The potential state exposure over Tuam is clear. It could be accused of being a party to an ongoing criminal offence, writes
THE Government’s own report into human rights issues arising from the Tuam babies discovery backed it into a corner. Ultimately, it was left with little choice but to commit to the fullest possible exhumation and DNA analysis and reburial of remains found at Tuam. The real worry for the State is that it may just be the beginning.
The power and weight of Geoffrey Shannon’s report lie not just in the strength of its legal analysis but in the fact it was commissioned by the Government. It now can’t ignore the special rapporteur on child protection’s analysis. In particular, the report has a wider application than just to Tuam.
Shannon was blunt in his opinion, namely that if the State did not commit to the fullest possible exhumation, DNA analysis, and reburial of the remains in Tuam, it may be party to an ongoing criminal offence — the failure to offer a lawful and decent burial.
That is quite a finding. It also has profound implications for the State in terms of liability in this area and, crucially, not just in relation to Tuam. Whatever is decided in Tuam has to now be replicated in other locations where remains are discovered.
For example, we know large numbers of infants died in institutions like Bessborough, Sean Ross Abbey, and Castlepollard.
In the case of Bessborough, the order’s own death register shows that between 1934 and 1953, almost 500 children died. More than half of these children died
in a six-year period
between 1938 and 1944. In 1944, out of the 124 infants admitted to the Bessborough home after birth, 102 died — that’s a death rate of 82%. We also know this isn’t the total figure for Bessborough. This newspaper revealed that children who died at the home as late as 1990 were being buried in unmarked graves in a Cork City cemetery. These graves also contain children who died in the care of St Anne’s Adoption Society. None of these deaths are to be investigated by the mother and baby homes commission.
To date, Bessborough has the highest infant mortality rate recorded in any mother and baby home.
In the case of Sean Ross Abbey’s death register lists a total of 269 deaths between 1934 and 1967. Some of those buried in the plot on the site of the former mother and baby home are not listed on the register, while research carried out by campaigners show the numbers could be substantially higher.
Unlike in Tuam, where a large burial area was walled and marked, it is unclear where most of the remains in relation to some of the other institutions lie.
The clear implication ringing out loud and clear from Dr Shannon’s report is that the State has not only an obligation but a duty to ensure the remains of all these children, not just those in Tuam, are given a lawful and decent burial when found.
He pointed out that the Bons Secours Sisters, the operators of the Tuam mother and baby home, 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. 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.
Shannon also pointed out that this crime does not require there to be any identifiable family member who is affected by the failure to bury.
He stresses that the failure to register a death is also a crime. He thus 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.
“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,” states the report.
Once again, this finding is applicable to any of the other mother and baby homes dotted around the country where we know infant deaths to have occurred in large numbers.
The delay in publishing Dr Shannon’s report is curious in itself. A draft version of the report has been with Children’s Minister Katherine Zappone since July. The final draft was only published on Tuesday.
Given its contents, it can’t but have caused lengthy discussions in Leinster House about not just the implications for Tuam but also for multiple sites around the country. The issues it raises are manifold and profound. The potential State exposure in not opting for the fullest possible exhumation, analysis, and reburial are crystal clear. It could be accused of being a party to an ongoing criminal offence.
Whatever has been decided at Tuam will set a precedent for infant remains in other parts of the country. It can not be seen or treated in isolation.