Gross violations and injustices come in various forms. Ireland has had our well-documented share, from industrial and reformatory schools, Magdalene laundries, mother and baby homes, Catholic dioceses, CervicalCheck and symphysiotomy, to the ongoing disclosures of children sexually abused in primary and secondary schools.
It must be clear that when harm is perpetrated on this scale, the State has moral and legal obligations to act, with or without the co-operation of the organisations or persons who bear responsibility for that harm. While co-operation is preferable, the State may invoke its legal powers on behalf of citizens to compel compliance if co-operation is not forthcoming. To the extent that institutions and their actors are willing to participate, there is a duty to involve them in consensual, survivor-centred ways to meet the needs arising from gross violations.
The challenge lies in how to design and deliver this response. Overly legalistic responses leave much to be desired for those most affected. We have many examples in Ireland of such failures.
Establishing truth is only one part of a wider response that must also include accountability for those responsible, redress for those affected, and cultural change to prevent recurrence
The time is now to establish the truth of what happened in children’s schools, to collect testimony and analyse records, and to establish who knew what and when, what actions were or were not taken, and where (diffuse) responsibility lies. The right to the truth is an emerging international norm in human rights discourse, and an essential first step in moving forward. This right is individual (for victims and their loved ones) and collective (for wider society).
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But establishing truth is only one part of a wider response that must also include accountability for those responsible, redress for those affected, and cultural change to prevent recurrence. Ireland is among the many countries to establish legal processes in this context; many have not brought desired outcomes. We can learn from these experiences and from innovative responses to institutional abuse at home and abroad to determine how to move forward.
A restorative inquiry is a response to mass harm that is underpinned by specific goals and principles. It seeks justice and supports healing while being inclusive, participatory and change-oriented. Survivors’ needs and justice interests are at the heart of it. Survivors and other relevant representatives are given core participant status at the design, implementation and monitoring stages. Transparency and information sharing are essential and operationalised by means of interim and thematic reports published at regular intervals.
These principles underpinned the recent restorative inquiry into the Nova Scotia Home for Colored Children in Canada. This was established following years of advocacy led by Black survivors of abuse and neglect at this institution. Recognising a need to develop a new type of response, the provincial government of Nova Scotia collaborated with a wide range of stakeholders to ensure that survivors’ interests were at the heart of the process. Instead of being judge-led, a “council of parties”, made up of people with knowledge and connection to these issues and parties central to the work of the inquiry, co-designed the terms of reference, implementation and monitoring of the process. Experts in law and in restorative justice supported the work. The final report described how the different approach revealed connections between individual harm and systemic issues while addressing the needs of those harmed in the past, the need for accountability and the commitments required for the future.
Restorative inquiries have at least three levels of hearing, all of which are trauma-informed, person-centred and restorative in ethos
Other countries have also sought to apply these lessons. In New Zealand in 2018, the ministry of health asked restorative justice practitioners to facilitate face-to-face “listening circles” to enable 246 survivors of surgical mesh implants to tell their stories, feel heard and believed, and input into the response. An online database enabled 484 people who could not attend a circle still to contribute. The evaluation found that previous responses compounded the harm done, reducing survivors’ trust in healthcare and public institutions. In contrast, the restorative response helped survivors heal emotionally, not least through a “listening and understanding” phase that participants experienced as respectful, dignified, and validating.
Restorative inquiries have at least three levels of hearing, all of which are trauma-informed, person-centred and restorative in ethos. This is ensured by mandatory training for all personnel, delivered by competent professionals from relevant disciplines and sectors. At the first level, confidential committee hearings offer survivors an opportunity to recount their experiences in a confidential setting, uninterrupted and undisputed, orally or in writing, to a person or panel with authority and legitimacy. At the second level, investigative committee hearings hear all perspectives, including competing ones, and are inquisitorial (rather than adversarial) in approach, with all perspectives welcomed and examined.
Anonymised thematic evidence from confidential committees, evidence from investigative committees and records and documents sourced and analysed, feed into the final report. At the third level, restorative inquiries enable restorative justice meetings between survivors and perpetrators, institutional representatives, or state actors, with the consent of the parties. Survivors can choose to participate at any or all levels and are not precluded from taking criminal or civil litigation proceedings by doing so. Procedural and other legal safeguards are put in place to ensure that participants and processes are protected in the restorative inquiry. To achieve their aims, restorative inquiries must be welcoming and non-antagonistic and should provide support for survivor participants, such as travel and food.
Around the world and in Ireland restorative work in response to institutional abuses is being explored and practised
In addition, public and private roundtables on various topics form part of restorative inquiries, allowing government and NGO representatives, policy experts, academics, survivors and advocacy groups to discuss policy issues in these forums.
Finally, a restorative redress scheme should run in parallel to provide immediate acknowledgement and support for survivors.
Around the world and in Ireland restorative work in response to institutional abuses is being explored and practised. The results are never perfect given the nature, complexity, and scale of the harm. As a people, we cannot undo what happened, but we must avoid failing those children and adults again through responses that perpetuate and exacerbate their suffering.
- Marie Keenan is associate professor at the School of Social Policy, Social Work and Social Justice, University College Dublin. Ian Marder is assistant professor at Maynooth University School of Law and Criminology