Stephen Kirwan outlines the submission made by KOD Lyons Solicitors and Céile Varley BL in respect of the Establishment of a Restorative Recognition Scheme for Former Residents of the Mother and Baby Homes and County Homes

We at KOD Lyons are proud to work to support a number of survivors of Mother and Baby Institution and expects to support the survivors in the process of submitting applications to the proposed Restorative Recognition Scheme.

KOD Lyons have, with assistance from Céile Varley BL have recently made a submissions on the Establishment of a Restorative Recognition Scheme for Former Residents of the Mother and Baby Homes and County Homes. The purpose of this submission was to highlight the wide range of experiences of survivors of Mother and Baby institutions reflected among our clientele. The following:

 

Eligibility for the Financial Restorative Recognition Scheme

The Commissions proposes extending redress to the following groups of survivors:

  1. Women who carried out ‘commercial work’ while resident in county homes, Tuam Mother and Baby Home, and women who carried out commercial work outside institutions without pay.
  2. Women who spent lengthy periods (for example, in excess of six months) in mother and baby homes before 1974.
  3. People who were resident as unaccompanied children in a mother and baby home or county home as a child under the age of 18 years and who did not qualify for reparation under the Residential Institutions Redress Board Scheme.

It is noted that the scheme as proposed by the Commission would appear to exclude the vast majority of women and children who resided in Ireland’s Mother and Baby Institutions from access to financial redress / restorative recognition.

Recommendations:

  1. Who do you think should be eligible for the financial Restorative Recognition scheme?

Women / Mothers:

The scope of the proposed Scheme must be significantly expended to cover the following categories of persons in respect of former adult residents of Mother and Baby Institutions:

  1. All women who resided in Mother and Baby Institutions prior to 1974 without qualification.
  2. Women who resided in Mother and Baby Institutions post 1974 in line with criteria such as: length of time resident; conditions of residence etc.

The Commission has identified the introduction of the Unmarried Mother’s Allowance in 1973 as a turning point in respect of the treatment of unmarried mothers in Ireland. It is submitted that this argument fails entirely to address the non-financial factors (shame, lack of access to contraception, illegality of abortion, insecure employment, lack of other social supports) which compelled women into Mother and Baby Institutions, and which caused them to sever the relationship with their children. The introduction of such a minimal social protection payment does not serve as a logical basis for excluding generations of survivors from access to redress for the harms they suffered.

Children:

  1. The entitlement to redress should be extended to all children who resided in mother and baby homes or county homes while under the age of 18, whether accompanied or not.

The requirement that the child have resided there while unaccompanied in order to qualify for redress fails to address the conditions in which mother and children resided in the institutions. From 1952-1974, an adoption order could not be lawfully made before a child reached six months of age. It is clear from the Report, and from the testimony of survivors, that this rule caused many women to continue to reside in an institution with their child until the child was adopted.  While the mother and child may have been residing in the same institution, however, they were not residing together as a family unit and the child would not have access to the care and company of their parent as a matter of course.

The language used in drafting this provision should be precise, to avoid confusion about the categories of persons excluded from the scheme. It is not clear whether the proposed scheme will exclude all persons who previously received payments from the Residential Institutions Redress Scheme, or whether it will exclude all persons who qualified for compensation – ie who were eligible to apply. It is respectfully submitted that consideration should be given to including all children who resided within the institutions within the scope of the Scheme, regardless of whether they previously were eligible for / received redress from another scheme. Children demonstrably did not have a choice in entering or exiting the institutions, and could not determine the length of their stay, or affect the conditions under which they resided.

Where a person has recovered under the Residential Institutions Redress Scheme, this will be on the basis of abuse suffered by that child within a designated institution – rather than on the basis of residence. The harm caused by family separation and the conditions within Mother and Baby Institutions is distinct and separate to the harm caused to children who suffered abuse within industrial schools. In the event that a person was unlucky enough to suffer both categories of unspeakable harm and damage throughout their life, this should be recognised as capable of compensation, and they should not be limited from accessing redress under the current scheme.

We would hope that those who qualified for compensation under the Magdalene ex-gratia scheme will also not be refused and considered in the same way.

 

  1. What should the Restorative Recognition Scheme provide reparation for?

On January 13th, An Taoiseach described the harm caused by Mother and Baby Institions as a “profound generational wrong” and apologised on behalf of the State, stating:

The Irish State, as the main funding authority for the majority of these institutions, had the ultimate ability to exert control over these institutions, in addition to its duty of care to protect citizens with a robust regulatory and inspection regime.

On 16th February, the Minister for Children noted that the Report does not represent a conclusion, but rather “…represents the backdrop for the State’s apology to those who have suffered and also a starting point from which we can move forward”.

In that regard, the Government has an opportunity to design a Scheme which fairly attempts to compensate the suffering endured by survivors of Mother and Baby Institutions, rather than replicating the errors of earlier redress scheme.

The proposals submitted by the Commission appear to indicate a view that certain types of experiences were compensable – commercial work, very lengthy periods of residence – while other experiences in the institutions were not. This fails to address the overarching harm which was suffered by survivors – family separation and institutionalisation – the effects of which continue to this day. Many of the survivors of Mother and Baby Institutions are elderly, and have waited years and sometimes decades for information about their life which is still out of reach.

Conclusion:

The finalised Scheme must be expansive rather than restrictive, facilitative rather than adversarial, and should reflect the “profound generational wrong” caused by Ireland’s Mother and Baby Institutions. Above all, the finalised Scheme must reflect the spirit of the apology made by the State to the survivors of those institutions, rather than limiting the Scheme to apply to as few survivors as possible.

Should you be effected by anything in this blogpost please do not hesitate to contact Stephen Kirwan of this office at stephen.kirwan@kodlyons.ie should anything further be required.