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Sinn Féin TD Kathleen Funchion (file photo) Leah Farrell/RollingNews.ie
mother-and-baby homes

Compel religious orders to pay redress, Sinn Féin TD says, as survivors mull legal action

Survivors of mother and baby institutions are considering legal action, or lodging complaints with international human rights bodies, over their exclusion from the scheme.

RELIGIOUS ORDERS SHOULD be compelled to pay compensation to survivors of mother and baby homes and related institutions, the chair of the Oireachtas Children’s Committee has said.

Kathleen Funchion said it is “laughable” that the Government is writing to religious orders and asking them to pay into the fund, rather than compelling them to do so.

Speaking at a survivor-led event in Dublin last week, Funchion said the approach of “somebody writing to you hoping that you’re going to send back a cheque” is “actually laughable really”.

The Sinn Féin TD said the approach taken by the Government shows there is still “a fear of the institution of the Church, which I think we need to call out”.

Funchion said pharmaceutical companies who carried out vaccine trials on people in the institutions should also pay towards the redress scheme.

“There are ways and means of holding [the Church and pharmaceutical companies] to account,” she said.

It’s estimated that around 24,000 survivors remain excluded from the scheme.

Some survivors are considering legal action – or lodging complaints with international bodies such as the UN Human Rights Office or the European Court of Human Rights – over their exclusion from the scheme and breaches of their human rights such as arbitrary detention and forced family separation. 

Funchion noted that while certain orders and companies have apologised for their role in running the institutions and conducting vaccine trials respectively, they have not committed to paying financial compensation.

“They have acknowledged their part, but it’s not good enough to just say ‘we acknowledge it’. It’s not good enough to just speak words, they actually have to match it with action.”

In previous Dáil debates on the issue, Funchion and other TDs have argued that the State should sue religious orders or seize assets such as property if the groups refuse to pay into the redress scheme.

Last year an investigation by Noteworthy found that religious orders involved in historic abuse sold over 75 properties worth a total of over €90 million from 2016 to 2022.

Though most religious congregations have paid into previous redress schemes offered for institutional child abuse, there is still a shortfall of around €105 million – prompting fears they may not contribute to the new scheme.

The Department of Children is currently in discussions with several religious orders who ran or staffed the institutions in question. However, to date, none have agreed to contribute to the redress scheme.

Negotiations ongoing

Children’s Minister Roderic O’Gorman previously told The Journal he does not have the legal power to compel religious orders to contribute to the scheme.

When asked about Funchion’s comments, a spokesperson for the Department of Children said the Government “believes all relevant parties have a collective responsibility to respond to the legacy of these institutions”.

The spokesperson noted that, on 23 May, the Government approved a proposal from O’Gorman to appoint Sheila Nunan to “act on his behalf in leading negotiations with religious bodies which had a historical involvement with Mother and Baby Institutions”.

“This is with a view to securing a financial contribution towards the cost of the Payment Scheme. These negotiations while ongoing are being treated as confidential. A full report will be provided to Government once the negotiations are concluded,” a statement noted.

Religious orders have refused to comment while the talks are ongoing.

The Commission of Investigation into Mother and Baby Homes found that at least 1,135 children in institutions were subjected to vaccine trials from the 1930s to the 1970s.

The department’s spokesperson added that while they believe pharmaceutical companies also have a “moral and ethical obligation” to respond to the findings in the Commission’s final report, it is a matter for them “to decide what action they take, or remedy they offer”.

Around 24,000 people excluded 

The Mother and Baby Institutions Payment Scheme Act 2023 was signed into law by President Higgins on 11 July.

Around 34,000 people will be eligible to apply for redress under the scheme, which is estimated to cost around €800 million. In 2021 the Government estimated there were around 58,000 living survivors, meaning about 24,000 were excluded from the scheme. 

Ahead of the final Dáil vote on the legislation in February, TDs labelled the Bill “morally obnoxious” and “callous” because it excludes people who spent less than six months in an institution as a child.

The scheme also does not specifically cater to people who were boarded out as children, a precursor to fostering; people who were subjected to vaccine trials; and people who experienced racism or other discrimination in the system.

IMG_20231122_153842 Niamh McCormack, Dr James Gallen, Conrad Bryan and Kathleen Funchion at a panel discussion in Dublin last week Órla Ryan Órla Ryan

There have been repeated calls, nationally and internationally, for the scheme to be extended.

A number of survivors are considering legal action, but they face challenges such as the statute of limitations and the fact class action lawsuits are not available in Ireland.

The spokesperson for the Department of Children did not comment on the fact some survivors are considering their legal options.

‘The State never dies’

Funchion made her comments during a panel discussion to mark the Irish leg of a photographic exhibition called ‘Shame – European Stories’ which features portraits of nearly 100 people who were subjected to some form of abuse as children.

The series includes several portraits of Irish survivors including long-time activists Conrad Bryan; James Sugrue, who was abused as a child when boarded out; and Peter Mulryan, who was born in Tuam mother and baby institution and is still seeking information about his sisters.

The event was organised by Bryan, who spent his early life in St Patrick’s mother and baby institution in Dublin before being sent to an industrial school.

Bryan, a director of the Association of Mixed Race Irish and former member of the Collaborative Forum of Former Residents of Mother and Baby Homes, believes he and others were singled out for vaccine trials, and less likely to be adopted or fostered, due to their skin colour.

Bryan himself is not excluded from the redress scheme but believes the State has not adequately responded to concerns over how he and other mixed-race children were treated in institutions.

On foot of a complaint made by Bryan, human rights experts from the United Nations last year criticised the Irish Government’s response to the “systemic racism” faced by mixed-race people who passed through State and religious-run institutions between the 1940s and 1990s.

Bryan is one of several survivors who this year lodged a second complaint with the UN, this time via the Convention on the Elimination of All Forms of Racial Discrimination (CERD). That complaint is currently under review by CERD officials.

Speaking to The Journal on Monday, Bryan said, as well as the CERD complaint, he and others “have been looking at legal routes as well” but that is less straightforward.  

For most of us, the statute of limitations really is the key barrier. That, and the fact we can’t bring a class action.

Currently there is no formal procedure for bringing class actions before the courts in Ireland – meaning a group of survivors can’t collectively sue the Church or State for breaches of their human rights. 

“The Government should take this opportunity to start modernising and reforming the current laws around group actions,” Byran said. 

He added that the statute of limitations should not exist in cases of human rights violations which occurred in State-run institution. 

“Citizens should be able to take the State to court beyond the statute of limitations if [the person in question] was in the care of the State [when the abuse happened].

Bryan noted that in the case of many survivors of mother and baby institutions and industrial schools, people can’t take legal action because the incidents “happened so long ago and the individual perpetrator may be dead”, before adding: “But the State never dies.”

‘Carrots and sticks’

Dr James Gallen, an associate professor in the School of Law and Government at Dublin City University, agrees with Bryan.

He said the statute of limitations should not apply in cases where children have been abused, or had their human rights violated, while under the care of the State. 

Gallen told The Journal the State is “legally and morally” responsible for protecting people in its care, and ensuring citizens’ human rights are upheld should “trump” any other concerns such as cost.

Gallen also agrees that the lack of availability of class action suits impedes survivors taking legal action as suing a powerful body like the Church or State “really puts the individual and their home and their livelihood in jeopardy”.

He noted that the Government’s planned redress scheme, like previous abuse schemes, is “ex gratia, without admission of liability, which means they essentially see it as a gift”. 

The Latin phrase literally translates to ‘by virtue of grace’.

Gallen continued: “So [the redress scheme] is, in the State’s eyes, an act of charity, and of course, it’s acts of charity, or purported acts of charity, that got us into this mess in the first place.”

He acknowledged that if the redress scheme was extended to include all survivors, this would cost more money. One of the ways to cover this extra cost is to ensure religious orders pay into the scheme, he added.

“If we go down a route that’s alternative to the State’s position, it potentially is more expensive, and it’s a political question as to how that cost is covered.

“As I understand it, the State is currently in negotiations with the religious orders involved in that context, but seems only to be minded to call upon their Christian virtue as to whether or not they contribute to redress.”

Gallen said the Irish Government could learn from other countries in this regard.

“We see that other jurisdictions have used both carrots and sticks. In Australia, they changed the laws with retrospective effect to make it easier to sue churches and religious bodies,” he told the conference last week.

“All of a sudden, the religious orders in Australia were very keen to join a redress scheme that would lead to a smaller overall figure [being paid]. And so carrots and sticks need to be considered here.”

Gallen noted some politicians have made the argument that there’s “a trade off” between funding the ‘past’ and funding the present.

“They say ‘Money given to survivors is money that could be given to today’s children’. It is absolutely essential to refute that premise and to refute that suggestion completely.

“All survivors are human beings, are citizens, are bearers of human rights, and the idea they are confined to the past or are somehow of lesser value is just another iteration of the abuses that [survivors] unfortunately, have endured and lived through,” he said.

Gallen said the fact 24,000 survivors remain excluded from the redress scheme highlights that the State’s approach is “completely incoherent”.

“If you’re acknowledging that the entire system was wrong, that should result in redress for everyone affected by the system. You can’t say that some people affected by the system get redress and others don’t. There is no coherence in this approach,” he told The Journal

Human rights

Niamh McCormack, Criminal Justice Policy Officer at the Irish Council for Civil Liberties (ICCL), echoed this sentiment.

Discussing the State’s response to date, she said people’s human rights have not been given the weight they deserve, adding that survivors have rights under both the Irish Constitution and international treaties.

For example, she noted they have rights under the European Convention on Human Rights in terms of arbitrary detention, forced labour, the right to privacy, the right to life and the right to have a death investigated.

At least 9,000 people died from 1922 to 1998 in the 18 institutions investigated by the Commission of Investigation into Mother and Baby Homes, mainly in earlier decades.

McCormack noted that the ICCL does not provide legal advice but has consistently called for accountability for human rights violations related to mother and baby institutions.

In terms of the State possibly seizing assets from religious orders, she said the Church’s right to property is “not absolute” and should not be viewed as more important than the human rights of survivors.

Speaking last week, McCormack explained that Ireland has a system “whereby you can’t argue based on an international human right before a court”.

“So you can’t go with the UN Convention on the Rights of the Child, for example, and argue that before a court [in Ireland], you can only argue about Irish law.”

However, she added that the European Convention of Human Rights “does apply in Irish courts because we have an Act that has enacted it, so that’s a clear distinction to make”.

She continued: “Something that’s really, really important to see is that international human rights law is the net that catches the people who fall through the cracks.

“And just because it doesn’t apply in our courts, doesn’t mean the State doesn’t have obligations under these treaties. They do. And the question that needs to be asked of them is not, ‘Can you please do this? Can you please adhere to these obligations that you have?’ It’s, ‘Why aren’t you?’”

Redress delayed

In October it was confirmed that the redress scheme will not open for applications until 2024, missing its deadline of this year.

A spokesperson for the Department of Children told The Journal that opening the scheme as soon as possible is “an absolute priority for the Minister and Department and the work is processing intensively but will take a number more months”.

They said the scheme “will be the largest scheme of its type in the history of the State with an anticipated 34,000 people eligible under its terms”.

“Before and since the passing of the legislation a comprehensive body of work has been underway to develop the substantial administrative framework required to deliver a scheme of this size,” they added.

This work includes making necessary regulations; training staff; developing hard copy and online application systems; and preparing for “a substantive public awareness campaign to be delivered in Ireland and overseas”.