Birth Information and Tracing Bill 2022: An Analysis

Having spent months scrutinising the Government’s General Scheme of the Birth (Information and Tracing) Bill, on 14 December 2021 the cross-party Joint Oireachtas Children Committee recommended 83 changes to the Bill’s provisions and its underlying policy.

The Joint Committee members (uniquely for an Oireachtas Committee, predominantly female) worked thoroughly and impressively: they consulted widely and held public hearings; they drew on their own expertise including as practising lawyers and therapists; they debated with each other, sometimes holding positions that seemed irreconcilable; yet still they managed to be unanimous in their comprehensive recommendations.

Such Pre-Legislative Scrutiny Committee work, though frequently under-appreciated, is utterly fundamental to our democracy. It is how we ensure that legislation is effective and that the State achieves the comprehensive, fair and fully thought-out protection of individuals’ rights that European and Irish Constitutional law require.

The task facing the Joint Committee was monumental — as is the job of the Oireachtas now. Access to information is the most basic requirement of justice for forced and unlawful family separation: a system that violated and continues to violate tens of thousands of people’s rights to freedom from enforced disappearance and respect for their dignity, equality, identity, and private and family life. Failure to achieve full disclosure of records will continue one of the most catastrophic and profound injustices in Irish history.

Long-time activists and advocates for adopted people, parents, relatives of the deceased, people subjected to illegal birth registration, and others affected by the ongoing secrecy of adoption and family separation records were warmly appreciative of the calibre and detail of the Joint Oireachtas Children Committee’s recommendations.

However, from the time the Committee’s Report was published, Minister Roderic O’Gorman did not wait more than one Dáil working week before introducing the Birth Information and Tracing Bill, proper, on 19 January 2022.

Reading the Bill it is immediately clear that the Government has rejected, or ignored, many of the Joint Oireachtas Committee’s most important recommendations.

The Joint Oireachtas Committee’s recommendations are based on extensive hearings and other interactions with those personally affected. Yet among the Committee recommendations which the Bill ignores are:

• Recommendation 8: to include ‘the full list of known institutions, agencies and individuals that were involved with forced family separation in Ireland, without limiting the bill solely to those bodies’
• Recommendations 9 and 12: to expand the definition of ‘care information’ to which a person will be entitled and in particular to include ‘care provided by a birth parent or guardian of the child, a relative of the child…or a person who is, or becomes, the adoptive parent of the child’ (on the basis that this is personal data)
• Recommendation 10: to amend the term ‘incorrect birth registration’ in the Bill ‘to say “falsely or incorrectly recorded’
• Recommendation 13: to ensure that ‘existing misinterpretation of mixed data’ is rectified ‘in line with existing GDPR rights’
• Recommendation 14: to include in the records to which every person is entitled ‘information relevant to all treatment, including medical records and possible abuse; administrative files; the widest interpretation of Early Life Information; rights of access to “birth relative information” to “care information” and “early life information” and “medical information” under GDPR’
• Recommendations 16 and 41: that ‘the mandatory information session should be removed from the legislation’ in order to ‘ensure an effective right of access to GDPR rights’
• Recommendation 26: that ‘the Bill should be amended to provide for a reciprocal right for mothers to receive their full records, including information about their child and to have input into them in the form of an appended statement or similar’
• Recommendation 27: that ‘the Bill should be amended to provide statutory right of access to the administrative records, wherever they are held, of all adoption agencies, institutions, State bodies and others involved with forced family separation for natural/birth mothers, survivors, adopted people and others placed in “care”
• Recommendation 29: that ‘Religious organisations involved must provide relevant files as a matter of urgency’
• Recommendation 31: that ‘the Bill must provide all affected people, including siblings and relatives of the deceased, with access to the processes set out in the Bill’s provisions’
• Recommendation 40: that ‘the provisions of the Bill must be proofed to ensure that adopted persons are provided with a clear means of accessing their rights to information in compliance with GDPR requirements’
• Recommendation 55: that ‘Statutory timeframes for compliance with information requests should be set out’
• Recommendations 57 and 73: that ‘The Minister should establish a new agency to carry out the functions assigned under the Bill to Tusla and the AAI. This new agency should be established as soon as possible and no later than two years from the coming into effect of the Act…In the interim, while the statutory functions remain with Tusla and the AAI, an independent oversight mechanism such as an Ombudsperson process, should be put in place to ensure additional support and reassurance for adopted persons and others accessing services’
• Recommendation 66: that medical information relating to a person ‘should only be provided to the applicant’s medical practitioner with their consent as well as being provided directly to the applicant’
• Recommendation 70: that ‘In every case where an individual was involved in a vaccine trial they should receive that information. This should be made clear in the Bill’; and
• Recommendation 79: That ‘counselling and other similar supports should be extended to all affected parties, regardless of contact preferences, including all birth parents, adopted people, and the children of those affected’.

Over the past week, lawyers and information rights organisations and advocates including Simon McGarr, Claire McGettrick of the Clann Project and Adoption Rights Alliance (ARA) and Loughlin O’Nolan of Article Eight Advocacy have highlighted that the Birth Information and Tracing Bill proposes a range of unlawful restrictions on the right of access to personal data under EU law. As explained below, the Bill appears destined to create a situation where the Child and Family Agency (TUSLA) and the Adoption Authority of Ireland (AAI) implement this Bill’s provisions to the exclusion of their obligations under both the EU General Data Protection Regulation (GDPR) and Article 8 of the EU Charter of Fundamental Rights.

The Bill restricts the type of information that TUSLA and the AAI must provide to those who request their personal files. By way of two examples: the Bill states that information provided to a person about their siblings will not include siblings’ identities; and ‘care information’ provided will not identify a parent or other relative who made contact with or enquired after a child. (See below for more examples of restrictions on the type of information that TUSLA and AAI will be required to disclose.) The Bill also creates a parallel, restrictive process of access to publicly registered birth certificates: while the general public continue to be entitled automatically to retrieve any person’s birth record from the General Register Office, certain adopted people and people formerly in ‘care’ as a child will be forced into a lengthy, intrusive and discriminatory information sharing procedure and ‘information session’ to instruct them about others’ privacy rights.

A more comprehensive (though still not exhaustive) list of restrictions and gaps in the legislation follows below. Suffice to say, if this Bill proceeds in its current form, countless complaints to the Data Protection Commission and litigation in Irish and European courts are inevitable. This is an unacceptable position in which to put people who have already experienced so much abuse of power.

The Government did not publish or email stakeholders with its Birth Information and Tracing Bill until mid-morning on 19 January 2022, well after briefing the media the day before with the claim that this Bill provides full and complete information to all those still seeking it. Minister O’Gorman continues to insist that ‘No information will be left out. Nothing will be redacted. Everyone will get his or her full set of information.’

This is not the first time that survivors and adopted people have been silenced by people in power who wish to claim that all is well — that the State is benevolently and responsibly respecting rights and taking care of ‘vulnerable’ people’s needs. It is how those subjected to forced family separation and institutionalisation are routinely treated. (Read my related post here on the Mother and Baby Homes Commission’s behaviour and how the Government continues to stand by the Commission’s unsustainable conclusions.)

It is time now for every politician to join with those on the all-party Joint Oireachtas Children Committee and (1) read the Birth Information and Tracing Bill fully, and (2) demand respect for the basic rights of those whose personal and family lives have been interfered with for too long already.

Here is a list of just some of the injustices which the Bill proposes, to the best of my understanding:

1. The Bill does not recognise mothers’ right to information about their forced and/or illegal separation from their child.

Unless their child died in a Mother and Baby or County Home institution, the Bill gives mothers no right to information about their child, about how and why they were separated, or about their own institutional or other abusive experiences.

Mothers are not included in the section 2 definition of ‘relevant person’ who may request their information from TUSLA or the AAI. The only right of access which the Bill establishes for mothers (in sections 26 to 30) is the right to request information about a child of theirs who died in an institution included in the Schedule. The Schedule lists only 14 Mother and Baby institutions and 30 County Home institutions.

To take just one example of the tens of thousands of mothers who suffered abuse: this means that Philomena Lee (who at 88 years of age recently was forced to take High Court proceedings to highlight the Commission of Investigation’s illegal treatment of survivors) will have no right under this Bill to access information — contrary to the Joint Oireachtas Committee’s explicit recommendation.

During Pre-Legislative Scrutiny Minister O’Gorman stated that mothers will retain their right to request their personal data as normal under GDPR – in other words, that they do not need this Bill. This does not make sense because the Government also insists that the purpose of this Bill (for those to whom it applies) is to enhance the effectiveness of existing personal data access rights: recognising that those rights are not functioning properly because of the historical control and secrecy exercised by the institutions involved in family separation which continue to hold records.

2. The Bill ignores the State’s duty to reunite siblings forcibly disappeared from each other.

The Bill denies access to information about who a person’s siblings are (despite the EU GDPR defining ‘personal data’ as ‘any information relating to’ a person).

Under the Bill, the ‘early life information’ to which a person will be entitled is defined by section 2 without any reference to information about a person’s siblings. Section 2 defines ‘genetic relative information’ as meaning only the following non-identifying information: ‘(a) whether the person has a genetic relative, or had such a relative who is deceased; (b) where the person has a genetic sibling or had such a sibling who is deceased — (i) the sex of the genetic sibling, and (ii) whether the genetic sibling is or was older or younger than the person’.

3. The Bill denies people access to other parts of their files that contain essential personal history and that may demonstrate coercion or unlawful behaviour by those in power.

For example:

‘Early life information’ is defined by section 2 to exclude identifying information about a parent’s or other relative’s interactions with a child or their placement. Section 2 states in the list of ‘early life information’ that must be provided on request: ‘(h) information on whether any person, being a parent or other genetic relative of him or her, visited or inquired in relation to him or her, which information includes the degree of relationship of the other person to him or her, but does not include the name of the other person’.

‘Early life information’ is further defined by section 2(2) as excluding any information from the childhood period after a person’s adoption, or after the entry of an illegal birth registration (termed ‘incorrect birth registration’) when ‘the person named as mother and, if applicable, father, in the entry in the register of births concerned assumed the role of parents in relation to the person and treated that person as her or their lawful child’.

‘Care information’ is defined by section 2 without any reference to information about a parent’s, guardian’s or adoptive parent’s interaction with the person — and without any reference to the adoption file, suitability assessments, or records of monitoring of a placement.

‘Care information’, similarly to ‘early life information’, is further defined by section 2(2) as excluding any information from the period after a person’s adoption, or after the entry of an illegal birth registration (termed ‘incorrect birth registration’) when ‘the person named as mother and, if applicable, father, in the entry in the register of births concerned assumed the role of parents in relation to the person and treated that person as her or their lawful child’.

‘Medical information’ is defined in sections 15 and 16 as ‘medical information that is contained in a record’ and not the record itself — unlike other provisions in the Bill (e.g. section 11(2)) that explicitly require production of ‘a copy of the records’. Furthermore, anonymised medical information about an hereditary medical condition that is considered ‘relevant to the health of the relevant person’ but also that ‘relates to his or her genetic relative’ will be provided not to the person themselves but instead to a medical practitioner.

4. The Bill excludes certain people from Ireland’s existing, automatic public birth record access system.

At present, any person can apply to the General Register Office (GRO) to receive automatically a copy of their own, or anyone else’s, birth certificate: because all Irish birth certificates are public records and have been since the mid-19th century.

Using guidelines provided by ARA, many adopted people have availed of this route to obtain their birth certificate. Even if they don’t know their name at birth, by retrieving all birth certificates stating their date of birth they can use a process of elimination to discover their own.

Under the Bill, however, people who are unaware of their existing right to retrieve any birth certificate automatically, or those who live abroad and cannot easily access the GRO, or people whose birth was not registered lawfully, or those who otherwise do not have enough information to use the existing GRO route, will have no choice but to use a new, intrusive, discriminatory and time-consuming procedure to access their identity.

The procedure set out in the Bill involves numerous agencies and individuals, and it forces a certain cohort of people to meet a professional who will instruct them in the importance of respecting others’ privacy rights.

The Bill states (in sections 6 to 10 and 17) that when an adopted person, or a person formerly boarded/nursed out or institutionalised in a Mother and Baby or County Home institution, applies to the GRO for their birth certificate or to TUSLA or the AAI for their ‘birth information’ (defined in the Bill as the equivalent to what is recorded on a birth certificate) the following procedure will be set in motion:

• The GRO or TUSLA will alert the AAI that the person has requested their information. (Without consenting to this procedure a person will not be entitled to retrieve their birth certificate or birth information.)
• Then, the AAI will undertake a process of ascertaining whether both of the person’s parents are deceased or, if still alive, whether either parent has registered a preference not to receive contact from their adult child on the Contact Preference Register.
• The AAI will subsequently inform the GRO or TUSLA of its findings. If a parent has registered a preference for no contact, the GRO or TUSLA will transfer the requesting person’s contact details to the AAI whereupon the AAI will arrange for the person to undergo an ‘information session’ for the purpose of informing them of their entitlement to their information, of their parent’s preference regarding contact, and of ‘the importance of the relevant person respecting the privacy rights of the parent and the preference of the parent’.
• The AAI will then tell the GRO or TUSLA that the information session has taken place.
• The GRO or TUSLA will subsequently arrange to send the person their birth certificate or birth information.

5. Certain adopted people subjected to illegal arrangements have no rights under the Bill. Nor does the Bill recognise the rights of people who were in non-adoptive ‘care’ settings except for a lawful boarding/nursing out placement or a Mother and Baby or County Home institution.

Section 2 defines a ‘relevant person’ who may apply to TUSLA or the AAI for information only as:

• an ‘adopted person’ (they must have been adopted under an adoption order or placed for adoption outside the State by An Bord Uchtála, a registered adoption society, the AAI or TUSLA, or otherwise adopted in accordance with the law);
• a person who experienced or has reasonable grounds for suspecting that they experienced a ‘boarded out arrangement’ (this must have been a legal arrangement authorised by a local authority or health board);
• a person who experienced or has reasonable grounds for suspecting that they experienced a ‘nursed out arrangement’ (which must have been legal, with notice given to a local authority);
• a person who has been, or has reasonable grounds for suspecting that they have been, the subject of an ‘incorrect birth registration’; or
• a person who was, or has reasonable grounds for suspecting that they were, as a child ‘in an institution specified in the Schedule’ (the Schedule lists only 14 Mother and Baby institutions and 30 County Home institutions).

By limiting the Bill’s Schedule to 14 Mother and Baby and 30 County Home institutions the Bill leaves out the majority of the 182-plus entities involved in separating unmarried mothers and their children during the 20th century.

6. Several sections of the Bill indicate that TUSLA and the AAI will be permitted to process relevant records only in accordance with the Bill.

If these bodies stop complying with their EU data protection law obligations in favour of the Bill’s new regime, this situation will breach EU law because the GDPR does not allow blanket dis-application of its provisions. Nonetheless:

Section 44(3) of the Bill provides that the ‘use or disclosure of any information transferred to the Authority or retained by a primary information source’ is not authorised ‘other than in performance by them of their functions under Parts 2, 3, 4, 5, 6, or 7’ of the Bill. Section 56 of the Bill states that TUSLA and the AAI are permitted to process information received from the Mother and Baby Homes Commission of Investigation only ‘where necessary and proportionate for the performance of its functions under this Act’.

7. The Bill further suggests that the Department of Children, Equality, Disability, Integration and Youth will stop processing requests for personal data in the Mother and Baby Homes Commission of Investigation archive.

If so, this would breach EU law: recall that enormous public pressure forced the Government in October 2020 to acknowledge that EU law does not permit it to dis-apply GDPR obligations on a blanket basis.

Section 56(3) of the Bill states that, if in the future the Minister for Children, Equality, Disability, Integration and Youth is designated a ‘relevant body’ for the purposes of the legislation, the Minister ‘may, where necessary and proportionate for the performance by him or her of his or her functions as a relevant body, process personal data, including special categories of personal data, contained in the copy of the database and copy of the related records of the Commission deposited with the Minister under section 4(1) of the Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Records, and Another Matter, Act 2020.’

8. The Bill does not require the religious orders to preserve or make available information. The Bill creates rights only to access records held by TUSLA, the AAI and the General Register Office.

Regarding preservation:

• Sections 44 and 45 require all ‘primary information sources’ and ‘secondary information sources’ to retain and maintain all ‘relevant records’. (‘Relevant records’ are defined in section 2 as records relating to adopted people and to those boarded out, nursed out, subjected to illegal birth registration — termed ‘incorrect birth registration’ in the Bill — or institutionalised as a child in a Mother and Baby or County Home institution).
• According to section 2, the ‘primary information sources’ under the Bill are TUSLA and the AAI.
• Section 2 states that the ‘secondary information sources’ are four Government Ministers (Children, Education, Foreign Affairs and Health), the data controller of the AIRR archive, the Health Service Executive, a registered adoption society, an accredited body under the Adoption Societies Register or its successor register, and any future source designated by Ministerial regulation.
• Sections 46 and 48 create the potential for future powers to be exercised over ‘other’ persons who hold ‘relevant records’. However, these powers are not immediately present in the Bill.

Regarding access:

• The Bill creates rights to request information only from the General Register Office, TUSLA and the AAI.
• Further ‘relevant bodies’ who must respond to information access requests may be designated in the future by Ministerial regulation (sections 2 and 55).
• While failing to provide access rights for people affected, section 34 of the Bill gives TUSLA and the AAI the authority to demand information from a diocese or parish of the Roman Catholic Church or Church of Ireland (but not from a religious order) for tracing purposes.

9. Only certain individuals may apply for information about a relative who died in ‘care’.

• The Bill allows the parents of a child who died in a Mother and Baby or County Home institution to request information; however, other ‘next of kin’ may not apply until it has been ascertained that those higher in the Bill’s order of immediate relatives are deceased (i.e. a brother or sister may only apply if the deceased’s parents are no longer alive) (sections 26 to 30).
• The Bill does not provide access to information about those who died in institutions other than the 14 Mother and Baby and 30 County Home institutions listed in the Schedule (sections 26 to 30).
• The Bill allows the adult child of a deceased adopted person or person illegally registered at birth, lawfully boarded/nursed out or institutionalised in a Mother and Baby or County Home institution to apply to TUSLA or the AAI for their parent’s information — but only if their grandparents (i.e. the parents of their deceased parent) are also deceased (sections 21 to 24).

10. The Bill requires TUSLA to arrange counselling support for parents who express a preference for no contact with their adult child; however, the Bill does not require counselling support to be available to other affected people.

• Section 63 makes the availability of counselling support mandatory for parents who express a preference for no contact with their adult child.
• On the other hand, section 63 simply allows TUSLA to arrange counselling support for other affected people if TUSLA so wishes.