Support from readers like you keeps The Journal open.
You are visiting us because we have something you value. Independent, unbiased news that tells the truth. Advertising revenue goes some way to support our mission, but this year it has not been enough.
If you've seen value in our reporting, please contribute what you can, so we can continue to produce accurate and meaningful journalism. For everyone who needs it.
PHILOMENA LEE AND Mary Harney should have been given an opportunity to reply to the report of the Commission of Investigation into Mother and Baby Homes before the final version was published, their solicitor has argued.
Lee and Harney are two of several survivors of Mother and Baby Home who are seeking to have certain elements of the report quashed via a judicial review in the High Court.
Test cases involving Lee and Harney are being heard by Mr Justice Garrett Simons today and tomorrow. A test case is one brought forward that would then set a precedent for future similar 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. They 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.
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.
Speaking at the High Court hearing today, Michael Lynn SC, said that Lee and Harney “gave evidence to the Commission in good faith” and “in the public interest”.
As such, he told the court the women should have been given a right to reply and challenge some of the assertions made in the final report.
The Commission’s report found “little evidence” of forced incarceration, forced adoption and forced labour in the 18 institutions under investigation. Lynn argued that Lee’s testimony directly contradicts this.
Lee (88) was sent to Sean Ross Abbey mother and baby home in Co Tipperary in 1952 when she was pregnant and her son, Anthony, was later adopted in the US without her consent. Her son died in 1995 before the pair had a chance to reunite, despite both parties trying to find each other.
Lynn said his client 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, later adding: “At a minimum, [Lee] should have had an opportunity to address that [with the Commission].”
Lynn said Lee has stated that the document she 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’.
Gardaí returning women
In relation to other findings made in the Commission’s report, Lynn noted that Lee recalled gardaí returning women and girls who ran away from the institution – at odds with the Commission stating that mothers were free to leave and not incarcerated against their will.
Lee also said she was not seen by a doctor or administered with pain relief while giving birth to her son.
“The nuns kept reminding us that we had committed a mortal sin…the punishment must be eternal,” Lynn said, quoting Lee.
Lynn also noted that his client had to work from 8.30am to 4pm in the institution every day from Monday to Saturday, so the assertion that she was not forced into labour is also incorrect.
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.
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.
However, Lee and others believe they are indeed identifiable.
Advertisement
Famous film
Lee’s life story was the subject of a book, The Lost Child of Philomena Lee, by Martin Sixsmith. The book was made into an award-winning film, Philomena, starring Judi Dench in 2013.
Lynn referenced a number of scenes in the film today, highlighting how Lee’s testimony in the report is particularly identifiable given the high-profile nature of her story.
Legal documents submitted on Lee’s behalf in April stated 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,” the documents note.
Abuse while boarded out
Mary 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.
Addressing the court this afternoon, Lynn noted that Harney is “a very active advocate for the rights of survivors” and her story is in the public domain through media interviews and talks she has given at various conferences. Therefore she is clearly identifiable in the report, he told the court.
Indeed, Lynn told the court that a friend of Harney’s drew her attention to the section in the report about her, having identified her from the text before Harney herself had read the chapter on Bessborough.
Harney spent the first two and a half years of her life in the Bessborough institution, with her mother, before being fostered to a family in Cork city. She was neglected and abused in her foster home, and at the age of five was removed and sent to the Good Shepherd Industrial School in Sunday’s Well.
In her testimony to the Commission, Harney detailed the abuse she suffered when she was boarded out and subsequently in the industrial school.
Lynn noted that the Commission’s final report said there was “scant evidence” of abuse in the institutions, 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.
Quoting Harney, Lynn said his client is “readily identifiable to anyone who has heard me speak or read about me”. Harney has “in principle, no problem with being indefinable in the report” but her evidence is “not recorded fairly and a very important aspect of it is completely missing”, he added.
Lynn also noted that testimony from Harney and others who spent time in Bessborough as children was given just six paragraphs in the report’s chapter on this particular institution, compared to 11 paragraphs given to Sr Mary McManus, a nun who worked at the institution.
The testimony of former ‘child residents’ at Bessborough in the Commission’s final report:
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.
Related Reads
Mother and Baby Homes: High Court to hear cases as Philomena Lee and others challenge report
'No understanding of trauma': Survivors hit out at 6-month rule & legal waiver in redress scheme
Mother and Baby Homes: 34,000 survivors eligible for compensation in €800m redress scheme
‘Vast quantity of evidence’
Eoin McCullough SC, who is acting on behalf of the State, told Justice Simons he does not believe “a breach in fair procedures” had occurred in either case.
He told the court: “It was never going to be the case that every single word” of testimony given by “every single person” was going to make it into the Commission’s final report.
McCullough said the Commission was presented with a “vast quantity of evidence” and had to “sift through the very large quantity of material” before reaching “its own independent conclusions”.
Justice Simons asked McCullough if “the failure of the decision maker (i.e. the Commission) to engage” with an individual who believes they are identifiable in a report was “a breach of fair procedure”. McCullough replied that, in this instance, “it’s not, judge”.
McCullough argued that perhaps the test cases do not centre on fair procedure, rather issues the women have with “the substance of the report”. He asked: “What would Ms Lee have done if she had got a copy of the draft report?”
Justice Simons stated that, even if the women had been given the right to reply, the Commission “may have ultimately decided not to change the report” but that’s not what the hearing is seeking to address.
The State is arguing that Lee or Harney are not identifiable in the report and therefore were not entitled to make additional submissions to the report before the final version was published.
The Irish Human Rights and Equality Commission (IHREC) also gave evidence today.
The group was last month permitted to make submissions at the hearings as an ‘amicus curiae’ – an assistant to the court on legal issues.
Addressing the court on behalf of the IHREC earlier this afternoon, Eilis Brennan SC said the Commission of Investigation Act 2004 gives an “absolute right” to a person who is identifiable in a Commission report to get a right to reply.
Section 34 of the legislation states:
34. — (1) Before submitting the final or an interim report to the specified Minister, a commission shall send a draft of the report, or the relevant part of the draft report, to any person who is identified in or identifiable from the draft report.
(2) The draft report must be accompanied by a notice from the commission specifying the time allowed for making—
(a) submissions or requests to the commission under section 35 (1)(a) or 36 (1), and
(b) applications to the Court under section 35 (1) (b).
(3) For the purposes of this section and section 35 , a person is identifiable from a draft report if the report contains information that could reasonably be expected to lead to the person’s identification.
Brennan told the court that in order for this threshold to be met, the individual needs to be “objectively identifiable”, not “identifiable in the view of the Commission”.
She said “a literal reading of the Act” presents “no margin of discretion” in this regard.
As part of her submission to the court, Brennan also noted that “many people waited a very long time to give evidence” to the Commission in question and the official record “needs to be accurate”.
The hearing will continue before Justice Simons tomorrow.
Third case postponed
Another case is being taken against the State by Mari Steed, who was born in the Bessborough Mother and Baby Home and is the US coordinator 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.
A hearing due to take place on Friday regarding a discovery motion in the Steed case was today postponed until 21 January.
The Journal understands that 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 Commission’s final report. A number of other women who are taking cases cannot be named.
Comments are closed for legal reasons
Readers like you are keeping these stories free for everyone...
A mix of advertising and supporting contributions helps keep paywalls away from valuable information like this article.
Over 5,000 readers like you have already stepped up and support us with a monthly payment or a once-off donation.
Discovery of human hand in yard of Dublin primary school not thought to be malicious
Updated
1 hr ago
34.9k
Jordan Bardella
Far-right French leader cancels US conference appearance after 'Nazi' gesture by Steve Bannon
19 mins ago
1.3k
Met Éireann
Status Yellow wind warning for 10 counties tomorrow as stormy conditions expected
Updated
20 Feb
63.4k
47
Your Cookies. Your Choice.
Cookies help provide our news service while also enabling the advertising needed to fund this work.
We categorise cookies as Necessary, Performance (used to analyse the site performance) and Targeting (used to target advertising which helps us keep this service free).
We and our 152 partners store and access personal data, like browsing data or unique identifiers, on your device. Selecting Accept All enables tracking technologies to support the purposes shown under we and our partners process data to provide. If trackers are disabled, some content and ads you see may not be as relevant to you. You can resurface this menu to change your choices or withdraw consent at any time by clicking the Cookie Preferences link on the bottom of the webpage .Your choices will have effect within our Website. For more details, refer to our Privacy Policy.
We and our vendors process data for the following purposes:
Use precise geolocation data. Actively scan device characteristics for identification. Store and/or access information on a device. Personalised advertising and content, advertising and content measurement, audience research and services development.
Cookies Preference Centre
We process your data to deliver content or advertisements and measure the delivery of such content or advertisements to extract insights about our website. We share this information with our partners on the basis of consent. You may exercise your right to consent, based on a specific purpose below or at a partner level in the link under each purpose. Some vendors may process your data based on their legitimate interests, which does not require your consent. You cannot object to tracking technologies placed to ensure security, prevent fraud, fix errors, or deliver and present advertising and content, and precise geolocation data and active scanning of device characteristics for identification may be used to support this purpose. This exception does not apply to targeted advertising. These choices will be signaled to our vendors participating in the Transparency and Consent Framework.
Manage Consent Preferences
Necessary Cookies
Always Active
These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work.
Targeting Cookies
These cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.
Functional Cookies
These cookies enable the website to provide enhanced functionality and personalisation. They may be set by us or by third party providers whose services we have added to our pages. If you do not allow these cookies then these services may not function properly.
Performance Cookies
These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not be able to monitor our performance.
Store and/or access information on a device 104 partners can use this purpose
Cookies, device or similar online identifiers (e.g. login-based identifiers, randomly assigned identifiers, network based identifiers) together with other information (e.g. browser type and information, language, screen size, supported technologies etc.) can be stored or read on your device to recognise it each time it connects to an app or to a website, for one or several of the purposes presented here.
Personalised advertising and content, advertising and content measurement, audience research and services development 136 partners can use this purpose
Use limited data to select advertising 106 partners can use this purpose
Advertising presented to you on this service can be based on limited data, such as the website or app you are using, your non-precise location, your device type or which content you are (or have been) interacting with (for example, to limit the number of times an ad is presented to you).
Create profiles for personalised advertising 78 partners can use this purpose
Information about your activity on this service (such as forms you submit, content you look at) can be stored and combined with other information about you (for example, information from your previous activity on this service and other websites or apps) or similar users. This is then used to build or improve a profile about you (that might include possible interests and personal aspects). Your profile can be used (also later) to present advertising that appears more relevant based on your possible interests by this and other entities.
Use profiles to select personalised advertising 77 partners can use this purpose
Advertising presented to you on this service can be based on your advertising profiles, which can reflect your activity on this service or other websites or apps (like the forms you submit, content you look at), possible interests and personal aspects.
Create profiles to personalise content 37 partners can use this purpose
Information about your activity on this service (for instance, forms you submit, non-advertising content you look at) can be stored and combined with other information about you (such as your previous activity on this service or other websites or apps) or similar users. This is then used to build or improve a profile about you (which might for example include possible interests and personal aspects). Your profile can be used (also later) to present content that appears more relevant based on your possible interests, such as by adapting the order in which content is shown to you, so that it is even easier for you to find content that matches your interests.
Use profiles to select personalised content 33 partners can use this purpose
Content presented to you on this service can be based on your content personalisation profiles, which can reflect your activity on this or other services (for instance, the forms you submit, content you look at), possible interests and personal aspects. This can for example be used to adapt the order in which content is shown to you, so that it is even easier for you to find (non-advertising) content that matches your interests.
Measure advertising performance 127 partners can use this purpose
Information regarding which advertising is presented to you and how you interact with it can be used to determine how well an advert has worked for you or other users and whether the goals of the advertising were reached. For instance, whether you saw an ad, whether you clicked on it, whether it led you to buy a product or visit a website, etc. This is very helpful to understand the relevance of advertising campaigns.
Measure content performance 60 partners can use this purpose
Information regarding which content is presented to you and how you interact with it can be used to determine whether the (non-advertising) content e.g. reached its intended audience and matched your interests. For instance, whether you read an article, watch a video, listen to a podcast or look at a product description, how long you spent on this service and the web pages you visit etc. This is very helpful to understand the relevance of (non-advertising) content that is shown to you.
Understand audiences through statistics or combinations of data from different sources 75 partners can use this purpose
Reports can be generated based on the combination of data sets (like user profiles, statistics, market research, analytics data) regarding your interactions and those of other users with advertising or (non-advertising) content to identify common characteristics (for instance, to determine which target audiences are more receptive to an ad campaign or to certain contents).
Develop and improve services 82 partners can use this purpose
Information about your activity on this service, such as your interaction with ads or content, can be very helpful to improve products and services and to build new products and services based on user interactions, the type of audience, etc. This specific purpose does not include the development or improvement of user profiles and identifiers.
Use limited data to select content 38 partners can use this purpose
Content presented to you on this service can be based on limited data, such as the website or app you are using, your non-precise location, your device type, or which content you are (or have been) interacting with (for example, to limit the number of times a video or an article is presented to you).
Use precise geolocation data 43 partners can use this special feature
With your acceptance, your precise location (within a radius of less than 500 metres) may be used in support of the purposes explained in this notice.
Actively scan device characteristics for identification 25 partners can use this special feature
With your acceptance, certain characteristics specific to your device might be requested and used to distinguish it from other devices (such as the installed fonts or plugins, the resolution of your screen) in support of the purposes explained in this notice.
Ensure security, prevent and detect fraud, and fix errors 86 partners can use this special purpose
Always Active
Your data can be used to monitor for and prevent unusual and possibly fraudulent activity (for example, regarding advertising, ad clicks by bots), and ensure systems and processes work properly and securely. It can also be used to correct any problems you, the publisher or the advertiser may encounter in the delivery of content and ads and in your interaction with them.
Deliver and present advertising and content 96 partners can use this special purpose
Always Active
Certain information (like an IP address or device capabilities) is used to ensure the technical compatibility of the content or advertising, and to facilitate the transmission of the content or ad to your device.
Match and combine data from other data sources 68 partners can use this feature
Always Active
Information about your activity on this service may be matched and combined with other information relating to you and originating from various sources (for instance your activity on a separate online service, your use of a loyalty card in-store, or your answers to a survey), in support of the purposes explained in this notice.
Link different devices 50 partners can use this feature
Always Active
In support of the purposes explained in this notice, your device might be considered as likely linked to other devices that belong to you or your household (for instance because you are logged in to the same service on both your phone and your computer, or because you may use the same Internet connection on both devices).
Identify devices based on information transmitted automatically 84 partners can use this feature
Always Active
Your device might be distinguished from other devices based on information it automatically sends when accessing the Internet (for instance, the IP address of your Internet connection or the type of browser you are using) in support of the purposes exposed in this notice.
Save and communicate privacy choices 64 partners can use this special purpose
Always Active
The choices you make regarding the purposes and entities listed in this notice are saved and made available to those entities in the form of digital signals (such as a string of characters). This is necessary in order to enable both this service and those entities to respect such choices.
have your say