Information Rights

We need your help! Click here for information on how to challenge the discriminatory Adoption (Information and Tracing) Bill 2016.

The information on this page is adapted from the Clann Project report, which links to all source materials. If you are reproducing material from this page please use the following citation:

Maeve O’Rourke, Claire McGettrick, Rod Baker, Raymond Hill et al., CLANN: Ireland’s Unmarried Mothers and their Children: Gathering the Data: Principal Submission to the Commission of Investigation into Mother and Baby Homes. Dublin: Justice For Magdalenes Research, Adoption Rights Alliance, Hogan Lovells, 15 October 2018.

background

Legal adoption was first introduced in Ireland on 1st January 1953, when the 1952 Adoption Act was brought into force. The system introduced by the 1952 Act was closed and secret. Section 24 says that once an adoption order is made:

‘the child shall be considered with regard to the rights and duties of parents and children in relation to each other as the child of the adopter or adopters born to him, her or them in lawful wedlock.

Section 22 (5) says that the General Registrar

‘shall keep an index to make traceable the connexion between each entry and the corresponding entry in the register of births. That index shall not be open to public inspection; and no information from it shall be given to any person except by order of a Court or of the Board’.

Former Adoption Board Chairperson Vivienne Darling describes the closed, secret system as follows:

‘When it was introduced adoption was regarded as a neat way of solving with one stroke the twin problems of non-marital births and infertility. … Adoption workers saw themselves as facilitating an event rather than participating in a life-span process. The adoption order was seen as the finality. Thereafter the newly formed families and birth parents were expected to get on with their lives at different sides of high walls of separation. The expectation was that adoptive parents would raise the children in the same way as if born to themselves. Adoptees were kept in the dark as to their origins, and birth parents were expected to make a fresh start. The need for post-adoption services was slow to be recognised, but eventually the emergence of self-help groups … was evidence that the effects of adoption did not end with the making of the order’. 

Source: Vivienne Darling (2005) ‘Social Work in Adoption: Vignette’. In: Kearney, N. and Skehill, C. (Eds.) Social Work in Ireland: Historical Perspectives. Dublin: Institute of Public Administration. (Page 186-187)

Lack of Statutory Rights to Information

Irish adopted people are uniquely discriminated against in comparison to other citizens, because they are have no statutory right to their birth certificates and adoption files. Apart from vital family information, these files contain details such as early care records, illnesses, vaccines, details of placement with foster families, correspondence from natural mothers or family members and consent forms. Since 1952, the legislation has been amended eight times, however none of the adoption acts to date have legislated for information rights for adopted people. There have been a number of attempts to legislate in this area, however, instead of repairing the harm done by Ireland’s closed, secret adoption system, the Irish government’s efforts to legislate for adoption information have compounded the situation even further.

legislation 2001-2003

The Irish government first attempted to legislate for information rights in 2001, when a draft scheme on adoption information and post adoption contact was approved by cabinet. The Heads of Bill (republished as part of the 2003 Adoption Legislation Consultation) included a provision where adopted people who were in breach of a contact veto would be fined or imprisoned. The discrimination and prejudice regularly experienced by adopted people is exemplified in the then Minister for Children’s press release announcing the proposed legislation, where she hoped that a proposed contact veto would provide reassurance that the legislation would “not constitute a threat”. The threat of criminalisation was removed by former Minister Brian Lenihan at the 2003 Adoption Legislation Consultation, after a successful campaign by ARA’s predecessor organisation, AdoptionIreland.

The only outcome of the 2003 Adoption Legislation Consultation was the National Adoption Contact Preference Register (the ‘NACPR’), which was set up in 2005 for natural families and adopted people to apply to register their details and make their wishes known about having contact with their natural family members. Contact registers are designed as complementary mechanisms to assist those who wish to have contact (or contact made on their behalf), and not those who seek information only, or information for the time being. They should never be viewed as a replacement for statutory rights to information. Unfortunately, despite ministerial promises of regular advertising both in Ireland and abroad, the NACPR has not been advertised since it was first launched in 2005, nor has it ever been placed on a statutory basis, despite repeated calls from ARA and its predecessors. A contact register is only ever as good as its advertising, and thus the NACPR has never reached its full potential. If prospective registrants do not know of the existence of the NACPR, they will not know to register, and this can lead to registrants believing that the other party is not interested in meeting them.

a refusal to legislate in 2010

In 2009 and 2010, the Adoption Act 2010 was making its way through the Oireachtas. It was a landmark piece of legislation which ratified the Hague Convention on Intercountry Adoption and which in turn, imposed some much needed regulation in the area. T hen Minister for Children, Barry Andrews refused to legislate for information rights in the Bill, and in response to calls for unfettered access to information, Minister Andrews asserted that:

[n]o matter how great the desire to meet a birth parent, unregulated contact can give rise to real disappointment and in some cases distress’.

legislation 2015

In July 2015 former Minister James Reilly published the General Scheme and Heads of an Adoption (Information and Tracing) Bill. The proposals were immediately criticised because of a requirement for adopted people to sign a Statutory Declaration that they would not attempt to contact their natural parent(s) directly if their birth certificate was released to them. Minister Reilly referred the proposals to the Joint Oireachtas Committee on Health and Children for pre-legislative scrutiny. In its report, the Committee said that:

based on the weight of evidence and the legal submissions received from witnesses, the Committee can find no convincing reason for the inclusion of a Statutory Declaration in the Bill’.

The Heads of Bill also included a provision whereby there may be ‘a compelling reason, such as may endanger the life of a person, for not disclosing … adoption information’ to an adopted person. It is hugely stigmatising (and wholly inaccurate) to suggest that the provision of information to an adopted person would endanger life.

legislation 2016

The present Minister for Children, Katherine Zappone, TD published the Adoption (Information and Tracing) Bill 2016 on 25th November 2016. The Statutory Declaration has been removed from the Bill, however the requirement of an undertaking appears to be little more than a rebranding of the declaration and would still have the effect of introducing statute-based discrimination against adopted people. Moreover, the ‘compelling reasons’ ground was also retained. ARA has compiled a comprehensive critique of the bill, which is available here

Secrecy versus privacy and public records

Since 1864, birth, death and marriage registrations have been a matter of public record in Ireland, and anybody can visit the Research Room of the General Registrar’s Office and view these registers. The absence of statutory rights for adopted people has led to policies and practices that are ad hoc, unprofessional and discriminatory. As a result, since the 1990s, Irish adopted people have conducted their own searches for their birth certificates and adoption information, using resources provided by ARA and its predecessor organisation (AdoptionIreland).

It has been repeatedly alleged by adoption agencies and others that an assurance of confidentiality was given to natural mothers whose children were going to be adopted. This supposed guarantee is often used as a means of denying adopted people a statutory right to information. However, as stated above, birth registrations have been a matter of public record in Ireland since 1864. Since that time, it has always been possible for any member of the public to view the Register of Births and obtain copies of birth certificates from the information contained therein, which would, in an instant, reveal the identity of any woman who has given birth, including those women whose children were adopted. Therefore, regardless of any alleged (or implied) guarantees of confidentiality, it would have been impossible in practical terms, to give any such guarantee.

Moreover, the notion of there being an assurance of confidentiality presumes that such an assurance was sought by natural mothers in the first place. The fact that more women and girls chose to raise their children after supports were put in place for unmarried mothers from the 1970s onwards also strongly suggests that natural mothers would not have sought protection from their own children. Natural mothers would certainly have sought confidentiality and privacy from Irish society, which judged unmarried mothers so harshly. In this regard, the need for privacy has been wrongly confused with a supposed need for secrecy.

Information and contact

It is often wrongly assumed that for adopted people, information about one’s origins and contact with one’s natural family go hand in hand. Information relating to an adopted person’s identity is in fact a completely separate issue to a desire to meet natural family members. In ARA’s experience, some adopted people do not want contact with their natural mothers at all, while others will wait for a period of time after obtaining their birth certificates before attempting to contact their natural mothers and/or family members. This is because adopted people often choose to absorb the information before progressing any further. In 2017, ARA learned at a meeting with the Adoption Authority that over ten times the number of adopted people than natural mothers have registered a ‘No Contact’ preference on the National Adoption Contact Preference Register (NACPR) to date. Thus, even those adopted people who put themselves forward on the NACPR so that their natural parents might be made aware of the current identities of their now-adult children, are ten times more likely than natural parents to wish that they not be contacted.

The adopted person as data subject

In recent years, adopted people have exercised their rights as data subjects and have made data access requests to their adoption agencies, the Adoption Authority and Tusla. In all cases that we are aware of, the records provided have been heavily redacted, and even information which has been provided by the applicant (e.g., proof of their original identity) has been removed. The rationale for these redactions is generally that the records contain ‘third party information’, i.e., information about the adopted person’s natural mother and family members, as well as the adoptive parents, social workers and others involved in the adoption process. However, this rationale fails to acknowledge the adopted person as a data subject who has the same entitlement to information about themselves as any other citizen. It could be argued that these rights are enhanced even further in light of the General Data Protection Regulation (GDPR), which defines personal data as follows:

‘[A]n identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.’

In this regard, adoption records contain personal data about the adopted person themselves, such as their physical condition and circumstances during their early months and years, including their place of birth, their care records, the names of the people responsible for their care; their genetic background and their cultural and social identity, which includes the adopted person’s original name, their natural parents’ names, their natural family members’ names and the circumstances surrounding their adoption. If Irish citizens (including adopted people) are entitled to freely access personal data about themselves in other contexts, e.g., medical files, which also contain the names of doctors, nurses, social workers and even family members, there is no conceivable reason why the same information should be denied to adopted people about their adoption.

Countries which provide access to birth certificates and adoption files

The following are examples of countries which provide adopted people with access to their birth certificates and adoption records:

United Kingdom

England and Wales

In England and Wales, adopted people over 18 years old have had the right to access their birth records since 1975, when the Children Act 1975 was introduced. In the debates surrounding the legislation before its enactment, some sections of the media, politicians and other activists predicted disastrous outcomes to the opening of adoption records. John Triseliotis notes that adopted people were viewed as ‘potentially vindictive ‘second-class’ citizens. Ultimately however, in his empirical analysis of the impact of the Children Act 1975, Triseliotis found that:

‘The calamities anticipated by sections of the media, politicians, and some organizations have not materialized. The various studies carried out so far suggest that the vast majority of adoptees act thoughtfully and with great consideration for the feelings of both their birth and adoptive parents’.

Northern Ireland

Since 1987, adopted people over 18 in Northern Ireland have been able to access their birth certificates and adoption files.

Scotland

In Scotland, since 1930, adopted people over 16 years of age can access their birth certificates and adoption records.

Germany

In Germany, since 1957, any child (including adopted children) can access their birth certificates once they reach the age of 16. Since 2002, adult adopted people in Germany have had the right to access their adoption files once they are 16 years or older. Additionally, since 1989, it is the constitutional right of every person in Germany to have knowledge of their parentage. It is important to note that under German law, the interests of the adopted person outweigh the interests of natural parents to protect their identities.

Spain

In Spain, since 2007 people adopted internationally who are over the age of 18 can access their birth certificates and adoption files. Since 2015, people adopted domestically who are over the age of 18 can also access their birth certificates and adoption files. Adopted people under the age of 18 can also access this information with their adoptive parents’ consent.

Austria

In Austria, since 1983, adopted people have had a general legal entitlement to access their birth records, including the following information regarding their parents: name, date and place of birth and death, marital status and nationality (Sections 2 and 52/2 of the Austrian Personal Statute Law 2013). This also applies to incognito adoptions, although the access is limited to those who are 14 years or older. These regulations are considered as being consistent with Article 8 ECHR (the right to respect for private and family life).

The Netherlands

In The Netherlands, since 1994, since the ‘Valkenhorst II’ case, adopted people have had the right to access their adoption records. In the case which came before the Dutch Supreme Court, an adopted woman who was born in Valkenhorst, an institution for unmarried mothers, sought access to the identity of her natural father, as her natural mother was not willing to provide the information. While the court considered that institutions such as Valkenhorst may have guaranteed confidentiality to mothers, it also recognised that the adopted person had a constitutional right to know the identity of her father. The court said that ‘[t]he point of departure for deciding the case is that the general right to personality, which lies at the roots of such constitutional rights as the right to respect for one’s private life, the right to freedom of thought, conscience and religion and the right of freedom of expression, also includes the right to know one’s parents.’ While the use of the general right to personality as a basis for the right to know one’s origins was viewed as controversial at the time, this right was enshrined in legislation ten years later.

Sweden

In Sweden, adopted people over the age of 18 have an absolute right to knowledge about their origins. A person’s descent (härstammning) is seen as crucial to their identity and thus rights of the adopted person will always take precedence.

Belgium

In Belgium, since 1960, adopted people have automatic access to their birth certificates.