State argues ‘difference of view’ on mother and baby homes report

High Court hears cases against Commission’s findings do not raise issues of fair procedure

Many points raised in the High Court cases taken by two former residents of mother and baby homes relate to a "difference of view" about the Commission of Investigation's findings and do not raise issues of fair procedure, counsel for the State has said.

Eoin McCullough SC, representing the State parties, said many of the applicants’ submissions are based on disagreements about the substance, and sometimes the conclusions, of the final report into mother and baby homes.

As the commission has been dissolved, Philomena Lee, now in her 80s and living in England, and Galway-based Mary Harney are bringing their challenges against the Minister for Children, the Government, Ireland and the Attorney General.

Mr McCullough said there were points in Ms Lee’s case which do not conflict with the commission’s report when “read fairly as a whole”. Ms Lee’s submission that it “isn’t good enough” to blame the treatment of the women in the homes on the societal morals of the time, is a “simple difference of view” between her and the findings of the report.

He said the commission was tasked with taking into account vast amounts of evidence to “reach its own conclusions”.

Mr Justice Garrett Simons heard two lead cases that address a core claim in nine separate but similar actions concerning the scope of section 34 of the Commission of Investigation Act 2004.

Both women say they are readily identifiable in the final report, despite not being named, triggering a requirement, under section 34 of the Act, for the commission to provide them with the draft report so they could make submissions on it, including on the treatment of their evidence.

They are seeking to have certain parts of the report quashed.

The State denies the claims and points to the independence of the commission and the scale and complexity of the materials it had to consider.

Mr McCullough said there is no conflict between Ms Lee’s testimony and what the report as a whole said about women’s understanding of the adoption process.

Ms Lee, who was sent to the Seán Ross home in Co Tipperary after becoming pregnant at 18, had taken issue with the report's findings on pain relief in childbirth, which she said had been deliberately withheld by the nuns. Mr McCullough said the report found that pain relief was often not given to women in the homes or in public hospitals at the time. Submissions that the women were told during childbirth that they would have to "suffer for their sins" were actually contained in the report, he said.

Mr McCullough said Ms Harney’s objection to the report’s treatment of the experiences of people who were boarded out concerns a “difference of emphasis” rather than a breach of fair procedure. Ms Harney (72) was born in Cork’s Bessborough mother and baby home and was boarded out between 1951 and 1954.

Previously, Michael Lynn SC, for the applicants, said Ms Harney is concerned some of her evidence was “not recorded fairly” and an important aspect was “completely missing” from the report.

Mr Lynn said "numerous" findings in the commission's report are "at odds" with the testimony, Ms Lee submitted. The commission has painted an "incomplete, inaccurate picture" of what took place during Ms Lee's time in the home, counsel said.

Mr McCullough said a finding in favour of the applicants on section 34 of the 2004 Act would have “dramatic consequences” for the running of inquiries. He submitted that it was the intention of the Act that provisional copies be sent only to people against whom allegations are made or whose good name is at risk, which, he said, would not include the applicants.

If the applicants’ interpretation is correct the commission would have been obliged to send extracts to “many thousands of people”, he said. He also argued that the intended threshold of identifiability has not been met.

In reply on Thursday, Mr Lynn said the assertion that a disagreement over substance and a breach of fair procedures are mutually exclusive is “fundamentally flawed”. These two issues are “necessarily interdependent”, as with no disagreement over substance there is no point in vindicating a breach of fair procedures, he said.

Mr Lynn said the “life-defining” adoption of Ms Lee’s son has been distorted by the State party, and the notion that she agreed to it is a “fundamental error”. Further, he said it amounts to “an attack on a good name because it impugns her evidence”.

Mr Justice Simons will deliver his judgement on December 9th.