Dáil motion to #ExtendtheCommission

24 February 2021

Last night, Minister Roderic O’Gorman announced that the Mother and Baby Homes Commission of Investigation has ‘retrieved the backup tapes containing the audio recordings from the Confidential Committee from their off-site storage’ and ‘agreed to deposit the audio recordings with the Department’. The Minister also noted that approximately 80 people, of the 550 who gave testimony to the Commission’s Confidential Committee, have explicitly asked to be anonymous in the Minister’s archive.

Major questions remain unanswered as to why the Commission originally deleted the recordings of all 550 interviews without creating a full verbatim transcript, without sending a copy of the interview to the witness, without notifying anyone in writing that it would delete the recording, and without using consent forms — when section 43 of the Commissions of Investigation Act 2004, section 7 of the National Archives Act 1986 and the EU General Data Protection Regulation (among other legal rules) seem quite clearly to prohibit such action. Many survivors and others affected by the Commission of Investigation’s work only discovered that the audio recordings had been deleted by reading page 11 of the report of the Confidential Committee, published in the Commission’s Final Report on 12 January.

The Minister must now ensure that every person’s full testimony is indeed retrieved, that each witness has the option of receiving that testimony in both audio and fully transcribed form, and — crucially — that each witness is facilitated to challenge and correct where, if anywhere, their testimony is misrepresented in the Commission’s Final Report.

Should the Commission be allowed to dissolve on 28 February, now that the archive of testimony has — according to Government and the Commission — been found?

This depends on whether the Government is willing to defend the Commission’s Final Report in any judicial review proceedings that a survivor may bring in the next month and a half.

Those personally affected by the Commission’s Final Report have a right to seek judicial review of the Commission’s findings and recommendations. The dissolution of the Commission poses a threat to access to justice, because it is not clear if judicial review actions can proceed against a non-existent Commission.

Today, during the Dáil debate, the Minister must guarantee that he will stand in as legitimus contradictor (i.e. take the place of the Commission in order to defend applications for judicial review of the Commission’s Final Report) if the Government is determined to allow the Commission to dissolve.

Otherwise, the Commission should be extended to enable these proceedings.

There is a three-month time limit for bringing judicial review proceedings, and many survivors have only recently received the full printed copy of the 3,000-page report and started reading the individual chapters relating to their institutions etc. It is a basic democratic right that any person is entitled to seek review by the courts of the decision-making actions of a public body: judicial review is a mechanism to ensure that state bodies act within their powers, come to rational conclusions based on the evidence before them, properly interpret the law, and apply fair procedures. Any person affected is entitled to seek judicial review of whether the Mother and Baby Homes Commission acted in this way.

It is not accurate for the Commission to assert, as its spokesperson did in yesterday’s Irish Times: “The report is there, it is not going to be revised.”

Any survivor is entitled, before 11 April, to bring a case requesting the High Court to ‘quash’ — i.e. invalidate — any of the findings or recommendations based on flaws in the Commission’s process or reasoning.

The report contains a very large number of findings and recommendations, and these findings and recommendations will have a massive bearing on (1) Ireland’s historical record and how future generations are educated — the purpose of the Commission was to find historical facts; and (2) most urgently, the scope of redress.

The Commission finds, for example:

Re. arbitrary detention: There are no recommendations for redress for arbitrary detention. The Commission finds:

• There is no evidence that women were forced to enter mother and baby homes by the Church or State authorities (Exec Summary para 8).
• They were always free to leave if they took their child (Recommendations para 27).
• They were not ‘incarcerated’ in the strict meaning of the word but in the earlier years at least, with some justification, they thought they were (Recommendations para 27–28).

Re. forced labour: The Commission recommends that Magdalene Laundry-like redress should be available only for (i) women in county homes, (ii) women in Tuam, (iii) women who worked outside the institutions without pay (Recommendations para 31–32) and (iv) women in mother and baby homes who spent more than six months in the institution — without specifying the evidentiary basis for the limit to this recommendation. The Commission finds:

• In mother and baby homes, girls and women were expected to work but this was generally work which they would have had to do if they were living at home…no different from work carried out by women on farms all over the country (Recommendations para 30).

Re. unlawful / unregulated family separation: The Commission makes no recommendations at all for redress for the unlawful or unregulated separation of mothers and children. The Commission acknowledges emotional abuse in the institutions only by reference to boarded out children in Tuam (Recommendations para 22). It finds further:

• Young mothers who were in Dunboyne would have difficulty establishing that there was abuse (Recommendations para 23).
• ‘Conditions in Dunboyne were very good. The Commission has not seen any evidence of major shortcomings in any of the homes or flatlets that were operating in the 1970s-1990s’ (Exec summary para 14).
• ‘Children who spent very short periods in the institutions would find it very difficult to establish that they had been abused’ (Recommendations para 23).
• If redress is being considered for former residents of mother and baby homes, the relevant comparable redress schemes are the RIRB and Magdalene scheme. (Recommendations para 11)
• Women who entered mother and baby homes after 1973 do not have a case for financial redress (Recommendations para 27) [and women who entered pre-1973 only have a case for redress for duration of stay if longer than 6 months — not in relation to their separation from their child].
• Only children resident in an institution without their mothers have a case for redress (Recommendations paras 19, 23)
• ‘No evidence of abuse in Dunboyne’, babies stayed for v short time [therefore these children shouldn’t even be included in an RIRB-like scheme] (Recommendations para 23).
• The Commission found very little evidence that children were forcibly taken from their mothers; it accepts mothers did not have much choice but that is not the same as ‘forced’ adoption (Recommendations para 34, exec summary para 34)
• Mothers had time after initial placement to reassess the situation (Recommendations para 34, Exec summary para 34)
• Commission did not come across sort of practices in Australian report (Recommendations para 34, Exec summary para 34)
• The commission has received evidence from some mothers who signed forms because they had no alternative…Some of these women are of the opinion that their consent was not full, free and informed. However with the exception of a small number of legal cases, there is no evidence that this was their view at the time of the adoption. (Exec summary para 254)
• At least from the 1970s/1980s there were adequate procedures in place for ensuring that a mother’s consent was full, free and informed. (Exec summary para 254)
• There was no statutory regulation of foreign adoptions — donations from foreign adoptive parents were not illegal (Exec summary para 255–258)
• ‘There is no doubt that the option of legal adoption was a vastly better outcome for the children involved than the previous informal adoption or nursed out arrangements.’ (Recommendations para 35)

Re. harm caused to children in unsupervised care situations following their separation from their mother and family (including through boarding out, and domestic and foreign adoption): The Commission makes no recommendation for redress for harm caused to boarded out children [despite Tuam children’s suffering when boarded out being acknowledged in the chapter on Recommendations para 22]. The Commission:

• Makes no mention in its recommendations of harm caused through lack of oversight of adoptions. It states, ‘There is no doubt that the option of legal adoption was a vastly better outcome for the children involved than the previous informal adoption or nursed out arrangements.’ (Recommendations para 35)
• Finds that ‘there is no evidence of the sort of gross abuse that occurred in industrial schools. There are a small number of complaints of physical abuse’ (Exec summary paras 15–15)

Re. physical abuse / neglect in institutions, including non-consensual vaccine trials: The Commission makes no recommendations (save the general recommendation that children unaccompanied in some institutions should be eligible for an RIRB-like scheme — where presumably they would have to prove abuse). The Commission finds:

• The Commission has heard some evidence of physical abuse which, while unacceptable, was minor in comparison to the evidence of physical abuse documented in the Ryan Report (recs para 22)
• Until the 1960s or the 1970s, the quality of maternity care in mother and baby homes was probably superior to that available to the majority of Irish women at the time (exec summary para 244)
• There is no evidence that women were denied pain relief or other medical interventions that were available to a public patient who gave birth in a Dublin or Cork maternity unit (exec summary para 245)
• There is no evidence of injury to the children involved as a result of vaccine trials (exec summary para 248)

Re. discrimination: There are no recommendations for redress based on racial or disability-based discrimination, or based on the ‘egregious human rights violation’ that the statuts of ‘illegitimacy’ constituted, according to the Human Rights chapter.

Re. unlawful denial of information and the right to truth: The Commission does not mention GDPR at all in its Final Report, and its recommendations do not engage with the behaviour of any adoption agency or religious or lay religious organisation save that the Commission finds:

• ‘Criticism of TUSLA is unfair and misplaced. TUSLA is implementing the law and has no choice about doing so. The problem is not with TUSLA, it is with the law. The law on access to adoption records is outlined in Chapter 36.’ (Recommendations paras 3–4)
• Diocesan records and the records of the religious orders are the property of the holders and they have the right to determine who gets access (Recommendations para 52)

Re. disappearances: There are no recommendations in the Final Report regarding deaths, burials, or disappearances of individuals whose families are still searching for them. The Commission finds:

• Despite the fact that thousands of babies died, the Commission is aware of only a few mothers, who were not in the institution when the child died, who subsequently sought information on the burial locations of their children.(Recommendations para 11)
• In cases where the mothers were in the homes when the child died, it is possible that they knew the burial arrangements or would have been told if they asked. It is arguable that no other family member is entitled to that information. (Human Rights ch, para 36.80)
• The costs involved in family members being told where relatives are buried would probably be prohibitive (Human Rights ch, para 36.81)

Re. survivors’ and advocacy groups’ credibility and honesty, the Commission finds:

• Some survivor testimony is ‘contaminated’ (without any explanation of whose or what evidence) (Confidential Committee Chapter page 12)
• Criticism of TUSLA is ‘vitriolic’, ‘unfair and misplaced’ (Recommendations para 3)
• The Clann Project gave no reasons for requesting a public hearing (Introduction para 46). This is demonstrably untrue: there is a record of Clann’s written submissions and oral application by Counsel with reasons provided for the public hearing request, as explained in the Irish Times here.

Many, many survivors are dissatisfied with the Final Report’s conclusions and its recommendations on redress. This is understandable; it is clear to see from the face of the Final Report and from witness statements that were submitted through the Clann Project (approximately 80 witness statements being summarised in a 150-page report by the Clann Project to the Commission in 2018, with some of those statements available already online as part of an ongoing project) that many of the findings and recommendations are at odds with the witness evidence. I have written a Twitter thread with examples of the witness evidence.

The Commission makes vague assertions that some witness evidence was ‘contaminated’ — but it is not clear whose evidence it is talking about — and since many survivors are in fact identifiable in the report, to their family and friends and the public where they have told their testimony openly before, assertions such as ‘there is no evidence’ of abuse, or some witness evidence is ‘contaminated’ could be argued to impact these survivors’ good name.

In fact, the Commission was obliged to send a draft of its Final Report to all those who were identifiable from it so that they could comment on any parts that needed amending (or apply to the High Court for amendments) (see section 34 of the Commissions of Investigation Act 2004). The Commission did not send any survivors a draft, and this is something that some people may wish to challenge in light of the fact that numerous survivors have stated that the extracts of their testimony in the final report are incorrect or distorted. This has implications for their freedom of speech, their reputation, and their right to an accurate historical account of gross and systematic human rights violations.