Why mother and baby homes report findings cannot be let stand

Alternate conclusions around force and abuse possible as accuracy of history is key

Mother and baby homes protest at Phoenix Park in 2020: The commission suggests children who did not spend long in an institution are unlikely to have been abused. We recognise forced separation as a harm in itself. Photograph:  Tom Honan

Mother and baby homes protest at Phoenix Park in 2020: The commission suggests children who did not spend long in an institution are unlikely to have been abused. We recognise forced separation as a harm in itself. Photograph: Tom Honan

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A rewriting the executive summary of the mother and baby homes report cannot take the place of the report or of a full independent review of its processes and outcomes, but it is an effective way to show that alternative findings were possible.

Our main technique is to analyse the evidence already contained in the report itself using the constitutional and human rights law in force during the period under examination.

The Commission of Investigation into Mother and Baby Homes concluded that primary responsibility for the treatment of unmarried women and girls and their children lay with their own families and with their children’s fathers. Our approach required us to reassert the primacy, in law, of State responsibility for addressing human rights abuses.

We unpack the narrow use of 'force', taking seriously the many social and emotional pressures that made resistance to adoption almost impossible for unmarried Irish women

By “responsibility” we mean the State’s obligations to investigate, prosecute and make reparations for grave human rights abuses in the present, based on its past connections to the institutions and the injuries perpetrated there. We identify core connections including funding, regulation and inspection, the role of State agents in referring women to the institutions, documented State knowledge of mass harms and the broader impact of State law in deterring and punishing pregnancy or family formation outside of marriage.

Here are just three examples of differences between the commission’s reasoning and ours. The commission suggests that children who did not spend long in an institution are unlikely to have been abused. By contrast we recognise forced separation from a parent as a harm in itself.

We also highlight the particular vulnerability of small children, who may suffer greatly even from brief periods of institutionalisation because they are completely dependent on adults and unable even to attempt escape. The commission dismisses claims related to maltreatment in childbirth by referring to the presence of trained medical staff in the institutions.

We recognise that the experience of giving birth in an institution may be inhuman and degrading where one is totally under the control of the institution’s staff, subject to regular punishment and emotional abuse and perhaps very young and separated from all other support structures.

The commission insists that “forced” adoption was not a serious issue in the institutions. We unpack its narrow use of the word “force”, taking seriously the many social and emotional pressures that made resistance to adoption almost impossible for unmarried Irish women, well into the 20th century.

Sworn affidavits

We have not made our own recommendations for State action, preferring instead to redirect attention to campaigning groups and to their sophisticated, well-reasoned demands for change.

However, we acknowledge our debt to the Clann Project – a legal research and assistance initiative incorporating the experiences of 130 affected people – and we summarise their recommendations in our report. We engaged in detail with their exemplary legal submissions to the commission.

Our work benefited indirectly from their action in enabling people to send sworn affidavits to the commission. This ensured some inclusion of perspectives in the commission’s report that might otherwise have been omitted.

State action is urgently required so that shared and personal histories can be told in full

Although we rely on the report to the extent possible, we do not suggest that it is sound. Minister for Children Roderic O’Gorman has welcomed our intervention, noting that “a plurality of voices and analyses makes for a stronger understanding of our shared history”. This statement oversimplifies the issues at stake.

Testimony is key here. Several witnesses who gave evidence to the commission have brought judicial review cases, challenging the misrepresentation of their testimony in the main report, and the commission’s exclusionary evidence-gathering processes.

Interventions by Noelle Brown and Catriona Crowe (to give just two examples) show that the anonymised archive of Confidential Committee testimony contained in the report is not an accurate record of the evidence heard by the commission.

Serious defects

We made every effort to work with that testimony in the form in which it is represented in the report. Unlike the commission, we make clear, frequent and express reference to individual sections of the Confidential Committee report to support our conclusions and to corroborate evidence contained in the body of the report.

That works because our conclusions are about systemic failings and because they are indicative and preliminary; like the commission, we consider only 18 institutions. That said, leaving aside its other serious defects, the collection of testimonies in the Confidential Committee report is so heavily edited and fragmented that it would be difficult for us to use it, by itself, to accurately tell the story of a particular institution, family or person.

This is not the witnesses’ fault – it arises from methodological and process decisions made in the preparation of the report and during the evidence-gathering process.

Our efforts demonstrate that further State action is urgently required to address this issue, so that shared and personal histories can be told in full. Commission witnesses must receive the audio recordings of their testimony where requested.

They, and others with lived experience of the institutions, must have appropriate access to their personal and institutional records. If the Minister is committed to a “plurality” of voices, he must remove all legal obstacles to new survivor-led and adopted-led tellings of Irish history.

Máiréad Enright is reader in feminist legal studies and Leverhulme research fellow at Birmingham Law School. The draft document and an accompanying feedback form are available at tudublin.ie

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