1. New Frontiers in Adoption Law: Adoption by Civil Partners and Same-sex Couples Dr Fergus Ryan Department of Law, Maynooth University (National University of Ireland Maynooth)

2. Purpose To address the topic of adoption as it relates to potential adopters who are not married to each other, in particular LGBT people and same-sex couples, and to the children for whom they care or whom they may propose to adopt Look to Irish law and European Convention on Human Rights (ECHR)

3. Structure 1. Set out the context 2. Look at current legal situation in Ireland 3. Consider jurisprudence of the European Court of Human Rights (ECtHR) 4. Consider current proposals for reform 5. Briefly offer some thoughts on adoption information/tracing

4. 1. Context: Emergence of diverse family arrangements Marriage is still the most popular option for forming a family but…families in Ireland are no longer fitting into a ‘one size fits all’ template There has, in particular, been a significant increase in cohabitation outside marriage since 1996 Census 2011 recorded143,600 cohabiting couples (approx. 12% of all family units) with an average of 0.7 children per cohabiting couple There were 215,300 families headed by lone parents with children, 87% of whom were lone mothers. 40% of lone parents were single, 25% were widowed, 32% per cent were separated or divorced

5. Challenge to the traditional template This emerging family diversity represents a challenge to the traditional template for adoption Adoption in Ireland was designed originally as a mechanism for addressing the perceived ‘anomaly’ of childbirth outside of marriage Original purpose: to provide children with what was perceived to be a ‘more suitable’ (i.e. marital) home environment where this was not otherwise available to them

6. Challenge to the traditional template Section 23(1) Adoption Act 2010 ◦ “The Authority shall not make an adoption order unless the child—  (a) resides in the State,  (b) at the date of the application, is not more than 7 years of age,  (c) is an orphan or is born of parents not married to each other, and  (d) has been in the care of the applicants for the prescribed period (if any).” Presumption underpinning the legislation is that ◦ (a) children born outside marriage may require transplantation into a ‘more ideal’ family ◦ (b) children born inside marriage will only need this in very exceptional cases

7. Challenge to the traditional template Children who are eligible to be adopted – children of married couples not currently eligible to be adopted unless they are orphaned (or unless the very unusual circumstances of Part 7 of the Adoption Act 2010 apply) Children’s referendum – new Article 42A – will allow for adoption of children born inside of marriage, but the new Article is the subject of ongoing court challenges

8. Adoption and blended families Step-parents are not normally able to assume guardianship in respect of the child of a spouse except by adoption; marriage per se does not make a person who is not a parent of a child a guardian of that child (unless the presumption of paternity applies and the husband’s paternity is not disputed) Step-parents (spouses of parents) may become adoptive parents of child of spouse But there is no provision in Irish law for second parent adoption where a person may adopt the child of that person’s spouse without the latter relinquishing any obligations or rights

9. Adoption and blended families Section 58 Adoption Act 2010 – adoption terminates existing parental rights No facility for ‘second parent adoption’ in Ireland …so the parent must relinquish original parental rights and apply jointly with the new spouse to adopt the child ◦ Child must have been born outside marriage ◦ Other guardian (if any) must consent ◦ Some parents have objected to the concept of having to adopt their own biological child as a precondition to sharing parentage

10. Same-sex couples There is a growing presence and visibility of same-sex couples, some with children Census 2011 – 4,042 same-sex couples living together – 230 couples with children 1,467 civil partnerships entered into since Jan 2011 (as of June 2014) Indeterminate number of couples deemed civil partners by virtue of a foreign civil union or same-sex marriage

11. Parenting by same-sex couples Parenting by couples who are of the same sex: numbers are low, but a growing reality There are various routes into parenting for same- sex couples: ◦ Children born as a result of prior heterosexual relationships to one or other partner in a same-sex relationship ◦ Children born to lesbian couples as a result of an arrangement involving donor insemination ◦ Surrogacy – rarer but a growing phenomenon ◦ Adoption by an individual in a cohabiting same-sex relationship ◦ Fostering - see Child Care (Amendment) Act 2007, section 4 and section 43A of the Child Care Act 1991, which allows foster parents to acquire guardianship- type responsibilities after 5 years

12. Best interests of the child? Is same-sex parenting in the best interests of the child? This is a point of some debate Empirical research suggests that family process (and in particular communication within a family) is a more important determinant of wellbeing than the form the family takes or the gender of the parents (McKeown, Pratschke, Haase, 2003; Growing Up in Ireland, 2012) American Psychiatric Association (2004) – no evidence that children being raised by same-sex couple were disadvantaged as a result

13. Best interests of the child? US National Longitudinal Lesbian Family Study (2012): ◦ “no difference in psychological wellbeing between children in planned lesbian families and those in heterosexual two-parent families”. ◦ Absence of male role models did not affect psychological wellbeing in teens Minister for Children, Barry Andrews (2010): “Gay men and lesbians make very good parents….The argument that same-sex couples cannot be good parents is contrary to the case”. Notably, same sex couples are allowed to foster in Ireland

14. Child-centered perspective This is an area where ideology can often cloud judgment, on both sides of the debate Clarity can be gained by adopting a child- centered approach Article 42A Constitution, Article 3 UNCRC Look to what is in the best interests of the child given its social reality Children are already being raised in diverse families – emphasis should be on ensuring the regularisation of relationships with the child to ensure stability and full recognition of obligations towards the child

15. JMcD v. PL and BM (2009) Illustrates the precarious legal position of same sex couples parenting a child Involved a dispute between a lesbian couple and a man who assisted them in starting a family by donating sperm Despite initially agreeing that the couple would parent the child the father sought access and guardianship in respect of the child This was refused in High Court on the basis that either order would disrupt the de facto family life of the couple and the child, which Hedigan J ruled was protected under Article 8 of the ECHR

16. Supreme Court Reversed the High Court ruling, and granted the father access but not guardianship ◦ Ruled that the High Court had placed excessive emphasis on the child’s relationship with the couple, and had not sufficiently considered the benefit to the child of having contact with its father ◦ Ruled that the High Court had erred in regarding the couple as a de facto family with either constitutional or convention rights - couple enjoyed no legal recognition in Irish law ◦ Partner of mother had no constitutional or legal rights in respect of the child.

17. ‘Settled and loving’ home The Supreme Court nonetheless noted that the environment in which the child was being raised was an important factor. Even the courts, while rejecting family status for the couple and their child, acknowledged the stable and positive environment in which the child was being raised. Denham J:  “the circumstances of the case show that the respondents have lived together for years in a loving relationship and that they provide a settled and loving home for the child. These factors are critical and of importance in assessing the welfare of the child.”

18. 2. Eligibility to adopt in Ireland Adoption Act 2010 Welfare of the child is the first and paramount consideration (Section 19, Adoption Act 2010) Eligibility not the same as suitability One may be eligible but not suitable as an adoptive parent ◦ Eligibility – section 33 ◦ Suitability – section 34 ◦ Lord Hoffman in Re P (2008) – “eligibility to apply…is…only the first step on the road to adoption”.

19. Eligibility to adopt in Ireland Section 33, Adoption Act 2010 “(1) (a) The Authority shall not make an adoption order, or recognise an intercountry adoption effected outside the State, unless - � (i) the applicants are a married couple who are living together, (ii) the applicant is the mother or father or a relative of the child, or (iii) the applicant, notwithstanding that he or she does not fall within subparagraph (ii), satisfies the Authority that, in the particular circumstances, the adoption is desirable and in the best interests of the child. … (2) Except as provided in subsection (1)(a), the Authority shall not make an adoption order, or recognise an intercountry adoption effected outside the State, for the adoption of a child by more than one person. …”

20. Eligibility to adopt in Ireland For domestic adoptions and inter-country adoptions, the following are eligible in Irish law to adopt: ◦ A married couple who are living together ◦ The mother, father, or relative of the child ◦ An individual adopter who is not a relative, where the Adoption Authority believes the adoption to be desirable and in the best interests of the child ◦ A person who is also a civil partner may adopt but as an individual only (nevertheless, the couple’s joint living arrangements will be assessed to determine suitability) ◦ A married person may adopt as an individual. That person’s spouse, however, must consent to the adoption unless  The couple are living apart by virtue of judicial separation or a deed of separation,  The other spouse has deserted the prospective adopter, or  Conduct on the part of the other spouse has resulted in the prospective adopter, with just cause, separating from his or her spouse

21. Eligibility to adopt in Ireland There is no bar on LGBT persons adopting as sole adopters, provided they are otherwise suitable (see EB v France (2008)) Nevertheless, a couple wishing to adopt in Ireland must be married to each other and living together in order to effect a joint adoption as a couple. S. 33, Adoption Act 2010: Adoption Authority precluded from granting or recognising an adoption by two or more persons unless they are married to each other The same principle applies to an Irish-resident couple wishing to be declared eligible and suitable for an inter-country adoption recognised in Ireland: not eligible to adopt as a couple unless married to each other and living together (Section 40(2), Adoption Act 2010) Thus, in Irish law, same-sex couples, even where in a civil partnership, may not adopt a child as a couple, either domestically or by means of an inter-country adoption Position: civil partner may potentially adopt as a sole adopter, but civil partners may not adopt jointly

22. Inter-country adoptions Hague Convention on Inter-country Adoption, 1993 Eligibility and suitability of adopters is determined by the receiving country (Article 5) Irish eligibility criteria preclude same-sex couples or civil partners from being approved for joint adoption (Sections 33 and 40(2), Adoption Act 2010)

23. Inter-country adoptions It is not entirely clear whether adoptions (either intercountry or domestic) effected in other Hague Convention states by same-sex couples not resident in Ireland at the time of the adoption may be recognised in Ireland ◦ S.33 of 2010 Act precludes recognition by Adoption Authority of joint adoptions unless adopters are married to each other ◦ Yet, in principle, the Hague Convention requires mutual recognition of intercountry adoptions effected in other Hague Convention states and this appears to be facilitated by Section 57 of the Adoption Act 2010 ◦ Subject, however, to public policy requirement (See section 57(2) of the 2010 Act) ◦ May ultimately have to be determined by the Courts. Adoption Authority may refer a case stated to the High Court for clarification under section 49 of the Act

24. Foreign adoption Foreign adoptions – adoption by a same- sex couple of a child resident in the same state as the adopting couple Adoption Act 2010 makes provision for recognition of foreign adoptions, but this is subject to a public policy exemption Public policy – section 57(2) May have to be determined by the courts

25. Civil partners raising children Landscape of family law changed dramatically in 2010, with the inception of civil partnership and new laws on cohabitation Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (CPROCA) Came into force January 2011 Civil Partnership for same-sex couples Cohabitation – same-sex and opposite-sex couples treated alike. ◦ Some limited protection, particularly for long-term cohabitants (‘qualified cohabitants’) who are financially dependent

26. Civil partners raising children Adult partners in CP are ‘ring-fenced’ CP Act as enacted demonstrates a marked reluctance to address legal position of children being raised by civil partners and same- sex couples ◦ Civil partner who is not a biological parent cannot seek guardianship or custody during lifetime of parent (unless very exceptional circumstances exist) ◦ In principle, orders for shared home protection may be made without having to take the child’s interests into account ◦ Civil partner who is not a parent has no maintenance obligations towards child, and his or her estate cannot be sued by the child for provision on death ◦ CP dissolution may be granted without having to have regard to children’s interests Joint adoption by civil partners is not permitted: section 33, Adoption Act 2010 – though LGBT people and civil partners may adopt as individuals

27. Some recognition under CPROC Act 2010 When making orders following dissolution, the court must have regards to the interests of either partner’s child (though no orders may be made in respect of the child) Child is also recognised for conflicts of interest purposes Interests of the child must be considered when granting maintenance to either civil partner Domestic violence legislation, taxation and social welfare legislation recognise the relationship between a person and his civil partner’s child

28. Reform Proposals The Children and Family Relationships Bill 2014 proposes to: ◦ Allow civil partners and cohabitants to become guardians of their partners’ children, subject to certain conditions ◦ Impose maintenance obligations on the cohabitants and civil partners of parents, even where they are not also the parents of the child ◦ Treat the children of a civil partner in the same way as the child of a spouse ◦ Require that the interests of children be taken into account on dissolution of a civil partnership, and allow court orders to be made in their favour following dissolution ◦ Allow civil partners to adopt as couples (jointly) (this will be dealt with in further detail below

29. 3. Adoption and the ECHR No Constitutional, Convention or other human right to adopt or to found a family Adoption is not intended as a mechanism to address the aspiration to parent ECtHR - consistently has stated that Article 8 of the Convention does not guarantee a right to adoption as such. Article 8 guarantees the right to respect for family life but does not safeguard the desire to found a family, whether by adopting or by any other means.

30. ECHR standards and adoption Once a state permits adoption, however, it must apply its rules fairly Article 14 ECHR – precludes discrimination in the application of other Convention rights on various stated ground, but the grounds are not exhaustive ◦ The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Sexual orientation and marital status have both been recognised as grounds

31. ECHR standards and adoption Salguiero da Mouta Silva v Portugal (1999) – gay father was denied custody of his child (from a previous relationship) on the basis of his sexual orientation The Portuguese Appeal Court had ruled that “The child should live in... a traditional Portuguese family” ◦ “It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations.”

32. ECHR standards and adoption ECtHR found a breach of Article 8 (right to a family life) in conjunction with Article 14 ◦ “§36. The Court is therefore forced to find, in the light of the foregoing, that the Court of Appeal made a distinction based on considerations regarding the applicant’s sexual orientation, a distinction which is not acceptable under the Convention (see, mutatis mutandis, the Hoffmann judgment cited above, p. 60, § 36). The Court cannot therefore find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14.”

33. ECHR standards and adoption Fretté v. France (2002) – ECtHR ruled that states could decline to allow adoption on basis of the sexual orientation of applicants. Application by a single gay French man for prior authorisation to adopt Court afforded the state a wide margin of appreciation, noting that there was no European consensus on the topic Court emphasised the best interest of the child as the primary consideration The Court found that France had pursued a legitimate aim - to protect the health and rights of children who could be involved in an adoption procedure No breach of Article 8 or 14, though there was a breach of Article 6 as the applicant had been denied a fair hearing in relation to a Conseil d’État hearing of the matter

34. ECHR standards and adoption …but the stance in Fretté has effectively been superseded by the ECtHR in: EB v France (2008) – where individuals are allowed to adopt as sole adopters, a state cannot discriminate against the prospective adopter on the basis of sexual orientation Found a breach of Article 14 in conjunction with Article 8 Applicant, who was in a same-sex relationship, had been turned down for adoption on the basis of the lack of a paternal referrent and the attitude of her partner to the adoption

35. ECHR standards and adoption Court in EB said that the state was entitled to have regard to issues such as the lack of a paternal referrent, but that it had placed too much emphasis on this factor: ◦ §88-89 “…the inescapable conclusion is that her sexual orientation was consistently at the centre of deliberations in her regard and omnipresent at every stage of the administrative and judicial proceedings. ◦ The Court considers that the reference to the applicant's homosexuality was, if not explicit, at least implicit. The influence of the applicant's avowed homosexuality on the assessment of her application has been established and, having regard to the foregoing, was a decisive factor leading to the decision to refuse her authorisation to adopt.”

36. Adoption by same-sex couples X v Austria (2013) – Where a state permits adoption by an opposite-sex couple outside of marriage, it cannot exclude same-sex couples Two women in a stable relationship. One of the women had had a child outside marriage and the couple raised the child together Applied for a ‘second-parent adoption’, which would have allowed the mother’s partner to adopt without terminating the mother’s obligations rights; would, however, have terminated the relationship with the father, who objected to the proposed adoption Austrian law allows a person who is married couple or in an opposite-sex relationship the right to adopt a spouse’s/partner’s child, but same-sex couples are excluded from doing so Court found that this constituted a breach of Article 14 taken in conjuction with Article 8

37. Adoption by same-sex couples X v Austria (2013)The European Court of Human Rights found a breach of Article 14 taken in conjunction with Article 8: ◦ “…when it comes to issues of discrimination on the grounds of sex or sexual orientation to be examined under Article 14, the State’s margin of appreciation is narrow. ◦ “The Court is aware that striking a balance between the protection of the family in the traditional sense and the Convention rights of sexual minorities is in the nature of things a difficult and delicate exercise, which may require the State to reconcile conflicting views and interests perceived by the parties concerned as being in fundamental opposition (see Kozak, cited above, § 99). However, having regard to the considerations set out above, the Court finds that the Government have failed to adduce particularly weighty and convincing reasons to show that excluding second ‑ parent adoption in a same-sex couple, while allowing that possibility in an unmarried different ‑ sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction is therefore incompatible with the Convention.”

38. Adoption by same-sex couples It is possible to reserve second-parent adoption to married couples provided opposite-sex and same-sex couples outside marriage are treated equally Gas and Dubois v France (2012) Two women living together in a pacte civil de solidarité (PACS) (civil partnership). One of the women had a child by means of assisted reproduction. She was the sole legal parent of the child. French law only permitted married couples to share parental rights. Both opposite-sex and same-sex couples outside of marriage were precluded from effecting a second-parent adoption. The judgment is summarised in X: ◦ “As Contracting States were not obliged to grant access to marriage to same ‑ sex couples, and having regard to the special status conferred by marriage, the applicants’ legal situation was not comparable to that of a married couple (§ 68). As to the situation of unmarried different-sex couples living together, like the applicants, in a civil partnership, the Court noted that second-parent adoption was not open to them either (§ 69). Thus, there had been no difference in treatment based on sexual orientation. In conclusion, the Court found that there had been no violation of Article 14 taken in conjunction with Article 8.”

39. 4. Proposals for reform General Scheme of the Children and Family Relationships Bill 2014 Spearheaded by former Minister for Justice Alan Shatter TD Only in General Scheme format (Heads of Bill) but quite well developed Complex and intricate – comprehensive overhaul Generally, the Bill as proposed introduces much greater flexibility for recognition of diverse parenting relationship Move towards greater facilitation of ‘social parenting’ role Best interests of the child Cf Article 42A of the Constitution (31 st Amendment)(not yet in force) Best interests of the child placed on a constitutional footing

40. Joint Adoption Scheme provides for civil partners to adopt jointly – Part 11 of the Scheme Will require that spouses and civil partners will be treated the same in respect of eligibility to adopt …but not cohabitants (cf in Re P (2008) – House of Lords finding that Northern Irish restrictions on unmarried couples adopting were contrary to the Convention) Civil partners and same-sex couples already allowed to foster LGBT people and civil partner as individuals already eligible to adopt This amendment would extend eligibility for adoption to civil partners (Cf NIHRC decision in NI)

41. Joint adoption It is vital to remember: Eligibility does not mean that the partners necessarily will be deemed to be suitable as adopters Eligibility is simply the first part of the process; one may be eligible to adopt but not be deemed suitable Best interests of the child is the primary consideration

42. Civil Partners and Adoption: England and Wales In England and Wales, since 2002, it has been possible for unmarried couples “living as partners in an enduring family relationship”, including same-sex couples, to adopt jointly (Adoption and Children Act 2002). Civil partners may also adopt jointly

43. Civil Partners and Adoption: Northern Ireland Secondary legislation in Northern Ireland, however, formerly imposed restrictions on adoptions in that jurisdiction: ◦ Article 14 Adoption (NI) Order 1987 precluded unmarried couples from adopting as a couple ◦ Article 15 Adoption (NI) Order 1987 (as amended) precluded civil partners from adopting either individually or as a couple Hence, in NI, until recently, while a person in a same-sex relationship could adopt, a civil partner could not, even as a sole adopter

44. P and Others (2008) Review under the Human Rights Act 1998 The UK House of Lords found that Northern Irish law, in preventing unmarried couples from adopting jointly, infringed the European Convention on Human Rights (Articles 14 read alongside Article 8) The measure precluded couples who might otherwise be suitable as adopters from adopting children, even where this was in the best interests of a child. Given the overriding requirement to secure the best interests of the child, the ban was found to be Thus, notwithstanding the Adoption Order, the House ruled that an unmarried couple could adopt jointly (effectively the House ruled that the relevant provision could be ignored as it was subordinate legislation that was incompatible with the Convention and with the Human Rights Act 1998)

45. P and Others (2008) Some of the judges noted that when assessing suitability of particular adopters to adopt, the fact that they were unmarried might be considered relevant to an assessment of the likely stability of the relationship. The security that marriage provides, as Lord Nicholls and Baroness Hale noted, is a relevant consideration. Marriage indicates a firmer commitment than a non-marital union and that this could be taken into account as a factor But the House concluded that one cannot thus assume that all unmarried unsuitable will be unsuitable as adopters (Lord Hoffman) Thus, while marital status may be relevant as a factor in assessing suitability and the stability of a union, it cannot be instrumental in denying eligibility where adoption would otherwise be in a child’s best interests Key criterion – best interests of child, rather than status of adopters Thus, the House ruled that a blanket ban on joint adoption by unmarried couples, rendering them ineligible to adopt jointly in all cases, infringed the Convention as it potentially prevented adoption in cases where it might clearly be in the child’s best interest to adopt

46. NIHRC Application (2012) Northern Ireland Human Rights Commission Application: in October 2012, Treacy J in the Northern Ireland High Court ruled that the ban in NI on unmarried couples adopting together infringed the Convention. He also ruled that the provision banning civil partners in Northern Ireland from adopting either together or separately, infringed the Convention Equated civil partners with married couples – by analogy with P and Others, if a ban on unmarried couples adopting jointly was contrary to the Convention, it followed that the ban on civil partners must also be unlawful

47. European Convention on Adoption Two versions – 1967 and 2008 update. Ireland is a party to the 1967 version, and has not yet ratified the 2008 update. Article 6 (1967 version) ◦ “The law shall not permit a child to be adopted except by either two persons married to each other, whether they adopt simultaneously or successively, or by one person.” Article 7 (2008 update) “1 The law shall permit a child to be adopted: ◦ a by two persons of different sex  i who are married to each other, or  ii where such an institution exists, have entered into a registered partnership together; ◦ b by one person. 2 States are free to extend the scope of this Convention to same sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this Convention to different sex couples and same sex couples who are living together in a stable relationship.”

48. Is joint adoption the solution? Provides a more stable foundation for family life Child acquires rights in respect of both parents Both may make decisions in respect of the child Adoption terminates any pre-existing rights and obligations of biological parents – adopters assume full parental rights and obligations

49. Is joint adoption the solution? Adoption can be blocked by mother, guardians or persons with charge of or control over the child immediately before placement Must meet suitability requirements Child loses rights in respect of other biological parent May prejudice the interests of existing parents (e.g. natural father) Pending the implementation of the 31 st amendment (children’s rights amendment) a child born inside marriage cannot be adopted

50. Conclusions Joint adoption for civil partners would be a welcome step Would regularise the position of many children being raised by same-sex couples In many cases, however, allowing the civil partners and spouses of parents to acquire guardianship might be a useful and simpler mechanism where one of the civil partners/spouses is the parent of the relevant child (the drawback being that the guardian is not a legal parent, and guardianship only applies until the child is 18)

51. Conclusions These are complex and intricate situations that require consideration of a complex matrix of relationships between the child and several important people in his or her life There is no ‘one size fits all’ solution Need to ensure, to the greatest extent possible, stability and security for the child in the environment in which he or she is being lawfully raised Greater recognition and support required for de facto parenting relationships Need for proper regulation of assisted human reproduction and provision for parenting resulting from such arrangements Joint adoption is part of the solution, but only one part

52. 5. Identity and access to information Vexed problem It is vital that adoption children, at least in adulthood, are allowed to access information relating to their origins This has to be balanced against the privacy rights of birth parents, where asserted Privacy should not be used as a smokescreen to protect the interests of the state or the reputation of adoption agencies and/or of various denominations/churches

53. Right to know identity IO’T v B [1998] 2 IR 321 – confirmed the right to identity, but indicated that it had to be balanced against privacy rights NB – Privacy rights are not absolute, though the privacy interest has been given some weight by the courts ◦ South Western Health Board v Information Commissioner [2005] 2 IR 547 ◦ Northern Area Health Board v An Bord Úchtála [2002] 4 IR 252 ECtHR has also confirmed right to know one’s identity: ◦ Gaskin v UK (ECtHR 2001) ◦ Mikulić v. Croatia (ECtHR 2002) ◦ Odièvre v France (ECtHR 2002) – privacy rights appeared to prevail over the right to know identity. Concern expressed that pregnant women and new mothers might not come forward for help if confidentiality cannot be guaranteed

54. European Convention on Adoption “Article 22 – Access to and disclosure of information (2008 update – not applicable in Ireland) ◦ 1 Provision may be made to enable an adoption to be completed without disclosing the identity of the adopter to the child’s family of origin. ◦ 2 Provision shall be made to require or permit adoption proceedings to take place in camera. ◦ 3 The adopted child shall have access to information held by the competent authorities concerning his or her origins. Where his or her parents of origin have a legal right not to disclose their identity, it shall remain open to the competent authority, to the extent permitted by law, to determine whether to override that right and disclose identifying information, having regard to the circumstances and to the respective rights of the child and his or her parents of origin. Appropriate guidance may be given to an adopted child not having reached the age of majority. ◦ 4 The adopter and the adopted child shall be able to obtain a document which contains extracts from the public records attesting the date and place of birth of the adopted child, but not expressly revealing the fact of adoption or the identity of his or her parents of origin. States Parties may choose not to apply this provision to the other forms of adoption mentioned in Article 11, paragraph 4, of this Convention. ◦ 5 Having regard to a person’s right to know about his or her identity and origin, relevant information regarding an adoption shall be collected and retained for at least 50 years after the adoption becomes final. ◦ 6 Public records shall be kept and, in any event, their contents reproduced in such a way as to prevent persons who do not have a legitimate interest from learning whether a person was adopted or not, and if this information is disclosed, the identity of his or her parents of origin.”

55. European Convention on Adoption Shannon: 2008 update of Article 22: ◦ “strikes a more equitable balance between the adopted child’s right to know his or her identity and the right of the natural parents to anonymity…It also acknowledges that access to birth information must be balanced against the right of a natural parent to preserve anonymity in order to protect her health.”

56. Right to know identity Adoption Act 2010: ◦ 86.  (1) An tArd-Chláraitheoir shall keep an index to make traceable the connection between each entry in the Adopted Children Register and the corresponding entry in the register of births.  (2) Notwithstanding section 85, the index kept under subsection (1) shall not be open to public inspection, and no information from that index shall be given to any person except by order of a court or of the Authority. ◦ 88.- A court shall not make an order  (a) referred to in section 86 (2),  (b) for the discovery, inspection, production or copying of any book, document or record of the Authority (or of any extracts from any of them), or otherwise in relation to the giving or obtaining of information from any of them, unless the court is satisfied that it is in the best interests of any child concerned to make the order.

57. Right to know identity Courts and Authority can release information from the index if in the best interests of the child but seem very reluctant to do so Privacy rights and any guarantee of confidentiality must be respected...but privacy is not an absolute right and has to be balanced against the right to know one’s identity and origins England and Wales – since 1975, adopted children can access their birth certificates on reaching adulthood Possible approach – some Canadian jurisdictions where there is a presumption in favour of releasing information subject to an information veto

58. Thank you!