The Government’s controversial legislation to grant adopted people basic information and tracing rights breaches international human rights law and appears to “ignore EU law entirely”.
That’s according to a range of legal experts who have joined adoption rights campaigners, representatives of natural mothers, and the Irish Council for Civil Liberties in claiming that the long-awaited legislation is not fit for purpose.
Despite campaigners labelling it “deeply discriminatory”, Children’s Minister Katherine Zappone has defended recent amendments to the Adoption (Information and Tracing) Bill as striking the correct balance between the right to privacy and the right to identity. She said she is hopeful the bill will pass all stages of the Oireachtas before the summer recess.
The principal amendment will introduce a system whereby Tusla will attempt to locate and contact both natural parents as soon as an adopted person requests access to their own early life and adoption files.
Where the natural parent does not consent to the release of the information, both parties will make their case before the Adoption Authority of Ireland (AAI).
However, solicitor Fred Logue of FP Logue, a specialist in information law, said the proposed amendments to the bill are “extremely concerning and appear to ignore EU law entirely”.
“I don’t think the proposed amendments create a regime that is compatible with data protection law,” he said.
“Adoptees have a fundamental EU-law right of access to their personal data. Any request for access must be answered within a month by Tusla as data controller. There are parallel administrative and judicial remedies via the data protection commission and the courts for those who are dissatisfied with the response.”
He said the legislation “seems to ignore the legal position that a public authority cannot blindly follow national law that conflicts with EU law and actually has to disapply those conflicting laws giving full effect to EU law”.
“So whatever way a request is made, it must be handled as a subject access request which renders this overly-complex new regime redundant and unlawful.”
He added that, in his view, it is not legally possible for the AAI to act as a decision maker in respect of access requests since this would encroach on the responsibilities of the data controller and on the jurisdiction of the Data Protection Commission and the courts to handle complaints concerning access to personal data.
The Collaborative Forum on Mother and Baby Homes, which comprises adopted people and natural parents, called for the bill to be scrapped in its report. To date, the Government has refused to publish the report in full. The report — which the Irish Examiner has obtained — labels plans to transfer information and tracing responsibility solely to Tusla as “astonishing” and “a measure of unbelievable crassness and insensitivity”.
“Without exception, all representative groups, sampled by our sub-committee have called for the immediate removal of Tusla from their involvement in providing information services,” the report says.
“The levels of anger, frustration and discontent with Tusla amongst service users have escalated to record numbers.”
Lecturer in human rights law at the Irish Centre for Human Rights in NUIG, Maeve O’Rourke, said the planned legislation is “out of step” with other European jurisdictions, including Northern Ireland and Britain, where adopted people receive their full information at adulthood”.
She said that what happened in Ireland’s historic adoption system amounts to, in many instances, enforced disappearance as defined under European and international human rights law: “People who were forcibly separated from family members have an immediate right to all information regarding those separations.”