Skip to main content
Normal View

Joint Committee on Health and Children debate -
Thursday, 22 Oct 2015

General Scheme of Adoption (Information and Tracing) Bill 2015: Discussion (Resumed)

Apologies have been received from Deputies Ó Caoláin, Kelleher - both of whom are in the Dáil for Question Time with the Minister - Conway and Maloney. Deputy Fitzpatrick sent a message to the effect that he is stuck in traffic and apologises for being late.

The purpose of this meeting is to resume our pre-legislative scrutiny on the general scheme of adoption (information and tracing) Bill. It is our second hearing on this important general scheme of the Bill, which deals with a complex and sensitive area. For many of us, I suppose it is an area that is also personal in that relates to the lives of those we know and love. In that context, the meeting this morning is important. I welcome those who are watching and listening to proceedings in a variety of ways. The purpose of these hearings is to allow the committee to consider the heads of the Bill and to meet a range of organisations. To our first session this morning, I welcome Dr. Geoffrey Shannon, chairman of the Adoption Authority of Ireland, and Ms Patricia Carey, its chief executive.

Before we begin, I remind witnesses that, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not comment on, criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

I invite Dr. Shannon to make his opening remarks.

Dr. Geoffrey Shannon

On behalf of the adoption authority, I am very grateful for the opportunity of addressing the committee this morning with my colleague, Ms Patricia Carey, who is the chief executive officer of the authority.

We would like to start by warmly welcoming the introduction of the heads of Bill. It is great to have the opportunity to comment on the heads at this stage. We would like to be associated with the comments congratulating the Minister, Deputy Reilly, on introducing this important legislation.

I do not intend to go through the detail of the paper I prepared for the committee. However, members will see from that paper the complexities in this area of the law. I will provide a layman's guide to what I believe the Bill contains and I hope that will be of assistance to members.

Essentially, the Bill provides access to adoption information on the basis of a presumption in favour of disclosing information, about which profound legal issues are at stake. There is the right to identity on the one hand and the right to privacy on the other. Those respective rights need to be balanced in any legislation that is framed. Head 13 attempts to deal with the issues of retrospectivity and head 14 attempts to deal with the future.

Under the current law there is no comprehensive statutory right to information, which is an issue that should concern everybody. Within the current practice there is no disclosure of information without the consent of the birth mother. In an age when we have ratified several international instruments, that fails to accommodate the right of the child, in particular, to identity. I am conscious that much of this legislation focuses on adult adoptees. In the midst of this we can also forget that a core right a child has is the right to know who he or she is. I would like to put back at the centre of this discussion the right of every child to know his or her origins and we need to ensure this becomes a core principle of Irish law.

In 2005 the national adoption contact preference register was established. I am delighted to see Ms Susan Lohan from the Adoption Rights Alliance present today. She has been a major campaigner in this area. Ms Lohan and I share in common many areas of interest in how we can move forward. Ms Lohan has legitimately criticised the national adoption contact preference register as being insufficient, and I agree with those comments. While it is very useful for those who agree to share their information on consent, it does not provide relief where no consent exists. In 2005 we placed the national adoption contact preference register in what is effectively an administrative scheme, but we never dealt with the big challenging issue of reconciling the competing rights to identity and to information.

Under section 59 of the Adoption Act 2010 one loses all parental rights and is freed from all parental duties once the adoption order is granted. That is essentially where the problem lies. That necessitates having two separate regimes. There is the past and unfortunately we cannot rewrite the past. Equally we cannot become paralysed by the past, which is what seems to have happened. There seems to be a paralysis over the existence of this provision. That is why I welcome the draft legislation. We now need to move forward. If we have a system where a person loses all parental rights and is freed from all parental duties, does that sunder the right of the adult adoptee to know his or her identity?

Essentially the Bill provides for the establishment of the adoption information register. The Bill will provide the information required to apply for a birth certificate subject to certain conditions. The conditions are twofold. First will be an awareness campaign for a period of 12 months and second will be signing a statutory declaration. That regime has been devised to deal with the competing rights of the right to identity on the one hand and the right to privacy on the other hand. That is reflected in head 13 of the draft Bill.

The second regime is what happens to adoptions effected after the commencement of the Bill, which is reflected in head 14. That provides that section 58 of the Adoption Act 2010 will be amended such that the parental link between the natural parents and the adopted child is not severed for the purpose of identity information to the adopted person. Essentially there will no longer be a veto on the disclosure of information. The presumption will be in favour of disclosure and that presumption can only be displaced for compelling reasons. I read with interest the transcript from last week's hearing on the issue. I am quite happy people had questions around the issue of compelling reasons and requested an insight as to what that might amount to.

On the role of the Adoption Authority of Ireland, it will be responsible for collecting, preserving and safeguarding adoption records.

There has been much comment on the legal issues. We need to ask where we stand in Ireland in 2015 on the right to identity. The courts are placing increasing emphasis on the importance of the right to identity. Many members will be familiar with the surrogacy case that came before the Supreme Court. In particular, Mr. Justice McMenamin placed strong emphasis on the importance of the right to identity. We have recently passed and ratified children's rights in referendum. Article 42A recognises and affirms the natural and imprescriptible rights of children and protects and vindicates those rights. A core right for a child has to be the right to identity. That is hugely important in refocusing the debate on ensuring that we tell children that they have this right. Legislators have an obligation to ensure it is not just about the adults but is also about children. There may well come a time when children reaching 16 or 17 might have the right to seek information in respect of their identity. That is the case in the UK at the moment and we should not lose sight of it.

There has been much discussion on the decision in the case of I. O'T v. B. The case of I. O'T v. B did not deal with adoption and in my opinion too much reliance has been placed on this for all the wrong reasons. I take a different view on the decision in the case of I. O'T v. B than most people do. It is of very limited value as a precedent because it dealt with, what is called, de facto adoption - in fact it was not adoption at all. I suppose one could distil from that certain views that might be adopted. The comments made in that were what are called arbiter comments. In other words judges can make comments that are not directly relevant to an individual case or by-the-way comments that are called arbiter comments and that is what happened in that case.

A possible interpretation of the judgment in the case of I. O'T v. B is that the right to information about a child's identity is a freestanding entitlement that does not depend on the existence or necessarily the enforcement of the maintenance of a relationship between parent and child. That is worth considering when it comes to legislating. This judgment has been held up as a roadblock to legislating in this area. I take the view that it should not present a roadblock and it is not of huge relevance in the area.

What is of relevance - this is why I support the legislation - is that it attempts to deal with the past and the future in a manner that balances competing rights. It refers to no right being absolute and stipulates that nobody has an unqualified right, which is important, and that those who undertake that balancing exercise are subject to independent scrutiny. In any system it is important that independent scrutiny occurs. It is very much to be doubted that the courts will second-guess legislative judgments.

The court's role is to retain constitutional responsibility for supervising the balance to be struck by the Oireachtas with regard to the two competing rights, namely, the right to identity and the right to information. In all the Supreme Court judgments that have been handed down in this area and the tangential area, it has been stated no one right should be given automatic priority over others. I have cited two interesting cases in my submission, namely, the leading adoption judgment of N. v. the Health Service Executive and the I. O'T. v. B. case. In both cases, it is clear the courts are saying there has to be a process and that this process must be subject to independent scrutiny.

Another issue which has arisen is that one cannot deal with the past. There is a problem with what is called retrospectivity. I dispute that fact because of what the courts have stated. In the submission I made to the committee on behalf of the authority, I have cited the judgment of Mr. Justice Clarke in the case of Cork County Council v. Slattery, in which the current sitting Supreme Court judge stated there is no prohibition on retrospective civil legislation. Given that one is not altering the legal character of the past adoption, so long as one engages in a balancing exercise there is no prohibition on dealing with situations retrospectively. In layman's terms, the entire narrative states retrospectivity should not be a roadblock to dealing with past cases, including historic cases.

With regard to the international position, there are three international instruments in this area. The first is the 1993 Hague Convention. Ireland ratified that convention and incorporated it into domestic law, as part of the Adoption Act 2010, on 1 November 2010. Section 9 of that Act makes the convention part of our domestic law. It is very interesting to examine this. Under the new Bill, it is envisaged that Tusla will provide an applicant with information on his or her adoption where such information is held by the Adoption Authority or Tusla, or both. Many members will find interesting the fact that, in terms of my reading of the provision, it appears the consent of the birth mother is not required, strictly speaking, before the disclosure of adoption information can be made in the context of intra-country adoption, which seems to be a more generous approach than exists in respect of our domestic adoption. However, it is very clear in the Hague Convention that it is a matter for each member state to determine how to deal with the balancing of the two competing rights. That is very clearly articulated in Article 30 of the 1993 convention.

The UN Convention on the Rights of the Child is a standard-setter. Many members may ask why I am opening this matter to them this morning. It is a very useful framework for legislating. This is an opportunity for me to welcome the decision made yesterday by the Minister for Children and Youth Affairs and to acknowledge the work of Senator van Turnhout on the banning of corporal punishment. Corporal punishment breaches a core right under the UN Convention on the Rights of the Child and that is why it is a standard-setter. It provides us with a framework in which we can legislate. There are two core rights, referred to in articles 7 and 8. All emphasise the importance of the right to identity for a child, including when the child progresses into adulthood. Interestingly, there are no guidelines on the balancing of competing rights. While many would refer to the UN Convention on the Rights of the Child, there is not a great deal of guidance in it on how to achieve the balance.

The third instrument that is worthy of consideration is the European Convention on Human Rights, which has been incorporated into Irish law at a sub- constitutional level. The key provision is Article 8, which concerns the right to respect for private and family life. In this regard, there is a decision, similar to that in the I. O'T. v. B. case, called the Odièvre decision, which again has been misinterpreted. With a wafer-thin majority, the court decided not to disclose information. That case can be distinguished in that it dealt with anonymous births. It was a peculiar case decided on its particular facts, and it has been overtaken by a subsequent case, mentioned on page 15 of my submission, called Godelli v. Italy. In the latter, there was a blanket ban on recovering information, including non-identifying information. The European Court of Human Rights felt that it breached Article 8 of the European Convention on Human Rights. Machinery to balance competing rights is required. The legislation provides for it. One needs a systematic and ordered system for ensuring people understand the decisions taken when those rights are balanced. A system of automatic non-disclosure without independent scrutiny will not be compliant with the European Convention on Human Rights. The legislation, as currently drafted, is compliant because it provides a mechanism to ensure that one can appeal a decision in respect of how those rights were balanced. That the legislation has a strong presumption in favour of disclosure of information is very much to be welcomed. It is very clearly in line with all the international instruments, namely, Article 30 of the 1993 Hague Convention, articles 7 and 8 of the UN Convention on the Rights of the Child, and Article 8 of the European Convention on Human Rights.

The authority and I believe the right to identity is a basic human right. We have got to start from that perspective. We have been paralysed by the past. This paralysis has acted as a roadblock to legislating for the right to identity. How many children have grown into adulthood since we first started discussing this issue? I welcome the fact that the Minister is, for the first time in robust legislation, dealing with this forgotten part of adoption.

I welcome Dr. Shannon and thank him for his presentation. His opening statement brings home the fact that this is a quite complex and sensitive matter. This is legislation for which people have waited for a long time. Every person is entitled to know his identity and health status or health footprint.

While respecting the rights of the birth parents, the State has an overriding responsibility to ensure the adopted person has full information on where he or she has come from and his or her health status. I understand there must be some constraint but our job, as legislators, is to minimise constraint and maximise the information that can be made available.

I have a few points on which I wish to seek clarification, if possible. I refer to the compelling reasons not to disclose information and the assessment of these. How is the decision made and who actually makes it? Will the appeals process involve civil procedures, which could be beyond the means of the vast majority of people? Who will cover the cost of the appeals? If Dr. Shannon expects a legal challenge to the Bill, on what grounds does he fear it will be made?

I thank Dr. Shannon. It is always a pleasure to listen to him. He has given us another masterclass and has made points I am sure will be repeated in both Houses as we debate this legislation.

It is very welcome to hear the right to identity being highlighted in the way Dr. Shannon has highlighted it. All too often we hear about the right to privacy as if it were a right that trumped all others. In his submission, Dr. Shannon has dealt very much with the balancing and delicate interplay of rights, and he has also reminded us about children. To our shame, a child being adopted today does not have a right to identity. While we can talk about the past, which we must address, we must also talk about the present.

There are three areas on which I would like to ask questions. The first concerns the capacity and resources of the authority. In considering the wide spectrum of records, it is not simply a matter of having a register going from A to B in which every entry can be put on file. Rather, it is a question of the nature and types of records, their wide variety of sources and how the information is to be collected.

While I understand the process, that all will take time and I am aware that many of those who have approached people like me and Senator Power are getting older. This is why time is not on our side on this issue.

The other issue I wish to raise concerns the legality of adoptions prior to the Adoption Act 1952 because the National Adoption Contact Preference Register only has data on a small number of adoptions. However, the authority audited those records in 2011 and found 50 cases of illegal adoptions. Is there a proposal to do further work in this regard? I raised the point, in the context of mother and baby homes, that this issue must be examined and scoped out. I have not got my head fully around how that might be done but the issue cannot be simply ignored because it is wrapped up in the issue of consent and what that is. Consent is not having a piece of paper shoved in front of one and being told to sign it. Some people may not even have signed anything and that does not constitute consent in any way. The last question I wish to ask is about the "compelling reasons" provision, which Dr. Shannon raised briefly. I cannot see why this provision is needed and have been trying to trawl, root and ascertain how does one ensure the bar is set so high. My difficulty is that by leaving in the phrase "compelling reasons", the question of what is a compelling reason is being left open to interpretation. In any example I have tried to provide, people have stated it would not be strong enough. However, this is what members are debating. Why is this being included in the legislation if nobody can give me a viable example? Perhaps Dr. Shannon can do so.

I thank Dr. Shannon for his comprehensive presentation. I wish to touch on one issue, namely, illegal adoptions and whether we have any real idea of the numbers involved. I understand the number of legal adoptions between 1953 and 2014 is greater than 44,000. Unfortunately, I was obliged to deal with one such illegal adoption case a number of years ago, in respect of which I spent four days in the High Court. Can progress be made in trying to facilitate people? While I acknowledge the Bill makes certain provisions, is enough being done in this area to help people? I refer in particular to tracing and trying to go back over records in the various hospitals or facilities in which the births occurred. Is there a proposal to consider this in a more comprehensive manner? I understand what has been done has been piecemeal and very little assistance is available in real terms. What is Dr. Shannon's view in this regard?

I thank Dr. Geoffrey Shannon for his presentation and for his work on this issue over many years. He has long championed the right to identity and general improvements in adoption law. An issue that already has been touched on is that of compelling reasons, which is something about which I am deeply concerned because members do not know precisely what that involves. There is a risk it then might open a door to challenges and uncertainty until the courts actually hear a case and decide what it covers. In Dr. Shannon's view, is this really necessary? We have existing legislation and, again, I cannot think of a scenario it is intended to cover. The Minister has stated it concerns life-and-death situations and one assumes there is something about harassment or something similar or a threat to somebody's life. Again, I do not see why this arises specifically in this context, as opposed to in other walks of life and human interaction that are covered perfectly by existing legislation. The non-fatal offences legislation and other legislative items cover sufficiently all manner of harassments. In Dr. Shannon's view, is this actually necessary, given that other legal provisions are in place?

The same is true for the statutory declaration. As Dr. Shannon is aware, both the Adoption Rights Alliance and the Irish First Mothers group, which represents women who have been separated from their children by adoption, have criticised this provision and have stated they find it to be offensive. It is based on an unfair assumption that adoptive people are insensitive or irrational and would wish to push themselves into the lives of parents who do not wish to have that involvement. While this is not the case in my experience, is it the same for Dr. Shannon? Even in situations in which people may be disappointed there will not be contact - incidentally, that works both ways, in that one can have parents reaching out and the adopted person not wishing to have contact - obviously these are difficult situations and can be highly emotional and distressing but, in my experience, people respect that. One cannot force somebody to have a relationship with one who does not wish to so do. Nevertheless, this is an extremely heavy-handed and unnecessary legal obstacle and is an insensitive way to deal with a minority of circumstances. This Bill should be legislating for the majority of cases in which it will be a positive experience and there will not be issues and we should allow existing law to deal with the minority of cases in which there might be a problem.

On illegal adoptions, Senator van Turnhout also has touched on this point but what more can be done? This must be a highly proactive process. Obviously, having access to a birth certificate is completely useless to somebody whose birth certificate was falsified. There are records throughout the State and presumably in some nurses' registers, such as the registers of Nurse Doody. In addition, general practitioners, GPs, and solicitors were involved in informal adoptions. As the existence of some of these records may not be known, how can this be pieced together and what would a proactive system of helping people look like? It is really important that people who had their identities robbed from them through that process also be helped, perhaps even more so.

However, I again thank Dr. Shannon for the presentation. I thought it was particularly strong on the right to identity and the misinterpretation of the I. O'T. v. B. case ,which drives me crazy and is constantly rolled out as a reason not to do anything. Having read the details of the case, I always felt this was wrong but, as Dr. Shannon is a much more experienced lawyer than I, it was powerful and persuasive to hear him say it. I thank him for making that contribution as well.

I call Dr. Shannon. I am conscious the joint committee must conclude this part of the meeting by 10.30 a.m.

Dr. Geoffrey Shannon

I thank members for their interesting questions. Illegal adoptions have come up on several occasions and it is a topic about which I am concerned, as Senator Power suggested, that the authority be proactive. In terms of context, this issue was raised in an article published in the Irish Examiner by Conall Ó Fátharta a number of years ago. In the aftermath of that article, I brought to the next available board meeting a suggestion that we undertake a limited audit at the time. The figure the Senator was quoting, which actually was there were 100 cases in which there were not matches, emerged from that audit. As to the extent, it would be foolish of me to give any estimate in this regard. It undoubtedly is the case that there is a dark history in certain aspects of the way in which Irish society operated. It is important that we admit to that. As chair of the authority, I have been trying but given that we do not have an adoption file, in general the people coming to us seeking relief actually will have more information than will we on the matter. It is an issue we certainly will continue to monitor. I am quite struck, as I believe is the chief executive officer, by the number of people raising this issue at this meeting. However, I must state it is an issue about which I am concerned and am anxious that the authority provides some relief. It always troubles me when people who write to the authority express great distress at the fact that they are not in the position to receive basic information. It was poignantly raised by Deputy McLellan, when she spoke of how such right to information is hugely important, particularly medical information, to which she referred. I strongly am of the view that this type of information should be available to all adopted people because in terms of any genetic disorder that exists, it is difficult to advise. Consequently, there is a profound health issue underpinning this point.

This is all part of that balancing exercise between identity and privacy and how that is balanced ultimately. All I can do is assure members that the issue is getting the highest attention at authority level and that we will continue to look at what more we can do.

The legislation attempts to deal with this issue and the authority will do everything possible to assist. Susan Lohan from the Adoption Rights Alliance has been raising this issue consistently with the authority. She was, perhaps, the first person to raise the issue on our radar. We will continue to work with the support groups, which have been doing fantastic work in this area and have been drawing bad practice to our attention. All I can do here is to make a commitment that we will continue to do what we can as an authority on this issue.

I understand people's position in regard to the issue of compelling reasons. I want to be honest in terms of my response on this. There needs to be some type of balancing. It is my professional view that having some formulation, such as compelling reasons is necessary for this legislation to be constitutional. That is my view, however it is characterised. I share the views articulated by all members that people will have concerns that the compelling reasons will be an out in terms of not providing information. Ahead of this meeting and having read the transcript from last week and having seen this issue raised then, I looked to see whether this provision had been used in statutes previously. It has been used in two relatively recent statutes, namely, the Civil Registration (Amendment) Act 2014 and the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. Therefore, it might be worth while to look at those statutes.

It is possible to ring-fence what amounts to compelling reasons. I gave this further thought during the week because I understand it is an issue that will cause concern and anxiety. Compelling reasons exist prominently in the jurisprudence around State intervention. In the past, the State could only intervene in a marital family where compelling reasons existed. Therefore, there is significant judicial comment as to what amounts to compelling reasons. I wonder whether a way of dealing with this issue might be to give clear guidelines as to what compelling reasons will amount to. I hope this response is helpful in terms of providing clarification on this issue. The question of whether the legislation will be constitutional is dependent on having the checks and balances in place.

I also share the views expressed in regard to a statutory declaration. While a statutory declaration is not an absolute necessity, some type of mechanism is required. The points made are compelling, in terms of some type of mechanism being necessary to demonstrate a balance has occurred. There are two systems and I would think we should look at these two very different systems. We cannot rewrite the past. We have had this clean break adoption system since 1952. However, for the future, the fact we are amending the principal provision in the Adoption Act, which allows us to have a system to release information, will allow us much greater flexibility, particularly in regard to compelling reasons and the statutory declaration issue. This is important because we are advising people and mothers at the outset of that possibility.

Let me give an example of this. The Civil Registration (Amendment) Act is one example. A second example is the Children and Family Relationships Act where the provisions in terms of access to identity in respect of donor assisted human reproduction have much less onerous requirements in respect of accessing information when a child reaches 18 years of age. It might be useful to look at that legislation as a template.

I will now pass over to Ms Patricia Carey to respond on the issue of resources.

Ms Patricia Carey

I thank the Deputy for raising the question on records and files. When we talk about adoption files, it is something of a misnomer that each person has a file. Unfortunately, in some cases, the information or file could be as small as an entry in a register. We are working with Tusla and the Department to begin to quantify the numbers. An initial count estimates that nationally, we are looking at 152,000 pieces of information. This includes everything, including files, ledgers and records. The majority of this information is in safe preservation but as we know and as alluded to by Senator Power, we do not know where some files and records are and we have information that they may be in various private homes or nursing homes.

For the first time, this legislation will provide a basis for gathering and preserving all of these historical documents but there is a huge resource implication in regard to doing that. Millions of euro are required and resources are needed to work with the National Archives and with specialists. These records relate to more than 50,000 people whose lives are documented in the files. As Dr. Shannon outlined, the right of many people to an identity is held in many of these files. For the first time, we are giving a statutory basis to recording and preserving that information and to knowing where each piece of information is. However, this will take a number of years and is a multi-million euro project.

As there are no other questions, I thank Dr. Shannon sincerely for his contribution. As always when he comes to this committee, his testimony is not only powerful, but persuasive. I thank him and Ms Carey for their attendance.

Sitting suspended at 10.27 a.m. and resumed at 10.30 a.m.

We will resume in public session. Is that agreed? Agreed. I welcome, to our second session this morning, representatives from Tusla, the Child and Family Agency, and, in particular Mr. Fred McBride, chief operations officer; Mr. Cormac Quinlan, interim director, policy and strategy; and Ms Siobhan Mugan, interim national manager for adoption.

I remind witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the committee. If they are directed by the committee to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that they should not, where possible, criticise or make charges against any person or entity by name or in such a way as to make them identifiable. Members have already been reminded of their positions regarding privilege. I ask Mr. McBride to make his opening remarks.

Mr. Fred McBride

I thank the Chairman. On behalf of the Child and Family Agency, I welcome the opportunity to speak on the heads of the proposed adoption (information and tracing) Bill. I am joined by my colleagues, Cormac Quinlan, interim director policy and strategy, and Siobhan Mugan, national manager of the adoption service.

We wish to address the following areas: progress on the development of the adoption service within Tusla since its establishment in January 2014, with particular emphasis on the information and tracing services; the current level of service activity in Tusla; and the key provisions of the proposed Bill that affect Tusla and some key issues and concerns that we have shared with the Department of Children and Youth Affairs in respect of the Bill. I will start with the progress on the development of adoption services within the agency. Since its establishment in January 2014, Tusla has sought to bring local adoption services under the management of one national service. The aim is to develop a more consistent and streamlined approach to adoption assessments and our information and tracing services. In September 2014 the interim national manager took over line management responsibilities for the majority of the adoption service staff. The full transfer will be completed by the end of 2015.

Since the transfer to a national service, the focus has been on enhancing the information and tracing service. I will now outline progress in this regard A programme of work was introduced to standardise the business process for the information and tracing services which commenced in 2015 and will be completed by the end of 2015. This will ensure equity of service provision across the country. We will have greater access to search engines and electronic databases which have been facilitated to improve the efficiency and accuracy of the information being sourced. Plans are under way to store all historical records - currently at a number of locations - at one centralised safe and secure unit. This will maximise the use of administrative staff to search historical records while allowing social workers to focus the majority of their time on information and tracing requests and support. Tusla currently has custody of over 70,000 historical records. An improvement plan was introduced to address the significant waiting list. As a result, the waiting list and waiting times are being reduced. A new system of prioritisation has been introduced. This ensures that the assessment focuses on those in greater need such as applicants over 70 years or those with serious medical conditions. A new set of metrics has also been introduced to provide managers with more accurate data in order to inform service developments and the effective and efficient use of resources.

I will now give an indication of some of the service activity happening within Tusla. We currently have a complement of just over 62 whole-time equivalents, made up of social work qualified staff, counsellors and nursing staff, with approximately 22 administrative and other support staff. There are other additional services provided though service level agreements with organisations such as Here to Help, Clarecare, Cúnamh and Barnardos. In the context of service provision, in December 2014 there were 1,042 applicants on the waiting list for a service. This was reduced to 867 in quarter 2 of 2015. Also in quarter 2 of 2015, priority 1 waiting time was a maximum of two months. During 2014 there were just short of 2,000 new referrals and at the end of quarter 2 of 2015 there were 521 new referrals.

In terms of key provisions of the Bill that affect Tusla, the agency welcomes the Minister’s proposed legislation on information and tracing services and is committed to improving services to those affected by adoption both now and in the past. To that end, Tusla has joined the Department of Children and Youth Affairs and the Adoption Authority of Ireland in the establishment of an implementation team. In addition, Tusla has established three separate working groups to look at its preparation and planning for the public awareness campaign, the adoption information register and the custody of records.

I will now outline the key implications and some concerns that we have and have shared with the Department of Children and Youth Affairs. I will begin with the public awareness campaign. In conjunction with the Department of Children and Youth Affairs, we will develop and implement a robust and high-level public awareness campaign to ensure that we maximise the opportunity to inform all relevant parties of the legislation and its implications for all those affected. This will involve a range of media outlets and also the provision of a confidential helpline for those persons who need to speak with someone about how the legislation might directly affect them and what their rights are. There are some concerns that even with the best public awareness campaign, perhaps elderly birth parents may be difficult to find or access and may not understand or have awareness of the changes proposed in the Bill. Additionally, people may no longer be resident in the country and, therefore, the campaign may not reach them in other jurisdictions. Although Tusla has practised and encouraged open adoption for many years now, which is deemed to be in the best interest of the child, some birth parents may continue to request closed adoption and do not wish to have their identities revealed. As a result of this proposed legislation, Tusla is already informing those involved in current adoptions that the children will have a right to their identity should they wish to request it.

The national adoption contact preference register, currently held by the Adoption Authority of Ireland, will be discontinued and replaced by a national adoption information register managed by Tusla. This will be one centrally maintained electronic database that will allow the details of parties searching for information to be entered and stored. This will include their preference regarding the sharing of information and whether they wish to initiate a search for birth relatives. It will be a proactive register and, therefore, once a person enters their details, Tusla will begin the process of searching for the other party to elicit their preference for the sharing of information. Any contact or sharing will be facilitated and supported by social workers. The register will allow for all parties, including adopted persons, birth parents and relatives to request information.

In most cases, the person to whom the information relates must consent before the information can be released. Adopted adults will have the right to information to allow them to apply for a birth certificate unless there are compelling grounds to prevent this, and they also will have recourse to the court if the decision to release information is denied. The register will also allow for those persons believed to have been subject to informal adoption or wrongful registration to seek information, where it exists, in respect of those arrangements. Persons who have also been subject to intercountry adoption will also be facilitated in searching for information regarding their birth families.

It is the responsibility of Tusla to take all reasonable steps to locate a birth parent or an adopted person. In addition to the proposed regulations to support this task, Tusla would welcome further discussion with the Department of Children and Youth Affairs on the authority Tusla will be given to access records held by other State agencies and what expectations and resources may be provided to locate persons no longer residing in the jurisdiction.

Tracing and locating birth parents or adults can take time. Additionally, asking someone to consider a preference for sharing information about a difficult decision that was made, perhaps decades ago, requires sensitivity and a strong level of trust to be established. This equally takes time and skill and, if not done correctly, can damage the potential of further contact into the future. If the legislation proposes that the identifying information must be shared within 12 weeks of the request being made, this leaves little time for someone who may be ambivalent about their preference and is seeking more time to consider their situation. Tusla is also concerned that there is a maximum of eight weeks for the service to determine and make a decision on compelling grounds for dispensing with consent. This is particularly challenging with respect to historical adoptions where there was some level of agreement that the adoption would remain a secret.

The maintenance and storage of all records held by Tusla will become the responsibility of the Adoption Authority of Ireland. In the interim, all records of an historical nature are in the process of being centralised in one location to ensure their effective safekeeping. This is an interim measure until the authority is in a position to receive the records and will make the transfer between the two agencies as smooth as possible. The transfer of records from Tusla to the Adoption Authority of Ireland will be complex as a lot of the tracing work involves cross-referencing material from different sources. Tusla would welcome further discussion with the Department of Children and Youth Affairs and the Adoption Authority of Ireland on how this can be facilitated to ensure access is streamlined and efficient and that requirements under Schedule 5 are considered in respect of Tusla's access to the Registry of Adoption records.

Tusla notes that the rule regarding statutory declaration applies to the adopted person but not to the birth parents. In the interests of fairness and equity any requirement of this nature should apply to all parties concerned. There is some concern that the consequences for breaching this is not set out in the legislation.

Tusla will continue to provide information and tracing services and some additional funding is being made available to enhance the service in order that we can respond in a timely and effective manner. It is our intention to maximise the time that social workers spend supporting people who apply for an information and tracing service and to meet the new timelines required under the legislation. Tusla is also working with the Department of Children and Youth Affairs to explore how specialist services will also be required to support children and adults affected by adoption and to support the assessment of compelling reasons for non-disclosure as may be required. "Compelling reasons" can mean different things to different people. If there is an indication that a threshold is the endangerment to life, then access to specialist assessment service may be required to determine the veracity of this as an objection or as a means of ensuring the person has access to specialist support. Further clarity would be welcomed on the grounds for compelling reasons.

Tusla, the Child and Family Agency, welcomes the proposed legislation and in particular the statutory provision that will facilitate access to adoption information based on the presumption that disclosure will be facilitated in so far as is legally and constitutionally possible. For many years Tusla, formerly in the HSE, has worked with individuals who have sought to access information regarding their identity. Where consent is not indicated or given by birth parents, only information of a non-identifying nature can be provided to an adopted person. Tusla recognises the need for individuals, both adopted persons and birth parents, to be supported in their journey of discovery, which can be both challenging and upsetting but also very rewarding.

I thank Mr. McBride and call Deputy Sandra McLellan.

I welcome Mr. McBride and thank him for his presentation. This is legislation for which most people have waited a long time. We agree that every child or adopted person is entitled to his or her identity. I also believe people are entitled to their health and medical records.

A few things occurred to me in the presentation, one of which was compelling reasons, something with which everybody has an issue. I was going to ask Mr. McBride to give an example of a compelling reason but I note that he states further clarity would be welcomed on the grounds for compelling reasons. He also stated that compelling reasons can mean different things to different people. It is a huge issue. We all have difficulty trying to find out what compelling reasons might entail.

Mr. McBride stated that further discussion was required with the Department of Children and Youth Affairs and the Adoption Authority of Ireland in regard to the custody of documents and how this could be facilitated. I welcome the moves to improve communications between the Adoption Authority of Ireland, the Department of Children and Youth Affairs and Tusla in this regard.

With regard to social workers and the services required, Mr. McBride stated that he was working with the Department of Children and Youth Affairs to explore how specialist services would also be required to support children and adults affected by adoption and to support the assessment of compelling reasons for non-disclosure as may be required. How will this work and how will people be supported? Given that Tusla is already under-resourced with regard to social workers, how will this be overcome? Is Mr. McBride confident he has the budget to deliver on his responsibilities?

In his presentation Mr. McBride mentioned a set of metrics used by management. Perhaps he could elaborate on that and on what he might be focusing.

I thank Mr. McBride for his presentation and appearing before the committee. I would like to address a wider issue in his presentation that has been raised in the committee before, which is in the area of adoption and the number of prospective adoptive parents who are coming to Tusla. At what point does one actually tell prospective parents the reality of children who are available for adoption under the Hague convention? All too often, prospective adoptive parents have gone through two years of quite an arduous process for good reasons but are subsequently told there are not the children they foresaw. They foresaw that they would get a baby, whereas the reality under the Hague convention is that it is likely to be a teenager and more likely to have a disability. At what point are prospective adoptive parents being told the position?

On the issue of open and closed adoption which was mentioned by Mr. McBride in his presentation, I was interested to note that, to this day, there are parents who request closed adoptions. For me, this is about a child today.

Will the witnesses revert to us with figures on the number of parents who opt for open adoptions, which is how it should be, as opposed to closed adoptions so that we might understand? When we discuss this issue, we too often refer to the negatives. The vast majority of parents I meet do not hesitate to ensure that their children are fully aware of their identities. The parents understand that they have an important role.

We will pursue the issue of compelling reasons in the Bill, as we all share that concern. The bar should be high. I would prefer it not to be included in the legislation but Dr. Geoffrey Shannon, who presented prior to the witnesses, gave us food for thought on how to balance the provision and ring-fence it as the exception.

I was uneasy when the witnesses referred to concerns about the 12 weeks and the transfer of information even though they also mentioned the importance of trust. A part of that trust is built by people believing that they can get the information in a timely manner and that there will not be a bureaucratic fob-off. This is not about the Child and Family Agency but about systems and applications generally. People do not necessarily trust that they will get the information in a timely way. If we do not have a clear timeline, the trust will not be there. While I appreciate the concerns that the witnesses are raising, it affects the question of trust because it indicates that the agency is not sure it can deliver.

My final point is on the transfer of records. We have been made aware that a number of bodies are in the process of transferring records to the agency. Are there issues in that regard with particular statutory, non-statutory or private bodies? How long does this process take? Of what legal issues do we need to be aware in this legislation so as to ensure records are transferred and people do not use spurious reasons to refuse to transfer them?

I thank Mr. McBride. One or two of my questions have already been asked. It is important we centralise information on adoptees, particularly in light of the possibility raised by Senator van Turnhout of some bodies being unwilling to hand over information. Once information is transferred, it is important it is held together and that people have easy access to it without being sent from one end of the country to the other.

I am aware of an issue with health records from a few people I know who are adopted. It is not just about them but about their children and grandchildren as well. It is difficult to know who they are. Finding medical records can be difficult for people who are trying to trace certain hereditary illnesses when doctors say that is why their children are sick. They have no way of finding out the details. The adoptee might need to know whether either of his or her parents had the same health issue. Is there a way to bring this information together? This is a significant issue for all of us who have children. We should know their health backgrounds, including mental health, so that we might know whether something might have been passed on.

Deputy McLellan asked my next question on social workers. Mr. McBride stated that the agency had 62.64. Is that the agency's full complement? Is there room for more? If so, is funding a difficulty or is the problem getting the proper people? Social work is essential.

I am unsure about Tusla's December 2014 figure of 1,042 applicants on the waiting list for services, which was reduced to 864 in 2015. If my figures are right, only 178 were dealt with in that time. The other numbers mentioned throw me altogether, so the witnesses might dwell on them.

I know many people who are adopted and have since adopted children. Seeing people reunite on television after generations is touching. All they want to know is who they are. I watched an amazing programme the other night - I cannot remember on which station - about family members from North Korea and South Korea meeting for the first time after being separated. Their window of opportunity to meet their families was just six hours before they had to return to their quarters. Many adoptees in Ireland do not even have that window to meet those they lost during the adoption transition. Anything we can do to alleviate their longing and fears about who they are and why certain aspects of their lives do not fit into place would be important.

I thank Mr. McBride for his opening statement. He mentioned the number of social workers. Is that the full complement in Tusla, including child protection, or just those devoted to the adoption side? What level of extra staffing and funding would the organisation need to make the records accessible - Mr. McBride stated that cross-referencing the information would be a large job - and run an efficient information and tracing service? He also mentioned the current waiting times and that it was two months for priority 1 cases. Is that the time it takes someone to get a first meeting or to get the information released? How much time does it take after the first meeting to get the information that is being sought? How is that affected by resources? What percentage of people on the waiting list are classified as priority 1, that is, they are urgent cases and Tusla hopes to see them within two months? What is the average waiting time and what is the longest waiting time? People have told me they have been waiting for two years or longer to get the information.

Given how the Bill is structured, proper staffing will require the involvement of social workers at various stages. This will be resource-intensive and present people with a challenge, as they will have to wait for long periods before someone becomes available to help them. The experience of many birth parents who dealt with social workers when being separated from their children was not a positive one. For that reason and regardless of the credentials or approaches of the social workers with whom they deal now, they are reluctant to engage with anyone from that profession. Some have been working with counsellors with whom they are comfortable while some are more likely to rely on the support of others. Must the process require social workers in the way that it does? Under a provision in the Bill I introduced last year with Senator van Turnhout, birth mothers and adoptees could engage with counselling professionals of their own choice. The professional would have to be properly accredited and a member of the appropriate professional bodies but this provision meant that instead of having to wait for a social worker in Tusla to be assigned to a case and to avoid instances where people are not comfortable with that concept, one could find someone she or he was comfortable with in line with the guidelines set out for the process. Information sheets on how the process should work would be given to the counsellors. This is preferable to the social worker-driven model. What are the witnesses' opinions on this point?

It was stated that the register would be proactive and that once a person entered her or his details, Tusla would begin searching for the other party to elicit that person's contact preference. Will this be the case even where someone is registering for the purpose of making it clear that her or his preference is for no contact? For example, if a birth mother registers to put on record her preference for no contact, will a search still be initiated? I am seeking clarity on this point.

Mr. Fred McBride

Perhaps I will pick up on the issue of resources since a number of members raised it.

Colleagues may chip in on some of the other issues. The committee may be aware that Tusla very much welcomes the budget settlement announced recently by the Minister. We have had additional resources put into our budget for 2016. Of course, we must carefully plan how we will use those resources. Suffice it to say that adoption information and tracing is one of our priorities in our business plan. We realise some of the performance indicators need to improve and, therefore, some additional resources will be required. We still have to plan what that will look like in detail, as the budget for 2016 was just announced.

With regard to social workers, the figures I provided are for the adoption service in particular. They include social workers, counsellors and some nursing staff. Clearly, if we are to eat into that waiting list and bring down average waiting times, etc., we must ensure the process is properly resourced. Perhaps my colleagues, including Ms Mugan, are closer to the ground with regard to the compelling reasons and examples, so she might refer to that as well as to the issue of specialist services.

Ms Siobhan Mugan

With regard to compelling reasons, many birth mothers, when first approached, might not have any recollection of the adoption at all due to the trauma suffered at the time. This would come as a shock. Some of the women are now in their 80s and this would have happened 30 or 40 years ago. Many of them would have been married for a long time and have grown-up families and grandchildren. They would never have told anybody anything about this.

The 12-week period is an issue because we must build trust with these people to work with them. We must give them time to come to terms with what happened in the past and an opportunity for them to speak to their husbands, partners, children and, potentially, grandchildren and wider family members. We must remember that when these people handed over their children for adoption, whether they wanted to or not, there were societal pressures. They were made to feel very bad about their cases and, although society has changed, they have continued to live with this all their lives. Nobody has told them that it is okay or whatever. They are reliving that time and trauma. Much of the work we do with these women is about spending time with them, counselling them and supporting them in working through the issue and the possibility of some sort of a contact, even if it is a phone call, letter or permission for some information to be shared. The 12-week period is very tight for that. The committee can imagine any of us having to tell a secret we have held for 40 years, so we need a bit more time for assimilation. These women are in their 80s, so it is not easy.

Compelling reasons brought to us by some people might include them not telling their husbands, for example, their partners or their wider families. They may feel that these people may leave or that the mental health distress of reliving the trauma of 30 or 40 years ago could mean they need mental health services. In that sense, should we add to the stress by saying that the information will be issued in any case? We have to meet a few women in car parks or in very isolated areas so they are not identified. It is about working through the process with them, as these women can be very distressed.

There was a question about metrics. We have expanded metrics to give a bit more information. In the past, there was much anecdotal information about who was searching, whether we found people and if there were many refusals. There is more on which to expand. With adoptions today, we inform people of the process in information sessions when they come forward to say they are interested in adoption. We outline eligibility and the likelihood of getting a child at the end of this process. That is done initially when people come forward and it is talked through in the entire assessment process.

Mr. Fred McBride

I was trying to cover the question about the number of prospective adopters but we may have to revert to the committee on that.

That is fine. The witnesses may liaise with Senator van Turnhout or the clerk.

Mr. Cormac Quinlan

Perhaps I could address some of the broader themes. Critical to Tusla but not discussed as much is the importance of the public awareness campaign. For Tusla, getting it right at the start, I hope, means getting it right all the way through the process. There will certainly be better outcomes for people at the end of it. It is really important, through that public awareness campaign, that we promote a very positive, affirming message and give good-quality information to people that is accessible and written in a language that makes sense. I note Senator Power's comments on the tone of letters and correspondence. It is important.

It is important.

Mr. Cormac Quinlan

Absolutely. With the information campaign, we must differentiate between the right to identity and the right to contact. People should understand there are differentiations and we should consider how to support people in that regard as well as advising people of their rights and protection in some circumstances. In the 12-month period proposed, we want people to engage with us early and well. There is indication of a kind of confidential helpline for people who may be ambivalent. We want to be able to support people and talk them through their worries in order to give them every opportunity to express their preference early so we can begin our work early. In that, we want to make them aware of their choices, and I am particularly conscious of choices in the context of adoption. Many of these parents or adopted persons did not have a choice at certain points in their lives, so we must ensure that we can now facilitate them with a sense of choice and power. With choice comes responsibility for that choice and that has implications for some people. With new adoptions, we want an open approach from the outset.

With respect to information and tracing, we hope the majority of cases will involve a level of consent. There will be cases where people are ambivalent, as Ms Mugan mentioned. We need to engage with these people, support them and help to communicate where the adoptive person or birth parent is at. Through a dialogue and consultation with the parties, it is hoped we will be able to overcome barriers, as we have done already. People have established defence mechanisms over much time and when these are taken down, those people can become vulnerable, so we must be conscious of that. We do not want to delay people's access to information or damage any future potential for contact in identifying information.

People have spoken about compelling reasons. Within the proposed Bill, it is clear there is an indication of a level of threshold - that might be endangerment to life - but Ms Mugan has spoken about other circumstances. If we are making an assessment within a period, some issues will require a more specialist assessment. A social worker has absolute skill and ability to do this and there are very experienced social workers in the adoption service. In some cases, we may need additional support and that is why we are seeking clarification in that regard. We very much see this as a journey for people and they will have access to different types of information at different stages in the journey. The people from the Department spoke about that on the last day.

On the centralisation of records, we were very keen to achieve this on a number of fronts. The first is the protection of records, as some are very historical, and we want to ensure they are safe and secure. We have spoken about how we are centralising our service nationally to provide a more streamlined service.

We want to maximise the use of clerical administrative staff to make sure they do the searching and the social workers’ time is focused on the direct contact with adopted persons or birth parents to maximise our ability to get a better response to those cases.

Mr. Fred McBride

Senator Power asked some very specific questions about waiting times and so on. We are checking our metrics on that. Ms Mugan has some detail.

Ms Siobhan Mugan

We hope that non-identifying information will be given within eight weeks of application. We have not met that target because many of the records are not in file format. A record relating to one individual could be in several different locations. Social workers and administrative staff spend a lot of time compiling a record for somebody to make sure they have as much information as they can get to provide non-identifying information. We have also introduced two priority waiting lists. Priority 1 is for people over the age of 70 and people with serious medical issues and concerns and for any matches on the contact preference register. At the moment we are down to between two and four months, from the allocation of a social worker to starting to do the search. The search depends on how much information the client has and how long it takes to find somebody. It involves a trawl of records, maybe parish records, the General Register Office, GRO, records and trying to trace somebody. That takes time. Data protection can mean the work takes a little longer because while in the past the parish priest might have been quite happy to give information, now he says he cannot. We are sometimes caught in those situations and we are aware that in many cases applicants can find more through Google. The role of the information and tracing service is not necessarily finding a person but supporting the person through that process and helping with the reunion. In some cases, for those on the generic waiting list it can still take two years. We are working with a large quantity of records that are not in file format, not scanned and not on an electronic database. We are moving to that soon and hope it will speed up the process.

I want to come back to two points the witnesses raised, in respect of the compelling reasons or understanding. While we have not been able to tie it down, we are talking about an absolute exception, a life or death situation. There is no other compelling reason. We will try to ring-fence that to make absolutely clear what a compelling reason is.

Ms Mugan said that many women the agency dealt with had no recollection. I appreciate the sensitivity of that point. In the picture she painted, what percentage are they of those who come forward? My difficulty is that we hear about these exceptional cases and we do not hear about all the joyous occasions or the hunger on both sides. As a keen genealogist, I am very aware that a person with any type of unusual name and an idea of the townland can get eight certificates from the GRO for €4 each immediately. I could get those and over several weeks order as many as I wished for the GRO to e-mail to me. There is a great deal of information available. If we do not make the system accessible we are forcing people to use other routes.

We need to take note of the point about the parish priest and data protection for this legislation because there should be compellability for that information. Have there been any other problems in respect of transfer of records? We need to ensure access, whether they are from societies or other bodies. Are there issues that we as legislators need to address to ensure those barriers are not raised in front of the agency?

Ms Mugan mentioned non-identifying information. The nature and scope of the non-identifying information given depends on where a person lives. The Child and Family Agency does not seem to have a consistent approach. I am not talking about the different types of record because I fully appreciate that there are different types. This is down to individual social workers, some who have been brilliant and really try to give as much non-identifying information as possible, others will literally tell the client: “Your mother was a woman. She lived in a rural area.” Can we not give people more? What is the agency doing to ensure consistency by social workers when they approach this work? Will they have to be trained? Mr. Quinlan spoke about public awareness, but when people approach the Child and Family Agency, will they get that consistent response? We have to ensure that happens and may have to resource it too as part of the public awareness.

Ms Mugan said a compelling reason may be that hearing the adopted son or daughter is seeking information may cause distress to the parent. It is really important to make the distinction between information and contact. Surely what causes distress in those situations is the prospect of unwanted contact, not the information. I completely understand the situation. That is why our Bill provided that the adoptee’s birth parents' current details should only be given out with their consent. That is fair enough. One cannot force people to have a relationship if they do not wish to. The adopted person has a right, however, to his or her identity.

Dr. Shannon, who addressed the committee prior to this session, spoke very strongly on that constitutional right. There should be no compelling reasons to deny information. I accept that contact is a sensitive issue but it is a separate issue. It is important to understand that. That can be dealt with by reassuring the birth mother that her husband will not open the door to find her son or daughter standing on the doorstep, that the process already includes a provision by which the adopted son or daughter will be told whether the mother wishes to have contact.

It is also important to understand that because birth records are public records, if somebody wants to do a trace, he or she can. There are no intermediaries, which means there is a greater risk of unwanted contact at present. As things stand, the only way an adopted person can find out if his or her birth parent wishes to have contact is to reach out because there is no intermediary. The system we are putting in place will make unwanted contact less likely because it has the right protections and supports for everybody involved. I cannot stress that enough. It is really important. I do not accept that there should be any compelling reasons. There is other legislation to deal with issues involving endangerment of life. If compelling reasons are to be included, they need to be incredibly restrictive. It cannot be a general notion of distress because that is far too all-encompassing and potentially leads to the adoptive person’s right being reduced to nil.

Mr. Cormac Quinlan

Getting the message about public awareness right at the beginning is very important to reassure people and provide clarity on those issues. If the message is wrong at the start we will set ourselves up to be in the default position of having to deal with difficult cases that may arise, hopefully only a few. We are raising the issue of compelling reasons in order to have absolute clarity.

I agree identity and contact are different things and the message in the public awareness campaign needs to support people’s understanding of that.

I would like clarity on what authority we have to take such steps in situations where there are limits, by virtue of data protection or otherwise, to accessing information that would support us and allow us to trace or find someone in that context.

On the consistency issues, moving the service to a national one since January 2014 has been a journey. We are getting there and we are nearly there. We are improving consistency and standardisation. Training is a part of that and, as Mr. McBride reflected in his report, we have specific working groups established that are looking at the public awareness campaign, information and tracing, and the register. Our staff within the adoption service are working on this, and we are developing people's thinking so that the response is a positive, affirming one. I want people to have confidence in social workers in the organisation and to be able to come to us as well as using other services. We want to ensure that Tusla inspires that sense of confidence and openness.

The metrics are reported on our website and are accessible. In terms of openness and transparency, if people are looking for information, I would ask them to go there. I hope people will find some of the specific information they are seeking.

I asked a question earlier about whether there was really a necessity for it to be a social worker-driven process. Does Mr. Quinlan have a view on that?

Mr. Cormac Quinlan

I believe the social workers we have are experts at what they do. We are using other services as was indicated in the statement such as Cúnamh, which also does some information tracing for us. Social work does bring a level of expertise to this. We need to overcome the image of a social worker that the Senator described. That is a task for Tusla in terms of adoption, but equally in terms of child protection and welfare where we have a piece of work to do. I hope that through this we will be afforded the opportunity to do that and will be able to show success in that regard.

I wish to thank Mr. McBride, Mr. Quinlan and Ms Mugan for their contributions and their participation at the joint committee this morning. I will now suspend the meeting until 11.30 a.m., when the Minister will be with us.

Sitting suspended at 11.22 a.m. and resumed at 11.30 a.m.

I welcome the Minister for Children and Youth Affairs, Deputy James Reilly, who is joined by Ms Michelle Shannon and Ms Noreen Leahy. They are all very welcome and I thank them for being here.

Unfortunately Ms Michelle Shannon cannot be here as she is unwell, so we are joined by Ms Anne-Marie Kilkenny instead.

I thank the departmental officials for the work they have done to bring the Bill to this point. This is our third session and we have already heard from the Adoption Authority of Ireland and Tusla. This is our second last meeting on the topic and next week we will hear evidence from a number of witnesses representing a range of organisations and people, including foster parents, birth parents, adoptive parents and adoption agencies.

Members are reminded of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable. I invite the Minister to make his opening remarks.

I thank the Chairman and the Oireachtas Joint Committee for Health and Children for inviting me to address it on the heads of the adoption (information and tracing) Bill 2015. The legislation is of huge importance to people who have been affected by adoption, and addresses some very challenging legal issues, so I am grateful to the committee for taking the time to provide pre-legislative scrutiny of the Bill, and I very much look forward to considering its views during the detailed drafting stages. The Government made a commitment to modernise and reform outdated elements of family law, and to consolidate and reform the law on adoption. The Bill is an integral part of this reform agenda.

Adoption can provide children with the invaluable experience of growing up in a loving home, an experience of which they would otherwise have been deprived. As Minister for Children and Youth Affairs I have been privileged to meet many adopted people who have spoken passionately about how the love of their adopted parents is one of the most important things in their lives. However, I am also acutely aware that many people affected by adoption did not have a positive experience. Adoptions conducted in conditions of strict secrecy, under the crushing weight of oppressive social stigma, have meant that in the past, too many people have had a very negative experience of adoption. Some felt they had little choice but to give up their baby for adoption. Without doubt, the historical experience of adoption in Ireland failed to recognise the central importance of identity information to our sense of self, and it is this legacy that we seek to address in the Bill. I do want to stress, however, that we should not allow our history to define the modern experience of adoption. The reality of adoption in Ireland now is very different than in the past, and one of the aims of the Bill is to further enhance the adoption process, so that in future adoption is a much more positive experience for children and for both sets of parents.

Many of those seeking information about their natural parents have emphasised the support they got from their adoptive parents in their quest for information. It is important that adoptive parents fully embrace their responsibilities to support and assist their adoptive children when they start to ask questions about their background and identity.

For many of the women who were separated from their babies, the legacy of adoption has been a sad, and often lonely, one. Some felt they had no real choice but to give up their child for adoption, and have struggled with that decision ever since. The secrecy in which adoptions were conducted in Ireland the 1940s, 1950s, 1960s and perhaps later, meant that many of these women had to carry that burden alone, keeping the secret even from their husbands and subsequent children. I fully understand the difficulty these women may now face in coming forward but I encourage mothers whose children were adopted in the past to consider contacting Tusla, or the Adoption Authority of Ireland. They will be afforded confidentiality, care and empathy and the chance to get appropriate support, information and guidance about a period of their life is that undoubtedly the source of much pain.

Is there noise coming from somewhere?

We can hear one of the TV monitors showing live feed from the Dáil.

I am always delighted to hear my constituency colleague, but not during the course of this.

We will turn down the volume down. I apologise to the Minister. It is the joys of broadcasting.

Indeed, and newfangled technology.

As all of those affected by adoption in this country will know, efforts have been ongoing for many years to provide a statutory entitlement to identity information, in particular an original birth certificate, to adopted people. My overall policy objective in bringing forward this legislation has always been to provide access to as much information as possible to adopted people. The heads of the adoption (information and tracing) Bill provide for a comprehensive restructuring of the adoption information and tracing service, including setting out what information can be provided, and in what circumstances, for both past and future adoptions; providing for the management of adoption records; and placing the adoption information register on a statutory basis. I believe the Bill is a major breakthrough in dealing with the complex challenge of balancing the rights of birth mothers and adopted persons in regard to information and tracing. I take this opportunity to thank the staff in the Department for their commitment to finding a balance that would give due respect to the rights of everyone affected by adoption. The officials have worked closely with the Office of the Attorney General, and I also want to place on the record my thanks to the Attorney General and her office for the legal advice provided to date, and for her commitment to continue advising me as work on the heads progresses.

We are all clear on the outcomes that we wish to achieve, those being, to vindicate adopted people's right to information about their identities and protect birth parents' right to privacy. My Department has carried out a detailed policy analysis of the evidence surrounding the need for identity information and its importance in enabling adopted people to form a sense of self, something that many non-adopted people can take for granted.

The legal advice that I have received indicates that the right to know one's identity flows from the legal relationship between a birth mother and her child. However, I am also advised that the effect of an adoption order, which breaks that legal relationship, is to restrict that right to know. All of us have a right to privacy and protection of that right is constitutionally guaranteed. The advices that I have received are clear, in that we cannot simply dispense with anyone's right to privacy, including that of birth mothers, or retrospectively change that with new legislation.

However, the issue is far more complex for adoptions that have taken place in the past. Our goals are clear: to provide a legally guaranteed right to identity information for adopted people and the offer of support for those who wish to make contact. While we know that, in practice, people affected by adoption respect one another's privacy, we must also ensure the protection of that constitutional right if the Bill is to be legally sound. There is no doubt that it has been challenging to find a formula that provides for both of these goals.

For adoptions prior to the Bill's commencement, a key provision of the Bill is to provide adopted people aged at least 18 years with a statutory right to the information required to apply for their birth certificates. A birth certificate contains important identifying information, which is shared by an adopted person and his or her birth parents. In this respect, it is different from other identifying information that can be more readily characterised as belonging to one person or the other. When the adopted person is provided with the information required to apply for his or her birth certificate, he or she will be asked to make a statutory declaration to respect the birth parents' right to privacy or, in practical terms, their right to be left alone. In situations where a birth parent does not currently want to make contact with her or his adopted child, the statutory declaration aims to provide birth parents with reassurance that their wishes will be respected. In these circumstances, an adopted person declares in law that he or she agrees not to contact or ask anyone else to contact the birth parent and to seek the assistance of Tusla's information and tracing services if he or she wants to make contact in the future. There is no requirement for a statutory declaration where a birth parent consents to identifying information being released or where a birth parent is deceased.

Recognising that tracing birth parents and seeking identity information can raise painful issues for all involved, birth parents and adopted people will be offered appropriate support and guidance by a Tusla social worker. Finding a way of ensuring that both parties have access to this information while respecting each party's right to privacy has been challenging, but it is my belief that the provisions of the Bill strike that balance in a fair and respectful way.

Secrecy and lack of information are our enemies in this endeavour. People can be reluctant to place their names on a register because they do not know what the consequences might be. The difficult experiences that many people affected by adoption have had can mean that they are fearful of change. As such, it is important that everyone has an opportunity to familiarise himself or herself with the new legal framework and the rights and protections it affords.

On commencement of this legislation, we will embark on a year-long extensive information campaign to publicise its provisions and to encourage adopted people and birth parents to enter their details on the adoption information register. People who are considering sharing information or having contact with persons they were separated from as a result of adoption will be encouraged to engage with Tusla's information and tracing services. The information campaign will highlight adopted people's right to the information required to apply for their birth certificates and explain to them the content of and need for the statutory declaration. Birth parents will be made aware that they may indicate a preference of "No Contact at Present" on the adoption information register and that they can change their minds about this if they are ready. Once the awareness campaign has been conducted, adopted people will have a statutory entitlement to the information required to apply for their birth certificates.

These provisions are designed to achieve the necessary balance between adopted people's right to identity information and birth parents' right to be left alone. By providing for a high-profile awareness campaign, support and guidance for those who want or need it, the statutory declaration and the possibility of appealing to the courts, we can achieve a fair balance between these rights.

It is important that future adoptions be conducted on the basis of an explicit understanding about the identity information that must be provided. The Bill also provides that, for future adoptions, adopted people will be able to apply for a copy of their birth certificates, adoption orders and other information. It provides for the sharing of information between birth and adoptive parents about the adopted child where both parties agree. In addition, it provides for information to be given to an adopted person whose adoption is registered on the register of inter-country adoptions. Persons who were the subject of so-called informal adoptions and wrongful registrations and their birth parents are covered by these provisions and can avail of services and be provided with information where such information is available.

The Bill would establish an adoption information register on a statutory basis to allow people to indicate their preferences regarding contact and-or sharing of information. Tusla will be responsible for operating the register and providing information and tracing services. It will facilitate and support contact between parties as requested. Support and guidance will be offered to all persons who request contact and-or the sharing of information. The Adoption Authority of Ireland will be responsible for collecting, restoring, preserving and the safekeeping of adoption records, including information on informal adoptions and incorrect birth registrations. The Bill will set out the information that must be retained by the authority for future adoptions and, in so far as it is available, for past adoptions for people on the register of inter-country adoptions as well as informal adoptions and incorrect birth registrations.

As members may know, many adopted persons and birth parents are exchanging information and have had reunions. This has been facilitated by Tusla, the Adoption Authority of Ireland and a number of agencies. I thank them for the contribution they have made to date in the provision of information and tracing services and I look forward to continuing to work with them.

When the committee has concluded its valuable work on this Bill, I will consider any issue identified and make the necessary amendments to the heads of the Bill. Adopted people are validly asking questions about their identities. Due to the nature of historic adoption, they have often been prevented from getting a comprehensive response. This Bill is about providing a right to identity information, not a right to contact. Birth parents can be afforded no less a protection of their constitutional rights than the rest of us. The safeguards in the Bill, including the ability to specify preferences regarding contact, will provide birth parents with the reassurance they need while ensuring that adopted people can access important information about their identities.

I hope that this first important step will lead to positive reforms and better outcomes for adopted people, their families and birth parents. I also hope that it will provide people affected by adoption with the time and space to reconcile themselves with the often painful experiences of their pasts, free of the suffocating fear and stigma that has too often characterised the historical experience of adoption in Ireland. I am determined that we will learn from the past. We will learn from the experiences of the many children who were given loving homes by adoptive parents and strive to ensure that the negative experiences of the past are eradicated. This Bill will help to enhance the experience of adoption by providing for something that is fundamental to every human being, namely, information about who he or she is.

I thank the Minister and his officials for attending. I compliment the Minister, which is not something that I do regularly, on bringing this adoption legislation as far as he has.

It has received cross-party support over the past number of years. We recognise the importance of giving people the fundamental right to information about their identity, as the Minister described it. I also compliment Senators van Turnhout and Power on the work they did bringing forward a similar Bill in the Seanad last year. There is widespread support for this and I compliment the Minister on it. I look forward to engaging with him about it.

Due to circumstances, key stakeholders who were due to appear before the committee last week could not do so. It was nobody's fault but was because of the awful tragedy in Louth. It is important that, after engaging with those key stakeholders and having heard their views and concerns, we might have an opportunity to engage with the Minister again to thrash out the issues those stakeholders might feel are not addressed in the heads of the Bill that have been presented.

I wish to make some observations. The Minister said: "I hope that it will provide everyone affected by adoption with the time and space to reconcile themselves with the often painful experiences of their past, free of the suffocating fear and stigma". It is awful that a negative stigma has been attached to adoption in the past. It was inappropriate. I wonder if the signing of a statutory declaration is really warranted. Certainly from the limited engagement I have had with people who have been affected it is clear that they feel there is no need for it. They do not intend to harangue or stalk their natural parents if there is a clear wish for no contact. Is the declaration necessary? How effective is it? Effectively, it is toothless because there are no sanctions in place. Perhaps the Minister would discuss whether there is a need for it.

I have concerns about the capacity of Tusla, which I raised previously with the Department's officials. Unfortunately, I missed the presentation from Tusla this morning. At present, given the limited information that is available through Tusla, there is a savage backlog of people waiting to get that information and to interact with it. This is a time sensitive issue. People are getting old and they want to find out about their identity. The Minister was able to secure additional funding for Tusla in the 2016 budget but when one considers all of the different sections within Tusla that will be seeking additional resources, can he confirm that the body will be given a ring-fenced budget to ensure it has the necessary capacity to deal with this new legislation in a comprehensive and effective manner?

The other issue is the 12 month lead-in period. Again, given how time sensitive this matter is, could that period be reduced? To compensate for a shorter lead-in period there could be a more intensive and wider campaign to ensure people are aware of the provisions of the Bill and the criteria that will be attached to it.

I thank the Minister and his officials for the presentation. I welcome the fact that this legislation will finally be brought before the House. Many people have waited a long time for it. We all acknowledge that everybody is entitled to know their identity and their health footprint. Even in non-contact situations everybody should be entitled to their medical records.

A number of issues were covered today. The main issue is compelling reasons. There has been much discussion about that today, ranging from thinking a compelling reason is a matter of life and death to it being, perhaps, distress. We seek more clarification on that. Who decides what distress is? There are two parties involved in this and just because one party might be distressed, it does not mean they are more distressed than the other party. We must have clarification on that.

Representatives of Tusla appeared before the committee earlier and they, too, were seeking further clarification of the compelling reasons grounds. They stated that compelling reasons can mean different things to different people. In addition, who will make the ultimate decision on what the compelling reasons are? Is it Tusla or a social worker? I got the impression from Tulsa's presentation that it might be a social worker, although perhaps I misread it. Social workers are very experienced, but in all walks of life some people are more experienced than others and there will be people going into social work straight from college and they would not have the experience to deal with it. Who ultimately will make that decision?

With regard to the appeals process, is it just an appeals panel within Tusla or is it a civil legislation matter? Would there be a cost involved in the appeal and who would cover that cost?

Regarding Tusla's budget, is the Minister confident that it has the budget required to deliver all of its responsibilities? We know it got additional money in the budget, but that money must be divvied out to many different organisations ranging from family resource centres and refuge centres to employing extra social care workers. The after-care Bill was introduced in the last couple of days and now we will have the Adoption (Information and Tracing) Bill. Does the Minister think that the extra funding Tusla has been allocated will cover all of that?

I welcome the Minister and thank him and his officials for the work they have done on this Bill. As the Minister said, we are anxious that people can access as much information as possible and that this can be done in a sensitive manner. Dr. Geoffrey Shannon appeared before the committee this morning and he said something quite striking, that we cannot rewrite the past but, equally, we cannot be paralysed by the past. That is what we are trying to ensure here, because all too often we have allowed the past to paralyse us.

The first issue I wish to raise is compelling reasons. As nobody can give us an example of a compelling reason we are all trying to work out where the bar or threshold is. My fears around it were warranted. As Deputy McLellan said, one of the scenarios outlined to us in the presentation from the representatives of the Child and Family Agency was a situation of distress. My understanding was that it was not a compelling reason. Perhaps we should seek to ring-fence it, as Dr. Shannon said, and perhaps look at other areas. It is something we must re-examine.

The Minister will not have seen Dr. Shannon's presentation, but he gave us a very excellent paper that challenges and gives evidence on the interpretations to date surrounding the right to privacy and the right to identity. It shows why we must bring up the right to identity. It is not that privacy will trump it. He gave us an excellent paper with examples and I am sure the Minister will be provided with it.

Like others, I am also concerned about the statutory declarations. Will it be enforced? If I sign something to say I will not do it, does that stop my husband taking it on himself?

I am trying to work through that idea. Does it have to be a social worker with whom one interacts? Could it not be a counsellor or somebody else, as Senator Power and I proposed in the Bill we brought forward in the Seanad?

Another issue that arose this morning is the accessing of records by the Child and Family Agency. What authority will the agency have to take reasonable steps? It gave us an example this morning of accessing parish records. Some parishes have cited data protection reasons and will not allow access to their records. It is a major concern that the agency will not be empowered to take reasonable steps. Perhaps we need to probe a little into what exactly constitute reasonable steps.

On the presentation from the Adoption Authority of Ireland, I am concerned about the issue of illegal adoptions, particularly those that took place prior to the 1952 Act. An exercise was carried out by the authority which identified 100 illegal adoptions in a very small sample - I thought the figure was 50. It is very concerned about that and said it wishes to do more work. I ask the Minister to interact with the authority to resource that work to ensure that it does happen because that is too much part of our past.

On the information and awareness campaign, I was reassured to a certain extent by what Cormac Quinlan of the Child and Family Agency said to us this morning about how it will be done. Perhaps the Minister should ask that when a plan has been devised, it will come before the Joint Committee on Health and Children so that Deputies, in particular, because they meet so many individuals, will understand the public representation issue. It is a good place to discuss the public information campaign. We get one chance to get it right so we need to test it first and I think this committee should have a role in that.

The meetings were not in the order that we had wished them to be. The Minister made a commitment to look at the committee's recommendations when its report - which I hope will be timely - is produced and put them into the heads of the Bill. I appreciate that commitment.

I thank the Minister for his presentation. This Bill will go a long way to help people who have been adopted. It is important that they get all of their information and it will give closure to many of their lives. The right to information about their identity will go a long way in that regard. It is also very important that we do not forget the rights and privacy of their parents. It is important that money is ring-fenced for Tusla, the Adoption Authority of Ireland and other agencies to help them look after adopted people and their families. I thank the Minister for making such a big effort. He has done a fantastic job since he came into the Department, as he did when he was Minister for Health, and I wish him the best going forward.

I welcome the fact that the Minister is before the committee to discuss the heads of the Bill. We have come a long way since he was in the Seanad with us earlier in 2015 to discuss the Bill Senator van Turnhout and I brought forward last year. He expressed a desire to do something but also a concern that he might not be able to introduce a retrospective system. I acknowledge that we have come a long way in the interim. I appreciate the work that the Minister has put into this so far.

I have two concerns about the Bill. They are the same concerns that have been raised by the Adoption Rights Alliance, Irish First Mothers and others - of which the Minister is aware - about both the compelling reasons and the statutory declaration. It is important to distinguish between information and contact. I accept that the birth parents' contact details - or the adopted persons' details, when it is the other way around - should not be given out without their consent. However, as was quite clearly pointed out to us this morning by Dr. Geoffrey Shannon, an adopted person has a right to his or her identity. There are two separate issues. A person cannot be forced to have a relationship if he or she does not wish to but the adopted person's right to is or her identity is a different issue. While there are valid reasons for withholding someone's current contact details there are no valid reasons for denying an adopted person a right to his or her birth certificate. However, I understand that there are concerns.

In our discussion with Tusla, one of its representatives cited situations in which it might cause distress to the birth parent to know that the birth certificate is being released. I suspect that the cause of any possible distress, in the minority of situations in which that might occur, is a fear of unwanted contact. It is not about the information; it is about unwanted contact. Current contact details are not being released. There are processes to ensure that this does not happen. By creating an intermediary in the way that we are here, the risk of unwanted contact is lessened. An adopted person can do his or her own tracing using public records to find out who is his or her birth parent. It is an exhausting and difficult process but the only way to find out if the birth parent wants contact is to reach out and ask. There is greater risk of unwanted contacted in the current arrangements. The arrangements that the Minister is putting in place lessen the risk of unwanted contact and that should be sufficient to allay any concerns. The compelling reasons criteria are unnecessary.

Dr. Conor O'Mahony, who has not been in with us yet, has sent us a copy of his submission. He argues quite strongly, from a legal point of view, that there should be no exceptions. He is concerned that the definition may be construed as non-exhaustive and could open the door to other reasons being used to deny access to a birth certificate. Barnardos makes the point that while the Bill provides for compelling reasons to deny an adopted person the right to his or her information, there may be compelling reasons the adopted person needs that information. It seems that we are looking at only one side of the equation here. I urge the Minister to reconsider the matter. There are better ways of getting around it. Barnardos argues that, instead of the statutory declaration and the exclusion in some circumstances for compelling reasons, a better way to deal with the sensitivities when a person does not wish to have contact is to provide the adopted person with access to an individual or group preparation session. It has recommended a system similar to what we had provided for in our Bill, which is that before the birth certificate is released, the adopted person will have a meeting with a counsellor and discuss the birth parents' contact wishes. A conversation would be had about the contact wishes so that consideration would be given to the needs of the birth parents. Dr. Fergus Ryan is quite strongly of the view that this would meet the constitutional requirement. I accept that there are measures needed to ensure that the Bill is constitutional but there are better ways to do it.

It is essential that Tusla is given the resources it needs to run an efficient service. I question whether social workers need to be involved in this process. For many birth parents, even the idea of going back to a social worker is a difficult for them because social workers were involved in their being separated from their children. Instead of requiring people to wait for appointments with social workers, it would be preferable to allow them to consult a counsellor of their own choice, as we had in the earlier proposed legislation. There would still be that conversation and that professional support but instead of forcing them to use somebody who they are not happy with they could use a professional of their own choice.

Tusla raised the issue earlier about access to the records of other authorities. That is absolutely essential. We have to use every means available to the State to get the information - the Department of Social Protection, PPS numbers and any other records. We need to look at the data protection laws to make sure that there are no impediments.

I stress the importance of this legislation getting through the Oireachtas and becoming law before the election. It is great that we are finally at the point where we have a Government that will legislate for this area. It has developed a huge head of steam since I first started to push for it a few years ago. I request that the Minister begin drafting the Bill now before he receives the committee's report. The legislation can be changed to take on board our suggestions on compelling reasons, the statutory declaration and any other changes recommended by the committee. It is complex legislation. It will be helpful to begin the drafting to ensure that we can get the Bill through as soon as possible.

The purpose of pre-legislative scrutiny is to hold the hearings before the Bill is drafted. I do not agree with the Senator, as Chairman of a committee that has been engaged in pre-legislative scrutiny.

I am delighted that Deputy Robert Troy has paid a compliment to the Minister. It is not something he does frequently. This Bill is a major breakthrough because, for the first time, people who have been adopted and parents of children who were given up for adoption have a road map to follow. It is very important in the interests of closure that they are able to do this. I do not know whether it will give them the closure they want, but at least it is a step in the right direction. The one-year campaign to make people aware of this legislation is also important, as is the information that should be given.

I lived beside Goldenbridge industrial school when I was growing up. I used to see the children going to school. They were not educated in the same classrooms as other children and I often wondered why they were educated separately. Somebody told me one day that they were called the "lost children". That is what they were in many ways. For various reasons, they found themselves in an environment in which they really should never have been in the first place. The stories of many of these lost children are now being told. On a personal level, I know at least 30 people in the parish where I live who were adopted. They were adopted into families that gave them love and care. Most importantly, they were raised in an environment in which the door was always left open to them to search for their birth parents if they wished to do so. We have to acknowledge that many children who were adopted went to really good homes.

I know who I am and where I came from. I have learned that my family started off in Athy some time in the 16th century. I never even knew that my predecessors came from the country. Having studied the history of my family tree, I am aware that I have roots that were generated somewhere. I do not know where my predecessors came from before that, but I know that they came from there in the 16th century. That is very important for me and my family. I really believe it is important for us to know who we are and where our roots are because it is part of what we hand on to our children.

I spoke previously about people I knew who were adopted and had health issues. The problem is that many of their health issues have been passed on to their children and grandchildren, but they do not really know the extent to which they are hereditary. This issue is very important to them. I hope this process will bring closure to some of the issues that have affected people for generations.

I compliment the Minister and his staff because any legislation that passes through the Oireachtas takes a great deal of time, work and effort. Above all, it takes great dedication on the part of people we never see at this committee. I again thank the Minister and the officials.

Deputy Dan Neville took the Chair.

I echo Deputy Catherine Byrne's comments about the work of the staff of the Department on this legislation. They have worked tirelessly on a compromise to find a means of balancing rights. What they have achieved is very fair.

I thank Deputy Robert Troy for his remarks. What is seldom is wonderful.

Many members have referred to the need for a statutory declaration. I know that it is a real concern for people who were adopted. They believe it is insulting to them to be seen as different from others. They wonder why they should have to sign for their information. It is a question of the legal position in which we find ourselves vis-à-vis the Constitution. In this context, I will certainly look at the submission Dr. Shannon made. All of the information we receive from the committee will be hugely helpful to us.

Perhaps I am getting things a bit back to front, but I would like to respond to what Senator Averil Power - she might be a Deputy soon - said about drafting before the report. We were very keen to do something like that. We considered it and talked to the Attorney General's office about it. Two issues arise in that regard. First, the drafters felt many changes might be needed and wondered whether they really wanted to double up on their work at a time when they were under so much pressure. Second and more importantly, it would have been insulting to the committee to pre-empt what it might come up with by saying, "here we have it already drafted." This was the point made by the Chairman. We will do everything we can to make this happen as quickly as possible because there have been many delays, but it is complex. However, we believe we now have the key that opens the lock. Everybody will be working very hard. I know that the Attorney General and the Tánaiste are committed to making this happen. The same applies to me and my Department. I hope the Senator will accept our bona fides in that regard. I am aware that she does not always do so.

The aim of the legislation is to improve life for everyone and Irish society. As a politician, I really believe that when opportunities such as this come along to improve things, they should be grasped with both hands. The statutory declaration is seen as the device that will allow us to address the issue of the constitutional right to privacy. As I said in my opening comments, I fully accept that in practice, people respect others' right to privacy and do not make contact with them. The absolute view is that this provision has to be included in the legislation in order that it has a legally sound basis under the Constitution. If other information that comes through from the hearings changes that view, of course, we will look at it.

Reference was made to the need for resources to speed up contact. We have already made provision in the Bill that the Department of Public Expenditure and Reform will be asked to pony up, if I can put it that way, for any cost that might be incurred as a consequence of the enactment of this legislation. It will be done with the consent of that Department. It has been mentioned that a huge number of additional social workers are in the pipeline. They will come through this year and next year and have been budgeted for. Our challenge will be to recruit them. To be honest, it will be a challenge for Tusla which will receive every support we can give it.

Deputy Robert Troy spoke about the one-year lead-in period. He referred to the sensitive nature of this matter and mentioned that those involved were getting older. Time is certainly an issue for the birth mother, but we can certainly look at that issue again. Our advice at the time was that one year would be a reasonable and legally defendable period of time. One sometimes thinks everybody is in agreement on certain legislation, only to find that someone challenges it somewhere. We need to have a legally sound basis. We want to protect the legislation as best we can. We do not want it to fall on some minor legal point. We will, therefore, look at this aspect of the matter.

Deputy Sandra McLellan spoke about medical information. It will certainly be available. It is the property of the person concerned. There may be some issues about it being identifying information. My own view as a doctor is that people are entitled to their own medical information.

The "compelling reason" issue was raised by Deputy Sandra McLellan. We are still looking at it. The best advice we have received to date is that it must involve the endangering of life. Being distressed does not endanger life. It is not pleasant, but it does not endanger life. The ultimate decision will be made by Tusla. It is an operational decision within it. It will be made by the people on the panel that it has put together to make the decision. They will have to be very careful because all of these decisions will be open to a court challenge.

This issue was also mentioned by Senator Jillian van Turnhout, who asked where the bar was. As I said, arising out from the committee's consideration in the pre-legislative process, we will look at what people are saying. Ultimately, where the bar should be will be legally determined. We will consider the matter.

I will restate what we are trying to achieve. We want to give people as much information as they want. Senator Averil Power mentioned that when we were in the Seanad, I was not sure about how far we could go. I am pleased that we have been able to get over this hurdle through the work of people in the Department who have found a way to unlock this issue. Our driving ambition is to give as much information as possible and encourage people to make contact where possible. I refer back to the national contact register in this context. The new approach will be entirely different from the current one, under which we have to wait for both parties to match on the register before we can link them. Under the new system, when someone joins the register, we will look for information on where the other person is located, contact him or her and ask him or her if he or she would like to make contact or know more.

An approach that has worked well is to ask those who refuse contact whether they would like to know whether their adopted child or the parent is still alive. Many respond positively to this suggestion and a conversation then starts.

We will certainly read the paper produced by Dr. Geoffrey Shannon, a person for whom I have great admiration in terms of the work he does in this area.

As to the authority the Adoption Authority of Ireland will have to obtain parish records, in the case to which Senator Averil Power referred, the authority will be entitled to obtain all relevant adoption records, whether they are held in a parish or a back room.

The Child and Family Agency raised this issue with us.

The Adoption Authority of Ireland will have the authority to obtain records. We are still working with the Data Protection Commissioner on some grey areas, for example, in cases where information could be held in a piecemeal fashion in various ledgers and so forth. This was the experience of officials when they sought information and found bits of information in one ledger and other bits in other areas. Gathering the information involved a considerable amount of work and co-operation was needed to do so. We will keep the Data Protection Commissioner on side. There is, however, no question that Tusla will have the power to obtain records.

Senator Jillian van Turnhout made the eminently sensible suggestion that I consult the joint committee about the information campaign. Elected representatives are the best people to know how to contact others, particularly individuals who may not bother listening to the radio, reading newspapers, etc. We will consider all of the recommendations made by the joint committee.

Deputy Peter Fitzpatrick referred to resources. We are certain we will obtain the resources required to deal with this issue.

Senator Averil Power raised two concerns. On the issue of compelling reasons, I have addressed this matter and fully accept her point that the current position is counter-productive in that the only way a person can make contact is to find the information and subsequently contact the other party to ascertain whether he or she wishes to have contact. The Bill will allow for a much more streamlined and less stressful approach for everyone concerned.

I addressed the issue of the statutory declaration. I accept the point the Senator makes about the solution proposed by Barnardos. We can consider that proposal to ascertain whether it would help.

We are in touch with the Data Protection Commission on the issue of data protection.

I thank all those who have been pursuing this matter. I also thank the officials for their sterling work. I note that Ms Susan Lohan of the Adoption Rights Alliance, among others, is in the Visitors Gallery.

I addressed the issue of whether the Bill would be drafted immediately. There will be no delay in producing the legislation. The Government, including the Tánaiste and me, and the Attorney General are determined to complete this work. The Government is determined to address the issue in the remainder of its term and I hope we will succeed in doing so. However, as I do not know when the next general election will be held, I cannot give cast iron guarantees in that regard, but we will certainly do as much as we can as quickly as possible.

Does the Minister have any sneaking suspicion about the election date?

No, people attribute far more knowledge to me than I possess.

Will the Minister consider the requirement to avail of a social worker under the new model? The proposed model will be highly resource intensive, particularly given the difficulties being experienced in recruiting a sufficient number of social workers in the area of child protection as matters stand. Will the Minister consider changing the model? While a meeting with an appropriate professional such as a counsellor accredited by the relevant bodies is necessary, the professional need not be a social worker employed by the Child and Family Agency. As Barnardos noted in its submission, it also runs a service, yet there appears to be a presumption in the Bill that it would no longer do so because Tusla would provide the service. There are a number of other good independent services in operation. Perhaps a little more flexibility could be shown in this matter to ensure the model will work better.

That is a fair point and one we will certainly consider. We do not want people to feel they must return to the place where they were hurt.

I thank the Minister for making himself available for the pre-legislative discussion. The joint committee trusts that the evidence received from other delegates during the hearings will be useful to him and his officials in finalising the Bill. The committee will prepare a report on the matter. As the Minister is aware, we have another meeting scheduled for 5 November when further delegates will appear.

The joint committee adjourned at 12.25 p.m. until 9.30 a.m. on Thursday, 5 November 2015.
Top
Share