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'She had no choice': High Court told Philomena Lee did not consent to her son being adopted

Ruling in Mother and Baby Home cases could have “very dramatic consequences” on how future commissions operate, High Court told.

Image: Alamy Stock Photo

Updated Nov 18th 2021, 6:45 PM

THE TESTIMONY GIVEN by Philomena Lee to the Commission of Investigation into Mother and Baby Homes about the adoption of her son has been misinterpreted by the Government, the High Court has heard.

Michael Lynn SC, acting on behalf of Lee, said an assertion made in court by Eoin McCullough SC, acting on behalf of the Government, that Lee consented to the adoption of her son was inaccurate.

Lynn said that while Lee did sign the document in question, she was given “no other choice” and the full content of it was never explained to her.

Lee and fellow survivor Mary Harney are among several women taking legal action against the State following the publication of the final report of the Commission of Investigation into Mother and Baby Homes earlier this year. Their two legal challenges are being used as test cases which will set a precedent for future similar cases.

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.

During the two-day hearing Lynn stated that Lee did not understand what she was signing when asked to sign documents which would lead to her son’s adoption. Unbeknownst to her, this resulted in her relinquishing any rights to her son and stating that she would never contact him, the court heard.

Lynn said the assertion that women such as Lee gave “full, free and informed consent” to the adoption of their children is incorrect. He said the report’s statement that women “could withdraw consent for adoption” was also inaccurate. Lynn said the documents Lee signed were never read or explained to her, so she did not understand what she was signing.

“That is an incomplete, inaccurate picture of what was going on,” Lynn said yesterday, later adding: “At a minimum, [Lee] should have had an opportunity to address that [with the Commission].”

Lynn told the court that the document Lee signed “was never read to her” and “at no point was [she] ever asked formally to swear to the document” – despite that fact it is recorded as being signed ‘under oath’.

However, McCullough disputed this assertion today – saying that while the full details of the document may not have been explained to Lee before she signed it, she was aware that signing it meant her son would be adopted.

In his closing comments this afternoon, Lynn took exception to this stance, stating: 

She did not consent, she had no choice.

Lynn told the court that if the Commission had given Lee the right to reply before its final report was published, she would have “clarified” her position. He added that Lee’s statement “notes the nun didn’t give her a choice” and told her that “her son was going to be adopted”.

‘Life-defining event’ 

Reading from Lee’s statement, Lynn stated how his client recalled being in an office with a nun, Sr Hildegarde, and “a tall man, who I now assume was a solicitor”.

Lee said the nun produced a single-page document, pointed at the bottom of the document and said ‘Sign there, your boy is going to be adopted’.

“I was not given time to read the document and simply did what I was told,” Lee said in her statement.

In court today, Lynn said if the Minister for Children and Government believe Lee consented to her son’s adoption, “her evidence has been misinterpreted”.

If people to whom the report was delivered have drawn that conclusion, it clearly illustrates that Ms Lee’s position has ultimately been misrepresented on an event that was life-defining for her – and that’s probably putting it mildly – and for her son.

Lynn said this “misinterpretation” of Lee’s testimony highlights that some of the Commission’s findings represent an “inaccurate report on grave historical human rights violations”. He said it amounts to an “attack on her good name” and “impugns her evidence”.

Lee (88) was sent to Sean Ross Abbey mother and baby home in Co Tipperary in 1952 when she was pregnant and her son, Anthony, was later adopted in the US without her consent. Her son died in 1995 before the pair had a chance to reunite, despite both parties trying to find each other.

2004 Act

Lee and Harney’s cases centre on Section 34 and Section 35 of the Commission of Investigation Act 2004.

The women believe they are identifiable in the Commission’s report and as such should have been given an opportunity to reply to it before the final version was published in January.

They believe some of the testimony they gave to the Commission was misrepresented in, or omitted from, the report.

Section 34 of the 2004 Act states:

34. — (1) Before submitting the final or an interim report to the specified Minister, a commission shall send a draft of the report, or the relevant part of the draft report, to any person who is identified in or identifiable from the draft report.

(2) The draft report must be accompanied by a notice from the commission specifying the time allowed for making—

(a) submissions or requests to the commission under section 35 (1)(a) or 36 (1), and

(b) applications to the Court under section 35 (1) (b).

(3) For the purposes of this section and section 35 , a person is identifiable from a draft report if the report contains information that could reasonably be expected to lead to the person’s identification.

Section 35 states: “A person who receives a draft report or part of a draft report from a commission under section 34 and who believes that the commission has not observed fair procedures in relation to the person may, within the period specified by the commission —

(a) submit to the commission a written statement setting out the reasons for the belief and requesting the commission to review the draft in light of the statement, or

(b) apply to the Court for an order directing that the draft be amended before the submission of the report to the specified Minister.”

Screenshot 2021-11-18 173218 Source: Commissions of Investigation Act 2004

Lee and Harney’s legal teams are arguing that the Commission’s failure to give them a right to reply breaches these sections of the 2004 Act, as well as the women’s fundamental rights under the Irish Constitution and European Convention on Human Rights.

The women also take issue with some of the Commission’s findings, in particular an apparent lack of evidence of forced adoption, forced incarceration, forced labour and abuse – saying their evidence contradicts these conclusions.

During yesterday’s hearing, Lynn told the court that Lee and Harney “gave evidence to the Commission in good faith” and “in the public interest”. As such, he said the women should have been given a right to reply and challenge some of the assertions made in the final report.

‘Very dramatic consequences’ 

Lynn told the court in his closing remarks today there is “an abundance of evidence that makes them readily identifiable to reasonably informed people”. 

However, the State is arguing that the women are not identifiable in the final report.

McCullough said that if the court decides that Lee and Harney are indeed identifiable in the report and should have been given a right to reply before the document was published, the “maximum relief is limited to a declaration that the Commission failed to furnish them with relevant parts of report in advance”, adding “even that is discretionary”.

However, the women want certain elements of the report to be overturned via a judicial review.

Earlier today, McCullough told the court that the outcome of the test cases could have “very dramatic consequences” on how commissions of investigation are run in the future.

McCullough said that if the applicants’ interpretation of the Commission of Investigation Act 2004 is correct, this could “change the way commissions of investigation run and, I would suggest, were intended to run”.

At the start of today’s hearing, McCullough said: “If the applicants are correct in their interpretation of Section 34 of the 2004 Act, that could have very dramatic consequences in how commissions of investigation are run.”

He added: “It could change the way commissions of investigation run and, I would suggest, were intended to run.”

McCullough argued that, in this interpretation of the law, a commission could possibly have to send a preview of its report to anyone who is identifiable in the document, regardless of whether or not an allegation is being made against them which could put their “good name” at risk.

He said if a commission is “required to distribute [its] report or part of the report essentially to anybody who is identifiable” this “could be many thousands of people”.

Speaking about the genesis of the Commission of Investigation Act 2004, McCullough noted it was devised amid “concern about the length of time and expense” of tribunals in Ireland. The fact that tribunals were held in public often resulted in them being lengthy and expensive, the court heard.

‘Serious human rights violations’

Lynn this afternoon said the report in question deals with “very, very serious abuses of [Lee and Harney's] personal rights”.

He told the court, at a minimum, the women should have been able to make submissions in respect of their own testimony before the final report was published to ensure that it was “accurately recorded”.

Under the 2004 Act, the women should have been able to examine “not just the accuracy of their evidence” but how accurately it was “interpreted and applied” when the Commission was coming to its findings, Lynn stated. 

He said this “wouldn’t be unduly burdensome” on the Commission but, even if it was, he believes it is required under the 2004 Act. Lynn said the women in question were “not mere witnesses”, rather “victims” of human rights violations.

McCullough told the court the State is of the view that even if an individual is identifiable in such a report, that is not enough to entitle them to a draft copy of the report.

Lynn strongly disagreed with this stance. He said many survivors of mother and baby homes and similar institutions were “separated against their will” from their child – in some cases, for life.

He said “truth-finding” commissions such as this one require the truth to be “uncovered” and recorded accurately.

‘Ignoring testimony’ 

Lynn argued that some of the Commission’s findings appeared to ignore elements of the testimony given by Lee and Harney – such as gardaí returning women who escaped from the institutions, mothers not receiving pain relief during labour, and abuse suffered by Harney when she was fostered.

Lynn said Lee recalled gardaí returning women and girls who ran away from the institution – at odds with the Commission stating that mothers were free to leave and not incarcerated against their will.

Lee also said she was not seen by a doctor or administered with pain relief while giving birth to her son. “The nuns kept reminding us that we had committed a mortal sin…the punishment must be eternal,” Lynn said yesterday, quoting Lee.

Speaking today, McCullough disputed the assertion that parts of the women’s testimony were ignored. He said it is noted in the report that some women did not receive pain relief during labour.

However, he said women giving birth in hospitals at the time “often didn’t get pain relief” – not just those who were admitted via a mother and baby home. As such, residents of the institutions “weren’t treated differently” from the general public, he told the court.

In relation to gardaí returning women to the institutions after they ran away, McCullough said this is noted by the Commission but that “Lee may have liked a greater reference” to it in the report.

McCullough said the Commission had to view “millions of documents” and was tasked with coming to overall conclusions based on the evidence it received, not including every aspect of testimony from “every single person”.

“The law does not require that, it couldn’t require that,” he told the court.

The Commission’s report also found “little evidence” of forced labour in the 18 institutions under investigation.

Lynn said Lee had to work in the institution’s laundry from 8.30am to 4pm every day from Monday to Saturday. He added that such “forced labour” breaches international human rights law, adding “whether it was profit making or not was irrelevant”.

Abuse in foster care

In her testimony to the Commission, Harney detailed the abuse and neglect she suffered when she was boarded out and subsequently in the industrial school.

Lynn yesterday noted the Commission’s final report said there was “scant evidence” of abuse, despite the fact Harney “gave clear evidence of abuse” and “records of beatings she received”. He told the court there was “no mention” of the abuse and neglect suffered by Harney when she was boarded out from November 1951 to May 1954.

Speaking today, McCullough said Harney is perhaps of the view that this evidence “should have been placed in a different section of the report”, but he said her evidence was not “ignored”.

McCullough said he understands that while some of the Commission’s findings “may be upsetting” to Lee and Harney, this relates to issues over “how the report was compiled”, not fair procedure.

As well as arguing that her testimony contradicts the Commission’s findings on abuse, Harney is also seeking the removal of a paragraph which states that evidence which said mothers in Bessborough cut the grass in the lawn with scissors was “contaminated by a piece of creative writing”. Harney said this assertion by the Commission is without basis, the court was told.

McCullough today said the mention of this work of fiction in the report “doesn’t actually call into question the account” of the former resident in question.

Lee and Harney’s legal teams are arguing that the Commission’s failure to give them a right to reply breaches the 2004 Act, as well as the women’s fundamental rights under the Irish Constitution and European Convention on Human Rights. The women also take issue with some of the Commission’s findings, in particular an apparent lack of evidence of forced adoption, forced incarceration, forced labour and abuse – saying their evidence contradicts these conclusions.

During yesterday’s hearing, Lynn told the court that Lee and Harney “gave evidence to the Commission in good faith” and “in the public interest”. As such, he said the women should have been given a right to reply and challenge some of the assertions made in the final report.

In today’s hearing, Lynn said that McCullough’s arguments were “fundamentally flawed”.

He stated that “a grievance” with the substance of the report is in fact necessary, adding that “a breach of fair procedure occurred” when the women were not given “an opportunity to rectify” the misinterpretation of their evidence.

Question of identifiability

Addressing the court this afternoon, McCullough said, for the most part, the information included in the sections of the report which refer to Lee and Harney is “general in nature”.

He said that while some people may be able to identify the women because they know certain aspects of their stories, they are not identifiable in a wider sense.

In Lee’s case, he acknowledged that the report includes “some specific information” such as the timing of her pregnancy and her age at this point, the fact she tried to contact her son in 2003 when she was 70 years old, and the fact her son was adopted in the US but had since died.

McCullough argued that, despite the inclusion of these details, Lee is not identifiable as hundreds of women submitted to the Sean Ross Abbey institution in the early 1950s.

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

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McCullough said that while this means Lee is “a very well known person” the court has to judge whether or not she is indefinable in the report “on an objective basis”. He said, with the exception of the fact Lee sought to find her son in 2003, the details about her in the report are “general and non-specific in nature”.

Lynn referenced a number of scenes in the 2013 film yesterday, highlighting how Lee’s testimony in the report is particularly identifiable given the high-profile nature of her story.

Legal documents submitted on Lee’s behalf in April stated 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,” the documents note.

Screenshot 2021-11-18 101637 Mary Harney

Harney (73) was born in Bessborough Mother and Baby Home in Cork in 1949.

She also claims that 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.

Addressing the court yesterday afternoon, Lynn noted that Harney is “a very active advocate for the rights of survivors” and her story is in the public domain through media interviews and talks she has given at various conferences. Therefore she is clearly identifiable in the report, he told the court.

Indeed, Lynn told the court that fellow survivor Mari Steed drew Harney’s attention to the section in the report about her, having identified her from the text before Harney herself had read the chapter on Bessborough.

An interview Harney gave to The Journal in October 2020 is included in the book of evidence to highlight the high-profile nature of her story.

Harney spent the first two and a half years of her life in the Bessborough institution, 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.

Quoting Harney, Lynn said his client is “readily identifiable to anyone who has heard me speak or read about me”. Harney has “in principle, no problem with being indefinable in the report” but her evidence is “not recorded fairly and a very important aspect of it is completely missing”, he added.

IHREC submission

The Irish Human Rights and Equality Commission (IHREC) also made a submission as part of the hearing.

In its legal submissions to the High Court, the IHREC sets out that “many victims have waited a long time for an opportunity to give their account of what happened in asserting their right to truth, dignity and redress; it is submitted that ensuring such persons have a right of reply in accordance with sections 34 and 35 of the 2004 Act in respect of any parts of the report from which they are identifiable is an essential safeguard”.

Speaking after today’s hearing ended, Sinéad Gibney, Chief Commissioner of the IHREC, stated: “At the heart of these cases taken by Philomena Lee and Mary Harney is the right to be heard, the right to respect for their dignity, the right to participation and the right to an effective remedy.

“IHREC has used our legal function to join these cases in light of the significant human rights issues arising.

“What this case focuses on is the process around the Commission of Investigation and its final report. The outcome of these cases may have implications for other survivors of historic abuse.

“Commissions of Investigation are a crucial component in the broader picture of transitional justice and how the State can improve its response to both historical and contemporary breaches of rights.”

Justice Simons told the court he will deliver his judgment in the two test cases in three weeks – on Thursday, 9 December.

Another case is being taken against the State by Mari Steed, who was born in the Bessborough Mother and Baby Home and is the US coordinator 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.

A hearing due to take place tomorrow regarding a discovery motion in the Steed case has been postponed until 21 January. The Journal understands that the State is expected to oppose this case but Steed’s legal team are yet to receive the State’s submissions.

Nine women, some of whom cannot be named, are seeking judicial reviews of the Commission’s final report. A number of other women who are taking cases cannot be named.

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Órla Ryan

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