Viewing Adoption Through A Children's Rights Lens: Looking To The Future Of Adoption Law And Practice In Ireland. Dr. Aisling Parkes and Dr. Simone McCaughren

Outline of Presentation Brief Outline of Recent Developments in Adoption Law in Ireland Focus on Two Main Areas in need of reform Identity, Information and Tracing Open Adoption

Adoption Act 2010 Consolidated existing adoption legislation into one Act Formally established the Adoption Authority of Ireland Incorporated the Hague Convention on Intercountry Adoption into Irish Law

Constitutional Amendment on Children’s Rights – Nov. 2012 Article 42 A and Adoption (Amendment) Bill 2012 Children born to married parents who have been in long term foster care for a period of time would be eligible for adoption after a specific period of time Married parents for the first time could voluntarily place their child for adoption Explicit recognition of children rights-the to be heard and best interests paramount in adoption proceedings

Two further areas of adoption in need of legal reform in Ireland in line with children’s rights law Information, Identity and Tracing Open Adoption

Adoption Process Birth Parents Adoption Agencies Child Adoptive Parents

Aims of Adoption Provide the child with a good home and a good upbringing. A child-protection mechanism Second chance at having a family

Consequences of Closed Adoption system Relationship between birth parents and the child terminated Parental rights and duties transferred to the adoptive parents

The Child’s Right to Identity  Article 8(1) of the UN Convention on the Rights of the Child (to which Ireland is a party) provides: States parties undertake to respect the right of the child to preserve his or her identity, including nationality, name, and family relations as recognized by law without unlawful interference.

Law Society’s Law Reform Committee - 2000 Highlighted that the lack of legislative provision for birth and adoption information was probably the greatest single deficiency in Irish Adoption Law. Adoption Law has been reformed but this area remains untouched Internationally the trend has been towards facilitating more open adoption practice

Irish Case Law – adults v. children’s rights I O’T v. B - an adopted person enjoys an unenumerated constitutional right to know the identity of his or her natural mother under Article 40.3, this must be balanced with the mother’s right to privacy. South Western Health Board v. Information Commissioner 2005 - High Court upheld an objection of the natural mother to the release of edited and non-identifying information to an adopted person who had been adopted 40 years previous.

Current position Currently in Ireland there is no legislation governing tracing and information. There is no statutory right of access to original birth certificates at 18 unlike in the UK Under section 86 of the 2010 Act, no information from the index connecting adopted children with their birth records shall be given to anyone except by order of the Court or the Adoption Authority and the latter must be satisfied that it is in the best interest of the child to do so.

The Adoption Authority has established Tracing Unit National Contact Preference Register (2005) Participation is voluntary Both parties must register. People can choose level of contact: telephone, e-mail and face-to-face contact, as well as the exchange of letters and information. The Adoption Authority maintains the register and it is not open to public scrutiny The Adoption Authority of Ireland presented the first Framework for the Provision of a National Adoption Information and Tracing Service in 2007.

Comparative Approaches Scotland-1930, adoptees entitled to access their original birth records once they are 17 years of age. Britain -1975 -adopted persons entitled to obtain their original birth certificates from the age of 18 years Safeguards to protect both adopted persons and birth parents Counselling Ontario, identifying information available to the adopted person and to the natural parent. There is an information veto and where invoked – non-identifying information is given

Other approaches Western Australia: Victoria Southern Australia: birth certificate and identifying information are available to the adopted person non-identifying information is available to the natural parent and identifying information is available with the consent of the adopted person. Southern Australia: identifying information are available to the natural parent, although both are subject to veto. Western Australia: birth certificate available to adopted person although it is subject to a veto. one mandatory counselling session.

Reform Adoption (Information and Tracing) Bill Adoption Authority to have access to records currently held by a wide range of Information Services and give the Authority an oversight role with regard to the maintenance of adoption records. National Contact Preference Register on a statutory basis. Proactive tracing and reunion services Counselling and resources

Children’s Rights Right to Identity Right to information Right to have their best interests considered Right to have their voices heard

Solution Legislation providing for a right to identifying information subject to a veto and a statutory right to non-identifying information regarding the health and medical history of the person (recommended by the Law Society Law Reform Committee, 2000)

Adoptees are left feeling that they have been denied basic fundamental rights of who they are and where they Agencies do as much as they can, they have to operate within the tight constraints of the law, often feeling that they are doing a disservice to their clients. came from

Moving away from the clean break approach Practice has moved forward from clean break Laws guiding practices remain more or less the same Clean break approach led to a number of unanticipated consequences Previously those silenced now telling their stories Contributed to changing adoption discourse

Defining the indefinable – open adoption “Open adoptions are those in which the birth parents or other family members and adoptive parents share with each other some sort of information about themselves and have some sort of contact before and after the adoption takes place (perhaps by letter, phone, or face-to-face meetings). Contact is through a third party or directly among the persons concerned. It can involve full two-way or partial disclosure of identifying information; includes one or both birth parents or other members of the birth family; and includes the potential for the child’s participation in the contact” (Siegel, 2003)

Contd. Adoption Board (2006) “the natural parent or parents retain some degree of contact with the child (usually one or two visits a year) after the adoption order is made”

Social networking & openness Dot com era has meant that the area of contact in adoption has encountered new and unprecedented challenges Facebook revolutionised adoption – easier to search for people and access information Open adoption allows safe access to information – supported, mediated & guided by professionals

The law and open adoption At present open adoption is a voluntary agreement Merely a gentleman’s agreement – no legal standing Should post-adoption contact agreements be made part of an Adoption Order? Adoption Authority of Ireland called for legal provisions to be put in place to ensure that where a natural parent wishes to have continued contact with his or her child after the making of an adoption order, such contact can, in certain circumstances be made a condition of the adoption order

Contd. Open adoption and the Constitution The experience of the UK regarding the use of law & open adoption

The way forward for open adoption Open adoption not a static event Undertaken as a long-term venture Success of open adoption can depend on the adults involved Safety net effect – time & resources Law and open adoption: careful consideration - alternatives Kierkegaard “Life is lived forward and understood backwards”

Questions & Answers Thank you!