The Attorney General has cleared the way for a new adoption law that would favour the release of birth information to adopted people for the first time.
Minister for Children Katherine Zappone has been engaged in extensive consultations with stakeholders and the Attorney General, Séamus Woulfe, over the last number of months in a bid to break an impasse over the proposed new Adoption and Information Tracing Bill.
Campaigners want unrestricted access to birth information but legal advice states that a person’s right to privacy must be balanced against another’s right to information meaning there cannot be unfettered access.
Ms Zappone and Mr Woulfe exchanged a series of letters over the last four months and under new proposals, an adopted person’s birth information will be released even if the natural parent objects, as long as it is considered that both the objection and request carry the same strength.
Constitutional lawyers
Speaking to The Irish Times, Ms Zappone said that as part of her consultations, she met constitutional lawyers “who offered me another way to interpret the Constitution” than Mr Woulfe.
“I gave some of those arguments to the Attorney General. That was at the end of July and in September I received a letter back which effectively said thank you very much for all of that, but that he still interpreted it that we have a Constitution that requires that we protect the rights of the natural mothers more than what I was putting forward.”
After further consultation between the two, the new proposal would contain a provision that explicitly says that the Bill has a presumption in favour of the release of records.
“If a natural parent objects, when they know that their son or daughter wants information, the Adoption Authority will still have to listen to what the reasons are for that.
“But if the strength of those reasons are similar to the strength of the reasons of the adopted person saying they want it, if they’re similar or equal, the information goes to the adopted person. That, from a legal and technical perspective, that’s a big deal,” Ms Zappone said.
She said Mr Woulfe “felt he was pushing the parameters of the Constitution as far as he could go there”.
‘Long title’
The Bill may also be given a “long title” which “notifies this presumption in favour” from the beginning.
“It doesn’t mean unrestricted access, but it does, and can, influence the determination of the Adoption Authority when it’s doing this harmonising, if they ever do it.”
In terms of the new proposals, Ms Zappone said: “It is the best that can be got.” She said she will make her decision on how to proceed after one final “short, sharp” consultation. The Department of Children briefed members of the mother and baby home collaborative forum on the developments on Monday. It is understood that some of those present called for a referendum in order to change the Constitution and allow for unrestricted access.
