Dáil Éireann Debate, Tuesday - 1 July 2014
75. Deputy Robert Troy asked the Minister for Children and Youth Affairs the issues he views as the constitutional impediments to bringing forward comprehensive tracing and information legislation in the area of adoption; and if he will make a statement on the matter. [28009/14]
Amharc ar fhreagraWe are certainly flying through our questions today, which is somewhat unusual.
This is an issue which has come up repeatedly, certainly since I took over as spokesperson for my party in the area of children. The information and tracing legislation is critical legislation that has been promised time and time again. What are the impediments to bringing forward this legislation?
The right to privacy has been firmly established as a constitutional right through a series of legal cases beginning in 1974 with McGee v. the Attorney General, which concerned marital privacy, and culminating in the Kennedy v. Ireland case in 1987 where a general constitutional right to privacy was fully 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 so-called "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 her privacy.
In considering the right to privacy of a birth mother in the context of the adoption (information and tracing) Bill very many legal and constitutional issues have arisen in the drafting of the legislation.
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. While I am anxious to improve the legal status for access to adoption records, my proposals to the Government must 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 and has assisted in identifying the constitutional parameters within which policy can be advanced. 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.
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. Thereafter, there will be consideration by the all-party Oireachtas Joint Committee on Health and Children, which will provide an opportunity to tease out the relevant considerations in detail and to hear the views of interested parties.
Additional information not given on the floor of the House
I would like to confirm my intention to provide access to as much adoption information as is possible, taking account of relevant legal and constitutional considerations.
I thank the Minister for his comprehensive reply and accept at face value that he wishes to see this issue progress. In the course of our meetings in recent weeks on the whole issue of the mother and baby homes, I have suggested this may be one area in which the State can make good its past failings by bringing forward a system to enable the tens of thousands of people who were adopted through forced adoptions, illegal registrations or whatever and who cannot get access to what is a fundamental basic human right, namely, a right to their identity. Members must somehow manage to bring forward such a system to ensure the right of those people, that is, the right of the child, is not infringed upon as a result of the constitutional right to privacy. The Minister has stated he will bring forward draft heads of the Bill in the near future.
Thank you, Deputy.
With due respect, Members have been listening to that for the last two years and more, albeit not from the Minister himself but from his predecessor. When can Members finally expect to have before them this draft legislation?
Sorry, Deputy, other Members are in the Chamber for questions.
I accept what Deputy Troy has said. However, I again advise him as to the complexity involved and I do not make this point lightly. Earlier, I referred to the Supreme Court case and if Members will indulge me, I must state the advice from the Attorney General indicates that any right to know one's own identity, such as was found in a legal judgment in the case I mentioned earlier, flows from the legal relationship between birth mother and her child. The advice states that the effect of an adoption order is to sever the parent-child relationship, thus eliminating the basis of the right to know. When Deputy Troy stated that in his view, this was a fundamental and basic right, this is the point at which I am unsure whether the legal position is as absolute as he or perhaps most Members would wish. There may not be a constitutional right on the part of any person adopted under the Adoption Act 2010 - or indeed going back to the 1952 Act - to know the identity of his or her birth mother. As Members are aware, the mother has an effective veto on the disclosure of information.
I thank the Minister and will come back to him.
A situation now exists whereby even when both parties forgo their rights, they cannot get access to the required information. Only six weeks ago, I met a lady who came over to visit her adopted son. Both parties are in regular contact with and visit each other but cannot get access to their records, despite both of them agreeing to forgo their rights and being willing to engage with each other.
What interim solution will be introduced to resolve this issue?
Many of the tens of thousands of people to whom I referred are already in contact with their biological mothers but still cannot secure access to their personal information. Nothing brings home this issue more profoundly than the recent revelations and reports concerning mother and baby homes. The State, if it is to acknowledge its past failings, must provide a comprehensive solution to this issue. As a member of the Joint Committee on Health Children, I look forward to the proposed legislation coming before the committee. I ask the Minister to be more specific on the timeframe for the Bill, however, because many people believe the policy being pursued is one of "deny until death".
On the commission of investigation, whose terms of reference I expect to be approved by the Dáil before we rise for the summer, it is not my intention that it will in any way hamper, curtail or delay the process under way between my Department and the Office of the Attorney General in advancing the heads of the Bill for further discussion.
The Deputy referred to an individual case. While it would not be wise or appropriate of me to comment on individual cases of which I do not have the particulars, I suggest the Deputy's constituent contact the Adoption Authority of Ireland and avail of the most helpful service it provides for tracing and assisting in this most personal and sensitive matter.
I am engaged in an ongoing series of meetings with the Attorney General and I am most anxious to ensure the Bill is advanced. However, any legislation in this area may provide only for the retrospective identification of information to be given to an adopted person in very limited circumstances and where the birth mother consents. These are the constitutional parameters within which we are required to work.
