Human Rights
By Conal McGarrity
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Illegal Adoption – The Duty to Investigate and Remedies for Victims

Adoption has been a common theme in Ireland for the last 100 years and until recently was administered predominantly by institutions associated with the Catholic Church and the Irish State. Adoption was particularly common in Ireland due to the perceived guilt and shame of having a child out of wedlock. Thousands of children were admitted to the care of adoption institutions who failed to implement proper procedures for the registration of adoptions.

Investigations carried out by Barnardo’s children’s charity have found that there may be up to 15,000 illegal adoptions throughout Ireland where adoptive parents were registered as birth parents.
The organisation Adoptions Rights Allowance have also found that at least 182 institutions or individuals across Ireland have been involved in illegal adoption practices.

One such institution that has come under intense scrutiny is the now defunct St Patrick’s Guild who have been found to be responsible for the incorrect registration of 126 adoptions. This led to TUSLA, Ireland’s child protection agency, contacting the affected individuals in 2018 to inform them of this practice of illegal adoption.

Calls for a Public Inquiry on Illegal Adoption

TUSLA are in the process of reviewing adoption records but have come in for criticism due to the selective and arbitrary nature of their investigation of individual cases. There are thousands of records to consider and it seems that TUSLA has neither the resources nor the investigative capacity to undertake such a wide-ranging investigation.

To date St Patrick’s Guild is the only institution who have been properly investigated and 126 illegal adoptions were identified within this institution alone. It is widely considered that hundreds of institutions across Ireland were involved in illegal adoption, many of whom were overseen by the State or the Catholic Church.

The issue of illegal adoption is also not unique to the Republic of Ireland. The Catholic Church and the Church of Ireland also operated care homes in Northern Ireland. Amnesty International have called for a ‘proper human rights compliant public inquiry’ into the infamous mother and baby homes which operated in Northern Ireland throughout the 20th Century. This would be a welcome development and would complement investigations into the practice of illegal adoption.

It is envisaged that a full public inquiry would be a more effective mechanism for investigating the extent of illegal adoption throughout Ireland.

Claims for Damages

Civil proceedings can be issued by victims against the institution responsible for their illegal adoption and/or the Church and State. Claims of this nature allow victims of this corrupt practice to recover damages for personal injury and loss including psychological damage, distress and anguish. Damages can also be sought for actionable conspiracy, deceit, malicious falsehood and infringement of constitutional rights. There is also a strong argument that victims rights to a private and family life under article 8 of the European Convention on Human Rights have been breached.

Proceedings were issued in the first illegal adoption case in the High Court in Dublin on 30th July 2020. Patrick Fitzsymons, an actor in the popular BBC programme Line of Duty, has taken a civil claim against the church and state agencies that were responsible for his illegal adoption. The claimant’s birth parents put him up for adoption after being born out of wedlock. He was admitted to the care of St Patrick’s Guild and later adopted by a couple who were incorrectly registered as his birth parents.

The first step in these cases would essentially be to obtain all relevant documentation in relation to a claimant’s adoption in order to examine whether or not proper procedures were followed. These records are currently held by TUSLA, the Adoption Authority of Ireland, the Northern Ireland Public Records Office and other existing/ former institutions. If these records are not provided voluntarily then a Court Order can be sought to compel Discovery of the documents.

We believe that proper investigation of these cases will reveal systematic failings on the part of the State, church and adoption institutions. Our goal is to uncover the systematic failings in relation to adoption practices in Ireland and to ultimately seek closure for victims.

Our human rights solicitors are qualified in both Northern Ireland and the Republic of Ireland, leaving us ideally placed to deal with cases in both jurisdictions.

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