Adoption without safeguards endangers children

Emily Logan looks at how issues surrounding adopted children and their rights have continually hit brick walls and delays in the Government’s legislative process.

MUCH of the recent public debate on information and tracing for people who have been adopted in and from Ireland appears to suggest that the matter has only been under consideration for the last three years.

A look back at some of the key moments in the last 15 years is a reminder that, in the absence of legislation, adopted children’s rights continue to be denied.

In 2003, Brian Lenihan, then minister for children, announced a review of Irish adoption legislation, the first since adoption was legislated for in 1952. This work culminated in the Adoption Bill, which established the Adoption Authority of Ireland (AAI) and led to the ratification of the Hague Convention, the first international instrument to regulate inter-country adoption on a global basis.

At the time, it was seen as controversial and bureaucratic, but its purpose was to protect children and their families from the risks of irregular or premature adoption abroad. These risks, especially in low-income countries, were very real because of the large sums of money involved and its attraction to unscrupulous individuals.

One of the expressed intentions of the minister’s review was to address access to records and making contact with birth parents, for a variety of complex reasons, not least concern about the Constitutional right to privacy of parents, which some believe is overstated; the tracing of information about birth for people who are adopted never made it onto the statute books.

In my previous role as Ombudsman for Children for 11 years, I was familiar with the peaks of media interest in child protection.

I saw how politicians were tuned in to the potential political implications of any child protection case, given the collapse of government in 1994 following the mishandling of the extradition of paedophile Brendan Smyth.

The public was not aware of the imbalance of rights in cases of adoption until the tragic case of Tristan Dowse in 2003. Tristan, like numerous children around the globe, was abandoned by his adoptive parents in an Indonesian orphanage.

So why were we in Ireland so interested? Because Tristan’s father was Irish. The public was unanimous in its outrage.

In terms of public debate, none was more divisive than the debate on balancing of rights between children who were adopted and their biological parents, in the case of Baby Ann in 2006.

Readers will probably remember Ann, a two-year-old girl who had lived with her prospective parents since she was three months old, and was returned to her natural parents on the basis of a Supreme Court decision.

While Justice John Mac Menamin ruled in the High Court that Ann would be psychologically damaged if she was taken away from her prospective adoptive parents, the Supreme Court rejected those findings.

In the Supreme Court judgment, Justice Catherine McGuinness noted, amongst other things, that in light of her birth parents’ subsequent marriage there was now “no realistic possibility” that Ann could be adopted by the prospective adoptive couple.

The Adoption Bill was published in early 2009. In my capacity as Ombudsman for Children I published advice on the draft legislation, where I recommended the addition of a provision on information and tracing.

The right to information about a person’s birth is protected by both the UN Convention on the Rights of the Child and the European Convention on Human Rights.

It is also given further expression in the Hague Convention and the Revised European Convention on the Adoption of Children.

Every child has a right to know and be cared for by his or her parents, as far as possible. The UN Convention further requires that states respect the right of the child to preserve his or her identity, including nationality, name, and family relations.

Looking at the jurisprudence or philosophy of law in the judgments of the European Court of Human Rights relevant to this issue, the Court has held that under Article 8 of the European Convention on Human Rights, people have a right to receive the information necessary to know and to understand their childhood and early development, including the identity of their parents.

The court has also held that birth, and the circumstances where a child is born, form part of a child’s, and subsequently the adult’s, private life guaranteed by the convention.

This right is not absolute and must be balanced against the rights of other parties not to have identifying information about them disclosed.

Later in 2009, politicians and lobbyists clashed in a row about inter-country adoption following a report by Unicef on Vietnam. The report, outlined a litany of concerns about the level and nature of intercountry adoptions from Vietnam, influenced by foreign demand.

The report stated that the availability of children who were ‘adoptable’ corresponded more to the existence of foreign adopters than to the needs of abandoned and orphaned children in Vietnam.

Unicef described the circumstances under which babies become adoptable as being “unclear and disturbing”. The political and correct response was not to renew Ireland’s bilateral agreement with Vietnam on intercountry adoption.

In 2010, we witnessed, not just here in Ireland but around the globe, an extraordinary response to the children affected by the Haiti earthquake. Multiple dramatic images of children being rescued led to what the New York Times described as an “international adoption bonanza” in which certain safeguards were ignored, with children being further traumatised by their removal from familiar environments.

Unicef responded by refusing to place lost or separated children in orphanages, fearing they would be improperly put into the adoption process before they had the chance to be reunited with surviving relatives. Unfortunately, we know now all too well that their fears were correct.

Sadly, we are not alone in our continued denial of related rights. These include the rights of the child, contained in the UN Convention on the Rights of the Child, to preserve his or her identity, including nationality, name and family relations.

Our commitment to rights contained in the European Convention on Human Rights is questionable, particularly the right to respect for private and family life for children and adults who have been adopted.

Thirteen years after the announcement of that initial review of adoption legislation, the general scheme of the Adoption (Information and Tracing Bill) was finally published in 2016.

However, it is hard to explain why it has been in the Houses of the Oireachtas for three years. It cannot simply be a matter of administration.

For adults who have been adopted, it is reasonable to question and to seek to understand how this legislation, with the potential of such criminal acts as falsifying information and illegal registration, will ensure respect for the identity of children and adults who have or will be adopted in the future.

Given the statute of limitations in Ireland, the recent referral of files by An Garda Síochana to the Director of Prosecutions may yield no prosecutions. There is no such thing as an ‘illegal’ adoption.

A person is either adopted or they are not. This latest terrible revelation must be the final straw in the denial and subordination of the rights of children and adults who were adopted in and from Ireland.

Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission