The HSE expressed repeated concerns that the past actions of Bessborough adoption agency meant it had to be indemnified against any legal action taken by people seeking their records.
The concerns were raised throughout 2009 and 2010, in material released under Freedom of Information Act, as the Sisters of the Sacred Hearts of Jesus and Mary prepared to cease operating Bessborough as an adoption agency and transfer some 15,000-plus files to the HSE.
An undated memo of a meeting the HSE held with the management group from the religious order notes its desire to “manage liability for past Bessboro responsibility and ongoing re their activities as an adoption agency when and if it arises”.
In a letter on February 8, 2010, to solicitors representing the order, childcare manager in the HSE South region, Mike van Aswegen, said the HSE needed this assurance, as it had reason to believe that the past practices of the agency had “not always been exemplary”.
“In your correspondence, you refer to the need for providing an indemnity. I believe that in this case we will need to be provided with this comfort, as we have good reason to believe that the practice from the agency has in the past not always been exemplary,” he wrote.
Another memo from 2010 referenced legal advice that such indemnity would be required to protect the HSE: “Following legal advice to the HSE a further meeting took place on October 5, 2010. At this meeting matters concerning previous practice in the Society was discussed, and the issue of the Society indemnifying the HSE in the event that any claims would be made against the Society for past activity. The legal advice from the HSE solicitors had been that to safeguard the HSE this would be advisable.”
However, a non-dated service agreement briefing note, which appears to be from 2010, reveals that the order were initially not keen to indemnify the HSE.
“The Society stated they were not in a position to continue the arrangement of employing the staff nor were they prepared to indemnify the HSE should the HSE take over the files and the work involved in Search and Reunion,” read the memo.
An agreement was eventually reached with the order whereby it agreed to indemnify the HSE against “all liabilities, claims, charges, expenses, wrongdoing, losses or demands for an indefinite period”.
The order is also obliged to notify the HSE immediately when it becomes aware of any claim or potential claim being made against it.
In November of last year, an Irish Examiner investigation revealed the religious order which ran the Bessborough Mother and Baby Home reported significantly higher numbers of infant deaths to state inspectors than it recorded privately.
This came just months after another investigation revealed 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.
In a statement, the order declined to comment on the HSE concerns about its past actions, stating it was dealing with the Commission of Investigation into Mother and Baby Homes “on all such and related matters” and that it would “not be appropriate to enter into communication, other than with the Commission at this time”.