Mother and Baby Homes Report: The Question of Transitional Justice

Dr James Gallen 

The Irish Commission into Mother and Baby Homes was embroiled in controversy after comments from one of its Commissioners, Professor Mary Daly, at Oxford history seminar,1Transcript of Oxford University Seminar with Professor Mary Daly <link> leading for calls for the entire report to be repudiated. In doing so, Daly revealed the fundamental failures of Ireland’s approach to dealing with the abusive aspects of its past.

The Report

In 2015, a Commission of Investigation was established regarding mother and baby homes and a representative sample of county homes,2 Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Order 2015 S.I. No. 57 of 2015. to examine entry, exit, living conditions and care arrangements, and mortality rates and causes in these institutions.3 2015 Order, Section 1. The final report of the Commission was published in January 2021.4 (last visited 3 June 2021). The report confirmed some damning findings regarding Mother and Baby Homes: a total of about 9,000 children died in the institutions under investigation; roughly 15% of all the children who were in these institutions.5Executive Summary, 4. However, the report has also been criticised in a number of respects. It has no explicit methodology section. This compares unfavourably to the Northern Irish report into Magdalene Laundries and Mother and Baby Homes or the English Independent Inquiry into Child Sexual Abuse, both of which provide detailed accounts of their treatment of historical records and victim-survivor testimonies.6Leanne McCormick and Sean O’Connell, ‘Mother and Baby Homes and Magdalene Laundries in Northern Ireland, 1922-1990’ Link; and Sophia King and Verena Brahler, ‘IICSA: Truth Project Research’ (2019) Link. As a result, it is unclear on the face of the report how a particular finding was proven—or remained unproven.

The Commission report makes a number of findings that seem contrary to the stated lived experience of survivors. For instance, the Commission “found very little evidence that children were forcibly taken from their mothers; it accepts that the mothers did not have much choice but that is not the same as ‘forced’ adoption”.7Report of the Mother and Baby Homes Commission, Recommendations, p. 9. As a result, the report was received with significant criticism, scorn and rejection in the national media, from advocacy organisations, and victim-survivors.8Elaine Loughlin, “Regina Doherty: ‘Cold’ mother and baby home report must be independently reviewed” Irish Examiner 17 January 202 Some victim-survivors are presently engaged in legal challenges to the report’s findings.9Shane Phelan, Survivor’s bid to quash mother and baby home finding on vaccine trials, Irish Independent 3 April 2021. Woman takes challenge over parts of mother and baby homes report The Irish Times 8 March 2021.

Confidential Committee

The Oxford controversy concerns, in part, the Commission’s Confidential Committee. The Confidential Committee was intended to provide a forum for persons who were former residents in the homes listed or who worked in these institutions, to provide accounts of their experience in these institutions, informally.102015 Order, Section 7(3). In contrast, evidence given before the Investigation Committee was subject to cross-examination where required in the view of the Commission.11Commission of Investigation Act 2004, Section 12.In the final report of the Commission, 90% of participants contributed only to the Confidential Committee. It appears that the Commission did not adequately advertise the alternative of appearing before the Investigative Committee or sending a sworn written statement.

The Confidential Committee report itself undermines the credibility of victim-survivor testimony:the Commission does have concerns about the contamination of some evidence. A number of witnesses gave evidence that was clearly incorrect. This contamination probably occurred because of meetings with other residents and inaccurate media coverage.”12Report of the Mother and Baby Homes Commission, Confidential Committee Report, p. 12

At the Oxford seminar, Prof. Daly confirmed that this evidence did not inform the findings in the main Commission report because it was not given “under oath”. These were mere “stories”, in Daly’s view, and the Commission had disregarded all oral testimony given to the Confidential Committee in compiling the main report and reaching its findings. Daly suggested the 550 statements given by survivors to the Confidential Committee were not integrated into the main report because it would have taken “hundreds of hours” and further expense. A subsequent article by Catriona Crowe confirmed that a survivor who recorded their engagement with the Confidential Committee was able to evidence multiple instances where her statement had been inaccurately included in the report.13Catriona Crowe The Commission and the Survivors

This controversy could have been avoided if (i) the Commission had written an interim report on its methodology making its approach to survivor testimony clear; and (ii) had spent its entire budget (€11 million was returned to government) to integrate survivor voices fully; or (iii) advertised the Investigative Committee to survivors. There also remained ample room in the budget for full transcripts to be taken of all survivor testimonies, for trauma-informed conduct of the commission, and for more analysis to combine the Investigative and Confidential committees’ findings. All of this leads to the conclusion that the Commission was unwilling, not unable, to put survivor voices front and centre in their report.

In February, Commissioner Yvonne Murphy declined an invitation to come before the Oireachtas Committee on Children to discuss the report’s language and methodology and to respond to allegations that a number of its conclusions contradicted the survivors’ testimony.14Marie O’Halloran, “Commission Chair declines to attend children’s committee” The Irish Times 5 February 2021As the Commission is a creature of government rather than parliament, Oireachtas has no power to compel the Commissioners to attend. However, in light of this renewed controversy, it would seem the Commission’s legitimacy is under fundamental threat and the Commissioners have little justification not to attend an Oireachtas Committee.

Ireland’s Approach to Transitional Justice

I have previously reviewed Ireland’s approach in addressing the past from a transitional justice perspective. Transitional justice typically addresses how societies reckon with a legacy of gross violations of human rights.15Paige Arthur, ‘How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice’, Human Rights Quarterly 31.2 (2009), 321–67; Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000), p.215; Ruti G. Teitel, ‘Transitional Justice Genealogy’, Harvard Human Rights Journal 16.1 (2003), 69–94.I argued that “Irish ‘transitional justice’ risks claiming the legitimacy of serving survivors’ needs without any meaningful transition in how they are treated by the state, churches, or society.”16James Gallen, ‘Transitional Justice and Ireland’s Legacy of Historical Abuse’, Éire-Ireland 55 (2020) 35-67. It is hard to resist the conclusion that the Commission of investigation and State practice more broadly, in addressing Ireland’s abusive past, continues to display contempt for survivors, and leads to a fundamentally flawed report.

Dr James Gallen is a lecturer in the School of Law and Government at Dublin City University. His research interests include human rights, international law and legal and transitional justice. His present research agenda concerns the implementation of policy coherence in international assistance to transitions.

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