Philomena Lee (file photo) Niall Carson/PA Images
High Court

Mother and Baby Homes: Three test cases could be used as survivors seek judicial review

Eight women are taking legal action against the State.

LAST UPDATE | Jul 13th 2021, 10:42 AM

LEGAL COUNSEL FOR women seeking judicial reviews of the final report of the Commission of Investigation into Mother and Baby Homes have proposed proceeding with three test cases in the High Court.

Eight women, some of whom cannot be named, are taking legal challenges against the Irish State.

A number of women have claimed that their testimony was misrepresented in the report and have taken issue with the fact they were not given a right to reply before the report was published in January.

A test case is one brought forward that would then set a precedent for future similar cases.

The Journal understands that the three proposed test cases are those being brought by high-profile survivors Philomena Lee, Mary Harney and Mari Steed.

Mr Justice Garrett Simons today agreed to adjourn the cases until Tuesday 27 July. A decision on the test cases is likely by then.

Stephen Kirwan of KOD Lyons, who is representing Steed, told The Journal: “The clients represented by our office are unanimous in looking to progress matters as quickly as possible and look forward to being in a position to get a hearing date as soon as possible.”

Kirwan said the test-case route has been chosen as time is of the essence. He explained that all the cases deserve to be presented but having a judge hear a select number “which deal with a common set of legal principles” saves the court time “by not hearing multiple cases in their entirety”.

The Commission of Investigation dissolved in February, so the women are taking cases against the Minister for Children, the Irish Government and the Attorney General.

As previously reported by The Journal, the State is due to argue that the women are not identifiable in the final report and the Commission acted independently of the Government.

‘At odds with testimony’

Lee (88) is among those seeking to have certain findings of the Commission’s final report, such as those related to forced adoption, quashed.

Lee was sent to Sean Ross Abbey mother and baby home in Co Tipperary in 1952 when she was pregnant and her son was later adopted without her consent. Her son died before the pair had a chance to reunite, despite both parties trying to find each other.

Lee’s life story was the subject of a book, The Lost Child of Philomena Lee, by Martin Sixsmith. The book was later made into an award-winning film, Philomena, in 2013.

Legal documents submitted on Lee’s behalf in April stated that there are “numerous findings of the Commission in its final report which are at odds with the testimony of [Lee] provided on affidavit to the Commission”.

Lee’s legal documents outlined that the Commission did not provide her with “a draft of the report or any relevant part of the draft report as required by section 34 of the Commissions of Investigation Act 2004″.

“If the Applicant had been provided with a draft copy of the Commission’s report as required by law, she would have had the opportunity to make submissions to the Commission seeking correction, clarification and expansion of the relevant portions of the report which affect her fundamental rights,” it said.

Harney (72) also wants certain parts of the Commission’s final report to be quashed.

Harney, who was born in the Bessborough Mother and Baby Home in Cork in 1949, also claims her statutory rights were breached by an alleged failure to be given an opportunity to make submissions on the Commission’s draft report before the final report was published in January.

Another case is being taken by Steed, who was born in the Bessborough Mother and Baby Home and is the US co-ordinator of the Adoption Rights Alliance. She is seeking to quash the Commission’s finding that there was no evidence any child was harmed by vaccine trials carried out at the institutions.

Another case is being taken by Mary Isobelle Mullaney, who lives in Dublin and was born in the Sean Ross Abbey home.

A number of other women who are taking cases cannot be named.

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