TWO TEST CASES involving Mother and Baby Home survivors seeking judicial reviews are set to be heard by the High Court today and tomorrow.
The cases are being brought by high-profile survivors Philomena Lee and Mary Harney.
A third hearing was due to take place on Friday regarding a discovery motion in a case being taken by Mari Steed.
The Journal understands that this hearing will be postponed as the discovery application is still outstanding. The State is expected to oppose this case but Steed’s legal team are yet to receive the State’s submissions.
Nine women, some of whom cannot be named, are seeking judicial reviews of the final report of the Commission of Investigation into Mother and Baby Homes.
A test case is one brought forward that would then set a precedent for future similar cases.
Mr Justice Garrett Simons will today begin hearing the two lead cases.
Lee and Harney’s cases involve Section 34 of the Commission of Investigation Act 2004 – the women have taken issue with the fact they were not given a right to reply before the Commission’s final report was published in January.
It is claimed the failure to be given this opportunity breaches Section 34, as well as the women’s fundamental rights under the Constitution and European Convention on Human Rights.
The Commission of Investigation into Mother and Baby Homes dissolved in February, so the women are taking cases against the Minister for Children, the Irish Government and the Attorney General.
As previously reported by The Journal, the State is due to argue that the women are not identifiable in the final report and that the Commission acted independently of the Government.
The Irish Human Rights and Equality Commission (IHREC) was last month permitted to make submissions at the hearings as an ‘amicus curiae’ – an assistant to the court on legal issues.
The IHREC’s submissions will focus on the rights of victims of historic abuse to access justice and to an appropriate effective remedy.
It is understood the organisation is concerned with how the outcome of these cases could impact the implementation of the Commission of Investigation Act 2004 in future cases.
‘At odds with testimony’
Lee (88) is among those seeking to have certain findings of the Commission’s final report, such as those related to forced adoption, quashed.
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 in the US 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, starring Judi Dench 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”.
Lee’s legal documents outlined that the Commission did not provide her 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″.
“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,” it said.
Harney (73) also wants certain parts of the Commission’s final report to be quashed.
Harney, 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 in January.
Another case is being taken by 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.
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.
A redress scheme for survivors of mother and baby homes and county homes was agreed by Cabinet yesterday. It is due to open to applications in late 2022.
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