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SPECIAL INVESTIGATION: Concern over possible falsification of Bessborough death records raised in 2012

Concerns that death records were falsified in Bessborough Mother and Baby Home so children could “be brokered in clandestine adoption arrangements” at home and abroad were raised in an internal HSE report in 2012.

The unpublished report highlighted the “wholly epidemic” infant deaths rates at the Cork home and said: “The question whether indeed all of these children actually died while in Bessboro or whether they were brokered into clandestine adoption arrangements, both foreign and domestic, has dire implications for the Church and State and not least for the children and families themselves.”

The report, compiled as part of the HSE’s examination of the State’s role in the Magdalene Laundries as part of the McAleese inquiry, lifts the lid on the culture of cruelty at the home and found the State effectively washed its hands of the women and children.

It reveals the institution, run by the Sisters of the Sacred Hearts of Jesus and Mary, as a place where:

Women and babies were considered “little more than a commodity for trade amongst religious orders”;
“Institutionalisation and human trafficking” took place among various religious orders and State-funded institutions;
Women were provided with “little more than the basic care and provision afforded to that of any individual convicted of crimes against the State”;
Infant death rates were “wholly epidemic” and a “cause for serious consternation”;
The order had a “preoccupation with materialism, wealth and social status”;
A “cold and lonely environment” prevailed, “characterised by harrowing social, emotional and physical isolation and institutionalisation”.

The study, previously released under freedom of information, revealed that from 1934 until 1953 (the only years for which deaths were recorded at Bessborough) 478 children died — a death rate of almost one infant a fortnight for nearly two decades.

The report said it was “curious” that there were no death records for any year following 1953 and, as a result, “one cannot be certain as to the full scope of infant deaths”.

However, in a disturbing revelation, the study raises concerns that the deaths of children may have been falsified so they could be “brokered” for adoption both at home and abroad.

“Simply put, the State had a social problem that it desperately needed to make go away, while the Church had the power and control to turn the ‘problem’ of illegitimacy into a lucrative money-making enterprise,” notes the report.

It notes that, even though detailed financial records and accounts were not given to the HSE by the order, the archives reveal the order earned money from the women for the care of their children and also from the adoptive parents who took them.

One record noted that, in the period from 1929 to 1940, “adoptive parents were charged a sum ranging between £50-60, payable on a monthly payment scheme in exchange for their adopted child”. The report said “further investigation into these practices is warranted”.

The Government did not launch an inquiry into mother and baby homes for almost another two years after the report was compiled in 2012.

In a statement, the Sisters of the Sacred Hearts of Jesus and Mary said it had “no knowledge of any such report”.

“We are in contact with the commission in regard to the Mother and Baby Homes Inquiry, which will be having our full co-operation. For the present, as is appropriate, we will be dealing directly with the commission on all related matters,” said the order.

The Department of Children and Youth Affairs said none of the concerns raised were brought to the attention of the then minister Frances Fitzgerald at the time, but were discussed in the context of McAleese Inquiry under the auspices of the Department of Justice.

It said the minister became involved in the issue of mother-and-baby homes once material around infant deaths in Tuam became public in mid-2014.

“The minister was subsequently tasked by Government with leading its response to these important matters and the Inter Departmental ReviewGroup was set up to assist deliberations on the terms of reference of a Commission of Investigation,” said a statement.

A request for comment from Tusla was not responded to at the time of going to print.

http://www.irishexaminer.com/ireland/special-investigation-bessborough-death-record-concerns-were-raised-in-2012-334106.html

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Grave situation: Deaths at Bessborough don’t add up

Religious order reported to the State that 353 babies died in Bessborough, but its own register showed 80 fewer deaths. A report found a system of ‘human trafficking’ in which ‘women and babies were considered little more than a commodity for trade’. Conall Ó Fatharta reports

THE revelation that the order which operated the Bessborough Mother and Baby home was reporting higher numbers of infant deaths to the State than it recorded in its own death register raises some serious questions

So far, the Sisters of the Sacred Hearts of Jesus and Mary have declined to offer any answers. The order says it will only deal with the Commission of Investigation into Mother and Baby Homes. It can only be hoped that Judge Yvonne Murphy can get some answers. It is imperative she does.

One question is straightforward: Why was the order informing the State of higher numbers of infant deaths in Bessborough than it was recording in its own death register?

The figures are worth repeating. An inspection report from Department of Local Government and Public Health (DLGPH) by inspector Alice Litster in late 1944 revealed that between March 31, 1938, and December 5, 1944, a total of 353 infants died in Bessborough (out of 610 births).

Ms Litster stated that the figures for 1939 to 1941 “were furnished by the superioress”, while those for 1943 and 1944 had been “checked and verified and their accuracy can be vouched for”.

However, the order’s own death register — supplied by the Registrar General for Ireland “for the purpose of facilitating the accurate registration of deaths” in Bessborough — for the exact same time period, records just 273 deaths. That is a discrepancy of 80 deaths.

Take the figures for 1939 to 1941: For the year ended March 31, 1939, the DLGPH inspector was told 38 infants died. This is also what is reported in the death register.

However, for the following two years, the order informed Litster of higher numbers of deaths. For example, for 1940, Ms Litster was told 17 children died. The register records only eight. Similarly, for 1941, the DLGPH was told 38 children died, whereas the register records just 22.

For every other year cited by Ms Litster, the figures given to the DLGPH are significantly higher than what is recorded in the order’s own death register. This is particularly the case for year ending March 31, 1943, and 1944. In these years, Litster reports that 70 and 102 infants died, respectively. In the latter figure, this amounted to a death rate of 82% in that year.

However, again, these figures differ greatly to the order’s death register, which records 55 and 76 infant deaths in these years. For 1944, this brings the death rate from 82% down to 62%.

This 82% death rate had caused such concern at Government levels that it was in regular contact with the head of Bessborough on the issue. So, why was the order content for a DLGPH report to publish higher numbers of deaths than it was recording itself?

Perhaps there is another death register for the same period where the order logged the other deaths.

However, the order is on the record that the register is the only one in existence. It confirmed this to Tusla via its solicitors in January of this year, when it stated that “all records” it held were transferred to the HSE in 2011 and that it “does not hold any other death register”.

Given that Bessborough took in both public and private patients, perhaps the death register only recorded public patients. This appears unlikely, for a number of reasons.

Firstly, the figure of 38 infant deaths for 1939 provided to Ms Litster by the order matches the figure in the death register. It would therefore seem that the register was the source for the figures she received from the superioress. However, they do not match for any other year.

Secondly, Litster points out that the 102 deaths recorded in 1944 include 35 deaths of children from private patients. The death register records 76 deaths in this period. Adding the 35 private deaths to this figure comes to 111. In short, it doesn’t explain the discrepancy in any way.

The Sisters of the Sacred Hearts of Jesus and Mary is the only body that can provide an answer to all of this. It declined to answer a series of queries posed by this newspaper, stating it was dealing directly with the Commission of Investigation into Mother and Baby Homes on all such and related matters.

It has stated in the past that it reported all deaths to the appropriate authorities at the time.

The question then is what is the correct number of deaths for this period? Where are the other 80 children listed as having died at Bessborough in the DLGPH report? Why were their deaths not recorded in the order’s death register? These are questions which must be answered, whether by the order or by the commission.

THE story of Ireland’s mother and baby homes is one that has taken decades to reveal. It is still not fully clear. The media has outlined the experiences of women who remain scarred by their experiences in these institutions and haunted by the fate of the children they lost, either through adoption or death.

Yet, despite all of these events happening decades ago, a shroud of secrecy continues to hang over the entire period. Firstly, we heard from the women, then we heard about deaths, then we had Tuam.

Now, we have the spectre that the number of infant deaths reported to the State at one of the country’s largest mother and baby homes are significantly higher than what the order recorded in its own records.

It is worth noting that this latest revelation comes just five months after this newspaper revealed an unpublished internal 2012 HSE report which, based on an examination of the Bessborough records, expressed concerns that death records were falsified in Bessborough, so children could “be brokered in clandestine adoption arrangements”.

Prepared as part of the HSE’s examination of the State health authorities’ interaction with the Magdalene Laundries for the McAleese Committee, it highlighted the “wholly epidemic” infant death rates at the home as revealed in the death register and added: “The question whether indeed all of these children actually died while in Bessboro or whether they were brokered into clandestine adoption arrangements, both foreign and domestic, has dire implications for the Church and State and not least for the children and families themselves.”

Those words take on a whole new significance in light of the discrepancy in the number of deaths recorded by the order compared to the State.

Rumours of such a system have abounded in Ireland for years. Mothers have spoken of being told their child had died, but having never seen the body.

The HSE report into Bessborough describes the number of recorded deaths as “wholly epidemic”, “shocking” and a “cause for serious consternation”.

Despite this, it went ignored. When it was revealed by the Irish Examiner earlier this summer, the reaction of the Government was to deny any knowledge of it, then admit that two departments — the Department of Health and the Department of Children and Youth Affairs (DCYA) — had seen it, before dismissing its contents as “conjecture”.

New material released under FOI reveals that not only was the report seen by two departments, its contents compelled Dr Declan McKeown — consultant public health physician and medical epidemiologist — of the Medical Intelligence Unit in the HSE to write to principal officer at the DCYA and member of the McAleese Committee Denis O’Sullivan on November 1, 2012, to warn that “adoption, birth and registration and the recording of infant mortality” were issues that may require “deeper investigation”.

Clearly, senior medical professionals within the HSE were telling DCYA officials that the issue of how deaths were recorded needed to be investigated, not to mention how adoptions were contracted and how births were registered. Yet, it took almost another two years and worldwide headlines about a mass grave in Tuam before the Government felt compelled to act and order a State inquiry.

If any action had been taken on the contents of the HSE report or on the words of Dr McKeown, the discrepancy in the number of deaths contained in the register versus what was reported to the State could have been found years ago.

Apart from uncovering a death rate higher than that found in Tuam two years later, the Bessborough report outlined a system of “institutionalisation and human trafficking”, in which “women and babies were considered little more than a commodity for trade amongst religious orders”, in an institution where women were provided with little more than the care and provision given to someone convicted of a crime against the State.

It revealed evidence from an admission book from 1929-1940 that adoptive parents were charged a sum ranging from £50 to £60, payable on a monthly scheme in exchange for their child, before advising that “further investigation into these practices is warranted”.

While no specific criteria for assessing adoptive parents could be found, minutes from meetings of the Sacred Heart Adoption Society’s board of management suggested prospective adoptive parents were assessed “on the basis of their earnings, the size and condition of their home, and their social status within the community (not to mention the fundamental expectation that couples were practising Catholics)”.

However, despite all of this, the HSE report on Bessborough was not included in the final HSE submission to the McAleese Committee. While included in various earlier drafts, Denis O’Sullivan emailed Gordon Jeyes on November 7, 2012, to advise that any issues around mother and baby homes were outside the remit of the McAleese Committee

“Material included beyond that is beyond the scope of our work — eg, the scope does not extend to an examination of other places of refuge eg mother and baby homes, other than in the context of referrals from Magdalene laundries.

“If there are separate and validated findings of concern emerging from such additional research, obviously they should be communicated by HSE and through a separate process.”

The previous month, Nuala Ní Mhuircheartaigh of the McAleese Committee had emailed then HSE Assistant National Director of Child and Family Services Phil Garland acknowledging the Bessborough report, but stating it was “heavily focused on broad narrative and context rather than fact.”

However, it wasn’t just Bessborough that was on the radar at this point. Serious concerns were also being reported about Tuam Mother and Baby Home — again almost two years before it made headlines around the world.

In June, the Irish Examiner revealed that senior HSE officials expressed concern that up to 1,000 children may have been “trafficked” to the US from the Tuam Home in “a scandal that dwarfs other, more recent issues with the Church and State”. The revelations were contained in an internal note of a teleconference in October 2012 with Phil Garland and then head of the Medical Intelligence Unit, Davida De La Harpe.

THE note relays the concerns raised by the principal social worker for adoption in HSE West, who had found “a large archive of photographs, documentation and correspondence relating to children sent for adoption to the USA” and “documentation in relation to discharges and admissions to psychiatric institutions in the Western area”.

It notes there were letters from the Tuam Mother and Baby Home to parents asking for money for the upkeep of their children and says that the duration of stay for children may have been prolonged by the order for financial reasons.

It also uncovered letters to parents asking for money for the upkeep of some children that had already been discharged or had died. The social worker had compiled a list of “up to 1,000 names”, but said it was “not clear yet whether all of these relate to the ongoing examination of the Magdalene system, or whether they relate to the adoption of children by parents, possibly in the USA”.

At that point, the social worker was assembling a filing system “to enable her to link names to letters and to payments”.

“This may prove to be a scandal that dwarfs other, more recent issues with the Church and State, because of the very emotive sensitivities around adoption of babies, with or without the will of the mother.

“A concern is that, if there is evidence of trafficking babies, that it must have been facilitated by doctors, social workers etc, and a number of these health professionals may still be working in the system.”

The note ends with a recommendation that, due to the gravity of what was being found in relation to Tuam, an “early warning” letter be written for the attention of the national director of the HSE’s Quality and Patient Safety Division, Philip Crowley, suggesting “that this goes all the way up to the minister”.

“It is more important to send this up to the minister as soon as possible: with a view to an inter-departmental committee and a fully fledged, fully resourced forensic investigation and State inquiry,” concludes the note.

It’s unclear what, if any action, was taken on foot of this dire warning from the HSE. What is clear is that since 2012, the Government has been advised of serious concerns with both Bessborough and Tuam Mother and Baby Homes.

It was specifically told that the number of deaths recorded were “a cause for serious consternation” and that the issue of how these deaths were recorded needed to be investigated.

It was advised that what was being found in relation to Tuam warranted a full State inquiry. Now, we know that there are large discrepancies in the deaths reported to the State versus those recorded by a religious order.

We now have a State inquiry. Let’s hope it can get to the bottom of why the figures don’t add up.

http://www.irishexaminer.com/viewpoints/analysis/grave-situation-deaths-at-bessborough-dont-add-up-363812.html

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Order reported 80 more infant deaths to State than were on death register

The religious order that ran the Bessborough Mother and Baby Home reported significantly higher numbers of infant deaths to state inspectors than it recorded privately.

An Irish Examiner investigation can reveal that between March 31, 1939, and December 5, 1944, Department of Local Government and Public Health (DLGPH) inspector Alice Litster was informed that 353 infant deaths occurred at the institution. The figures are contained in a inspection report from 1944 obtained by this newspaper. However, the Bessborough Death Register, released under Freedom of Information, reveals the nuns recorded just 273 infant deaths in this period — a discrepancy of 80.

A year-by-year comparison of the records reveals that, in all but one year, the State was told that a higher number of children were dying in Bessborough than the nuns recorded privately.

In her report, Ms Litster stated the figures for 1939 to 1941 “were furnished by the Superioress” while those for 1943 and 1944 had been “checked and verified and their accuracy can be vouched for”. The DLGPH report reveals the following number of infant deaths for each year ended March 31:

1939 — 38 deaths
1940 — 17 deaths
1941 — 38 deaths
1942 — 47 deaths
1943 — 70 deaths
1944 — 102 deaths
April 1, 1944 to December 5, 1944 — 41 deaths

The numbers recorded in the Bessborough Death Register for the same dates are as follows:

1939 — 38 deaths
1940 — 8 deaths
1941 — 22 deaths
1942 — 43 deaths
1943 — 55 deaths
1944 — 76 deaths
April 1, 1944 to December 5, 1944 — 31 deaths

The order confirmed to Tusla via its solicitors this year that the death register was the only one in existence and it “does not hold any other death register”.

The discrepancy in the recording of deaths comes just months after the Irish Examiner revealed that an unpublished 2012 internal HSE report raised concerns that death records were falsified in Bessborough Mother and Baby Home so children could “be brokered in clandestine adoption arrangements” at home and abroad. The report highlighted “epidemic” infant deaths rates at the home and said: “The question whether indeed all of these children actually died while in Bessboro or whether they were brokered into clandestine adoption arrangements, both foreign and domestic, has dire implications for the Church and State and not least for the children and families themselves.”

The Irish Examiner asked the Sisters of the Sacred Hearts of Jesus and Mary for an explanation for the discrepancy. In a statement, it said it was dealing “directly with the Commission of Investigation into Mother and Baby Homes on all such and related matters — and it would not be appropriate to enter into communication, other than with the commission at this time”.

http://www.irishexaminer.com/ireland/bessborough-mother-and-baby-home-order-reported-80-more-infant-deaths-to-state-than-were-on-death-register-363863.html

Concerns raised about Dublin adoption society sending children abroad in the 1970s and ’80s

Concerns about the practices employed by a Dublin adoption society which sent children to four countries in the 1970s and 1980s were notified to the Department of Children in 2017.

The Adoption Authority of Ireland (AAI) wrote to the department in April 2017 to notify it of concerns that had emerged following a review of the files of the former St Therese Adoption Society, which was registered as an adoption society between 1975 and 1988.

Chief executive of the AAI Patricia Carey informed principal officer at the Adoption Policy Unit in the department Noreen Leahy that, following a discussion at a meeting with the unit in March of that year, a review of St Therese’s files was undertaken.

‘Matters of concern’

Ms Carey said the review had revealed “a number of matters of concern”, including adoption orders for children born in Ireland and adopted in the USA, as well as correspondence raising concerns about the “age of adopters”, “eligibility of adopters” and “placement issues”.

No further action was taken to investigate the action of the agency.

St Therese Adoption Agency is not named as an agency that was involved in placing any children outside the State in Department of Foreign Affairs material uncovered in 1996.

However, the AAI confirmed to the Irish Examiner that files it holds “contain evidence of correspondence between members of St Therese’s and persons in countries other than the USA”. It said “three other countries other than the USA are mentioned, to include Belgium”.

“Again, it must be emphasised that due to the incomplete nature of the files, it is not possible to definitively state that children were placed in these countries,” said a statement.

The AAI said it notified the Department of Children of these concerns “in a report provided to the department in July 2017”.

In response, the department said the issues the AAI highlighted “are well documented and in the public domain for a number of years” and that the Mother and Baby Homes Commission powers extended to all records relevant to its investigation, including those held by the AAI.

The final report of the Mother and Baby Homes Commission does not specifically address the concerns raised by the AAI in 2017.

Newspaper exposé

However, it does make specific reference to St Therese Adoption Society – summarising a 1986 newspaper exposé on the society. The report claimed the agency was arranging for pregnant Irish women and girls to go to the USA to give birth and subsequently have their children adopted there.

The commission concluded that “it was open to any pregnant woman to make arrangements to go to the USA, give birth there and have the baby adopted under American law” and that it was “not clear that there was any illegality involved in helping women to go to the USA” to do this.

FOI requests on Mother and Baby Home Redress Scheme

Below is the responses issued to me in light of two FOI requests seeking to gain some insight into the Government’s rationale for the Mother and Baby Home redress scheme. The requests were made on 21 October 2022. They were narrowed down as one requests was deemed by the Department to be “the Department stated that state is “too broad and would cause a substantial and unreasonable disruption to the work of our unit” and the other too costly in terms of search and retrieval.

The revised requests were worded as follows:

FOI-0142: All records concerning the following matters in relation to the preparation of the Mother and Baby Institutions Payment Scheme Bill 2022:

1. the requirement for eligibility for a general payment: that a person be resident as a child in a relevant institution for at least 180 days.

2. the requirement for eligibility for a medical card: that a person who was resident as a mother or a child, or both, in an institution listed in Schedule 1 for at least 180 days

3. Correspondence regarding Schedule 1 (inclusion of institutions)

4. Correspondence regarding “boarding out”/foster care

FOI-0144: All records/communications to, from, and created by the Interdepartmental Group on the following matters in relation to the development of the Mother and Baby Institutions Payment Scheme.

1. the requirement for eligibility for a general payment that a person be resident as a child in a relevant institution for at least 180 days.

2. the requirement for eligibility for a medical card: that a person who was resident as a mother or a child, or both, in an institution listed in Schedule 1 for at least 180 days

3. Correspondence regarding Schedule 1 (inclusion of institutions)

4. Correspondence regarding “boarding out”/foster care

The time period for this request is 12 January 2021 to 26 May 2021 (conclusion of the IDC
process).

I received a response to to the FOI requests on 12 December. A deposit in support of expected fees to be charged was refunded. Virtually all of the substantive documents were refused under Sec 28 (Meetings of Government), Sec 29 (Deliberations of FOI Bodies) and Sec 31 (1)(a) (Legal Professional Privilege. The schedules for both FOI’s are included below:

FOI 0142 Schedule:

(5th September 2022) Email: Updated observations and instructions DCEDIY to DCEDIY + 2 Attachments: (1) 20220905- Outstanding Instructions on Payment Scheme Bill, (2)MBIBill12Aug22LMG

Refuse Section 29: Deliberations of FOI bodies

2. (5th September 2022) Email: RE: MBI Bill (File 2022/1230) DCEDIY to OPC + 2 Attachments: (1) 20220905- Outstanding Instructions on Payment Scheme Bill, (2)MBIBill12Aug22LMG

Refuse Section 29: Deliberations of FOI bodies

3. (13th September 2022) Email: Background Policy Papers DCEDIY to OPC + 5 Attachments: (1) 20220905_Final-Policy-position-on- penalties_for_offences; (2) 20220905-Final_Policy-and-
operational-approach-Double-Recovery; (3) 20220905-Final-
Policy-position-on-assessment-of-affidavits-statutory-
declarations; (4) 20220905-Final-Policy-position-on-Pelletstown-
St-Kevin’s-Institution; (5) 20220905-Final-Policy-position-on-the-
treatment-of-temporary-absences

Refuse Section 29: Deliberations of FOI bodies

4. (13th September 2022) Email: RE: Background Policy Papers DCEDIY to OPC + 2 Attachments: (1) 20220905- Outstanding Instructions on Payment Scheme Bill; (2) 20221209_Additional_Instruction_OPC_Temporary_Absences

Refuse Section 29: Deliberations of FOI bodies

5. (15th September 2022) Email: Further updates on instructions to OPC for MBIPS Bill DCEDIY to DCEDIY RRS Unit + Attachment: 20221209_Additional_Instruction_OPC_Temporary_Absences

Refuse Section 29: Deliberations of FOI bodies

6. (27th September 2022) Email: Draft RIA and JOC Recommendations DCEDIY to DCEDIY + 2 Attachments: (1)20220920 JCCEDIY PLS Recommendations
table on MBIPS Bill (2) 20220815_Draft_RIA_MBIPS_Bill_ Update

Refuse Section 28: Meetings of Government

7. (28th September 2022) Email: RE: Mother and Baby Institutions Payment Scheme Bill 2022 OPC to DCEDIY

Refuse Section 29: Deliberations of FOI bodies

8. (30th September 2022) Email: Submission DCYA 00525-22 “Memo for Government and Draft eSubmissions DCEDIY to DCEDIY + 4 attachments: (1) MFG on Payment Scheme Bill_eSubmission, (2) JOCDEDIY_PLS_recommendations_on_MBIPS_Bill, (3) RIA_MBIPS_Bill, (4) MOTHER AND BABY INSTITUTIONS PAYMENT SCHEME BILL 2022

Refuse Section 28: Meetings of Government

FOI 0144 Schedule of Records

Schedule of Records for_ Conall Ó Fatharta_: Summary of Decision Making

(19/01/2021) IDG RRS Terms of Reference – Grant
(04/02/2021) IDG proposed approach to work – Grant
(24/02/2021) Correspondence: Invitation to members of IDG re. meeting – Grant
(24/02/2021) Draft discussion paper on Scope

Refused: Section 29. (1) Deliberations of FOI bodies &
Section 31(1)(a): Legal Professional Privilege

5. (25/02/2021) RRS IDG Second meeting minutes

Available online: https://assets.gov.ie/206088/ba6a0cd9-041c-4c09-b8e4-a1b6cdba5317.pdfhttps://assets.gov.ie/204592/4414655a-2caa-4d63-bb62-b8d1fb929485.pdf

6. (25/02/2021) RRS IDG Draft Chapter 1

Refused: Section 29. (1) Deliberations of FOI bodies

7. (03/03/2021) Correspondence: DPER officials to DCEDIY officials

Refused: Section 29. (1) Deliberations of FOI bodies

8. (17 04/03/2021) Working Paper on Mother and Baby Homes Redress Scheme and Recommendation of Commission

Refused: Section 29. (1) Deliberations of FOI bodies & Section 31(1)(a): Legal Professional Privilege

9. (10/03/2021) Correspondence: Launch of Restorative Recognition Scheme
Consultation

Grant

10. (10/03/2021) Call for Submissions on a Restorative Recognition Scheme
for the Former Residents of the Mother and Baby Homes and County
Homes

Grant

11 . (09/04/2021) Correspondence: DPER officials to DCEDIY officials

Refused: Section 29. (1) Deliberations of FOI bodies

12. (09/04/2021) Correspondence: DPER officials to DCEDIY officials

Refused: Section 29. (1) Deliberations of FOI bodies

13. (24/03/2021) IDG Draft Report chapter 1-3

Refused: Section 29. (1) Deliberations of FOI bodies

14. (20/04/2021) Note on IHREC Advisory Paper

Refused: Section 29. (1) Deliberations of FOI bodies

15. (26/04/2021) Draft Scoping Paper on Enhanced Medical Cards

Refused: Section 29. (1) Deliberations of FOI bodies

16. (28/04/2021) Discussion paper on Scheme Design

Refused: Section 29. (1) Deliberations of FOI bodies

17. (29/04/2021) Options paper on Payment Design

Refused: Section 29. (1) Deliberations of FOI bodies

18. (10/05/2021) Correspondence from officials in DPER to officials in DCEDIY

Refused: Section 29. (1) Deliberations of FOI bodies

19. (17/05/2021) A Consultation with Survivors of Mother and Baby homes and County homes OAK final report

Available online:
https://assets.gov.ie/204592/4414655a-2caa-4d63-bb62-b8d1fb929485.pdf

20. (24/05/2021) IDG Draft Report Chapter 2

Refused: Section 29. (1) Deliberations of FOI bodies

21. (24/05/2021) IDG Draft Report Chapter 3

Refused: Section 29. (1) Deliberations of FOI bodies

22. (26/05/2021) IDG Draft Report Chapter 5

Refused: Section 29. (1) Deliberations of FOI bodies

I appealed the above decisions on 24 December 2022. I received the result of the appeal on 19 January, 2023 which was to uphold the original decision. I reproduce the wording of that decision below.

FOI 0142 APPEAL DECISION:

Dear Mr Ó Fátharta,
I refer to the appeal which you made under the Freedom of Information Acts 2014.
I am a more senior member of staff in DCEDIY than the original decision-maker in this case. I have decided today, 19 January, to affirm the original decision made in relation to your request. This review of your request is an entirely new and separate decision, and is explained as such below.
Your original request, sought access to the following records:
All records concerning the following matters in relation to the preparation of the Mother and Baby Institutions Payment Scheme Bill 2022:

the requirement for eligibility for a general payment: that a person be resident as a
child in a relevant institution for at least 180 days.
the requirement for eligibility for a medical card: that a person who was resident as
a mother or a child, or both, in an institution listed in Schedule 1 for at least 180 days
Correspondence regarding Schedule 1 (inclusion of institutions)
Correspondence regarding “boarding out”/foster care
The time period for this request is 1st November 2021 to 30th September 2022 In arriving at this decision I have had regard to the original request the records which were located as part of that request and the appeal letter which you submitted by email in this regard.
I enclose for your attention a schedule of these records, this schedule summaries my findings and refers you to the latter part of this letter for a further explanation.

Having regard to the aforementioned I have decided to affirm the decision made by the original decision maker in relation to your request and I have enclosed again for your attention a copy of the relevant sections of the Act which this decision relies on.

I have taken considerable time to consider the points raised in your appeal request and I deal with each of them in turn below quoting the point raised by you in italics and my response below it.

1). The request related to records relating to the preparation of the Mother and Baby Institutions Payment Scheme Bill 2022. That Bill was approved by Government and was published on 17 October. While the legislation is moving through the Dail, the request sought records in relation to the preparation of the Bill – a process that ceased when the Bill was approved by the Government and published. Therefore, I argue that this does not apply.

I do not share your view that the preparation of the Mother and Baby Institution Payment Scheme Bill concluded when the Government approved the Bill. Government approval of the Bill, while a critical staging post, is one step and the commencement of a process whereby the Bill moves through a number of further important stages to enactment. There is ongoing deliberation and amendments occurring throughout this process until the Bill becomes law. Therefore, it is my opinion that the deliberative process in relation to the Bill is not ceased, it is ongoing and will continue until the Bill becomes law.

2) The public interest test is the strongest such test in the Act – it must be shown that the granting of the request would be contrary to the public interest. Therefore the onus is on the Department to show why the release of these records is contrary to the public interest.
The decision maker stated that “releasing these documents at this time may create confusion in the public domain and would not benefit survivors”. The OIC is definitive on this issue. The Department is obliged to outline how this conclusion has been reached and it is also clear that it is open to a public body to provide explanatory material when they release records.

2. It is my view that the decision-maker outlined valid reasons why he felt that releasing the records would be contrary to the public interest. The points you raise centre around the need to demonstrate how this may be so, grounded in OIC guidance publicly available on their website. Therefore, I will endeavor to explain the ‘how’ below.

Premature release of policy deliberations into the public domain, carries significant risk to policy decision-making processes, particularly in areas that are highly contentious. The Mother and Baby Institutions history is a traumatic one for survivors. Redress is always a contentious issue no matter what the arena. This Payment Scheme is long-awaited and is a particular focal point – and often flashpoint – for many with an interest in the broader topic. The Government is obliged to take account of a range of considerations in developing this Scheme and unfortunately some of these considerations may seem unpalatable or even cold to survivors individually and their
families in the context of their own unique and distressing experience. The
Government and officials developing the Scheme must be given the opportunity to undertake difficult discussions within a process that allows for the release of
information at an appropriate time. It is my view that this is not while the deliberative process is still very much ongoing and the Bill is still being debated in the Houses.

Were policy deliberations to be made public now, before the Bill becomes law, it is likely that the dialogue that would emerge could have significant negative
consequences, as assorted commentators consider, potentially out of context, the information released. The consequence of this for survivors and the public is that it would significantly divert the attention of the officials working to deliver the Scheme away from this important work and into a process of responding to the inevitable and voluminous parliamentary and media questions that would arise, with no benefit arising from this for survivors or the public who await this Scheme. The Bill has undergone pre-legislative scrutiny, benefitted from feedback from the Joint Oireachtas Committee on Children, Equality, Disability, Integration and Youth and has been debated in the Dáil. There will be further opportunities for debate as it continues its passage through the Houses, and any information and clarification needed will be
provided by the Minister at each point in this process.

From our engagement activities over the years, it is clear that whilst some survivors and prospective applicants to the Scheme would wish to share or publicise their experiences, many more want no more talking, only action. We have consistently noted an increase in calls to our helpline, sometimes in magnitudes of several hundreds of percent each time we issue a press release about the Scheme or if there is a particular episode of media focus on it. While much of this information is very factual and routine, it nevertheless still serves to reopen wounds for many. Frequently, callers display real distress in those calls and our operators report ongoing trauma endured every time the profile of the Scheme is raised. We most genuinely do not to wish cause further potential trauma to survivors by releasing information prematurely on what are delicate and difficult discussions on complex matters.

This is why overall I consider it to be contrary to the public interest for our
deliberations around the scheme parameters to be revealed at this point in the
process while the Scheme and the enabling legislation are still very much in
development. I do not believe that it will assist survivors or indeed the public
generally. In fact, I consider it may only serve to cause unnecessary distress to an already vulnerable group.

3) The schedule indicates there is a memo for government in one record and this is exempt. However, Sec 28 also appears to have been applied to internal
emails/discussions and it’s difficult to see how those are exempt under this section. In addition, the decision maker has not specified which part of Section 28 he is reliant on. There are three sections and they are all quite different and, I would argue that some certainly do not apply i.e. that the record was created solely for use by a minister at a meeting of government (literally taken to Cabinet for that meeting). Given the lack of clarity and thoroughness around the use of this Section, I feel it needs to be revisited.

Your query here relates to record 6. It consists of an email introducing two attached papers which are to form Appendix 3 of the Government Memo. I am satisfied that Section 28. (1) (a) applies to the email of introduction. Because the attachments are materials not developed specifically for the purpose of the Government Memo and meeting, they should not have been refused under Section 28. Having reviewed the records it is my view that one of the attachments should have been refused under Section 29 (1), Deliberations of FOI Bodies, and I have amended the Schedule of Records accordingly. The second attachment which is the Regulatory Impact Assessment for the Scheme is now publically available and published to our website here gov.ie – Payment Scheme (www.gov.ie).

I hope that this commentary explains well my rationale to affirm the original decision.

Should you not be happy with this decision, you may make an ‘application for review’ of this decision to the Information Commissioner no later than 6 months from the date of this notification. There is a fee of €50. Payment should be made by way of bank draft, money order, postal order or personal cheque: crossed and made payable to the ‘Office of the Information Commissioner’.

FOI0144 APPEAL DECISION:

Dear Mr Ó Fátharta,
I refer to the appeal which you made under the Freedom of Information Acts 2014.

I am a more senior member of staff in DCEDIY than the original decision-maker in this case. I have decided today, 19 January, to affirm the original decision made in relation to your request. This review of your request is an entirely new and separate decision, and is explained as such below.

Your original request, sought access to the following records:
All records/communications to, from, and created by the Interdepartmental Group on the following matters in relation to the development of the Mother and Baby Institutions Payment Scheme.

the requirement for eligibility for a general payment that a person be resident as a
child in a relevant institution for at least 180 days.
the requirement for eligibility for a medical card: that a person who was resident as
a mother or a child, or both, in an institution listed in Schedule 1 for at least 180 days
Correspondence regarding Schedule 1 (inclusion of institutions)
Correspondence regarding “boarding out”/foster care
The time period for this request was 12 January 2021 to 26 May 2021 (conclusion of
the IDG process).

In arriving at this decision I have had regard to the original request the records which were located as part of that request and the appeal letter which you submitted by email in this regard.

I enclose for your attention a schedule of these records, this schedule summaries my findings and refers you to the latter part of this letter for a further explanation. Having regard to the aforementioned I have decided to affirm the decision made by the original decision maker in relation to your request and I have enclosed again for your attention a copy of the relevant sections of the Act which this decision relies on.

I have taken considerable time to consider the points raised in your appeal request and I deal with each of them in turn below quoting the point raised by you in italics and my response below it

Section 29: (a) The request regarded communications/records to, from, and created by the Interdepartmental Group on a set list of matters in relation to the development of the Mother and Baby Institutions Payment Scheme. I understand that the legislation setting up the Scheme is going through the Dáil. However, the request is seeking records relating to the IDG. Its last meetings date from May 2021 so it would seem to me that deliberative process does not apply here as its work has ceased. Could the Department, therefore, explain what deliberative process is still underway in relation to
my request?

It is the case that the Interdepartmental Group (IDG) is no longer in place and
therefore the point you raise is valid in that respect. However, the IDG was established to provide recommendations to Government around the development of the Payment Scheme, a process that will conclude with the launch of the Scheme later this year, post legislation enactment and administrative set-up. Whilst the report of the Group has been published, its deliberations have not been made public whilst the Scheme is still being designed. This design process includes the Bill, Commencement Orders,
Regulations, Guidelines and Standard Operating Procedures. It is my view that the wider IDG deliberations remain a central part of the ongoing deliberative process of DCEDIY, an FOI body, in the context of the continuing development of the Payment Scheme.

b) The public interest test is the strongest such test in the Act – it must be shown that the granting of the request would be contrary to the public interest. Therefore the onus is on the Department to show why the release of these records is contrary to the public interest. The decision maker stated that “releasing these documents at this time may create confusion in the public domain and would not benefit survivors”. The OIC is definitive on this issue. The Department is obliged to outline how this conclusion has been reached and it is also clear that it is open to a public body to provide explanatory material when they release records.

It is my view that the decision-maker outlined valid reasons why she felt that releasing the records would be contrary to the public interest. The points you raise centre around the need to demonstrate how this may be so, grounded in OIC guidance publicly available on their website. Therefore, I will endeavor to explain the ‘how’ below.

Premature release of policy deliberations into the public domain, carries significant risk to policy decision-making processes, particularly in areas that are highly contentious. The Mother and Baby Institutions history is a traumatic one for survivors. Redress is always a contentious issue no matter what the arena. This Payment Scheme is long- awaited and is a particular focal point – and often flashpoint – for many with an interest in the broader topic. The Government is obliged to take account of a range of considerations in developing this Scheme and unfortunately some of these considerations may seem unpalatable or even cold to survivors individually and their
families in the context of their own unique and distressing experience. The
Government and officials developing the Scheme must be given the opportunity to undertake difficult discussions within a process that allows for the release of
information at an appropriate time. It is my view that this is not while the deliberative process is still very much ongoing and the Bill is still being debated in the Houses.

From our engagement activities over the years, it is clear that whilst some survivors and prospective applicants to the Scheme would wish to share or publicise their experiences, many more want no more talking, only action. We have consistently noted an increase in calls to our helpline, sometimes in magnitudes of several hundreds of percent each time we issue a press release about the Scheme or if there is a particular episode of media focus on it. While much of this information is very factual and routine, it nevertheless still serves to reopen wounds for many. Frequently, callers display real distress in those calls and our operators report ongoing trauma endured every time the profile of the Scheme is raised. We most genuinely do not to wish cause further potential trauma to survivors by releasing information prematurely on what
are delicate and difficult discussions on complex matters.

Section 31. The single Section 31 exemption of material that is legally privileged. The record is a ‘Working Paper on Mother and Baby Homes Redress Scheme and
Recommendation of Commission’. On this basis, the record does not appear to be legal advice or be legally privileged in full. I would argue that, if it contains some legally privileged advice, these may be exempt, but that the remainder of the document is not.

This record (No. 8) was recorded in the Schedule as being refused under both Section 31 and Section 29. Having reviewed the record, I consider this refusal to be in order. I am of the view that the sections of the document not covered by professional legal privilege should be withheld as set out under section 29(1).
I hope that this commentary explains well my rationale to affirm the original decision.

You may make an ‘application for review’ of this decision to the Information
Commissioner no later than 6 months from the date of this notification. There is a fee of €50. Payment should be made by way of bank draft, money order, postal order or personal cheque: crossed and made payable to the ‘Office of the Information Commissioner’.

‘Listening’ is not the same as ‘hearing’ survivors of mother and baby homes

4 September, 2022

This Government is very fond of telling us that it is “listening” to survivors of mother and baby institutions. We are constantly told about how much it has done for them and will continue to do for them.

Listening and hearing, of course, are very different things.

Doublethink, as coined by George Orwell, is the act of simultaneously accepting two contradictory beliefs as correct. Irish governments tend to be good at it.

Even still, it was quite something this week to see Taoiseach Micheál Martin and Children’s Minister Roderic O’Gorman tell survivors, on the one hand, just how much the Government is “listening” and how much it has done for them while, at the same time, confirming it was abandoning a planned independent review of the commission that survivors had asked for.

Survivors, campaigners, and legal experts had called for an independent examination of the testimony given by hundreds of survivors to the Commission’s Confidential Committee after it emerged that the Commission had destroyed the audio recordings of hundreds of interviews with survivors without taking verbatim transcripts.

A member of the commission of investigation later admitted these testimonies had been given little or no weight in its final conclusions as they were provided in private and not under oath. The commission separately heard from a smaller number of people under oath.

This was clear from the fact that many of the principal findings around abuse, coercion, and consent of women to the adoption of their children were contradicted in the most vehement terms by survivors of the mother and baby institution system.

Many survivors said their testimony had been misrepresented and misquoted. Examples of this were revealed by this newspaper and in a searing piece by former head of special projects at the National Archives, Catriona Crowe in the Dublin Review.

The anger of survivors and the huge public outrage forced the Government to act.

Well, to announce something. On June 13 of last year, Children’s Minister Roderic O’Gorman revealed plans to bring a proposal to Cabinet to appoint an international human rights expert to re-examine the written testimony given to the commission.

We now know that a “draft memo” to appoint an international expert was drawn up by Mr O’Gorman the following day but did not progress any further.

In fact, it is never mentioned again for the remainder of 2021. It was shelved almost as soon as it was announced. No one told survivors.

Public anger and the media glare moved onto the next issue and it was allowed to die on the vine. Quietly.

Instead, survivors found out when it was revealed by the Irish Examiner. It seems that “listening” to survivors doesn’t extend to telling them that the only planned investigation into how the Mother and Baby Homes Commission gathered their testimony is being abandoned.

Mr O’Gorman’s defence of this decision is worth unpacking.

In a statement provided to this newspaper, he said that having “listened” to the “concerns and disappointment” of survivors, he was aware that the report of the Confidential Committee “did not live up to their expectations”.

However, he believes that a new initiative to support survivors to tell their “personal story” as part of the planned National Records and Memorial Centre (NRMC) so that it can be “formally recorded and accepted as part of the official record” is the best way forward. In a separate media interview, he said this had been one of the “key asks” of survivors.

The minister “listened” but, in the end, decided that another vehicle to record testimony is for the best.

In short, instead of the promised review of how the commission gathered and handled testimony, survivors are being asked — again — to give evidence to a department-led “initiative” that has explicitly labelled and underplayed their testimony as “personal stories”.

They have already provided testimony, at length, to the commission of inquiry. Indeed, to a commission of inquiry that was found by the High Court to have breached witnesses’ statutory rights by failing to provide a draft copy of its final report prior to publication.

Mr O’Gorman has now said it is not possible to “change the commission report” and have testimonies appended to it.

However, as part of the State’s settlement with the eight survivors who went to the High Court, Minister O’Gorman agreed to publish the High Court declaration alongside the commission’s final report on the Government website and deposit it for permanent preservation in the Oireachtas Library alongside the commission’s report.

It also agreed to list online and in the Oireachtas Library all paragraphs in the commission’s report which the survivors’ High Court actions claimed did not accurately reflect their testimony.

So, the report can be changed. This is a question of political will, not legality.

Why can’t the testimonies gathered by the Confidential Committee be fully transcribed and compared against the Confidential Committee report? Why can’t misrepresentations and inaccuracies be corrected? Is it not possible to have survivors have their testimonies included in the NRMC and also have the planned review? Survivors asked for an independent review and it is warranted.

There are significant issues with the final report of the commission that deserve to be examined.

When the inquiry was set up in 2015, two bodies were established to gather testimony from survivors — the Confidential Committee and the Investigative Committee.

The Confidential Committee heard from 550 survivors but had no judicial powers. The Investigative Committee, which had judicial powers, took testimony from just 64 survivors.

We know that the testimony given by women to the Confidential Committee directly contradicts many of the commission’s main findings due to the fact that it was given little evidential weight.

For example, the Commission found “no evidence” that women were forced to enter mother and baby institutions by church or State authorities; “no evidence” of the type of abuse that occurred in industrial schools; “ very little evidence” of physical abuse; “no evidence” that children were injured in vaccine trials; “no evidence” that women did not fully consent to the adoption of their children and “no evidence” of discrimination against mixed race or disabled children in adoption practices.

In its report, the Confidential Committee states that its terms of reference were to “produce a report of a general nature on the experiences of the single women and children”.

However, the terms of reference as set out in the Statutory Instrument that established the commission in 2015 state it was to “produce a report of a general nature on the experiences of the single women and children which the Commission may, to the extent it considers appropriate, rely upon to inform the investigations set out in Article 1”.

Curiously, this latter portion, stating that the commission could rely on the testimony to inform its investigations is omitted in the terms of reference outlined in the Confidential Committee report.

Legal sources have pointed out that the terms of reference show clearly that the Oireachtas did not intend that evidence given to the Confidential Committee would carry little or no weight when it came to producing the commission’s general findings.

Perhaps they found this testimony not to be useful. If so, an investigation would find out why.

An investigation would also give answers as to why so many survivors spoke to the Confidential Committee and so few to the Investigative Committee. As has been outlined by survivors and campaigners, the opportunity to testify before the investigative arm was not widely advertised.

Neither were witnesses informed that evidence given to the Confidential Committee would not influence the main findings of the report in any substantive fashion.

If the concern is that evidence given to the Confidential Committee was not given under oath, could this not have been addressed earlier and survivors directed to the investigative arm of the Commission?

These are just some of the issues that survivors want answers to. They are tired of being “listened” to. They want to be heard.

Government abandons independent review of mother and baby home testimony

29 August, 2022

A promised independent review of testimony given by mother and baby home survivors has now been abandoned by the Government.

In June 2021, Children’s Minister Roderic O’Gorman announced plans to bring proposals to Cabinet to appoint an international human rights expert to re-examine the written testimony given to the Mother and Baby Homes Commission, and report back this year.

The commitment came after survivors and academics raised concerns over how testimony provided to the confidential committee was handled.

Campaigners had called for an independent examination of the testimony given by hundreds of survivors after a member of the commission of investigation admitted these personal stories had been discounted because they were provided in private and not under oath.

While a draft memo to appoint an international expert was drawn up by Mr O’Gorman, it did not progress any further.

A spokesperson for Mr O’Gorman has confirmed to the Irish Examiner that he no longer plans to carry out this independent review.

A Freedom of Information (FoI) request to the Department of Children reveals that the review never progressed beyond a “draft outline” of a proposed memorandum for Government on June 14 last year.

The schedule for the refused FoI, which requested all records relating to the establishment of the independent review between June and December 2021, shows just eight records for this period.

On June 14, an email thread was started between “Advisor, Sec Gen and PO re draft outline of proposed Memo for Government”. This thread is described as “an early draft of a document created for the purpose of enabling the Minister to bring proposals to Government for consideration”. It is not mentioned again for the remainder of 2021.

The remaining documents concern a speaking note prepared for Taoiseach Micheál Martin on June 14, some email threads on “policy approaches to ongoing deliberations by the Minister on potential policy approaches on which a final decision has not been made” on December 7, and a response to a media query made by the Irish Examiner on December 8.

Some 500 survivors gave evidence to the confidential committee. Commission member Professor Mary Daly later admitted the testimony of mothers and those born in institutions was not given the same weight as other information, as anything contained in the main report of the commission had to “meet robust legal standards of evidence”.

The commission heard separately from a smaller number of people under oath.

A spokesperson for the Department of Children said Mr O’Gorman had listened to the “concerns and disappointment” of some survivors when the report of the confidential committee did not live up to expectation and has acknowledged the “deep hurt” which this has caused.

“Although care was taken in the design of the confidential committee component to try and allow the truth as survivors wanted it told to emerge, the minister recognises that this has not happened for very many of them.

“The minister has been keen to address these concerns and had previously indicated the possibility of a review of the testimony offered to the confidential committee.

“Having considered the matter, the minister believes that a new initiative to support survivors to tell their personal story, so that it can be formally recorded and accepted as part of the official record, provides the best opportunity for responding to the concerns of survivors in a meaningful way.”

The spokesperson added that survivors would be able to come forward to tell their personal story or have the testimony of the confidential committee used in the planned National Centre for Research and Remembrance.

This centre is due to be located on the site of the former Magdalene laundry on Sean McDermott St, Dublin City.

Narrative of report on mother and baby homes needs to be challenged

16 January, 2021

The word “narrative” was used a lot this past week. How it’s set, controlled, and shaped.

Last Sunday, the nation awoke to the inevitable political leaking of the main findings of the long-awaited final report of the Mother and Baby Homes Commission of Investigation. Along with the expected headline figures around infant mortality, the media coverage outlined the commission’s view that the State and Church did not force women into the institutions.

In its view, responsibility for the “harsh” treatment women suffered in mother and baby homes rested “with the fathers of their children and their own immediate families”.

“It was supported by, contributed to, and condoned by, the institutions of the State and the Churches. However, it must be acknowledged that the institutions under investigation provided a refuge — a harsh refuge in some cases — when the families provided no refuge at all,” states the executive summary.

In the Dáil that same day, Taoiseach Micheál Martin echoed this view.

The reaction was visceral. The women had heard this before. Often whispered behind their backs. Having lived it, the women did not accept this view of how power operated in Ireland. They were not alone.

The Government’s special rapporteur on child protection, Professor Conor O’Mahony, agreed, pointing out that “a society does not collectively decide to banish its daughters and grandchildren to incarceration, mistreatment, exile and even death unless powerful forces [in this case, the Church and the State] urge and facilitate such action”.

“From a human rights law perspective: once the State knew that the rights of women and children were being violated or at risk of being violated, and failed to take reasonable steps to stop or prevent such violations, State responsibility is engaged,” he said.

The public also agreed. By Wednesday, the Taoiseach’s apology highlighted the State’s culpability more forcefully, pointing out that, as the main funding authority for the institutions, it had the ultimate ability to exert control over these institutions, in addition to its duty of care to protect citizens with a robust regulatory and inspection regime.

“This authority was not exerted and the State’s duty of care was not upheld,” he said. “The State failed you, the mothers and children in these homes.

The women and children who were in these institutions have not waited five years for this report. They have waited decades, generations.

The report runs to thousands of pages. The commission had unprecedented access to records and resources, far beyond that of any academic or media outlet.

Year by year, the names of the babies who died in Bessborough Mother and Baby Home. May they rest in peace.

All narratives are open to challenge. Much has been made already of the basis for the commission’s conclusions, its choice of language and tone, and the discrepancy between the testimony and lived experience of the women and the report’s conclusions.

Whether or not it is the “definitive” account of this period of Irish history, as the Taoiseach claims, is for the survivors themselves, historians, and others to decide. It will take months, not days or weeks.

For that to happen, the era of sealing records and redacting personal records needs to end. We need a redress scheme that does not value cost control over survivor rights, but rather one that embraces those who suffered rather than re-traumatises them.

The only way to get past these issues is to face them head-on, in a transparent manner. As we learned this week, all narratives should be open to challenge and scrutiny, even those of a State inquiry.

Jackie Foley* knows about the difficulties adopted people and natural mothers face accessing their own records. Her case was reported in this newspaper on December 3, 2018.

Jackie spent years gathering a paper trail to prove what happened to her when she found herself in the Bessborough mother and baby home as a pregnant teenager in 1974.

She was just 16 when she signed a consent form to have her son adopted. She didn’t sign her own name. Instead, under instruction from a nun, and in the presence of a solicitor and her mother, she was forced to write a different name — Micheline Power* — a woman who does not exist. Because it was not her own name, she remembered asking how to spell it before she signed the form.

As a result, all of the documentation created in the wake of this act — including her son’s baptism certificate, birth certificate, and indeed the adoption order itself — were created on the basis of these false identities. All of this is documented.

In short, Jackie’s memory is borne out by the records. Her records. Her other overwhelming memory around the day she was told to sign the consent form was fear.

“I was terrified,” she said. “I remember my behind twitching and sticking my knees together to stop my ass twitching.

And that was it. I was put into the car and brought home. I don’t remember anyone saying to me: ‘You’re signing a baby away. You are never going to see your baby again.’ Nobody ever explained anything to me.”

The Supreme Court judgment in G v An Bord Uchtála is a key ruling on what constitutes a valid consent. It states that “a consent motivated by fear, stress, or anxiety … does not constitute a valid consent”.

In 2017, Tusla staff handling Jackie’s case were instructed in emails not to refer to situations like hers as “illegal”, but instead as “possible illegal registrations”.

Reference is made to having to “hold our powder” because “that stuff is FOI’able … and it could be used against us if someone takes a case”.

A stone Teddy wiping a tear from its eye is placed near a remembrance plaque and sculpture dedicated to babies who died at Bessborough. Picture: Larry Cummins

In its recommendations, the commission noted that criticism of how Tusla — by the people who engage its services to access their personal information — was “unfair and misplaced”.

Jackie’s experience is noted in the report of the confidential committee of the Mother and Baby Homes Commission.

It states: “A witness had to ask for assistance, when she was unable to spell the Christian name, when she was ‘told’ to write it on the document she was given to sign.

“Having become pregnant at the age of 15, she told the committee that her baby was registered for adoption under false names, both Christian and surname, her name also inserted incorrectly, none having any connection to the real names. These ‘made-up names’ were used, she was told at the time, so that she could not be traceable as having had a child; a subterfuge, she said, that had been at the behest of her mother and aunt.

“She returned to the home in 2004 in search of information, to be told that ‘no baby boy’ had been born in the home on that date.

When she mentioned to the two nuns who were talking to her about having had to sign the false names on the documents to facilitate her son’s adoption, the response was that ‘they didn’t know what she was talking about,’ and ‘bundled her out the door’.

“This witness concluded this section of her evidence by saying to the committee: ‘There was a crime committed by the nuns because they registered me and my baby in another name’, adding that she had also reported the matter to the Gardaí.”

A statue in the burial grounds of deceased nuns, beside the folly in Bessborough. The location of child graves at the site has never been established.

In the main report, the commission concluded that it “has not seen evidence of illegal registration of births which occurred in the mother and baby homes and county homes under investigation. Of course it is not possible to say that this did not occur, but neither the institutional records nor the Department of Health records reveal any such evidence”.

Jackie said she spoke with the committee for around two hours, but that it did not ask to see or copy any of the records she had with her in two boxes.

If it had, the commission’s narrative may have looked a little different.

* This name was changed to protect the identities of those involved.

2019 anonymous letter from DCYA civil servant

In April 2019, when working as a reporter for the Irish Examiner, I received a letter from someone inside the DCYA about what this person perceived as the attitudes towards the issues around the Mother and Baby Homes scandal. In light of the events of this past week, I thought people might find it instructive.

This is some of what the letter had to say (I have left out a section where I was offered some suggestions):

Dear Conall

Congratulations on your tenacious work on Tuam etc.

The lamentable view from within the DCYA is –

sure, they’d have died in the tenements anyway
they’re only after redress
(grandiosely) we’re the department of the future not the past: held at the most senior level
Tuam is like the Word Trade Centre (seriously); too costly & complex to investigate. On the same theme; you’d be digging up half the country

It is interesting the extent to which civil servants (who had no involvement in the original wrongdoing) default to an extreme defensiveness and compound and aggravate it. Same sentiments apply to falsified birth certs and proper disclosure of records.

The Minister is well-meaning but credulous and inexperienced. If left to her officials progress will be made in the most grudging and glacial way possible, if at all.

Please do not circulate this document. It is intended for you alone – to give you some sense of the wall of cynicism you are up against (contents can, of course, be shared, if of any use.

Forgive anonymity but needs must.

Good luck – we are running out of road. You cannot be faulted but momentum is draining.

And, again, well done.

Majority of abuse survivors express concern over plan to seal records

A majority of abuse survivors have expressed concern over government plans to seal millions of child abuse records for 75 years.

That’s according to a study prepared for the Department of Education and Skills and based on a series of more than 30 consultations with over 100 survivors of abuse in residential institutions.

The controversial Retention of Records Bill 2019 will see records from the Commission to Inquire into Child Abuse (Cica), the Residential Institutions Redress Board, and the Residential Institutions Redress Review Committee placed in the National Archives of Ireland (NAI) and sealed for a minimum of 75 years, in what has been labelled “a dangerous and unnecessary precedent”.

The study found most of the survivors who spoke to the independent facilitators leading the study had concerns about the legislation, with a smaller number expressing support for it.

“The planned legislation which will see records from the Commission to Inquire into Child Abuse and the Residential Institutions Redress Board put into the National Archives of Ireland and sealed for over 75 years was seen by some as a violation of their rights to their own stories, by others as excessive, while a smaller number who spoke about it expressed relief,” said the report.

In June, the Irish Examiner revealed that just four survivors of child abuse responded to a 2015 Department of Education call for submissions on the legislation.

Documents released under Freedom of Information show that just four survivors contacted the department since 2015 expressing views on the legislation. Two were against the sealing of records, while a third felt the records should be permanently sealed. The opinions of the fourth survivor were redacted.

Former head of special projects at the NAI, Caitríona Crowe, has emerged as one of the most vocal critics of the proposed legislation, saying the Government’s decision to “override the 1986 National Archives Act” sets “a dangerous and unnecessary precedent”.

The provisions of the National Archives Act have proved perfectly adequate, over more than 30 years, to protect privacy and deal with sensitive subject matter.

“There is no reasonable argument for setting them aside in the case of these particular records, which will be extraordinary sources for scholars in the years ahead. The department’s action opens the gate for future restricted access to any records the State may not wish citizens to see.”

In May, this paper also revealed that the NAI advised the department in April of last year that there was no need for the legislation.

It said that records from the Cica are already covered by the National Archives Act, and that the latter two bodies could be brought under its remit by simply adding them to the schedule of the act. This would mean the records would be open to inspection after 30 years, subject to some exemptions.

However, in response, Aongus Ó hAonghusa, assistant principal officer of the residential institutions redress unit at the Department of Education, stressed that the need to seal records for 75 years was “an essential component of the whole retention project” and that to “leave open even a remote possibility of release”, under the National Archives Act, “could jeopardise the strategy, by making it potentially more vulnerable to legal challenge”.

Call for abuse records to be anonymised, not sealed

Thousands of testimonies relating to child abuse in institutions and related records should be redacted and anonymised, instead of being sealed for 75 years.

That is according to the former head of special projects at the National Archives of Ireland, Catriona Crowe, who is one of the most vocal critics of the proposed Retention of Records Bill 2019.

The planned legislation will see records from the Commission to Inquire into Child Abuse, the Residential Institutions Redress Board, and Residential Institutions Redress Review Committee put in the National Archives of Ireland and sealed for a minimum of 75 years.

The Department of Education said consideration was given to “alternative approaches” to sealing the records, including anonymisation and redaction. However, this approach was ruled out over concerns that such a process “could rob them of part of their historical significance”.

Ms Crowe said anonymisation and redaction “in no way detracts from the historical significance of the records”, as information is not permanently removed.

“In the case of anonymisation, a database is made of the full information contained in the records, and a copy created with certain fields with personal identifying information removed,” she said.

“In the case of redaction, I was able to successfully redact the administrative files relating to children adopted in the US between 1948 and 1974, by photocopying pages with personal identifying information, Tipp-Exing out that information, re-photocopying the copy, and replacing that page on the file. The originals are stored elsewhere, pending their eventual reunion with their files. This process, tedious though it is, could give everyone access to the administrative files of the relevant bodies after 30 years, in accordance with the National Archives Act.”

The Department of Education has said the three bodies which come under the new legislation all operate on the basis of strict confidentiality and it is not the intention that their records would be retained. It also said the legal advice available to Government is that a lengthy sealing period is required to ensure the move to the retention of the records is legally sustainable.

Irish Council for Civil Liberties executive director Liam Herrick said there “is no justifiable reason for this legislation” and “concerns that allowing public access to archives violates privacy rights can be addressed by applying existing standards that regulate access.

Anonymising abuse records would involve “considerable expense” and “significant practical difficulties” – National Archives Advisory council told

Anonymising records and contacting institutional abuse survivors instead of sealing records for 75 years would involve “considerable expense” and “significant practical difficulties”.

That was the view of the Government in an April 2018 letter seeking the views of the National Archives Advisory Council (NAAC) on its controversial Retention of Records Bill.

The legislation will see records from the Commission to Inquire into Child Abuse, Residential Institutions Redress Board, and Residential Institutions Redress Review Committee placed in the National Archives and sealed for a minimum of 75 years.

In the letter to NAAC chairman Mr Justice John Hedig an, then education minister Richard Bruton outlined that the joint Oireachtas committee on education had made a number of recommendations as part of the scrutiny of the legislation.

The recommendations included:
That further consideration should be given to the extent to which a legitimate expectation of confidentiality can be reconciled with opening the records for public inspection;
The potential “chill effect” on the work of future bodies seeking disclosures from the public and offering guarantees of confidentiality;
Whether the records should be anonymised or, instead, that survivors be contacted to ascertain whether or not they wanted their confidential testimonies and information to be made public.

Mr Bruton said: “On the question of anonymising records or contacting survivors, the view taken at the time was that significant practical difficulties could arise in terms of contacting some 15, 000 former residents.

There could also be legal difficulty in writing to former residents as it could be seen as encroaching on their right to privacy.

“There would also be considerable expense in anonymising the records. It was considered that the question of whether particular records could or should be anonymised at the point of release in 75 years is one that was best left until that time and could, if required, be addressed by way of Ministerial regulations,” said the letter.

Mr Bruton said that it was because of concerns about “the potential interference with individual rights and the claims of legitimate expectation to absolute confidentiality” that the legislation would seal the records for 75 years “by which time it is expected that those who engaged with the redress bodies [will] be deceased”.

It was reported earlier this month that, in response, Mr Justice Hedigan advised Mr Bruton that, in relation to the period of time that the records should be sealed, “the Council felt consideration ought to be given to opting for a period of 100 years as this is generally regarded as a two-generation gap”.

The NAAC also stressed that there is “a very strong public interest” in not destroying the records “due to their historical value”.

Government told as far back as 2013 of possibility to seal child abuse records for longer than 30 years

An advisory council to the National Archives told the Government as far back as 2013 that it was possible to seal child abuse records for longer than 30 years.

The letter was sent by then chairman of the National Archives Advisory Council (NAAC) Mr Justice Peter Charleton to then education minister Ruairí Quinn in response to the Government’s plans for the retention of the records.

The controversial Retention of Records Bill is currently making its way through the Dáil.

It will see records from the Commission to Inquire into Child Abuse (CICA), Residential Institutions Redress Board, and Residential Institutions Redress Review Committee placed in the National Archives and sealed for a minimum of 75 years.

Mr Justice Charleton said that the NAAC shared the Government’s view that the records “should be preserved for historians into the future” and the “forward-looking attitude that prompts it”.

“Normally, archives are released after 30 years. Records such as these may, under legislation, be held for longer. It is only now, for instance, that records of the period 1930-1939 from the security branch of An Garda Síochána have been released for scrutiny.”

“Everyone involved is long dead. A similar timeframe might be envisaged here, or longer. That will be a matter for Ministerial decision,” said the letter.

In July of that year, Mr Quinn responded to Mr Justice Charleton informing him of the Government’s intention to bring forward the legislation to allow for the retention of the records of the three bodies “subject their being sealed for possibly 75 years”.

The Government wrote to the NAAC again last year and advised that anonymising records and contacting institutional abuse survivors instead of sealing records for 75 years would involve “considerable expense” and “significant practical difficulties”.

A study prepared for the Department of Education and Skills based on consultations with over 100 survivors of abuse in residential institutions and published last month revealed that the majority of those interviewed expressed concern about the plans to seal records.

In June, the Irish Examiner revealed that just four survivors of child abuse responded to a 2015 Department of Education call for submissions on the legislation.

Documents released under Freedom of Information show that just four survivors contacted the department since 2015 expressing views on the legislation.

Two were against the sealing of records, while a third felt the records should be permanently sealed. The opinions of the fourth survivor were redacted.

Former head of special projects at the National Archives of Ireland (NAI), Caitríona Crowe, is one of the most vocal critics of the proposed legislation, saying the Government’s decision to “override the 1986 National Archives Act” sets “a dangerous and unnecessary precedent”.

The provisions of the National Archives Act have proved perfectly adequate, over more than 30 years, to protect privacy and deal with sensitive subject matter.

In May, the Irish Examiner also revealed that the NAI advised the Department of Education in April of last year that there was no need for the legislation.

It said that records from the CICA are already covered by the National Archives Act, and that the latter two bodies could be brought under its remit by simply adding them to the schedule of the act. This would mean the records would be open to inspection after 30 years, subject to some exemptions.

The recommendations included: