State may be party to offence of preventing lawful burials

The State may be party to the “continuing offence” of preventing a lawful and decent burial unless it fully exhumes, sorts, and buries any infant remains that are found in unmarked plots connected to former mother and baby homes.

State may be party to offence of preventing lawful burials

The State may be party to the “continuing offence” of preventing a lawful and decent burial unless it fully exhumes, sorts, and buries any infant remains that are found in unmarked plots connected to former mother and baby homes.

The finding is contained in the report, prepared by the special rapporteur on child protection Dr Geoffrey Shannon for Children’s Minister Katherine Zappone, on the human rights issues arising from the discovery of infant remains in Tuam.

The Government has now said “there is a possibility” of investigations into infant burials at other mother and baby home sites, while campaigners have labelled Tuam the “tip of the iceberg”.

Almost 20 months after “significant quantities of human remains” were discovered at Tuam in March 2017, the Government yesterday confirmed the remains will be exhumed as part of a “full forensic examination” of the site.

Dr Shannon’s study was published by Ms Zappone at the time of her announcement about Tuam.

The key finding of the report is that the State may be party to an ongoing crime unless it fully exhumes, sorts, and buries all of the remains found at Tuam.

While Dr Shannon was asked specifically to look at issues around Tuam, it is clear from the report that the same issues of State liability would arise in respect of any future discovery of infant remains at other former mother and baby homes.

Outlining a number of precedents in common law, Dr Shannon pointed out that the operators of the Tuam mother and baby home, the Bons Secours Sisters, may have been under a common law duty to bury those who died under their roof, and that this duty to bury incorporating a duty to bury decently and with dignity, in a Christian burial.

“This offence has been recently used in prosecutions in England,” states the report.

“Applying this offence to the Tuam context, a question that arises in the present review is whether the original actions of the operators of the Tuam mother and baby home could have constituted prevention of a lawful and decent burial. Moreover, were the relevant authorities to refuse to exhume, sort, and bury the remains, could this constitute a continuing offence of prevention of a lawful and decent burial?”

states the report.

Dr Shannon points out that this crime does not require there to be any identifiable family member who is affected by the failure to bury.

The report stresses that the failure to register a death is a crime and calls on the State to ensure that for every person buried at the site in Tuam, there is a corresponding death registration.

“It may be the case that all deaths which took place at the Tuam mother and baby home were duly notified to the registrar. There is no doubt, in any event, that a clear statutory duty existed in respect of such notification,” states the report.

“Auditing the obligation to register a death should be considered in the context of Tuam. This might be undertaken by matching the death certificates to the number of juvenile human remains.”

Dr Shannon’s conclusions are also applicable to infant death registration already confirmed at other mother and baby homes — most notably Bessborough, Sean Ross Abbey, and Castlepollard.

The Irish Examiner has previously published information pertaining to death registers from Bessborough and Sean Ross Abbey, which have been in the hands of the HSE, and now Tusla, since 2011.

This newspaper has also uncovered evidence that children born in Bessborough, and who died as late as 1990, were buried in unmarked graves in Cork.

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