Legal ramifications abound as information drips out on adoption scandal

The State needs to act quickly to establish an investigation and redress scheme for those affected by the illegal adoptions scandal, writes Rossa McMahon

Legal ramifications abound as information drips out on adoption scandal

The State needs to act quickly to establish an investigation and redress scheme for those affected by the illegal adoptions scandal, writes Rossa McMahon

IT IS difficult to comprehend the crises of family and identity facing some in the coming months as they are contacted by social workers to be told that the parents listed on their birth certificates were not their biological parents.

Given the age profile of the people involved, quite a number of their parents, biological and those named on their birth certificates, will already be dead.

The information they are about to receive from Tusla risks tearing their family lives apart for a second time.

Taoiseach Leo Varadkar has said it is too early to talk about a redress scheme, but he and a number of his cabinet colleagues have admitted that information about these cases is not new and has been known to the Government for years.

He says the sense he has from the people affected is that they are looking for information, not money. This is a convenient attitude for the Government to take, but the reality is that there is little that can be done to offer any form of redress to the people affected other than compensation, not least because of the complex legal issues raised and the fact that seeking to address these issues in traditional court proceedings will be fraught with difficulty.

Even the phrase “illegal adoptions” is not straightforward. Tusla refers to these cases as “incorrect registrations” while the Adoption Authority refers to “historical child placements”.

Understandably, some will be unhappy with the phrase as it may imply illegality on the part of parents who went on to raise the children involved but the Adoption Rights Alliance insists that these cases be recognised as “illegal adoptions” by the State authorities to ensure they are not taken outside the scope of all adoption law, including forthcoming information and tracing rights.

It is correct to say, however, that all but two of these cases never involved an adoption order, which has profound and serious legal consequences.

Once an adoption order is made, a child stops being the child of his or her biological parents, whose rights and responsibilities are extinguished, and becomes the child of the adoptive parents, with equal legal status to a biological child.

One of the first court cases under the 1965 law, which allowed children to challenge a parent’s will, was taken by an adopted only child against his adoptive father’s estate.

When an adoption order is made, the adopted child can make no claim against the estate of his or her biological parents on their death.

A biological parent can leave a gift or share of their estate to a child given up for adoption, and for tax purposes they are treated as parent and child, but that child cannot, for example, challenge the will of the biological parent.

The mirror consequence of the order is that the adoptive parents take the place of the biological in terms of inheritance.

If there was no order, the parents were never adoptive parents and never, in law, parents. For taxation purposes, these cases should benefit from foster child relief, available even if no foster placement order was made once the child lived with the adult involved for at least five years before they reached the age of 18 and was provided with care at the expense of the adult.

Significant difficulties could arise, for example, where an affected person learns of their birth status and the parents who raised them died or subsequently die without making a will, or leaving them nothing.

While a biological or legally adopted child is entitled to a share of the estate if there is no will, or has a right to seek provision from the estate if there was, the illegally adopted child has no such share and no such right.

On the other hand, because no adoption order was made, the people involved remain children of their biological parents and if those parents died without making a will, they were entitled to a share of the estate.

The reality, given the time periods involved, is that it is probably too late for such children to take estate actions for these claims for parents already dead and the practical issues and costs involved raise a significant barrier for most.

There will be other legal consequences and issues flowing from these cases. Tusla says it will give affected people the information they hold about them but that the amount of information shared will be decided on a case-by-case basis on principles of best practice.

It is not clear what best practice is involved or what legal basis exists for limiting the provision of information to the parties affected. Because they were never adopted, the limitations on information sharing that apply to adoption cases do not arise.

Social workers will deal with these cases but it is not clear that the information obtained from St Patrick’s Guild is social work data for data protection purposes and it might not be exempt from the disclosure requirements of the GDPR if sought by the parties.

Finance Minister Paschal Donohoe, speaking on Morning Ireland on Wednesday, accepted that these incorrect registrations were a failure by the State and that it falls to the Government to respond to it.

Compensation and estate claims may be the last thing on the minds of the people affected by this scandal and the Taoiseach is right to say that they will primarily be looking for information about their identities.

However, very real upset and trauma has been caused and will be caused by this and the State needs to act quickly to establish an investigation and redress scheme for those affected.

According to the Adoption Rights Alliance, the 126 cases identified by Tusla are a fraction of the likely total of cases and they rightly urge that the Government response provides truth, justice, and reparation.

Rossa McMahon is with PG McMahon Solicitors

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