Kenny’s Adoption Referendum Claim ‘does Not Survive Scrutiny’

By Conall O Fatharta
Irish Examiner
June 14, 2014

http://www.irishexaminer.com/ireland/kennyrsquos-adoption-referendum-claim-lsquodoes-not-survive-scrutinyrsquo-272088.html


Taoiseach Enda Kenny’s claim that a referendum may be needed to give adopted people basic rights has been dismissed as one which "does not survive scrutiny".

Mr Kenny made the claim, which has been previously asserted by former children’s minister Frances Fitzgerald, in the wake of the mother-and-baby homes scandal.

The Government has promised tracing legislation for adopted people since 2011 but has so far failed to publish a heads of bill.

However, senior lecturer in Constitutional Law at UCC, Conor O’Mahony, said on his blog that such a claim was without foundation.

“This is a familiar claim when calls for reform are being resisted; governments are fond of attributing their inaction to constitutional restrictions. In this case (as in many others) the claim does not survive scrutiny,” wrote Dr O’Mahony.

He said it was “clear” that a Supreme Court judgement in 1998 left the issue open for the Oireachtas to legislate for.

“There is simply no question of a constitutional impediment arising to the extent that a referendum is required to pave the way for reform,” he said.

The 1998 ruling found the natural mother’s constitutional right to privacy had to be balanced against the child’s constitutional right to identity.

The Adoption Rights Alliance is just one of many groups that have criticised the judgement for providing adoption agencies with the ability to impose a blanket ban on all access on information as to the circumstances of their birth.

Dr O’Mahony pointed out that while the judgement accepted the mother’s right to privacy, it stipulated that “the natural mother did not have an absolute constitutional or legal right to have the anonymity guaranteed to them at the time they placed the child for adoption preserved”.

The UCC constitutional law expert said that, since adoption tracing is a matter of competing rights, it is an issue for the Oireachtas to address.

“This issue is quite clear-cut — so why did the Taoiseach suggest otherwise? Were his remarks off the cuff, or were they based on advice from the Attorney General’s office?” asked Dr O’Mahony.

“Either way, the statement is the latest in a long line that indicates a worrying attitude towards the Constitution on the part of Irish parliamentarians.”