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'No understanding of trauma': Survivors hit out at 6-month rule & legal waiver in redress scheme

The Government unveiled the long-awaited Mother and Baby Home redress scheme earlier today.

An image of a newborn baby is projected onto Sean Ross Abbey in County Tipperary on St Brigid's Day for the Herstory Light Show.
An image of a newborn baby is projected onto Sean Ross Abbey in County Tipperary on St Brigid's Day for the Herstory Light Show.
Image: Alamy Stock Photo

SURVIVORS HAVE EXPRESSED their disappointment at certain elements of the Mother and Baby Home redress scheme announced by the Government today.

The long-awaited plan is expected to cost in the region of €800 million and some 34,000 survivors of the institutions will be eligible to apply to the ex-gratia payment scheme.

The scheme will provide financial payments and a form of enhanced medical card to “defined groups in acknowledgement of suffering experienced while resident” in a mother and baby institution or county institution.

Ex-gratia payments do not require the admittance of liability.

All mothers who spent time in a Mother and Baby Institution will be eligible for a payment, which will increase based on their length of stay. The payments will range from €5,000 to €125,000, according to the plan.

All children who spent six months or more in an institution will also be eligible for payment based on their length of stay, as long as they did not receive redress for that institution under the Residential Institutions Redress Scheme (RIRS).

Some of the major sticking points for survivors include the fact that payments are linked to the amount of time a mother spent in an institution, and that children who spent fewer than six months in an institution are excluded from the scheme.

Speaking today, Children’s Minister Roderic O’Gorman said: “We’re providing these payments in recognition of the trauma experienced by survivors, mothers and children, in recognition of the harsh conditions that took place in these institutions and in recognition of the stigma that mothers and children experienced.

“And in terms of the six-month period … children who were in there less than six months wouldn’t have been aware of their experiences, they would have been too young to remember their experiences.

“Women who were in there for a period of less than six months would have been there solely around the time of their pregnancy and subsequently the birth.

“We tried to design this scheme in terms of the longer a person was in there, the greater the degree of benefit that we’re providing for them. So the longer the time a person was in these institutions, the greater the financial payments that they will receive.”

He added: “I’m very conscious that the separation of a mother and a child is a deeply, deeply traumatic event.

“That’s why every mother who was in one of these institutions will be able to qualify for payments … that’s a very significant increase in the scope of this scheme.”

However, survivors pointed out that the impact of being born in one of the institutions is not related to their memory of this period – rather the ongoing effect of family separation and, in some instances, being illegally adopted.

A report compiled by Oak Consulting on behalf of the Government following focus groups with relevant stakeholders earlier this year found that the most frequently identified criteria that survivors stated should be used to assess payments were forced family separation, disappearance of individuals and psychological trauma – not length of time in institutions.

Beth Wallace, who is one of three siblings born in mother and baby homes, said the six-month rule shows “zero understanding of trauma and its long-term effects, including the trauma of all infants separated from their mother, regardless of reason”.

‘Pain and trauma’

Maria Arbuckle – who reunited with her son after almost four decades apart earlier this year – said the six-month rule has left her “fuming”.

“Why is the pain and trauma of a child who spent less time in an institution not measured the same as a child who spent six months there?”

She told The Journal that ex-gratia payments are typically given “when someone does not want to be held accountable, so once again we should be thankful for what they have given us, there is no culpability”.

Arbuckle’s lawyer Kevin Winters, of KRW LAW LLP, has written to O’Gorman to express his concerns after being contacted by a number of survivors today.

In the letter, Winters states that the six-month rule is “both unjust and inequitable”.

“The reference to the scheme as ‘ex gratia’ also offends as it introduces a discretionary element to eligibility which will only serve to create anxiety and doubt for prospective applicants.”

Winter noted that, unlike plans for survivors in Northern Ireland announced yesterday, survivors in the Republic will not receive an interim payment.

“The failure to facilitate an interim payment is compounded by the delay in implementing the scheme until the end of 2022.

“For many that is simply far too long and is in marked contrast to the clear unambiguous firmness of the NI Executive announcement,” Winters said.

Sinéad Buckley, who was born in Marianvale mother and baby home in Newry but adopted by a couple in Dublin at age two, said she is “devastated” by today’s announcement.

“We had all begged for a flat rate across the board regarding compensation so as not to cause division. If someone is one week off the six-month cut off, will they receive nothing?”

Buckley also noted that it may be difficult for people to prove they were in an institution for over six months as they may not have access to records or, as is the case for some people, the dates on their records they have are incorrect or falsified.

“The damage lasts a lifetime. To state that a five-month-old baby would have no recollection, instead of a six-month-old baby. Why judge compensation on that? It was a stab in the heart for us.”

Legal waiver and previous redress

Another issue raised by survivors is the fact that those who receive a financial payment must sign a legal waiver stating they will not take future legal action against the State.

In its submission in April to the Government’s interdepartmental group devising the redress scheme, the Irish Human Rights and Equality (IHREC) stated that redress schemes “which require survivors to waive their right to litigate before accepting an award are not, per se, contrary to international human rights standards”.

However, the submission added that the UN Office of the High Commissioner for Human Rights (OHCHR) stated that “compensation must not be seen as a means of buying the silence and acquiescence of survivors, rather compensation should be part of a comprehensive justice policy.”

The document noted that the IHREC “previously expressed concern in relation to payments under the ‘ex gratia’ scheme for victims of symphysiotomy, which required signature of a ‘deed of waiver and indemnity’ precluding the applicant from further legal recourse against State and non-State actors”.

It continued: “The experience of redress schemes in Ireland is that no wrongdoing or liability is admitted on behalf of State and non-State actors, which can be a key desire of victims/survivors. Waivers applied on this basis are not in line with international human rights standards.

The right to litigate is important to survivors not only as a means of accessing compensation but also as a means of disclosing the truth in a public forum and for findings of liability by a court. Moreover, requiring survivors to choose between receiving redress through a scheme or retaining their right to access court places survivors in a difficult position which may lead to re-traumatisation and secondary victimisation.

“IHREC recommends that redress scheme that are provided on an ‘ex gratia’ basis with no admission of liability should not be contingent on survivors waiving their procedural rights and right to an effective remedy, including the right to take further legal recourse against the State and non-State actors through the judicial processes or other fora.”

Mary Harney (73) was born in the Bessborough mother and baby home in Cork in 1949.

Harney – who is studying for a PhD in international human rights law – said the legal waiver element of the redress scheme is at odds with Ireland’s international human rights obligations.

“We are entitled under international human rights law to have a legal recourse open to us.”

Harney spent the first two and a half years of her life there, with her mother, before being fostered to a family in Cork city.

She was neglected and abused in her foster home, and at the age of five was removed and sent to the Good Shepherd Industrial School in Sunday’s Well.

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Another eligibility stipulation for people who spent time in an institution as children is that they cannot have previously received redress under the Residential Institutions Redress Scheme (RIRS).

Harney previously received compensation for being physically and emotionally abused, as well as forced into labour, in an industrial school. As such, she believes she will be ineligible to apply for redress for her time in Bessborough and the impact it had on her life.

Harney stated: “I got redress for the 12 and a half years I spent in an industrial school, but I’m not entitled to redress for the two and a half years that I spent in Bessborough?

“They are two separate things. It was my birth and incarceration in the mother and baby home that led to my being put in an industrial school.

“It’s as though the first five and half years of abuse in my life don’t really matter,” she said.

Harney said that while it is welcome that all mothers who spent time in an institution will be eligible for some form of payment, the overall approach is “discriminatory” and will exclude many survivors.

“My mother is dead so she can’t claim any compensation. Any child who was in there for [less than six months] can’t claim any compensation. So some families who were separated will get nothing, absolutely nothing.”

Harney said she fears this redress scheme is following in the footsteps of the much criticised Magdalene laundries redress scheme and the residential abuse scheme.

Harney added that the lack of focus in the redress plan on survivors’ human rights amounts to “more whitewashing” from the Government.

The Government’s statement notes that the legal waiver may disappoint some people, but should not be seen as the State’s “failure to take responsibility” or be “truly accountable”.

About the author:

Órla Ryan

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