LAST UPDATE | 13 Jul 2022
MORE SURVIVORS OF mother and baby homes, county homes and similar institutions are considering taking legal action against the State if the Government does not amend its planned redress scheme.
The Oireachtas Children’s Committee yesterday recommended that the Government scrap the six-month time limit and legal waiver in the redress scheme.
Under the current proposals, all mothers who spent time in an institution are eligible to apply for redress – but a person who spent time in an institution as a child is only eligible if they spent at least six months there.
People who receive compensation via the scheme would also have to sign a waiver saying they won’t pursue legal action against the State.
The Children’s Committee also recommended extending the scheme to include people who were boarded out (a precursor to fostering), and compelling religious congregations to “contribute significant finances to fund the scheme”.
The recommendations are included in the Committee’s report on Pre-legislative Scrutiny of the Mother and Baby Institutions Payment Scheme Bill 2022.
Norman Spicer – a solicitor at Coleman Legal Partners, which represents around 600 survivors of mother and baby homes and other institutions – welcomed the Committee’s recommendations.
Speaking to The Journal today, Spicer said he is “cautiously optimistic” that the Committee’s recommendations may be taken on board by the Government. However, if amendments are not made to the Bill, a number of his clients may pursue legal action.
“The mood is positive, certainly it’s not too late [to change the Bill].
What would be the point of getting the Committee to scrutinise these very important issues if the Minister and Government just ignored all their recommendations? This is a huge opportunity for the Minister to steer the ship in the right direction.
Elements of the redress scheme have been widely criticised since the proposed details were announced last November.
Campaigners have expressed frustration that the planned scheme ignored many of the recommendations included in a report compiled by Oak Consulting after a consultation process with survivors and other stakeholders last year.
‘No other recourse’
Since December 2021, Coleman Legal has launched legal proceedings on behalf of survivors who are excluded from the current version of the planned legislation.
These include two test cases involving people who spent less than six months in an institution and a number of cases involving people who spent time in institutions not currently covered in the redress scheme.
Spicer said the legal challenges being brought forward by his clients will not move forward until the final version of the Bill is confirmed in the coming months. But if the six-month time limit is not removed and if extra institutions are not added to the scheme, these legal cases will proceed and others will likely follow suit.
“I will take the clients’ lead but, in that scenario, clients will have no other recourse but legal action,” Spicer said.
In Coleman Legal’s submission to the Children’s Committee, Spicer noted that “considerable upset and distress has been caused by the announcement that adoptees or child residents of these institutions have been excluded arbitrarily on the basis that many spent less than six months there”.
“This exclusion has only served to alienate the adoptee community and operates as a rejection of their suffering and their experiences. This decision is entirely without justification and does not appear to have any scientific basis nor is it in-keeping with known psychological principles,” he added.
In the submission, Spicer called for the following institutions to be included in the scheme: Westbank Orphanage in Greystones, Co Wicklow (which is affiliated with Bethany Home, an institution included in the scheme); Temple Hill and St Patrick’s Guild in Blackrock, Co Dublin; and St Anne’s & St Joseph’s in Stamullen in Co Meath.
A spokesperson for the Department of Children today told The Journal that Minister O’Gorman “received the Committee’s report yesterday and he is very grateful to the members for giving the draft legislation their careful attention”.
“As drafting of the Bill is currently ongoing, the Committee’s recommendations will be carefully considered as part of that process,” a statement noted.
The spokesperson added that after the Government approved the proposals for the Redress Scheme on 16 November 2021, O’Gorman “commenced meetings on an individual basis with the six Religious Congregations and one lay Catholic organisation involved with the institutions”.
“A meeting has also taken place with the Church of Ireland. The purpose of these meetings was to outline the details of the proposed Payment Scheme and to discuss how the Congregation or organisation intended to contribute to the cost of the Payment Scheme.
“While the negotiations are ongoing they are being treated as confidential. Accordingly, it would not be appropriate to say anything further on the matter at this time. A full report on the outcome of discussions will be provided to Government when the process is concluded,” they stated.
The Government has previously ruled out making changes to the redress scheme – saying it will cost about €800 million and cover up to 34,000 survivors.
The Bill is expected to pass in the Oireachtas later this year, but amendments may be made to the legislation before this happens.
Previous court cases
In 2021, eight survivors of mother and baby institutions took legal action against the Government over how the Commission of Investigation handled their testimony and the fact it did not allow them to view the parts of the report related to their evidence prior to publication to correct any inaccuracies.
Last December the State acknowledged survivors’ rights were breached when they were not given a draft of the final report before its publication in January 2021.
Philomena Lee and Mary Harney were used as two test cases in the legal action.
In a significant victory for the survivors, the State on 17 December 2021 admitted that the women in question were indeed identifiable in the final report and should have been given a right to reply to the sections relevant to them prior its publication. This settlement extended to the six other cases.
The wording of a statement acknowledging the breach of rights was agreed by all parties and was 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 State also agreed to pay the women’s legal fees.
Bethany Home survivor Derek Leinster is also currently taking legal action against the State.
The 80-year-old has campaigned for over 20 years for survivors of Bethany Home and other Protestant institutions to receive the same redress that was granted to survivors of industrial school abuse under the Residential Institutions Redress Act 2002.
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