Mother and baby homes inquiry’s lack of transparency was damaging

The government announced its terms of reference for the Mother and Baby Homes Commission of Investigation in January 2015. Adoption Rights Alliance (ARA) and Justice for Magdalenes Research (JFMR) were immediately concerned about the commission’s limited remit: the investigation was restricted to 18 institutions, whereas we would inform the commission about 182 institutions, agencies and individuals involved in separating mothers and children in 20th-century Ireland.

We were also concerned that the government’s terms of reference ignored the Irish Human Rights and Equality Commission’s request that the commission be required to assess the treatment of girls, women and their children by reference to the many meanings of abuse under Irish Constitutional and European and international human rights law.

Soon after the investigation began we learned that the commission would deny witnesses a transcript of their evidence. The commission would also choose to conduct its investigation entirely in private, although the Commissions of Investigation Act 2004 gave it full discretion both to hold public hearings and to afford witnesses access to evidence gathered in the interests of justice.

ARA and JFMR knew we needed to act quickly to set up a parallel process to empower those affected. As voluntary groups we could not do it alone, and in June 2015 the global law firm Hogan Lovells agreed to work pro bono on a collaboration that became the Clann Project. Clann’s purposes were: 1) to provide free legal assistance to anyone who wished to submit a witness statement to the commission; and 2) to publish a group report and recommendations based on Constitutional and human rights law standards.

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JFMR and ARA sent a letter to the commission with our reasons for requesting a public hearing, one of which was to remind the commission of the value of transparency

During the initiative’s first year, we carefully developed the Clann Project’s procedures and ethical protocols before launching to the public, including through an outreach campaign to Irish immigrant support services worldwide. Thereafter, over 50 staff at Hogan Lovells spoke to 164 witnesses, and more than 20 Irish barristers contributed legal analysis pro bono. We published our group report in October 2018

Signed statements

The commission of investigation’s final report claims, inaccurately, that it “received 61 statements from Hogan Lovell [sic]”. By December 2018, Hogan Lovells had submitted a total of 82 signed statements to the commission. These statements came from adopted people, mothers, relatives and other survivors of institutional abuse and/or the injustice of Ireland’s coerced, secret adoption system. We included statements that fell outside the limited terms of reference to demonstrate that these terms were too narrow and to show that all witnesses had valuable and relevant evidence. We asked the commission to recommend that its investigation be widened.

The commission’s final report also alleges: “One group requested a public hearing. When asked for reasons why, no reply was received.” As reported in this paper, the Clann Project is the group to which the commission refers. The commission’s assertion is patently untrue. On May 3rd, 2016, JFMR and ARA sent a letter to the commission with our reasons for requesting a public hearing, one of which was to remind the commission of the value of transparency. At a hearing before the commission on May 9th, 2016, counsel for JFMR and ARA Colin Smith applied for a public hearing, arguing on the basis of applicable human rights standards that the commission should exercise its discretion in favour of transparency. The commission declined our request, and Hogan Lovells wrote repeatedly to the commission during the summer of 2016 seeking an explanation as to why. Copies of all correspondence are with the Editor.

The difference between the number of Clann Project witnesses (164) and the number of completed statements (82) indicates how difficult it is for people affected by forced and/or coerced family separation and secrecy to speak of their experiences. The commission’s report in its tone and content compounds this. Ireland’s closed adoption system has denied the people affected access to the language, personal records and administrative archives required to record and articulate their history. The witnesses who bravely shared their statements with the Clann Project have made an invaluable contribution to our collective understanding of this system. With the consent of witnesses, Clann will shortly make their anonymised statements available on our website. We encourage the Irish public to read them and draw their own conclusions.

Dr Maeve O’Rourke, lecturer in human rights at NUI Galway and member of JFMR, and Claire McGettrick, Irish Research Council PhD scholar at University College Dublin and co-founder of JFMR and ARA, are co-directors of the Clann Project