Legislative Proposals - Adoption Rights Alliance

131 Pages·2011·3.26 MB·English

by  Adoption Rights Alliance

Adoption Rights Alliance
Adoption Legislation Proposals

Submitted to
Minister for Children, Frances Fitzgerald
th
11 August 2011

“In all of us there is a hunger, marrow-deep, to know our heritage — to know who we are and where we have
come from. Without this enriching knowledge, there is a hollow yearning . . . and the most disquieting
loneliness.”
Alex Haley, Author of Roots

Compiled by:
Claire McGettrick, Susan Lohan & Mari Steed
Adoption Rights Alliance
The Mill House
Millview Road
Malahide
Co. Dublin

Tel: [phone] / [phone] / [phone]
[email protected]
www.adoptionrightsalliance.com

© Adoption Rights Alliance 2011
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Table of Contents

1. Executive summary

1.1 Background to Adoption Rights Alliance

1.1.1 Description
1.1.2 Goals
1.1.3 Services
1.1.4 Structure
1.1.5 Funding

1.2 Long term consequences of adoption

1.3 Understanding prejudice against adopted people
1.3.1 Adopted People as Disruptive Forces
1.3.2 Expectation to be grateful
1.3.3 The myth of “turning up on the doorstep”
1.3.4 Infantilisation of adopted people
1.3.5 Anger versus righteous anger
1.3.6 Feeling under scrutiny
1.3.7 Social workers as advocates for both sides
1.3.8 Academic research
1.3.9 Legislation

1.4 Understanding discrimination against adopted people
1.4.1 Two-tiered approach to family history, heritage and Irishness
1.4.2 International Best Practice
1.4.3 Grounds for discrimination

1.5 Owning up to our past
1.5.1 Illegal Adoptions
1.5.2 Ireland’s forgotten diaspora - Irish adopted people in other countries
1.5.2(a) America
1.5.2(b) England
1.5.3 Ireland’s “internal diaspora”
1.5.4 Vaccine Trials
1.5.5 Treatment of women and girls in Mother and Baby Homes
1.5.6 Non-registration of births
1.5.7 Ireland as world leader

2. Legislation

2.1 Background to legislation
2.2 Adoption Information and Tracing Bill, 2001
2.3 Adoption Legislation Consultation 2003
2.2 The “complexity” of legislating for adoption information
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3. Matters to consider in drafting legislation

3.1 IHRC Assessment of the Magdalen Laundries
3.2 Advice of the Ombudsman for Children on the Adoption Bill 2009
3.3 I O’T v B Supreme Court judgement
3.3.1 The effect of the I O’T v B Ruling on adopted people seeking information
3.3.2 Hiding behind the I O’T v B judgement
3.3.3 Criticism of the IOT v B Judgement

3.4 Gaskin v UK
3.5 Mikulic v Croatia
3.6 Odièvre v France
3.7 Alleged Guarantee of Confidentiality to Natural Mothers
3.8 Other legal mechanisms/conventions cited in this document
3.9 Children’s Rights Amendment
3.10 Alleged link between openness in adoption and increased abortion levels

4. National Adoption Contact Preference Register (NACPR)

5. Adoption Act 2010

6. Elements for inclusion in legislation

6.1 Statutory based information & tracing services
6.2 Access to Birth Certificates
6.3 Access to Information
6.4 Access to adoption files
6.5 AAI operations
6.5.1 Lack of complaints mechanism
6.5.2 Reform of the AAI
6.5.3 Code of practice
6.5.4 AAI Annual Report
6.5.5 Website and news updates
6.5.6 AAI safeguarding files and information
6.5.7 AAI as regulator
6.5.8 Stakeholder advisory groups

6.6 Accredited bodies (previously adoption agencies)
6.6.1 Lack of regulation
6.6.2 Lack of inspection
6.6.3 Interpreting legislation and judgements
6.6.4 Registration of accredited bodies
6.6.5 Church run accredited bodies

6.7 Safeguarding of files
6.7.1 Closed adoption agencies
6.7.2 Non-accredited agencies
6.7.3 Location of files
6.7.4 Private nursing homes/private adoptions
6.7.5 Church records
6.7.6 Files in custody of the HSE

6.8 The right to know you are adopted
6.9 Open Adoptions
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6.10 Stricter regulations for intercountry adoptions & the abolition/prohibition of bilateral
agreements
6.10.1 Adoptions from the US
6.10.2 Bilateral agreements
6.10.2 Vietnam
6.10.3 Principles of the Hague Convention
6.10.4 Alternatives to adoption
6.10.5 Register of Foreign Adoptions
6.10.6 Learning from the past

6.11 Removal of statutory right to adoption assessment
6.12 Guardian ad Litem
6.13 Adopted children in care/follow ups
6.14 Assisted Human Reproduction

7. Financial Considerations
7.1 Social workers
8.1.1 Redeployment of social workers
8.1.2 Social workers attempting to counsel adopted people
8.1.3 Social workers conducting traces
8.1.4 Openness and transparency is cost efficient

7.2 National Counselling Service
7.3 Access to online GRO records

8. Summary of Recommendations

9. List of Appendices
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1. Executive summary
Adoption Rights Alliance is submitting this document to the Minister for Children, Frances Fitzgerald as a set
of proposals for adoption information legislation. To begin we will outline the background of our
organisation as well as a summary of the issues commonly faced by adopted people. We also wish to offer
some insight and background into the experience of closed, secret, forced adoptions in Ireland.

We present these issues against the background of the ongoing revelations about how our country has
treated its most vulnerable citizens historically and we contend that Ireland’s practice of closed, secret,
forced adoptions and the exiling of at least 2,000 of our citizens for adoption forms part of that history.

We offer a short background into adoption information legislation from the perspective of the community
most affected by the lack of statutory rights. We also outline a number of matters that should be taken into
consideration in the context of adoption information legislation, including some important milestones, not
least the Irish Human Rights Commission Assessment of the Magdalene Laundries.

As the people most affected by adoption, we lay out the most important aspects which are essential for
inclusion in the legislation, based on the views of the hundreds of adopted people we have delivered
services to over the years. We include the testimonies of some of those people in the Appendices.

Those of us adopted under the 1952 legislation had no advocate to speak up for our rights and it is in the
context of understanding the impact of being voiceless in proceedings that have lifelong effects that we
express our concerns for the welfare of children being adopted into Ireland from overseas as well as children
conceived via assisted human reproduction.

The irony of the Minister’s comments on children, made in July 2011, has not been lost on us:
“the voice of all children must be heard, and the voice of those who are most vulnerable must be heard in
particular........ adds to a picture of children in Ireland being forgotten by the State, its agencies and the
organisations that operate within its boundaries to truly put the protection and welfare of children at the
heart of their operations, to truly put Children First.”

We submit that this government has an opportunity, an obligation even to become a world leader not only
in child protection but in the act of owning up to its past and putting right the wrongs that have been
committed. This Fine Gael and Labour government cannot ever claim not to have known the extent of the
damage and hurt experienced by adopted people in being denied their origins as both parties championed
the cause of openness and equality for adopted people during their 14 years in opposition. Ignorance will
not be an acceptable excuse for inaction and we sincerely hope that this government will have the courage
and integrity to deliver legislation required for almost 60 years.

Finally, we understand that our country is in the midst of a financial crisis and we offer some suggestions
that will not only assist in the cost effective delivery of adoption information services, but which might have
additional benefits of generating revenue and providing employment opportunities.

If there are issues raised in this document that require further clarification, we are happy to discuss any
aspect of our proposals.
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1.1 Background to Adoption Rights Alliance

1.1.1 Description
Adoption Rights Alliance is a not-for-profit, completely volunteer-run advocacy organisation which
campaigns for the enshrinement of the rights of the adopted child and Ireland's 50,000+1 adopted adults in
legislation. The organisation was set up in 2009 by Susan Lohan and Claire McGettrick (also of Justice for
Magdalenes2), both adopted people who have been involved in adoption reform for the past ten years.
1.1.2 Goals
The main goal of Adoption Rights Alliance is to achieve equality and rights for adopted people in legislation.
Our complete Mission Statement3 and Aims and Objectives4 are available on our website.
1.1.3 Services
In the absence of adoption information legislation, Adoption Rights Alliance provides practical advice5 and
advocacy6 to those affected by Ireland’s closed, secret adoption system. Most of our services are internet
based through our website, an extremely active Facebook group and Yahoo list. We run a telephone
helpline which is operated on a peer to peer information basis. We have also recently launched an Outreach
Service on a pilot basis in conjunction with Kells People’s Resource Centre7 in Co. Meath.
1.1.4 Structure
Adoption Rights Alliance has a small group of coordinators in Ireland, as well as a coordinator in the US. We
have internet based service users in Ireland, the UK, Australia and the US as well as various countries in
continental Europe, most of whom were adopted in or from Ireland.
1.1.5 Funding
Adoption Rights Alliance does not receive funding from the Irish State. We do not currently operate a bank
account, however we are in the process of opening one in order to manage donations.
1.2 Long term consequences of adoption
It is a widely accepted premise that adoption has long term effects and consequences, particularly for
adopted people. It is not a point of sale transaction; it is a life changing event with generation wide
consequences. Many of the people who use Adoption Rights Alliance services are the adult children and
grandchildren or other relatives of adopted people who seek to connect with their natural families. The life
long consequences of adoption cannot be underestimated and while these consequences may not have
been fully understood at the time, the Irish State now has an opportunity to address the wrongs that were
committed in the past. We also need to learn from the past in adoptions that are being arranged in the
present day, bearing in mind that adoption is a long term solution to problems that are usually temporary
and solvable.

Supporting documentation:

1 There are an estimated 50,000 adopted people in (or adopted from) Ireland, taking into account domestic adoptions, intercountry
adoptions and the 2,000+ sent to America for adoption - it also (conservatively) allows for the unknown number of illegal adoptions
that took place. Adoption Authority statistics: http://www.aai.gov.ie/index.php/publications.html
2 http://www.magdalenelaundries.com
3 http://www.adoptionrightsalliance.com/missionstatement.htm
4 http://www.adoptionrightsalliance.com/aimsobjectives.htm
5 http://www.adoptionrightsalliance.com/searchandreunion.htm
6 http://www.adoptionrightsalliance.com/complaints.htm
7 http://www.kellsresourcecentre.ie/
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Advice of the Ombudsman for Children on the Adoption Bill 20098:

Section 1.7
The adoption process affects children and families well before and long after the final adoption order
is made. Our legislation must be strong and subtle enough to ensure that the rights of children are
fully respected at every stage of that process, that adequate support is given to children and their
families, and that the Adoption Authority and the courts have sufficiently nuanced tools at their
disposal to ensure the best outcomes for children and their families.

1.3 Understanding prejudice against adopted people
Though it is not widely recognised or reported, adopted people experience a significant level of prejudice,
both on a systemic basis in their daily interactions with State institutions and in a wider context as a
community of people. This prejudice takes many forms and is rarely acknowledged.

1.3.1 Adopted People as Disruptive Forces
The most common form of prejudice is the tendency to of social workers and unqualified agency staff to
predict negative outcomes in the area of reunions e.g. that the natural mother will not want contact in the
first place, that any attempt to make contact will be regarded as highly disruptive in her life. Similarly,
discussions surrounding information legislation are peppered with assumptions that most natural mothers
don’t want contact and adopted people are somehow intruding on their lives. This attitude was exemplified
in former Minister for Children, Mary Hanafin’s 2001 draft bill9 on “Adoption Information and Tracing”,
which proposed a new crime – applicable only to adopted people – that of contacting their natural parents
without their express prior permission.

When agency staff speculate about natural mothers’ circumstances, adopted people are often told “she may
have moved on and had a family” rather than “you may have siblings to look forward to meeting”. A
negative slant is frequently placed on outcomes that would otherwise be viewed as positive in any other
area of society.

1.3.2 Expectation to be grateful
Conversely, adopted people are often criticised when they express criticisms towards the effects of closed,
forced, secret adoption, with support groups sometimes viewed as “bitter” or “negative”. In an effort to
smooth over the cracks of closed, forced, secret adoption, an undue emphasis is put on how successful an
adoption is perceived to be, how lucky the adopted person is to have such lovely adoptive parents, etc.
Irrespective of how wonderful any set of adoptive parents is, adopted people experience a profound loss
when separated from their natural mothers and that loss is further compounded by denying them
permission to express this loss and to question the reasons for it (i.e. the temporary circumstances that had
life-long effects).

1.3.3 The myth of “turning up on the doorstep”
Adopted people are often left with the impression that social workers and unqualified agency staff are
preoccupied with the notion of adopted people “turning up on their natural mother’s doorstep”, despite
there being no evidence to support this. In some cases, this bias reaches almost hysterical proportions, e.g.
in a recent case, an adopted person seeking the release of her file, reported to Adoption Rights Alliance that
her Dublin based social worker predicted that if she got her file “you'd run straight to where your mother
lives”. At this point in her trace, the adopted person hadn’t actually considered reunion, she was merely
seeking information.

1.3.4 Infantilisation of adopted people
Adopted people are forever infantilised because, no matter what age they are, they are registered on the
“Adopted Children’s Register”. And, with the greatest of respect to Minister Fitzgerald, adult adopted

8 http://www.oco.ie/assets/files/publications/advice_to_government/Updated%20advice/Adviceonadoption.pdf
9 http://www.dohc.ie/press/releases/2001/20010524.html
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people are currently under the jurisdiction of the Department of Children. This infantilising is also promoted
and practised by the Adoption Authority, the so-called national centre of excellence on adoption. In a draft
publication sent to our predecessor organisation, the then Adoption Board referred to adopted people’s
searches as being an opportunity to “take or regain control over their lives”. 10 More worryingly, in exchange
for the release of birth certificates, the Adoption Board operated a practice of forcing adopted people to
sign affidavits11, promising not to contact their natural parents when they had no legal authority to do so,
ironically repeating the bullying and coercive tactics of agencies involved in forced adoptions. The practice
was discontinued after a successful campaign by our previous organisation.

Though it is rarely expressed in so many words, there is an underlying preconception that natural mothers
need to be protected from adopted people (and sometimes, vice versa) and an unfounded notion that there
is a lack of control amongst adopted people and that they need to be somehow “regulated", a view
expressed by Barry Andrews while he was Minister for Children.12

1.3.5 Anger versus righteous anger
Another common misperception is that adopted people are angry and over emotional. There is a difference
between anger and righteous anger at an injustice that is being experienced. The vast majority of adopted
people we have assisted over the years are happy and successful in their ordinary everyday lives. It is the
fact that they are treated as “less than” by the lack of legislation that causes them to speak up in righteous
anger. Being vocal about an injustice should be applauded and not discouraged, yet Irish adopted people
are often made to feel that this is unhealthy and ultimately, unhelpful.

1.3.6 Feeling under scrutiny
Adopted people commonly say that they feel as if they are under scrutiny in meetings with social workers
and that proceedings can take on an “inquisitorial air"13. Instead of feeling that the social worker is an
objective professional advocating for them, adopted people frequently report that they are afraid to show
any kind of emotional weakness, for fear of jeopardising their position. One adopted person recently
reported to us that her Health Service Executive (HSE) social worker asked her if she was prone to
depression. The adopted person said she was not, at which point the social worker said: “Oh. Well, I’ve
found your natural mother”. We wonder what the social worker would have said if the adopted person was
prone to depression. In the eyes of the HSE is an adopted person prone to depression considered any less
worthy of reunion?

1.3.7 Social workers as advocates for both sides
Some Irish social workers have also realised that unlike other confidential professional relationships an
adopted person might have e.g. with a doctor, solicitor or accountant, with regard to social workers or
unqualified agency staff (most of whom have a vested interest in keeping agency files secret), they are asked
to accept the illogical line that the one person will advocate fairly and equally for both sides14. Despite
concerns being raised over these potential clashes, little or no changes have been made in the way that
requests for information or reunions are handled in practice. Complaints regarding malpractice are next to
impossible to make given the near complete failure of the AAI or the HSE to conduct any monitoring of
agencies’ performances coupled with the absence of published service standards15 and the real fear on the
part of adopted people that their cases will be jeopardised if they complain.

10 “Self-search can be a growth process for adult adopted persons, and can provide an opportunity for them to take or regain control
of their lives.” Source: Draft version of “Protocols and Guidance for The Provision of Information and Tracing Services By HSE
Adoption Services / Registered Adoption Agencies”, Adoption Board, 2005.
11 See Appendix 12 for example of affidavit.
12 “No matter how great the desire to meet a birth parent, unregulated contact can give rise to real disappointment and in some
cases distress”. Barry Andrews Irish Examiner 23rd April 2010
13 “Search & Reunion in the Adoption Triangle” by Eileen Farrelly Conway TCD 1993 identifies this tendency of social workers to bring
their own and their agency’s narrow value systems to such meetings.
14Search & Reunion in Adoption Triangle – Eileen Farrelly Conway, TCD 1993
15The practice guidelines in the comprehensive document “Standardised Framework for the Provision of a National Information and
Tracing Service” finally published by the Adoption Board in 2007 in conjunction with an Advisory Group of stakeholders (adopted
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1.3.8 Academic research
We are disappointed and surprised that the experience of the 50,000+ people who have endured closed,
secret and mainly forced adoption domestically and the 2000+ trafficked abroad have scarcely been
researched at all by Irish academia. Some recent research has also ignored the forced aspects of the first
four decades of Irish adoptions by focusing on the numerically small group of people adopted in the last two
decades.

1.3.9 Legislation
The prejudices we have outlined feed into the legislative process (or lack thereof) and having been active in
the area of adoption reform during the entire period of Fianna Fáil’s recent tenure in government, we can
wholeheartedly identify with the “mental reservation” phenomenon cited in the Murphy Report.

It goes without saying that prejudice should have no place in legislation. However, since 1952 adopted
people have been expected to bow to the perceived needs of others, inevitably to their own detriment.
Those who choose to search are forced to carry the secrets of others and bear the full weight of the stigma
associated with their adoption.

In drafting adoption information legislation there is an opportunity to truly balance the scale of rights;
however preconceptions must be set aside in order to produce an Adoption Act that adopted people
deserve.

1.4 Understanding discrimination against adopted people

1.4.1 Two-tiered approach to family history, heritage and Irishness
In recent years family research has become not only a popular hobby, but Irish people have discovered their
burning desire to learn about their family’s history and heritage. This is a worldwide trend, recognised by
the Irish State, which has ensured that its diaspora have unfettered access to their history and heritage
through free online access to the 1901 and 1911 Censuses. Meanwhile RTÉ’s “Who Do You Think You Are?”
programme takes Irish celebrities on a journey of discovery of their family’s past. The current government
has even recently announced plans to furnish Ireland’s diaspora with “Certificates of Irishness”16.

In stark contrast, adopted people are denied the right to know their families of origin, their own original
name, their natural mother’s name, their place of birth, the circumstances which led to their adoption, their
early care and medical treatment. Genealogy enthusiasts are not questioned for contacting long lost
relatives, while adopted people are warned that they may be disturbing people by intruding.

This two-tier system is a slap in the face to Irish adopted people, making them feel hugely discriminated
against. This sense of discrimination was further reinforced in May 2011, when US President Barack Obama
was welcomed home to Ireland. Our service users reported a deep sense of feeling let down by the Irish
state. While most of the country was celebrating its Irishness, welcoming home one of its most famous sons,
adopted people felt left out in the cold, as if their need to know who they are didn’t matter. We offer some
excerpts from the speeches on the day as a reminder:

Excerpts from the speech given by the Taoiseach, Enda Kenny in Dublin on May 23rd 2011

“When Falmouth Kearney started out on the long Atlantic crossing he might have dreamed, but
hardly imagined, that one day his great-great-great grandson would return as the President of the
United States.

people, natural parents etc) were never implemented and it disappeared without explanation from the Adoption Board Website in
2009
16 http://www.thejournal.ie/confirmed-diaspora-will-get-proof-of-irishness-certificate-176706-Jul2011/
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That boy said goodbye to a ravaged island. Millions had died or were leaving. Packing their hopes
and dreams in beside the remnants of a life. Stepping onto ships, which for some, was like stepping
into space.
Every one of them and all their people are our people. Ár muintir féin. Their past is our past. Their
story is our story.
This evening, my call is directly to those 40-million Irish-Americans. Whether you're listening or
watching in New York or New Haven or in San Diego or St Louis. Whether you're Irish by blood or by
marriage or by desire. We your Irish family are right here to welcome you. To follow your President
home.”
An Taoiseach went on to say:
“Today, with President Obama we draw another circle.
One in which we tell the world of our unique, untouchable wealth. Wealth that can never be
accumulated in banks or measured by the markets or traded on the stock exchange. Because it
remains intact and alive deep inside our people. In the heart-stopping beauty of our country. In the
transforming currency of the Irish heart, imagination and soul.
This is our Uaisleacht. It has sustained us over the centuries. We pass from mother to daughter,
father to son. In our dreams and imagining. In our love for our country, our pride in who we are. Long
into what must be and will be a brighter and more prosperous future.”
Excerpt from the speech given by President Barack Obama in Dublin on May 23rd 2011

“Earlier today, Michelle and I visited Moneygall, where we saw my ancestral home and dropped by
the local pub. We received a very warm welcome from all the people there, including my long lost
eighth cousin Henry. Henry now is affectionately known as Henry the Eighth.

It was remarkable to see this small town where a young shoemaker named Fulmouth Kearney – my
great-great-great-grandfather.

I was shown the records from the parish, the recording of his birth and we saw the home where he
lived.
He left during the Great Hunger, as so many Irish did, to seek a new life in the new world. He
travelled by ship to New York, where he entered himself into the records as a lay-boy.

He married an American girl from Ohio. They settled in the mid-west and started a family. It is a
familiar story – because it is one lived and cherished by Americans of all backgrounds. It is integral to
our national identity, it is who we are – a nation of immigrants from all around the world.

But standing there in Moneygall, I couldn’t help but think how heartbreaking it must have been for
that great-great-great-grandfather of mine, and so many others to depart, to watch Donegal coasts
and Dingle cliffs recede. To leave behind all they knew in the hopes that something better lay over
the horizon.

When people like Fulmouth boarded those ships they often did so with no family, no friends, no
money, nothing to sustain them but faith. Faith in the All Mighty, faith in the idea of America, faith
that it was a place you could be prosperous, you could be free, you could think and talk and worship
as you place, a place where you could make it if you tried.