THE STATE WILL argue that the women seeking judicial reviews in relation to the final report of the Commission of Investigation into Mother and Baby Homes are not identifiable in the document.

Eight women, some of whom cannot be named, are taking legal challenges.

A number of women have claimed that their testimony was misrepresented in the report and have taken issue with the fact they were not given a right to reply before the report was published.

As the Commission itself dissolved in February, the women are taking cases against the Minister for Children, the Irish Government and the Attorney General.

The cases are listed for mention again next Tuesday, 22 June. A hearing date for later this year may be set next week, or this may be delayed if an extension is granted. Each case may be heard individually or a smaller number of test cases may be used.

A number of high-profile survivors are taking legal action including Philomena Lee.

Lee (88) is seeking to have certain findings of the Commission’s final report, such as those related to forced adoption, quashed.

The Chief State Solicitor’s office submitted statements of opposition in the cases last night. The Government, Minister for Children and Attorney General oppose a judicial review being granted.

The Government is set to argue that Lee and others taking legal action are not identifiable in the final report. It will also stress the fact that, although set up by the Government, the Commission acted independently.

Lee was sent to Sean Ross Abbey mother and baby home in Co Tipperary in 1952 when she was pregnant and her son was later adopted without her consent. Her son died before the pair had a chance to reunite, despite both parties trying to find each other.

Lee’s life story was the subject of a book, The Lost Child of Philomena Lee, by Martin Sixsmith. The book was later made into an award-winning film, Philomena, in 2013.

Legal documents submitted on Lee’s behalf in April, stated that there are “numerous findings of the Commission in its final report which are at odds with the testimony of [Lee] provided on affidavit to the Commission”.

The documents add that despite the fact that Lee is identifiable in the final report, the Commission did not provide Lee with “a draft of the report or any relevant part of the draft report as required by section 34 of the Commissions of Investigation Act 2004″.

The document continued: “If the Applicant had been provided with a draft copy of the Commission’s report as required by law, she would have had the opportunity to make submissions to the Commission seeking correction, clarification and expansion of the relevant portions of the report which affect her fundamental rights.

“In the event that this could not be agreed with the Commission, she would have had the opportunity to apply to Court for the report to be amended pursuant to section 35 of the 2004 Act.”

‘Not identifiable’

The State is set to argue that Lee and the other women are not identifiable in the final report.

In documents submitted last night, the Government and Minister state they “did not have any role or involvement in how the Commission carried out its investigation or drafted its reports or otherwise discharged its functions under the 2004 Act”.

As such, the solicitors argue that “it would not be appropriate for the [Government and Minister] to defend the factual findings of the Commission, save so far as can be done by reference to the contents of the report of the Commission, other publicly available material and any material relied upon by the Applicant herself”.

The Government and Minister accept that Lee “considers herself to be identifiable” from passages in Chapter 19 of the final Report on the Sean Ross institution. However, they disagree that she is identifiable “on the basis of the limited information contained in the relevant paragraphs”.

The document states the following:

• The Applicant is not named or otherwise directly identified in the Reports.
• Given that the Commission operated independently of the Respondents, and that the Respondents have no direct knowledge of the full range of evidence to which the Commission had regard in drafting the Reports and/or in arriving at the analysis and conclusions reached in particular parts thereof, the Respondents are not in a position to determine and/or verify whether relevant paragraphs or parts of the Report may be attributed to a particular witness or witnesses.
• On the basis of the information contained in the Report, the Respondents understand that 550 persons gave evidence to the Confidential Committee. In addition, it appears that over 100 women were admitted to Sean Ross in 1952.
• In accordance with the Terms of Reference, the Confidential Committee Report was expressly required to be a report of a general nature.

The State’s solicitors argue that the Commission “was entitled to a margin of discretion in determining whether a person is identified in or identifiable from the draft Report”.

“If and insofar as the Court were to conclude that the Applicant is identifiable from the relevant paragraphs of the Final Report or the Confidential Committee Report, it is accepted that the Applicant would have been entitled to be furnished with a draft of the relevant part(s) of the said Reports and that the Applicant would be entitled to a declaration to this effect.

However, even if the Applicant were entitled to be furnished with a draft of the relevant part(s) of the said Reports, it is not accepted that this would have entitled the Applicant to be furnished with, and/or to make submissions on, any other parts of the Reports and/or to have parts of the Report quashed.

“Having regard to these matters, and the scope and complexity of the matters under investigation, it is not accepted that a failure on the part of the Commission to refer to the evidence of the Applicant in particular paragraphs of the Reports has the effect of rendering such paragraphs of the Reports unfair and/or unlawful.”

The State also argues that in terms of Lee seeking to have certain parts of the final report or its executive summary quashed, “it is not accepted that such relief is appropriate in all the circumstances”.

The documents state that the Executive Summary “is not, and could not be expected to be, a complete account of the Commission’s investigation”.

Many survivors and stakeholders have pointed out that some of the findings outlined in the Executive Summary contradict witness testimony given to the Confidential Committee.

The State also denies that certain sections of the 2004 Commissions of Investigation Act are incompatible with the State’s obligations under the European Convention on Human Rights (ECHR).

The Journal understands that the Government will make similar arguments in the other cases being taken by survivors.

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Dáil discussion

Social Democrats TD Holly Cairns raised the issue in the Dáil this afternoon.

She asked the Taoiseach how the Government can defend the Commission’s final report and oppose judicial reviews, while at the same time appoint an independent expert to review survivors’ testimony.

Cairns told Micheál Martin: “You can obviously see the inherent and very blatant contradiction in the Government’s approach – it can’t simultaneously defend the report and suggest it is so fundamentally flawed, that a separate review of the report is required.”

In a brief response, Martin said: “The Mother and Baby Homes Investigation was under the aegis of a Commission of Investigation. It’s independent of the Oireachtas, it’s independent of Government in terms of its findings, in terms of its content.”

Martin said, as with any report, people may “disagree” over its findings.

He added that Children’s Minister Roderic O’Gorman is working on the Government’s response in terms of redress, legislation and other supports.

Other cases

Mr Justice Garrett Simons in April granted special leave in the Lee case so her legal team could issue proceedings. Justice Simons also granted leave in the other cases being taken.

One such case is being taken by Mari Steed, who was born in the Bessborough Mother and Baby Home and is the US co-ordinator of the Adoption Rights Alliance. She is seeking to quash the Commission’s finding that there was no evidence any child was harmed by vaccine trials carried out at the institutions.

In March another survivor, Mary Harney, was given permission by the High Court to bring an action aimed at quashing certain parts of the Commission’s final report.

Harney (72), who was born in the Bessborough mother and baby home in Cork in 1949, also claims her statutory rights were breached by an alleged failure to be given an opportunity to make submissions on the Commission’s draft report before the final report was published three months ago.

Another case is being taken by Mary Isobelle Mullaney, who lives in Dublin and was born in the Sean Ross Abbey home.

A number of other women who are taking cases cannot be named.

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