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LAST UPDATE | 17 Dec 2021
THE STATE HAS acknowledged the rights of mother and baby home survivors were breached when they were not given a draft of the final report of the Commission of Investigation into Mother and Baby Homes prior to its publication in January.
In a significant victory for the survivors, the State has admitted that the women are indeed identifiable in the final report and should have been given a right to reply to the sections relevant to them prior to the report’s publication.
Philomena Lee and Mary Harney are two of eight survivors of the institutions who took issue with the Commission’s final report and overall findings.
The women’s legal action proceeded as two test cases that would set a precedent for any future cases. Today’s settlement also extends to the six other cases.
The State will also pay the women’s legal fees, it was confirmed today. Mr Justice Garrett Simons this afternoon welcomed the fact a settlement had been reached.
The wording of a statement acknowledging the breach of rights has been agreed by all parties and will be published alongside the final report of the Commission, as well as on the Department’s website and in the Oireachtas Library with the final report.
The following also will be published online alongside the final report:
A declaration that the Commission, by failing to provide the applicant, who is identifiable in the final report, with a draft of the Report, or the relevant part of the draft of the Report, as required by section 34 (1) of the Commissions of Investigation Act 2004 prior to submitting the final report to the Minister, acted in breach of statutory duty.
The statement notes: “A number of survivors do not accept the accounts given in the Final Report of the Commission of Investigation as a true and full reflection of the oral and documentary evidence they gave to the Confidential Committee or the Commission of Investigation. In particular, the accuracy of the following paragraphs is not accepted by survivors who believe the paragraphs in question relate to them or the evidence they gave:-
“Had survivors been furnished with drafts of extracts of the report they would have had the opportunity to request the Commission to correct statements that survivors believe to be wrong. The Minister acknowledges that because draft extracts were not furnished, survivors did not have that opportunity.”
Addressing the court today, Mr Justice Simons thanked the legal teams involved, saying the “case was very professionally presented”.
He noted: “The case did raise very important and very significant issues and, had the matter gone to full judgment, I would have had to address a number of novel points in relation to the interpretation of the (Commissions of Investigation) Act”.
The judge continued: “I’m glad for all of the parties that agreement has been reached. It’s always more satisfactory if the parties can come to an agreed settlement in proceedings rather than the court to come to a judgment with which one side or the other may not be happy. And that sentiment applies with a special force to these sorts of proceedings.
“This is a very sensitive case. There’s no doubt but from the evidence before this court, that each of the applicants had suffered gravely at the time of their incarceration or at the time of the residence, I suppose, in the mother and baby homes, and there was a particular sensitivity.
“The court obviously had sympathy for the position they found themselves in and I’m glad having regard to that background, that the parties were able to reach an agreement with which they’re all satisfied. I think that’s a good outcome.”
The Commission of Investigation dissolved in February, so the women were taking legal action against the Minister for Children, the Irish Government and the Attorney General.
‘We’ve been totally vindicated’
Speaking to The Journal shortly after the settlement was announced, Harney said: “It’s been such a battle but we’ve been totally vindicated, that’s the most important thing. This time our voices have been heard in terms of justice.”
Referencing the famous moon landing quote, Harney said today’s outcome is “one small step for the women, one giant leap for everyone who has gone through this and suffered for so long”.
This is not just about me, or Philomena, it’s about all the women who were incarcerated, all the people who were forcibly separated from each other. All the mothers, all the children who were fostered and boarded out, everyone whose testimony was basically ignored, this makes it quite clear that we are vindicated.
“The question now is: how can the Government stand over the final report? They need to do the right thing. They also need to immediately grant us access to all our records, unfettered access.
“And they need to relook at the redress scheme and change the fact that people who spent less than six months in an institution as a child are disregarded. They cannot be disregarded. The children who were boarded out or fostered and abused also cannot be disregarded.
“We were all part of the same system. The current redress scheme can’t be allowed to stand, we cannot leave anyone behind.”
Mary Harney, who has been dubbed the 'Resister in Chief', celebrating today's news at her home in Galway.#MotherAndBabyHomes pic.twitter.com/Kz9KOvMVgs
— Órla Ryan (@orlaryan) December 17, 2021
In light of today’s settlement, Harney said the Government should issue a new apology to all survivors.
“It should not repeat what successive Irish governments have said, ‘we let you down and harm was done’, it should say ‘we violated your human rights’,” Harney told The Journal.
The Clann Project, which advocates on behalf of survivors, also questioned how the Government can stand over the Commission’s “fatally flawed” final report.
“The impugned parts of the Commission’s Final Report include findings and recommendations upon which the Government is relying to limit its proposed redress scheme.
“For example, the Commission concluded that redress should not be granted for forced or illegal adoption, forced labour in Mother and Baby Homes generally, vaccine trials in Mother and Baby Homes, or the abuse of ‘boarded out’ or adopted people as children.
“The Commission’s findings were heavily contested by those personally affected when published in January 2021. Today’s High Court declaration confirms that these findings were reached following an unlawful process that denied survivors’ fair procedures rights,” a statement noted.
The Clann Project plans to lodge the High Court’s declaration with the eight United Nations human rights bodies that wrote to the Irish Government in November stating that proposed legislation raises “serious concerns in relation to the State’s compliance with its international legal obligations“.
“The eight human rights bodies criticised the State’s ongoing failure to remedy abuses that occurred in the institutional and forced family separation system such as the sale of children, enforced disappearance, torture and ill-treatment, arbitrary detention, servitude and forced labour, and gender-based violence.
“The human rights bodies emphasised the need for comprehensive redress, unfettered access to records, and immediate inquests into deaths and disappearances at sites including Tuam and Bessborough,” the statement added.
The Irish Human Rights and Equality Commission (IHREC) also gave evidence during the hearing in November. The group was permitted to make submissions at the hearings as an ‘amicus curiae’ – an assistant to the court on legal issues.
In response to today’s settlement, the IHREC’s Chief Commissioner Sinéad Gibney said: “I pay credit to the strength and resilience of Mary and Philomena, and the many other survivors who are fighting to see their accounts accurately told, and to vindicate their right to truth and dignity.
“This case should never have needed to be taken. We must see a change not only to the political rhetoric but a systemic change in the State’s attitude and responsibility towards anyone who is a victim or survivor of State wrongdoing.”
‘Some comfort’
Responding to today’s settlement, Children’s Minister Roderic O’Gorman said he “acknowledges that, because the relevant parts of the draft report were not furnished to the applicants, they did not have the opportunity to ask the Commission to correct statements within the report that they believed to be wrong”.
In a written statement, O’Gorman said he “hopes that this settlement gives some comfort to the applicants”.
He stated: “The Commission of Investigation into Mother and Baby Homes carried out a significant and wide-ranging statutory inquiry using powers under the Commissions of Investigation Act, 2004. It carried out its inquiry independent of Government, and relied on the testimony of hundreds of survivors and millions of pages of documentary evidence.
“The Minister recognises the courage of survivors and former residents of the Mother and Baby institutions in giving this testimony and thanks them for their valuable contributions.
“The Minister appreciates that the findings and recommendations of the Commission are important to many survivors. While the Minister acknowledges that specific paragraphs are not accepted by a number of survivors, he is also aware that some of those paragraphs may reflect the experiences and evidence of other survivors.”
The statement also noted that O’Gorman has recently committed to “developing a new mechanism which will allow survivors’ personal accounts to be recorded, acknowledged and stand as part of the official record of Mother and Baby and County Home Institutions”.
“This is intended to address the concerns and disappointment expressed by some survivors regarding how the personal accounts they gave to the Commission’s Confidential Committee were treated. This process will feed into Government’s broader work in the area of memorialisation, and it is hoped that the outcome will form the heart of a National Memorial and Records Centre.
“Through this new mechanism, the Minister proposes to establish a process for any survivor of Mother and Baby and County Home Institutions who may wish to come forward voluntarily with a view to having their personal account formally recognised as part of the official record of the history and lived experience of these institutions. The process will be underpinned by human rights principles and overseen and managed by a team with expertise in human rights, trauma and memory, communications and oral history.”
Scoping work for this process has recently commenced and O’Gorman “hopes to be in a position to provide further details shortly”, the statement added.
Test cases
The two test cases were heard by Mr Justice Simons in the High Court on 17 and 18 November. The judge was originally due to deliver his ruling in these two cases on 9 December, but delayed his decision so he could hear further submissions.
Justice Simons had sought more evidence on the issue of whether or not the women are identifiable in the final report, as well as alleged breaches of the Commission of Investigation Act 2004.
Additional submissions were due to be heard in the High Court today, prior to the settlement being reached in the last few hours.
Having last month argued in court that the women were not identifiable and that no breach in fair procedures occurred, The Journal understands that the State changed its position in recent days.
Lee and Harney’s cases centred on sections of the Commission of Investigation Act 2004 – the women took issue with the fact they were not given a right to reply before the Commission’s final report was published in January (Section 34).
They believe they are readily identifiable in the report. They also believe some of the testimony they gave to the Commission was misrepresented in, or omitted from, the report.
The women’s legal teams argued that the Commission’s failure to give them a right to reply breaches the 2004 Act, as well as the women’s fundamental rights under the Irish Constitution and European Convention on Human Rights. They are also arguing that a breach of fair procedure occurred (Section 35 of the 2004 Act).
During the two-day hearing in November, Michael Lynn SC, told the court there is “an abundance of evidence that makes them readily identifiable to reasonably informed people”.
‘No other choice’
The women also took issue with some of the Commission’s findings, in particular an apparent lack of evidence of forced adoption, forced incarceration, forced labour and abuse – saying their evidence contradicts these conclusions.
Lynn last month said that Lee and Harney “gave evidence to the Commission in good faith” and “in the public interest”. As such, he said the women should have been given a right to reply and challenge some of the assertions made in the final report.
Lynn also told the court that the testimony given by Lee to the Commission about the adoption of her son had been misinterpreted by the Government.
He said an assertion made in court by Eoin McCullough SC, acting on behalf of the Government, that Lee consented to the adoption of her son was inaccurate.
Lynn said that while Lee did sign the document in question, she was given “no other choice” and the full content of it was never explained to her.
During last month’s hearing Lynn stated that Lee did not understand what she was signing when asked to sign documents which would lead to her son’s adoption. Unbeknownst to her, this resulted in her relinquishing any rights to her son and stating that she would never contact him, the court heard.
Lynn said the assertion that women such as Lee gave “full, free and informed consent” to the adoption of their children is incorrect. He said the report’s statement that women “could withdraw consent for adoption” was also inaccurate. Lynn said the documents Lee signed were never read or explained to her, so she did not understand what she was signing.
“That is an incomplete, inaccurate picture of what was going on,” Lynn said yesterday, later adding: “At a minimum, [Lee] should have had an opportunity to address that [with the Commission].”
Lynn told the court that the document Lee signed “was never read to her” and “at no point was [she] ever asked formally to swear to the document” – despite that fact it is recorded as being signed ‘under oath’.
However, McCullough disputed this assertion – saying that while the full details of the document may not have been explained to Lee before she signed it, she was aware that signing it meant her son would be adopted.
Lynn took exception to this stance, stating: “She did not consent, she had no choice.”
He told the court that if the Commission had given Lee the right to reply before its final report was published, she would have “clarified” her position. He added that Lee’s statement “notes the nun didn’t give her a choice” and told her that “her son was going to be adopted”.
Abuse in foster care
In her testimony to the Commission, Harney detailed the abuse and neglect she suffered when she was boarded out and subsequently in the industrial school.
Lynn last month noted the Commission’s final report said there was “scant evidence” of abuse, despite the fact Harney “gave clear evidence of abuse” and “records of beatings she received”.
He told the court there was “no mention” of the abuse and neglect suffered by Harney when she was boarded out from November 1951 to May 1954.
McCullough told the court that Harney is perhaps of the view that this evidence “should have been placed in a different section of the report”, but he said her evidence was not “ignored”.
He said he understands that while some of the Commission’s findings “may be upsetting” to Lee and Harney, this relates to issues over “how the report was compiled”, not fair procedure.
As well as arguing that her testimony contradicts the Commission’s findings on abuse, Harney is also seeking the removal of a paragraph which states that evidence which said mothers in Bessborough cut the grass in the lawn with scissors was “contaminated by a piece of creative writing”.
Harney said this assertion by the Commission is without basis, the court was told.
‘Very dramatic consequences’
McCullough last month said that if the court decides that Lee and Harney are indeed identifiable in the report and should have been given a right to reply before the document was published, the “maximum relief is limited to a declaration that the Commission failed to furnish them with relevant parts of report in advance”, adding “even that is discretionary”.
However, the women want certain elements of the report to be overturned via a judicial review.
McCullough told the court that the outcome of the test cases could have “very dramatic consequences” on how commissions of investigation are run in the future.
McCullough said that if the applicants’ interpretation of the Commission of Investigation Act 2004 is correct, this could “change the way commissions of investigation run and, I would suggest, were intended to run”.
He said: “If the applicants are correct in their interpretation of Section 34 of the 2004 Act, that could have very dramatic consequences in how commissions of investigation are run.
“It could change the way commissions of investigation run and, I would suggest, were intended to run.”
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