Government continues 'culture of secrecy' against women hurt by Church and State 

Delays and obstacles manufactured by the Government and State bodies in granting access to records are nothing new. 

On April 13, the Irish Examiner reported that the Department of Children has been delayed in providing access to the records and testimony compiled by the Mother and Baby Homes Commission.

Delays and obstacles manufactured by the Government and State bodies in granting access to records are nothing new. 

For decades the State has denied adopted people and others impacted by so-called ‘historical’ abuse their right to identity by denying them access to birth certificates and records relating to their time in institutions.

This Government’s refusal to properly facilitate full access to the records of the Mother and Baby Homes Commission perpetuates the wrongs of previous Governments by continuing a culture of secrecy, shame, and discrimination against those who have suffered so much indignity at the hands of the Church and State. 

The current Government’s inaction to vindicate the rights of those impacted by mother and baby homes is prefaced by a general disregard for women since the formation of the Irish State.

The Government has said it will bring forward legislation that will grant access to records for those impacted by mother and baby homes, and adopted people in general. 

However, as has been argued elsewhere, EU law already requires the disclosure of personal data upon request.

The right to access your personal data is guaranteed by Article 8 of the Charter of Fundamental Rights of the EU (CFEU) and is expanded on in the General Data Protection Regulation (GDPR).

Blanket bans on access are not compatible with EU law, which takes precedence over any domestic legislation. 

Yet, the Government stood by as the Mother and Baby Homes Commission refused to provide any access to personal records during its five-year investigation.

State agencies still refuse — on a blanket basis — to tell adopted people their name at birth although this information is on the public record in the General Register Office.

The GDPR states that the right of personal data access "shall not adversely affect the rights and freedoms of others". 

However, data controllers cannot simply assume that any person or any group of people seeking to access their own records poses a risk to the rights and freedoms of others. 

It is also necessary to acknowledge that all births in Ireland have been required to be publicly registered since the mid-19th century, meaning that one’s identity at birth or as a mother was never legally confidential. 

The Court of Justice of the European Union has also clarified that a person can share personal data with another person. 

This is commonly referred to as ‘mixed’ personal data and each person to whom it relates has the right of access to it under the GDPR.

The right to identity is also protected by international human rights law. 

Both the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights place obligations on states to register the birth of every child correctly and to preserve or re-establish the identity of those who have been illegally deprived of it. 

Ireland has ratified both of these conventions, yet recently we have learned of an estimated 20,000 illegal adoptions which not only violate international human rights law but were also illegal under Irish legislation at the time, as per the Adoption Act 1952.

There have been significant efforts by governments, past and present, to silence those impacted by institutional abuse. 

To name but a few: the Residential Institutions Redress Act 2002 made it a criminal offence to disclose information provided to the Board; the Freedom of Information Acts exempt adoption files from FOI requests despite the Act providing for accessing personal records; and in October last year this Government attempted to seal the archives of the Commission for 30 years, claiming this was necessary to comply with the Commission of Investigations Act 2004. 

This was compounded by the Commission’s deletion of 550 oral testimony recordings, miraculously recovered only under enormous public pressure and which still have not been provided to individuals by the Department.

While the establishment of the Commission of Investigation was undoubtedly welcome, its execution, ultimate findings and lack of due regard for evidence given by survivors all highlight the same old approach by the State to women: one that silences, disbelieves, and is reductive and tone-deaf. 

These women and men gave evidence to the Commission which charted the State-backed abuse they suffered. 

Their courage and fortitude to open old wounds were betrayed by the Commission and the Government through their approach to survivors and their families.

This Government has an opportunity as it enters a new decade of commemoration. 

It can commemorate those it has sought to wipe from history by opening the archives, actively and proactively supporting and facilitating survivors and adopted people to gain access to their personal records, swiftly establishing redress schemes free from silencing measures, and advancing methods to respectfully tell the truth of these abusive systems. 

This Government, and the Minister for Children particularly, should recognise that those historical wrongs are not their fault, but it is their responsibility to right the past wrongs of the State.

To help those affected to vindicate their right to access their personal data, we have created ‘My Data Rights: A Guide to accessing records using the GDPR and Freedom of Information requests for people affected by the Mother and Baby Homes and adoption’. 

We encourage wide use of this guide. 

It can be used to request records from the Department of Children and other agencies holding Mother and Baby Homes and related personal records. 

We call on the Government to respect its EU and international human rights law obligations in response.

:: James Conroy, Andrea Quinlan, and Annmarie Townsend are LLM Candidates at the Irish Centre for Human Rights, NUI Galway. Loughlin O’Nolan is a Director of Article 8 Advocacy.