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 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.