Tag Archives: Mother and Baby Homes Commission

The Mother and Baby Homes Commission of Investigation, above from left: Professor Mary E. Daly, Judge Yvonne Murphy, Dr William Duncan, will deliver its report today

Today.

The Mother and Baby Homes Commission, led by Judge Yvonne Murphy, is scheduled to hand over its report into mother and baby homes to the Government.

It will be reviewed by the Attorney General and Department of Children and Youth Affairs before it is published in what could be a number of months.

Ahead of this, last night The Irish Times reported that a Cabinet meeting yesterday heard that the report will “increase pressure on the Government to issue a State apology and move forward with a financial compensation scheme for victims”.

It also reported that:

“Ministers were also told that a referendum or new legislation will be needed to deal with confidentiality and privacy issues where birth parents do not want their data released.”

However…

…Last night law lecturer and Director of the Child Law Clinic at University College Cork tweeted that no referendum is needed on tracing legislation – a point, he said, which has been repeatedly made by his academic colleagues Dr Maeve O’Rourke, David Kenny and Fergus Ryan.

In 2015, Dr Conor O’Mahony (above) appeared before the then Joint Oireachtas Committee on Health and Children to speak about on the then pre-legislative scrutiny on the then Heads of the General Scheme of the Adoption (Information and Tracing) Bill, a bill which subsequently lapsed with the most recent dissolution of the Dáil and Seanad.

Dr O’Mahony told the committee:

“I am grateful for the opportunity to address this issue today. I will focus briefly on some of the competing rights issues that have already been discussed this morning in the context of the Constitution. I will also say a little about international human rights law.

“As members are aware from earlier contributions, much of the discussion in this area is informed by the 1998 decision of the Supreme Court in the I O’T v B case, [where the court found that the natural mother’s constitutional right to privacy outweighed the child’s constitutional right to identity] which addressed the competing rights of adoptees and natural parents.

“The court recognised that the adoptee has a constitutional right to identity and that the natural parent has a constitutional right to privacy. The court stressed that neither of those rights are absolute, as each of them may be qualified to an extent by the other.

“Much of the discussion that takes place when constitutional concerns about laws of this type are raised is based on this case and on what I would see as a greatly exaggerated concern about possible constitutional issues. Much of the discussion is based on focusing on the outcome in the I O’T v B case rather than on the principles established in that case. The outcome of that case was a ruling in favour of protecting the mother’s privacy. The court made that ruling in the context of something of a legislative vacuum. This law is seeking to fill that vacuum.

“With regard to the laws enacted by the Oireachtas on issues like adoption identity and tracing, the court said that it is for the Oireachtas and not for the courts to establish how to balance competing rights and how to deal with sensitive matters of social policy. In the vast majority of cases, the courts will defer to the balance struck by the Oireachtas unless there are extreme consequences of doing so. That is the key message set down in the decision in the I O’T v. B case. We have seen that message repeatedly emphasised in subsequent decisions of the Supreme Court.

“Some recent examples include a challenge against the law on the age of consent, a challenge against the law criminalising assisted suicide and a case involving the allocation of parentage in surrogacy arrangements. In all of those cases, the Supreme Court stressed that complex social matters should be addressed by the Oireachtas and not by the courts.

“For that reason, I think the key message to take from the I O’T v. B case is that it is up to the Oireachtas to legislate in this area and to reconcile competing rights.

“Any future court would be exceptionally slow to second guess that and to strike down any law that is enacted in this area. It is important to stress that.

“Aside from the fact that the constitutional impediments are greatly overstated, there is also a legal imperative to enact laws of this nature. That legal imperative derives from Ireland’s international human rights law obligations, in particular, the UN Convention on the Rights of the Child and, to a lesser extent, the European Convention on Human Rights, both of which recognise the right to identity as a key right recognised by international human rights law.

“There are various degrees and levels to that right but the minimum core is to know one’s origins, parentage and conditions of birth; in other words, to have access to a birth certificate as a minimum core. Ireland’s international human rights law obligations require the enactment of this legislation.

“As long as the legislation remains unenacted Ireland is vulnerable to findings by international human rights committees, such as the UN Committee on the Rights of the Child, that we are in breach of our international human rights obligations. Far from there being a rights-based reason to not enact the law, there are rights-based reasons to go ahead and enact this law forthwith.

“Equally, there is an issue of consistency internally within Irish law. Identity is strongly protected by the Children and Family Relationships Act in the context of donor-assisted human reproduction. If it is important in that context it is equally important in the context of adoption and far more people are affected. If we are to be internally consistent in our laws, this law is necessary to bring the area of adoption in line with the area of assisted human reproduction.

“If the law is to be enacted, it is important that it is done properly. I mentioned the idea of the minimum core of the right to identity being at the very least a bare minimum of access to a birth certificate.

“The notion that the law would potentially qualify that bare minimum create exceptions to that is unfortunate. If there is legal advice that suggests that it is constitutionally necessary to qualify that I am not sure I would agree with that advice and I would like to see it in more detail.

“Ultimately, if one has a right which sets birth certificate as a bare minimum, not files, medical history or contact information, that is a bare minium. Any suggestion that be denied on the basis of a potential threat to safety, especially in a context where there is extensive civil law and criminal law, in particular, the Non-Fatal Offences Against the Person Act which provides other protections in those circumstances, is not necessary.

“I do not believe there is any constitutional reason or any justification for qualifying that bare minimum right of simple access to the birth certificate, balancing it, of course, in the context of contact information, that makes more sense. When it comes to the bare minimum or the birth certificate I do not believe that is necessary. Rather than defining the idea of compelling reasons, I submit that the preferable course of action for just that level of access to information would be simply to remove the qualification altogether and remove the idea to define that idea of compelling reasons.

“Finally, an issue mentioned at the earlier discussion and which I mentioned in my written submission is the issue of step-parent adoption. I will not explain all of that in detail again because we are well aware, by now, of what it involves, except to note that a commitment was given during the debate on the Children and Family Relationships Act that the issue would be dealt with in this Bill. The Bill, as drafted, does not propose to do that. There is a very simple solution available, based on the English legislation.

“A simple short miscellaneous provision, modelled on the English legislation, included in this Bill could resolve that issue. Last year, of the 112 domestic adoption orders, 74 were step-parent adoptions, so I think this is an issue which needs to be addressed. It can be addressed very easily and this Bill presents an opportunity to do that.”

Meanwhile…

A 13-page legal opinion from November 2019 on the application of the Irish Constitution and GDPR on the now lapsed adoption bill by Dr O’Mahony, solicitor Fred Logue, Dr Maeve O’Rourke, law lecturer James Gallen, law lecturer Eoin Daly, legal academic Mairead Enright, Dr Sinead Ring, solicitor Rossa McMahon and law lecturer Laura Cahillane can be read here.

On the first page, it notes how “the GDPR is supreme over all Irish law including the Constitution”.

Meanwhile…

Transcript via Kildarestreet.com

Alternatively…

Um.

Last night: If You Come Here You’ll Find No Mass Conspiracy

Minister for Children Roderic O’Gorman addressing the Seanad, sitting in the Dáil this afternoon

This evening.

The Irish Examiner reports:

The Government has contravened European and Irish law with regard to the accessibility of personal data by voting to seal the records of mother and baby homes for thirty years.

The Data Protection Commission was consulted by the Department of Children ahead of the drafting of the new mother and baby homes bill regarding the Data Protection Impact Assessment it had commissioned concerning the legislation.

In passing the legislation on Thursday evening, Children’s Minister Roderic O’Gorman said that his advice from the Attorney General was that access to the records had been explicitly restricted by the Commissions of Investigation Act 2004.

However the Irish Examiner can reveal that this is entirely contrary to the observations provided to the Department by the DPC.

Meanwhile…

Meanwhile…

More as we get it.

Government breaking the law by sealing mother and baby homes records, says DPC (Cianan Brennan, Elaine Loughlin, Ciarán Sunderland, The Irish Examiner)

Earlier: “I Didn’t Want To Ask Survivors To Wait More”

Yesterday: Simon McGarr: Sealing The Archive Would Be Impermissible In EU Law

This evening.

On RTE’s Drivetime.

Journalist Sarah McInerney asked Minister for Children Roderic O’Gorman about a report in the Irish Examiner that stated Mr O’Gorman proposed two amendments to the Commission of Investigation (Mother and Baby Homes and certain related Matters) Records Bill 2020 which will be debated in the Dail this evening (link above)

From the interview:

Roderic O’Gorman: “Just first of all, Sarah, the Bill that I’m bringing forward does not seal the archive. The archive is the decision on the 30-year sealing of the archive was made when the Commission of Mother and Baby Homes was established in 2015.  What my Bill is trying to do is to take one really valuable piece of that archive, this database which can be used to help children or indeed mothers who were in Mother and Baby Homes to trace family relatives, to take that database out of the archive and give it to Tusla.

“I will be bringing forward two amendments. One of those amendments is to ensure that an entire copy of the archive remains in the archive. So a copy of the database will remain in the archive as well as one being moved to Tusla. That was one of the requests that were made of me.

“And the other amendment is to allow people who gave personal stories to the confidential committee, as part of the commission’s investigation, that they will have a period to indicate whether they want their names associated with their testimonies in the archive or whether they want their names redacted.

“So giving agency back to people, rather than making assumptions about what people want: actually ask them. For some people who, you know, don’t ever want to kind of the process of giving testimony was so difficult, they don’t want any association with what they said. For other people who want their stories and want their names very much associated with their own personal stories, it ensures that their names will be in the archive as well.”

Listen back in full here

Earlier:

Solicitor Simon McGarr (above) says the bill to seal Mother and Baby Home documents is impermissible under EU law

This afternoon.

Further to the progress through the Dáil today of a bill that would seal the records of the Mother Baby Home Commission for 30 years…

…solicitor and data privacy expert Simon McGarr writes (full article at link below):

‘It is critical that the state does not compound an administrative error being made by the Commission of Investigation into Mother and Baby Homes and Certain Related Matters, in failing to take account of its duties under the Charter of Fundamental Rights and GDPR to set aside any national provision which would conflict with the rights of access and other data protection rights.

The Commissions of Investigation Act 2004 has been superseded by the GDPR and the Data Protection Act of 2018. Its provisions providing for secrecy cannot be applied by any emanation of the state where they conflict with either Article 15 rights of access or Article 18 rights of the data subject to restrict any proposed processing.

In addition, the proposal to ‘seal’ the archive of documents to be presented to the Minister for 30 years is simply impermissible under EU law. Even where national legislation allows for restrictions on data subjects’ rights, those restrictions must be tightly limited and necessary for an overriding purpose of national importance…

…This is not merely a matter of policy – though the moral case is unanswerable.

It is a matter of EU law, and a direct duty on Ireland and all the emanations of the state to uphold those rights.

…It would be a perverse legacy for the government to legislate to deprive people of data they so sorely wish to access about themselves and open Ireland up to the risk of fines on foot of enforcement by the European Commission in order to do so.’

Mother and Baby Home Commission records: An EU Law Perspective (Simon McGarr, Tuppenceworth.ie)

Update:

This afternoon.

Earlier: “I’m Not Sure They’ll Quell Discontent”

Minister for Children, Disability, Equality and Integration Roderic O’Gorman

This afternoon.

We’ve been asked to remind readers opposed to the Government’s bill to seal documents seized by the Mother and Baby Homes Commission for 30 years (except for a database on mothers and children detained in 11 institutions which it wants to give to TUSLA), that – even though the bill is progressing at some speed – they can still write to Minister for Children, Disability, Equality and Integration Roderic O’Gorman to help urge a re-think.

Via Justice For Magdalene Research:

How you can help?

When you click the link below, your email client will open a pre-composed email. We encourage you to change the subject line (this will stop it from being blocked from the Oireachtas spam filters) and to personalise it as much as possible. And, don’t forget to sign it!

Click here to email all TDs and Senators

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Urgent: Mother and Baby Home Commission (Justice For Magdalene Research)

Previously: Sealing Their Fate

Minister for Children, Disability, Equality and Integration Roderic O’Gorman

This afternoon.

Minister for Children, Disability, Equality and Integration Roderic O’Gorman responds (above) to criticism of the Government’s bill to allow the Mother and Baby Homes Commission’s archive to be sealed for 30 years (except for a database on mothers and children detained in 11 institutions which it wants to give to TUSLA).

Dr Maeve O’Rourke, a barrister, lecturer and Director of the Human Rights Law Clinic, writes:

‘The Bill shows the Oireachtas is not bound by the provisions of the 2004 Commissions of Investigation Act. It can legislate – as it is intending to do regarding the database & records it wants to send to TUSLA – to ‘un-seal’ material gathered or created by the Commission.

The Commissions of Investigation Act 2004 was never the appropriate legislation on which to base an inquiry into grave and systematic human rights abuse, including enforce disappearance, because of its provisions around confidentiality. I and many others argued this in 2015.

The 2004 Act did not absolutely require the Commission to proceed in private. The Commission had discretion under the 2004 Act to conduct some of its inquiry in public. It chose not to do so. As we and global law firm Hogans Lovells recorded in the @clann_project report, the Commission refused requests for public hearings without giving specific reasons.

Since 2018, the GDPR & Data Protection Act 2018 has applied to records gathered by Commissions of Investigation, with the proviso that personal data can only be withheld (see s198 of 2018 Act):

‘To safeguard the effective operation of commissions and the future cooperation of witnesses.’

How could allowing survivors of forced family separation and relatives of disappeared and deceased infants to access personal data hamper the Commission’s effective operation?

More to the point, once the Commission is finished and the archive held by the Minister, how could the exceptions to the right of personal data access set out in s198 of the 2018 Act apply?

So, even under current legislation, it seems the archive should not be fully ‘sealed’.

The Minister seems to argue that the ‘sealing’ of the entire archive in his office for 30 years (save for what goes to TUSLA) is in the interests of those who suffered abuse.

The Government argued the same in support of the Retention of Records Bill 2019 – seeking to seal for 75 yrs every single document in the archives of the Ryan Commission and the Residential Institutions Redress Board.

Several points need to be understood here:

1. Nobody is requesting that the public have access to the personal data of those affected.

2. The Commission of Investigation gave people no choice: it held no public hearings and it refused to allow anyone have a transcript of the evidence they gave to the Commission. (Nor did it allow access to any personal data or information about deceased relatives that it held.)

3. Those affected by the abuse under investigation should, under European human rights law, have been enabled to participate properly in the inquiry and to see the evidence coming in from the State and other institutions responsible for the family separation system.

4. They should now have the option of receiving a copy of all of their personal data and information about disappeared family members that the Commission gathered, and they should be entitled to their own transcript of evidence.

5. Crucially, the Minister must inform the public of what kinds of records he intends to seal for 30 years. They likely include innumerable state and institutional administrative records, which are crucial to piecing together how the system of forced family separation operated.

6. Those who suffered grave and systematic human rights abuses have the right, not only to know what happened to them or their relative, but ALSO to have the truth of the system told publicly -in the sense of releasing administrative records, which can be anonymised as necessary.

There has been little to no legal accountability for so-called ‘historical’ institutional, adoption and gender-based abuse in Ireland – no systematic measures to allow access to court or to ensure prosecutions. Barriers are everywhere.

The least we can do is tell the whole truth.

Both the Minister and the Oireachtas have full power to give access to the archive for those personally affected – now.

After that, the question of national education needs to be addressed. A dedicated archive and museum could be an alternative response, not only to the issue of the Mother and Baby Homes Commission archive, but also to the current secrecy of the McAleese archive which contains all state records on the Magdalene Laundries – and the archives of the Ryan Commission and RIRB which are currently in limbo.

In January 2020, the Information Commissioner found (in the case of Mrs P) that the Department of the Taoiseach cannot continue to claim that it is holding the McAleese archive ‘for safe keeping’ and not for the purposes of Freedom of Information.

Last November the Oireachtas Education and Skills Committee rightly decided that the Retention of Records Bill 2019 would cause further abuse.

The time has come for a holistic, mature response to our history – one that becomes us as the nation we want to and really could be.’

Last Friday: Access Denied

Meanwhile…

Justice For Magdalenes Research write:

The Government is progressing this Bill at lightning speed. Yet the relatives of disappeared women and children throughout the country, and living survivors and adopted people, have been denied any access to the Commission of Investigation’s archive.

Witnesses have even been denied a transcript of the evidence that they gave to the Commission of Investigation.

The ‘sealing’ of abuse records has to end.

How you can help?

When you click the link below, your email client will open a pre-composed email. We encourage you to change the subject line (this will stop it from being blocked from the Oireachtas spam filters) and to personalise it as much as possible. And, don’t forget to sign it!

Click here to email all TDs and Senators

Click here if you are experiencing difficulties using the link above.

Urgent: Mother and Baby Home Commission (Justice For Magdalene Research)

January 9, 2015

Then Minister for Children and Youth Affairs, Dr James Reilly (centre) with Michelle Shannon (left) from the Department of Children and Youth Affairs and Elizabeth Canavan, then Acting Secretary General Department of Children and Youth Affairs at the publication of the Terms of Reference for the Commission of Investigation into Mother and Baby Homes and Certain Related Matters, to examine the records of and practices at 14 Mother and Baby Homes as well as four county homes….

March 3, 2017

Minister for Children and Youth Affairs, Katherine Zappone (centre) and Assistant Principal, Department of children & Youth Affairs James Gibbs (left),  and Secretary General, Department of Children & Youth Affairs Fergal Lynch announcing a one-year extension to  the Mother and Baby Homes Commission….

January 9, 2019

‘The Mother and Baby Homes Commission of Investigation is to seek an extension of one year before publishing its final report, which was due next month. The Irish Times understands the request has gone to the Government and is expected to be discussed by the Cabinet next week.’

Mother and baby homes commission seeks extension to finish report (Irish Times)

Rollingnews

From top: The former Mother and baby Home in Bessborough, Cork; from left: Irish Examiner journalist Conall Ó Fátharta, Minister for Children Katherine Zappone, Dr James Gallen, of Dublin City University

In April 2017, Dr James Gallen, a lecturer in the School of Law and Government at Dublin City University, was appointed by the Children’s Minister Katherine Zappone to help the Mother and Baby Homes Commission.

Specifically, Ms Zappone asked Dr Gallen “to assist by mapping out a model of ‘transitional justice’ as a means of giving voice to former residents of Mother and Baby Homes and County Homes”.

This morning, Conall Ó Fátharta, in The Irish Examiner, reports that Mr Gallen has accused the State of being:

“more concerned with managing the ‘potential scandal and legal liability’ of illegal adoption, birth registration, and other coercive adoption practices than helping victims”.

Mr Ó Fátharta reports:

Mr Gallen said “the State simply doesn’t get it” and pointed to the fact that the Department of Children and Youth Affairs has committed to a “transitional justice” approach to the Mother and Baby homes scandal.

“Talk of transitional justice is fundamentally undermined when the ongoing relationship between citizens and the State is one where the interests of an individual are countered by the desire to maintain the reputation of institutions,” said Mr Gallen.

Mr Gallen was speaking in light of a detailed special investigation by Mr Ó Fátharta published in Monday’s Irish Examiner about a woman Jackie Power (not her real name) who had to sign a consent form for her son to be adopted under a fictitious name.

Mr Ó Fátharta reported how, in 1974, Ms Power had a baby boy when she was a teenager in the Bessborough Mother and Baby Home in Cork.

Five months later she went back to Bessborough and signed a consent form allowing for her son to be adopted through the Sacred Heart Adoption Society.

She was told to put a false name on the consent form, which was also signed by a named nun.

The boy’s birth was illegally registered under this false name while the false name was also used for the formal adoption order.

In official documentation that followed, including the adoption order issued by the State’s regulatory body, the Adoption Board, both Ms Power and her son’s names were replaced by fictitious names.

Mr Ó Fátharta explained that if Ms Power’s son, who would now be 44, tried to contact his mother, he would, unbeknownst to himself, be searching for her under a false name.

In 2005, Ms Power told the Adoption Board (the AAI’s predecessor) about the false name and illegal registration and the agency didn’t inform the gardaí.

And…

Mr Ó Fátharta reported:

“Almost half a century later, the attitude of certain State agencies — the Adoption Authority of Ireland (AAI), and Tusla — to her case is as cold-hearted as the nuns who forced her as a 16-year-old to sign away both her and her son’s identities.

“Instead of offering support or offering assistance, emails between staff members show the attitude of Tusla to be one of institutional self-preservation.

“Just last year, staff handling Jackie’s case were instructed in emails not to refer to situations like hers as “illegal” but instead as “possible illegal registrations”. Reference is made to having to “hold our powder” because “that stuff is FOI’able… and it could be used against us if someone takes a case”.

State ‘prioritising liability over adoption rights’ (Conall Ó Fátharta, The Irish Examiner)

Special Report: Women forced to give up babies for adoption still failed by State bodies (Conall Ó Fátharta, The Irish Examiner)

From the third interim report from the Mother and Baby Homes Commission

Yesterday.

The Mother and Baby Homes Commission, which was set up in February 2015, published its third interim report.

It states:

“The Commission is continuing to make inquiries about burials and burial records but it appears that this is an area in which it will be difficult to establish the facts.“

It also says it has requested an extension of a year to carry out its work, which means its final report will not be published until February 2019, as opposed to the scheduled date of February 2018.

The four-page report can be read here

Further to this…

Paul Redmond, chairperson of Coalition of Mother and Baby Home Survivors, said:

“This is yet another delaying tactic by the Government to deny survivors truth and justice. The current inquiry is already too limited and excludes many survivors and this delay will now enure that thousands more survivors are denied justice by death.”

Clodagh Malone, of Beyond Adoption Ireland, said:

“This is utterly shameful. Our community are heartbroken and devastated. Tears are flowing.”

Derek Leinster, of the Bethany Home Survivors’ Group, said:

“Living survivors must always take priority over inquiries and reports. We need an immediate and final result for the handful of elderly Bethany survivors who are left alive. There are 227 names on the Bethany Memorial in Mount Jerome cemetery and this Government have now added more names of victims to that Memorial by this disgusting delaying tactic.

Related: Difficult to establish facts’ on burials at homes (Conall Ó Fátharta, Irish Examiner)