Courts would have treated witnesses better than Mother and Baby Homes Commission

The State's latest inquiry into institutional abuse is refusing the ordinary protection of law to those living with the continuing injuries of “past” abuse, writes Máiréad Enright
Courts would have treated witnesses better than Mother and Baby Homes Commission

Survivors, adopted people and their advocates have had to fight repeatedly, painfully and publicly: for preservation of archives, for recovery of recorded testimony, for public accountability and even for accessible copies of the report.

The State's latest inquiry into institutional abuse is refusing the ordinary protection of law to those living with the continuing injuries of “past” abuse, writes Máiréad Enright

There’s a word the Government uses to describe the Mother and Baby Homes Commission Report; “legalistic”.

It implicitly criticises the Report and (perhaps) suggests that the Government had hoped for something different. Our courts have said little about people abused in twentieth-century Irish institutions.

It is difficult to sue State bodies and religious congregations. Since the State refuses to fully recognise survivors’ and adopted people’s rights to their records, it can be hard to gather evidence.

Then the plaintiff needs to persuade the court to hear their case, although decades have elapsed since the injury. The defendant, often a State body, is seen to require protection from the difficulties that arise when a witness has died, their memory has degraded, or documents have been lost.

The State’s lawyers fight hard. There are no protocols requiring a softer approach. 

Whatever duties of care the State ordinarily owes its citizens are set aside. Fighting these cases is tough if you are older, tough if you are sick.

Governments establish historical abuse inquiries to spare survivors litigation and provide an alternative route to truth. However, during the Mother and Baby Homes investigation, witnesses - survivors and adopted people - were treated in ways that no court would accept.

The Commission’s practices exceeded the careful scrutiny of evidence necessary to protect the rights of those who worked with or ran the homes.

The failings of the Confidential Committee

The Commission funnelled most witnesses into its Confidential Committee. It did not adequately advertise the alternative of appearing before the formal Investigative Committee or (for those unable to face a hearing) sending a sworn written statement. 

It did not explain that only evidence given to the Investigative Committee would be considered robust enough to inform the Report’s findings. It did not allow witnesses to examine evidence that appeared to contradict their statements, so that they could clarify any misunderstanding.

It did not explain that statements made to the Confidential Committee would not be reported as whole narratives, but as incoherent fragments. 

It did not explain that the Report would attack witnesses’ evidence by suggesting it was “tainted” by involvement with advocacy groups.

It did not invite everyone who asked to appear before the Investigative Committee to do so. It did not properly explain its intention to destroy audio recordings of testimony; to the extent that last autumn the Oireachtas legislated to archive original recordings that had been deleted the previous summer.

These failings are not exhausted by the word “legalistic”. In some ways, the Confidential Committee’s witnesses would have been treated better in court.

The legislation underpinning the Commission provides for better treatment: it allows for public hearings, witness access to evidence and witness access to draft copies of the report where appropriate. The Commission chose not to use these powers.

Past failures

This is not the first time that an inquiry has denigrated survivor testimony. The McAleese inquiry ignored 795 pages of survivor oral history submitted to it by Justice for Magdalenes.

The Harding-Clarke Report on the symphysiotomy redress scheme openly accused many applicants of making exaggerated or false claims. It is not difficult to discern an emerging pattern.

Inquiries may take different forms, but none has dislodged the ingrained culture of disbelief which encourages suppression of affected people’s evidence. It is difficult to trust in the independence of these inquiries, if they are marked by the same predictable exclusions.

The Government sometimes excuses shabby inquiries as “non-adversarial” - less combative or aggressive than the law would otherwise require. Looking back on the last six months, those claims ring hollow.

Survivors, adopted people and their advocates have had to fight repeatedly, painfully and publicly: for preservation of archives, for recovery of recorded testimony, for public accountability and even for accessible copies of the report.

When the State denies adopted people their ordinary personal records, and when it denies ordinary inquests to those whose family members died in institutions, it sends a message to those affected by institutional abuse; that they are still outside society.

It sent the same message when it abandoned them to a hostile Commission. “Legalistic” is a misleading description. In fact, the State is refusing the ordinary protection of law to those living with the continuing injuries of “past” abuse.

  • Máiréad Enright is a Reader in Feminist Legal Studies and Leverhulme Research Fellow at Birmingham Law School.

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