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Opinion: The mother and baby homes Commission report misses the point on redress

Academic Máiréad Enright takes a forensic look at the Mother & Baby Home report and shares her concerns with its approach to redress.

Máiréad Enright

THE COMMISSION REPORT on mother and baby ”homes”, published earlier this month, advances a ‘social history’ of these institutions, discussing 18 in detail.

Its interpretation of that history grounds the Commission’s recommendations for state action. That means that it is a legal document, as well as a historical narrative. It will be used by the government as the evidence base for any future investigation or reparation.

Redress

The Report’s recommendations on financial redress neatly illustrate the potential legal consequences of this official social history.

The Commission acknowledges that some former ‘residents’ of some ‘Homes’, whether they were adults or children at the time, may be entitled to financial redress.

It suggests that schemes could be devised along the lines of those developed for survivors of industrial schools and Magdalene laundries.

Leaving aside the criticisms of those schemes, for now, I want to examine the Commission’s suggestions around eligibility for financial redress. It does not recognise family separation or institutionalisation in a ‘Home’ as quantifiable or compensatable wrongs in themselves.

It suggests that women should not be entitled to any redress unless they spent more than six months in a ‘Home’. Women resident in a ‘Home’ after 1974 should not be eligible because the Unmarried Mothers Allowance was introduced in 1973.

The only ‘aggravating’ factors which might justify additional payments to an eligible woman would have to do with (i) length of stay or (ii) requirement to do work unpaid, in excess of the ordinary domestic labour a woman (implicitly framed, I think, as a working-class woman) might be expected to do in the world outside the institution.

As for their children, the Commission only recommends that redress should be available to those who lived in “’Homes” without their mothers.

Access to records

Of course, the Commission makes some important recommendations on access to records and information. The government should legislate to enable adopted people, in particular, to access their early life records without any arbitrary or discriminatory conditions.

However, the opportunity to access one’s personal records is a self-help remedy. In many circumstances, it will only partially vindicate affected people’s relevant rights.

Access after a delay of decades will not necessarily undo the cumulative and continuing harms of family separation, stigma, suffering and neglect inflicted by the system of which the ‘Homes’ were a part. And of course, not everyone who entered this system was adopted: their needs must also be addressed.

Human rights – a missed opportunity

In order to understand how the Commission has come to make such limited recommendations for financial redress we need to interrogate (i) the government’s decision to ‘opt-out’ of a human rights approach to this inquiry (ii) the impact of the Report’s framing of women’s ‘choices’ around motherhood and adoption and (iii) the Report’s primary attribution of responsibility to families rather than to the state.

(i) Lack of Attention to Human Rights in Identifying Wrongs

The Report notes that, despite interventions from the Irish Human Rights and Equality Commission, the government ‘did not opt’ to instruct the Mother and Baby ”Homes” Commission to take a human-rights based approach to its work (Chapter 36).

Instead, the Commission treats prior reports into other institutional abuses as semi-binding precedents or templates.

It is probably for this reason that the Recommendations focus on unpaid labour and ‘duration of stay’ as the basis for women’s financial redress; mirroring the Magdalene scheme.

It also explains why the Commission contrasts experiences in the “Homes” with those documented in industrial schools (see e.g. Recommendations p. 6); suggesting that these are (inappropriately) used as a benchmark to minimise the severity of other kinds of harm.

Survivors are right to doubt the Commission, because rather than adopting clear external legal standards, its work mirrors the State’s existing commitments. This impression is reinforced when the Commission speaks about the costs of redress (Recommendations p. 4) and the ‘prohibitive’ costs of funding family efforts to find families’ burial locations (Recommendations p. 29).

A human-rights-based approach does not accept brief assertions of cost as grounds for overriding reparations claims.

It is precisely because the Report does not engage fully with survivors’ human rights that its conclusions minimise the impact of survivors’ accounts of harm.

Here are just three examples.

First, when the Commission acknowledges that many pregnant women were required to undertake excessive work in the Homes, it does not understand that work as punitive and humiliating.

Human rights lawyers would ask whether being required to scrub floors while heavily pregnant in a context of repeated emotional abuse, or being made to pluck the grass from the lawns at Bessborough in teams ,engaged women’s rights to freedom from inhuman and degrading treatment.

Second, evidence to the Commission demonstrates that many people separated from their families did not know, for decades, where their families had gone. Some still do not know and the state’s current laws deny them the means to find out.

A human rights lawyer would ask whether this constitutes enforced disappearance.

Third, the Commission acknowledges that teenagers, and other women sent to the homes had been raped. (In one reported case, a girl was sent to Castlepollard after her rapists were prosecuted).

A human rights lawyer would ask whether this was a degrading punishment for a victim of a crime.

Further analysis of the human rights dimensions of life in the ‘Homes’ can be found in the Clann Project’s submission to the Commission.

(ii) Women’s ‘choices’ around motherhood and adoption

As noted above, the Recommendations do not suggest that financial redress should be available in respect of ‘forced’ adoption, or of women’s coerced entry into the ”Homes”.

It maintains that women entered the ”Homes” due to social and economic pressure falling short of force and that they were not compelled to remain there. 

Although the Report contains many examples of women who made decisions under severe duress, the Commission does not characterise ‘force’ as an inherent feature of Ireland’s response to unmarried motherhood.

It simultaneously accepts, however, that, at least into the 1970s, women often had ‘no choice’ but to enter the ”Homes” and have their children adopted.

As far as I can tell, the Commission does not define what it means by ‘force’. It may intend to refer to direct application of physical force by a state agent. At one point (Chapter 32 p.60) it asserts that some women may have been in ‘denial’ about having consented to the adoption.

In any event, the Commission, especially in Chapter 32, provides a narrow, transactional, account of consent which is a poor fit for an analysis of power dynamics in the creation and dissolution of family relationships.

Women considered to lack capacity to consent are discussed only briefly. Perhaps this analysis is in keeping with the decisions in previous court cases (mostly from the 1970s and 1980s) which emphasised the woman’s apparent understanding of the consequences of adoption rather than the environment in which consent was given.

However, the relevance of this jurisprudence to the average adoption, even in the later part of the century, is doubtful, when we consider how difficult it was (and still is) to access the courts.

In addition, the Report says little about how women’s consent was treated before 1953 when no adoption legislation was in force in Ireland.

Interpretation of ‘force’

The Commission is wrong to emphasise the question of ‘force’ over the question of separation in circumstances where free consent could not be given.

It is clear from the Report that women were often not in a position to resist or withstand overriding pressure, and that the state, in different ways and at different times, failed to intervene appropriately to improve matters and often made them worse. That is the structural and endemic issue that raises the state’s obligation to respond. 

The Commission’s position may be that some adoptions took place without women’s consent but that these were individual issues rather than mass structural issues of the kind typically dealt with by redress schemes.

If that is so, then it is disappointing that it made no recommendations on improving survivors’ access to the courts, so that these claims can be further examined and compensated where appropriate.

It is surprising, taking all of this into account, that the Commission has recommended limited financial redress for women who remained in a Home for more than six months. Some 30% of women considered by the Commission fall into this category.

Most were in ”Homes” in the earlier part of the period under review (Executive Summary para. 184). No full rationale is given for this recommendation, but it appears to be connected to the Commission’s argument that where women ‘legitimately’ remained in the ”Homes” for long periods after birth, it was to fulfil their roles as legal guardians to their children prior to adoption (See e.g. the chapter on Bessborough).

Longer stays perhaps reflect unusual delays in making arrangements for adoption, which would have relieved the woman of her legal obligation to remain with the child (Recommendations, para. 27). However, it is also worth remembering that from 1952-1974 an adoption order could not be made before the child had reached six months (Chapter 32, p. 38).

For those concerned about family separation and its harms, it is not clear that losing one’s child after six months together is inherently better or worse than losing them more quickly.

It is noteworthy that no specific time limit is recommended in respect of children; separation from their mother is enough. The Commission’s sense of compensatable harm seems to be over-determined by the formal legal obligations then imposed by the state, to the exclusion of women’s reported experiences.

(iii) Whose Responsibility?

Strikingly, the Commission recommends that women who were in ”Homes” after the introduction of Unmarried Mothers Allowance in 1973 should be excluded from financial redress.

This proposed exclusion is not fully explained in the Recommendations, but the implication seems to be that the state has already fulfilled its financial duty to such women by making some minimal provision for their welfare, at a time when conditions in the ”Homes” were (supposedly) improving.

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The Recommendations do not acknowledge that, for decades afterwards, the state criminalised abortion, restricted access to contraception for large swathes of the population, and stigmatised ‘illegitimacy’ in its laws.

Later the Report emphasises abortion travel post-1967 as another source of choice within the system; the same difficult and punitive regime of abortion travel that feminists struggled for decades to abolish. 

By contrast with the high standards to which it holds pregnant women, the Report uses the same legal environment to excuse wrongdoing by other people; falsification of birth certificates, for example, is presented as a well-intentioned attempt to safeguard children from the consequences of illegitimacy even though it was a crime under Irish law (Chapter 32 p.142).

Even after 1973, it took courageous and resourceful women to assert any control over their reproductive and family lives in Ireland. It still does. It is difficult to read this Recommendation as anything other than a harsh judgment of women who still found themselves in the ”Homes” through no fault of their own.

This Recommendation is, however, consistent with the Report’s repeated, and widely-reported, emphasis on familial, and notably, paternal responsibility.

Much of the legal discussion in the Report frames this as financial responsibility. The immediate effect is to neatly privatise and individualise the harms that have dominated so many Irish people’s lives, and place them beyond the scope of redress. 

Conclusions 

There is much more to say about this Report. I will not pretend to offer a comprehensive analysis of its underpinning processes, its contents, its structure, its omissions, or implications.

Although I have focused here on financial redress, the obligation to provide reparations is broader and deeper.

Much commentary so far has rightly focused on what was said to be  ‘proven’ or ‘not proven’, and on whether survivors were heard and believed. 

In this piece I want to add something to that conversation: I worry that whether survivors were believed or not, the Report evidences real reluctance to ever recognise that the state owes them any substantive obligations in the present.

Still, the Report feels like a grave wrong in itself. 

Máiréad Enright is Reader in Feminist Legal Studies at the University of Birmingham and a Leverhulme Research Fellow.

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