Birth Tracing & Info

Birth Information and Tracing Act

The Act seeks to enshrine in law the importance of a person knowing his or her origins. It provides for the full and unredacted release of birth and early life information to persons who have attained the age of 16 years. In summary, the Act provides for:

• Release of the birth certificate, birth information, early life information, care information and medical information for all persons who were adopted, boarded out, the subject of an illegal birth registration or who otherwise have questions in relation to their origins (hereafter referred to as a “person concerned”);
• Release of the birth certificate, birth information, early life information, care information and medical information to the child of a person concerned in a situation where the person concerned and the parents named on the birth certificate are deceased;
• Release of information to a next of kin of a person concerned who died as a child in one of the institutions specified in the Act;
• A statutory tracing service for persons wishing to make contact, share or seek information;
• A Contact Preference Register, established in law, through which people can register their preference in relation to contact with a child or genetic relative, as well as lodge personal communications or contemporary medical information; and
• The safeguarding of relevant

The Act also amends the Civil Registration Act 2004 to address key issues arising for people affected by illegal birth registration by:

• Providing a robust legal basis for the transfer of information from Tusla to the GRO, thereby vindicating the right of relevant individuals to an accurate birth registration; and
• Providing the relevant individual with an entitlement to live under whichever identity they prefer (i.e. their accurate birth identity or the ‘social’ identity by which they have lived their whole lives) and to have their social parents recognised in law through the mechanism of a parallel register.

Interpretation

The key terms used in the Act are set out, including birth information, early life information and care information. A central term is “person concerned” which comprises:

• an adopted person,
• a person who is or has been, or reasonably suspects that he or she is or has been, the subject of an incorrect birth registration, or
• a person who has been, or reasonably suspects that he or she has been resident as a child in an institution specified in the Schedule, or the subject of a nursed out arrangement or a boarded out

Another central term is a “authority involved”. This is a body to whom an application for records may be made. The Act currently lists the Adoption Authority (“Authority”) and the Child and Family Agency (“Agency”) as relevant bodies. The Minister can designate by regulation other persons or organisations as relevant bodies to whom an application for information may be made.

Apply for copy of birth certificate

A person concerned over the age of 16 can apply to the General Register Office, an tArd-Chláraitheoir or a Authority involved for their birth certificate and it will be provided to them.

There is a process for the General Register Office and Relevant bodies to check any parental preferences that may be on the Contact Preference Register and provide the birth certificate to the applicant. Where a parent has recorded a preference for no contact, an information session is required prior to the release of the birth certificate.

Applicant  aged between 16 and 18 years

This section provides that where a person concerned, who has reached the age of 16 years but not the age of 18 years, makes an application, the applicant’s birth certificate and contact details will be submitted to the Adoption Authority so that the information can be provided via a prescrined supportive meeting. Where a parent has recorded a preference for no contact, an information session is required prior to the release of the birth certificate.

An application may be made by a person concerned to a authority involved for any birth information held. A authority involved will check any parental preferences that may be on the Contact Preference Register and provide the information to the applicant. Where a parent has recorded a preference for no contact, an information session is required prior to the release of the birth certificate.

Applicant  aged between 16 and 18 years

A person concerned, who has reached the age of 16 years but not the age of 18 years, may apply in writing to the Authority for birth information that is held by it or by the Agency and that relates to him or her, and a copy of those records will be provided via a supportive meeting. The Authority will check any parental preferences that may be recorded on the Contact Preference Register. Where a parent has recorded a preference for no contact, an information session is required prior to the release of the birth information.

A person concerned who has attained the age of 18 years may apply in writing to a authority involved for (a) early life information; (b) care information; and (c) incorrect birth registration information. The authority involved will provide the person concerned with a copy of the records it holds that contain the early life information, care information or incorrect birth registration information.

Early life information includes, but is not limited to, information on files regarding the person’s baptism, any vaccinations received, the length of time and location in which they were cared for and any information on the person’s physical, mental or emotional development.

Authority to provide early life or care information on application by person concerned aged between 16 and 18 years

A person concerned, who has reached the age of 16 years but not the age of 18 years, may apply in writing to the Authority for early life information and care information related to them which is held by the Authority or the Agency. A copy of any records held will be provided via a supportive meeting pursuant to section 18.

Application for provided items

An application may be made to a authority involved in respect of any provided items the body may hold which were provided for the purpose of being made available to the person concerned or the adopted child. The application can be made by a person concerned who is 18 years or over, or an adoptive parent, on behalf of his or her adopted child who has not attained the age of 16 years. Where a authority involved holds a provided item relevant to the applicant, it shall provide the applicant with that item.

A person concerned, who has attained the age of 16 years but not 18 years, may apply in writing to a authority involved for a specified provided item, or any provided item, that was provided for the purpose of its being made available to that person concerned. The item will be released to the applicant via a supportive meeting .

A person concerned may apply in writing for their medical information. This information will be provided directly to them if available on the prescribed records. Where a person concerned is aged 16 or 17, the information will be provided via a supportive meeting.

Information relating to genetic relative

A person concerned may apply for medical information relating to the person concerned’s genetic relative.

Such information will be provided, if available on prescribed records, only where it is necessary for the maintenance of the health of the person concerned, having regard to any guidelines produced under the Act. The name of the person and the nature of the genetic relationship will not be released. The medical information will be released through a medical practitioner nominated by the person concerned.

Information session

An information session is held between the person concerned and a suitably qualified person. A session is required where there is an application for a birth certificate or birth information and a parent named within the birth information has registered a preference for no contact. The information session can be held virtually, by phone or in person, depending on the preference of the applicant.

The content of an information session will encompass the entitlement of the person concerned to obtain, in accordance with this Act, his or her birth certificate or birth information, the fact that the parent concerned has stated, in accordance with this Act, that he or she is not willing to be contacted by the person concerned, and the importance of respecting the privacy rights of the parent and the preference of the parent. Once this information session has taken place, the Authority will be notified and will record the fact in the Contact Preference Register to ensure that only one information session will take place for a person concerned.

Person concerned who has not attained age of 18 years

These is provision  for the release of birth certificate, birth information, early life information, care information and provided items to a 16 or 17 year old person concerned via a supportive meeting. This meeting can be held virtually or in person and the person concerned can choose to have a person accompany them. The records and provided items will be provided to the person concerned during or after that meeting.

Miscellaneous

The Minister may issue guidelines for the purpose of providing practical guidance to the Agency, the Authority or a authority involved in respect of the performance by it of its functions. The Authority may designate persons or classes of persons to conduct an information session or a meeting with a 16-17 year old.

A qualifying person is a person who is 18 years old and whose mother or father, or adoptive mother deceased parent of a qualifying person. A qualifying person can apply for their relevant parent’s birth information. An authority involved will provide a copy of those records where it is satisfied that each person named in the records is deceased.

A qualifying person may apply in writing to a authority involved for the provision of any or all of the following that is held by the authority involved and that relates to his or her relevant parent: (a) early life information; (b) care information; (c) incorrect birth registration information. A authority involved will provide a copy of those records where it is satisfied that a relevant parent and their parents named in the records are deceased.

A qualifying person may apply in writing for a provided item that a authority involved may hold which was provided for the purpose of its being made available to the qualifying person’s relevant parent.

A qualifying person may apply to a authority involved for medical information relating to a relevant parent’s genetic relative. Such information will be provided only where it is necessary for the maintenance of the health of the qualifying person, having regard to any guidelines made. The name of the person and the nature of the genetic relationship will not be released. This information, where available on prescribed records, will be released through a medical practitioner nominated by the qualifying person.

Miscellaneous

The Minister may issue guidelines for the purpose of providing practical guidance to the Agency, the Authority or any other authority involved in respect of the performance by it of its functions.

A “qualifying person” is a person who is 18 years or over and who is the next of kin of a person concerned who died while he or she was resident in an institution specified in the Schedule. The latter is termed a “relevant relative”. The categories of persons  considered as next of kin are specified.

A qualifying person can apply for their relevant relative’s birth information. A authority involved will provide a copy of those records where it is satisfied that each person named in the records is deceased.

Early life, care information or incorrect birth registration

A qualifying person may apply in writing to a authority involved for the provision of any or all of the following that is held by the authority involved that relates to his or her relevant relative: (a) early life information; (b) care information; (c) incorrect birth registration information. A authority involved will provide a copy of those records where it is satisfied that a parent of the person concerned named on the records is deceased.

A qualifying person may apply for a provided item that a authority involved may hold which was provided for the purpose of being made available to the qualifying person’s relevant relative, who is now deceased.A qualifying person may apply in writing to a authority involved for medical information that relates to his or her relevant relative. This information shall be provided to the qualifying person.

The Minister may issue guidelines for the purpose of providing practical guidance to the Agency, the Authority or any other authority involved in respect of the performance by it of its functions under this Part.

Tracing service

Tusla and the Authority  deliver a tracing service. Traces will be carried out to locate individuals for the purposes of contact or sharing of information. The tracing service is available to persons aged 18 and over.

An application for a tracing service can be made by a person concerned and by the defined categories of relatives .An adoptive parent of an adopted child can also seek a trace where the adoptive parent is seeking to locate a person for the purpose of requesting further information in relation to the person or providing information relevant to the person.

Minister may authorise Agency and Authority to conduct trace

The Minister may, by direction in writing, authorise the Agency or the Authority to conduct a trace of an individual, or a class of persons, where he or she is satisfied that it is necessary, and in the public interest, for a trace to be conducted in respect of the individual or class of individuals concerned.

Agency and Authority may request information

Tusla and the Authority to request information from third parties, for the purpose of the delivery of the tracing service. There is a list of  bodies to whom a request for information can be made.

When a specified person is located, the Authority or the Agency should ascertain from the person whether or not he or she is willing to have contact with the requester or is willing to share or accept information.

An adopted person born outside of the State and who is aged 18 years or over can apply to the Authority for a tracing service. The Authority shall transmit the application made under this section to the relevant authority of the place at which the adopted person was born.

The Minister may issue guidelines in relation to the carrying out of the tracing function by the Agency and the Authority.

Contact Preference Register

There is a Contact Preference Register. This Register, which is to be established and maintained by the Authority, will allow persons to apply for an entry in the Register in respect of their contact and information preferences. Preferences and contact details which are captured on the contact register could be updated at any time but without prejudice to the validity of information communicated prior to updates being made.

There are defined the categories of persons who can apply to be entered on the register, and sets out how the application is made.

Lodging of information and items

Persons may lodge information and provided items to the Authority, which they wish to be shared with a specified individual. The information will be lodged in a sealed manner. The Authority will record the lodgement in the Register and create a reference number that links the information or item with the entry on the register and will safeguard the item.

The  Authority will either seek to share information and items, communicate a request for information, or inform a person of the other person’s contact preference, as relevant.

Where a person makes an application to the Register, the Authority will notify the person where appropriate of the tracing service.

Transfer of information and preferences

This section allows for the transfer of all information and preferences from the existing non statutory National Adoption Contact Preference Register (NACPR), established by the Authority in 2005, to the new register to be established under this Part. It specifically seeks to provide that any contact preferences in the NACPR shall be deemed to be statements under the 2022 Act.

The Minister can prescribe a secondary information source where the Minister reasonably believes that the person holds relevant records.

A primary information source is to  retain and maintain all relevant records held by it. This includes, in the case of the Authority, records transferred to it. A secondary information source will retain and maintain all relevant records held by it. It also provides for a secondary information source to furnish a statement to the Authority which will state the nature, current location and condition of the relevant records held.

Secondary information source or other person may request transfer of relevant record

A secondary information source or other person can request that the Authority issue a direction to take the records into its possession. Such a request must be in writing and must set out the reasons for the request.

The Authority can issue a direction to a secondary information source or other person requesting it to provide a statement outlining the relevant records it holds. Following receipt of that statement, the Authority must issue a written direction within 6 months directing that the relevant records be taken into the charge of the Authority.

The Authority is also empowered to issue a direction to a person, other than an information source, to transfer relevant records to it. This latter provision is required to facilitate a smooth transfer of records which are held by persons who may hold minimal records (for instance doctors surgeries) and does not necessitate the prescribing as an information source. When issuing a direction, the Authority should have regard to the public interest and any factor that indicates a record may be at risk for any reason.

In future adoptions, any relevant records held or created should be maintained by each respective body.

Authorised officers can be appointed who can inspect records held by bodies. This helps ensure that the Authority can carry out its function of taking charge of relevant records.

Correction of  Register

This 2022 Act amends the Civil Registration Act 2004 to provide for a person whose birth was incorrectly registered on or before the 31 December 1980 insofar as the name of a person other than his or her mother was entered as the person’s mother and assumed the role of his or her mother. It provides for the process for An tArd-Chláraitheoir to receive or request certain information concerning affected persons, to correct an affected persons’ birth registration and to create a separate registration that reflects the affected person’s social identity (i.e. the name of the relevant individual and their social parents as recorded on their incorrect birth registration).

Prior to making such a correction, cancellation or registration, an tArd-Chláraitheoir shall notify any person in relation to whom personal data is intended to be corrected, cancelled or registered. The person notified may make a submission to an tArd-Chláraitheoir in relation to the proposed correction.

A separate register was established that reflects the affected person’s social identity. The affected individual can obtain a certified copy of this register that would reflect their social identity. He or she are entitled to a certified copy, copy or certified extract of an entry in the register specified by the person, i.e. the birth register or the separate register established under the 2022 Act.

An tArd-Chláraitheoir maintains an index to make traceable the connection between each entry in the register (i.e. the register that reflects the person’s ‘social identity’) and the corresponding entry in the register of births. This index 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. The  Minister for Social Protection, following consultation with the Minister for Children, Equality, Disability, Integration and Youth and an tArd-Chláraitheoir, may make regulations to ensure the effective operation of the legislation.

Public information campaign

The  Authority is to undertake a public information campaign on the process for applying to the new statutory Contact Preference Register and recording a contact preference, as well as advising that existing entries on the current register will be transferred to the new statutory register. It will also communicate the process for applying for information, and the GDPR rights that can be restricted in order to ensure a full release of that information.

Designation of relevant bodies

The Minister may designate by regulation the persons or organisations which qualify as relevant bodies to whom an application for information may be made. While the Authority and Tusla are already designated as relevant bodies in the Act, this alloes flexibility and clarity in terms of identifying other bodies to whom a person could apply for access to information and records. This could include statutory bodies such as Government Departments or Agencies, as well as non-statutory bodies, such as religious congregations, who may hold records containing birth and early life information.

Commission of Investigation into Mother and Baby Homes

Tusla may  process the database and related records transferred to it by the Mother and Baby Homes Commission of Investigation for the purposes of performing its information release and tracing functions. The Department of Children, Equality, Disability, Integration and Youth may process the copy of the database and related records within the archive of the Commission of Investigation into Mother and Baby Homes for the purpose of information release to applicants, in circumstances where the Department is a authority involved.

Agency and Authority to offer assistance and support

The Agency and the Authority may provide support and assistance to persons making applications under the Act. This includes providing assistance to a person regarding where their records may be held. This could also involve support in understanding the records released or offering counselling following the release of records.

Offences

There are offences in respect of the concealment, mutilation, destruction or falsifying of records, or failing to comply with a direction of the Authority.

Immunity

An employee is immune from liability for providing information where the processing of that information, including its release, is in accordance with this legislation and where the employee was acting in a reasonable manner.

Regulations for purpose of data protection

This section provides a regulation making power for the Minister may make regulations to prescribe by regulation measures to be undertaken in the processing of personal data.The GDPR rights are only restricted in very necessary and limited circumstances and in a proportionate way to enable the release of information under the Act. The risks to the rights and freedoms of data subjects has been assessed carefully. This following rights and obligations will be restricted:

• Article 14, obligation that a data controller should provide information to the data subject where personal data have not been obtained from the data subject;
• Article 18, the right to restriction of processing;
• Article 21, the right to

Article 12 will have an ancillary restriction due to the restrictions of these articles.

Counselling support for parents

Where a parent has registered a preference for no contact, they will be informed by the Authority of their entitlement to avail of counselling support provided through the Agency. The Agency may provide counselling support services to any parent or person concerned who seeks it.

Review of operation of Act

The Minister shall, not later than 4 years after the coming into operation of this section carry out a review of the operation of the 2022 Act other than Part 8.

Adoption Act 2010

The Adoption Act is amended to allow the Adoption Index to be accessed in accordance with the provisions on information release.