Dáil Éireann Debate, Thursday - 27 March 2014
3. Deputy Clare Daly asked the Minister for Children and Youth Affairs the basis upon which she has repeatedly stated that a birth parent has a right to privacy; and if this opinion is based on the IO'T v. B judgment. [14275/14]
View answerI am raising this question in the context of the forthcoming adoption (information and tracing) Bill. It is important for people to be able to access information on their identity. The argument put up against this has been the alleged right to privacy, but on what basis has the Minister been advised that that is a block to somebody having a right to access the identity of their natural mother?
I thank the Deputy for that question. I have made a decision in line with parliamentary reforms that the heads of that Bill will go to the Committee on Health and Children. When they do, the complexities and parameters of the situation regarding access to information for those people who have been adopted will emerge quickly once discussions begin on the heads of the Bill. It will provide an opportunity to tease out the very question the Deputy has asked.
The right to privacy has been firmly established as a constitutional right through a series of legal cases which began in 1974 with the Magee v. the Attorney General case, which concerned marital privacy. It culminated in the Kennedy v. Ireland case in 1987 where a general constitutional right to privacy was recognised.
The right to privacy was also recognised in the IO'T v. B case, a Supreme Court case from 1998. The case concerned two people who were the subject of "informal" adoptions. The majority of the court held that a natural child had an implied constitutional right to know the identity of his or her mother, though this had to be balanced against the right of the natural mother to privacy.
In considering the right to privacy of a birth mother in the context of the adoption (information and tracing) Bill, as I have previously advised the House, very complex legal and constitutional issues have arisen in the drafting of the Bill. A particular difficulty has arisen in seeking to reconcile an adopted person’s request for information about his or her identity with the right to privacy of his or her birth parent. We are therefore in a different position to other countries that do not have a constitution.
While I am anxious to improve the legal basis for access to adoption records, my proposals to Government have to reflect the constraints on the Legislature in providing such access if they are not to fall foul of constitutional challenge. The Office of the Attorney General has provided comprehensive legal advice to my Department that has assisted in identifying the constitutional parameters within which the heads of the Bill have to be drafted. It is on the basis of that legal advice that I have indicated there is a need to take into consideration the constitutional right to privacy of the birth mother.
I understand that the legal advice did consider the IO'T v. B case, while noting, as I did earlier, that the circumstances there did not involve a case where an adoption order was made. In circumstances where an adoption order is made, thus under law severing parental rights and duties, a birth mother's right to privacy may have more force.
That is the legal advice I have at present. A huge amount of work has been done to date. I can say more in the subsequent reply concerning what actually can be done.
Additional information not given on the floor of the House
My Department is continuing to work on the adoption (information and tracing) Bill and I hope to be in a position to seek Government approval to publish the heads of the Bill as soon as possible. Subsequent consideration by the Oireachtas Committee on Health and Children will provide an opportunity to tease out the relevant considerations in detail and to hear the views of interested parties. I am anxious to provide access to as much adoption information as possible taking account of relevant legal and constitutional considerations.
I would like to thank the Minister but her response is quite worrying in some ways. The good thing is that the heads of the Bill will be going to the committee and I hope the Minister can given some indication of when that might happen. She seems to be adamant that the opinion being given, on what I would still call an alleged right to privacy, has some right way above the rights of children to their identity, which I cannot see. Maybe I will be enlightened at the committee but I cannot see the basis of it. The IO'T v. B case concerned a fostering arrangement.
I note that 11 years after the judgment, when in opposition, the Minister for Justice and Equality, Deputy Shatter - who we have been hearing in recent days is the foremost legal expert of modern times - deemed that the issue was not rocket science. He said it had been addressed in neighbouring jurisdictions and that someone who was adopted across the Border in Northern Ireland had substantially greater rights than someone had in this State, and that it could be addressed here. Maybe his advice could be sought on this matter as well.
The difficulty is that the judgment in that case made the assumption that a natural parent would not want to be contacted. That does not have any basis in reality, however, because most of the adoptions were forced adoptions. Some of those from the past were not proper adoptions at all. All experience shows that most parents do want to link up with their children later on. When they do not initially, it can be overcome and other measures can be put in place then.
The Deputy's points are very interesting. A certain amount of the scenario she has painted can be dealt with in legislation. For example, where a birth mother has no objection to contact being made, it is possible to put in place a scheme and a system, perhaps with mediation and counselling, whereby if there is agreement to contact, that can be facilitated. I do not think it has been facilitated enough in the past where there was agreement. In circumstances, for example, where the birth mother is deceased that could be dealt with in legislation. Where the mother cannot be traced but where it is reasonable to presume that she is deceased, that can be dealt with also. Perhaps we need to examine carefully what non-identifying information can be given.
A birth mother may be adamant and absolutely object to contact being made. I do not think we have evidence for what the Deputy has said, but perhaps it is instinctive to say that there may be many birth mothers who would be happy for contact to be made. In those circumstances, I believe the legislation should facilitate getting the records together in a way that makes them more accessible. I intend doing this as quickly as possible. There will be a statutory basis for ensuring that church authorities, GPs and whoever else has records would be under an obligation to provide those records and make it known that they exist. That is what I intend the legislation to do.
I would like to have an idea of the timescale for the passage of the Bill through its various stages. What is the Minister's starting point? To me, the starting point has to be the rights of children to their identity. If there are blockages to that, allegedly because of constitutional reasons or whatever, and if ultimately we say that is the case, then that should be addressed. I do not see a right to privacy being an absolute right in this case. In my opinion, the right to privacy is a waivable right.
Most civilised societies have a system of tracing which is perfectly straightforward and open and completely different from the set-up we have here. If there are impediments we must move to take them out. Sometimes, the way in which the Adoption Act has provided for a permanent severing of the relationship between the natural parent and the child has been unhelpful, particularly for unmarried mothers and their non-marital children, and this is a throwback. We should be rather open in how we change things.
To be clear, my starting point in respect of this legislation has been to provide as much information as possible. I believe the concept of open adoption is the way forward. I emphasise that in the case of future adoptions in this country I want this legislation to deal with that aspect and to provide for that information to be available. In the case of historical adoptions we will examine the legislation and ensure it will go as far as is possible. Where there are barriers, it may be possible, for example, to have a provision that would give access in certain circumstances, perhaps through the High Court, to the right to information. I will be bound and I am bound - the committee will see this as we discuss the legislation - to provide for a balancing between the strong constitutional provision relating to privacy and the right to identity. I take Deputy Daly's point that from the child's perspective or that of the adult who was adopted, access to as much information as possible is where we want to be.
Considerable work has been done. The heads of the Bill are close to completion and I hope they will go to the committee subsequently. I cannot give Deputy Daly an exact timetable because we received some legal advice in February and we must take account of that and build it into the heads of the Bill. I am keen to ensure the heads of the Bill are as clear as they possibly can be in order that the issues at the cutting edge, as described by Deputy Daly, can be dealt with most effectively and understood in committee.
