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Opinion: The Mother and Baby Homes commission's report can't be safely used to provide redress

25 academics will launch an alternative summary of the commission’s report today.

Mairead Enright

TODAY, TWENTY-FIVE academics will launch a draft of an alternative Executive Summary of the Mother and Baby Homes Commission of Investigation’s report.

Our group has examined the evidence in the report and come to different conclusions about the nature and gravity of human rights abuse in the mother and baby homes system.

We do not make major new findings of fact. Instead, we offer a different human rights analysis of the evidence presented in the original report, using the law in force at the time the abuses took place. Accordingly, we come to different general findings than the commission did.

By ‘general’ findings, we mean defensible conclusions about the mother and baby homes system as a whole, and not detailed conclusions about individual wrongdoing or about harms that were inflicted in specific institutions.

By and large, we reach different findings by re-framing the report’s evidence and departing from its legal analysis.

For example, the report underplays State responsibility for most abuses, placing primary responsibility with women’s families and children’s fathers. By contrast, we emphasise the State’s responsibility for institutional human rights abuse, based on its funding, oversight and regulation of the institutions, and its tolerance of the known risks to vulnerable women and children.

With exceptions, the report does not recognise harms associated with unpaid heavy manual labour in mother and baby institutions, but instead conflate such work with women’s ordinary domestic work.

But this ignores evidence in the report that work was used as a punishment, that it was often physically harmful, and that it prevented mothers from caring for their children.

By paying attention to these characteristics, we can connect unpaid work with the legal concepts of forced labour and inhuman and degrading treatment.

Economic exploitation

We also use evidence in the report to show how economic exploitation within the institutions prevented women from leaving, connecting it to the legal concept of involuntary detention.

The report overlooks some breaches of human rights because it assumes that they did not cause grave bodily harm. For instance, it finds no evidence that children were injured in vaccine trials, and says that women’s medical care was adequate.

Instead, we emphasise the issue of consent to medical treatment, remembering that non-consensual medical treatment can amount to a breach of the right to bodily integrity.

The report presents a linear account of progress, finding that most serious issues with the treatment of unmarried mothers and their children had been resolved by 1973.

Where possible, we use evidence in the report to show that some abuses persisted after this date.

Our work is no substitute for an independent review of the Commission and its processes, should survivor groups desire one. Rather, it demonstrates how deep the report’s flaws run.

As we were working on this draft, people who had given evidence to the commission spoke out about serious flaws in how their testimony was handled; flaws that demeaned and re-traumatised many.

These defects do not undermine our general conclusions – even on the report’s version of events, there is ample evidence of key human rights violations across the system, albeit with some variations by time, cohort and location.

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Report unreliable

Our general findings are sufficient to justify demands that the state should conduct further investigations and provide reparations where necessary.

However, in attempting to describe differences in treatment between institutions, or specific examples of human rights violations taken from the report itself, the detail of the testimony reproduced in the report becomes much more important.

The report is unreliable as a source of fine-grained evidence of women’s and children’s experiences of the institutions and associated abuses.

Therefore, the government cannot safely use it to distinguish between those who are entitled to redress and those who are not, or to defend itself in domestic or international legal actions.

As the Clann Project has argued, before any further investigation takes place, affected people must have unmediated access to their personal data, to relevant institutional records, and to the commission’s archive where relevant.

Those with lived and family experience of the institutions are experts because of that experience. They are well placed to put the official narrative in its personal context.

The commission did not recognise their expertise. The State must remedy that failing, prioritising affected people’s need to correct the historical record above its own convenience.

Máiréad Enright is a Reader in Feminist Legal Studies at the University of Birmingham.

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Mairead Enright

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