State is responsible for several mass abuses, alternative Mother and Baby homes report finds

The official report of the mother and baby homes commission photographed at the site of the Tuam home. A group of legal and academic experts who 'profoundly disagreed' with its approach and findings have produced an alternative report. Picture: Andy Newman

The State is responsible for several mass abuses, including breaches of human and constitutional rights, an alternative expert report into mother and baby homes has found.

A group of 25 legal and academic experts have forensically examined the final report of the Commission of Investigation into Mother and Baby Homes to come up with alternative findings.

Their analysis shows that the homes were sites of involuntary detention as well as forced and unpaid labour.

They say women were subjected to inhuman and degrading treatment and there was a failure to protect the right to life.

Breaches of human and constitutional rights

The yet-to-published alternative report also finds evidence of institutional discrimination on the basis of race, religion, disability, and membership of the Traveller community; non-consensual participation in vaccine trials, and obstetric violence.

The much-criticised commission report, published in January, found that the lack of family support was the primary reason for women entering an institution, and laid the blame primarily with the fathers of the children and with the mothers’ immediate family.

However, the response report, due to be launched on Wednesday, has found that the State is responsible for "several mass abuses" which were identified in the commission's own document.

The review finds that these amounted to a breach of human and constitutional rights at the time they took place and may also trigger human rights obligations today.

Six factors indicate the State is to blame

The experts, who consulted with campaigners and survivors as part of their work, cite six distinct reasons as to why the State is to blame. They say:

1: The State funded all institutions in some way; 

2: The State regulated mother and baby homes through local government, inspection, funding, criminal, human rights, constitutional and administrative law. They add that where religious authorities objected to more intensive regulation and reform, State agencies preferred to negotiate rather than enforce regulatory arrangements; 

3: The State was aware of dangerous and degrading living conditions in many institutions, but did not use its statutory powers of prosecution and did not sanction institutions by depriving them of funding, 

4: Irish law punished family foundation outside of marriage and showed no concern for reproductive justice; 

5: The law criminalised aspects of access to contraception up to 1933 and almost all abortion up to 2019, making it almost impossible to avoid unwanted pregnancy; 

6: Irish law still inhibits efforts to seek accountability for abuses in the institutions by restricting affected people’s access to records of institutionalisation and family; their own records and those of close family members.

The commission also comes in for criticism for using a narrow account of Irish legal history to excuse the abuses detailed across the report.

"For those of us who teach law students, it was important to show that legal analysis was at the heart of what the commission had done, and central to much past abuse," the group of 25 academic and legal experts write in today's Irish Examiner.

The group, who will launch their report at an online event hosted by Technological University Dublin (TUD), say their work does not replace the work of the commissioners.

Instead, it is a creative academic exercise that shows that the commission could have come to different conclusions using the same evidence — even while remaining within the original terms of reference, and without conducting substantial new primary research.

In rewriting the commission's executive summary, the editors state that they worked with survivor-advocates and academics, including the Clann Project, "to fill gaps in our team’s knowledge and expertise".

The document will be launched on Wednesday, but the authors will make changes where possible, in response to feedback from affected people and from academics. This, they write, is "in keeping with a feminist ethos which values collective knowledge production".

The alternative expert report has rejected a number of the findings contained in the executive summary of the Commission of Investigation into Mother and Baby Homes. These include the following:

Responsibility

Commission: Responsibility for the harsh treatment of women and their children rests primarily with the fathers of the children and with the mothers’ immediate family.

Alternative: Responsibility rests with the State, which funded and regulated the institution and delegated key public functions to religious bodies.

Involuntary detention 

Commission: There is no evidence that women were forced to enter mother and baby homes by the Church or State authorities.

Alternative: There is substantial evidence of unconstitutional involuntary detention, especially in the earlier period under study.

Physical abuse 

Commission: There was some evidence of minor physical abuse.

Alternative: There is significant evidence of abuse amounting to inhuman and degrading treatment, including of pregnant women, children and survivors of sexual abuse.

Coerced adoption 

Commission: There was very little evidence that children were forcibly taken from their mothers, even if it accepts that women had little choice.

Alternative There is significant evidence of coerced adoption, amounting in many cases to forced adoption, throughout the period under examination 

Inability to access information

Commission: 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.

Alternative: Family members have not been able to access information about the fate of relatives, in breach of their human rights.

Redress for children

Commission: Only children who were resident in an institution without their mothers have a case for redress.

Alternative: The State must take account of the harms of forced family separation, and associated breaches of constitutional and human rights.

Redress for mothers

Commission: Women who entered mother and baby homes after 1973 do not have a case for redress.

Alternative: Changes related to the introduction of Unmarried Mothers’ Allowance in 1973 do not justify this conclusion.