Legal Certainty needed for Illegally registered adoptions

Labour TD for Dublin West Joan Burton has published a proposed new law that would provide legal certainty for those whose adoptions were illegally registered, and she was joined at the launch by some of those affected by this practise.

Deputy Burton said:

“In May last year we learned of 126 cases involving the illegal registration of adoptions through St Patrick’s Guild where children were given false birth certificates that did not record their adoption. For many who never knew the truth, this was a very distressing revelation.

“A scoping exercise is currently underway now to determine how widespread this practise was but the results won’t be known until Easter at the earliest.

“People have been left in no man’s land. While many affected will know they were adopted, in many cases their legal status is in doubt as there is no adoption order due to the informal way it was carried out.

“Working with some of those affected by this, I am bringing forward this legislation that seeks to regularise the situation and provide legal certainty for illegal registrations.

“We still don’t know how widespread this practise was, but we do know that in many cases, children that were adopted were registered as the birth children of their adoptive parents, meaning there was no adoption order, and their status was concealed.  These were false birth certificates.

“Those concerned are now adults without a valid adoption order under our laws, and their status is legally uncertain. To date the Minister for Children and Youth Affairs has been silent on what her plans are to regularise this situation. There has also been a lengthy delay in progressing the Government’s Adoption (Information and Tracing) Bill that has been awaiting amendments since May 2017.

 “That is why I have published this proposed law now. The Informal Adoption (Regularisation) Bill would define the process of informal adoption and allow those who have evidence of illegal registration to apply to the Circuit Court for a declaration of adoption.

“In cases where there isn’t clear documentary evidence, the bill would ensure that their birth certificate is admissible in civil law as evidence of the family relationship it indicates.

“We still have much to reveal about how women and their children were treated in our country and the scale of illegal adoptions is still unknown. But this law if passed would provide those affected with legal certainty. That is the minimum we should do at this time.”

ENDS

Notes to Editors: Informal Adoptions (Regularisation) Bill 2019

Copy of Bill available here

Copy of Explanatory Memo available here

Labour TD Joan Burton has published a new bill to address the legal uncertainty caused by irregular adoptions where there was illegal registration of the child, and the issuing of false birth certificates.

Background

• Adoption was first introduced to Ireland and regulated by the Adoption Act 1952. This and subsequent Acts have now been repealed and replaced by the Adoption Act 2010.
• There was no lawful adoption in Ireland before 1952, but before, and for a period after 1952, there was a widespread practice of ‘informal’ adoption. Sometimes this took place within the wider family and sometimes through the aegis of church or other voluntary agencies like St Patrick’s Guild.
• In May 2018, 126 cases of illegal registrations were confirmed by Tusla following an analysis of files from St Patrick’s Guild. Those cases had their adoptive parents incorrectly registered as their birth parents on their birth certificates between 1946 and 1969.
• Instead of applying under the Act and registering with the Adoption Authority, infant children were simply transferred directly into the hands of their new parents. The information provided to register the births was false and the children were as a result given false birth certificates, as the children of the ‘adopting’ couple. This is where the illegal registration occurred.
• This generation of children are now adults. They are without the benefit of a valid adoption order and their status within their families is legally uncertain. For example, in law, they are not children of the marriage and so they have no right of inheritance.
• There are an unknown number of informal ‘adoption’ arrangements, and some may not be documented at all. A scoping exercise is underway. Some of those affected may not yet know that this happened in their childhood – and so their situation may be difficult to rectify.
• To date the Minister has not indicated what legislative action will be taken to address these illegal registrations and provide legal certainty to those affected.
• It is important to note that a birth certificate is not an identity document, nor does a birth certificate amount to proof, admissible in court, of the family relationship that it asserts. The Bill seeks to address this uncertain status.

What the Informal Adoptions (Regularisation) Bill 2019 will do:

• Defines the process of informal adoption as involving:

–       the placing of a child into the care of a married couple neither of whom were parents of the child concerned,

–       with a view to the child being held out and considered for all purposes to be  the child of that couple, born to them in wedlock, or to be their adopted child,

–       without any regard to the need for an adoption order, and;

–       the furnishing of information, in connection with registering the child’s birth, purporting to show the couple to be the natural parents of the child.

• Where documentation is available, and an individual desires a valid adoption, a person who was informally adopted could apply to the Circuit Court for a declaration of adoption. If satisfied with the evidence presented, the court may make a declaration that the applicant is deemed to have been validly adopted, on a particular date. The Registrar of Births will then cancel the false birth certificate, while the Adoption Authority will issue a valid adoption certificate.
• The second remedy deals with individuals who may have been told and had believed that they were indeed the natural children of those who reared them as their parents. They had no reason to believe they were adopted, regularly or irregularly. And there may be no surviving records to enable them to trace the original parties to this informal arrangement.
• The Bill would change the rules of evidence to protect those who wish to preserve what they had considered to be the status quo. First, it incorporates into civil law what is since 1992 a rule applied in criminal law: a document purporting to be a birth certificate is evidence, admissible in court, of the family relationship that it indicates.
• Evidence contradicting a birth certificate proffered in court will be inadmissible where the person whose birth certificate it is has consistently been treated, with regard to the rights and duties of parents and children in relation to each other, as the child of the persons named on the certificate as his or her parents. This new rule would not apply where someone fraudulently procured their own birth certificate.

Further background information:

• There are an estimated 150,000 adoption records in existence, and approximately 100,000 records are in the possession of either Tusla or the Adoption Authority.
• A review of adoption records using a sampling exercise in underway to determine the level of illegal registrations that have occurred. This is expected to report to the Minister for Children and Youth Affairs in April 2019.
• Files from St Patrick’s Guild were transferred to Tusla in 2016 after it ceased offering an information and tracing service. It has been reported that concerns have been raised about a further 748 adoption cases from St Patrick’s Guild.
• St Patrick’s Guild went into liquidation on 17^th December 2018. It follows the settlement of a number of actions.
• The Adoption Information and Tracing Bill 2016 has been awaiting committee stage in the Seanad since May 2017.