LAST UPDATE | 27 Jul 2021
TWO TEST CASES involving Mother and Baby Home survivors seeking judicial reviews are set to be heard by the High Court later this year.
The two cases, being brought by high-profile survivors Philomena Lee and Mary Harney, will be heard in late October or November.
Eight 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 third test case, involving Mari Steed, may also proceed at a later date. A discovery motion to receive certain documents related to the case is likely to be made by Steed’s legal team in the coming weeks.
A test case is one brought forward that would then set a precedent for future similar cases.
Mr Justice Garrett Simons today said the two cases involving Lee and Harney will be heard in the last week or October or November, asking the women’s legal counsel and the State’s solicitors to agree a date.
These hearings are expected to take place over two days, Michael Lynn SC and Siobhan Phelan SC said.
David Fennelly BL, acting on behalf of the State, told Justice Simons he does not have an issue with two or three test cases proceeding but needs time to examine affidavits submitted in these cases, as well as time to consider a discovery motion in the Steed case.
This motion is due to be heard immediately after the two lead cases later this year.
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.
‘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 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, 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 (72) 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.
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