'No need for referendum to allow survivors to access birth certs'

'No need for referendum to allow survivors to access birth certs'

Under the law currently, adopted people are not entitled to their birth certificates or family information, a stance that has been roundly criticised by survivors, their advocates, and many in politics. Picture: Larry Cummins

Legal experts have disagreed with the findings of the Mother and Baby Home Report that a referendum would be required in order for survivors to access their birth certificates.

Under the law currently, adopted people are not entitled to their birth certificates or family information, a stance that has been roundly criticised by survivors, their advocates, and many in politics.

The Commission of Investigation recommended a referendum to remedy the issue, based on legal advice given to the then children's minister, Katherine Zappone. 

It is understood former attorney general Seamus Woulfe argued that broad access to this information would be unconstitutional based on a Supreme Court ruling around the same issues in 1998, which stated that the privacy rights of the mother superseded that of the child. 

He insisted on a case-by-case approach, which many say will prove lengthy and difficult to oversee, while many say the rights of adopted people in this particular context must take priority. Mr Woulfe's advice remains unpublished.

One senior legal source said the advice is incorrect and "grasps one part of the case and ignores other parts."

"There is room for disagreement in law, but that advice was just wrong."

Critics say the weight of law and legal opinion is on the side of the rights of the individual to know their identity.

However, many legal experts and, it appears, the current minister Roderic O'Gorman, rejected this assertion and say new legislation passed in the Oireachtas can remedy any outstanding obstacles to survivors accessing their information.

David Kenny, an assistant professor of law at Trinity College Dublin, says a constitutional referendum is unnecessary.

"I don't think you need a referendum at all, from an Irish or European law basis," he said.

"It's totally doable, Katherine Zappone tried to do it in 2019, but it seems they're going to have to go around the attorney general's office, if it's the case that [current attorney general] Paul Gallagher has the same view as Mr Woulfe, and could say there is existing legal advice that could scupper it.

"I don't' think a constitutional referendum is necessary at all.

"It would be difficult to phrase the question, and which words to insert and there is nothing in the judgments in Irish courts that there is a clear constitutional objection to unfettered access to records, if the Oireachtas decided that was right, they can do that.

"If there were any concern, when and if a law like this is passed and there was a constitutional concern, it can be referred to the Supreme Court before it comes into the courts, given so much disagreement about this.

"A lot of people disagree with the attorney general's advice so it would be worth having it decided on before we implement it."

Mother and baby home survivors said on Wednesday that the State's apology is hard to accept without access to their personal records.

Mr O'Gorman cannot say when the survivors of mother and baby homes will be given access to their personal information.

He said it is "essential" that legislation is brought forward on tracing, however, confirmed that scrutiny on new laws will only begin on this towards the end of the year.

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