Tuam DNA samples can be taken in absence of new law
DNA samples can be speedily taken from survivors of the Tuam mother and baby home without the need for new legislation.
That is the central finding of a report prepared by Geoffrey Shannon following a call from the Tuam Home Survivors’ Network in February. The group asked that DNA samples be gathered from survivors as soon as possible in light of the age profile and health status of the survivors.
Mr Shannon found that while the current Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 may not be suitable for the collection of such samples, it could be done by way of a voluntary administrative scheme and without the need for new legislation.
The report states that although the introduction of bespoke legislation “has certain advantages”, there is “no reason, in principle, why an appropriate administrative scheme could not be established on the basis of other legal instruments”.
Dr Shannon said that there is “no inherent prohibition on the operation of an appropriate administrative scheme for the provision and analysis of genetic material on a voluntary basis”.
The report says that the Government has the power to establish such schemes to implement desired policy objectives and has done so in the past. Dr Shannon said many of these schemes operated with no statutory basis and specifically highlighted the example of the direct provision system as an example.
It is likely that a similar scheme could be applied to in the case of any other institution where infant remains are discovered found.
Children’s Minister Katherine Zappone said she would consult with her department’s legal advisors and relevant agencies towards developing the administrative scheme “within the coming months”.
I am very sympathetic to the concerns of survivors and family members that their age and health profiles introduce an element of urgency when it comes to the collection of biological samples.
The Department of Children and Youth Affairs is currently drafting legislation to facilitate the full exhumation and forensic analysis of the remains found at Tuam. The administrative scheme will then be subsumed into the legislation once that is ready.
No DNA profiles will be generated from the biological samples until the legislation is in place and it has proven possible to generate DNA profiles from the juvenile remains.
The report advises that the administrative scheme will have to be operated on the basis of informed consent in order to satisfy GDPR and constitutional requirements around data protection. Participants should be able to decide towithdraw at any time and request that their sample and the information held about them be destroyed.
Human rights lawyer Colin Smith said to comply with its obligations under the Constitution and the European Convention on Human Rights, the State needs to provide answers to the families and survivors, involved and he criticised the delay in bringing forward legislation to facilitate the exhumation.
“If legislation was deemed necessary to do this when the exhumation was announced in October 2018, where is it? The DNA in the site is deteriorating, so any delay makes identification more difficult. The investigation can begin without legislation, and it must begin immediately.”
