Children’s Rights and Alternative Care: Council of Europe’s Contribution to the UNCRC Day of General Discussion 2021
1 June 2021
Programme available here.
Presentation by Dr Maeve O’Rourke, Irish Centre for Human Rights, National University of Ireland Galway
Good morning and thank you to the organisers of this day of discussion and to the other contributors.
I am going to focus my presentation on the issue of records access as it relates to abuse suffered in state care or through unlawful family separation by the state.
I will address the ongoing secrecy of adoption and state care records in Ireland — and so my talk is very much a case study as well as those coming after me (secrecy of records is, however, an issue that arises in other jurisdictions of course — it was highlighted by the European Parliament Petitions Committee in its 2017 report on its mission to Spain in relation to the ‘Stolen Babies’, for example).
I will mention some of the consequences that secrecy of information has for access to justice and therefore future prevention of abuse. You will note that I am strongly of the view that the barriers to information access for abuse victims and survivors mean that human rights violations continue, rather than being ‘historical’ as they are so frequently described. And I will finish by calling for intervention in how the GDPR is being interpreted, as it relates to records of state care and family separation.
Before becoming an academic I trained as a barrister in child care law in London, 10 years ago, and while I was a pupil barrister, I was also leading the legal advocacy in a grassroots, voluntary campaign for justice for survivors of Ireland’s Magdalene Laundries, most of whom are now older women.
The Magdalene Laundry institutions were run by Catholic nuns from the foundation of the Irish state in 1922 until the last one closed in 1996. Well over 10,000 girls as young as 9 and women were incarcerated there — largely without legal basis and therefore without any clear way out. They were detained for reasons such as having been sexually abused, being the child of an unmarried mother, having given birth outside marriage, having an intellectual disability, being homeless, or having grown up in state and church care in a residential school.
The girls and women were forced to work constantly for no pay; their identities were taken; the police returned escapees; and the state held laundry contracts with all of the institutions, knowing that the girls and women were arbitrarily detained and subjected to servitude and forced labour. The graves of those who died are still not all known or marked.
I am one of the lawyers currently taking a case to the UN Committee Against Torture about this abuse — it is the case of Elizabeth Coppin and the committee has agreed to hear all elements of the case even though the Irish government argued that the committee lacked temporal jurisdiction because Elizabeth Coppin was incarcerated as a teenager in the 1960s.
The Committee’s Admissibility Decision, handed down in January 2020, asserts that it has jurisdiction over all alleged continuing violations of arts 12, 13, 14 and 16 UNCAT. The Irish government also argued in the case of Elizabeth Coppin that she should not be heard because she signed a waiver of her legal rights against the state when she accepted an ex gratia payment from an administrative redress scheme for Magdalene survivors. The CAT found that such a waiver is unenforceable under the UNCAT; because the right to accountability for TCIDTP is of course absolute.
You might be wondering why Elizabeth Coppin is bringing a case to the CAT when she has already received a monetary payment relating to her experiences. Some of you might know that the Irish Government even apologised in 2013 for its role in the ‘hurt’ suffered — I was heavily involved in the campaign for this apology and we involved many international and domestic human rights bodies in it. The reason is that Mrs Coppin, like all survivors of state-sponsored or institutional child abuse, wants to ensure that similar abuse never happens again — and that means ensuring that the Irish State actually takes legal responsibility for its failure to protect the girls and women detained in institutions which it knew about, funded through laundry contracts, and yet failed to regulate or properly inspect. Mrs Coppin wants the Irish State to accept that arbitrary detention and forced labour, denial of identity and total denial of education, of children was degrading treatment if not in fact torture. At the very least Mrs Coppin wants the Irish State to release its archives and to force the production of the nuns’ archives, to show how the institutions were run, who knew what, and what institutional failings were central to the abuse and therefore need to be repaired for the future protection of all children and other people in state care.
My voluntary lawyering work in Ireland has also taken me into a related area where the issue of access to records of personal and family identity is deeply enmeshed with the question of accountability for human rights violations.
In 2015 I set up an initiative called ‘The Clann Project’, with Claire McGettrick who is the founder of two voluntary research and advocacy groups — Justice for Magdalenes Research and Adoption Rights Alliance. The third partner in the Clann Project was the international law firm Hogan Lovells.
The purpose of the Clann Project was to work in parallel with the Commission of Investigation into Mother and Baby Homes in Ireland — we provided free legal assistance to anyone wishing to make a witness statement to submit to the Commission. This Commission of Investigation was set up in 2015, and its final report was published in January 2021. The report covers 18 institutions: these 18 institutions are estimated to be only 10% of the total number of agencies, institutions and individuals involved in separating unmarried mothers from their children in 20th century Ireland. In these 18 institutions alone, the Commission estimated that 56,000 mothers were institutionalised and 57,000 children born. Approximately 15% of all children born died in the institutions.
By 1967, 97% of children born outside marriage in Ireland were adopted. The Irish State did not provide any social welfare support to single mothers until the mid-1970s; instead it funded nuns to operate, and itself operated, institutions that confined girls and women who became pregnant outside marriage and arranged their separation from their child. Pregnant girls as young as 12 were institutionalised and separated from their children. Numerous pregnant women and girls who had fled the jurisdiction were also returned forcibly from the United Kingdom to be institutionalised and separated from their child, with the knowledge of Irish state officials. Thousands of children were sent by religious organisations to the United States and other foreign jurisdictions with the Department of Foreign Affairs providing passports, even though there was no legal procedure for these relinquishments for foreign adoption. In addition, thousands of children were de facto adopted through the illegal registration of ‘adoptive’ parents as natural parents on birth certificates. Unlawful adoptions also were widely known to take place in Ireland before the introduction of legislation permitting adoption domestically in January 1953. And in 1976, the Irish parliament passed legislation which retrospectively legalised all adoptions since 1953 that would have been invalid because of the absence of informed consent of the mother — it was recognised that many mothers had not known that under the 1952 Adoption Act their consent to the adoption of their child was not valid until the child was 6 months old and that they had the right to be heard by the adoption board prior to a final order being made.
Unfortunately, the Irish state has not recognised that this system amounted to gross and systematic human rights violations.
The Mother and Baby Homes Commission of Investigation did not have terms of reference which required it to investigate constitutional or human rights violations, and it chose not to apply this analytical framework. We set up the Clann Project precisely for this reason, so that we could apply a human rights framework to the evidence which survivors and adopted people were providing.
The Commission of Investigation was not providing legal assistance to those personally affected by what it was investigating; this was another key reason that we established the Clann Project. Also, the Commission of Investigation was refusing to give those who offered their personal testimony a copy of their transcript of evidence; we set up the Clann Project so that people could have a record of what they said, both to hold the Commission to account but also for their personal and family files.
I’m sorry to say that, contrary to the testimony provided by many survivors, the Mother and Baby Homes Commission of Investigation found in its report published in January 2021, that there is no evidence that girls and women were forced into the institutions or incarcerated in institutions; that there is no evidence of forced adoption; that vaccine trials on hundreds of children caused no injury despite being carried out on children without mothers’ consent or the necessary licences; and that the forced unpaid labour which girls and women were subjected to in the Mother and Baby Homes was simply comparable to what they would have been required to do at home with their families. The commission made some recommendations for redress; but none of its recommendations for compensation payments relate to the harm of unlawful separation of mother and child.
It is important to note that this Commission did not implement the basic requirements of an effective investigation under Articles 2 and 3 ECHR; it did not allow survivors to access any of their own personal data or the records of deceased or disappeared family members; it did not allow survivors to see or comment on evidence being gathered from the institutions responsible for the homes and the adoption system; it also refused all requests by mothers to give their evidence in public.
Outside of the realm of the specialised investigation, there is also little to no accountability or justice — and much of this situation has to do with secrecy of information in my opinion. The police have announced that victims of abuse in Mother and Baby Homes should come forward to complain; but the police have not taken the initiative to seize relevant archives, and the Commission of Investigation was barred by statute from handing the evidence it gathered to the police. The rules of civil court procedure in Ireland make cases against the state or other entities almost impossible — there are huge costs risks, a very strict statute of limitations, a lack of class action legislation, the religious orders do not have corporate legal personality in Ireland and so it is hard to know who to sue, the law of vicarious liability does not easily hold the state to account for its outsourced service providers — but the biggest barrier to litigation, I think, is the secrecy of records because it prevents people from building their case and of course from meeting relatives who may be able to provide information about their past.
In addition, there have not been inquests into the thousands of unmarked graves and the many unexplained deaths; the Irish government is in fact bringing forward legislation that will disapply the ordinary powers of the coroner wherever bodies are being exhumed from Mother and Baby home sites. Ireland’s National Archives do not function as they should: they are so underfunded that they work only with 4 government departments regularly, and they have not catalogued over a third of their limited holdings. Health and social care services are not required to deposit their records in the National Archives. Freedom of Information legislation does not generally apply to historical records created before 1998. All of this secrecy contributes not only to impunity for past abuse, but also — I have argued previously — to continuing situations of substantive rights violations up to and including enforced disappearance.
Much as I am concerned about the secrecy of larger administration archives, I want to move now to the issue of access to personal data where people have been in state care or custody.
It is quite clear in my experience, at least in the Republic of Ireland, that the European Union General Data Protection Regulation has been interpreted by many of those who control care and adoption records to mean that individuals seeking their file should be given even less information than they might have been given prior to the GDPR coming into force.
In the Republic of Ireland, state authorities that hold adoption and care files have in recent years refused to tell adopted people even their first name at birth without obtaining the express consent of the natural parents, or if they are dead from an undefined array of extended family members. Perhaps most shocking of all is that over the past two years, Ireland’s Child and Family Agency has been informing some people who previously did not know that they were ‘adopted’ that, actually, the people on their birth certificate are not their natural parent — and then the state is refusing to tell them their identity. Records are routinely redacted in order to obscure all information that relates to a person other than the person seeking their file — even if it is mixed personal data that also relates to the person seeking their file.
Adopted people’s name at birth has been described as ‘third party data’ — on the basis that a person knowing their name at birth would enable them to retrieve their publicly registered birth certificate from the General Register Office and thereby find out their family’s identity.
There is an extremely worrying lack of acknowledgement that ‘personal data includes ‘mixed personal data’ and as the CJEU confirmed in the Nowak judgment, the fact that it is mixed does not affect the right of access. This lack of acknowledgement that mixed personal data is personal data is further demonstrated by the Irish Department of Children’s correspondence to survivors in recent months stating that they are not entitled to any information about deceased relatives, such as their mother, under GDPR.
The Department of Children in Ireland has recently stated that the ‘overarching principle’ guiding its response to Subject Access Requests from survivors of institutions, mothers and adopted people is that ‘the release of personal data must not prejudice the rights and freedoms of others’. This position stems from Article 15(4) of the GDPR.
To date, it seems that there has not been a concerted effort from the human rights community to point out that Article 15(4) GDPR — which states that the right of access to one’s personal data must not adversely affect the rights and freedoms of others — surely needs to be interpreted and applied in conformity with Article 8 ECHR. (This is what the EU Charter itself makes clear.)
Article 8 ECHR requires that, in order to be lawful, a state’s interference with private or family life must not only be necessary and proportionate but must be based on clear law that is foreseeable enough for people to regulate their behaviour and detailed enough to prevent abuse of power. The state must also regulate the actions of private entities so that similar conditions are met. At present, in Ireland at least, in relation to care and adoption records, Article 15(4) GDPR is being treated as if it is all the law that is required to ground a decision by any given data controller that an adopted person’s or mother’s personal data, or the personal data of a person who experienced state care, should be withheld where the data controller believes it necessary and proportionate in the interests of another.
So there is a real need for clear legal frameworks concerning access to personal data for people separated from family and/or cared for by the state.
A further key point needs to be made, however, about the necessity and proportionality test for any deletions or redactions of personal data which legal guidelines might propose in the interests of others.
I would argue that people separated from family and/or cared for by the state should be understood to have a particularly strong right to all of their personal data including mixed personal data; because their right to the personal data is also their right to identity; it is their right to family; it is their right to accountability for how they were treated by the state; it is their right to access justice in the event that they allege abuse; it is their right to the cessation of enforced disappearances or other continuing situations of violation of private or family life; it is their right to the truth and reparation where they have suffered abuse; and it is their right to freedom of expression and to contribute to the national historical record if they so choose.
I fear that modern data protection law has the potential to be understood — and to place victims and survivors of human rights abuses — in the abstract. I worry that it has the potential to characterise their wide-ranging rights as simply a technical matter of data processing which any data controller is entitled to carry out as they please as long as they can argue they did it conscientiously.
To conclude: I would call on those in positions of influence to ensure that the development of modern data protection law in Europe ensures that people who have experienced state intervention in their family relationships and identity are provided with far more information than previously, not less. The dignity and equal rights of people separated from family or placed in care by the State depend on it.