Why reports from mothers and babies cannot be sustained
A rewrite of the Mothers and Baby Homes Report Executive Summary cannot replace the report or a full independent review of its processes and results, but it is an effective way to show that other conclusions were possible.
Our main technique is to analyze the evidence already contained in the report itself using constitutional and human rights law in force during the period under review.
The Mothers and Baby Homes Commission of Inquiry concluded that the primary responsibility for the treatment of unmarried women and girls and their children lies with their own families and the fathers of their children. Our approach has compelled us to reaffirm the primacy, in law, of state responsibility in combating human rights violations.
We unwrap the narrow use of ‘force’, taking seriously the many social and emotional pressures that have made resistance to adoption nearly impossible for unmarried Irish women.
By “accountability” we mean the state’s obligations to investigate, prosecute and redress grave human rights violations in the present, based on its past links with institutions and the wounds therein. are perpetrated. We identify key linkages including funding, regulation and inspection, the role of state officials in referring women to institutions, documented state knowledge of mass wrongdoing and broader impact of state law to deter and punish pregnancies or family formation outside of marriage.
Here are just three examples of how the board’s reasoning differs from ours. The commission suggests that children who have not spent long in an institution are unlikely to have been abused. On the other hand, we recognize the forced separation of a parent as a prejudice in itself.
We also highlight the particular vulnerability of young children, who can suffer greatly even from brief periods of institutionalization because they are completely dependent on adults and unable even to attempt to escape. The committee rejects the allegations related to ill-treatment during childbirth, citing the presence of qualified medical personnel in the establishments.
We recognize that the experience of giving birth in an institution can be inhuman and degrading when one is totally under the control of the staff of the institution, subjected to regular punishment and emotional abuse and perhaps very young and separate from all other support structures.
The committee insists that “forced” adoption was not a serious problem in institutions. We unwrap her narrow use of the word ‘force’, taking seriously the many social and emotional pressures that made resistance to adoption nearly impossible for unmarried Irish women, until the 20th century.
We did not make our own recommendations for state action, preferring instead to redirect attention to militant groups and their sophisticated and well-reasoned demands for change.
However, we recognize our debt to The Clann Project – a research and legal aid initiative incorporating the experiences of 130 affected people – and we summarize their recommendations in our report. We engaged in detail with their exemplary legal submissions to the commission.
Our work has indirectly benefited from their work by allowing people to send affidavits under oath to the commission. This made it possible to include in the committee’s report points of view that might otherwise have been omitted.
State action is urgently needed so that shared and personal stories can be told in their entirety
While we rely on the report to the extent possible, we are not suggesting that it is robust. The Minister of Children Roderic O’Gorman welcomed our intervention, noting that “a plurality of voices and analyzes allows a better understanding of our common history”. This statement oversimplifies the issues.
The testimony is essential here. Several witnesses who testified before the commission have filed for judicial review, challenging the misrepresentation of their testimony in the main report and the commission’s exclusionary evidence-gathering processes.
The interventions of Noelle Brown and Catriona Crowe (to give just two examples) show that the anonymized archives of confidential Committee testimony contained in the report do not constitute an accurate recording of the testimony heard by the Commission.
We have endeavored to work with this testimony as it is represented in the report. Unlike the commission, we make clear, frequent and express references to individual sections of the confidential committee report to support our findings and corroborate the evidence contained in the body of the report.
It works because our findings focus on systemic failures and because they are indicative and preliminary; like the commission, we only consider 18 institutions. That said, apart from its other serious flaws, the collection of evidence for the Confidential Committee’s report is so overhauled and fragmented that it would be difficult for us to use it, on its own, to accurately tell the story of a particular institution, family or person.
This is not the fault of the witnesses – it stems from the methodological and procedural decisions made during the preparation of the report and during the evidence-gathering process.
Our efforts demonstrate that further state action is urgently needed to address this issue, so that shared and personal stories can be told in their entirety. Commission witnesses are to be provided with audio recordings of their testimony upon request.
They, as well as others with lived experience of institutions, should have appropriate access to their personal and institutional records. If the Minister is committed to a ‘plurality’ of voices, he must remove all legal barriers to new narratives of Irish history led by survivors and adopted people.
Máiréad Enright is Lecturer in Feminist Legal Studies and Leverhulme Researcher at Birmingham Law School. Draft document and accompanying feedback form are available at tudublin.ie