A RULING IN two test cases being taken by survivors of mother and baby homes against the Irish Government has been postponed until January.
Philomena Lee and Mary Harney are two of several survivors of the institutions who are seeking to have certain elements of the final report of the Commission of Investigation into Mother and Baby Homes quashed.
Test cases involving Lee and Harney were heard by Mr Justice Garrett Simons in the High Court on 17 and 18 November. A test case is one brought forward that would then set a precedent for future cases.
Justice Simons was due to deliver his judgment in these two cases next Thursday, 9 December, but this has now been pushed back until January so he can hear further submissions.
Justice Simons is seeking further evidence on the issue of whether or not the women are identifiable in the final report. He also wants more information on the alleged breaches of the Commission of Investigation Act 2004.
The Journal has learned that a new hearing will be held on Friday, 17 December, before the judge makes his decision early in the new year.
Lee and Harney’s cases centre on sections 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 (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 are arguing 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 last month, Michael Lynn SC, told the court there is “an abundance of evidence that makes them readily identifiable to reasonably informed people”.
However, the State is arguing that the women are not identifiable in the final report.
‘No other choice’
The women also take 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.
The Commission of Investigation dissolved in February, so the women are taking cases against the Minister for Children, the Irish Government and the Attorney General.
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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