Legislation governing the redress to the survivors of Mother and Baby Homes in Ireland is expected to come before the Dáil for a vote tomorrow night. Under the proposed bill, mothers who spent time in an institution are eligible for redress, but those who spent time in an institution as a baby are not eligible unless they spent more than six months there.
This has been the cause of much distress to the families of those affected and has prompted some experts to say it does not take into consideration the lifelong impact of family separation and early trauma. Here, barrister Seán Beatty looks at that decision and questions the government’s reasoning behind it.
THE MOTHER AND BABY Institutions Payment Scheme Bill 2022 (“the Bill”) is designed to provide financial redress to Mother and Baby Homes survivors. Substantial concerns have been raised with the proposals it contains.
The purpose of this article is to highlight the failure of the government to provide any convincing reasons as to why the Bill does not remedy one of the most troubling issues: that children resident in an institution for fewer than six months will be entitled to no compensation whatsoever.
The government has stated time, time, and time again that the Bill is merely a single aspect of a larger “action plan”. A wide-ranging solution is helpful. But the breadth of a plan cannot paper over cracks created by its lack of depth.
Each element has a purpose—the omission of a group of survivors from the Redress Scheme is a clear failure of its purpose. The broader action plan does not cause this concern to disappear. The plan’s effectiveness clearly depends on each facet being executed correctly.
Another oft-repeated element of the government’s reasoning is that “[w]e did not limit ourselves to the limitations that the commission set out”, and that the plan is “much broader and encapsulated a greater number of survivors and former residents than anything the commission put forward.”
This relates to the fact that the Bill expands on recommendations contained in the Final Report of the Commission of Investigation into Mother and Baby Homes (“the Final Report”).
Yet the Final Report has been the subject of sustained criticism. The Minister for Children, Equality, Disability, Integration and Youth (“the Minister”) settled litigation brought by survivors which resulted, among other things, in a statement being appended to the Final Report highlighting 64 impugned paragraphs. Therefore, an improvement on its recommendations is no more than the bare minimum and cannot insulate the Bill from criticism.
The government relies on a view said to be expressed by survivors who resided as children in institutions that their “overwhelming priority need” was access to information and birth certificates. This has been recited often (see here, here and here).
The government appears to believe it supports the decision not to make children who spent fewer than six months in an institution eligible to receive a redress payment. It is difficult to see the sense in this.
First, even if it is true that prioritising access to information was the initial view received by the government, it was just that: an initial view. Views can change. Why the government is wielding an initial view in this way has not been explained. Were those individuals aware that their initial view as to the priority between payment and access to information would later preclude them from access to payment?
The voice of survivors since the announcement of the six-month requirement has been diametrically opposed to it.
Second, should the government stand by this initial view, it was only ever a view in relation to priority. Priority relates to the order in which actions are taken, not that the only item on a list to be attended to is the first.
The Minister has stated that he “improved the overall payments approach by introducing more refined payment bands that will benefit many applicants to the scheme.” This refers to the first proposed time bands for the calculation of payments in the General Scheme of the Bill being as follows: (i) for mothers only, fewer than 3 months and 3–6 months, and (ii) for mothers and children, 6–12 months, 1–2 years, 2–3 years, 3–4 years and so on. The Bill itself amended this and is more specific.
For example, rather than a band of 2–3 years, it includes bands of 721–810 days, 811–900 days, 901–990 days, and 991–1080 days. Under the previous proposal, survivors resident for two years and 11 months would receive the same payment as those resident for two years and 1 month. Under the Bill, those extra 10 months will be recognised and additional payment will be provided.
This demonstrates the government’s view that individual days matter. And these new payment bands also apply to children: a child resident for 451–540 days will receive €1,250 more compensation than a child resident for 361-450 days. In other words, Child A who spent 451 days in an institution will receive €1,250 more than Child B who spent 450 days there. One single day’s residence is of importance for children under the Bill, but only, apparently, after six months (180 days).
How can day number 451 be worth €1,250, but days 1–179 be worth nothing? The inconsistency in the introduction of more refined payment bands, while allowing the six-month rule to remain, has not even been attempted to be adequately explained.
As previously reported: “When asked why some children have been left out of the scheme at a press conference announcing the redress package, the minister yesterday said: ‘I suppose children who were in there less than six months wouldn’t have been aware of their experiences and would have been too young to remember their experiences.’”
On 21 November 2021, a group of 34 clinicians wrote an open letter to the Minister stating: “Firstly, childhood trauma, which includes separation from primary caregiver and exposure to multiple caregivers in an institution setting, has the greatest impact early in childhood… [W]e know that early separation from a caregiver is intrinsically stressful and has long-lasting impact throughout the lifespan.
Thus, to state that young children, who might have been in Mother and Baby Homes for a period of 2-3 months early in life were less impacted by those who spent longer, is simply not scientifically correct. Indeed, the opposite is true. The earlier the impact of trauma the more long lasting the effects. Secondly, there is no quantum of time that allows us to think about the impact of childhood trauma. Thus, having an arbitrary period of six months’ exposure is simply that, arbitrary.”
No scientific reasoning has been provided by the government to dispute this expert view. On the contrary, when the Redress Scheme was initially announced, the government expressed that it was: “…very conscious that the separation of a mother and a child is a deeply, deeply traumatic event. That’s why every mother who was in one of these institutions will be able to qualify for payments… that’s a very significant increase in the scope of this scheme.”
The suggestion that it is possible to acknowledge the trauma associated with the separation of mother and child while producing a scheme which declines to offer compensation to a category of children who were separated from their mothers simply defies reason.
The government has not offered sufficient reasoning to justify the six-month rule. Two possible conclusions may be drawn. First, these amounted to the height of the government’s justifications and, being meritless, must lead to amendments. Second, there are further reasons, as yet undisclosed, as to why the six-month rule has been imposed. Should that be the case, survivors deserve to know what they are.
Seán Beatty is a barrister and former Procedural Rights Fellow at the Irish Council for Civil Liberties.
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