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'Gardaí returned women who escaped': Philomena Lee & Mary Harney challenge Commission in High Court

The women are seeking to have elements of the final report of the Commission of Investigation into Mother and Baby Homes quashed.

Sean Ross Abbey in Roscrea, Tipperary (file photo)
Sean Ross Abbey in Roscrea, Tipperary (file photo)
Image: Alamy Stock Photo

Updated Nov 17th 2021, 5:10 PM

PHILOMENA LEE AND Mary Harney should have been given an opportunity to reply to the report of the Commission of Investigation into Mother and Baby Homes before the final version was published, their solicitor has argued.

Lee and Harney are two of several survivors of Mother and Baby Home who are seeking to have certain elements of the report quashed via a judicial review in the High Court.

Test cases involving Lee and Harney are being heard by Mr Justice Garrett Simons today and tomorrow. A test case is one brought forward that would then set a precedent for future similar cases.

Lee and Harney’s cases involve Section 34 of the Commission of Investigation Act 2004 – the women have taken issue with the fact they were not given a right to reply before the Commission’s final report was published in January. They believe some of the testimony they gave to the Commission was misrepresented in, or omitted from, the report.

The women’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.

Speaking at the High Court hearing today, Michael Lynn SC, said that Lee and Harney “gave evidence to the Commission in good faith” and “in the public interest”.

As such, he told the court the women should have been given a right to reply and challenge some of the assertions made in the final report.

The Commission’s report found “little evidence” of forced incarceration, forced adoption and forced labour in the 18 institutions under investigation. Lynn argued that Lee’s testimony directly contradicts this.

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.

Lynn said his client 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, later adding: “At a minimum, [Lee] should have had an opportunity to address that [with the Commission].”

Lynn said Lee has stated that the document she 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’.

Gardaí returning women

In relation to other findings made in the Commission’s report, Lynn noted that 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, quoting Lee.

Lynn also noted that his client had to work from 8.30am to 4pm in the institution every day from Monday to Saturday, so the assertion that she was not forced into labour is also incorrect.

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 that the Commission acted independently of the Government.

However, Lee and others believe they are indeed identifiable.

Famous film

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.

Lynn referenced a number of scenes in the film today, 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.

Abuse while boarded out

Mary Harney (73) 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.

Addressing the court this 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 a friend of Harney’s drew her attention to the section in the report about her, having identified her from the text before Harney herself had read the chapter on Bessborough.

Screenshot 2021-11-18 101637 Mary Harney

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.

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

Lynn noted that the Commission’s final report said there was “scant evidence” of abuse in the institutions, 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.

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.

Lynn also noted that testimony from Harney and others who spent time in Bessborough as children was given just six paragraphs in the report’s chapter on this particular institution, compared to 11 paragraphs given to Sr Mary McManus, a nun who worked at the institution.

The testimony of former ‘child residents’ at Bessborough in the Commission’s final report:

Screenshot 2021-11-17 144403

Screenshot 2021-11-17 144423

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.

‘Vast quantity of evidence’

Eoin McCullough SC, who is acting on behalf of the State, told Justice Simons he does not believe “a breach in fair procedures” had occurred in either case.

He told the court: “It was never going to be the case that every single word” of testimony given by “every single person” was going to make it into the Commission’s final report.

McCullough said the Commission was presented with a “vast quantity of evidence” and had to “sift through the very large quantity of material” before reaching “its own independent conclusions”.

Justice Simons asked McCullough if “the failure of the decision maker (i.e. the Commission) to engage” with an individual who believes they are identifiable in a report was “a breach of fair procedure”. McCullough replied that, in this instance, “it’s not, judge”.

McCullough argued that perhaps the test cases do not centre on fair procedure, rather issues the women have with “the substance of the report”. He asked: “What would Ms Lee have done if she had got a copy of the draft report?”

Justice Simons stated that, even if the women had been given the right to reply, the Commission “may have ultimately decided not to change the report” but that’s not what the hearing is seeking to address.

The State is arguing that Lee or Harney are not identifiable in the report and therefore were not entitled to make additional submissions to the report before the final version was published.

The Irish Human Rights and Equality Commission (IHREC) also gave evidence today.

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The group was last month permitted to make submissions at the hearings as an ‘amicus curiae’ – an assistant to the court on legal issues.

Addressing the court on behalf of the IHREC earlier this afternoon, Eilis Brennan SC said the Commission of Investigation Act 2004 gives an “absolute right” to a person who is identifiable in a Commission report to get a right to reply.

Section 34 of the legislation 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.

Brennan told the court that in order for this threshold to be met, the individual needs to be “objectively identifiable”, not “identifiable in the view of the Commission”.

She said “a literal reading of the Act” presents “no margin of discretion” in this regard.

As part of her submission to the court, Brennan also noted that “many people waited a very long time to give evidence” to the Commission in question and the official record “needs to be accurate”.

The hearing will continue before Justice Simons tomorrow.

Third case postponed

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 on Friday regarding a discovery motion in the Steed case was today 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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