HOW MUCH REDRESS should a person who spent less than six months in a mother and baby home as a child get?
How many Commissioners will appear before the Oireachtas?
How many official reports with disputed findings should be repudiated?
How many independent reviews will take place?
The answer to all these questions is none, evidently.
The Commission of Investigation into Mother and Baby Homes published its final report on 12 January 2021 – almost six years after the inquiry was established.
Tens of thousands of pregnant women and girls were sent to these institutions throughout the 20th century. Their children were generally adopted or sent to industrial schools – at times without their mother’s consent.
Mother and baby homes existed in many countries but the proportion of unmarried mothers sent to institutions in Ireland is believed to have been the highest in the world.
Survivors had hoped the Commission would finally shed light on how and why these institutions existed, and detail the personal trauma many of them experienced. Instead, much of their evidence was dismissed and labelled ‘contaminated’ or ‘unreliable’.
As soon as the report was published, there was confusion and outrage over many of its conclusions.
The Commission said it found little evidence of issues such as forced adoption, forced incarceration and discrimination – despite personal testimony that detailed exactly that. Not all adoptions were forced or illegal, of course, but many were.
The Commission heard people’s testimonies via two Committees: the Investigation Committee and the Confidential Committee. Crucially, the vast majority of the personal testimony gathered by the Commission was given via the latter.
It later transpired that testimony from the Confidential Committee was not given the same weight as evidence gathered by the Investigation Committee because it was not delivered under oath and not given the opportunity to be legally tested.
Many survivors thought the Confidential Committee was the only way to give evidence. When they applied to take part in the Commission, they said they were directed to this committee and did not know that another committee even existed.
Some witnesses did know there were two different committees, but believed that their evidence would be given the same weight – regardless of which committee they spoke to.
Many people only realised this was not the case after the report was published – and when it was too late to do anything about it.
At the start of the Confidential Committee section of the report, the Commission says it “has no doubt that the witnesses recounted their experiences as honestly as possible”.
“However, the Commission does have concerns about the contamination of some evidence. A number of witnesses gave evidence that was clearly incorrect. This contamination probably occurred because of meetings with other residents and inaccurate media coverage,” it states.
By making a sweeping statement like this – rather than highlighting certain concerns it had – the Commission cast doubt over the integrity of the entirety of the evidence given to the Confidential Committee.
Survivors felt infantilised and insulted all over again. The anger and hurt was palpable.
In the 21 months since the report came out, there have been repeated calls for it to be rejected by the Government so it does not stand as the official record of what happened in these institutions.
The Government is against this approach and, in June 2021, a different path was suggested by Children’s Minister Roderic O’Gorman.
He said the testimony given by over 500 survivors to the Confidential Committee would be reviewed by an international human rights expert. Many campaigners didn’t think this went far enough, but viewed it as a step in the right direction.
In the succeeding months, when asked how the review was coming together, the minister’s answers became increasingly vague.
Review scrapped
Ultimately, in response to an inquiry from the Irish Examiner, the Department of Children confirmed in August 2022 that the review had been quietly scrapped.
Little reason for the u-turn was given. And, yet again, survivors found out important details about the Government’s plans – or lack thereof – in the media.
All this unfolded during the Dáil’s summer recess. So, TDs and senators only got a chance to grill O’Gorman on the topic last Tuesday when he appeared before the Oireachtas Children’s Committee.
In his opening statement, O’Gorman said that “significant legal complexities would arise in seeking to facilitate an external review of accounts provided privately and in confidence within the robust legal framework of a Commission of Investigation”.
The minister continued: “Government cannot, via a non-statutory process, retrospectively alter or interrogate the independent Commission’s findings or methodology. We must be upfront in relation to such complexities. This does not prevent human rights experts, or others, from further analysis of these matters.”
In response to these comments, Social Democrats TD Holly Cairns asked, if the Government cannot interrogate or alter the inquiry’s findings in a non-statutory way, would it consider doing so in a statutory way?
O’Gorman said the Government’s planned response – to develop a national research and remembrance centre in which some survivors’ testimony will be preserved and made public – amounts to them “proceeding in a statutory way” as this proposal “will need to be based in statute”.
When asked for further clarity, a spokesperson for the Department of Children told The Journal this initiative “will allow the lived experiences of survivors and former residents to be recorded in their own words and stand as part of our national record of these institutions”.
“The process will be underpinned by statute and operate on a voluntary basis, with personal accounts received and utilised with the consent of participants.
“This initiative will enable human rights experts, academics and others to conduct further independent studies informed directly by the experiences of those who spent time in these institutions.”
Cairns says "picking one thing that is important" to survivors (remembrance centre) but ignoring other things they want - such as the review - makes no sense.
— Órla Ryan (@orlaryan) October 4, 2022
She says the COI's findings were "fundamentally flawed" and have a knock-on effect on redress.
"People want justice."
Cairns and other committee members once again asked if the Government would consider repudiating the Commission’s final report. O’Gorman was quick to nip this idea in the bud.
The minister said: “If this Government takes a decision to repudiate a report that is disagreed with, what will happen when a Commission of Investigation report is undertaken, criticises a future Government and that Government decides to repudiate that report?
“The Deputy may disagree with me on this point but a decision by a Government to repudiate an independent Commission of Investigation report has serious consequences that may be unforeseen.
“There are undoubtedly legitimate criticisms of elements of the Commission’s report. There is also material of considerable value in that report. It is clearly documented and evidenced in the report that the State knew what was happening in these institutions and failed to act.
“Inspectors from the Department with responsibility for local government were writing reports stating that children in these institutions were not being properly fed, and that children and mothers were dying. That was ignored by officialdom. I do not want those findings repudiated.
“That is an important element of the findings. That is on the specific issue of this report. There is also a broader issue about a Government making a determination to repudiate an independent report and the precedent that would set.”
Cairns acknowledged there would indeed be consequences to repudiating – or not repudiating – the report.
“I fully understand what the minister means about that. It is, however, important for us to acknowledge here today that there are consequences for not repudiating a report that has incorrect findings and which did not even produce any kind of methodology into how it came about those findings,” she said.
High Court cases
It could be argued that the Government, in fact, already has rejected certain sections of the Commission’s report on foot of a judicial review last year.
After the Commission itself dissolved in February 2021, eight women took legal action against the State over how the Commission operated and the conclusions it came to. Two women were used as test cases in the High Court: well known survivors Mary Harney and Philomena Lee (whose life story was made into a film starring Judi Dench in 2013, Philomena).
The women’s legal teams argued that both of them were identifiable in the Commission’s final report and, as such, they should have been given the chance to read the sections related to them in advance of publication. This did not happen and, as a result, the women said inaccuracies about their testimony were included in the report.
In December 2021, the State acknowledged the women’s rights were indeed breached when they were not allowed to correct the inaccuracies prior to publication. This was a significant victory for survivors.
As part of the settlement reached between the women and the Government, a statement acknowledging this breach of rights was published alongside the final report. It notes that some survivors do not accept elements of the report as “a true and full reflection” of the evidence they gave.
During Tuesday’s debate, Cairns asked O’Gorman if the Government would, or could, add further amendments to the report.
Referencing the outcome of the judicial review in the High Court, Cairns said: “There is a mechanism for survivors to get an amendment to it. Is there a mechanism for the Minister to do that?”
O’Gorman replied: “Not that I am aware of.”
Cairns pushed O’Gorman on why a statement could be published alongside the report detailing survivors’ issues with it, but he as minister could not do the same.
O’Gorman replied: “That option is only open to them because they are identifiable in the report. It is not open to a Minister of the Government because that route, in terms of being identifiable, does not exist in that situation.”
Cairns: “Is it possible there could be another reason other than being identifiable, for example that the findings of the report would be factually incorrect?”
O’Gorman: “No.”
Cairns: “The only way to get it is if a person is identifiable in the report?”
O’Gorman: “That is my understanding, yes.”
There was confusion in the committee room as to how this could be the case, and a number of legal experts have since questioned whether or not O’Gorman’s comments are accurate.
The Journal asked the Department of Children to clarify what legally underpins O’Gorman’s reasoning on this point.
A spokesperson told us the judicial review cases in 2021 “were procedural in nature with the applicants arguing that they were identifiable in the report and therefore entitled to a draft of the relevant part of the report, prior to its publication”.
The spokesperson continued: “In light of the evidence on identity provided by the applicants in these cases, the State consented to a declaration and agreed to publish a written statement identifying key paragraphs of concern to the applicants in these cases.
“The minister was not a witness to the Commission and could not bring proceedings on this basis.”
Mary Harney, one of the women who successfully took legal action in the High Court, was watching Tuesday’s debate unfold online. She was very angry afterwards, telling The Journal: “I am spitting teeth. O’Gorman once more has his cloth ears on.”
She also accused the minister of “totally ignoring” the fact that the UN Human Rights Committee and other experts have called for a human rights based investigation into what happened in these institutions.
It should also be noted that a number of other human rights experts have criticised the Government’s response to the “systemic racism” faced by mixed-race people who passed through State and religious-run institutions between the 1940s and 1990s.
As revealed by The Journal last month, these experts believe the Government has not sufficiently addressed this issue, and that its planned redress scheme is inadequate.
The Government has been at pains to stress that its redress scheme, in some ways, goes above and beyond what the Commission recommended. It does however base the amount of compensation on a person’s length of stay in an institution – an approach most survivors did not want.
As it stands, many mothers who spent time in an institution are entitled to receive as little as €5,000, while people who were boarded out (a precursor to fostering) or spent less than six months in an institution as a child are excluded from the scheme.
Confusion and contradiction
In the last two years many questions have been asked about how the Commission operated and came to the conclusions it did. The people best placed to answer these questions are the three commissioners – but we’ve heard very little from them.
They have not spoken publicly about their work, bar one notable exception. Professor Mary Daly spoke about the Commission at an online event organised by Oxford University in June 2021.
During this talk, Professor Daly acknowledged that testimony from the Confidential Committee was not given the same weight as evidence gathered by the Investigation Committee as it was not delivered under oath.
She said the Commission had to be “ultra careful” in terms of what it published due to the “looming” threat of legal challenges from religious orders.
“If we wrote something that was averse or critical about an individual or an entity, an institution, we had to write a draft report, send them that draft report where we made these critical observations and supply them with the accompanying documentation. And they had a chance to read that, and they had a chance to come back.”
It was actually in response to Daly’s comments that O’Gorman proposed the independent review in the first place.
That same month, Daly and the other commissioners turned down a request to appear before the Oireachtas Children’s Committee. In a letter sent to the Committee at the time, Justice Yvonne Murphy said Daly’s comments had been taken out of context.
Murphy said it was not true that some women’s testimonies were “discarded”. She also denied that any religious orders had threatened to pursue judicial reviews.
Still, the evidence given by religious orders was seemingly taken at face value by the Commission. Some organisations were also given the chance to read sections of the report related to them and respond to certain claims.
This same courtesy was not afforded to survivors like Harney and Lee.
Significant consequences either way
Just 64 people gave evidence to the Investigation Committee, whereas 550 people (mostly survivors) gave evidence via the Confidential Committee.
Only 19 people who applied directly to give evidence to the Investigation Committee were successful, and it’s not clear how the other witnesses were chosen.
If more survivors knew there were two different committees, a larger number of them would likely have attended the Investigation Committee – potentially resulting in a report containing very different findings.
During Tuesday’s committee hearing, Senator Tom Clonan said we must learn from how poorly the State has treated survivors of mother and baby homes and other institutions over the last century.
If we don’t, we’re “doomed to repeat the same mistakes over and over again” in terms of how we treat vulnerable people, Clonan told O’Gorman.
He added that the State response to date could have “a chilling effect” on the willingness of people to come forward and share their lived experiences in a way that helps Ireland understand our history and “how we got to where we are”.
Many survivors are now speaking out – about what happened to them and what needs to happen next – but are we actually listening? Or do we have cloth ears on?
Some consequences – like some testimonies – are more important than others, evidently.
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