The silencing of those subjected to forced family separation

The Government continues to stand by the deeply flawed findings of the Mother and Baby Homes Commission of Investigation while publishing its Birth (Information and Tracing) Bill.

Click here to read my related post focusing on the Bill’s contents.

In order to understand the rationale behind the Birth (Information and Tracing) Bill — including its lack of information access rights for mothers, its denial of siblings’ rights to know each other, its failure to demand that religious orders preserve and produce information, and its restricting of adopted people’s access to their files — it is necessary to appreciate the below policy background.

Mother and Baby Homes Commission procedures

It has been established by eight High Court judicial review actions that the Mother and Baby Homes Commission of Investigation breached its statutory obligations and denied survivors fair procedures throughout its investigation: by refusing them the same opportunity as afforded to the religious, state and other alleged wrongdoers to see and comment on draft findings affecting them.

As the Clann Project notified the Government of repeatedly from 2016 onwards (see also here and here), the Commission of Investigation refused to provide any of the people affected by the abuse under investigation with their own personal data or records concerning their deceased relatives.

The Commission also declined to exercise its powers to hear or gather any of the alleged wrongdoers’ evidence in public. It would not allow survivors who requested it the opportunity to speak in public either.

The Commission refused to give a transcript to any survivors or adopted people of the evidence they gave. Going further, and without written notice or informed consent, it deleted the audio recordings of 550 people’s interviews with its Confidential Committee (back-up copies of these recordings were only retrieved following extensive public pressure campaigning forcing the Government to intervene in late 2020).

Now, the Commission’s entire archive is sealed in the Department of Children for 30 years with the exception that the Department has been accepting Subject Access Requests for personal data in the archive since 2021 (following enormous public pressure forcing the Government to acknowledge its EU law obligations).

Mother and Baby Homes Commission findings

With all of this secrecy and unfair procedure in its background, the Mother and Baby Homes Commission of Investigation’s Final Report reached findings and recommendations that flatly deny the reality of abuse suffered by tens of thousands of people in the institutional and forced family separation system.

The contents of the Confidential Committee report and numerous other parts of the Final Report on their face contradict many of the Commission’s conclusions. Not only this, but the Commission failed to acknowledge or apply EU data protection law or other forms of human rights law in asserting that:

• ‘The Commission found very little evidence that children were forcibly taken from their mothers; it accepts that the mothers did not have much choice but that is not the same as “forced” adoption’ (Recommendations para 34)
• Although some mothers ‘are of the opinion that their consent was not full, free and informed’, there is ‘no evidence that this was their view at the time of the adoption’ (Executive Summary para 254)
• ‘Children who spent very short periods in the institutions would find it very difficult to establish that they had been abused’ (Recommendations para 23)
• ‘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)
• ‘The Commission has not seen evidence of illegal registration of births which occurred in the mother and baby homes and county homes under investigation’ (Chapter 32 para 398)
• The criticism by many survivors and adopted people of the information and tracing arrangements in place is ‘quite vitriolic’, and ‘criticism of TUSLA is unfair and misplaced’ (Recommendations para 3)
• The ‘Diocesan records and the records of the religious orders involved in the institutions are the property of the holders and they have the right to determine who gets access’ (Recommendations para 52)
• ‘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’ (Chapter 36 para 80)
• Girls and women in mother and baby homes ‘were not “incarcerated” in the strict meaning of the word…They were always free to leave if they took their child’ (Recommendations para 27)
• The forced labour which girls and women were subjected to in mother and baby homes ‘was generally work which they would have had to do if they were living at home’ (Recommendations para 30) and not of the type that should have been remunerated (Recommendations para 31)
• While ‘It is clear that there was not compliance with the relevant regulatory and ethical standards of the time as consent was not obtained from either the mothers of the children or their guardians and the necessary licences were not in place’, there is ‘no evidence of injury to the children involved as a result of vaccines’ (Executive Summary para 248)
• While ‘it must be assumed that many foster children, perhaps the majority, were beaten — how violently cannot be established’ (Chapter 11 para 90) and the abuse of boarded out children was not relevant to the Commission’s recommendations on redress (Recommendations paras 19, 22, 23, 39)

Government support of the Commission’s findings

In a recent written Parliamentary Question response, Minister Roderic O’Gorman insisted that — despite the Government accepting the High Court’s declarations and agreeing to list alongside the Commission’s Final Report all of the findings and recommendations which the eight litigants would have challenged had they been given any opportunity — the Government still wishes to stand over the Commission’s Report. The Minister argued that: ‘While I acknowledge that specific paragraphs are not accepted by a number of survivors, I am also aware that some of those paragraphs may reflect the experiences and evidence of other survivors.’

The Government’s continuing allegiance to the Commission’s deeply flawed and unsupported findings is clearly evident in its proposals for a financial payment scheme. These proposals also ignore the independently compiled survivor consultation report to which 198 people gave painstakingly of their time through phone or online calls and a further 444 written submissions were made. The OAK independent survivor consultation report recommends ‘a universal, inclusive scheme; yet the Government’s proposals:

• exclude those who were adopted or otherwise separated from their mother in an institution before the age of six months (because family separation is not considered a harm requiring redress);
• exclude those who were boarded out as children;
• exclude those who were in institutions not investigated by the Commission of Investigation;
• exclude those who were forcibly separated in non-institutionalised settings including through adoption agencies and private facilitators, and through illegal adoption including via illegal birth registration;
• refuse to recognise forced labour or servitude in institutions, other than of a type that the Government deems to have been ‘commercial’;
• restrict the ‘enhanced medical card’ to those institutionalised for more than six months (because family separation is not considered a harm requiring redress); and
• grossly undervalue the abuses perpetrated, requiring waiver of all legal rights against the State in exchange for as little as a €5,000 payment.

In my view, and as explored in a separate post on the Bill’s contents, the Birth (Information and Tracing) Bill further evidences the Government’s commitment to continuing the Commission of Investigation’s narrative and to preserving State and religious control over evidence that would contradict that narrative.