Joint Committee on Children, Equality, Disability, Integration and Youth díospóireacht -
Tuesday, 29 Jun 2021

Pre-Legislative Scrutiny of the General Scheme of the Birth Information and Tracing Bill 2021

Chairman

I welcome our witnesses. They are all addressing us virtually via MS Teams. Mr. Rody O'Brien and Ms Maree Ryan-O'Brien are representing Aitheantas, Ms Susan Lohan and Ms Mari Steed are representing the Adoption Rights Alliance, Ms Suzanne Connolly, chief executive officer, and Ms Christine Hennessy, head of post-adoption services, are representing Barnardos, and Dr. Maeve O'Rourke and Ms Claire McGettrick are representing the Clann Project. We are engaging with the witnesses in our pre-legislative scrutiny of the general scheme of the birth information and tracing Bill. The purpose of this proposed legislation is to enshrine in law the importance of an individual knowing his or her origins.

Before I invite the witnesses to deliver their opening statements, I must advise them about parliamentary privilege when addressing a parliamentary committee. As all of the witnesses are appearing before the committee virtually, I need to point out that there is uncertainty about whether parliamentary privilege will apply to their evidence from a location outside the parliamentary precincts of Leinster House. Therefore, if I direct them to cease giving evidence on a particular matter, it is imperative that they comply with any such direction.

Each witness will be allocated three minutes to speak. Given the time constraints, I must adhere to that allocation strictly. I will call on the witnesses in the following order: Ms Ryan-O'Brien, Ms Lohan, Ms Connolly and Ms McGettrick. I understand that others will probably contribute during the question-and-answer session, which will follow the opening statements.

I invite Ms Ryan-O'Brien to make her opening statement.

Ms Maree Ryan-O'Brien

I thank the committee for its kind invitation to contribute to the discussion on the Bill and to discuss our submission. As a recognised key stakeholder group, our primary objective is that reform of the law in this area be victim-survivor led and that the concept of people before paper be at the heart of any legislation. We welcome the Bill as a step forward and the Minister, Deputy O'Gorman's work to advance this matter.

I am an adoptee, but I feel I need to highlight that I was not born in a mother and baby home and did not come through the mother and baby home system. As such, I was outside the remit of the commission and, like thousands of others, could not participate in its investigations due to its restrictive remit. Many were shut out of this process and were not included in An Taoiseach's apology. This needs to be acknowledged and addressed. There need to be clear pathways of participation for those who were outside the remit in any process moving forward.

I have experienced this system and its shortcomings on a personal level, whether it was as a 29-year-old diagnosed with an autoimmune condition that I had no background medical information on and that I later discovered I was predisposed to or as a new mum being advised by our doctor to seek clarification on a potentially inherited life-threatening condition to protect myself and my children and having to liaise with agencies that simply did not care. I have experienced the invasive and controlling nature of this system, which withheld the existence of a biological sibling from me for six years, only revealing it years later when I sought information on my biological father. This system treats adoptees as if we are guilty of some wrongdoing, and while we very much welcome this Bill as a signal of some progress and a move away from previous legislation's "much ado about doorsteps" approach, it does not go far enough.

Most adoptees' concerns are practical ones regarding medical information and access to identity information. While the Bill goes some way towards recognising the significance of medical information, it is unrealistic to assume that a bank of information on this will suddenly become available. There are considerable hurdles to overcome and, as such, we would seek for enhanced medical screening for adoptees and their children and earlier entry to existing screening programmes.

While we welcome Mr. Gloster's apology as an acknowledgement of the appalling treatment that adoptees have been subjected to, neither Tusla nor the Adoption Authority of Ireland, AAI, should continue to play a part in adoptees' lives or make determinations on access to information. In 2019, the AAI refused nine applications for birth certificates. In 2018, it refused six. Despite that, under the Bill, this selfsame agency, which has already ruled on these applications, will again have an integral part in the process of adoptees applying for copies of their birth certificates, as set out in the general scheme of the Bill. This begs serious questions as to the constitutionality of the process.

If we are to move the legislative focus from the clean break or clean slate model to clean access, it needs to be within a new agency with a new social work model. Most importantly, as legislation on this issue has languished for so long, the Bill needs to provide for a compulsory review period in order that issues can be addressed and improved upon and we do not perpetuate the wrongs of the past.

I will quickly recap the main issues with the Bill. It is a rehash of the IO'T v. B case. We believe that, for the reasons set out in our submission, the Bill is an unsatisfactory attempt to legislate for adoptees' right to identity. The Child and Family Agency and the Adoption Authority of Ireland are unfit for purpose in the context of this Bill. We are calling for a new agency, independent of the above bodies, to be the main focus. We do not accept the qualifications or restrictions on the release to adoptees of their birth information and birth certificates. This is a disproportionate restriction and goes too far in recognising and placing the constitutional right to privacy of the birth parent over and above the constitutional right to identity of the adoptee. We advocate for a suite of supports, including medical screening. We are concerned by the lack of provision in the Bill for a review of the legislation. This is a serious omission and one that needs to be addressed urgently. We note the conflicting explanatory notes throughout the Bill. For example, the general data protection regulation, GDPR, is used to prevent access to adoptees for certain information. Elsewhere, attempts are made to exempt the application of GDPR. We note a significant level of discretion and arbitrariness assigned to relevant bodies. There is a necessity to make guidelines compulsory rather than optional in the various processes throughout the Bill. The provision relating to a register of acknowledged identity and a certificate of acknowledged identity needs to be clarified. The issue of immunity for the State and relevant bodies as set out in the Bill is noteworthy and concerning.

We very much appreciate the opportunity to speak before the committee today and would sincerely like to thank its members, clerk and staff for their assistance. We welcome members' questions.

Ms Susan Lohan

Participating in this meeting with me is Ms Steed, our US co-ordinator. We are pleased to make this submission on the proposed birth information and tracing Bill 2021. It is 20 years for me and more than 20 years for Ms Steed since we first engaged with legislators in this House on such legislation. In my most cynical moments, even I could not have foreseen that I would still be repeating the same mantras 20 years later. As such, I hope that the committee will take into account our comments and fears about the Bill and act accordingly.

Ms Steed and I have worked in the area of advocacy of adopted people's rights for several decades. We bring to the debate our personal experiences as adopted people. Ms Steed was trafficked to the US from the Bessborough Mother and Baby Home. She was also a victim of illegal vaccine trials prior to her trafficking to the US.

I was adopted from a private infant hospital, which is not included in the commission of investigation’s terms of reference of the commission and excluded from the terms of this Bill. It seems that once again the Minister and Department have sought to divide the communities of people who may access the information set out in this Bill so once again, I find myself excluded. Ms Steed and I and others at Adoption Rights Alliance have carried out years of research and evidence gathering. Unfortunately, many adopted people have died during the decades of inaction on the State’s part to recognise their rights as Irish citizens and as adopted people. This inaction is a serious abuse of our human rights and presents ongoing discrimination, all of which has been noted by the IHREC, the ICCL and special rapporteurs at the UN. Most importantly, it stands in conflict with Article 8 of the UN Convention on the Rights of the Child.

While we recognise that this Bill represents a significant advancement in the view of the State on the rights of adopted people to identity and personal information, several key sections of the Bill remain problematic for us. First, as I referenced earlier, a huge percentage of those boarded out, sent out to nurse or adopted legally or illegally who were born in State and private hospitals are not included in the information sharing set out in this Bill. Equally, anyone who spent time in the care of a private infant hospital, which would include St. Patrick's Infant Hospital in Blackrock, County Dublin, which was run by one of the most notorious disgraced adoption agencies, St. Patrick's Guild. We can safely say that unconditional access to information and birth certificates is not unfettered. It is not unconditional for all. We reject the notion that if a natural parent has registered a "no contact" preference, the adopted person, their son or daughter, would be subject to what can only be described as a labyrinthine process to access his or her information. Access to personal information and records is also not for all. It excludes the categories of people I mentioned earlier.

The definitions of information are conflicting and are not rigorous. This includes birth, early care and medical information. In an attempt to include everything, the Bill has ended up being overly and unnecessarily prescriptive. Anyone applying for information should be given the content of his or her files, full stop.

The relatives of those who died in institutions were surprised and shocked to realise that they may not apply for their deceased relative’s information. Given the circumstances behind Ireland's forced and closed adoption system, this is deeply disturbing. As it stands, this Bill does not even put us on parity with other Irish citizens. At the very least, we should expect extraordinary and additional measures to go some way to redress the faults of the past. When it comes to siblings, we were shocked to discover that an adopted person or somebody who had been boarded out will only be told that he or she has a sibling and the gender and age of that sibling. This is all public domain information. To suggest that somebody who might have experienced years of delay at the hands of Tusla or the Adoption Authority now has to go and research information on his or her siblings when it is publicly available is frankly unacceptable.

We also object to the tone and language of the Bill, which is certainly not representative of a transitional justice approach. It does not reflect the grave human rights abuse suffered by natural mothers and their children in various institutions. I concur with the previous speaker that Tusla and the Adoption Authority of Ireland need to have their systems radically overhauled. In particular, those of Tusla are frankly not fit for purpose. I have witnessed this. Tusla managers came in to give a presentation to the collaborative forum, which is a group of individuals who offer advice to the Department of Children, Equality, Disability, Integration and Youth. They have a very disturbing view on adopted people or anybody applying for personal information through their offices.

We are very grateful to our Clann Project colleagues, who will present later on in this session. They have produced a comprehensive list of amendments to the Bill as it stands. We have echoed these same elements in our own submission but the details can be found within the Clann submission. We wish to confirm that those elements and detailed amendments set out in the Clann submission are fully in alignment with the position of Adoption Rights Alliance.

Chairman

I invite Ms Connolly to deliver her opening statement.

Ms Suzanne Connolly

Barnardos is delighted to speak to the committee on this important legislation. I appreciate that language included in this legislation is very sensitive and that some mothers prefer the term "birth mothers" while others prefer the term "natural mothers". I will use the term birth mothers as the term currently used in the legislation.

Barnardos has been providing post-adoption support services to birth mothers and adopted adults since 1978. Thousands of birth mothers, adopted adults and birth family members have contacted Barnardos for individual support and counselling. Approximately 1,200 birth mothers and adopted adults have attended our group support service. Additionally, we deliver a specialist therapeutic support service to adults whose births were incorrectly registered as well as providing a national therapeutic service to children and teenagers adopted both domestically and internationally.

Barnardos welcomes the following provisions in the proposed legislation: the right of adopted adults, adults who were incorrectly registered and adults who were boarded out to access birth certificates and personal information; the entitlement of those over 16 to apply for their original birth certificate; the right of adopted adults to access personal items left on file for them by their birth mothers or birth fathers; the placing of information and tracing services and the new contact preference register on a statutory footing; the establishment of a new register of acknowledged identity allowing adults, including those incorrectly registered, to receive a certificate and correct their entry; and the provision for third party agencies to share information for tracing purposes without being in contravention of GDPR.

However, we would recommend the following. We recommend increasing the notice period for birth mothers to register their contact preference option from three to a minimum of six months. We have worked with many women who have never disclosed the existence of an adopted child to their partners or family. Birth mothers attending Barnardos support groups have told us the three-month period is too short. They have told us that they need time to consider their options and may need to seek personal and professional support with this.

We propose that the right to post-adoption counselling and support should be placed on a statutory footing for all birth mothers and adopted adults. It should not be confined as currently proposed to birth mothers who register a "No" preference. We recommend that statutory counselling be made available to those birth mothers who register a "Yes" preference and to those who may not able to engage with the register at all. Many mothers we work with have told us of the positive impact of counselling and support on their lives. We suggest that all adopted adults should be entitled to statutory counselling and therapeutic support should they wish to avail of it. Most adopted adults tell us that they have had happy family lives. However, some have told us they have had negative experiences of adoption, including neglect, rejection and abuse that has left them with lifelong hurt. We also recommend that young people accessing their original birth certificate should be offered specialist adoption support should they wish to avail of it. Our experience of working with teenagers would suggest that some may struggle to process information on their background that might emerge as a result of their application.

We also recommend that adopted adults have a right to choose whether or not to attend an information session in the event of a no-contact preference. This must be optional. Barnardos has worked with some adults who have found the experience of a birth parent refusing contact to be extremely painful. Some of them have welcomed an intensive level of support to talk about the refusal and its impact on them. Others have not needed support. Therefore, attendance at an information session should absolutely be a matter of choice for the adopted adult.

We recommend extending the date to correct inaccurately registered births. We suggest this because we have provided support to adults whose births were incorrectly registered past the date of 31 December 1970.

Finally, we recommend the Government would adequately resource the adoption sector in order to ensure staffing levels can meet the needs of birth mothers and adopted adults. Lengthy waiting lists for adoption services already exist and demand is certain to increase considerably following the enactment of the Bill.

Chairman

I thank Ms Connolly. I now invite Ms McGettrick to deliver her opening statement.

Ms Claire McGettrick

I thank the Chairman and the committee for the invitation to Dr. Maeve O’Rourke and me to attend today’s hearing. The Clann Project welcomes the publication of the general scheme of the birth information and tracing Bill. We have, however, identified a number of major issues, which we outline in detail in our submission. The following is a summary of the main issues but not all.

This Bill does not provide unconditional access to birth certificates. It imposes a mandatory information session on adopted people, and adopted people only, whose natural parents have registered a no-contact preference. Birth registrations have been public records in Ireland since 1864. Any restrictions on access to these public documents will serve to further stigmatise and marginalise adopted people. Simply put, it will make matters worse.

I want to be very clear on what the information session is about. The information session is discriminatory and in breach of the equal rights and freedoms of adopted people. It is envisaged that a social worker will inform the adopted person of the natural parents' privacy rights and of the importance of respecting their contact preferences. Instead, it is more than sufficient to simply notify the adopted person of their natural parents' contact preferences, regardless of what that preference is. Adopted people are entirely capable of respecting no-contact preferences without further explanation and it is deeply offensive to suggest otherwise. The right to information about oneself and contact with natural family members are separate issues. No adopted person is demanding the right to a relationship with natural family members. As set out in our submission and amendments, notification of contact preference should be in written booklet form and provided at the same time as records are produced. This notification should apply to all those requesting records and not just a particular group of adopted people. An information session should be an optional service and it must be carried out by archivists, not social workers or psychologists. The optional information session should also be framed as a service to assist affected people rather than a disciplining measure to ensure they understand the concept of privacy.

On access to records and information, we are extremely concerned at the extent to which GDPR rights are being restricted under this Bill. Entire categories of mixed personal data are explicitly excluded without justification, notably the information about the care provided to a person by adoptive and natural parents and the identity of one’s siblings. The information rights of natural mothers and relatives are also completely ignored. The Bill must provide all affected people, including relatives of the deceased, with a clear pathway for immediate access to their records and to administrative files. The Bill must also recognise that mixed personal data is personal data as confirmed by the European Court of Justice.

This Bill runs the risk of perpetuating the culture of shame and secrecy that pervades the Irish adoption system. For too long, the Irish State has held an erroneous presumption that adopted people and natural mothers are on opposing sides. Natural mothers have largely remained silent but we must be careful about what we read into that silence. The historical and continued human rights violations associated with this system are deeply embedded, and the State’s efforts to protect itself amount to a complex gaslighting project that renders many stakeholders silenced and paralysed. The proposed publicity campaign presents a unique opportunity to let mothers know that they no longer need to bear the burden of secrecy and shame, to let adopted people know that they are equal in the eyes of the law, and to let relatives of the deceased know that they can finally learn what became of their family members.

It is clear that the Minister, Deputy O’Gorman, is committed to equality for all Irish citizens. We are committed to working with him and with this committee to improve the legislation to ensure it represents a true measure of justice and a major milestone in our nation’s efforts to address so-called historical abuses. We will not accept anything less. Dr. O’Rourke and I will be glad to answer any questions and I thank the committee members for their time.

Chairman

I thank all our witnesses for their opening statements. I will move on now to our question and answer session. I ask all attendees to stick to the agenda items in their questions and answers.

Senator Sharon Keogan

I confirm that I am in Leinster House. I appreciate all the testimonies from all of the people who come before the committee today. I have three questions the first of which is for the Adoption Rights Alliance. How could the language and tone of the Bill become more representative of transitional justice? Ms Lohan has indicated that the current Bill is not representative of a transitional justice approach.

My second question is to the Clann Project. The involvement of the social worker in the notification of a no-contact preference is, as the witness has said, deeply offensive since it suggests that people are incapable of respecting such a preference. How does the Clann Project suggest that an adopted person is informed of a natural parent's privacy rights in a clear concise and appropriate manner?

My final question is for Barnardos. Ms Connolly has suggested that the mandatory information session for adopted adults is made discretionary. How long may the adopted persons take in deciding to attend such information sessions? Is it suggested that a time limitation is put in place or that it be discretionary?

Chairman

We will start with Ms Lohan and then move on to Ms McGettrick and Ms Connolly. If any of the speakers wants to hand the question over to a colleague that is no problem and perhaps they would just indicate that.

Ms Susan Lohan

The pillars of transitional justice are around accountability, justice and promises of non-repetition. There are no indicators of that in the Bill. One would have thought, for example, that anybody who was imparting the information to an adopted person or to someone who had been boarded out would have an obligation set out in the legislation to report any findings of wrongdoing or criminality, and there is absolutely no suggestion of that in the Bill as it currently stands. I will now hand over to Ms Mari Steed.

Ms Mari Steed

Ms Lohan has answered very admirably the transitional justice question. Many of us in the United States were adopted to states that do not currently support open records. It puts some people at a distinct disadvantage. There are those of us who were adopted domestically and do have rights to the records where some do not. There is a bit of inequality there also. We need the fuller picture to form our own truths. With regard to our early life records many of us were sent to the US with no documentation whatsoever.

Ms Claire McGettrick

Our main issue with the information session is, essentially, how it is framed and the fact that it is a mandatory mechanism for people who have had a no-contact preference.

Instead this is an opportunity to frame it entirely differently as a service for people who have been subjected to human rights violations, for example. Anybody, therefore, including mothers, regardless of who is applying for information, could be given the information in a booklet in the first instance but if they wish to have it in the form of a meaningful information session, that would be possible too.

We suggest in our amendments things like informing people of the national contact preference register for a start. A person can register his or her preference and if another party has registered a preference in his or her case then it will tell that person what the preference is. A tracing service is also available if a person would like to avail of that.

Also, if records are being handed over, what they mean should be explained, for example, if there is an abbreviation in the record or if a particular form is included; anything to help translate anything confusing from decades ago. In other words, it should encapsulate a service for people who have been wronged by this country and not as this punitive measure to ensure that we know how to protect privacy and understand that just because a no-contact preference has been lodged, a person knows what to do. Adopted people are no different from any other citizen in that regard. We are well aware of what to do. The Senator should feel free to come back if she would like more on that.

Ms Christine Hennessy

I think Ms Connolly would like me to answer that question on behalf of Barnardos. The question was about how long we think an adopted adult should be given to consider whether he or she would like to avail of an advisory session on being told his or her birth mother has registered a no-contact option. I would suggest that decision is discretionary according to the needs of the adopted adult concerned. Some adopted adults may immediately feel they do not wish to have an information session. In that case, as we said in our submission, there should be no barrier to that adopted adult receiving his or her original birth certificate. Some may, however, receive that information with great sadness and shock and should be given a discretionary period to think about whether they would like to get some professional support or advice to consider their response. I would, therefore, suggest discretionary action would be the best way to proceed.

Chairman

We are moving on to Senator Seery Kearney. Can the Senator confirm her location, please?

Senator Mary Seery Kearney

I am in Leinster House. I thank the Chairman and apologise; she came to me quicker than I was expecting.

I wish to address the issue of the birth mothers and the balancing of rights here. Very rightly and appropriately, this Bill is creating a hierarchy and establishing that a person's right to his or her identity, and all the information surrounding that from his or her early life, should be available to him or her. Anything held really should be made available to that person. That is right. It is the most important right here, which needs to be vindicated; having a right of access does that.

This Bill also seeks to vindicate that right to privacy of the birth mother who has expressed a no-contact preference. I see and read it differently from the manner in which this is expressed in the witnesses' submissions. I note that there is an obligation on the Oireachtas to produce a law that is constitutional and in being constitutional, it must sufficiently vindicate that right. The very minimum of that, therefore, is to say that if we are going to remove a person's right to privacy or a right that person believes he or she has, we are going to provide that person with counselling if he or she prefers to have no contact. We will also oblige a meeting with the person who is getting that information, acknowledging very respectfully - I am very mindful of everything here - that this is someone's information and right to knowing who he or she is. The information session, however, is to vindicate that the constitutional right to privacy has been covered and the counselling then is to ensure there is support. That is the very minimum that would equate to being sufficient for this particular piece of legislation to be constitutional.

I have questions for the witnesses on how they would ensure the constitutionality of the privacy portion of this right. Perhaps Barnardos can also assist us in with its experiences. I have had conversations with people who have never told anyone they have had a child, except in the absolute privacy and confidentiality of their discussions with me under a presumption of anonymity. I believe that we need to address that. I would appreciate the witnesses' replies.

Chairman

Is the Senator looking for anyone in particular to answer? A number of people are indicating.

Senator Mary Seery Kearney

I am happy to go with whoever's hand is up but I would also like Barnardos to reply as to its experience and the fears that are genuinely held by birth mothers.

Ms Claire McGettrick

I thank the Chairman and Senator Seery Kearney. I first want to clarify something. I do not think it is to be welcomed that the Bill is setting up a hierarchy. We need to acknowledge that everybody is affected by this system and the State is missing a step by creating that hierarchy by assuming mothers do not want access to information about their adult children.

Senator Mary Seery Kearney

I am sorry; I have to cut across Ms McGettrick. There are a cohort of mothers who do not want contact and they are not going to appear before a joint Oireachtas committee.

Ms Claire McGettrick

Okay. I speak with 20 years' experience in the area, having spoken to numerous women-----

Senator Mary Seery Kearney

I am also a counselling psychologist and I have dealt with people in a counselling forum.

Ms Claire McGettrick

With respect to the Senator, I have spoken to many mothers with many different types of experiences. When we hear about mothers saying no to contacts, we need to be very careful about what we read into that because it is always a complex "No". Not everybody who is on the receiving end of that "No" - by that I mean advocates and counsellors - will know how to handle that "No". Actually, the "No" sometimes means that they are living in shame and fear of going back to what happened to them. It should by no means be constituted as fear of their adult children or fear of their adult children getting information about themselves. We need to be very careful about calling this a hierarchy because as I said, we are compounding the secrecy and shame. That is exactly what that does.

To answer the Senator's question about the privacy element, there is a duty to inform an adopted person that a no-contact preference has been registered. That suffices. What is the problem with simply informing the adopted person that a no-contact preference has been registered? That is more than sufficient to protect someone's privacy. An adopted person is not going to go and demand a relationship where a relationship is not wanted. There is, therefore, no need to ram that down the adopted person's throat in the form of an information session, which at the moment is not framed in a supportive context. It is framed as a disciplinary measure.

Chairman

I call on either Ms Lohan or Ms Steed. We need to have one answer due to time limitations.

Ms Mari Steed

I would like to address it from a different angle. In addition to being an adopted adult from Ireland, I am also a mother of adoption loss. I am, therefore, very keenly aware of both sides of the equation. A right to privacy is not the same thing as a right to anonymity, which is sort of what the Senator is suggesting. We do not have a right to be anonymous to our children. We have a duty to be accountable to them and give them their identity, right to information and right to early-life care. I would never do that to my daughter irrespective of whether I want a relationship with her or she wants one with me. It is also important to point out that it is not always mothers who may not want the contact but adopted people as well.

That contact preference can cover both needs and it does so-----

Senator Mary Seery Kearney

With respect, the impediments to this legislation thus far have always been around privacy, albeit that is the wrong handle. This legislation is about ensuring people have the right to know who they are and that there should not be anonymity. That is the whole point in having access to the information, and it is absolutely right that that should happen. I see that I am being misinterpreted. What I see the legislation doing is attempting to vindicate the rights of those who do not wish to have contact by providing them with counselling and saying there is going to be an information session. That is what is being proposed at the moment as being sufficient to vindicate the right that the birth mother has, and we are here to discuss that. However, that is a difficulty. There is a hierarchy here. There are people who have lived in anonymity and that is being taken away from them, rightly so and for all the right reasons, but there is a consequence that the State must try to meet while it is taking away that right of anonymity. I am not saying the right of anonymity was correct and it certainly was not, but that is what is currently in the Bill and that is what needs to be addressed. Is that sufficient? Ms Steed is saying it is not sufficient and it is disrespectful to adopted people, and I hear that, but we need to explore it and discuss it.

Chairman

We are running into time issues. I hope there will be time at the end for people to come back in to deal with issues that have not been addressed. I call Ms Connolly from Barnardos.

Ms Suzanne Connolly

I suggest that Ms Hennessy responds.

Ms Christine Hennessy

I am speaking from the experience of managing and running birth mothers support groups in Barnardos since 1994. As we said in our submission, we have met with more than 1,200 women who have attended those groups and this issue was recently discussed at one of our support groups. We need to bear in mind that these are women who were strong enough to come along to a support group. There was a very wide range of views. Some women were very pleased to see the legislation and some women were very apprehensive and nervous as to what it was going to mean, and very apprehensive and nervous on behalf of the women who were perhaps not strong enough to come along to a Barnardos group.

Like Ms Connolly, I have been many years in the area and I am delighted to see legislation that is clearly coming down in favour of the rights of adopted people to information because other versions of legislation have fallen while this thorny issue was debated. For me, it is going to be all about communicating gently, carefully and accessibly, and for a much longer period than three months, to reach out to women around the country, not just through national media, but through local media, through radio, making friendly voices available for them to speak about their concerns, and not forcing them to engage with computerised systems to express their preferences. It is that kind of duty of careful care to encourage those frightened women to come forward in an empathetic way that is the way forward with this, and over a much longer period than three months. We are suggesting six months minimum. In the UK, it was two years, so three months is really not a sufficient period of time to allow that work to be done with the many nervous birth mothers around the country.

Chairman

Thank you. I call Senator Erin McGreehan and I ask her to confirm her location.

Senator Erin McGreehan

I am in Leinster House. I thank the witnesses for their contributions and their submissions. I have several questions. On a question to Aitheantas, how do the witnesses feel the legislation relates to the IO’T case which was mentioned in their submission? On the practicalities of the Bill, when we are talking about medical information, there are no fathers’ names or details. I want to tease out the opinions on getting that information from the Bill itself. There is a growing body of advocates for one new agency, given the trauma involved and the lack of proper rules or proper actions within the current agencies, Tusla and Adoption Ireland. How do the witnesses feel about possibly starting afresh with a new agency? I want to tease out people's opinions on that issue.

Chairman

Is the Senator looking for each group to come in?

Senator Erin McGreehan

The first question was on the IO’T case and it was to Aitheantas because the case was mentioned in its opening statement. I also asked about access to and availability of information. I want to tease out opinions. I am trying to get a grasp of the legislation myself and want to take in the opinions of the witnesses, including on whether a new agency is even possible.

Chairman

I call Ms Ryan-O'Brien.

Ms Maree Ryan-O'Brien

With regard to a new agency, I think that is an integral part of any move away from the processes and systems that we had in the past, which have worked so effectively in demonising and weaponising adoptees and their right to identity that we are perceived as a threat to our birth mothers or birth families. As we outlined in our opening statement, we feel that neither Tusla nor Adoption Ireland should have any active part in adoptees’ lives moving forward and, sadly, that has not always been the case. If we could all agree, as I believe we can, on a more centralised approach, with centralisation of files, cross-referencing and accessing of information, establishing data as to how many birth mothers gave more than one child up for adoption, and making sure that these siblings were aware they actually had siblings who were adopted, that would be a massive step forward and it would also be viewed positively.

To touch on the other issues raised, we are looking at either a transitional justice approach or a restorative justice approach, and we can all agree that one of the basic tenets of any process is participation, which has been sadly lacking for many who are directly affected by this issue.

With regard to the agencies that are involved at the moment, in terms of moving forward it would become a barrier to participation for many people who simply would not want to engage with Tusla or Adoption Ireland to the same extent that they had to previously. As we touched on in our opening statement, to have people who have been previously refused access to information then going back to the self-same agencies that have ruled on them previously, looking for access to information, is problematic.

I want to read some quotes from our survey on the identity rights of adoptees. One person said: “Not having knowledge of one's background, history or roots causes a person to be insecure, and doubting self-worth, coupled with deep-seated issues of abandonment, can cause serious issues for one's well-being.” Another comment was: “There are pieces of meat in the supermarket with more rights to tracking and information of origin than me.” In the context of any process, be it three months, six months or two years, we need to be very mindful that we are waiting over 20 years for this legislation. We are far behind access to information in Europe, and every day this drags on is another day of people waiting for the most basic access to information for themselves. I believe it can be done with a balancing of rights for all parties, neither one nor the other, and we can be respectful of everybody's views moving forward.

I ask Mr. O'Brien to come in on the IO’T case.

Mr. Rody O'Brien

I thank the Senator for the question and for bringing in the IO’T case, with which most of us are familiar. This was a Supreme Court case from over 23 years ago and I am quoting from that case, just in case there is any offence at the terminology used. It found that the identity of one “natural mother” was an unenumerated right under the Constitution following on from the natural and special relationship between a mother and child.

As we are all well aware now, the Chief Justice stated that the exercise of that right might conflict with the mother's constitutional right to privacy, which is exactly the point Senator Seery Kearney raised in her last question. It is important to knit it all together and bring it in. In the Supreme Court case, Chief Justice Hamilton said that the mother did not have an absolute constitutional right to her anonymity, as we discussed earlier. The anonymity at the time she placed her child for adoption is not guaranteed. There are conflicting constitutional rights. The court heavily criticised the Legislature and in the IOT case Mr. Justice Keane, who went on to become Chief Justice, stated rather robustly that the matter was one that should be regulated by the Legislature. Twenty three years later, we are here discussing it. Mr. Justice Keane said that the fact that the Oireachtas had failed to regulate by legislation did not justify the court in undertaking such a task for which it lacks not merely the expert guidance available to the legislative arm but also, and more crucially, the domestic mandate. It is our contention that the need for a balancing of rights is the same as in the IO'T case. Previous speakers have alluded to this as well.

The issue of birth mothers' privacy appears to be taking prominence yet again with this information session. The information can be vital to adoptees when seeking their information. The Bill is titled the Birth Information and Tracing Bill. It has nothing to do with mothers' privacy as a paramount issue, and while that is important the priority at this stage has to be on the adoptee getting his or her information. The information regarding privacy can be easily set out when the information is being released. Adoptees have been discriminated against for far too long with regard to accessing information.

I speak with two hats here. I am the husband of an adoptee and I have interacted with Tulsa and the Adoption Authority of Ireland for many years. I can see this from the legal perspective too and from the point of view expressed by Senator Seery Kearney, that is, the balancing of constitutional rights, but there has to be a point where the constitutional rights of the adoptees is given preference or a higher standing. That is not in this Bill. One can still balance the rights without again favouring or having a veto. There is a sense of the birth mothers or parents being almost permitted to restrict the information being given by the adoptees with regard to no contact and, therefore, information sessions. As pointed out by other speakers, this is very problematic. It is an element of discrimination which is offensive and it perpetuates the discrimination that has gone on for far too long with regard to the adoptees getting their information. The Bill is welcome and the intentions of the Minister, Deputy O'Gorman, are honourable and he does want to try to find a solution. We do not see the legislation as a major shift. We see it as still an obstacle regarding birth mothers' privacy and the Bill reflecting some preference or hierarchy of rights whereby the adoptees can have the information as long as they meet the requirement of a birth mother not wanting any contact. If the birth mother does not want any contact, there are plenty of laws in place to protect her privacy but which do not restrict the exercise of the constitutional rights of adoptees to information. The Bill is too restrictive.

Chairman

I apologise for interrupting Dr. O'Brien but we are time limited and we need to move on.

Dr. Maeve O'Rourke

Senators McGreehan and Seery Kearney raised issues with regard to the constitutional landscape. An important point in regard to I.O'T v. B is that it was not concerned with the constitutionality or otherwise of legislation, nor is it concerned with access to publicly registered birth certificates. It is of very limited relevance. Another important recent development is the confirmation by the Court of Appeal that there is an unenumerated constitutional right to have one's identity correctly recognised by the State, which requires one to have access to that information in the first instance and to then have it used by the State. That is important.

On the question of what options are available to the Oireachtas, it is important to take into account the case of Fleming and Ireland, which as Senators will know establishes that the Oireachtas has great discretion in areas of sensitive, social policy, not to mention the case law of Tuohy v. Courtney where the Supreme Court essentially tells us that where you are balancing the rights of citizens against each other legislation would need to be arbitrary and to lack an objective basis to be struck down as unconstitutional. That is the background. It gives great discretion. The Oireachtas needs to consider what are the options. Is it strictly necessary and has the evidence demonstrated that social workers need to have to engage with an undefined category of adopted people. It could anyone whose birth parents opt to have no contact. Where is the evidence to say that it is necessary that these people be sat down with a social worker to be told solely about the parents' rights to privacy and the importance of respecting that as provided in the legislation as currently drafted? Where is the evidence that it is not sufficient to give this information in writing? We also have to consider all of the other measures that can be taken around that that are not punitive and are supportive.

It is important to mention the elephant in the room, which is the notion in the previous Bill that adoptees could be of harm to the health and life of their parents. We have laws on harassment. We have criminal law. There is no evidence that adoptees are a particular group in society that do not understand privacy unless a social worker sits them down and tells them what it means. They pose no more risk than the Irish diaspora abroad who every day of the week are invited to search for the long last families, to come home to Ireland, to visit the National Library to search their records and try to track down their birth relatives. Other things need to be considered, including, primarily, the Tuohy v. Courtney Supreme Court decision which demonstrates the latitude that the Oireachtas has here and that deference will be given to the legislation, once well thought through and the necessity has been really considered.

Chairman

I will move to our next speaker, Senator Ned O'Sullivan. I ask the Senator to confirm he is in the Leinster House campus.

Senator Ned O'Sullivan

I am in Leinster House. I had not realised I had indicated to speak. I am a new member of this committee and I have not engaged with any our guests heretofore. I have been trying to read myself into the brief and I have found it to be almost a bottomless pit. The more I study the more I seem to need to know. I am grateful for the submissions given today by the witnesses, which I have studied briefly but will study in detail later. I join this committee with an open mind. I welcome information. I like the language that we would use in our daily intercourse to be kind and civil. I was very impressed by Christine Hennessy's remarks in that regard. I think I detected some form of confrontation or division. Some weeks ago, I listened in to an interview on related to this matter on "Newstalk" - it may have been "RTE Radio 1" - and I noted some of the women seemed to be upset that information was being demanded of them.

These were people who did not want any information to be shared with adopted children. It weighed on my mind and I thought a lot about this aspect. I can see that certain fears would exist in that regard. I do not think it is perhaps right to say that people are paranoid when they have a feeling of this kind. We are not talking about being harassed or anything like that. However, let us be reasonable about this as well. If there is a point of view there, then I suppose it must be expressed. Several organisations exist to advocate on behalf of adopted people seeking information and for their rights. I presume there is no such counter organisation, because the people involved would require anonymity, to give the point of view of those on the other side of the situation. Is there any advocate for the other point of view or is it all one-way traffic? I am not suggesting anything in saying that, I am just asking the question.

I listened closely to what Ms Hennessy said about giving guidance and therapy, or whatever it is. Could we hear a little bit more about that aspect in respect of the people who are not represented by most of our speakers? Those are all my questions. I must admit my ignorance. There is no point in my pretending that I know about this issue. I do not. I will have to study it much more closely. I can see where there are difficulties and I like to see difficulties ironed out in a non-confrontational way. I do not care what Government is in office, I always put my trust in it meaning well. I state that because a lack of communication may be going on here as well.

Chairman

I call Ms Hennessy.

Ms Christine Hennessy

I thank the Senator for his interest. There was an organisation called The Natural Parents Network of Ireland, but I do not think it exists anymore. It is a pity that there is not a representative organisation for natural birth mothers speaking today. All I can do is to try to represent some of the voices of women who have attended the groups over the years. It will not be a surprise to any of the guests to hear what I have to say.

The experiences of birth mothers are on the spectrum. We work with women who were raped at 15 years old and who were forced to part from their babies. We also work with women who chose to place their babies for adoption in their late 20s because it was a decision that they felt then and that they feel now was the right decision for their lives. We work with women who go on to marry the father of their children and the growing child becomes like an elephant in the room. The subject is never discussed, and often the existence of that eldest son or daughter is not disclosed to the younger sisters and brothers growing up.

The women who come to us in Barnardos often need support in talking to their families about the existence of their sons or daughters. We meet many women who have never told anybody. One lady who came to me for years used to ring her daughter in Northern Ireland. That lady has passed away now. I was the only person who ever knew she had a daughter growing up in Northern Ireland. She used to come into my office every couple of months and make a phone call to her daughter. That lady was terrified that her husband and her other children would find out about the existence of her other daughter. We meet many other women who are welcoming this legislation with open arms, really looking forward to adopted adults in Ireland having the right to their original birth certificates and who are very clear that it is the right thing to do. However, the outcomes here are complex for all.

Senator Ned O'Sullivan

I thank Ms Hennessy.

Chairman

Would anyone else like to come in? I call Ms Lohan.

Ms Susan Lohan

Most certainly, the Natural Parents Network of Ireland, NPNI, exists as Adoption Loss and it has made a submission to the committee. It is unfortunate that we have not heard from a representative of the group today. It fully supports the release of personal information, including mixed personal information, to all adopted people. The organisation recognises the great injustices which the now adult children of women like themselves have endured. The flipside of the situation is that they would like reciprocal rights. As many committee members know, it was largely a forced adoption system which prevailed in Ireland since the formation of the State and especially since 1952 or 1953 when legal adoption was introduced and came into force. Many of the mothers that the representatives of the NPNI have spoken to and advised in more than 25 years have had very little recollection of all the legal circumstances behind their children’s forced adoptions. Many of those mothers cannot recall the circumstances of their children’s birth due to trauma endured at the time. Those mothers would like the reciprocal right to information on their now adult children.

As adopted people, we certainly have no objections to that. The more open we can be about the situations which prevailed in Ireland the better we will all be. In more than 20 years, I have never met a natural mother who said that she wanted to extinguish the information rights of her child. It is not a right that we afford to any other parent. None of us taking part in this briefing who are parents have the right to hide our children’s birth certificates from them, regardless of the circumstances behind their births. Therefore, the notion that we would afford that right to any other cohort is, frankly, just a complete non-starter. It is nonsense. What is required is openness, transparency and an admission of all the human rights abuses which took place in this arena. Everything that happened must be addressed and spoken about freely.

Chairman

I thank Ms Lohan. I call Deputy Cairns, and I ask her to confirm her location.

Deputy Holly Cairns

I am in Leinster House. I thank everybody for coming before the committee. I have two questions and I would like brief responses to both. The first one is for Ms Ryan-O'Brien of Aitheantas and the representatives of the Adoption Rights Alliance and The Clann Project. All their statements highlight how this proposed Bill does not meet the threshold of unconditional access to birth certificates and birth information for everyone. We have time constraints, so therefore I ask the witnesses to elaborate briefly on the importance of this proposed Bill meeting this principle. I refer in particular to Head 40 of this general scheme of the Bill which states that the general data protection regulation, GDPR, will be disapplied. What are the implications of that? I would like the witnesses to explain that to the committee.

My second question is addressed to the representatives from Barnardos and The Clann Project. Will they explain the importance of having a clear statutory right of access to view one’s own, or one's parent's, I am not sure how to phrase this, care or adoption files and to records concerning a family member who died in care or adoption? I am addressing this question to the representatives of Barnardos and The Clann Project, but because Ms Hennessy spoke about working with the approximately 1,200 birth mothers, will she elaborate on the implications that may exist for some of those people in respect of not having such access? Turning to Ms McGettrick and Dr. O'Rourke, I would like them to comment on a clear statutory right of access to records in respect of mothers, of course, and also siblings etc..

Chairman

I thank Deputy Cairns. We will start with a response from Ms Ryan-O'Brien.

Ms Maree Ryan-O'Brien

Mr. O'Brien will take this question.

Mr. Rody O'Brien

I thank Deputy Cairns for her question. To clarify, regarding the threshold, is she alluding to the earlier conversation we had regarding the unrestricted release of information?

Deputy Holly Cairns

Yes, I am talking about adopted people having the same kinds of rights as everybody else in respect of unrestricted access to their own information.

Mr. Rody O'Brien

Yes, that follows on as a natural progression from the conversation and what we discussed earlier. All the speakers from the different groups representing adoptees are making the point that there is a restriction with the imposition of an information session.

If there is a preference by the birth parent for no contact, that triggers an information session. That session is compulsory in order to acquire the birth certificate or birth information the adoptee is looking for. There is a restriction based on the trigger of the no-contact preference indicated by the birth parent. This is inequitable. There is an issue of inequality because if you or I apply for our birth certificate, there is no restriction arising out of somebody not wanting us to have that information. We are allowed access to the information as a right.

The point is that we are not progressing in regard to giving unrestricted access to adoptees to their birth information. There is an obstacle when the birth parent expresses a preference for no contact. Why should that be the point at which adoptees are restricted? It means that their recognised identity rights, as defined in the Constitution, are limited. That is the first point that needs to be made.

Deputy Holly Cairns

I thank Mr. O'Brien. I am interested to hear from the witnesses regarding head 40 of the Bill, which references the disapplication of the GDPR. I hope they can shed some light on the implications for unfettered access to birth information.

Ms Claire McGettrick

I will briefly come in on the birth certificate issue and then hand over to Dr. O'Rourke. Unconditional access means unconditional access, the same as for every other citizen. Since the early 1990s, adopted people have been making use of the civil registration system through resources provided by us and our predecessor. They have been accessing that information, finding their birth certificates in this way and the sun has not fallen out of the sky. We are not aware of any harm coming to natural mothers, natural fathers or natural family members as a result. There is, in essence, nothing to see here. There is no harm arising from providing this additional access but, on the other hand, there would be a lot of harm done to these women by not allowing it. It would make matters worse and add insult to injury.

Dr. Maeve O'Rourke

I thank Deputy Cairns for her question. Head 40, in our view, is hugely problematic. Apart from the information session provision, it goes to the heart of everything that is wrong with the Bill as proposed. It is entirely unclear how the Bill will interact with the GDPR. The latter protects the right to access one's personal data, including mixed personal data one shares with other people, whether dead or alive. That right is protected under the EU Charter of Fundamental Rights; it could not be more protected. Head 40 is definitely non-compliant with Article 23 of the GDPR, which sets out the requirements for any restrictions on the subject's rights under GDPR. Head 40 provides that the rights and obligations under the GDPR are restricted to the extent necessary to enable, in essence, the effective functioning of the information and tracing scheme provided for in the Bill. This gives, in effect or at least on paper, a carte blanche for the GDPR to be disapplied in respect of adopted people's rights to their information.

The Bill includes an explicit right to request access to personal data held either by Tusla or the Adoption Authority of Ireland. It is unclear whether the Bill will mean that people cannot ask anybody else for copies they hold. For example, the Department of Children, Equality, Disability, Integration and Youth is not currently defined as a relevant body but it is responding to GDPR subject access requests. Will people still be able to make such requests to the Department or any other body that holds adoption records or copies of same? That is not clear.

There are huge restrictions that are not permissible under the GDPR regarding categories of mixed personal data, to which the Deputy alluded. The definition of care information to which people are entitled excludes everything about a parent's or adoptive parent's care review. There is a blanket restriction that is not compatible with all the different requirements of Article 23 of the GDPR. If you want to restrict subject rights, you need to give all the details about what you are restricting, why it is strictly necessary in a democratic society and how you will protect the essence of the right. None of that is there.

The Bill also completely restricts people's access to any identifying information about their siblings, even though that is personal data. Information on whom a person is related to is that person's information as well as being the information of his or her siblings. There are huge issues with how this Bill is going to interact with the existing GDPR rights of adopted people. It also looks like it will not enhance access for mothers and relatives in the context of the rights they currently have under the GDPR. There really needs to be clarity in this regard because the GDPR does not function by magic, particularly in a historical context where there has always been a lot of secrecy. We need to see a data protection impact assessment and the Bill needs to go back to the drawing board in terms of how the GDPR functions alongside it.

Chairman

There was a question to Ms Hennessy, if she would like to respond.

Ms Christine Hennessy

Was Deputy Cairns's question about the impact on natural birth parents of not being able to access information about their growing child?

Deputy Holly Cairns

Yes, and their not having a clear statutory right in that regard. Given all of Ms Hennessy's experience with birth mothers, in particular, she might be able to shed some light on the implications of that.

Ms Christine Hennessy

Birth mothers had to make a super-human effort in being in a position where they did not know whether their child was alive or dead. Many women we have spoken to over the years were not welcomed back by agencies when they sought the most basic information about their growing child. With modern adoptions, things have changed. Fortunately, in the case of the small number of domestic adoptions we have today, many children are placed in a semi-open or open adoption arrangements, which allows the mother to have some information about the child as he or she grows. In the past, however, mothers were treated appallingly by agencies when they went to them looking for the most basic information. In some cases, mothers were promised photographs of their children at various stages, but that right was never put on a statutory basis. It was down to the adoptive parents to follow through on those promises to the mothers. It was heartbreaking to speak to women who were let down by promises made to them by agencies and adoptive parents in terms of ongoing information about how their child was getting on. That information simply did not materialise and it certainly added hugely to the trauma of these women that they did not know how their children were faring.

Deputy Holly Cairns

Would Ms Hennessy say it is crucial that it be included in the legislation that mothers have unrestricted access to that information? Other speakers touched on the need for siblings to have that access but, based on what Ms Hennessy is saying, it sounds like mothers definitely need it as well.

Ms Christine Hennessy

Mothers need to have a right to know how their child is getting on. It is as simple as that. They need to know. The research done in the United States, in particular, on the outcomes of open adoption, where the mother becomes part of the child's life as an ongoing contact, is very promising. I did a small amount of research in this area and found that such children were doing very well. In general, there is nothing to fear from open exchange of information. In fact, it is healthy for everybody and can be very good for children because there is not a sudden requirement on the child, when he or she reaches adulthood, to get to know a person who is a complete stranger. We know the outcomes of reunion are sometimes good but, as I said earlier, they are also often complicated as two strangers, in effect, seek to get to know one another.

Chairman

The next speaker is Senator Ruane. Will she confirm her location?

Senator Lynn Ruane

I am located in Leinster House. I thank the witnesses for their contributions today. I have been engaging on this legislation since I was first elected in 2016. It has been a long conversation, never mind all the conversations that took place in this area in the ten, 20 and 30 years before that. Having come to the issue with new eyes as a legislator, it seems to me that many of the conversations we are having today were already had, the decision has been made and the indication given by the Department that information will be accessible. We are getting stuck on the issue of how the preference for no contact will be communicated. A compulsory meeting with a social worker is an arbitrary thing that was decided on as what would best provide balance. All the conversations we have as we go forward need to focus on how best to communicate a preference for no contact.

How do we best communicate a non-preference? It is not about the rights that have gone past. It is not about the hierarchy of those rights because the heads of Bill relating to this state the information will be given. It is about ensuring the information is given in a way that is respectful and dignified and such that we are moving on instead of going back over a historical balancing of rights.

Right now what I am hearing from the submissions that have come in is the suggestion that how the information is to be given is still discriminatory and stigmatising. There is no evidence to show that a non-contact preference given in a building or institution in the presence of a social worker will produce more effective protection of privacy than it would were it given on video or in an information booklet. The most important thing is that the information relating to non-preference is given. How it is given should not be a compulsory thing. We all receive information differently. That is the angle we need to be looking at for that argument.

My question is for Ms McGettrick or Dr. O'Rourke. If access is to be unfettered, what we are saying is that on the request of information someone has offered, a person may want an information session. Is that correct? If a subject refuses, then the person is still given all the information as normal but what comes with that information is the information that the person would have got in an information session so there is no non-preference. Then a follow-up is offered to establish whether the person needs any further clarification on what that means. At every stage the person is choosing whether to engage further and what that means or does not mean for that person.

I wish to speak more to why that is so discriminatory. I read the Clann project submission on this and the reference to the headlines from the UK two decades ago and how that is being replicated here. There was also reference to the fact that we are replicating something that did not cause a major issue whenever the legislation was introduced in the UK. How traumatising it is to see those headlines all the time. It is as if adoptees are seen as some kind of threat. Could we speak to why the information session further compounds that and is a re-traumatisation of forcing a situation on people that they do not want?

The other question I had relates to head 38 specifically. It provides an exemption for the Government and the authorities and removes accountability by making statutory provision for the full immunity from damages claims unless an act was done in bad faith. Could Dr. O'Rourke or Mr. O'Brien discuss what that means? Are there any concerns around the provision in head 38? Is it problematic in any sense?

Ms Claire McGettrick

I welcome the opportunity to raise the issue of the UK headlines. Believe it or not it was over 40 years ago. For the benefit of those who may not be aware of it, when the Children Act 1975 was being enforced in the UK in 1976 adopted people in England and Wales were given the right to their birth certificates. Right throughout the enactment and the debates of that legislation adopted people were painted as vindictive and potential blackmailers who would bring a threat to arrive on the doorstep. That only intensified when the legislation was enacted. We saw all manner of unhelpful headlines about knocks on the door etc. In the aftermath of that legislation numerous research projects took place. The late John Triseliotis looked at analysis of all that research and found that all these predicted calamities never actually came to pass. Adopted people act responsibly - of course we do. We are not somehow different or unable to act responsibly or unable to act like normal human beings. Of course adopted people act responsibly. In fact I would argue we are probably more aware than many other citizens given what is at stake. As we said in our submission, adopted people often suppress unimaginable grief when it comes to things like attending a funeral incognito to spare the feelings of others or even staying away from funerals.

Here we are four decades later and we see the same sort of headlines appearing in the Irish media and, I daresay, in the discourse in the Oireachtas. It is really unhelpful and stigmatising. I am reminded of the Noble Call speech made by Panti Bliss where she referred to respectable people having a conversation about us, our rights, what we supposedly deserve and what we have been entrusted with. So many people are sitting here talking about us it is almost as if we are not here or that we have never met a natural mother in our lives. It is as if we do not have decades of experience in this area. We are highly invested in this area and in getting this right.

The impact of the information session as envisaged is monumental. It is so insulting to expect an adopted person to sign up to it and support it, even if it only applies to a tiny fraction of the adopted people affected. No adopted person I know would want to have equality at the expense of an adopted person's dignity.

As I explained before, it is entirely possible to legislate fairly in this area. As my colleague Dr. O'Rourke has pointed out, there are plenty of harassment laws in place. There is no reason for the really disciplinary measure of the information session as it is currently designed. People can opt in and out of various levels of support. Of course various kinds of support should be made available to everyone who is receiving information, but we are a broad church. Counselling is not for everyone. Contact is not for everyone. Nothing should be rammed down the throat of anyone. I will hand over to Dr. O'Rourke.

Chairman

I appeal to contributors to be brief. We can have at least one more speaker. Please bear that in mind.

Dr. Maeve O'Rourke

Head 38 relates to entitled immunity. In essence it says that neither the State nor any agency responsible for giving information, i.e. Tusla or the Adoption Authority of Ireland, will be subject to any claim for damages for failing to do what they are supposed to do unless it was done in bad faith. In essence, subject to Article 82 of the General Data Protection Regulation, it precludes anyone taking a case in negligence, for example, or seeking damages for breach of statutory duty in the court. People do not take those cases to win money. They take those cases to ensure that if they have suffered a legal wrong the same treatment does not happen to other people in future. It is an important accountability mechanism rather than a way for someone to make some cash. It is really important to give that mechanism the respect it is due. There is a need for accountability because it is connected to the importance of the right of access to information not only in the abstract but in the particular context of adoption and other forms of family separation in Ireland that happened in the 20th century. As we all know, many such cases involved abuse. Access to information is not simply the same as that of anyone else accessing data. There is a question of actual justice and so having a remedy and ensuring accountability is important.

Article 82 of the GDPR usually gives a right to compensation for breaches of a subject's rights but we have a blanket restriction under head 40 of the data subject's rights to the extent necessary and proportionate to enable the scheme to operate effectively. It is unclear whether Article 82 would really mean much.

In the explanatory note to head 38 the Government says it wishes to ensure that anyone acting reasonably is not going to be subjected to legal proceedings. In negligence if a person is acting reasonably then he or she has a defence. It does not make sense because a person has to have an arguable case to go to court. If someone was acting reasonably in applying this legislation or any other legal obligation on a person, then there would not be a case against that person in court in the first place.

This is a hugely important and problematic head in our opinion.

Deputy Cathal Crowe

I confirm I am in Leinster House. I will be very brief because a number of meetings are clashing. I will not use up a whole lot of time. I just want to ask one question of Ms Steed. I read in her witness statement that she felt there was no future role for Tusla in this regard. We need to make informed decisions and have informed opinions. In her opinion, is there another agency in the State at present that could take on this mantle? Is she specifically talking about a brand new entity?

Ms Mari Steed

I am happy to address this question. I believe we are now at a crucial point where we need a fresh non-governmental or quasi-governmental entity, perhaps a national system repository, that would provide the service. The players to date are too entwined in the past horrible history of it to be effective regulators of our information. Perhaps it will be a GDPR entity that will deal with it. At the heart of it is a GDPR issue. It is the right of access to information. I could see it being a separate new body.

Deputy Cathal Crowe

I thank Ms Steed for this response. I have been following this throughout. I apologise to the witnesses for bowing out of the meeting earlier; I would have loved a longer exchange and I hope our paths will cross again. We are taking on board everything they are saying.

Chairman

Mr. O'Brien and Ms Lohan want to come in.

Ms Susan Lohan

I want to highlight to committee members that in December 2018 I asked Tusla managers to attend a session of the collaborative forum. As I mentioned, this is a dedicated group of the survivors of mother and baby homes, county homes and Bethany homes and their advocates. It advises the Department of Children, Equality, Disability, Integration and Youth on matters of interest and concern. The performance of Tusla on that particular date still resonates with members of the collaborative forum. Managers from Tusla spoke about having to gauge the amount of harm that an adopted person having access to their own information would cause third parties. This, incredibly, included relatives of the natural mother who probably had no prior knowledge of the existence of a child simply by virtue of the distance in the relationship. As far as I know, Tusla is still doing this. It is contacting cousins of deceased natural parents to find out what their view would be on an adopted person getting personal information. They are allowing these random people to exercise a veto over adopted people and those boarded out getting access to their own information. The Tusla managers also expressed a very surprising view on our files. Somebody from the collaborative forum put it to them that a new body might well be suggested to take over the supervision and dissemination of information from these files.

Chairman

Sorry Ms Lohan-----

Ms Susan Lohan

The manager of the adoption unit said that could not be allowed to happen because Tusla regarded the files as its own. I can barely bring myself to repeat that.

Chairman

Sorry Ms Lohan-----

Ms Susan Lohan

It was such an astonishing admission from somebody who seemed to have no idea that these are not just manila files.

Chairman

I understand everyone has their own positions on these matters but I need to point out that Tusla is not here to defend itself. I am not aware of the meeting Ms Logan is referring to and whether it was in a private capacity or a public forum. I need to put on the record it is not here to defend itself. We cannot continue with this train.

Does Mr. O'Brien wish to contribute?

Mr. Rody O'Brien

I had raised my hand with regard to head 38 and the previous point we were speaking about.

Chairman

Does any other witness want to come in? Are there witnesses who feel they did not get an opportunity to address earlier points or questions? Does any witness want to take the opportunity to make very brief concluding remarks? As no one has indicated I will say a very sincere thanks to all of our witnesses. This has been our second meeting on this pre-legislative scrutiny. We have a number of other meetings scheduled running into September. We will hear from a range of people. We cannot have everybody in on the same day so we will have a number of meetings. We will also have written submissions. Is it agreed that the opening statements will be published on the Oireachtas website? Agreed. We look forward to engaging with the witnesses on this matter.

The joint committee adjourned at 5.06 p.m. until 3.30 p.m. on Tuesday, 6 July 2021.