Kevin O'Higgins Solicitors

Adoption Bill: A chance for the Government to get it right but will it?

Tuesday, 1 July, 2014
The irish Independent
by Simone McCaughren and Aisling Parkes

EWLY appointed Children's Minister Charlie Flanagan recently announced plans to have an outline of the long-awaited Adoption (Information and Tracing) Bill before the Dáil summer recess. But already cracks are already appearing in the plans.

It has been suggested that the proposed Bill will do no more than put the National Contact Preference Register on a statutory footing.

However, this is already a voluntary register kept by the Adoption Authority of Ireland to facilitate contact between adoptees and their birth families.

The last couple of weeks have seen the public manifestation of a state scandal which has been brewing in Ireland for decades.

It was only a matter of time before the Irish State would be called upon to address what is currently regarded as an archaic area of child and family law in Ireland.

Time and time again, the Irish Government has insisted that its hands are tied when it comes to recognizing an internationally protected right of identity for those affected by adoption, formal, informal or otherwise.

Indeed, the Government continues to refer to the 1998 judgment of IO’T v. B as the principal stumbling block for guaranteeing to adoptees the right to an identity – a right of the child the Irish Government has committed to protect under Article 7 of the UN Convention on the Rights of the Child.

What we have heard recently has been lingering in the hearts and minds of so many for their entire lives and it is only now, as adults, that they have finally been given an opportunity to have their voices heard. The guarantee of confidentiality and anonymity that was allegedly given to all birth mothers at the time of the adoption has now become a grey area and one that merits careful consideration. Indeed questions have been asked as to the legality of many adoptions that took place even after 1952 when adoption first became a legal practice. The issue of consent is also one that has been contested with some mothers contending that the religious orders strongly encouraged them to place their children for adoption. While we cannot compare historical norms with those of the current day, it does raise the question as to whether many of these adoptions took place with full, free and informed consent. Did these women really know the long-term consequences of adoption for them and their babies at the time?

In the IO’T v. B case the Chief Justice was of the opinion that a child has a constitutional right to know the identity of their natural mother but this right is not absolute and subject to the constitutional rights of others. In this case, the rights of the child had to be balanced with the constitutional right of the birth mother to privacy, which is also not absolute. Significantly, and of particular note for the current Government, was the fact that one of the Judge’s in the IO’T case highlighted the fact that the Oireachtas had repeatedly failed to deal with this issue. He asserted that legislation has an important role to play in cases where informally adopted people could establish contact with their natural parents. Indeed it was his view at the time that legislation should set out in detail the circumstances in which the parent’s right to privacy should yield to the child’s right to identity.

Sixteen years on, Irish adoptees still have no legal right to non-identifying information, such as medical information. Furthermore they have no legal right to identifying information such as their birth certificate as this contains the full name of the birth mother and her address at the time. They also have no legal right to tracing services. While the Adoption (Information and Tracing) Bill will be a welcome development, it must go further than putting the National Contact Preference Register on a statutory footing.

It goes without saying that any legal changes will require a serious commitment to resourcing including support services for all those affected. Indeed the current state of inadequate funding is reflected by the long waiting times that adoptees face when approaching adoption agencies for information.

Unfortunately for many adopted people, by the time they reach the top of the waiting list, it’s too late and their birth mothers are no longer alive.

What’s interesting about the developments over the last week or so, is that many of the issues that have been catapulted into the public sphere are nothing new.

They are part of Ireland’s adoption legacy and ones which it seems many politicians would happily bury in the sand.

It’s high time that the Government grabs this opportunity with both hands and makes a determined effort to allow adopted people have the same rights as their fellow Irish citizens.


Dr Simone McCaughren is a lecturer in the School of Applied Social Studies, University College Cork while Dr Aisling Parkes is a lecturer in the Faculty of Law, University College Cork.