caused deep resentment and hurt among adoptees, parents and survivors. These are very serious issues which are being raised about the Bill, and full compliance with GDPR and other legislation, leading to real human rights concerns over why adopted persons are treated differently in Ireland compared to most of our European counterparts when looking for access to their private records.

I hope that the Minister and the Government will realise that this legislation does not strike a balance. Serious amendments are needed on Committee Stage. We need to listen to the people finally who have waited far too long to be respected and treated with dignity.

We owe it to them, to their stories and their stolen years, to finally uphold their human rights. These are their very fundamental rights to discover their own identity and restore their confidence in a system that has let them down so many times.

Deputy Holly Cairns

Before I begin it is important to address some of the comments from Deputy Murnane O'Connor on what she called "misinformation" related to the disquiet around the sealing of the archives back in October 2020 and the insinuation there that it was the Opposition drumming up false information or misinformation, as she called it. However, all she has to do is Google it-----

Deputy Jennifer Murnane O'Connor

Absolutely. You went on every radio programme for days about it. That is what you do.

Deputy Holly Cairns

-----and she would find the disquiet from survivor groups, the Opposition and all of the public came from direct quotes from the Minister and his Department about sealing the archives-----

Deputy Jennifer Murnane O'Connor

We did not seal away anything.

Deputy Holly Cairns

-----and she can look at that on the gov.ie website.

Deputy Jennifer Murnane O'Connor

We did not seal the files. We protected the files.

An Ceann Comhairle

Please Deputy, one speaker.

Deputy Holly Cairns

Look at the gov.ie website Deputy.

Deputy Jennifer Murnane O'Connor

We protected the files.

Deputy Holly Cairns

At the outset, it is worth noting the group of people this Bill refers to have endured an especially nasty and dehumanising form of abuse from the State that continues to a certain extent to this day. I refer to forced family separation along with practices of illegal adoption, the falsification of records and the imposition of secrecy on women and children. The State, as well as religious organisations and others, denied individuals their identity. It assaulted their sense of belonging and personhood from the day they were born. Subsequently, it did everything possible to oppose their access to information, including approaches that dismissed rights, infantilised survivors and further traumatised them. The parents, especially and most often the mothers, were equally impacted on by this regime.

Disgracefully, this impulse from the State is still present to a certain extent. This legislation contains elements of it. A Bill has been deemed necessary despite the existing right to access one's personal information. It should also be noted that while these issues relate to mother and baby homes, there are many people affected who did not go through that system. Aitheantas, the adoptee identity rights advocacy group, has highlighted that many of the people they represent could not participate in the mother and baby homes commission, and were not included in the Taoiseach’s apology last year. That fact needs to be rectified as part of this process. We need to officially and fully acknowledge the wrongs intentionally perpetrated against these adopted people and their families by the State.

While any improvement on the State’s refusal to provide people with their birth and early life information is welcome, this Bill, despite months of engagement and recommendations from advocacy groups, falls short of what is required and fails survivors in many aspects. It is deeply insulting and wrong that the rights of this group of people are not being fully vindicated when we have this opportunity. The pre-legislative scrutiny was extensive and detailed with almost 40 witnesses appearing before the committee, including survivors groups, advocates, and human rights experts, as well as the written submissions being received. We carefully reviewed all submissions with the assistance of the secretariat for the children's committee, which did incredible work, and the chairing of Deputy Funchion. Our report synthesised all of those engagements into 83 recommendations. Disgracefully, many of them seem to have been disregarded. I am left wondering what the point of the pre-legislative scrutiny was.

Deputy Jennifer Murnane O'Connor

That is more scaremongering.

Deputy Holly Cairns

Why did individuals and groups have to make another submission, to share their story again only for it to be ignored in many instances, again? The committee report was published on 14 December. On 12 January, the Bill was published. That is just 14 working days, not to mention the Christmas disruption. Therefore, how much consideration was actually given to the recommendations of the committee? This is not about the committee but about the voices of survivors and their advocates. All of our recommendations are based on their submissions. The Minister is not dismissing the committee necessarily but dismissing them.

There are several main issues I wish to raise today. The first, which many other Deputies have raised already, is the mandatory information session. The committee report was unambiguous, stating:

The mandatory information session should be removed from the legislation. An alternative appropriate safeguard should instead be provided for, such as the sending of correspondence by registered post.

The Irish Human Rights and Equality Commission stated the information session presented an obstacle and potentially a complete barrier to individuals accessing long-sought information. The Council of Irish Adoption Agencies described it as contradictory to the spirit of the Bill. Others classified it as insulting, discriminatory, and restrictive. While the Minister has changed the format of the mandatory information session, it is still an obstacle to accessing information. Many witnesses suggested alternatives that the committee highlighted. It wanted to be proactive. However, the Minister and Department are unwilling to consider these. If this is about balancing privacy and identity rights, there are numerous ways to outline that to the individuals concerned. Forcing a verbal interaction with an agent of the State to outline what is already known is deeply problematic and potentially traumatic. The Government is saying that is okay, because there may be some counselling available.

Moreover, section 17 actually states that a purpose of the mandatory information session is to inform the adopted person of "the importance of the relevant person respecting the privacy rights of the parent" and the preference of the parent not to be contacted. That is an incredibly condescending and paternalistic statement to have written into law, reflecting how the State still views adopted people. This session remains deeply insulting, discriminatory and restrictive. Those affected are the people most aware of privacy rights. They have had a lifetime of negotiating these matters and do not need the Government to explain it to them. Ultimately, this session is part of a false narrative that pits adopted people against parents. The implication of adopted people trying to track down parents was strongly contested in the committee. Our report shows a small minority of mothers have expressed a no-contact preference, approximately 5%, while far more adopted people on the register have indicated that they do not want contact.

The Bill treats categories of affected people differently. The mandatory information session, which should not be in place, only applies to adopted people and not to parents. Furthermore, it remains predicated on the concept that it is only parents who have a non-contact preference and that this is much more common than it actually is. Unfortunately, this seems to be a case of the system protecting itself. The reality is that secrecy was imposed by the State, agencies, and religious orders on both adopted people and parents. The twisted morality of the time imposed social stigma on adoption and then engaged in the falsification of records. Since then, Departments, public bodies and religious orders have tried to maintain this secrecy. We can see all the remnants of this type of thinking in the very fabric of the Bill and the implications on which it is based. The mandatory information session and all it represents must be removed from the Bill. An alternative measure should be adopted that treats all relevant people the same and with respect. In his opening statement, when he spoke about this being "landmark", the Minster gave different examples of all these old Bills and referenced that the current Bill does not "criminalise" adopted people. What kind of a low bar is not criminalising adopted people? I will tell him. It is so low a bar it just should not be referenced. It is not worth referencing unless it is in a completely different context to this one.

The second main issue is early life and care information. The committee heard extensive discussions on the need for broader understandings of care and early life information. It was recommended that the scope and extent of care information provided should be increased and that "All information is part of an adopted person’s history and heritage and must be included in the records provided to them". The prescriptive definitions in the Bill, while an improvement on the initial Schedule, are still limiting and do not guarantee access to the full range of potential care information, early life information and medical information. The Irish Human Rights and Equality Commission has warned that "Using restricted definitions will have a significant impact on the type of information ... available and those who can access it." The Bill’s definition of "care information" is linked to the limited list of institutions identified in Schedule 1. This confines the Bill’s application to just 44 institutions out of 182 known institutions, agencies, and individuals that were involved with forced family separation. The committee has a very clear recommendation here that has again been disregarded. We sought that: "The list of institutions in Schedule 1 should be expanded to incorporate the full list of known institutions, agencies and individuals that were involved with forced family separation in Ireland, without limiting the bill solely to these bodies."

While there is provision for the Minister to add institutions to those outlined in the Schedule, it is not only nonsensical to exclude them but is indicative of an approach that is putting obstacles in the way of individuals seeking access to the information. It is just ridiculous that they have to seek the Minister's discretion when there should be no need for it.

The third issue is the terminology around adoptions. The Bill clings to the euphemism of "incorrect birth registrations" as if they were not part of a system of forced family separation and were a benign mistake rather than a multigenerational strategy by State institutions and religious orders to cover up illegalities. Let us be very clear; this was not a case of "incorrect birth registrations". It was the intentional falsification of birth certifications and other documents. It was illegal adoptions. The least this legislation should do is be honest and name these practices for what they were and for what we all know they were.

In the 2015 report on the pre-legislative scrutiny of the Adoption (Information and Tracing) Bill, the Joint Committee on Health and Children said:

references to ‘wrongful registrations’ or ‘incorrect registrations’ suggest an administrative oversight, and do not adequately reflect the covert nature of many adoptions carried out in the past. The Committee further notes that there are no references ... or acknowledgements of illegal adoptions in the Bill.

Again, in this Bill, the Department and the Government could not bring themselves to even acknowledge illegal adoptions. In their submission, the Clann Project provided a definition of illegal adoption that should be in the Bill as a more accurate and truthful alternative to "incorrect birth registrations". On this point, the committee recommended that the Bill refer to "falsely or incorrectly recorded" birth registration. This was another recommendation by the committee that was ignored.

Discussions of the general data protection regulation, GDPR, and the Government’s conservative interpretations of it permeated the pre-legislative scrutiny. This is an area of considerable complexity but, nonetheless, the committee was forced to recommend that "the Bill must be proofed to ensure that adopted persons are provided with a clear means of accessing their information in compliance with GDPR requirements." It is already clear that there are multiple issues with the Bill and GDPR.

The GDPR already defines personal data as "any information relating to an identified or identifiable natural person [or] (‘data subject’)". The definitions in the Bill do not align with that and it is not permissible to limit the definition of personal data more narrowly than it is defined in GDPR. Several witnesses identified issues with State institutions and agencies deeming mixed information as third-party data rather than mixed data. The State’s position led to section 62 of the Bill, which restricts individual’s rights under GDPR. That is very worrying. It should also be noted that the phrase "mixed data" does not exist in the GDPR and, where data relates to two people, it is personal data to both of them and should be released.

Section 16 introduces the insulting and simply wrong provision that family medical history will only be provided through a medical practitioner. This new barrier is currently being used by the Department in relation to subject data access requests for mother and baby homes commission archives. The Department is now extending it to adopted people and parents. In addition, under our GDPR recommendations, the committee again called for the removal of the mandatory information session as it is a clear barrier to individuals' effective right of access to information.

These are only some examples. Initial readings of the Bill by data experts and advocacy groups have raised serious concerns, which they warn could lead to massive confusion, a large number of complaints to the Data Protection Commission and litigation. These issues need to be rectified by the time the Bill reaches the next Stage.

On reciprocal rights for mothers, there are no information rights for mothers in this Bill, except for those women whose children died in certain institutions. Against this is a glaring inconsistency in that this Bill keeps shifting emphasis and applying different rights and restrictions to different groups. The committee was very clear on this point. We called for "a reciprocal right for mothers to receive their full records, including information about their child and to have input into them in the form of an appended statement or similar." This was forced family separation surrounded by secrecy. Mothers were coerced and non-consenting participants. Their rights to care, administrative, medical and other records, as they relate to them, need to be acknowledged.

On the matter of a public information campaign, the committee recommended that an information campaign "should begin at the earliest point possible to avoid delays" and "should be designed with empathy and sensitivity and in itself be considered a safeguard in protecting privacy rights." There was strong support for an information campaign around this issue. While the Bill allows for a public information campaign, it gives the Adoption Authority of Ireland considerable latitude in deciding the content and timing. Witnesses such as the Irish Human Rights and Equality Commission and the Clann Project suggested an information campaign as an alternative to the mandatory information session.

There is a recommendation for the campaign to be of at least six months' duration to allow people to consider their options. There is a need for it to be advertised abroad, given the international nature of the illegal adoptions system. It needs to consider non-digital routes, given the age profiles of individuals involved, and it also needs to be available in plain English and to consider people with intellectual disabilities. On that point, the first recommendation in the committee report is that "Plain text should be employed ... [as] far as it is possible, both in the Bill and in any accompanying documentation, particularly given the sensitive ... [content] of the legislation." The Bill fails this first criterion. Even for Irish legislation, which is unnecessarily difficult to read, this Bill is especially complicated and daunting in numerous sections. This will put an additional onus on the information campaign to be as accessible as possible.

In addition to its technical function, the campaign should be part of a social response to help create a new discourse of truth, accountability and understanding. It is very important and worth quoting the Clann Project on this matter:

The proposed publicity campaign presents a unique opportunity to let mothers know that they no longer need to bear the burden of secrecy and shame, to let adopted people know that they are equal in the eyes of the law, and to let relatives of the deceased know that they can finally learn what became of their family members.

The current section dealing with a public information campaign is insufficient. There should be a greater emphasis on an accessible and wide-ranging campaign aimed at making the process as easy as possible for affected people and their families, as well as helping to reframe cultural understandings of this subject, especially in the absence of an official State apology.

Finally, on counselling, the committee heard unanimous support for extending the Bill's provision for counselling to all affected parties. A range of supports should be offered to affected persons to include provision of information, counselling and interventions to help address experiences of trauma. Section 63 of the Bill, counselling support for parents, again prioritises one group over others. There is a reference in section 57 to counselling for applicants after they have received records. However, given the limitations on who can apply, and for what information, this provision is restrictive. What about those whose applications are unsuccessful? What about relatives? Several witnesses pointed out the transgenerational trauma that forms part of the legacy of adoptions in Ireland. There is no recognition of that in the legislation.

I have only touched on some of the main points that I am aware of from my reading of the Bill so far and my engagement with individuals and advocacy groups. This gives a sense of the amount of work that still needs to be done to make this Bill what it should be. Any progress on this matter has to be welcomed. For decades, State authorities have denied individuals access to information about themselves, their identity and their heritage. This has intentionally perpetuated a culture of secrecy and stigma surrounding illegal adoptions, which has furthered the suffering of adopted people, parents and their entire families. In this instance, one arm of the State is attempting to solve the problem created by another. Individuals are entitled to this information under GDPR. However, the Government’s interpretation of these rights continues to uphold decades-old secrecy and barriers. If this Bill is the answer to that, it is wholly inadequate. It is based on false narratives, treats groups differently, restricts access, attempts to limit GDPR and fails to provide the reassurances that adopted people, parents and their advocates have sought.

I urge the Minister to engage with the pre-legislative scrutiny report and to incorporate its recommendations in amendments. Be assured that I, and others, will do so. I can only hope that the Government will allow sufficient time, at that stage, to discuss the many amendments that will come forward and not to apply the guillotine. In the meantime, I will push for the children’s committee to seek a comprehensive response from the Minister on our report, including his rationale for disregarding so many of its recommendations.

It was seven working days and the disruption of Christmas. It is hard to imagine that all of that work was considered enough. We ask survivor groups to come before us time and again to relive trauma. For what? It cannot be for them to be ignored. The least witnesses and advocacy groups can expect is to be listened to and considered.

Over the past few days, all Deputies will have received emails and messages from many people asking us to amend the Bill. I wholeheartedly support them. The Bill needs to be amended substantially to achieve what it claims. These individuals should not have to ask for amendments. A Bill that has gone through several iterations of pre-legislative scrutiny should be much better than the one before us.

Deputy Cathal Crowe

It has taken some time but I am glad that, finally, the Birth Information and Tracing Bill 2022 is before Dáil Éireann. This legislation has been long awaited by many people. Over many years there have been repeated attempts to draft legislation to provide adopted people with the right to key information about their birth situation.

I am a member of the Oireachtas committee which examined this legislation and met over many months with stakeholder groups. It is important to pay tribute to these groups and the individuals they represent. Their stories are personal and unique but there is a commonality of pain, hurt and emptiness of not knowing one's self. I hope our committee has been empathetic to their pain and that Dáil and Seanad Éireann move as quickly as possible to enact legislation that will, to some small extent, help to ease that pain.

The urgent need to enact the Birth Information and Tracing Bill has been recognised by all political parties, stakeholder groups and professionals working in the area and the legislation has been progressed as a matter of priority by the Government. The Bill, which I hope will be enacted, will ensure the full release on application of birth certificates and birth, early life care and medical information for adopted persons, people who were boarded out, nursed out, subject to illegal birth registration or who resided in mother and baby or county home institutions when they were children.

On top of all of this, the Bill seeks to establish a statutory tracing service and statutory contact preference register and to provide for the safeguarding of adoption and related records. Furthermore, it addresses the issues facing people who were the subject of an illegal birth registration. The Bill will provide a legal mechanism for provision of an accurate birth registration to affected individuals while remaining mindful of their current identity.

Following engagement with stakeholders, the Bill has been significantly enhanced in a number of areas. When a parent has indicated a no-contact preference, this will be conveyed to the person applying for the birth information. This will now be done by means of a short, sensitive and user-friendly telephone call to the applicant seeking information and will no longer require a face-to-face meeting with a social worker. Information will then be released to the applicant in all cases.

The Bill also includes some major new provisions that allow access to records by next of kin. These were not included in the original heads of Bill so that is an important matter taken on vis-à-vis the consultation with stakeholders.

The Birth Information and Tracing Bill is fully congruent with the Constitution and GDPR obligations of our State and strengthens existing rights to information. The Bill does not prevent a person from making a subject access request under GDPR or from receiving information beyond the categories in the legislation.

Leaving legislation aside for a moment, I will speak on the substantive matter of mother and baby homes. Every child in the world is perfect at the time of birth and perfectly deserving of the love and affection of parents, extended family and the State. For too many decades, the State, choked by a holier-than-thou and "What will the neighbours and clergy think?" attitude, did not live by the cherish all the children of the nation equally slogan of the 1916 Proclamation. Instead, society, church and State were complicit ideologues for the "born out of wedlock" and "living in sin" outlook and, perhaps most disgusting of all, the term "bastard", which has thankfully left public discourse. These outlooks have caused immeasurable pain and torn families apart for far too long. I hope the legislation before us can heal some wounds and help people find out who mum and dad truly were.

I had a conversation with a woman in my constituency some months ago. It came up casually in our conversation that I was heading home that evening for some cake and a small party for my daughter's birthday. With deeply sad eyes, the woman told me that, while most people look forward to their birthday, she finds hers the most painful day of each year because it reminds her that part of her identity and sense of self is not there. I believe heart and soul that this legislation will to a large extent heal her pain and that of many others.

Debate adjourned.